Criminal Practice - Rules of Evidence (11) Flashcards
Hearsay/Bad-Character/Adverse-Inferences/Turbull
What is an overview of the rules of evidence?
Rules of Evidence: The Rules of Evidence govern the burden and standard of proof, and admissibility of evidence, at trial.
(1) Burden of Proof: The onus on a party to prove their case or argument.
(2) Standard of Proof: The degree to which that party must prove its case or argument.
(3) Admissibility: Evidence must be relevant to facts in issue, and admissible according to the law.
(4) Types of Evidence: Evidence can be direct or circumstantial.
- Direct: Direct evidence of a fact (i.e. eyewitness account).
>I.e. A witness sees (A) stab (B) in the pub.
- Circumstantial: Inferred evidence of a fact (i.e. adverse inference).
>I.e. (A) sent a letter to (B) before the stabbing saying ‘I will get you back’.
What is the burden of proof?
Burden of Proof: There exists both a legal and evidential burden of proof.
(1) Legal Burden: Prosecution has a legal (persuasive) burden to prove the guilt of the defendant, including to disprove most defences raised by the Defendant.
Defence: Defendants have a legal burden to prove the defences of insanity, automatism, duress, and diminished responsibility manslaughter.
(2) Evidential Burden: Both parties have an evidential burden.
- Prosecution: Must evidence the guilt of the defendant (i.e. raising a case to answer).
- Defence: Must ‘raise’ any defences relied upon (i.e. give details in the box but not necessarily prove).
What is the standard of proof?
Standard of Proof: The standard of proof differs between parties.
(1) Prosecution: Prosecution must prove guilt, and disprove defences, beyond a reasonable doubt (Woolmington v DPP). This means the court must be sure of guilt upon the evidence.
(2) Defence: Where the Defendant has the legal burden to prove a specific defence (as above), they must do so on the balance of probabilities. This simply means more probable than not.
What is the s78 exclusion?
Section 78 Exclusion: Courts have a general discretion to exclude prosecution evidence if it would have such an adverse effect on the fairness of proceedings that it ought not to be admitted (s78 PACE).
(1) Misconduct: Evidence will usually be excluded if obtained through significant and substantial police misconduct, such as evidence tampering, improper identification, threatening behaviour etc (R v Keenan).
>There does not need to be bad faith in respect of a breach (R v Walsh).
>However, the existence of bad faith is more likely to lead to exclusion (R v Canale).
>The evidence itself must be unfair - i.e. evidence obtained without a warrant is less likely to be unfair than planted evidence.
(2) Unfairness: Evidence will have an adverse effect on fairness if the defendant cannot properly challenge it at trial, or if it is clearly unreliable. Exclusion complies with Article 6 ECHR (Khan v UK).
What is entrapment?
Entrapment: Entrapment is not a specific ground for exclusion, but ‘abuse of process’ can lead to the case being withdrawn (R v Sang).
(1) Abuse of Process: Abuse of process means that the police acted in a way that was ‘so unfair and wrong’ that the evidence ought to be excluded (R v Loosely).
(2) Grounds: Generally, the more intrusive, aggressive, unsupervised or unguided a police operation, the more likely it is to constitute an abuse of process. Offences which are only detectable covertly are treated more leniently.
>A confession was excluded where officers had lied about damning evidence, as they had actively deceived the suspect (R v Mason).
>However, evidence was admitted when a suspect offered stolen jewellery to undercover officers posing as jewellers, as the suspect had voluntarily applied themselves to the trap (R v Christou and Wright).
(3) Effect: The court can exercise its common law power to stop the case on the basis that it represents an abuse of process to allow such prosecutions to continue (R v Loosely).
What is visual identification evidence?
Visual Identification Evidence: The admissibility and cogency of visual identification evidence is a common ground of challenge due to its notorious unreliability.
What is a s78 exclusion for visual identification evidence?
Section 78 Exclusion: As with all prosecution evidence, the court can exclude visual identification evidence if it deems it unfair, such as where the police coached witnesses or improperly conducted identification procedures. For example:
(1) ID Process: At an identification process, the police failed to make other individuals resemble the suspect, or failed to segregate witnesses before a parade, or the investigating officers were present.
(2) Lack of Process: Alternatively, the police failed to hold an ID procedure when required under Code D.
What are turnbull guidelines?
Turnbull Guidelines: Courts must apply ‘Turnbull Guidelines’ to certain admissible visual identification evidence, which can include dismissing the case. Failure to apply the guidelines is a common ground of appeal.
What are the grounds of application for a turnbull guideline?
Grounds of Application: Turnbull Guidelines must be applied to disputed visual identifications made by a Turnbull Witness.
(1) Turnbull Witness: There are three types.
- Informal: Witness identified defendant informally, such as at the crime scene (not from TV/photographs).
- Formal: Witness identified defendant formally (at an ID procedure).
- Known: Witness identified defendant as someone known to them.
(2) Disputed Identification: The Defendant must dispute the identification to the extent that it supports guilt, including a defendant admitting presence at a scene but denying involvement (R v Thornton).
>Defendants cannot dispute identification if they admit they were the only person present at scene, or if no other person matching their description was at the scene (R v McEvoy).
>Turnbull will not apply if the Defendant agrees to being present, but claims self-defence, as it is not the account that is being disputed by the lawfulness of the offence.
>Turnbull will not apply if the witness provides a description of the suspect, but at no point identifies the Defendant as that suspect. This is merely evidence of description.
What does the court have to consider when deciding on a Turnbull Warning?
Strength of Evidence: The Judge or magistrates must assess the strength of the original witness evidence, and then decide how to apply it.
(1) Strength: Strength is based on factors such as: a) length of sighting; b) distance; c) lighting; d) weather; e) obstructions; f) extent of facial sighting; g) relation to suspect; and g) correlation of description and real appearance.
What is the procedure for a Turnbull Guideline in the Crown Court?
- Good Evidence
- Poor Supported Evidence
- Poor Unsupported Evidence
Crown Court: At the Crown Court, the Judge directs the Jury based on the strength of evidence.
(1) Good Evidence: Good evidence is given to the Jury with a general Turnbull Warning.
Turnbull Warning: Judge highlights general dangers of ID evidence, but invites Jury to rely on it here.
(2) Poor Supported Evidence: Poor evidence supported by other consistent evidence is given to the Jury with a specific Turnbull Warning (i.e. brief sighting of stabbing, but fingerprints on knife).
Turnbull Warning: Judge highlights general dangers of ID evidence, and specific issues of this evidence.
(3) Poor Unsupported Evidence: Poor evidence unsupported by other evidence is withdrawn, and the Jury is directed to acquit the Defendant during a submission of no case to answer.
What is the procedure for turnbull guidelines in the MC?
Magistrates Court: Magistrates determine both fact and law, so Turnbull Guidelines are approached during defence case.
(1) Good and Poor Supported Evidence: Good and poor supported evidence are challenged in the closing speech.
(2) Poor Unsupported Evidence: Poor unsupported evidence is challenged in a ‘no case to answer’ submission.
What are adverse inferences?
Adverse Inferences: Courts can draw adverse inferences from a Defendant’s silence in given circumstances, usually on the presumption that their silence indicated that they had no defence that would stand up to scrutiny (CJPOA 1994).
(1) Effect: Adverse inferences cannot prove guilt alone, but can support other evidence, often by suggesting a defence is fabricated, or that the Defendant initially believed it too weak to rely upon (s38).
(2) Grounds: One of several statutory grounds must be met to draw adverse inferences from silence (below).
(3) Exclusion: Adverse inferences cannot be drawn from a point at which the Defendant was denied legal advice or was not properly cautioned (s58 YJCEA).
What is the procedure for drawing an adverse inference for silence when questioned before charge?
Silence When Questioned Before Charge: Adverse inferences can be drawn if a suspect is silent when questioned under caution prior to charge, and later relies on a fact they could reasonably have been expected to mention (s34).
(1) Prior to Charge: Questioning must have been prior to charge for the purpose of investigating the alleged offence, typically a police interview but also questioning following arrest (if cautioned).
First Interview: Silences at first interview can give rise to adverse inferences even if relevant facts were mentioned in subsequent interviews (R v Betts and Hall).
Written Statement: If a fact relied on at trial was provided in a written statement to the police prior to questioning, an adverse inference cannot be drawn from any silence in the interview (R v Knight).
>If the solicitor retains the statement, it will only prevent an adverse inference of recent fabrication, but the court may still infer that the Defendant was not confident in the facts relied upon at trial.
(2) Cautioned: Questioning must have been under caution, and legal advice must not have been denied.
(3) Expected to Mention: A defendant is expected to mention a fact if it was known to them at the time (R v Ardent).
>This means an adverse inference can be drawn even if the Defendant answered all questions put to them, if it would have been reasonable for them to have mentioned something further that they did not.
(4) Fact Relied Upon: Adverse inferences can only be drawn under this ground if the Defendant raises a fact at trial they should have mentioned - it cannot be relied upon in gross.
>Fact is anything put forward as part of the defence case, even if Defendant is personally silent (R v Webber).
(5) Admissibility: Judge can only direct Jury to draw an inference if it is believed that the likely reason for the silence was that the Defendant had no answer, or no answer that would stand up to scrutiny (Condron v UK).
- Advised Silence: Inferences should not be drawn if the Defendant genuinely and reasonably relied on legal advice to remain silent (R v Beckles). It may be such where:
- Limited Disclosure: Police disclosure of evidence was not sufficient to allow the solicitor to properly advise the suspect (R v Roble).
- Nature of Case: Case was complex, or related to facts a long time ago, so immediate silence was sensibly advised (R v Howell).
- Personal Circumstances: Suspect’s personal circumstances made silence advisable, such as unfitness to interview, mental disorder, excessive tiredness or shock, intoxication (R v Howell).
- Privileged Advice: Stating reliance on legal advice does not waive legal advice privilege. However, in practice the Defendant will usually need to give details of the advice - once they do, privilege is waived, and both the Defendant and solicitor can be cross-examined on it (R v Bowden).
What is the procedure for drawing adverse inferences for silence at trial?
Burden of proof/ inference drawn / when can it not be drawn
Silence at Trial: Adverse inferences can be drawn from a Defendant’s failure to raise a defence to a ‘case to answer’ - this is a workaround where an adverse inference cannot be drawn under s34 (s35).
(1) Burden of Proof: The burden of proof remains on the prosecution, silence does not mean guilt (R v Cowan; R v Gayle; R v Ricciardi).
(2) Vulnerability: Adverse inferences cannot be drawn if the Defendant’s physical or mental state makes them unable to participate in the trial.
>This means they are likely to suffer harm, i.e. schizophrenic episode, ADHD panic, or epileptic fit (R v Friend).
>A low mental age is not sufficient in itself (R v Friend).
(3) Inference: The court can draw the inference that the Defendant has no explanation, or no explanation that would stand up to scrutiny, in respect of the prosecution case.
What is the procedure for adverse inferences draw from failure to account for object, substance or mark or presence at a scene of crime?
Failure to Account for (Object, Substance or Mark) or (Presence): Adverse inferences can be drawn from failure to account for an object, substance or mark, or presence at scene, when asked, even if explained later (ss36-37).
(1) Object/Substance/Mark: An object, substance or mark was found on the suspect’s person, clothing, object, or place of arrest (i.e. blood, weapon etc).
(2) Presence: The suspect was at or about the crime scene at or around the time of the offence, and was arrested at or around the crime scene and at or around time of offence (not later or elsewhere).
(3) Attributable to Offence: The arresting/investigating officer must reasonably believe the object or presence to be attributable to the suspect’s alleged involvement in the offence.
(4) Requested Explanation: The officer must inform the suspect of this belief, and request an explanation on arrest to be reconfirmed at interview, or at the suspect is asked at interview for the first time.
(5) Special Caution: When put to the suspect at interview, the suspect must be given a special caution which reiterates the suspicion and the right to draw an adverse inference from a failure to properly account for it.
(6) Effect at Trial: Adverse inferences can be drawn from this silence even if the Defendant does not give evidence at trial. This is the main difference from s34 (alongside the special caution).
What is the procedure for drawing an adverse inference from a fault in defence statement?
Fault in Defence Statement: Adverse inferences may be drawn in the Crown Court from faults in a defence statement (s11 CPIA).
(1) Faults: No or late service, incomplete details, inconsistent evidence, or a failure to update.
(2) Inference: Court (or party with leave of court) is entitled to make comments or draw inferences as appropriate.
>(A) fails to submit a defence statement. (A) raises alibi and mistaken identity at trial. The court draws an adverse inference from failure to set this out.
What is the definition for hearsay evidence?
Hearsay Evidence: Hearsay evidence comprises statements, not made in oral evidence, relied upon as evidence of the truth of the matter in it (s114 CJA 2003). It is inadmissible, unless an exception applies.
(1) Statements: Statements are representations of fact or opinion, made by any person by any means.
>Includes photographs, sketches, written statements, confessions, business documents etc.
>Does not include CCTV (not made by a person).
(2) Not Made in Oral Evidence: This means the statement was made out-of-court.
(3) Relied Upon As Evidence of Truth: Statement must be produced in order to cause another person to believe in its truth, or act on the basis of its truth (s115).
>Diaries are not hearsay - their purpose is not to cause someone to believe in their truth (R v Knight).
>Questions are not hearsay.
What is first hand and multiple hearsay?
First-Hand and Multiple Hearsay: Hearsay can be first-hand or multiple (second-hand).
(1) First-Hand: Information relayed directly from statement-maker to evidence.
>(A) gives witness statement describing suspect but falls ill. Their written statement at trial is first-hand hearsay.
>(A) tells (B) about suspect but falls ill. (B) repeats the statement in oral testimony, this is first-hand hearsay.
(2) Multiple: Information relayed through multiple people before being recorded. It is hearsay about hearsay.
>(A) tells (B) who tells (C) about suspect, who speaks at trial. This is multiple hearsay.
>(A) tells (B) about suspect, and both fall ill. (B)’s written statement is multiple hearsay.
What are the four grounds on which hearsay is admissible? When is further notice required? And what are the service rules of that notice?
Admissibility: Hearsay is only admissible where a statutory provision, a reserved common law rule, unanimous agreement, or the interests of justice allow (CJA 2003). Further notice may be required:
(1) Part 20 Notice: Specific notice of admission of hearsay must be given to court if the hearsay is:
IoJ: Admitted in the interests of justice.
Unavailable: Admitted as witness is unavailable.
Multiple: Evidence is multiple (only IoJ, agreement, business, inconsistent and consistent statements).
Contemplation: Business document made in contemplation of criminal proceedings.
(2) Part 20 Service: Part 20 notice must be served:
CC (P): Within 10 business days of not-guilty plea.
MC (P): Within 20 business days of not-guilty plea.
(D): As soon as reasonably practicable.
(3) Disputing Part 20: Parties can apply to exclude admission within 10 business days of service.
What is the general discretion to exclude hearsay evidence?
General Discretion to Exclude: Courts have discretion to exclude hearsay if to admit it would result in undue waste of time which outweighs any benefit in admitting it (s126 CJA 2003). Also has power to exclude under s78 PACE.
Can hearsay evidence be admitted by unanimous agreement?
Unanimous Agreement: Parties can unanimously consent to admit hearsay, but this is rare (s114).
