Criminal Practice 3 - Procedures to admit evidence

Question 1

Two requirements which needs to be satisfied if the jury or magistrates are to take a piece of evidence into account.

Answer 1

a) relevant to the facts in issue in the case

b) evidence must be admissible (legally).

Question 2

Legal Burden

Answer 2

Borne by the prosecution.

Beyond a reasonable doubt.

Switches when raising insanity or duress. (Switches to balance of probabilities).

Other specific defences ( self-defence ) just an evidential burden applies. Prosecution must then prove this beyond a reasonable doubt.

Question 3

Evidential Burden

Answer 3

Prosecution present case first.

Must have presented sufficient evidence to the court to justify a finding of guilt.

If not passed then the defence or counsel will be entitled to make a submission of no case to answer.

If defendant making a defence must satisfy the evidential burden - enter the witness box and give details of the defence.

Question 4

Challenging the admissibility of disputed visual identification evidence

Answer 4

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Question 5

S78 PACE

Answer 5

‘the admission of such evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it’.

Question 6

Breaches of ID procedure ( PACE Code D)

Answer 6

a) police breach requirement that other images show to witness must resemble the suspect in age, general appearance and position in life ( Code D, Annex A, para 2).

b) at an identification parade, the police may breach the requirements that the witnesses attending the parole are segregated both from each other and from the suspect before and after the parade. (Code D, Annex B, para 14).

c) a breach of the Codes of Practice will occur 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 pursuant to para 3.12 of Code D.

Question 7

If breach of Code D?

Answer 7

If prosecution seek to rely on evidence upon which has been obtained following significant and substantial breach of Code D.

Challenge the admissibility of the evidence under s78 of PACE 1984.

If court declines then think about undermining the quality in cross-examination.

Question 8

The Turnbull Guidelines

Answer 8

Apply when a witness who gives evidence for the CPS visually identifies the D as the person who committed the crime and the D disputes that identification.

Witness will identify the D as the person who committed the offence if:
a) the witness picks out the defendant informally ; or
b) the witness identifies the defendant at a formal identification procedure at the police station ; or
c) the witness claims to recognise the defendant as someone previously known to them.

Only apply if D disputes.

If witness fives evidence of person who committed but no direct evidence it was the D - will not apply.

Question 9

Application of the Turnbull guidelines

Answer 9

Crown court, trial judge is responsible for assessing quality of ID evidence.

Must look at circumstances and determine how strong the evidence is.

When assessing will look at :

a) length of observation

b) distance

c) lighting

d) conditions

e) how much of the suspect’s face they saw

f) whether the person was already known to the witness

g) how closely the original description given by the witness to the police match the actual physical appearance of the defendant.

Question 10

Identification is good quality

Answer 10

Judge will point out before the jury retires of the dangers of relying on identification evidence, and the special need for caution when such evidence is relied on.

The judge will say it is very easy for an honest witness to be mistaken as to identity and will direct they examine closely the circumstances of the original sighting, and take into account the assessment factors when considering the quality of the evidence.

Called a ‘Turnbull warning’.

Question 11

Identification poor but supported

Answer 11

‘Turnbull warning’ given.

Will again point out dangers.

Judge will also draw to the specific attention of the jury the weakness in the ID evidence given.

Will tell the jury to look for other supporting evidence.

Jury will be directed to what other evidence may amount of supporting evidence :

a) confession made by D

b) other evidence, placing D at scene of offence (fingerprints, DNA).

c) Theft case - property in possession.

d) Adverse inferences

Question 12

Identification poor and unsupported

Answer 12

The judge should stop the trial at the end of the prosecution case and direct the jury to acquit the defendant.

Will normally follow a submission of no case to answer being made by the defendant’s advocate.

Question 13

Turnbull guidelines in the Magistrate’s court

Answer 13

D’s solicitor will address the mags on Turnbull guidelines.

If poor and unsupported make a submission of no case to answer at end of prosecution case.

In other cases address Turnbull guidelines in speech to magistrates, and that ID evidence is notoriously unreliable and magistrates should exercise caution when considering such evidence.

Question 14

Inferences from silence

Answer 14

ss 34, 35, 36 , 37, 38 Criminal Justice and Public Order Act 1994.

Question 15

‘Adverse inference’ ?

Answer 15

Drawing a negative conclusion from D’s silence when interviewed.

That they had no adequate explanation for their conduct and that they fabricated the facts which make up their defence at trial after being charged by the police.

Or that it would not stand up to further investigation by the police.

Cannot be convicted on this basis alone.

Cannot draw if did not have opportunity to consult a solicitor. The defendant has an absolute right to remain silent and the caution given should reflect this.

Question 16

Inferences under s34 CJPOA 1994

Answer 16

Allows the court or jury to draw an adverse inference from a defendant’s silence when D was being questioned or charged at the police station

S34 :

(1)Where, in any proceedings against a person for an offence, evidence is given that the accused—

(a)at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or

(b)on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact.

‘Reasonably been have expected to mention’.

Question 17

Pre-conditions

Answer 17

R v Argent (1997) -

a) interview had to be under caution

b) the D had to fail to mention any fact later relied on in his defence at trial.

c) failure to mention this fact had to occur before D was charged

d) the questioning the defendant at the interview in which the D failed to mention the fact had to be directed to trying to discover whether or by whom the alleged offence had been committed.

e) the fact which the D failed to mention had to be a fact which, in the circumstances existing at the time, the D could reasonable have been expected to mention when questioned.

Condron v UK (2001) - Drawn only if the court was satisfied the reason for the silence was that they had no answers t the questions or no answers that would stand up to scrutiny.

R v Betts and Hall (2001) - if remained silent at initial interview but talked later can still draw.

If D places factual defence on record and says nothing when subsequently charged not draw.

Question 18

Written Statement

Answer 18

Useful when client distressed, emotional or tired.

As long as a written statement handed to the police contains all facts which D intends to rely on in defence, court not able to draw adverse inference if D refuses to answer questions based on contents of that statement.

If prepares and does not hand in to the police prevent from drawing the inference of recent fabrication, not event the court from drawing D not confident about their defence to expose to investigation.

Question 19

When to advise to remain silent?

Answer 19

Level of disclosure by police - police not under general duty to disclose all details of evidence. However if absence of meaningful disclosure means solicitor unable to properly advise this may amount to a good reason for advising the client to remain silent (R v Argent 1997).

Nature of case - if particularly complex or events happened a long time ago would not be sensible to give an immediate response (R v Roble).

Personal circumstances - ill health, mentally disordered or vulnerable, excessively tired or otherwise confused, shocked or intoxicated solicitor would be justified in advising suspect to remain silent.

Question 20

Silence based on legal advice

Answer 20

If they say was based on solicitors advise would not stop adverse inferences being drawn.

However must be given appropriate weight at trial (Condron v UK 2000).

The question is whether the facts relied on at trial were facts which the D could reasonable have been expected to mention in police interview.

If the jury believe D genuinely and reasonably relied on the legal advise to remain silent cannot draw adverse inferences. (Beckles and Howell).

Question 21

Legal Privilege

Answer 21

Police not allowed to ask about advice received.

D may give evidence at trial which waives such privilege. Allows prosecution to cross-examine reasons for legal advice they were given.

If at trial to prevent adverse inferences a D gives evidence they remained silent only following advice from solicitor this will not in itself waive privilege (R v Beckles). However they will want to know the reasons for advice.
Once given legal privilege is said to be waived ( R v Bowden 1999).

If D when giving evidence in-chief gives reasons for legal advise they received, the D and solicitor if giving evidence on behalf may be cross-examined as to any other reasons for solicitors decision to advise client to remain silent.
Prosecution will be entitled to cross-examine the D (and solicitor) on instructions which the D gave to solicitor whilst at police station which led to solicitor advising them to remain silent in interview.

Question 22

Denial of access to legal advice

Answer 22

Adverse inference cannot be draw in :
(34)(2A) -
When an accused was at an authorised place of detention at the time of the failure subsection (1) and (2) do not apply if he had not been allowed an opportunity to consult a solicitor prior to being questioned, charged …

Question 23

Inferences under S36 CJPOA 1994

Answer 23

Section 36 allows court or jury to draw an adverse inference if when interviewed by the police the D failed to account for the presence of an object substance or mark.

1)Where—

(a)a person is arrested by a constable, and there is—

(i)on his person; or

(ii)in or on his clothing or footwear; or

(iii)otherwise in his possession; or

(iv)in any place in which he is at the time of his arrest,

any object, substance or mark, or there is any mark on any such object; and
(b)that or another constable investigating the case reasonably believes that the presence of the object, substance or mark may be attributable to the participation of the person arrested in the commission of an offence specified by the constable; and

(c)the constable informs the person arrested that he so believes, and requests him to account for the presence of the object, substance or mark; and

(d)the person fails or refuses to do so,
Then the court or jury may draw such inferences from the failure or refusal as appear proper.

Operates regardless of defence.

Question 24

Inference?

Answer 24

D had no explanation for the presence of the object, substance or mark or none that would have stood up to police questioning.

Question 25

Specified matters

Answer 25

Unlike s34.

Suspect must be told :

a) what the offence under investigation is

b) what the fact the suspect is being asked to account for

c) that the officer believes the fact may be due to the suspect taking part in the commission of the offence in question

d) that a court may draw an adverse inference from failure to comply with the request.

e) that a record is being made of the interview and that it may be given in evidence if the suspect if brought to trial ( PACE 1984, Code C, para 10.11).

Question 26

Inferences under s 37 CJPOA 1994

Answer 26

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

S37 provides :

Effect of accused’s failure or refusal to account for presence at a particular place.
(1)Where—

(a)a person arrested by a constable was found by him at a place at or about the time the offence for which he was arrested is alleged to have been committed; and

(b)that or another constable investigating the offence reasonably believes that the presence of the person at that place and at that time may be attributable to his participation in the commission of the offence; and

(c)the constable informs the person that he so believes, and requests him to account for that presence; and

(d)the person fails or refuses to do so,
Then the court or jury may draw such inferences from the failure or refusal as appear proper.

S37 operates regardless of defence.

Question 27

Inference ?

Answer 27

D has no explanation for their presence at that particular place at or about the time the offence was committed, or no explanation that would have stood up to police questioning.

Question 28

Special caution required for s37 as well

Question 29

Silence at trial and inferences under s35 CJPOA

Answer 29

Unless successful submission of no case to answer at end of prosecution case D will have opportunity to put their case before the court.

D not obligated to to give evidence on own behalf at trial, neither obligated to raise any facts in own defence.

D can remain silent at trial and argue CPS has failed to prove beyond reasonable doubt.

However may be subject to an adverse inference.

S35 (2) -
the court shall at the conclusion of the evidence for the prosecution satisfy itself that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes give evidence and that, if he chooses not to give evidence, or having being sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to given evidence or his refusal, without good cause, to answer any question.

If asked by P and fails to answer. Court entitled to infer from that failure D has either no explanation or none that will stand up to cross-examination.

Question 30

Factors to be taken into account ?

Answer 30

R v Cowan: R v Gayle : R v Ricciardy (1995) :

a) burden of proof remains on prosecution throughout

b) D is entitled to remain silent

c) Before drawing adverse inference court must be satisfied there is a case to answer on prosecution evidence.

d) adverse inference from D’s failure to give evidence cannot on its own prove guilt

e) no adverse inference could be drawn unless the only sensible explanation for the D’s silence was he had no answer to the case against him or none that stood up to cross-examination.

Cannot be convicted based on adverse inferences alone.

S35(1)(b) - Provides court with discretion to direct adverse inference not drawn where :
it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence.

Exception applied strictly

R v Friend - not applied to 9 year old. More tailored to epileptic seizure, schizophrenia and likely to cause florid state.
Second appeal quashed original conviction as 9 year old did have ADHD however.

Question 31

Exclusion of evidence

Answer 31

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Question 32

S78 (1) PACE

Answer 32

In any proceedings a court may refuse to allow evidence on which the prosecution propose to rely to be given if it appears to the court that, having regard to all of the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Question 33

In practice

Answer 33

Court only likely to exercise discretion to exclude if something unreliable about the evidence.

If relying on breaches of PACE polices by brach only granted if ‘significant and substantial’.

Question 34

Ask

Answer 34

Has evidence been improperly obtained - ‘significant and substantial’ breach of PACE or codes of practice.

Does the manner in which the evidence was obtained cast doubts on the reliability of the evidence?

Question 35

R v Sang (1980) ‘Entrapment’

Answer 35

Incited the accused to commit the offence.

The state cannot lure individuals into committing offences.

Lord Nicholls stated to look at these factors :

(1) nature of the investigation - more intrusive more scrutiny

(2) nature of the offence. (Drug offences require covert tracking)

(3) nature of police involvement - behave like a ‘normal customer’

(4) - defendant’s criminal record - evidence of similar involvement

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