PROCEDURES TO ADMIT AND EXCLUDE EVIDENCE

Question 1

3

BURDEN AND STANDARD OF PROOF

Answer 1

1. The burden of proof lies on the prosecution to prove that the defendant committed the ofence charged. This means that the prosecution must prove the defendant is guilty; the defendant does not have to prove their innocence.
2. The prosecution must prove their case beyond reasonable doubt.
3. If the defence manage to cast reasonable doubt on any element of the offence, the defendant must be acquitted.

Question 2

3

VISUAL IDENTIFICATION EVIDENCE

Answer 2

1. Visual identifcation evidence (in which a witness who saw the commission of the offence gives evidence on the offender’s appearance or identity) is notoriously unreliable. This is
   because honest witnesses can nevertheless be mistaken. If the identity of the offender is likely to be disputed, the police will hold an identifcation procedure.
2. If a case wholly or substantially relies on identifcation evidence and the defendant disputes the identifcation evidence, the Turnbull guidelines must be followed.
3. These guidelines set out factors to determine the strength of the
   identifcation evidence. The prompt **ADVOKATE **is frequently used to recall the guidelines:

Question 3

3

visual identification evidence
Withdrawing Case from the Jury

Answer 3

1. If the judge concludes the identifcation is weak and there is no supporting evidence, they should withdraw the case from the jury and direct acquittal.
2. If the judge concludes the identifcation evidence is strong enough that a conviction would be supported, or if there is corroborating evidence to support a weak identifcation, the judge will leave the case to the jury to decide.
3. If the case proceeds to trial, the defence may seek to undermine the quality of the identifcation evidence in cross-examination of the identifcation witness by going
   through the factors set out in ADVOKATE.

Question 4

3

Turnbull Warning

Answer 4

In the summing up at the end of the trial, the judge must give the jury a Turnbull warning on the identifcation evidence.
The judge should:
1. Warn of the special need for caution before convicting the defendant in reliance on identifcation evidence, explaining that a mistaken witness can be convincing and (when there is more than one witness) that several witnesses can be mistaken;
2. Ask the jury to consider the circumstances in which the
witness identifed the defendant; and
3. Refer to particular weaknesses with the identifcation evidence, considering the factors set out in ADVOKATE.

Question 5

3

INFERENCES FROM SILENCE

Answer 5

1. At no stage of investigation or prosecution is the defendant un-der an obligation to give an account.
2. However, remaining silent at various stages of the criminal investigation and prosecution may lead to adverse inferences being drawn.
3. Such adverseinferences can weaken the defence, but a defendant cannotbe convicted on the basis of an adverse inference alone.

Question 6

2

HEARSAY EVIDENCE

Answer 6

1. Hearsay arises when evidence is produced in writing or when someone testifies in court to something someone else told them out of court. It is often described as ‘secondhand’ evidence. It is generally deemed less reliable than a witness testifying in court regarding matters of which they have firsthand knowledge.
2. other common hearsay examples include: witness statements read out in court (rather than the witness attending in person) and business documents produced in court, for example, company account records.

Question 7

4

ADMISSIBILITY OF HEARSAY

Answer 7

Hearsay is admissible only if it falls under one of the four categories of admissible hearsay evidence:
1. Admissible under statute;
2. Admissible by rule of law;
3. Admissible by agreement of all parties; or
4. Admissible in the interest of justice.

Question 8

6

Admissible Under Statute

Answer 8

1. A witness is unavailable.
   A witness is considered unavailable if they are: dead, unft owing to bodily or mental condition, outside of the UK and it is not reasonably practicable to secure their attendance, or unable to be found despite reasonably practicable steps having been taken to fnd them
2. A business document may be adduced, if:
   (1) the document was created or received in the course of trade, business, profession, or other occupation, (2) the person who supplied the information may reasonably be supposed to have had personal knowledge of the matter, and (3) (if the information was received by other persons)
   it was done in the course of trade, business, profession, or other occupation.
3. Statements were prepared for use on criminal proceedings and the relevant person cannot be expected to recollect the matter.
4. There are previous consistent or inconsistent statements of a witness.
5. Expert evidence is adduced
6. There is a confession

Question 9

Admissible by Rule of Law

Answer 9

1. Confessions or mixed statements (partly inculpatory and
   partly exculpatory) by the defendant;
2. Statements made contemporaneously to the ofence
   (for example, when a witness to an attack on V shouts
   “Break his neck like we agreed”, this may be adduced as
   hearsay evidence that D had intention to cause grievous
   bodily harm at the time of the attack); and
3. Statements preserved by res gestae (that is, the circumstances), which includes the following:
   (1) Statements made when a person is so emotionally over powered by an event that the possibility of concoction or
   distortion can be disregarded;
   (2) Statements accompanying an act which can only be properly evaluated in conjunction with the statement; and
   (3) Statements relating to a physical or mental state.

Question 10

Admissible byAgreement ofAll Parties

Answer 10

If all parties agree to hearsay evidence being admitted, it can be adduced in evidence.

Question 11

8

Admissible in the Interest of Justice

Answer 11

1. The probative value of the statement to a matter in issue;
2. What other evidence could be given;
3. How important the evidence is in relation to the case as a whole;
4. The circumstances in which the statement was made;
5. How reliable the maker of the statement appears;
6. How reliable the evidence of the making of the statement appears;
7. Whether oral evidence of the matter stated can be given;
8. The amount of difficulty in challenging the statement; and
   The extent of the likely prejudice caused.

Question 12

5

Multiple Hearsay

Answer 12

Multiple hearsay occurs when a statement has been relayed
through more than one person before it gets to court. The
rules are stricter for multiple hearsay, as it is deemed less re-
liable. Multiple hearsay is admissible only if: (1) it is a business document; (2) it is an inconsistent statement; (3) it is a consistent statement; (4) all parties agree; or (5) the value of the
evidence is so high that it is in the interests of justice.

Question 13

2

CONFESSIONS

Answer 13

1. The term ‘confession’ includes any statement wholly or partly adverse to the person who made it, whether or not made to a person in authority and whether made in words or otherwise.
2. Mixed statements, which are partly exculpatory and partly incriminating, are also confessions.

Question 14

Admissibility of Confessions

Answer 14

1. Confessions are admissible if they are relevant to a matter in issue
2. The defence can challenge the admissibility of a confession either on the basis of oppression or unreliability. (s76 PACE 1984)

Question 15

3

Oppression and Unreliability

Answer 15

1. Challenges can be made if a confession was obtained by
   oppression or by things said or done likely to render the confession unreliable.
2. The defence must show there is a causal link between the oppression or the things said or done and the confession made.
3. When the admissibility of a confession is challenged, the burden is on the prosecution to show beyond reasonable doubt **that neither oppression nor things said or done likely to render the confession unreliable apply. If the prosecution fails to discharge this burden, the confession must be excluded.

Question 16

2

Process for Deciding Admissibility of
Confessions

Answer 16

1. In the Crown Court, the admissibility of a confession is decided by the judge in absence of the jury, as it is a matter of law rather than fact. This kind of hearing is known as a voir dire.
2. In the Magistrates’ Court the bench decide matters of both fact and law. If the bench rules a confession inadmissible, as we noted previously, they must then put the confession from their mind and decide the case without it.

Question 17

4

DISCRETIONARY EXCLUSION OF EVIDENCE FOR UNFAIRNESS

Answer 17

1. A court has discretion to exclude evidence offered by the prosecution if it appears to the court, considering all the circumstances, that admission of the evidence would have an adverse effect on the fairness of the proceeding.
2. exclusion not mandatory
3. Exclusion for unfairness will often be used if police officers have breached their duties under PACE in obtaining evidence. However, usually, a court will not exercise its discretion to exclude in such circumstances unless the breaches are **significant and substantial **and have rendered the evidence unreliable.
4. Breach includes
   *Illegal searches
   *Identifcation evidence
   *Confessions
   *Covert surveillance,
   *Undercover operations

Question 18

3

CHARACTER EVIDENCE

Answer 18

1. Character evidence falls into two categories: bad character evidence and good character evidence.
2. Bad character evidence is evidence of, or of a disposition towards, misconduct, commission of offences, or other reprehensible behaviour outside of the facts of the offence for which thedefendant is charged.
3. Conversely, good character evidence is evidence of a lack of, or a lack of a disposition towards, misconduct, the commission of ofences, or other reprehensible behaviour.

Question 19

7

The Seven Gateways to Admission of
Character Evidence

Answer 19

1. All party agreement
   Admissibility of the bad character evidence is agreed between all parties.
2. Evidence adduced by the defendant
   The evidence is adduced by the defendant, or the evidence is given by the defendant in response to cross-examination.
3. Important explanatory evidence
   The evidence is needed to properly understand other
   evidence in the case, and its value to understanding the case as a whole is substantial.
4. Relevant to an important matter in issue
   The evidence is relevant to an important matter in issue,including the propensity to commit offences like the current charge and the propensity to be untruthful. This
   gateway can be used to adduce similar previous convictions and cautions or even dishonesty convictions.
5. Matter in issue between co-defendants
6. Correct false impression given by defendant
7. Defendant attacked another’s character
   If a defendant or their representative attacks another’s
   character, or questions a witness intending to elicit such evidence, the defendant’s own bad character becomes admissible.

Question 20

4

Relevant to Important Matter in Issue Between
Prosecution and Defence

Answer 20

1. This gateway has proved especially useful to prosecutors as it permits admission of bad character evidence on the basis of propensity** to commit similar types of offences or even a propensity to be untruthful. **
2. Propensity to commit similar offences is not restricted to
   the same ofences; it includes all offences of the same kind.
3. There is no minimum number of events needed to show propensity, although the more events there are, the more likely a propensity is to be made out. It is a matter of fact; the more unusual the features of the offence, the more likely it is to show propensity.
4. Bad character evidence that shows a propensity to be untruthful can also be adduced under this gateway. This has been restricted to relate to offences only if untruthfulness forms part of the ofence.

Question 21

3

Substantial Probative Value to Important Matter in Issue Between Co-Defendants

Answer 21

1. This gateway may apply where co-defendants are running a cut-throat defence, meaning they are blaming each other for the commission of the offence.
2. A defendant may seek to show that the co-defendant has a history of committing similar offences to the one charged and is, therefore, more likely to be the perpetrator.
3. It is important to note the test for admissibility is** ‘substantial probative value’** rather than ‘relevance’

Question 22

When Defendant Has Made an Attack on Another
Person’s Character

Answer 22

1. not only on trail, but in other circumstances such as charge or caution.
2. Note that an attack covers a wide variety of allegations, including suggesting that a witness is biased, raising their previous convictions, or accusing the police of misconduct.

Question 23

Procedure forAdmitting Defendant’s Bad
Character Evidence

Answer 23

1. If the prosecution wishes to adduce bad character evidence, they must provide notice in a set form and serve within 20 business days of entry of a not guilty plea in the Magistrates’ Court or 10 business days of entry of a not guilty plea in the Crown Court.
2. If the defendant wishes to oppose, the notice to oppose must also be served in a set form within 10 business days.

Question 24

Court’s Power to Exclude Defendant’s Bad Character Evidence

Answer 24

1. If any of the seven gateways are made out, the evidence is admissible.
2. If evidence is sought to be adduced under the gateways of ‘an important matter in issue between the prosecution and defence’ or ‘the defendant attacked another’s
   character’, the court must not admit it if the defence make an application to exclude it and it appears to the court that admitting the evidence would have such an adverse effect on the fairness of the proceedings that the court must not admit it.

Question 25

3

Non-Defendant’s Bad Character

Answer 25

At times, either the prosecution or the defence may want to adduce bad character evidence relating to persons other than the defendant (usually a witness).The grounds for
adducing non-defendant’s bad character are restricted to 3 grounds.
*All parties to the proceedings agree to the evidence being admissible
*It is important explanatory evidence, or
*It has substantial, probative value in relation to a matter which is a matter in issue in the proceedings and is of substantial importance in the context of the case as a whole.

Question 26

4

Good Character Direction

Answer 26

Good Character Direction
1. If the defendant has no previous convictions, they are entitled to have the judge give a good character direction to the jury.
2. A good character direction consists of two parts:
the propensity direction and the credibility direction.
3. The propensity direction is that a person of good character is less likely to have committed this offence.
4. The credibility direction is that a person of good character is more likely to be credible when they assert their innocence either before or during trial.

Question 27

3

Entitlement to Good Character Direction

Answer 27

1. If the defendant has previous convictions that are old, minor, and not related to the current charge, the defendant will be considered of effective good character and may still receive a propensity and credibility direction.
2. If the defendant has no previous convictions but there is other bad character evidence upon which the prosecution** relies**, a good character direction will probably not be available.
3. If the defendant has no previous convictions but there is bad character evidence which the prosecution does not seek to rely on, the judge has a discretion to give a good character direction.