Principles and Procedures to Admit and Exclude Evidence

Question 1

Turnbull witness where the Turnbull guidelines will apply

Answer 1

If the witness picks out the D informally, identifies the D at a formal identification procedure at the PS, or claims to recognise the D as someone previously known to them.

Question 2

What is a Turnbull warning?

Answer 2

Judge points out the dangers of relying on identification evidence, and the special need for caution when such evidence is relied on.

Judge tells the jury that is 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.

Question 3

When is a Turnbull warning given?

Answer 3

Where identification is good quality, or poor quality but supported.

Won’t be given where identification is poor quality and unsupported. In this case, the judge should stop the trial and direct the jury to acquit the D.

Question 4

Inferences under s 34

Answer 4

The court may draw an adverse inference from D’s silence when D was being questioned or charged at the PS.

So, this can be drawn where the D gave a no-comment interview, or at trial raises some other fact in their defence that they didn’t mention but could reasonably have been expected to mention when interviewed.

Question 5

Inferences under s 34 - any good reasons for silence?

Answer 5

Lack of disclosure by police
Weak police case
Complexity of case against suspect
Events occurred a long time ago
Suspect unfit for interview
Age/maturity of the suspect

Question 6

Can a D avoid an adverse inference by claiming their refusal to answer questions was based on legal advice?

Answer 6

Adverse inferences should not be drawn if the jury believes that the D genuinely and reasonably relied on the legal advice to remain silent.

However, the court is likely to want to know the reasons for the solicitor’s advice. Once a D gives this information, legal privilege is waived.

Question 7

Inferences under s 36

Answer 7

Adverse inference can be drawn if, when interviewed by the police, the D fails to account for the presence of an object, substance or mark.

This inference operates even if no defence is raised by the D at trial.

Adverse inference cannot be drawn where the D has not been given a special caution.

Question 8

Inferences under s 37

Answer 8

Adverse inference can be drawn if, when questioned at the PS, the D fails to account for his presence at a particular place at or about the time the offence was committed.

This inference operates even if no defence is raised by the D at trial.

Adverse inference cannot be drawn where the D has not been given a special caution.

Question 9

Inferences under s 35

Answer 9

If the prosecution raises issues at trial which call for an explanation from the D, should the D fail to give evidence, the court will be entitled to infer that the D either has no explanation or none that will stand up to cross-examination.

Question 10

Inferences under s 34, 36, and 37 - limited statutory exception

Answer 10

The court may direct that an adverse inference is not drawn where the physical or mental condition of the accused makes it undesirable for him to give evidence.

E.g. giving evidence likely to trigger an epileptic seizure, or accused is schizophrenic and likely to cause a florid state.

Question 11

Admissible hearsay - where a witness is unavailable to attend court

Answer 11

Relevant person is dead, or unfit due to bodily or mental condition, or outside the UK and it is not reasonably practicable to secure their attendance, or cannot be found, or court gives leave for relevant person to not give oral evidence since they’re fearful.

Question 12

How may a D alleged to have confessed successfully challenge the admissibility of this confession at trial?

Answer 12

Where the confession was or may have been obtained by oppression, or where something said/done renders unreliable any confession which the D made.

Question 13

Challenging admissibility of confession evidence - unreliability

Answer 13

Denying a suspect refreshments or appropriate rest periods,
Offering a suspect an inducement to confess,
Misrepresenting the strength of the prosecution case,
Questioning a suspect inappropriately,
Questioning a suspect who the police should’ve known was in no fit state to be interviewed,
Threatening a suspect.

Question 14

Challenging admissibility of confession evidence - unreliability: denied access to legal advice

Answer 14

Doesn’t automatically lead to the exclusion of the confession.

There must be a causal link between the breach and the unreliability of the confession.

So, D who is an experienced criminal fully aware of their rights when detained will find it hard to establish this.

Question 15

Challenging admissibility of confession evidence - confessions the D accepts having made

Answer 15

Court will only exclude such evidence if breaches of police conduct are significant and substantial.

Question 16

Challenging admissibility of confession evidence - confessions the D denies having made

Answer 16

Likely to be excluded if the police fail to

• Make an accurate record of the D’s comments, or
• Allow the D to view the record of his comments and to sign as being accurate, or
• Put this admission/confession to the D at the start of his subsequent interview at the PS.

Question 17

How is the admissibility of confession evidence determined in the Crown Court?

Answer 17

In the absence of a jury in a voir dire (trial within a trial).

Question 18

How is the admissibility of confession evidence determined in the Crown Court?

Answer 18

In the presence of the magistrates in a voir dire.

Question 19

Bad character evidence

Answer 19

Evidence of, or disposition towards, misconduct on his part, other than evidence which has to do with the alleged facts of the offence, or is evidence of misconduct in connection with the investigation or prosecution of that offence.