Evidence

Question 1

what are facts in issue?

Answer 1

(1) The facts which prosecution bare the burden of proving or disproving

(2) The facts which, in exceptional cases, the accused bears the burden of proving

Question 2

what is the legislation used for a formal admission?

Answer 2

Section 10 CJA 1967

Question 3

what are formal admissions?

Answer 3

Where a party introduces in evidence a fact which is admitted by another party, or jointly where the parties admit the fact together, then unless the court directs otherwise, a written record of this must be made of that admission

Formal admissions may be put before the jury so long as they are relevant and do not contain any material which should be excluded.

Formal admissions can be made by counsel or solicitor, written or oral

Jury should be made clear on the matter

Question 4

relevance of evidence

Answer 4

where it bears no purpose of proving or disproving an element in the offence

where no reasonable jury could place any weight on it even if they are directed on the defects of it.

Question 5

evidence of good character for a prosecution witness

Answer 5

it is generally inadmissible as it is seen as oath helping

it may be used only where bad character its submitted about a crown witness where the good character is used to balance it out

Question 6

evidence of good character of a crown witness - propositions from the case of Mader

Answer 6

(1) Generally, evidence is not admissible simply to show that a prosecution witness has a good character in the sense that he or she is a generally truthful person who should be believed.
(2) However, evidence is admissible if it is relevant to an issue in the trial.
(3) The category of issues to which evidence of disposition may be relevant is not closed.
(4) If the evidence is admitted because ‘issue-relevant’, the judge should ensure that the effect of admitting it is not to water down the burden of proof on the prosecution and any good character direction given for the accused.

Question 7

circumstantial evidence

Answer 7

the rope analogy for circumstantial evidence was described in pollock:

One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. Thus it may be in circumstantial evidence — there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion; but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of.

Question 8

what is real evidence?

Answer 8

real objects shown in court

they have little if no weight if they are not accompanied with expert or witness testimony.

Question 9

what are views?

Answer 9

where the jury is taken to a site or an object which is outside of the court

the following persons should be present:
(1) Jury
(2) Counsel
(3) Judge
(4) Parties
(5) Shorthand writer
Must be taken place with the accused in case they point out anything which has not been notified by their representatives.
Judge is to produce ground rules. What the jury must see, who must speak, and when if and how the jury may ask questions.

Question 10

for ‘viewing’ evidence, when must this not take place?

Answer 10

after the summing up

Question 11

in a jury trial, who is the tribunal of fact?

Answer 11

the jury

Question 12

in a jury trial, who is the tribunal of law?

Answer 12

the judge

Question 13

In jury trials, what questions of law are for the judge to determine?

Answer 13

(1) where the court has determined that an accused is unfit to plead, whether the accused did the act or made the omission charged as the offence;
(2) challenges to jurors;
(3) the discharge of a juror or the whole jury;
(4) the competence of persons to give sworn or unsworn evidence;
(5) the admissibility of evidence;
(6) the withdrawal of an issue from the jury;
(7) submissions of no case to answer;
(8) the numerous issues on which the jury should be directed in the summing-up, such as the substantive law governing the charge, the burden and standard of proof, the use which the jury is entitled to make of the evidence adduced, the operation of any presumptions, the nature of, and any requirement for, corroboration, etc. — see further D18.21 et seq. and F5; and
(9) matters ancillary to the trial itself, such as questions of bail, costs and leave to appeal.

Question 14

in jury trials, which questions of fact are to be decided by a judge?

Answer 14

(1) Whether the defendant is fit to plead;
(2) Existence or non-existence of preliminary facts;
(3) Sufficiency of evidence; and
(4) Evaluation of evidence adduced by the parties

Question 15

in jury trials, what questions of fact are for the jury to decide?

Answer 15

the credibility of the witnesses called and the weight of the evidence adduced; and

whether, applying the burden and standard of proof applicable to the case, they are satisfied as to the existence or non-existence of the facts in issue.

Question 16

how are questions of tribunal and fact decided in a summary trial?

Answer 16

Questions of fact and law are decided by the lay magistrate. Evidential issues should be decided by the magistrate upon advice from the legal adviser. District judges will rarely need this as they will have legal experience in prior occupation.

Question 17

what is the legal burden of proof?

Answer 17

(1) Also known as the persuasive burden or the risk of non-persuasion
(2) If the legal burden is on the prosecution, then the standard is beyond reasonable doubt
(3) If the legal burden is on the defendant, then the standard is on the balance of probabilities
(4) The accused will never bear the heavier burden of proof

Question 18

what is the evidential burden of proof?

Answer 18

(1) The duty of passing the judge and actually presenting evidence to the element of the offence.
(2) Very often the legal burden and evidential burden go hand-in-hand. Although they can be split. An example is that the evidential burden for self-defence lies with the accused, where the legal burden of proof lies with the prosecution.
(3) ^ where there is a lack of sufficient evidence for the defence, the issue is removed from the jury which is not seen to breach Art 6
(4) Normally the defence will be heard once the prosecution evidence has been heard, though if the judge sees that more evidence is required, they will tell the defence advocate and allow them more time to provide sufficient evidence for the defence.

Question 19

discharge of burdens of proof by the prosecution

Answer 19

The legal and evidential burden of proof may be discharged if ‘such evidence as, if believed and if left not contradicted and unexplained, could be accepted by the jury as proof’.

If prosecution bear both legal and evidential burden and discharge it, it does not mean that they have succeeded on that particular issue – it goes before a jury to determine.

If the prosecution bear both legal and evidential burden and fail to discharge the evidential burden, then the issue will be withdrawn.

Failure to discharge can be done on a judge by their own motion

Question 20

discharge of burdens of proof by defence

Answer 20

Defence may have legal and evidential burden on defence such as insanity, and discharge their burden by putting an element of doubt in the jury for prosecution.

Other situations where the defence just have the evidential burden to do this such as self-defence, it is for the prosecution to disprove the defence.

One way to put it is when the defence have both burdens, they have to prove their defence on the balance of probabilities. If the defence just have the evidential burden, then it is for the prosecution to disprove the defence.

Question 21

what does it mean when a prosecutor is to prove the negative?

Answer 21

This can be illustrated in sexual offences, such as rape, where the prosecution must prove that the complainant did not consent to sexual intercourse.

Question 22

in terms of the elements of the offence, what must the prosecution prove

Answer 22

beyond reasonable doubt the elements in dispute.

Question 23

the general rule of burden of proof was that the prosecution bears the evidential and legal burden, what are the exceptions?

Answer 23

There are 3 categories to the exception from the general rule:
(1) Insanity (the accused has to prove on the balance of probabilities that they were insane when committing the act, thus allowing a full defence to their criminal actions);
(2) Express statutory exceptions (this contains statutory defences like diminished responsibility and carrying a bladed article in a public area, again, having a lower standard of proof: balance of probabilities); and
(3) Implied statutory exceptions

Question 24

discharging the evidential burden of proof

Answer 24

Although it is said that in cases where the evidential burden lies with the defence, the burden will be discharged whenever there is sufficient evidence in relation to leave that defence with the jury; the evidence may be adduced by the defence (or elicited through the cross-examination), or it may be given by the prosecution witness (or a co-accused) giving evidence in chief or it may be given in any other way

Question 25

direction for prosecution legal burden of proof

Answer 25

• For mental capacity, the prosecution only have to prove the mental capacity on the balance of probabilities, this is for when someone is ill-treated or neglected whilst under a duty of care
• Judge must direct the jury on the standard of proof which the prosecution owes. They must also provide a sufficient explanation of that standard of proof.
• For cases which turn on whether the accused or complainant is telling the truth, my word against theirs, it’s important that the judge does not direct the jury on to choose who to believe. Instead the jury must be told that if they wish to convict, they must decide whether they are sure that the complainant is telling the truth.

Question 26

direction for defence legal burden of proof

Answer 26

• The jury must be directed that the standard of proof is lower than the prosecution
• Classic definition of balance of probabilities: ‘if the evidence is such that a tribunal can say: ”We think that it is more likely (probable) than not” then the burden is discharged, if the probabilities are equal, it is not”

Question 27

burden of proof for self defence

Answer 27

defence have the evidential burden

prosecution have the legal burden to disprove the defence

Question 28

burden of proof for duress

Answer 28

defence have the evidential burden by bringing duress as a live issue in the trial

prosecution have the legal burden to disprove the defence

Question 29

when is opinion evidence allowed?

Answer 29

opinion evidence is generally not allowed except for experts and non-experts (where it is an opinion of the facts perceived)

Question 30

admissibility of opinion evidence

Answer 30

• if the admissibility of expert evidence is being called into question, it is for the party wanting to adduce the evidence to prove its admissibility.
• Admissibility argument will normally fail when the expert is not an expert and expresses no expert opinion

Question 31

non-expert opinion evidence

Answer 31

• Witness can express an opinion on the identification of the witness, i.e express their description and an opinion based on this description
• Can be used to express an opinion on items which are familiar to them such as handwriting.
• Another example is a person’s age
• Drunk
• Emotions
• Value of items but not expressly valuable items like antiques

Question 32

competence of expert witness

Answer 32

• Some experts have required qualifications, such as 2 or more medical practitioners are required for a defence on insanity, at least one of whom is approved by secretary of state as having a special knowledge for diagnosis of medical conditions required for insanity defence
• Those instructing experts must be satisfied they have the required quals
• Unless the company only hire specifically qualified personal, the mere factor that the expert works for a specialist organisation wont suffice for the requirements of experts
• Expert’s competence may stem from training, experience or skill or a mix of all
• Police officer is eligible to give opinion about gang activity
• Solicitor who was skilled in recognising handwriting was able to come and give evidence in court about the handwriting of an advert
• Some situations but rare there will be a voir dire to determine the use of expert witnesses

Question 33

what do the defence have to do if they wish to challenge the competence of the expert evidence

Answer 33

Defence will have to make application to court about the competence of expert if they wish to challenge it

Question 34

opinion evidence involving human trafficking victims

Answer 34

• A conclusive grounds decision by the Home Office Single Competent Authority as to whether D is a victim of human trafficking of modern slavery may be admissible on appeal, applying the test for fresh evidence in the Criminal Appeal Act 1968, s. 23.
• However, there may be discrete issues that require explanation by way of expert evidence, for example as to D’s psychiatric or psychological state or the detailed mores of people-trafficking gangs operating in countries outside the court’s own knowledge and experience. As to the former, the expert may express a view as to the detail and content of D’s account as a necessary step to reaching a diagnosis; but as to the latter, no commentary by the expert is required as to the consistency of D’s account.

Question 35

matters calling for expert evidence

Answer 35

• Experts are unnecessary where tribunal of fact would be able to draw their own conclusions without the use of an expert
• A witnesses ability to remember the events will normally be within the capabilities of jurors to determine
• Expert evidence required to interpret cell citing evidence
• Jurors can be assisted about matter within their capabilities but have some assistance in understanding. Basically allowing information to be better digested, so where there is an influx of information, experts can eb used to allow jurors to see the salient parts of the evidence.

Question 36

opinions on ultimate issues

Answer 36

• It means issues which are to be determined by the tribunal of fact
• Today this is allowed, so long as it is conveyed in a way which can be used by the tribunal of fact to agree to and use when determining their reasons
• Jury can be directed that they don’t always have to follow what the expert has concluded.

Question 37

duty of experts

Answer 37

Duty to the court and that they must further the overriding objective
They provide an unbiased opinion which is neutral

Experts must:
o identify their area of expertise
o Identify when questions go outside their area of expertise
o Identify parties or the court if their opinion departs from the report given

Question 38

function and weight of expert evidence

Answer 38

• The function is to furnish the judge or jury to help them come to their conclusions by providing the required scientific knowledge
• Directions to accept the expert evidence are done if there is no contradictions
• If experts make an opinion on an ultimate issue then jury must be directed that they are not bound by that decision
• Such appropriate direction is: ‘ where, as here, there is no dispute about findings made by an expert you would no doubt wish to give effect to them, although you are not bound to do so if you see good reasons to reject them’
• Jury must not be directed to disregard scientific evidence when the only such evidence adduced on a particular question dictates one answer only
• Verdict may be seen unsafe if jury return a verdict which goes against an ultimate issue set out by an expert.
• This is specifically an issue when it comes to diminished responsibility

Question 39

general principles for privileged evidence

Answer 39

(a)A person entitled to claim privilege may refuse to answer the question put or disclose the document sought. The judge should not balance the claim to privilege against the importance of the evidence in relation to the trial.

(b)If a person entitled to claim privilege fails to do so or waives the privilege, no other person may object. The privilege is that of the witness, and neither party can take advantage from it. Thus, if a judge improperly rejects a claim to privilege made by a witness who is not a party to the proceedings, no appeal will lie, for there has been no infringement of the rights of the parties.

(c)A party seeking to prove a particular matter in relation to which his or her opponent or a witness claims privilege, is entitled to prove the matter by other evidence.

(d)No adverse inferences may be drawn against a party or witness claiming privilege.

(e)A claim to privilege falls to be determined in accordance with domestic law and therefore cannot succeed simply on the basis that it would succeed in some other jurisdiction.

Question 40

scope of privilege

Answer 40

• Witness is not bound to answer any question which could incriminate them
• Anything which could expose the witness to criminal charge, forfeiture or penalty
• Courts can impose an order which will allow the disclosure but also protect the witness from the above.
• Does not extend to the incrimination of a person linked to them, such as a spouse, it must link to them specifically

Question 41

Legal Professional Privilege: Scope

Answer 41

(a)communications between client and legal adviser made for the dominant purpose of enabling the client to obtain or the adviser to give legal advice about any matter, whether or not litigation was contemplated at the time, the privilege for such communications being known as legal advice privilege; and

(b)communications between client or legal adviser and third parties, the sole or dominant purpose of which was to enable the legal adviser to advise or act in relation to litigation that was pending or in the contemplation of the client, the privilege for such communications being known as litigation privilege.

The privilege also covers items enclosed with or referred to in such communications and brought into existence (i) in connection with the giving of legal advice or (ii) in connection with or in contemplation of legal proceedings and for the purposes of such proceedings

Question 42

challenging legal professional privilege

Answer 42

There can be a last resort where the court will inspect the documents
the evidential burden is left to the persons who is claiming privilege

Question 43

Legal Advice Privilege

Answer 43

• Obtaining or giving legal advice needs to be the dominant purpose in order for it to be privileged
• Documents from third parties used to give advice do not come under the privilege principle

Question 44

Legal Advice Privilege: Corporate Clients

Answer 44

o Privilege only applies to those officers or those in the company who are directed as the client in the proceedings
o It does not apply to documents made by ex-employees
o If solicitors speak to those who are not the designated officers to be the client, then it will not be privileged

Question 45

Litigation Privilege: Scope

Answer 45

(a)The privilege is engaged when litigation is in reasonable contemplation.

(b)Once engaged, it covers communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with the conduct of the litigation, provided it is for the sole or dominant purpose of the conduct of the litigation.

(c)Conducting the litigation includes deciding whether to litigate and also whether to settle the dispute giving rise to the litigation.

(d)Documents in which such information or advice cannot be disentangled or which would otherwise reveal such information or advice are covered by the privilege.

(e)There is no separate head of privilege covering internal communications falling outside the ambit of the privilege as described above.

Question 46

litigation privilege, types of documents covered

Answer 46

o Instructions documents
o Copy or translation of unprivileged documents does not count, only when the original copy was not in the control of the party claiming privilege before they copied it
o Solicitor compiles a load of documents from third parties which will betray the trend of the advice to the client

Question 47

Privilege: communication in furtherance of crime and fraud

Answer 47

Communication between client and legal advisor is not privileged when it incited the committal of criminal behaviour or fraud

Question 48

waivering of privilege - answering no comment in police interview

Answer 48

• if D gives the reason for giving no comment was because of advice from solicitor, this does not amount to a waivering of privilege.
• when the basis of that advice is stated, this amounts to a wavering of privilege.
• if the accused asks the court to not allow an inference to be drawn on the ‘no comment’, thats when privilege is waivered.

Question 49

type of questions used in an XIC

Answer 49

non-leading
lead on the facts that are not in dispute

Question 50

when can leading questions be used in XIC?

Answer 50

o to identify a person or object in court
o for introductory matters
o when a witness is a hostile witness

Question 51

consequences of asking leading questions in XIC

Answer 51

less weight can be applied to the evidence elicited.

Question 52

when can a witness be allowed to refresh their memory in the stand?

Answer 52

witness can refer to a document in order to refresh their memory when:
- document is a recollection of the version of events which happened at the time; and
- memory of when the document was made is likely to be significantly better at the time it was made then when they are giving evidence in court

Question 53

memory refreshing - witness being able to look at statement in the stands

Answer 53

• this is under s 139 CJA 2003
• the ability to refresh should be made by an application to the judge where it is in the interests of justice to do so.
• refreshing memory will normally happen in XIC and can happen at any time during them giving evidence
• verification of a document. Document must have been made by the witness.

Question 54

memory refreshing outside of court

Answer 54

• Witnesses for prosecution are entitled to copies of their statements
• Witnesses for defence normally get their statements before they enter the witness box too
• Becomes a test of memory rather than truthfulness if witnesses cannot see their statements before they enter the witness box.
• It is not allowed to compare with one another

Question 55

can witnesses talk to one another during a trial?

Answer 55

o Discussions between witnesses should not take place before they are about to enter into the witness box
o If there has been discussions it can be seen as fabrication

Question 56

who should not be allowed to memory refresh when in the stand?

Answer 56

the defendant. showing them their proof of evidence means ti has to be submitted before the court which can have negative ethical consequences

Question 57

can witnesses withdraw from witness box to memory refresh?

Answer 57

Witnesses can withdraw from the witness box to read their statements this can be the case for dyslexic people or those in need of translators etc

Question 58

cross examining on member refreshing document.

Answer 58

where XX counsel refers to information which is on the memory refreshing document but not been said in court during the XIC, then the memory refreshing document must be entered into the court fully.

Question 59

previous complaints - when are they allowed to be admissible

Answer 59

• Witness testifies that the statement made is true;
• Witness claims that an offence was committed against them;
• The offence sis one which relates to proceedings; and
• The complaint would constitute an offence

this is an exception to the rule against hearsay

Question 60

self-serving statements / Previous consistent statements

Answer 60

o Witnesses may not be asked about previous oral or written statements made by witnesses and consistent with his or her evidence.
o Applies to XIC, XX and RX
o Where the accused has made an instant reaction to being caught or subsequently after the action, then this can be made admissible
o Admissible self-serving statements can be made admissible but they cannot be the basis of a case, such as, a no case to answer submission cannot be brought based solely on the accused reaction

Question 61

impeaching credit of your own witness

Answer 61

A party is not allowed to impeach the credit of their own witness, such as bad character etc.
even where witness is hostile

Question 62

hostile witness

Answer 62

• The witness is hostile when they display behaviour in the witness box or if they provide inconsistent statements to before
• Party can call another witness in order to challenge against the evidence of what the previous one has said
• This is to rectify what the witness has failed to establish
• Cross examination of a witness may be allowed by a judge where the witness is starting to present inconsistencies in the case that they are supporting the opposition
• Or, if they have evidence to give but refusing to do so

Question 63

who must determine whether a witness is to be treated as a hostile witness?

Answer 63

• Judge must determine to allow counsel to treat witness as hostile
• Discretionary power and must be done not in the presence of jury
• Criminal Procedure Act 1865, section 3:

Question 64

what should be done before a witness is treated as a hostile witness

Answer 64

Before treating a witness as hostile, counsel should try and refresh memory of the witness

Question 65

statements in rebuttal of recent allegations of fabrication

Answer 65

A statement by a witness admitted as evidence to rebut a suggestion that his or her oral evidence has been fabricated will be admissible for the truth of its contents and to support the witnesses credibility.

If the cross examination has put forth the witness being inconsistent in statements then the inconsistent statement is allowed to be admitted for re-examination

Only allowed where it is put forth that a witness has fabricated to out forth different evidence at a later stage

Question 66

Res Gestae

Answer 66

This is where a statement from a witness in the same time and place of the events where they are allowed to be used as evidence in order to corroborate and give consistency. Where hearsay is allowed.

Question 67

previous inconsistent statement

Answer 67

If the witness in XIC or XX admits to making a previous inconsistent statement then that statement is admissible
This is under section 119 Criminal Justice Act 2003
If it implicates a co-accused it cannot be applied against them
Can be allowed under section 114(d) – (interest of justice to allow hearsay)
If it is merely the fact that the witness names a statement he or she cannot remember is wont suffice as being inconsistent
May be treated as a hostile witness of they are refusing to give details or refusing to admit belief

Question 68

XX done by the accused

Answer 68

• Accused can cross-examine prosecution witnesses themselves if they so wish.
• They cannot XX witnesses who are vulnerable nor complainants of sex offences

Question 69

Use of XX

Answer 69

• Impeaching credibility of the witness
• Show inconsistencies of evidence
• Use evidence to support the accused’s case
• Weaken the accuracy of the evidence
• A judge may intervene with XX to ensure that it is conducted fairly.
• Also a judge may intervene to get more information which is needed and has not been touched on.

Question 70

If you do not XX a witness and challenge and put your case then…

Answer 70

…you cannot refer to it in Closing speech

Question 71

what can you do in XX?

Answer 71

Court can impose restrictions on putting cases to vulnerable witnesses such as children.
Nothing should be a comment on fact – this should be left for speeches
Should not be argumentative
Putting questions of fact
Same restrictions apply to questions asked by a judge
Judge can refuse cross-examination question put by advocate to vulnerable witnesses where the judge feels they are unnecessary, improper or oppressive.
XX is not restricted to info given in XIC
Hearsay rules etc apply to XX
XX cannot reveal an inadmissible confession
Judge can place time limits on XX
Advocates have to distinguish between those matters of issue which are more important than others, in order to not have lengthy XX
Judicial control will not produce an unfair trial unless it was grossly disproportionate
You can suggest risk on contamination of evidence
XX on matters which call into question the credit, such as memory, circumstances, etc.
Delay in complaint with sexual offences can be used in XX
Judge can direct about this issue – such as complainant feeling shame etc.
Mental illness suggesting less credible evidence may be allowed in XX
Any disability affecting the credibility of evidence can be allowed
Previous convictions and. Bad character allowed
Bad character is subject to part 11 CJA 2003

Question 72

Judges powers in a XX

Answer 72

• Court can impose restrictions on putting cases to vulnerable witnesses such as children.
• Same restrictions apply to questions asked by a judge
• Judge can refuse cross-examination question put by advocate to vulnerable witnesses where the judge feels they are unnecessary, improper or oppressive.
• Judge can place time limits on XX
• Judicial control will not produce an unfair trial unless it was grossly disproportionate
• Judge can direct about this issue – such as complainant feeling shame etc.

Question 73

rule of finality on collateral matters

Answer 73

The test whether a matter is collateral or not is this: if the answer of a witness is a matter which you would be allowed on your own part to prove in evidence — if it have such a connection with the issues that you would be allowed to give it in evidence — then it is a matter on which you may contradict him.’

Question 74

bias and partiality

Answer 74

• Witnesses bias towards the accused has always been allowed to be admissible in the sense of cross examination.
• Pollock CB said: ‘A witness may be asked how he stands affected towards one of the parties; and if his relation towards them is such as to prejudice his mind, and fill him with sentiments of revenge and other feelings of a similar kind, and if he denies the fact, evidence may be given to show the state of his mind and feelings.’
• Example of where two daughters were cross examined in the way to suggest that their mother had schooled them in what to say and that their confessions were fabricated by the mother. It was found that the judge had wrongly refused the defence to call the mother to be a witness in to question her on this bias.
• Where bias occurs during the actual trial then the judge can refuse witnesses. E.G where someone in pub gallery was taking notes of the evidence and passing it to the husband and telling him what was being said breaching the procedure.

Question 75

re-examination (RX)

Answer 75

• Matters should be confined to matter raised in XX. With leave of the court you can go outside this
• If witness gives evidence of something which is said in a previous event, the rest of what was said cannot be asked in XIC unless it is substantially connected to what was said.

Question 76

XIC =

Answer 76

Examination in Chief

Question 77

XX =

Answer 77

Cross-examination

Question 78

statutory measures for anonymity orders

Answer 78

• screening the witness from the accused
• giving evidence by live link, accompanied by a supporter (for other uses of live link;
• giving evidence in private, available where sex offences or modern slavery, servitude, forced labour or human trafficking are charged or where there is a concern that the witness may be intimidated;
• ordering the removal of wigs and gowns while the witness gives evidence;
• video recording of evidence-in-chief;
• video recording of cross-examination and re-examination where the evidence-in-chief of the witness has already been video-recorded;
• examination through an intermediary for a young or incapacitated witness;
• provision of aids to communication for a young or incapacitated witness; and
• a witness anonymity order, which may be preceded by an investigation anonymity order applying to the police investigation and pre-trial procedures such as disclosure.

Question 79

other protective measures

Answer 79

Protection of fearful and distressed witnesses by not publicising. This is to allow quality of witness evidence

Complainant anonymity for sex offences

Prohibiting XX when:
- Child complainants of sex abuse violence, torture false imprisonment, kidnapping
- Adult complainants in sex offences

Courts should have the adaptability to help the specific issues of witnesses

Question 80

eligibility for anonymity orders

Answer 80

• all witnesses under the age of 18 at the time of the hearing or video recording;
• vulnerable witnesses affected by a mental or physical impairment;
• witnesses in fear or distress about testifying;
• adult complainants of sexual offences, or of offences under the MSA 2015, ss. 1 (slavery, servitude and forced or compulsory labour) and 2 (human trafficking), or of any other offence where it is alleged that the behaviour of the accused amounted to domestic abuse within the meaning of the Domestic Abuse Act 2021, s. 1; and
• any witness in a case involving a ‘relevant offence’, currently defined to include homicide offences and other offences involving a firearm or knife.

Question 81

eligibility of defendant for live link

Answer 81

court must consider all circumstances in the case and must be in the interests of justice

(a)the person’s availability;
(b)any need for the person to attend in person;
(c)the person’s views;
(d)the suitability of the proposed live link facilities;
(e)whether that person would be able to take part in the proceedings effectively in accordance with the direction;
(f)for a witness (i) the importance of that witness’s evidence to the proceedings, and (ii) whether a direction might tend to inhibit any party from effectively testing that witness’s evidence; and
(g)the arrangements that would or could be put in place for members of the public to see or hear the proceedings conducted in accordance with the live link direction.

Question 82

defendant being able to have intermediary

Answer 82

It is relevant when considering fitness to plead
Criteria for intermediary, the court MUST do this when:
- Defendants. Participation will diminish due to being under 18 or due to mental disorder (under MHA 1983); and
- It is necessary to do so

Court can do this under their own initiative
If material circumstances causes a change to need an intermediary then this can be a need for the intermediary to be granted
Advocates need to be vigilant to defendants needing an intermediary.

Question 83

intermediaries

Answer 83

• Someone accepted and selected by the court to help defendant with communication needs
• Or appointed to facilitate the defendant’s participation in the trial
• Intermediaries are independent of the parties
• Most are on the register for intermediaries.
• Explaining terms to the defendant
• What is said and done by the parties
• Intermediaries are not sworn
• Used for defendants incapable of speech

Question 84

Visual ID: Breaches of Code D

Answer 84

o Does not lead to an exclusion of the evidence but it can taint it
o When thy have caused a significant prejudice against D, it will be excluded
o If not prejudice, ID evidence will not be excluded
o Cases tun on their own facts – Section 78 and Common Law application of exclusion of evidence
o ID evidence will usually be excluded where important safeguards have been flouted

Question 85

Visual ID: General

Answer 85

• Turnbull Guidance
• Mere description of culprit is not a full ID
• Nor is it that the witness states that the culprit was the driver of a vehicle or the companion of a particular person
• If there is no ID evidence, Turnbull does not apply
• Being known by association does not suffice to a named identification
• Code D deals with effective ID

Question 86

Dock Identification

Answer 86

• where witness sees the accused for the first time during the proceedings
• Not always the best to be used: quite prejudicial towards the defendant
• May be used commonly in road traffic offences
• may be used to ID D from a CCTV
• Judge can warn jury of the weight of Dock ID

Question 87

can Turnbull guidelines apply to things other than visual ID?

Answer 87

Yes. voice recognition and identification

Question 88

Assessing the quality of ID evidence - ADVOKATE

Answer 88

A - Amount of time the witness had sight of D
D - Distance
V - Visibility
O - Obstructions
K - Known or seen before
A - Any reason to remeber
T - Time Lapse
E- Error or material discrepancy

Question 89

ID Evidence: No Case to Answer

Answer 89

At the close of the prosecution’s case, the court must decide whether there is a ‘case to answer’ against the defendant. In doing so, it must apply the principles of R v Galbraith [1981] 2 All ER 1060.

In cases of visual identification, the judge must answer two principal questions:
* What is the quality of the identification evidence?
* Is there other evidence to support the correctness of the identification?

In assessing the quality of the identification evidence, the judge will need to consider lighting, distance, length of time of observation and qualities relating to the witness themselves, such as their eyesight.

Question 90

which PACE code deals with ID procedure?

Answer 90

PACE Code D deals exclusively with the process to be adopted by the police where the witness purports to identify a suspect or expresses an ability to make a visual identification.

Question 91

what does not equate to a positive ID?

Answer 91

It is important not to confuse visual identification evidence with other evidence that is capable of supporting the prosecution’s case. The following are examples of evidence that does not constitute visual identification evidence:
* Description of clothing/vehicle (‘I couldn’t see his face but he was wearing a purple jumper’)
* The suspect has a connection to a particular place or others at the scene (eg ‘I thought it was Maria because I know she is always at the café on a Saturday morning’)
* A description of the suspect (‘He was 5’7’ with dark hair and blue eyes’)

Question 92

Identification Procedures in the Police station

Answer 92

If identity is in dispute, an identification procedure will be organised and this often takes the form of VIPER (Video Identification Parade Electronic Recording).
Officers film the suspect asking them to face the camera and be filmed from the right, left and centre. The identification police officer, suspect and legal representative select lookalikes from over 10,000 video clips on the VIPER system. Once that process is complete, a video clip is produced with the suspect placed amongst eight other individuals of similar appearance. The video clip is then shown to the witnesses in the controlled environment of the identification suite.

Question 93

when should Turnbull Directions be given?

Answer 93

A Turnbull direction should be given when the case against the accused depends ‘wholly or substantially’ on the correctness of the visual identification.
A Turnbull direction should be given even in cases of alleged recognition; many times someone has seen a stranger in the street and thought they recognised them, even when on closer inspection they discover they were wrong.
However, each case turns on its own facts, and the court should be alive in every case to the possibility of a direction being required. This should be discussed between Judge and Counsel in the absence of the jury prior to speeches and summing up.
It is important that the court gets this right; a failure to follow the guidelines is likely to result in the conviction being quashed if, in the judgment of the Court of Appeal, the verdict is unsafe.

Question 94

If presence at the scene is admitted but the defendant disputes their role in an incident, then it is likely that a Turnbull direction…

Answer 94

…will not be required.

Question 95

directing the jury in accordance with Turnbull

Answer 95

• The trial judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification.
• The judge should make some reference to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken. Provided such a warning is given, no particular form of words need be used.
• Further, the trial judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made.
• Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.
• Finally, the trial judge should remind the jury of any specific weaknesses which have appeared in the identification evidence.

Question 96

evidence which can be used to support identification evidence—

Answer 96

• Scientific evidence, for example footwear, facial mapping, telephone evidence
• Multiple identifications by different witnesses (as long as the identifications are of sufficient quality so as to be left to the jury to assess)
• The accused’s bad character or previous convictions (if admissible)
• The accused’s silence on interview (if it is proper for an adverse inference to be drawn)
• The accused’s admissions at the scene / in interview / in the witness box
• Lies (when accompanied as appropriate by a Lucas direction)

Question 97

If Turnbull direction is not given properly then…

Answer 97

…it can give grounds for unsafe conviction

Question 98

what amounts to a confession?

Answer 98

A guilty plea.

only a confession which is made by the accused themselves

Confessions can be made other than words:
o Thumbs up
o Nodding head
o Signs/gestures
o Visual demonstration or re-enactments

Question 99

definition of a confession from Section 82 PACE

Answer 99

confession includes any statement wholly or partly adverse to the person who made it, whether made to a person of authority or not whether made in words or otherwise

Question 100

mixed statements amounting to a confession

Answer 100

mixed statements (those which are partly inculpatory and partly exculpatory, such as ‘I had nothing to do with it but I was glad to see the victim die’). These fall within the definition of a confession because they are partly adverse to the maker.

Question 101

what statements dont amount to a confession?

Answer 101

Wholly exculpatory statements (‘It was nothing to do with me’) do not fall within the definition of a confession.

Question 102

challenging the admissibility of a confession

Answer 102

Prosecution does not have to prove the admissibility of the confession unless:
o The defence questions admissibility; or
o The court of its own initiative questions its admissibility

Prosecution have to prove the admissibility beyond reasonable doubt

Question 103

Section 76 PACE

Answer 103

(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.

(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained—
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,

the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.

(3) In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above.

Question 104

confession excluded due to oppression

Answer 104

(8) In this section “oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).

• Saying to someone that they can be released will not amount to oppression.
• Oppression has to be something where authority have exercised their powers in a burdensome, harsh or wrongful manner. Unjust or cruel treatment
• Impropriety of police codes can amount to an oppression, this is a matter of degree. Same applies to interrogation
• The use of interrogation is allowed in consideration for the crime of which D has committed.
• It all turns on its own facts
• A degree of impropriety may support the contention of oppression
• Where there has been a degree of misconduct, this can amount to oppression
• Police officers can be questioned and cross-examined in order to determine the oppressive manner on which they allegedly displayed

Question 105

repetition of confession originally obtained by oppression

Answer 105

Confessions stated in oppressive circumstances which are repeated in interviews properly conducted will also be excluded under the principle. as it is seen to be totally tainted

Question 106

relevance of character and attributes of accused for section 76 PACE application

Answer 106

The character of those who are being interrogated and questioned will also be factors in order to determine whether D was being oppressed in any way

Question 107

Exclusion under unreliability – Section 76(2)(b) PACE

Answer 107

• Whether the circumstances of obtaining the confession could eb deemed to be unreliable. i.e. telling D about evidence that does not exist which points the blame at them
• ‘anything said or done’ will be applied. Where the judge must take a look at all the surrounding circumstances on which this confession was based on.
• Can even be circumstances of the accused themselves, such as if they have a low mental age and confess to protect someone.
• Self-induced incapacity is also considered in excluded confessions

Question 108

does breach of PACE codes amount to inadmissibility of confession automatically?

Answer 108

No.
- Breach of PACE codes alone will not suffice to exclusion, though it may be used alongside other factors to suffice
- Interrogation and breach of PACE alongside the characteristics of the accused can equate to exclusion
- There will be occasions where the conduct of the police or other investigator amounts both to ‘oppression’ within s.76(2)(a) and to ‘anything said or done’ within s.76(2)(b). These provisions are disjunctive and therefore either or both can be used to challenge a confession depending on the circumstances of the particular case.

Question 109

Section 78 PACE

Answer 109

(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all 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.

(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.

Question 110

Is section 78 a discretionary power?

Answer 110

Yes

Question 111

is section 76 a discretionary power?

Answer 111

No.

Question 112

burden and standard of proof for Section 76 PACE

Answer 112

burden on the prosecution, beyond reasonable doubt, that the confession was not obtained through oppression or in consequence of anything said or done

Question 113

burden and standard of proof for section 78 application

Answer 113

Burden is on the defence on the balance of probabilities that the evidence should be excluded as unfair

Question 114

Unless decision was perverse…

Answer 114

…CoA will not interfere with trial judge’s decision

Question 115

breach of PACE codes of conduct for Section 78 PACE application

Answer 115

• Needs to be a causal link between the breaches of the PACE codes and the D’s admission
• A breach of the Code does not automatically make the evidence unfair. it has to be decided that the unfairness (breaches of the codes) has led to the adverse effect on the evidence
• Comes from the fact that breaches may be technical breaches but don’t lead to any unfairness

Question 116

Two key questions to be considered for section 78 PACE application

Answer 116

o Existence of compelling reasons for the restriction of access; and
o Whether, viewing the proceedings as a whole, the trial was unfair

Question 117

Section 78 application: Breach of interview procedure

Answer 117

They are to be strictly complied with. Any non-compliance will lead to exclusion of evidence

Question 118

Bad faith

Answer 118

Where breaches occur and police officers acting in bad faith will most likely result in an exclusion

Question 119

how to determine admissibility of confessions?

Answer 119

Voir Dire

Process of voir dire:
o Defence notify prosecution that a point is to be raised
o Prosecution refrain from mentioning said evidence
o Judge to have a voir dire hearing to determine.

jury is not present in crown court

Question 120

is a voir dire required for a section 78 application

Answer 120

• when section 78 application is made alongside a section 76, a voir dire is required
• when there is a section 78 application on its own, then there can be a voir dire but also can be sorted through a preparatory hearing.

Question 121

hearsay evidence with confessions

Answer 121

• Rules excusing hearsay will also apply to confessions. Thus any confessions unfair by section 76 will not need to be applied to the hearsay exceptions
• To stop hearsay exceptions being applied to confessions which fail under 76

Question 122

What happens to evidence which has been yielded from an inadmissible confession under section 76 PACE?

Answer 122

Section 76 PACE:

…(4) The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence—
(a) of any facts discovered as a result of the confession; or
(b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so.

(5) Evidence that a fact to which this subsection applies was discovered as a result of a statement made by an accused person shall not be admissible unless evidence of how it was discovered is given by him or on his behalf.

(6) Subsection (5) above applies—
(a) to any fact discovered as a result of a confession which is wholly excluded in pursuance of this section; and
(b) to any fact discovered as a result of a confession which is partly so excluded, if the fact is discovered as a result of the excluded part of the confession.

However, in these circumstances it would not be open to the prosecution to suggest that the body was discovered by reason of something said by the defendant (eg ‘Members of the jury, we cannot tell you what the defendant said, but as a result of what the defendant said the police discovered the body of the deceased.’). To do so would be to circumvent the exclusion of the confession itself.

Question 123

evidence yielded by confessions excluded under section 78

Answer 123

• Evidence will not be automatically inadmissible if yielded from an inadmissible confession under section 78
• it can be excluded when the court considers whether the factors which lead to the inadmissible confession should be applied to other pieces of evidence

Question 124

general rule of admissibility

Answer 124

• Evidence obtained unlawfully, not in accordance with correct procedure or unfairly can be deemed as inadmissible.
• Evidence can still be admissible even if it has been obtained through:
  o Theft
  o Unlawful search of persons
  o Unlawful search of premises
  o Use of agents provocatures
  o Eavesdropping
  o Invasion of privacy

Question 125

confessions to show speech, writing or expression

Answer 125

concerns situations where, even though the words of the confession have been excluded, the prosecution wants to use such part of the confession as is necessary to show the accused speaks, writes or expresses himself in a particular way.

case of R v Nottle: “Fuck You Jutin”

Question 126

Evidence obtained through inhumane treatment or torture

Answer 126

o Any confessions obtained through inhumane treatment shall not be admissible – constitutional principle
o Incriminating evidence obtained through the same means shall also not be deemed admissible
o So long as the defence can produce evidence where on prima facie it is torture the prosecution then haver the burden of proving beyond all reasonable doubt that the evidence/confession was not gathered in such a way
o but evidence secured as an indirect result of statements made and obtained by inhuman treatment may be admitted if it is only accessory in securing a conviction and its admission does not compromise defence rights

Question 127

Section 78 applications: generally

Answer 127

• applications against this evidence should be made before it is to be adduced
• this is a discretionary power given to judges
• judges MAY under this power allow the evidence to be deemed inadmissible
• appeal courts will only intervene in the judge’s decision making f it is just wrong purely
• only if the end result changes, will the appeal court overrule the judge’s decision made regarding the admission of the evidence
• if anything, when appealing, there is another hurdle, was only the judge wrong, but also that wrong decision makes the conviction unsafe
• Section 78 can be used for nay forms of evidence
• Can be used for confessions too, used as another bite of the cherry

Question 128

confessions and co-defendants

Answer 128

• Where there are co-defendants, then the confession of the pleading defendant cannot be used against the non-pleading defendant by the prosecution
• The above is allowed by other co-defendants to show conspiracy with others but not themselves

Question 129

test for exclusion

Answer 129

• Circumstances with how the evidence was obtained will be taken into consideration
• the court may have regard to any unlawful, improper or unfair conduct by means of which the evidence was obtained, including, in particular, conduct in breach of the ECHR or the provisions of the 1984 Act (or the Codes of Practice issued under the Act) relating to such matters as search, seizure, arrest, detention, treatment, questioning and identification.
• Code C will be used here to endure evidence has been obtained properly to ensure that the evidence sued against the defendant is fair
• Evidence which has been obtained in an oppressive way will not get an automatic inadmission, though it will make a string argument. The same goes if evidence has been obtained in an oppressive manner

Question 130

how does a court approach a Section 76(2)(b) application

Answer 130

• First, to identify the thing said or done, which requires the trial judge to take into account everything said and done by the police.
• Secondly, to ask whether what was said and done was likely in the circumstances to render unreliable a confession made in consequence. The test is objective taking into account all the circumstances.
• Thirdly, to ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done, which is a question of fact to be approached in a common sense way.

Question 131

Section 76(2)(b): identifying the thing said or done

Answer 131

These can be positive acts, such as a promise, inducement or trick. Examples are:
* a promise to release someone promptly from police custody only if they ‘tell all’; or
* a promise of bail from the police station conditional on a full and frank confession; or
* a threat to arrest a suspect’s partner or other family members if the suspect does not ‘cooperate’.

The thing said or done can also be an omission or failure to act, such as interviewing a young or mentally vulnerable suspect without an appropriate adult.

The thing said or done must not simply be something from the suspect, but from something external to the person. A suspect who makes an admission because they consider this is likely to get them bail (when the suspect has not been induced into believing this) cannot subsequently rely on s.76(2)(b).

Question 132

Section 76(2)(b): whether what was said and done was likely in the circumstances to render unreliable a confession made in consequence

Answer 132

the court does not consider the reliability of the confession which has been made, but a hypothetical question – the court must decide whether there is a likelihood that any confession would be unreliable in the circumstances prevailing at the time

Question 133

Section 76(2)(b): whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done.

Answer 133

• this is a question of fact for the judge and must be approached in a common sense way.
• By way of reminder, Defence Counsel will be acting on the instructions from the defendant or from other evidence. Once it is represented by Defence Counsel to the court that the confession ‘was or may have been obtained’ by anything said or done which was likely in the circumstances to render any confession unreliable (s.76(2)(b)), ‘the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.’

Question 134

for a section 78 application, significant and substantial breach of PACE codes

Answer 134

Whether a breach is ‘significant and substantial’ for these purposes is clearly a question of fact and degree.

Breaches of Code C can be seen to be held as substantial

when taking a breath specimen for drink driving cases, it will not be held and a breach of codes of practice if legal advice is not sought before specimen is taken as this is in the public interest to obtain one as quick as possible
this is the same for children, no need to wait for the appropriate adult

Question 135

what situations can be seen to be substantial breach of PACE codes

Answer 135

• Failure to caution and keep a proper interview record
• Failure to caution, remind the right to legal advice and to make a contemporaneous record of the interview
• Failure to record the original language of the statement made other than the English language and failure to allow them to re-read the record and check the accuracy
• the absence of a caution was bound to be significant in most circumstances. However, an interview by an officer who genuinely does not believe that an offence has been committed does not call for a caution because its purpose is not to investigate any suspected criminal offence
• improper street identification that rendered valueless a subsequent video identification procedure
• failure in a video identification procedure to use images of persons bearing a sufficient resemblance to D
• failure to inform a person not under arrest that the person is not obliged to remain with the officer

Question 136

what matters could be left to a voir dire in the Crown Court?

Answer 136

(a)the competence of a witness;
(b)the admissibility of a confession or some other variety of admissible hearsay, such as a statement made by someone who does not give evidence ‘through fear’;
(c)the admissibility of a recording;
(d)the admissibility of a statement contained in a document produced by a computer; and
(e)the admissibility of a plea of guilty against an accused who subsequently changes plea to not guilty.

Question 137

can a voir dire be used in a magistrates court?

Answer 137

Blackstone’s gives impression that it cannot be done, however, they are used for exclusion of confessions.

Question 138

Section 78 issues in a magistrate’s trial

Answer 138

• The duty of a magistrate, on an application under s. 78, is either to deal with the issue when it arises or to leave the decision until the end of the hearing, the objective being to secure a trial that is fair and just to both parties.
• this will be dealt with as a preliminary issue.
• Where the justices resolve to exclude it, they should then consider, after seeking the views of the parties, whether the substantive hearing should be conducted by a differently constituted bench.
• Other points … may require a decision at a later stage of the case, possibly after further argument. It may be that in some cases the defendant will be entitled to know what the decision of the justices with regard to the admissibility of a confession is at the close of the prosecution case in order to enable him to know what proper course he should take with regard to giving evidence and calling evidence and so on.
• it is with the magistrates discretion to hear the issue under section 78

Question 139

if a confession has been ruled as admissible, is that the end of the challenge?

Answer 139

If the judge concluded that the confession was admissible, the prosecution would be entitled to adduce it. However, this would not deprive a defendant of raising the same issues before a jury. For example, a defendant suggests that their confession was unreliable because of threats during interview.

Question 140

voir dire in the crown court for confessions

Answer 140

During the voir dire the prosecution will call its evidence. The defence likewise are entitled to call evidence on a voir dire. Having heard the evidence, the judge will then resolve the disputed facts before ruling on the admissibility of a confession. A voir dire takes place in open court in the presence of the defendant and (when taking place in the Crown Court) in the absence of the jury.

If a judge fails to resolve disputed facts on a voir dire before ruling on the admissibility of a confession, even where not specifically invited to do so, any resulting conviction is likely to be quashed because it is logically impossible for a judge to be satisfied that the prosecution has proved beyond reasonable doubt that a confession has not been or might not have been obtained by either of the means set out in s.76(2)(a) or (b) if the judge has heard no evidence either way.

Question 141

section 76 and 78 applications int he magistrates court

Answer 141

In a magistrates’ court, the magistrates should consider an application under s.76 as a preliminary issue and should, where the relevant evidence is in dispute, hear evidence to resolve the matter. If they decide to exclude the evidence, they are then (being judges of both fact and law) required to exclude from their minds the excluded confession evidence, a ‘position in which justices are commonly placed and one with which they are well capable of coping both by training and by disposition.’ (Hayter v L [1998] 1 WLR 854, QBD, Poole J.). In a magistrates’ court, where the application is under both s.76 and s.78 and the evidence is disputed, the magistrates should hear evidence on the matter and decide the applications as a preliminary issue. If, however, the application in a magistrates’ court is only under s.78, the magistrates have a discretion to hear all the evidence in the usual way and decide upon its admissibility at a later stage.

Question 142

In the magistrates court, is advance notification required for a challenge of the admissibility of a confession?

Answer 142

yes.
any defence skeleton argument in support at least 10 business days before trial and the prosecution response 5 business days after that.

Question 143

timing if when a challenge of the admissibility of a confession is made in the magistrates court

Answer 143

it will be dealt with as a preliminary issue

Question 144

Voir Dire for confessions in a Magistrates court

Answer 144

where the application is under s.76 or boths.76 & s.78 and the evidence is disputed, the magistrates should hear evidence on the matter and decide the applications as a preliminary issue. If, however, the application in a magistrates’ court is only under s.78, the magistrates have a discretion to hear all the evidence in the usual way and decide upon its admissibility at a later stage.

Question 145

In the Crown Court, is advance notification required for a challenge of the admissibility of a confession?

Answer 145

generally at the PTPH, the judge is likely to order, when the defence is to serve a skeleton argument in support of any s.76/78 arguments, when the prosecution serve a response and when the arguments will be heard.

Question 146

timing if when a challenge of the admissibility of a confession is made in the Crown Court

Answer 146

The application to exclude the confession can be made at a pre-trial hearing listed specifically for this purpose or it can be dealt with just prior to opening the case to the jury (and in the absence of the jury).

Question 147

Voir Dire in the crown Court for Confessions

Answer 147

required where the application is made under s.76 (or both s.76 and s.78) and the evidence founding the application is in dispute.

Question 148

what direction will be given when it is seen that the defendant has lied?

Answer 148

A Lucas Direction

Question 149

which case refers to the directions given for lies?

Answer 149

R v. Lucas

Question 150

situations where Lucas directions are required

Answer 150

1. Where the defence relies on an alibi.
2. Where the judge considers it desirable or necessary to suggest that the jury should look for support or corroboration of one piece of evidence from other evidence in the case, and amongst that other evidence draws attention to lies told, or allegedly told, by the defendant.
3. Where the prosecution seek to show that something said, either in or out of the court, in relation to a separate and distinct issue was a lie, and to rely on that lie as evidence of guilt in relation to the charge which is sought to be proved.
4. Where although the prosecution have not adopted the approach to which we have just referred, the judge reasonably envisages that there is a real danger that the jury may do so.

Question 151

what is said in a Lucas direction?

Answer 151

The jury should in appropriate circumstances be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family.

The direction requires the jury to satisfy itself so that it is sure that:
a) The defendant has told a lie- This can be proved either via an admission from the defendant, or other evidence that contradicts the defendant’s account. For example, a defendant’s assertion that they were in Essex on the day of the incident may be disproved by cell site telephone evidence that proves the defendant was in Scotland.
b) The lie in question was deliberate- The defendant has not simply made a mistake. You might think that if the ‘lie’ was accidental, it would not be a lie at all.
c) The lie relates to a material issue- Material simply means relevant in the context of the case.
d) There is no innocent explanation for the lie- This is the part of the direction that relates to the ‘forbidden reasoning’ that lie = guilt. The jury must be reminded that people lie for many reasons, for example to bolster up a just cause, out of shame or a wish to conceal disgraceful behaviour.
If the jury is sure beyond reasonable doubt that (a)–(d) are satisfied, it may use the defendant’s lies in support of the prosecution’s case.

Question 152

when is a Lucas direction not needed?

Answer 152

when a defendant gives an explanation for their lies - this explanation is required in the summing up to the jury

Question 153

can a jury convict purely on the basis of a lie?

Answer 153

No.

Question 154

the right to silence allows what privilege?

Answer 154

against self-incrimination

Question 155

what must a court do when it comes to a defendant’s silence

Answer 155

must always direct

Question 156

what is an inference?

Answer 156

simply, an inference is a ‘common sense conclusion’.

If a man with a gun in his hand is found standing next to a body with gunshot wounds, an ‘inference’ can be drawn that he has just shot the person on the ground. An adverse inference is just that – a common sense conclusion that is adverse to the interests of a party in proceedings.

Juries are asked to make many inferences in the course of their deliberations.

Question 157

Section 34 CJPOA 1994: elements where an inference may be drawn

Answer 157

• Before charge/on being charged
• Whilst under caution
• Whilst being questioned by a police officer
• About the defendant’s suspected involvement in the offence
• Fails to mention a fact
• That the defendant could reasonably be expected to mention in the circumstances
• Later relies on that fact as part of their defence
• The tribunal of fact can draw any inferences that appear proper

Question 158

when is section 34 CJPOA 1994 used?

Answer 158

inferences being drawn on Defendants silence when he is being questioned

Question 159

Section 34 CJPOA 1994: Before Charge/ on being charged

Answer 159

An inference under s.34 can only arise from anything the defendant has failed to mention prior to being charged, or whilst being charged for the offence.

Question 160

Section 34 CJPOA 1994: whilst under caution

Answer 160

In order for inferences to be drawn under this provision, the defendant must have been questioned under caution.
The caution states ‘You do not have to say anything. But it may harm your defence if you do not mention, when questioned, something you later rely on in court. Anything you do say may be given in evidence.’
It serves to inform the accused of the effect of s.34 CJPOA 1994. If the caution has not been administered when the accused is questioned, no adverse inference may be drawn from the accused’s failure to mention the relevant fact.

Question 161

Section 34 CJPOA 1994: whilst being questioned by a police officer about the defendant’s suspected involvement in the offence

Answer 161

If you read a transcript of a no comment interview, you will see that the interviewing officer will continue asking questions of the suspect long after it has become clear that they will answer ‘no comment’ to everything.
For an inference to be drawn under this section, the prosecution must prove that the defendant failed to answer questions in respect of the offence. If the police officer does not ask the right questions, defence counsel could legitimately say: ‘Well, the defendant wasn’t asked about the cannabis found in the fridge. Therefore you cannot draw an adverse inference from the fact that the defendant has only just mentioned at court that it belonged to someone else.’ There is no requirement to volunteer the fact in question.
Note that if a suspect refuses to leave their cell for interview, no inference can be drawn under s.34 as they have not been ‘questioned’. The jury would be at liberty to draw their own conclusions as to why the defendant chose not to attend an interview when assessing all the circumstances of the case.

Question 162

Section 34 CJPOA 1994: Fails to mention a fact

Answer 162

This is self-explanatory. The defendant must fail to mention a specific fact. Note that it is not enough for the prosecution to simply point to a no comment interview; it must specify exactly what fact it is that the defendant failed to mention.
A fact can be ‘mentioned’ through a prepared statement. In some cases, a defendant will choose to put their explanation in a pre-prepared statement that is read out by their solicitor at the start of the interview. They will then subsequently answer ‘no comment’ to further questions. This method is preferred by many solicitors as it prevents defendants from further incriminating themselves by answering police questions.

Question 163

Section 34 CJPOA 1994: That the defendant could reasonably be expected to mention in the circumstances

Answer 163

The provision applies to those facts ‘which, in the circumstances existing at the time the accused could reasonably have been expected to mention’.
In considering this question, the court should consider any factors relevant to the accused, such as age, experience, mental capacity, health, sobriety, tiredness and personality. Therefore a court may conclude that it was reasonable for an accused to remain silent, for example, where the accused was ill, tired, frightened, drunk or intoxicated, or suspicious of the police. In considering ‘reasonableness’ in this context, the court is to consider the accused’s qualities, knowledge, and any legal advice given.
Naturally, s.34 cannot apply where the fact later relied on by the defendant was not known to the defendant when questioned.
If the defendant testifies, the defendant’s reason for failing to disclose the fact should be explored, as should any explanation given for the non-disclosure in order to assess what inferences should be drawn, if any.

Question 164

Section 34 CJPOA: Later relies on fact as part of the defence

Answer 164

No inference is available unless the defendant later relies on the facts they failed to mention in interview.
The provision targets the defendant that advances a fact in their defence which is suspicious by reason of not being put forward at an earlier opportunity. It does not, therefore, apply to a fact that is undisputed; an admission by the defendant of a fact relied on by the prosecution does not, without anything more, constitute reliance.
The fact may be relied on even where it is not asserted by a defendant in oral testimony. It may be advanced by a witness or put in cross-examination where counsel puts a specific and positive case to prosecution witnesses.
Where a defendant has varied their account between interview and their testimony at trial, the Crown is likely to argue that the defendant’s evidence is not credible. The correct approach in such cases may be a Lucas direction rather than a direction under s.34 CJPOA 1994.
judge needs to set out the facts that D relies on

Question 165

Section 34 CJPOA: Tribunal of fact can draw an inference

Answer 165

If the pre-conditions of s.34(1) are met, the court may draw ‘such inferences as appear proper’ from the accused’s silence.

These include:
a) the most common inference, that the fact relied on has been invented after the interview;
b) the accused had the fact in mind at the time of interview, but was unwilling to expose their account to scrutiny;
c) that the accused was faced with a choice between silence and lying/incriminating themselves further with the truth.

Question 166

can Section 34 be used where D has put forth a bare denial?

Answer 166

No.

Question 167

for inferences to be drawn and there are multiple defendants, how must this be dealt with in summing up?

Answer 167

defendants will be dealt with individually

Question 168

inferences to be drawn on a prepared statement

Answer 168

• If accused has given a prepared statement then the inference of failure to mention facts cannot be drawn
• Nor is it the case where the statement is inconsistent with a testimony, the inference direction does not bite
• Jury are allowed to be directed on the difference between the prepared statement and the testimony

Question 169

Caution and charge for inferences

Answer 169

• Inferences cannot be drawn on statements made before charge unless they are under caution
• If D refuses to be questioned, the inferences cannot be drawn as no questions are put to D.

Question 170

in police interviews, what has to happen to allow inferences to be drawn on D’s silence

Answer 170

all Questions have to be put to D to ‘no comment’ on

Question 171

Inferences of silence: Legal Advice

Answer 171

o Jury need to be directed when inferences are asked to be drawn when D is silent after receiving legal advice
o Receiving legal advice does not preclude the allowance of drawing adverse inferences
o Where the accused have a good defence but chose to remain silent under legal advice, an inference may not be drawn. However, where the defence is very weak and D remained silent after legal advice, an inference may be drawn.

Question 172

limitation to Section 34 CJPOA 1994

Answer 172

There can be no conviction, or finding of a case to answer, solely on an inference drawn under s.34 CJPOA 1994.
Juries must be directed that an inference alone cannot prove guilt.
The European Court of Human Rights has extended the principle, and stated that a conviction can not be based solely or mainly on silence or a refusal to answer.

Question 173

Directing the jury on Section 34 CJPOA 1994

Answer 173

1. a reminder that the accused was cautioned that he or she did not have to say anything, and therefore had a right to say nothing, but was also warned that conclusions might be drawn from failure to mention facts later relied on;
2. a. the identification in consultation with the advocates of the facts which were not mentioned but are now relied on in defence together with;
   b. any reasons given for the failure to mention those facts; and
   c. the conclusions it is suggested might be drawn (usually that the fact has been made up after interview and is not true);
3. an instruction to consider whether the prosecution case as it stood at the time of the interview clearly called for an answer, and if it did, to consider whether, taking account of any explanation given by the accused, there was no sensible explanation for the failure other than that the accused had no answer at the time or none that would stand up to scrutiny.
4. an instruction only to draw an adverse conclusion if it is ‘fair and proper’ to do so, and in any case not to convict the accused wholly or mainly on the strength of it.

Question 174

section 34 CJPOS 1994: test for magistrates to apply

Answer 174

1. Has the defendant relied in his defence on a fact which he could reasonably have been expected to mention in his interview, but did not? If so, what is it?
2. What is his explanation for not having mentioned it?
3. If that explanation is not a reasonable one, is the proper inference to be drawn that he is guilty?

Question 175

what other direction may the court have to give alongside a Section 34 CJPOA 1994 direction?

Answer 175

A Lucas Direction

Question 176

Section 36 CJPOA 1994: Criteria

Answer 176

For an inference to be drawn under this provision, the accused must:
a) Have been arrested (as opposed to merely cautioned, as per s.34)
b) Have an object/substance/mark sufficiently proximate to their person (in reality, this means on the accused)
c) The object/substance/mark was proximate to the accused at the time of their arrest
d) A constable reasonably believes that the object, substance or mark may be attributable to the accused’s participation in a specified crime
e) The constable informs the accused of this belief and requests an explanation
f) The constable informs the accused, in ordinary language, of the consequences of a failure or refusal to provide an explanation (also called the ‘special warning’).

Question 177

Section 36 CJPOA 1994

Answer 177

Accused not counting for an object, substance or mark on their person

Where an accused fails or refuses to explain the object, substance or mark and the conditions above are met, the court may draw such inferences as appear proper. There is no qualifying provision of reasonableness in this provision; the only question is whether the accused has accounted for the object, substance or mark.

An inference drawn under this provision cannot form the sole basis for a conviction.

The severity of the situation with the silence allows more of an inference to be drawn, however guilt will not be determined solely on this basis.

Does not matter how much time elapses between Ds state of mind at the time of the arrest and the initial incident, the inference can still be drawn.

The situation of not accounting for marks or substances or objects in Ds possession have the innate presence of circumstantial evidence, so the conclusive circumstantial evidence, such as fingerprints etc, should still be included in order for the prosecution to have a case to answer.

Question 178

Section 37 CJPOA 1994

Answer 178

Silence on arrest at the scene of the crime

Section 37 is concerned only with the accused’s location at the time of arrest, and only when the accused was found at the location of the crime at or around the relevant time.
The accused’s presence at the scene at any other time is irrelevant to this provision.

Question 179

Section 37 CJPOA 1994: Criteria for inferences to be drawn

Answer 179

For an inference to be drawn under this provision, the accused must:
a) Have been arrested (as opposed to merely cautioned, as per s.34)
b) Have been arrested near the location of a crime (how near the accused needs to be is a matter of fact and degree depending on the circumstances of the offence)
c) A constable reasonably believes that the accused’s presence at the scene of a crime may be attributable to the accused’s participation in a specified crime
d) The constable informs the accused of this belief and requests an explanation
e) The constable informs the accused, in ordinary language, of the consequences of a failure or refusal to provide an explanation (also called the ‘special warning’)

Again, there is no qualifying provision of reasonableness here. The only question is whether the accused accounted for their presence at the scene.
An inference drawn under this provision cannot form the sole basis for a conviction.

Question 180

when can’t an adverse inference be drawn under section 35 CJPOA 1994?

Answer 180

a) The defendant’s guilt is not in issue (eg a Newton hearing)
b) The physical or mental condition of the defendant makes it undesirable for the defendant to give evidence

Question 181

Section 35 CJPOA 1994

Answer 181

Silence at trial
Failure to give evidence
Section 35 provides for the situation where a defendant either refuses to give evidence at their trial or refuses to answer certain questions.

Question 182

Section 35 CJPOA 1994: Criteria

Answer 182

In order for adverse inferences to be drawn under this provision, the defendant must:
a) Be told at the conclusion of the prosecution’s case that the time has now arrived when the defendant may give evidence
b) Be warned (by either judge or defence counsel) that the jury may draw adverse inferences from the defendant’s failure to testify. This must be done in the presence of the jury so it is aware that the defendant has made an informed decision not to give evidence.
If the defendant chooses not to give evidence then the trial proceeds.
Defendants are still entitled to call witnesses in their defence, regardless of whether the defendants have chosen to give evidence themselves.

Question 183

Section 35 CJPOA 1994: What inference can be drawn?

Answer 183

The adverse inference drawn under s.35 is that the accused ‘is guilty of the offence charged’.
However, there can be no conviction based solely on the basis of an adverse inference under s.35 CJPOA 1994. The timing at which an accused testifies is after the closing of the Crown’s case, therefore a prima facie case must exist against the accused before an adverse inference can be drawn under this provision.

Question 184

Section 35 CJPOA 1994: Accused with mental or physical limitations

Answer 184

o Judge can decide that the condition does not limit the accused to testify. That the mental age of a defendant did not preclude an accused from testifying as they gave the ir defence in prior hearings
o It is down to the trial judge to decide whether the accused is excused from testifying and therefor4e excused from an adverse inference
o Questioning can still be conducted accordingly to allow D to testify
o The measure is when it is ‘undesirable’ for D to testify
o Where intermediaries can help the accused then it tips in the balance of them testifying and giving a section 35 direction
o Jury should be directed specifically as well not to draw an inference where it is undesirable for accused to testify
o If D has ongoing severe mental health then it would not be desirable for them to testify
o Judge may hold a voir dire to determine the decision to draw an inference
o A judge may revisit a ruling of whether it is undesirable for an accused to testify

Question 185

what is good character evidence?

Answer 185

In any criminal case defendants are permitted to adduce evidence of their good character. Good character will usually be evidenced by the defence adducing the fact that the defendant has no previous convictions, a fact that the prosecution will ordinarily agree.

Question 186

Good character is also known as…

Answer 186

…absolute good character

Question 187

defendant has absolute good character if…

Answer 187

…they have no previous convictions

Question 188

Effective Good Character

Answer 188

the defendant has previous convictions that are old, minor or relate to offences of a different nature to the offence charged. In such cases the court may treat the defendant as being of good character.

Question 189

positive good character

Answer 189

defendants can go further than saying that they are of good character and adduce evidence of so-called “positive good character” by showing that they have behaved virtuously, (e.g. charity work).

Question 190

in what ways can good character be admitted?

Answer 190

• Cross-examination of a police officer who can confirm that the defendant has no previous convictions
• Formal admissions (s.10 Criminal Justice Act 1967)
• Examination in chief of defendants as to their character
• Calling a character witness as part of the defence case

Question 191

how can a defendant deal with their bad character to try and diminish it?

Answer 191

they can admit their own bad character in order to explain why it should not be relevant in the proceedings

Question 192

is a jury direction required for a good character evidence

Answer 192

yes.

Question 193

what is a Hunter Direction?

Answer 193

two limb test:
- Credibility
- Propensity

Question 194

when is a Hunter direction used?

Answer 194

• When the defendant has given evidence;
• If the defendant has made any pre-trial statements on which D relies at trial; or
• If the defendant has answered questions, eg in the course of a police interview.

Question 195

Hunter Direction: First Limb

Answer 195

Credibility:
- The jury should take the defendant’s good character into account in weighing the credibility of the evidence D gave in the trial or of the statements or answers D gave pre-trial. Note, the relevance of good character to credibility is not a matter for the jury, so a direction given in the form of a rhetorical question is a fatal misdirection (R v Lloyd [2002] 2 Cr App R 355). The weight to be given to the good character of the defendant is a matter for the jury
- Where an accused is of absolute good character a direction would be normal. If the position is anything other than that, then following R v Hunter and others[2015] EWCA the matter is one for the trial judge’s discretion.

Question 196

Hunter Direction: Second Limb

Answer 196

Propensity:
- The jury should take into account the defendant’s good character in considering the likelihood of the defendant having committed the offence charged.
The judge should indicate that good character, in and of itself, cannot amount to a defence.
- Where an accused is of absolute good character a direction would be normal. If the position is anything other than that, then following R v Hunter and others[2015] EWCA the matter is one for the trial judge’s discretion.

Question 197

good character - joint trials

Answer 197

Where a person of good character (D1) is jointly tried with defendants who are not of good character, D1 is still entitled to the full good character direction.
The judge will have to decide what, if anything, to say about the character of the other defendants, ordinarily nothing is said.
A defendant (D2) who is not of good character whose case is joined on an indictment with that of a defendant (D3) who is of good character may fear that they will be adversely affected if D3 has the benefit of a good character direction and they do not. D2’s theoretical remedy is to seek severance, though in general defendants jointly charged will be tried together and severance in such circumstances should be regarded as exceptional.

Question 198

good character - spent, old, irrelevant convictions

Answer 198

• Where a defendant has convictions which are old, spent or relate to offences totally different from the offence charge, the judge must decide whether D can be treated as a person of effective good character.
• In R v Nye [1982] 75 Cr App R 247 the Court of Appeal held that ‘The essence of this matter is that the jury must not be misled and no lie must be told’. It follows where a defendant has old, spent or irrelevant convictions the jury must be made aware of that material.
• The effect of R v Hunter and others [2015] EWCA Crim 631 has been to restrict the circumstances in which a court is obliged to give a modified good character direction. In this context modified ordinarily means the giving of the propensity but not the credibility limb. A Judge may now refuse to give any form of good character direction where there is evidence of bad character or reprehensible behaviour by the accused.

Question 199

Defendant bad character - good character

Answer 199

In addition to the ratio already described, in R v Hunter and others [2015] EWCA Crim 631 the Court of Appeal went on to consider the effect of the admission of defendant bad character evidence in the course of the trial of a person who does not have previous convictions (admitted through s.101 Criminal Justice Act 2003).
Where evidence of bad character has been heard by the jury, the judge is obliged to give a bad character direction to the jury in summing up. The judge may consider that as a matter of fairness they should weave into the direction a modified good character direction to take account of the fact that there are no previous convictions recorded against the defendant. There will be cases where giving the two directions together would result in absurdity. In those cases, there is a broad discretion for the judge to decline to give a good character direction.