Unit 3 – Admission / Excluding Evidence

Question 1

What are the 2 rules of evidence?

Answer 1

1) Evidence must be relevant to the facts in issue in the case ; and

2) Evidence must be admissible – This means the rules which comprise the law of evidence must allow the evidence to be used in a criminal trial.

Question 2

Who bears the legal burden in criminal cases?

Answer 2

Prosecution.

Question 3

What is the standard of proof?

Answer 3

Beyond reasonable doubt (that D is guilty).

Question 4

What is the exception that the prosecution has the legal burden?

Answer 4

1) In the case that D pleads not guilty & raises defence of insanity or duress.

– This passes the legal burden to the defendant, and they’re required to prove their defence.

– When D has the legal burden, they must prove it on the balance or probabilities.

Question 5

When D raises a specific defence, what happens to the burden and standard of proof?

Answer 5

Specific defence = providing an alibi / self-defence

– D only has the evidential burden to raise it, not the legal burden of proving it (i.e., they must provide merely SOME evidence of it).

– The legal burden remains with the prosecution on the standard of beyond reasonable doubt.

Question 6

Who bears the evidential burden?

Answer 6

The prosecution.

Question 7

When can D’s solicitor make a submission of no case to answer (i.e., ask court to dismiss the case)?

Answer 7

When prosecution has failed to discharge their evidential burden:

– At the conclusion of their first case, the prosecution must have 1) presented sufficient evidence to the court to justify a finding of guilt and 2) to show that the defendant has a case to answer (before D has adduced any evidence).

– If they fail to do so, D’s solicitor will be entitled to make a submission of no case to answer and can ask the court to dismiss the case. Called “failure to discharge evidential burden”

Question 8

Does the defence have a general evidential burden?

Answer 8

No. General rule = D is not obliged to place any evidence before the court to show they’re innocent.

Question 9

What is the exception to D not having the evdiential burden?

Answer 9

– Where D raises a specific defence must place some evidence of this defence before the court, if they want the magistrates or jury to consider the defence when deciding the verdict.

– CPS as part of its legal burden then has to prove beyond reasonable doubt that the defence is not true.

Question 10

What is S 78 PACE 1984?

Answer 10

Court has 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’.

Question 11

How should D’s solicitor challenege evidence under S 78?

Answer 11

• D’s solicitor should ask the court to exercise its discretion under s 78 PACE 1984.

Question 12

When do Turnbull guidelines apply?

Answer 12

If the defendant disputes the visual identification made by the witness.

Question 13

What are Turnbull guidelines?

Answer 13

– Special guidelines which apply when a witness who gives evidence for the CPS visually identifies the defendant as the person who committed the crime, and the defendant DISPUTES that identification.

Question 14

What is the definition of a Turnbull witness?

Answer 14

A witness will identify the defendant as the person who committed the offence if:

(a) The witness picks out the defendant informally; or

(b) The witness identifies the defendant at a formal identification procedure at the police station; or

(c) The witness claims to recognise the defendant as someone previously known to them.

Question 15

Who assesses the quality if identification evidence?

Answer 15

Trial judge.

Question 16

To assess the quality of the evidence, what will the trial judge consider?

Answer 16

(a) Length of observation – i.e., did witness see person for a lengthy period of time, or did they just get a fleeting glimpse?

(b) Distance – was the witness close to this person or far away?

(c) Lighting – did observation happen in daylight or at night? If night, was there any street lighting? Building well lit or dark?

(d) Conditions – i.e., if outside, was it foggy? How many other people were present, did they obstruct witness’s view?

(e) How much of the suspect’s face did the witness actually see?

(f) Whether the person identified was someone who was already known to the witness (recognition case) or someone they’ve never seen before.

(g) How closely does the original description given by the witness to the police match the actual physical appearance of D? any discrepancies?

Question 17

Identification is good quality judge will point out to the jury ….

Answer 17

Turnbull guidelines / warning:

1. Dangers of relying on identification evidence.
2. Special need for caution when this evidence is relied on.
3. Tell the jury that it is easy for an honest witness to be mistaken as to identity.
4. Turnbull warning – Directs jury to examine closely the circumstances of the original sighting and to consider the factors above when determining the quality of the identification evidence.

Question 18

Identification is poor but is supported by other evidence, judge will …

Answer 18

– Give a Turnbull warning to the jury

– Direct the jury to the supporting evidence which suggests the witness is reliable.

Question 19

Identification is poor and unsupported by evidence ..

Answer 19

– Judge should stop the trial at the end of the prosecution case & direct the jury to acquit D.

– In the magistrates, solicitor should make a submission of no case to answer at the end of the prosecution case.

Question 20

S 34, 35, 36, 37 and 38 Criminal Justice ad Public Order Act 1994 are …

Answer 20

Inferences from silence.

Question 21

Can D’s silence when interviewed by police prove guilt on its own?

Answer 21

No.

Question 22

Inferences under s 34 CJPOA 1994

Answer 22

Conditions for the drawing of an adverse inference under S 34:

(a) The interview had to be an interview under caution;

(b) The defendant had to fail to mention any fact later relied on in his defence at trial;

(c) The failure to mention this fact had to occur before D was charged;

(d) The questioning of the defendant at the interview in which the defendant failed to mention the fact had to be directed to trying to discover whether or by whom the alleged offence had been committed;

(e) The fact which the defendant failed to mention had to be a fact which, in the circumstances existing at the time, the defendant could reasonably have been expected to mention when questioned.

Question 23

Where D prepares a written statement and does not hand it in….

Answer 23

– Where the defence solicitor preps a written statement for their client and does not hand it in, it will prevent the court from drawing an inference of recent fabrication – it does not prevent the court from drawing an inferences that the defendant was not sufficiently confident about their defence to expose this to investigation by the police following the interview.

Question 24

Where the defendant relies on solicitors’ advice to remain silent, does this prevent the court from drawing an adverse inference?

Answer 24

No. It should merely be given “appropriate weight”.

– If the defendant genuinely and reasonably relied on the legal advice to remain silent, adverse inference should only be drawn under S 35.

Question 24

When does a defendant waive privilege?

Answer 24

• Where a defendant gives evidence that they remained silent in interview following advice from their solicitor will not waive privilege.
• D waives privilege ONLY when he provides the reasons for the solicitors’’ advicei.e., reasons for solicitors’ advice), legal privilege is then waived.
• I.e., where D gives the reasons for the legal advice to remain silent, they and their solicitor can be cross examined on this. Prosecution will also be able to cross-examine the defendant on the instructions D gave to their solicitor.

Question 25

Where D was denied access to legal advice, can an adverse inference be drawn from their silence?

Answer 25

NO.

Question 26

Adverse inference under S 36 …

Answer 26

Allows court / jury to draw an adverse inference if, when interviewed by the police, the defendant failed to account for the presence of an object, substance or mark.

S 36 = merely arises from D’s failure to account for an object / substance / mark at the time of interview.

– operates irrespective of any defence put forward by D.

Question 27

What must be given at the time of the interview for S 36 to apply?

Answer 27

Special Caution:

(a) What the offence under investigation is

(b) What fact the suspect is being asked to account for;

(c) That the officer believes this fact may be due to the suspect taking part in the commission of the offence in question;

(d) That a court may draw an adverse inference from failure to comply with the request; and

(e) That a record is being made of the interview and that it may be given in evidence if the suspect is brought to trial.

Question 28

Inference under S 37 …

Answer 28

S 37 = allows the court to draw an adverse inference if, when questioned at the police station, D failed to account for his presence at a particular place at or about the time the offence was committed.

– S 37 arises irrespective of any defence put forward. Arises due to D’s failure to account for their presence at a particular place at the time of the offence at the interview.

Question 29

What must be given at the time of the interview for S 37 to apply?

Answer 29

Special caution. (Same as for S 36).

Question 30

S 35 Adverse inference …

Answer 30

S 35 = If the prosecution has raised issues which call for an explanation from D, should D then fail to give evidence, the court will be entitled to infer from that failure that the defendant has either no explanation, or no explanation that will stand up to cross-examination.

Question 31

What must the court take into consideration when deciding whether to apply S 35?

Answer 31

(a) Burden of proof remains on prosecution throughout.

(b) Defendant is entitled to remain silent.

(c) Before drawing an adverse inference from D’s silence, the court had to be satisfied that there was a case to answer on the prosecution evidence;

(d) An adverse inference from D’s failure to give evidence cannot on its own prove guilt; and

(e) No adverse inference could be drawn unless the only sensible explanation for D’s silence was that he had no answer to the case against him, or none that could have stood up to cross-examination.

Question 32

What is the statutory exception under s 35?

Answer 32

– The court has a discretion to direct that an adverse inference is not drawn where it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence (includes ADHD), but not distress/worry. Must be clinically distinguishable conditions).

Question 33

For any of the adverse inferences, will D be convicted of an offence if it is the only evidence against him?

Answer 33

NO.

Question 34

What is S 78 PACE?

Answer 34

S 78 PACE = Any evidence may be excluded if the court think that the “Admission of the evidence would have such an adverse effect on the fairness of the proceedings that they ought not to admit it”.

Question 35

When are the courts likely to use S 78 PACE?

Answer 35

• Court only likely to exercise this discretion to exclude prosecution evidence under s 78 if there is something unreliable about the evidence.
• Only will be excluded where breaches of PACE are “significant and substantial” or something in the way it was obtained makes it unreliable.

Question 36

Examples of factors which are “significant and substantial” under S 78 PACE.

Answer 36

(a) Evidence obtained following an illegal search.
(b) Identification evidence.
(c) Confession evidence.
(d) Evidence obtained from the use of covert listening and surveillance devices and
(e) Evidence obtained in ‘undercover’ police operations.

Question 37

What are some key ways of breaching PACE requirements when conducting visual identification procedure?

Answer 37

(a) Code D, Annex A, para 2 = 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) Code D, Annex B, para 14 = At an identification parade, police may breach the requirement that the witnesses attending the parade are segregated both from each other and from the suspect before and after the parade.

(c) Code D, para 3.12 = 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.

Question 38

How should witness identification procedures be carried out according to Code D PACE?

Answer 38

The video identification parade procedure:

– The witness will watch a set of video images (at least twice) including the suspect and 8 other comparators who, so far as possible, must resemble the suspect (in age, height, general appearance and position in life).

– They must all be in identical conditions and performing similar movements.

– Steps must be taken to conceal or replicate any distinguishing features of the suspect (such as marks, distinctive injuries or acne).

Question 39

What is hearsay?

Answer 39

Evidence used to prove something at trial from a witness who is not in court to give that evidence himself.

Question 40

What is Res Gestate?

Answer 40

Res gestae’ evidence a spontaneous statement made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded.

For example, this can be a transcript of a 999 call or where a person running from a shop immediately after a stabbing has taken place and shouting to a passer-by, ‘Don’t go in there, John’s just stabbed someone.’ If the person running from the shop is unavailable to give evidence, then a witness who overheard this could give evidence to prove that a person called John had stabbed someone.