Criminal Practice

Question 1

Who does the legal burden of proof in criminal cases rest with?

And to what extent must it be proved?

Answer 1

The legal burden of proof in criminal cases rests with the prosecution to prove the defendant’s guilt beyond a reasonable doubt.

Question 2

In which situations might the legal burden of proof fall on the defendant? And to what extent?

Answer 2

When the defendant raises defenses such as insanity or duress. In these cases, the defendant must prove the defense on the balance of probabilities.

Question 3

What is the evidential burden on the prosecution in a criminal trial?

Answer 3

The prosecution must present enough evidence to show that the defendant has a case to answer. If they fail, the defense can submit a no case to answer.

Question 4

What is the evidential burden on the defense?

Answer 4

The defendant must provide some evidence of their defense (e.g., alibi or self-defense) to allow the jury or magistrates to consider it. This is NOT a requirement to prove innocence.

Question 5

What happens if the prosecution does not meet its evidential burden?

Answer 5

The defense may make a submission of no case to answer, and the court could dismiss the case without requiring the defense to present evidence.

Question 6

What are the Turnbull guidelines?

Answer 6

The Turnbull guidelines provide a framework for assessing the reliability of eyewitness identification when it is disputed by the defendant.

Question 7

When do the Turnbull guidelines apply?

Answer 7

When a witness visually identifies the defendant, and the defendant disputes this identification, the guidelines ensure the court takes care to assess the reliability of the identification.

Question 8

What does Section 78 of PACE 1984 allow?

Answer 8

It allows the court to exclude evidence that may have an adverse effect on the fairness of the proceedings, particularly when police procedures are breached.

Question 9

What happens if identification evidence is of poor quality and unsupported?

Answer 9

The judge should stop the trial and direct the jury to acquit the defendant.

Question 10

What does Section 78 of PACE 1984 allow?

Answer 10

It allows the court to exclude evidence that may have an adverse effect on the fairness of the proceedings, particularly when police procedures are breached.

Question 11

What should the defense do if the police breach Code D in an identification parade?

Answer 11

The defense should first challenge the evidence under Section 78 PACE and get the court to use its discretion to exclude of the evidence. If the evidence still is admitted, the defense can try to undermine the quality of the evidence during the Turnbull witness’ cross-examination.

Question 12

Give me 3 examples of how the police may breach the rules for holding an identification procedure.

Answer 12

• At a video identification procedure, the police MAY BREACH THE REQUIREMENT that the other images shown to the witness must resemble the suspect in age, general appearance and position in life.
• At an identification parade, the police may breach the requirement that the witnesses attending the parade are segregated BOTH FROM EACH OTHER and from the SUSPECT before and after the parade.
• If, whilst the defendant was detained at the police station, the police failed to hold an identification procedure when such a procedure should have been held.

Question 13

What 3 things will make someone a Turnbull witness?

Answer 13

1) The witness picks out the defendant informally
2) The witness identifies the defendant at a formal identification procedure at the police station
3) The witness claims to recognise the defendant as someone previously known to them.

Question 14

If a witness gives a description to the court of the person who committed the crime but there is no evidence that it was the defendant, will the Turnbull guidelines apply?

Answer 14

No because the only evidence that they have is that their physical appearance matches the description given. There is no direct visual identification evidence from with witness, just evidence of description.

Question 15

In the Crown Court, who assesses the quality of identification evidence?

Answer 15

The trial judge

Question 16

What factors does the judge consider under the Turnbull guidelines?

Answer 16

• The length of the observation – did the witness look at the person for a long time or was it just a fleeting glimpse?
• Distance – was the witness close to this person or were they some distance away?
• Lighting – Did the observation happen in daylight of at night? If at night, was there street lighting? If the observation occurred inside a building, was the building well-lit or was it dark?
• Conditions – If the sighting was outside, what were the weather conditions like? Was it a sunny or a foggy day? How many other people were present at the time and did they obstruct the witness’s view? Did anything else obstruct the view? If the sighting was in a building such as a pub, did any part of the building (such as a pillar) obstruct the view?
• How much of the suspect’s face did the witness actually see?
• Whether the person identified was someone who was already known to the witness or someone they’d never seen before.
• How closely did the original description given by the witness to the police match the actual physical appearance of D? Are there any discrepancies in height, build, hair colour/length or age?

Question 17

What happens if the identification is good quality?

Answer 17

Then when the judge sums up the case to the jury, the judge will point out to them the the DANGERS of relying on identification evidence and the special need for caution when such evidence is relied on. Will also tell them to consider the factors mentioned before when considering the quality of the evidence. Will also tell them to consider the circumstances of the original sighting.

Called a ‘turnbull warning’.

Question 18

What happens if the identification is poor but supported by other evidence?

Answer 18

The turnball warning (as above) is given.

The judge will again point out the dangers of relying on identification evidence and the need for special caution when the jury are considering this type of evidence.

ADDITIONALLY, the judge will also draw SPECIFIC ATTENTION to the WEAKNESSES of the identification evidence.

Question 19

What qualifies as supporting evidence?

Answer 19

Supporting evidence could be:
- A confession made by the defendant
- Other evidence placing the defendant at the scene of the offence (e.g. fingerprints/DNA evidence)
- In a theft case, stolen property being found in the defendant’s possession
- Adverse inferences being drawn from D’s silence when questioned at the police station.

Question 20

What if the identification is poor and unsupported?

Answer 20

At the end of the prosecution case, the judge should direct the jury to ACQUIT the defendant.

This will normally follow by a submission of NO CASE TO ANSWER being made by the defendant’s advocate.

Question 21

How do the Turnbull guidelines work in the magistrates court?

Answer 21

It is up to the defendant’s solicitor to address the Turnbull guidelines to the magistrates.

Question 22

What happens in the following circumstances?

• Defendant’s solicitor considers the witness’ evidence as poor and there’s no other evidence.

Answer 22

D’s solicitor should make a submission of no case to answer at the end of the prosecution’s case.

Question 23

What happens in the following circumstances?

• Defendant’s solicitor considers the witness’ evidence as good or poor but there is supporting evidence.

Answer 23

D’s solicitor will be UNLIKELY to make a submission of no case to answer - instead should address the Turnbull guidelines in their closing speech.

Reminding the magistrates that identification evidence from an eyewitness is notoriously unreliable and to exercise caution when considering this evidence.

Also point out any weaknesses in the identification evidence that has been given.

Question 24

What does s78 of PACE provide for?

Answer 24

Gives the court a discretion to exclude improperly or unfairly obtained prosecution evidence.

Question 25

What type of power does s78 provide?

Answer 25

It provides a DISCRETIONARY power to the court - the court is only likely to exercise its discretion if there is something UNRELIABLE about the evidence which the police have obtained.

Question 26

What if the police have breached the provisions of PACE 1984/Codes of Practice when obtaining evidence?

Answer 26

As long as the evidence is RELEVANT to the charge faced by the defendant and there is nothing in the way in which it has been OBTAINED which casts doubts on its reliability, the court is unlikely to exclude it under s78 (EVEN IF the police have breached the provisions of PACE 1984 and/or the Codes of Practice).

Question 27

When WOULD the court be likely to exclude evidence under s78 on the grounds that the police have breached PACE 1984?

Answer 27

Only if in the obtaining of such evidence the breaches of PACE/Codes of Practice are ‘significant and substantial’.

Question 28

Give me 5 examples of prosecution evidence that a defendant may seek to persuade the court to exclude under s78.

Answer 28

1) Evidence obtained following an ILLEGAL search
2) Identification evidence
3) Confession evidence
4) Evidence obtained from the use of covert listening and surveillance devices and
5) Evidence obtained in ‘undercover’ police operations.

Question 29

Under Article 6 of the ECHR, what should anyone charged with a criminal offence be entitled to?

Answer 29

A fair hearing

Question 30

How does the court’s discretion meet the aims of Article 6 in this respect?

Answer 30

The discretion it is given to exclude evidence by s78 ensures the proceedings are conducted in a way which is fair to the defendant.

Question 31

Regarding ‘entrapment’, what is the best way to challenge the admissibility of such evidence gained in this way?

Answer 31

Entrapment is not a defence.

Instead of using s78 to exclude evidence, the court should be invited to exercise its common law power to stop the case on the basis that it would represent an ABUSE OF PROCESS.

Question 32

What are the guidelines for trial judges when deciding whether or not to stay proceedings for an abuse of process? (5 things)

Answer 32

1) The nature of the investigation – the more intrusive the investigation, the harder the
courts should scrutinise it.

(2) The nature of the offence. Certain offences can only be committed in a covert way such as drug trafficking and therefore police can only crack them in a covert way.

(3) The nature of the police involvement. For example, how they behaved, how persistent
they were in trying to persuade the defendant to take part in the offence, for example
did they behave like a ‘normal customer’ might and no more.

(4) The defendant’s criminal record – usually this would not be relevant unless there was
evidence of recent similar involvement.

(5) The level and extent of supervision of the undercover officers.

Question 33

What right does anyone who is arrested on suspicion of having committed a criminal offence have?

Answer 33

The right to remain silent when interviewed at the police station

Question 34

If a defendant’s case comes to trial and they’ve remained silent during police interview, what conclusions can the court draw?

Answer 34

The court may be allowed to draw ‘adverse inference’ from earlier silence when being questioned under caution about the offence.

Question 35

What is an adverse inference?

Answer 35

Means a court is likely to draw a negative conclusion from D’s silence when interviewed at the police station (hold their silence against them).

Question 36

What are the two main inferences that the jury/magistrates will draw in regards to silence?

Answer 36

1) That D remained silent because they had no adequate explanation for their conduct and so fabricated the facts after being charged by police.

2) Even though D may not have fabricated the defence, they didn’t put the defence forward when being interviewed by the police as they didn’t believe it would stand up to further investigation by the police.

Question 37

What happens if the only evidence against D is an adverse inference?

Answer 37

A defendant’s silence when interviewed by the police can’t, on its own, prove guilt. The prosecution must have adduced other evidence of D’s guilt.

Question 38

When can the court NOT draw an adverse inference from D’s silence?

Answer 38

When the defendant HAD NOT been allowed to consult a solicitor to obtain independent legal advice. There the defendant has the ABSOLUTE RIGHT to remain silent.

Question 39

Can an adverse inference be drawn when D has been given the opportunity to take independent legal advice but declined?

Answer 39

Yes

Question 40

Under s34 of the Criminal Justice and Police Act, what are the 2 times that the court/jury are allowed to draw an adverse inference from D’s silence?

Answer 40

1) At any time BEFORE he was charged with the offence/being questioned under caution by a constable failed to mention a fact later relied on in his defence

2) On being charged with the offence or officially informed that he might be prosecuted, failed to mention any fact which the accused could reasonably have been expected to mention

Question 41

Under s34, what happens when a defendant HAS answered every question put to them and then in trial, they raise some fact in their defence that they didn’t mention in the interview?

Answer 41

If they could reasonably have been expected to mention this fact when interviewed, the adverse inference can be drawn - even though they weren’t silent during interview.

Question 42

What are the 5 conditions that need to be satisfied before adverse inference could be drawn from D’s silence in police interview?

Answer 42

1) the interview had to be an interview under caution;
2) the defendant had to fail to mention any fact later relied on in his defence at trial;
3) the failure to mention this fact had to occur before the defendant was charged;
4) the questioning of the defendant at the interview in which the defendant failed to mention
the fact had to be directed to trying to discover whether or by whom the alleged offence
had been committed; and
5) the fact which the defendant failed to mention had to be a fact which, in the
circumstances existing at the time, the defendant could reasonably have been expected
to mention when questioned.

Question 43

Instead of answering questions in a police interview, what might the defendant’s solicitor advise D to do?

Answer 43

D should hand a written statement over to police which the solicitor will prepare on the client’s behalf.

Question 44

What are the advantages of a written statement?

Answer 44

It allows the client’s version of events to be set out in a clear and logical way - especially good if the client might not come across well in interview.

Question 45

If the client hands over a written statement, can the court draw an adverse inference under s34 if the client stays silent for the rest of the interview?

Answer 45

No - as long as, in the statement that is handed to the police, there are ALL THE FACTS which the defendant later relies on in their defence at court.

Question 46

What happens if the client doesn’t hand in the written statement? Can adverse inferences be drawn?

Answer 46

The court will NOT be able to rely on the adverse inference of recent fabrication but can still infer that D was not sufficiently confident about their defence to expose this to investigation by police following the interview.

Question 47

What are the 3 circumstances in which the solicitor is likely to advise their client to remain silent when interviewed by police?

Answer 47

1) Level of disclosure by police - If the absence of meaningful disclosure by police means that a solicitor is unable to properly advise their client, this may be a good reason for advising the client to remain silent.

2) Nature of the case - If the material the police have is particularly complex, relates to events which occurred a long time ago, the solicitor may advise their client to remain silent when it would not be sensible to give an immediate response to police.

3) Personal circumstances of the suspect - If the solicitor believes their client to be suffering from ill health, mental disorder or vulnerability, is excessively tired or is confused/shocked/intoxicated, the solicitor is justified in telling the suspect to remain silent.

Question 48

Can a defendant avoid an adverse inference by claiming their refusal to answer questions
was based on legal advice?

Answer 48

Ultimately, the jury will now be directed by the trial judge that adverse inferences SHOULDN’T be drawn if the jury believe D genuinely and reasonably relied on the legal advice to remain silent.

Question 49

When is legal privilege said to be waived during trial?

Answer 49

Once a defendant gives info about the reasons behind why the solicitor advised them to remain silent, legal privilege is waived.

(Note, it is not waived if a defendant says that they only remained silent in interview following advice from their solicitor - but not explaining the reasons behind it).

Question 50

What does s36 allow the court or jury to do?

Answer 50

It allows the court or jury to draw an adverse inference if, when interviewed by the police, D failed to account for the presence of an object, substance or mark.

Question 51

What is the difference between ss34 and 36?

Answer 51

s 34 will only apply if a defendant raises a fact at trial which they failed to mention at the police station.

s36 will apply irrespective of any defence or may apply even if no defence is put forward.

Question 52

What is the ‘special caution’ under s36 which must be stated for inferences to be drawn?

Answer 52

Inferences can only be drawn under s36 only if the police officer requesting the explanation for the object, susbstance or mark has told the suspect certain specified matters before requesting the explanation.

The suspect must be told:
- What the offence under investigation is
- What fact the suspect is being asked to account for
- That the officer believes this fact may be due to the suspect taking part in the commission of the offence in question.
- That a court may draw an adverse inference from failure to comply with the request AND
- That a record is being made of the interview and that it may be given in evidence if the suspect is brought to trial.

Question 53

What can the court infer under s37?

Answer 53

Section 37 allows the court to draw an adverse inference if, when questioned at the police
station, the defendant failed to account for his presence at a particular place at or about the
time the offence was committed.

Question 54

What is the difference between s34 and s37?

Answer 54

Whilst s 34 will apply only if
a defendant raises a fact which they failed to mention at the police station, in their defence
at trial, s 37 will operate irrespective of any defence put forward. It may apply even if no defence is raised at trial.

For inferences to be drawn under s37, a suspect needs to be given the ‘special caution’ by police.

Question 55

What things does the defendant not have to do at trial (if they choose not to)?

Answer 55

• Don’t have to give evidence on their own behalf at trial
• Don’t have to raise facts in their own defence

(Entitled to remain silent and argue that the CPS has failed to prove that they are guilty beyond a reasonable doubt)

Question 56

Can adverse inferences be drawn under s34 if D chooses to remain silent at trial?

Answer 56

No, no adverse inferences can be drawn as D is not raising any facts in his defence that he didn’t mention at the police station (as he is staying silent).

Question 57

What is the effect of s35 of the CJPOA?

Answer 57

If the prosecution has raised issues which call for an explanation from D, should D then fail to give evidence, the court will be entitled to infer from that failure that D has either no explanation or no explanation that will stand up to cross-examination.

Question 58

What 5 things to the court have to take into account when considering the application of s35?

Answer 58

1) The burden of proof remains on the prosecution throughout
2) The defendant is entitled to remain silent
3) Before drawing an adverse inference from D’s silence, the court had to be satisfied that there was a case to answer on the prosecution evidence
4) An adverse inference from D’s failure to give evidence cannot ON ITS OWN prove guilt
5) No adverse inference could be drawn unless the only sensible explanation for D’s silence was that he had no answer to the case against him or none that could stand up to cross-examination.

Question 59

If the only evidence against D is the adverse inference, under s35, will D be convicted?

Answer 59

No, a defendant will NOT BE CONVICTED of an offence if the ONLY EVIDENCE against him is an adverse inference from his failure to give evidence in his defence at trial.

Question 60

What separates s35 from the other sections previously mentioned? (s34, 36 and 37)

Answer 60

s35 is unique as there is a limited statutory exception to the drawing of adverse inferences.

The court has a discretion under s35 to direct that an adverse inference is NOT DRAWN where the physical or mental condition of the accused makes it undesirable for him to give evidence.

Question 61

What occurs during video identification of suspects?

Answer 61

The witness is shown moving images of a known suspect, together with similar images of others who resemble the suspect.

Question 62

What rules must be followed regarding the number of people in the video?

Answer 62

The images must include the suspect and AT LEAST 8 other people who, so far as possible, resemble the suspect in age, general appearance and position in life.

Where TWO suspects of roughly similar appearances are shown in the same images, they must be shown together with AT LEAST 12 OTHER PEOPLE.

The images must show the suspect and other people in the same positions/carrying out the same sequence of movements.

Question 63

What must the suspect or solicitor be allowed to do before the video identification?

Answer 63

The SUSPECT OR THEIR SOLICITOR must be given a reasonable opportunity to see the full set of images before they are shown to any witness.

Question 64

What happens if there is a reasonable objection to the images from the suspect or their solicitor?

Answer 64

The police must take steps – if practicable – to remove the grounds for objection. This could including not using the image of the person who doesn’t resemble the suspect and replacing it.

Question 65

If a suspect has any unusual features, what happens regarding the video?

Answer 65

If a suspect has any UNUSUAL FEATURES (facial scar, distinctive hair style or tattoo) which don’t appear on the images of other people, the police may take steps to conceal those features on the video or to replicate those features on the images of the other people. This can be done electronically.

Question 66

Is it a witness allowed to see the video images WITHOUT concealment or replication of the unusual feature?

Answer 66

Yes, if a witness, having seen video images where concealment or replication HAS been used, wants to see an image without the concealment or replication of the unusual feature, the witness may be allowed to do so.

Question 67

Will the suspect be present at the video identification?

Answer 67

No, they will NOT be present at the video identification though they will have attended the police station on an earlier date to be video recorded for the purposes of video identification.

Question 68

Will the suspect’s solicitor be present at the video identification?

Answer 68

Yes, the suspect’s solicitor should have been given reasonable notice of the time and place of the video identification so they can attend to ensure it is carried out properly.

Question 69

How many witnesses can see the video at one time?

Answer 69

Only one witness may see the video at a time.

The playback of the video may be frozen and there is no limit on the number of times the witness may see the video.

Question 70

What 4 things can witnesses not do before they see the video?

Answer 70

Before they see the set of images, witnesses must not be able to:
- Communicate with each other about the case
- See any of the images which are to be shown
- See, or be reminded of, any photo or description of the suspect, or be given any indication of the suspect’s identity or
- Overhear a witness who has already seen the material.

Question 71

Can a witness be told about whether a previous witness has made an identification?

Answer 71

No, a witness MUST NOT BE TOLD whether a previous witness has made an identification.

Question 72

What can the police not do?

Answer 72

The police must NOT discuss with the witness the composition of the set of images.

Question 73

What happens if a suspect refuses to consent to take part in a video identification?

Answer 73

Alternative procedures can be followed including a covert video identification.