Principles and procedures to admit and exclude evidence

Question 1

Requirements needed to be satisfied for the jury/magistrates to take a piece of evidence into account

Answer 1

There are two basic requirements which need to be satisfied if the jury or the magistrates are to take a piece of evidence into account in deciding what the facts in issue are:
1) Evidence must be relevant to the facts in issue in the case
2) Evidence must be admissible - this means that the rules which comprise the law of evidence must allow such evidence to be used in a criminal trial

Question 2

Types of evidence

Answer 2

Evidence that is both relevant and admissible may be either direct evidence of a defendant’s guilt or circumstantial evidence from which a defendant’s guilt may be inferred

Question 3

Legal burden

Answer 3

Prosecution will bear the legal burden of proving the defendant’s guilt. Standard of proof is to prove beyond a reasonable doubt that the defendant is guilty of the offence with which they have been charged. If the defendant raises the defence of insanity or duress the defendant has to prove it and the standard of proof is on the balance of probabilities. However a defendant who raises a specific defence e.g an alibi or self-defence only has an evidential burden to raise it.

Question 4

Evidential burden

Answer 4

At trial the prosecution will present their case first. At the conclusion of its case the prosecution must have presented sufficient evidence to the court to justify a finding of guilt and to show that the defendant has a case to answer. If they fail to do this the prosecution has not discharged their evidential burden. The defendant is not obliged to place any evidence before the court to show that they are innocent. Only need to prove evidence if they are raising a defence

Question 5

Visual identification evidence and Turnbull guidance - Definition

Answer 5

This is evidence from a witness who claims to have seen the defendant committing the crime. However this is usually unreliable and the defendant will dispute the eye witness.

Question 6

Visual identification evidence and Turnbull guidance - S. 78 PACE (courts discretion to exclude)

Answer 6

This provides the court with a discretion to exclude evidence upon which the prosecution seek to rely if the admission of such evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it. This is commonly raised by the defendant’s solicitor when the methods employed by the police to obtain evidence constitute a sig. and substantial breach either of PACE or of the Codes of Practice

Question 7

Visual identification evidence and Turnbull guidance - When will the police breach rules for holding an identification procedure contained in Code D

Answer 7

E.g:
a) At a video identification procedure the police may breach the requirement that the other images shown to the witness must resemble the suspect in age, general appearance and position in life
b) At an identification parade the police may breach the requirement that the witnesses attending the parade are segregated both from each other and from the suspect before and after parade
c) A breach will occur if whilst the defendant was detained at the police station the police failed to hold an identification procedure when such a procedure should have been held pursuant to Code D

Question 8

Visual identification evidence and Turnbull guidance - Turnbull warning

Answer 8

The judge will tell the jury that it is very easy for an honest witness to be mistaken as to identity and will direct the jury to examine closely the circumstances of the original sighting and take into account factors listed above when considering the quality of the identification evidence. They will also draw specific attention of the jury to the weaknesses in the identification evidence which has been given

Question 9

Visual identification evidence and Turnbull guidance - Supporting evidence

Answer 9

Supporting evidence = some other evidence which suggests that the identification made by the witness is reliable. The judge will normally warn the jury about the dangers of convicting on the basis of the identification evidence alone and tell the jury to look for other supporting evidence. Examples of supporting evidence:
- A confession made by the defendant
- Other evidence placing the defendant at the scene of the offence e.g DNA
- In a theft case, stolen property being found in the defendant’s possession
- Adverse inferences being drawn from the defendant’s silence

Question 10

Visual identification evidence and Turnbull guidance - No case to answer

Answer 10

If the judge considers the identification evidence to be of poor quality and it is not supported by any other prosecution evidence the judge should stop the trial at the end of the prosecution case and direct the jury to acquit the defendant. If a defendant’s solicitor considers that the quality of the identification evidence given by an eyewitness is poor and the CPS has no other supporting evidence the solicitor should make a submission of no case to answer at the end of the prosecution case

Question 11

Hearsay evidence - Definition

Answer 11

A statement, not made in oral evidence that is relied on as evidence of a matter in it. Statement = any representation of fact or opinion made by a person by whatever means.

Question 12

Hearsay evidence - Examples

Answer 12

1) A witness repeating at trial what they had been told by another person
2) A statement from a witness being read out at trial instead of the witness attending court to give oral evidence
3) A police officer repeating at trial a confession made to them by the defendant
4) A business document being introduced in evidence at trial

Question 13

Hearsay evidence - When it will be admissible

Answer 13

It will be admissible if it falls within one of 4 categories:
- Any provision or any other statutory provision makes it admissible
- Any rule of law preserved by S. 118 makes it admissible
- All parties to the proceedings agree to it being admissible
- The court is satisfied that it is in the interests of justice for it to be admissible

Question 14

Hearsay evidence - General rule

Answer 14

General rule is that it is inadmissible but there are exceptions

Question 15

Hearsay evidence - Any provision or any other statutory provision makes it admissible - Statutory provisions

Answer 15

• Cases where a witness is unavailable
• Business and other documents
• Previous inconsistent statements of a witness
• Previous consistent statements by a witness
• Statements from a witness which are not in dispute
• Formal admissions

Question 16

Hearsay evidence - Any provision or any other statutory provision makes it admissible - Where a witness is unavailable to attend court oral evidence is admissible if

Answer 16

• The relevant person is dead
• The relevant person is unfit to be a witness because of a bodily or mental condition
• The relevant person is outside the UK and it is not reasonably practicable to secure his attendance
• The relevant person cannot be found
• Through fear the relevant person does not give oral evidence in the proceedings
• Only first-hand hearsay

Question 17

Hearsay evidence - Any provision or any other statutory provision makes it admissible - Business and other documents

Answer 17

• The document must have been created or received by a person in the course of a trade, business, profession or other occupation
• The person who supplied the info. contained in the statement had or may reasonably be supposed to have had personal knowledge of the matters dealt with
• Both first hand and multiple hearsay

Question 18

Hearsay - Any rule of law preserved by S. 118

Answer 18

Preserves several common law exceptions to the rule excluding hearsay evidence. The most important are:
1) Evidence of a confession or mixed statement made by the defendant
2) Evidence admitted as part of the res gestae
Any confession made by a defendant will be admissible in evidence against him even if it is hearsay.
Res gestae = A statement made contemporaneously with an event will be admissible

Question 19

Hearsay - Parties agree

Answer 19

If all the parties in the case agree any form of hearsay evidence may be admissible in evidence

Question 20

Hearsay - The court is satisfied that it is in the interests of justice for it to be admissible

Answer 20

Court must have regard to factors:
a) How much value the statement has in relation to the matter in issue and to the context of the case as a whole
b) Circumstances in which the statement was made
e) How reliable the maker of the statement appears to be
f) Whether oral evidence can be given
g) Amount of difficulty challenging statement would be

Question 21

Hearsay - Procedural rules to be followed if a party seeks to rely on hearsay evidence at trial - Part 20 Rules - What a party needs to do to adduce/oppose hearsay

Answer 21

Parties wishing to do this must give notice of its intention to do this both to the court and to the other parties. Notice must be given using a set of prescribed forms. However there is a provision in the act which allows the court to dispense with the requirement to give notice of hearsay evidence to allow notice to be give orally

Question 22

Confession evidence - Definition

Answer 22

Any statement wholly or partly adverse to the person who made it whether made to a person in authority or not and whether in words or otherwise. Anything said by a defendant that constitutes an admission of any element of the offence with which they are subsequently charged or that is in any way detrimental to their case will satisfy this definition

Question 23

Confession evidence - When it will be admissible

Answer 23

A confession made by a defendant prior to trial will be admissible in evidence at trial as long as it is relevant to the matter in issue and is not excluded by the court.

Question 24

Confession evidence - Mixed statement

Answer 24

A confession including a statement which is favourable to the defendant. This will also be admissible

Question 25

Confession evidence - Evidence given by a co-defendant

Answer 25

Any evidence given by a co-defendant at trial which implicates a defendant including a confession made by this co-defendant will be admissible in evidence against the defendant. Additionally, if the co-defendant t has pleaded guilty at an earlier hearing and is giving evidence for the prosecution at the trial of the defendant any evidence given implicating the defendant will be admissible

Question 26

Confession evidence - When a defendant may challenge admissibility of this confession

Answer 26

A defendant who is alleged to have made a confession may challenge the admissibility of this confession at trial by arguing either:
a) That they did not make the confession at all and that the person to whom the confession was made was either mistaken as to what they heard or has fabricated evidence
b) That they did make the confession but it should still not be admitted in evidence

Question 27

Confession evidence - When a defendant may challenge admissibility of this confession - Challenging admissibility under PACE

Answer 27

If the defendant accepts that they made a confession they can challenge it under PACE which provides that: It will be inadmissible if it was obtained:
a) By oppression of the person who made it
b) In consequence of anything said or done which was likely to render unreliable any confession - something must have been said or done which caused defendant to make a confession e.g breach of Code C
Will not be allowed to be used unless the prosecution prove beyond a reasonable doubt that it was not obtained in these circumstances

Question 28

Confession evidence - When a defendant may challenge admissibility of this confession - Challenging admissibility under PACE - Breaches of Code C which caused defendant to confess

Answer 28

1) Denying suspect refreshments or appropriate periods of rest between interviews so that they’re not in a fit state to answer
2) Offering them an inducement to confess
3) Misrepresenting the strength of the prosecution case
4) Questioning them in an inappropriate way e.g repeating Qs
5) Questioning a suspect they knew was not in a fit state to answer e.g drunk
6) Threatening a suspect

Question 29

Confession evidence - Differences between S. 76 and S. 78

Answer 29

S. 76 deals exclusively with the court’s power to exclude evidence of a confession made by the defendant S. 76(a) oppression S. 76(b) unreliability breach of Code C. S. 78 the court has a more general discretion to exclude prosecution evidence and they can do this if the court considers that the admission would have such an adverse effect on the fairness of proceedings - S. 78 unfairness.

Question 30

Confession evidence - Determining whether disputed confession evidence is admissible in the Crown Court

Answer 30

This will be determine by the trial judge in the absence of the jury at a voir dire (a trial within a trial) - prosecutor has the burden to prove. If the judge rules the confession to be inadmissible the jury will hear nothing about the confession. If the judge rules it to be admissible then the interviewing officer will give evidence of the confession when giving evidence to the jury

Question 31

Confession evidence - Determining whether disputed confession evidence is admissible in the Magistrates court

Answer 31

If the defendant seeks to exclude evidence of the confession under S. 76 (confession made by oppression or breach of Codes C) magistrates must hold a voir dire. However if just trying to exclude it on the grounds of S. 78 (unfairness) then no voir dire is needed.

Question 32

Character evidence - Bad character - Definition

Answer 32

Bad character = evidence of, or a disposition towards, misconduct other than evidence connected with the offence for which the defendant has been charged

Question 33

Character evidence - Misconduct - Definition

Answer 33

The commission of an offence or other reprehensible behaviour

Question 34

Character evidence - Misconduct - When it will be admissible

Answer 34

If the misconduct by the defendant is connected to the offence with which they have been charged this will not fall within the definition of bad character and will therefore be admissible in evidence without needing to consider whether it satisfies the test for admissibility of bad character

Question 35

Character evidence - Bad character - When it will be admissible

Answer 35

7 gateways:
1) All parties agree to the evidence being admissible
2) Evidence is adduced by defendant or is given in answer to a Q asked in cross-examination
3) It is important explanatory evidence (only prosecution can use this)
4) It is relevant to an important matter in issue (only prosecution can use) - after a prescribed period of time certain convictions are spent
5) It has substantial probative value in relation to an important matter between defendant and a co-defendant
6) It is evidence to correct a false impression given by the defendant and will mislead court/jury
7) The defendant has made an attack on another person’s character

Question 36

Character evidence - Bad character - When it will be admissible - Gateway 4 It is an important matter

Answer 36

Important matters include:
1) The question whether the defendant has a propensity to commit offences of the kind with which he is charged
2) The question whether the defendant has a propensity to be untruthful - R v Hanson - defendants previous convictions will not be admissible to show defendant has been untruthful unless:
a) The manner in which the previous offence was committed demonstrates defendant has propensity
b) The defendant pleaded not guilty and was convicted - if someone says not guilty but then gets charged they were being untruthful

Question 37

Character evidence - Bad character - When the court will not admit evidence

Answer 37

For gateway 4 (important). The court must not admit this evidence if it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Most likely to use this:
1) When the nature of a defendant’s previous convictions is such that the jury are likely to convict a defendant on the basis of these convictions alone
2) When the prosecution seeks to adduce previous convictions to support a case which is weak
3) When the defendant’s previous convictions are spent

Question 38

Adverse inference

Answer 38

An inference can be drawn if a suspect is silent when questioned under caution prior to charge and subsequently relies upon a relevant fact at court which they could reasonably have been expected to mention when questioned

Question 39

Investigation parade and investigation officer

Answer 39

The presence of the investigation officer at the parade is a significant and substantial breach of code D and the court should be asked to exercise its discretion to exclude the disputed identification evidence

Question 40

Special caution

Answer 40

Adverse inferences may be drawn subject to the courts power to exclude the interview record on the grounds of unfairness

Question 41

What happens if someone doesn’t testify

Answer 41

If someone doesn’t testify it can be appropriate for an adverse inference to be drawn from the silence at trial

Question 42

What happens if the defendant does not give evidence at trial

Answer 42

The court may infer from this that the defendant has no defence to the charge or none that would stand up to cross examination

Question 43

Raising a specific defence of an alibi

Answer 43

Whilst a defendant is not obliged to place any evidence before the court to show that they are innocent of the offence with which they have been charged if they raise a specific alibi defence and wish the jury to consider that defence they must place some evidence of that defence before the court - evidential burden

Question 44

Turnbull warning and other evidence

Answer 44

Judge is required to give a Turnbull warning if the quality of the identification evidence is poor but is supported by other prosecution evidence