Issues in Evidence

Question 1

What can evidence be described as?

Answer 1

Information that may be presented to a court so that it may decide on the probability of some facts asserted before it, that is information by which facts in issue tend to be proved or disproved.

Question 2

The two questions that need to be applied to any evidence are:

Answer 2

• admissibility - whether the evidence is relevant to a fact in issue. All evidence of facts in issue and all evidence which is sufficiently relevant to prove (or disprove) facts in issue are potentially admissible.
• weight - once it is established that the evidence is admissible, it is put before the court to determine what weight it will attach to the evidence, that is, how much effect does it have on proving or disproving the case (how good it is).

Question 3

Can a judge exclude admissible evidence?

Answer 3

At common law, the trial judge has a general discretion to exclude legally admissible evidence tendered by the prosecution.

1. They believe the prejudicial value outweighs the probative value.
2. Evidence obtained through improper or unfair means.
3. Hearsay.
4. Incompetency of a Witness
5. Evidence relating to previous convictions
6. Privileged information or withheld as a matter of public policy.
7. Non-expert opinion evidence.

Question 4

In a criminal case, what are facts in issue?

Answer 4

In criminal cases these are facts the prosecution must prove, for example:

• the identity of the defendant;
• the actus reus;
• the mens rea.

Question 5

The facts in issue fall into two distinct categories:

Answer 5

• the facts that the prosecution bear the burden of proving or disproving in order to establish the defendant’s guilt;
• the facts which, in exceptional circumstances, the defence need to prove to show that the defendant is not guilty.

Question 6

What is the duty of the prosecution?

What is the duty of the defence?

Answer 6

Prosecution:

• To prove guilt.
• Beyond all reasonable doubt.

Defence:

• Level of proof is less for the defence.
• On the balance of probabilities.
• To put doubt in the minds of the Jury

Question 7

What is the balance of probabilities in favour of the defence?

Answer 7

The defence will succeed if the court or jury are satisfied that the defence evidence is more probably true than false.

Question 8

What is a good illustration of where the defence may have a burden of proof?

Answer 8

The law relating to the carrying of weapons.

Once the prosecution have proved (beyond a reasonable doubt) that a defendant was carrying an offensive weapon, the burden then shifts to the defence to prove (on the balance of probabilities) that the defendant had lawful authority or reasonable excuse.

Question 9

There will also be occasions where the defence have what is called an evidential burden in relation to certain specific defences they intend to rely on.

What are common examples of this?

Answer 9

Defences relating to alibis, self- defence, accident and provocation.

In contrast to the evidential burden borne by the prosecution (to show that there is a case to answer by the end of the prosecution evidence), the defence’s evidential burden arises somewhat differently. Unlike those defences that place a full legal burden of proof on the defence, the defence do not have to satisfy the judge of anything as such. All that the defence have to do is to ensure that there is enough evidence relating to the defence that is to be raised to enable the judge to direct the jury upon that defence as a live issue.

Question 10

An example of a summary offence where the burden of proof is on the defence is…

Answer 10

…driving without insurance where the accused is required to prove he/she is insured (Williams v Russell (1933) 149 LT 190).

Question 11

An example of an indictable offence where the burden of proof is on the defence is…

Answer 11

…selling intoxicating liquor without a licence and the Court of Appeal held that it was for the accused to prove that he was the holder of a licence (R v Edwards [1975) QB 27).

Question 12

Defence of the Defence

Answer 12

That the prosecution proves the prima facie case (something that has been proven or assumed to be true unless there is evidence presented to the contrary).

E.g someone found with cannabis on them…
- Burden of Proof moves to the defence that they need to show (and only on the balance of probabilities) that the defendant was taking the drugs to a Police Station.

Question 13

Section 82 of the Police and Criminal Evidence Act 1984 defines what a ‘confession’ is. What is this definition?

Answer 13

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

Question 14

The exclusion of evidence is covered in section 76 of the Police and Criminal Evidence Act 1984, where it provides the court with a responsibility to exclude confession evidence if it falls into certain categories.

What are these categories?

Answer 14

A court has a responsibility to exclude evidence obtained through oppression or where the confession was unreliable

Question 15

DC Turner has been trying to convict local thief Ball for years. DC Turner frustrated from years of hard work that never got the conviction he wanted, decided a new tactic having watched a fictional TV programme and becoming inspired. ‘By hook or by crook’ he told himself and promptly during the interview told Ball that he found his fingerprints on the shop window that was burgled last week during a nighttime commercial burglary. There were in fact no fingerprints. Ball believing he was bang to rights, confessed to the crime.

What can be said in relation to inclusion of such evidence?

Answer 15

The evidence will be excluded. S78 PACE governs this around the adverse effect on the fairness of proceedings.

Question 16

In relation to the exclusion of evidence, the term ‘oppression’ is often used. PACE defines for us what oppression is.

What is this?

Answer 16

Oppression includes torture, inhumane or degrading treatment, and the use or threat of violence

Question 17

Dc Carter has arrested SMITH a notorious local burglar. During the arrest SMITH makes an incriminating comment, which Dc Carter notes down. At no point following this, is SMITH shown the comment or asked to sign the note.

When considering The Exclusion of Evidence under Section 78 of the Police and Criminal Evidence Act 1984 is this evidence admissable?

Answer 17

Yes, R v Scott 1991, tells us that in this situation the evidence of the incriminating comment, because it was neither shown to or signed by the suspect was deemed inadmissible.

Question 18

When considering the exclusion of evidence under section 78 of the Police and Criminal Evidence Act 1984, what is true in relation to a situation where a suspect is not given adequate time to consult with their solicitor?

Answer 18

R v Chung 1992 tells us that the evidence of a person who is not given an adequate opportunity to consult with a solicitor may be excluded.

Question 19

Gilbert is 17 years old and is arrested for shoplifting. He is questioned back at the police station with no appropriate adult present. Gilbert is charged and the matter goes to court.

In relation to the admissibility of evidence. Can the interview be admissible in these circumstances?

Answer 19

No, in these circumstances the interview evidence would not be admissible on the grounds of there being no appropriate adult present during the interview, as per the ruling in DPP v Blake 1989.

Question 20

In relation to the admissibility of evidence, in particular plans and drawings under Section 41 of the Criminal Justice Act 1948, which of the following is correct when considering whether plans and drawing can be submitted to court?

A They can be submitted only when accompanied by a certificate signed by a police officer of at least the rank of superintendent

B They can be submitted only when accompanied by a certificate signed by a police officer and agreed by the defence

C They can be submitted only when accompanied by a certificate signed by a police officer or any other person having a prescribed qualification

D They cannot be submitted unless authorised by the director of public prosecutions

Answer 20

C They can be submitted only when accompanied by a certificate signed by a police officer or any other person having a prescribed qualification such as civil engineers and architects. A copy of the certificate must be served upon the defendant not less than 7 days before the hearing

Question 21

Pc Jones is dealing with Abbot in custody for a serious offence. Pc Jones is required to take a hair sample for the purpose of evidential DNA comparison. Abbot asks Pc Jones if he can take the hair sample from anywhere else besides his head because he does not have much hair left. Pc Jones ignores this request and grabs Abbot’s hair and take a few strands out. The DNA evidence proves evidential in the case.

Considering any potential breach of the codes of practice, code D, would the DNA evidence likely be excluded in these circumstances?

Answer 21

No, because the integrity of the evidential aspect namely the DNA is not in question.

R v Cooke 1995 covers a similar set of circumstances in that nothing is casting doubt on the integrity of the evidential link. So albeit the act of violence would amount to a breach of the codes, the obtaining of the DNA in and of itself does not. The act although aggressive does not bring into question the reliability of the DNA per se.

Question 22

Hank and Ding are jointly charge with handling stolen goods. In Hank’s interview, he tells officers it was all him and Ding is just a bit daft and actually had no idea what was going on and certainly didn’t know the goods were stolen. Hank pleads guilty and gets dealt with. Ding pleads not guilty and goes to trial. The defence want to rely on Hank’s interview to support Ding’s defence as Hank has said he is unwilling to come to court and give evidence on behalf of Ding.

In this situation is the confession from Hanks’ interview admissible in Ding’s trial?

Answer 22

No, as Hanks is no longer charged this will not be permitted.

Section 76 of PACE explains that in a situation such as this where evidence from one defendant is to be used in a co-defendant’s case, it can only be done when the co-accused is charged in the same proceedings. In these circumstances, Hank is no longer in play therefore it does not apply. Had he not pleaded guilty and been disposed of and ended up at trial with Ding, then the defence could avail of it.

Question 23

Guy is arrested for sexual touching a 15 year old male in the park. Guy is adamant he is innocent and is convinced his ex employee Tom has used the 15 year old to make the allegation for revenge as Tom was sacked from his factory job recently by Guy. During a search of Guy’s house, officers find homosexual pornography. Guy is adamant he is heterosexual.

Considering the admissibility of evidence, is it likely that the homosexual pornography will be admitted as evidence?

Answer 23

No, as it is not direct evidence and is likely to have an adverse effect on the fairness of the trial.

The case of R v B 1997 explains that in circumstances similar to this, the pornography does not represent direct evidence of the matter charged, namely the sexual offence. It may at best support a view of guy’s sexuality. But that is wholly irrelevant and unfair to introduce to proceedings as it is not linked to the offence alleged. Any evidence adduced must simply be related to the matter charged if it is not in play.

Question 24

Dave is arrested for drug dealing. During his spell in custody, he discovers his mother has also been arrested for the same offence. Dave asks his solicitor to find out from officers whether if Dave confesses to the drug dealing will it mean his mother will be released without charge. Dave’s solicitor enquires with officers, who explain to the solicitor that the evidence against Dave’s mother is weak and if there is insufficient evidence to support a charge, she will be NFA’d. The officer makes no promises about this. Dave then admits to everything in the interview, even being prompted to do so by his solicitor at points, such was Dave’s request.

At the subsequent court proceedings following Dave’s charge, Dave now wishes for the confession to be excluded on the grounds it was obtained unfairly. Is the confession admissable?

Answer 24

The confession is admissible as it was true and not gained through oppression.

Section 76 of PACE talks about exclusion of confessions obtained through oppression. It is also the case that courts are more concerned about how the confession was obtained rather than whether what was said was actually the truth. There was no conditional aspect to any supposed deal. No promises were made and the officers were open and transparent. The solicitor too was only acting on instruction from their client, so no issues there either.

Question 25

James runs a scout group. He is given money by local businesses on occasion for the scout group to attend and perform marshalling duties at events. The money is paid onto the scouts from James for giving up their time. A report comes in suggesting that on one occasion James and his scouts performed this function but James did not pass the money on to the scouts. James is arrested and is told by the police that if he admits the allegation, he will be charged with one offence, if he does not admit it the police will have to investigate further and seek to obtain statements from the whole scout group and any businesses for which the group has provided a service. James confesses to the allegation to avoid this happening and to avoid any extra charges.

Considering obtaining confession evidence through oppression, was this lawful?

Answer 25

This was oppression, as James admitted the offence due to what the officers told him.

Section 76 of PACE explains what oppression is, namely torture, inhuman or degrading treatment and the use or threat of violence whether or not amounting to torture. R v Howden-Simpson 1991 explains that in similar circumstance to this example, it was found to be oppressive for officers to employ such tactics to elicit a confession. The court of appeal also found in 1987 on a separate case that oppression would be considered unjust treatment or exercise of authority in a harsh, burdensome or wrongful manner.

Question 26

Carter and Smith are arrested for an aggravated burglary. The evidence was weak and the officers, following their arrest decide to employ a tactic which involves placing them both in the same police van to convey them home from custody following charge and bail (telling Carter and Smith that they ran out of vehicles hence both had to be in the same one) whilst listening to their conversations through a covert listening device in the hope it may elicit a significant conversation and confession as evidence. The arrest took place and the tactic produced the desired result, with confessions being heard and recorded.

Considering the use of this tactic in relation to admissible evidence, is the evidence admissible?

Answer 26

The evidence is admissible as the suspects were merely provided with a situation that enabled them to speak to one another.

The suspects spoke to each other of their own free will. R v Bailey 1993 provides this ruling from a set of very similar circumstances.

Question 27

R v Heron 1993 talks about oppression during criminal investigations.

It was described as the exercise of authority or power:

in a burdensome, harsh or wrongful manner
unjust or cruel treatment of subjects or inferiors
the imposition of unreasonable or unjust burdens
to weigh down spirits, or imagination

It also includes two more…?

Answer 27

Keep under by coercion or subject a person to continual injustice

Question 28

The Police and Criminal Evidence Act 1984 Code C explains use of oppression in criminal investigations. It tells us that no one conducting an interview must give an indication to anyone else of the consequences of that interview.

Describe this in more detail?

Answer 28

No one conducting an interview must give an indication as to what action will be taken if the person being interviewed answers questions, makes a statement, or refuses to do either.

Question 29

Considering confessions under sections 76 and 82 of the Police and Criminal Evidence Act 1984, describe what a confession is?

Answer 29

A confession in a criminal case is any statement wholly or partly adverse to the person who made it whether made to a person in authority or not, and in words or otherwise made by a person against their own interests which is admissible against the person who made it.

Question 30

Jim has been arrested for robbery. He isn’t feeling well and just before the interview vomits over DC Baker’s new suit. DC Baker, not happy continues with his vomit soaked suit and interviews Jim who confesses to the robbery whilst complaining of being ill throughout the interview.

When considering confession evidence obtained through ‘oppression’, has this occurred?

Answer 30

The action would constitute oppression

R v McGovern 1991, tells us that in circumstances similar to this, the fact that the defendant vomited prior to interview, who then went on to confess, was found to be inadmissible on the grounds of oppression given the suspects obvious illness which throw doubt on the credibility of the confession. Practically, despite the frustration or annoyance of a suspect regurgitating their custody Weetabix on your new suit, proper process as per PACE in relation to their welfare should be followed. Otherwise the risk is exclusion of evidence under PACE.

Question 31

Considering criminal court proceedings and ‘Special Measures’, what kinds can be put in place?

Answer 31

Screens to shield a witness from a defendant in a rape trial

An intermediary used for a vulnerable witness

Removal of wigs and gowns during a robbery trial with a 12-year-old witness

A victim of sexual abuse giving evidence in private

Question 32

Considering court proceedings, ‘special measures’ are applicable for whom?

Answer 32

Special measures are applicable for both defence and prosecution witnesses, as long as the court is satisfied they meet the qualifying criteria.

Special measures are granted on application to the Judge / magistrate before the trial. They are available in all courts in England and Wales.

Question 33

The court makes a Special Measures Direction of screens for Miles, a 17 year old who was the victim of a sexual offence, who was eligible on the grounds of his age only. Three weeks before the trial Miles has his 18th birthday.

In relation to the application of Special Measures to witnesses who pass their 18th birthday, are they still upheld?

Answer 33

The direction of special measures (as they were given on grounds of youth only) no longer has effect as they have turned 18 before giving evidence.

Question 34

Considering evidence of ‘bad character’ (sections 98 to 113, part 11, chapter 1 of the Criminal Justice Act 2003), ad character can be admissible in relation to whom?

Answer 34

Bad character can be admissible in relation to the defendant, any witness, police officers involved in the case and the victim.

Question 35

When giving evidence in court, each witness must take the oath or make an affirmation.

There are however three exceptions when unsworn evidence can be given…

Answer 35

Children under 14 years of age.

Older persons who cannot truly understand the situation nor of their responsibility to tell the truth.

Those who are only there to produce a document.

Question 36

When considering giving evidence by video (contrary to sections 137 and 138 of the Criminal Justice Act 2003), can they be edited?

Answer 36

Video recordings can be edited if it is in the interests of justice.

Question 37

In relation to ‘Special Measures’, which of the following statements is correct?

Answer 37

All children and young persons aged under 18 are eligible for special measures

By virtue of section 55 of the Youth Justice and Criminal Evidence Act 1999, a child may only be sworn for the purpose of giving evidence if they are aged 14 years or above and have sufficient appreciation of the solemnity of the occasion and the responsibility for truth telling. The requirement for special measures should have been considered initially as part of the charging advice. Child witnesses under the age of 18 will automatically be eligible for special measures by virtue of section 16 of the Youth Justice and Criminal Evidence Act 1999.

Question 38

Section 119 of the Criminal Justice Act outlines what a ‘hostile witness’ is. What best describes a hostile witness?

Answer 38

A witness who declines to answer or falsifies answers that go against a previous statement and demonstrates no regard for the truth

Question 39

Vulnerable witnesses are defined by s16 Youth Justice and Criminal Evidence Act 1999 as:

Answer 39

All child witnesses under 18 and

Any witness whose quality of evidence is likely to be diminished because they:

• Are suffering from a mental disorder
• Have a significant impairment of intelligence and social functioning; or
• Have a physical disability or are suffering from a physical disorder.

Question 40

When considering criminal court proceedings and special measures that are available. The Youth Justice and Criminal Justice Act 1999 makes reference to ‘Intimidated Witnesses’.

What is an intimidated witness actually is according to the Act?

Answer 40

Section 17 of the Youth Justice and Criminal Justice Act 1999 tells us that ‘Intimidated Witnesses’ are defined as those whose quality of testimony is likely to be diminished by reason of fear or distress at the prospect of giving evidence to such an extent that special measures are necessary to maximise the quality of their evidence.

Question 41

When considering criminal court proceedings and special measures that are available. The Youth Justice and Criminal Justice Act 1999 explains that there are certain groups of witnesses who automatically qualify for special measures.

What are these groups?

Answer 41

Sexual offences victims, modern slavery victims, victims of and witnesses to domestic violence, racially motivated crime, crime motivated by reasons relating to religion, homophobic crime, gang-related violence, repeat victimisation, the elderly and frail and the family of homicide victims.