UNIT 3 - Principles and Procedures to Admit and Exclude Evidence. Flashcards
A boy, aged 14, has been charged with robbery. The boy does not suffer from any recognised medical condition but his mental age has been assessed as that of a 9-year-old and he is distressed at the prospect of having to testify at trial.
If the boy does not testify, will it be appropriate for an adverse inference to be drawn from his silence at trial?
A) Yes, because an adverse inference will always be drawn if a defendant refuses to testify at trial.
B) Yes, because distress about testifying is not in itself a sufficient reason and will not by itself prevent the drawing of an adverse inference.
C) No, because an adverse inference cannot be drawn against a juvenile with a mental age of a 9-year-old.
D) No, because it appears that the mental condition of the boy makes it undesirable for him to give evidence.
E) Yes, because the court will require the boy to testify to put forward his defence if he is to be acquitted.
CORRECT ANSWER B - because distress about testifying will not be sufficient to engage s 35(1)(b). This exception provides a statutory exception to the drawing of such an adverse inference where ‘it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence’.
So Option A is wrong because an adverse inference will not always be drawn where an accused does not testify – option C is wrong because the mental age alone would not be
a sufficient reason (see R v Friend (1997)). Although option D does correctly state the above statutory exception, on these facts, the boy does not appear to have a medical condition that would make it undesirable for him to testify (contrast that with R v Friend (No 2) (2004) where evidence then came to light that the defendant also suffered from ADHD, which was found to be such a medical condition). Option E is wrong because a defendant has a right to remain silent at trial and cannot be convicted on his silence alone. Moreover, the boy does not necessarily need to testify in order to be acquitted.
A man has been arrested on suspicion of burglary, it being alleged that he stole some computer equipment from premises he broke into. When interviewed, the man confesses
to the offence and also tells the police where the stolen items can be found. These are recovered by the police and the man’s fingerprints are found on them. The interview was however, conducted unlawfully and the defence will argue at trial that the confession ought to be excluded on the basis that it was obtained in circumstances rendering it unreliable.
Assuming the man’s confession is excluded at trial, which of the following best describes whether the prosecution will be allowed to adduce evidence of the finding of the stolen items?
A) The finding of the items is still relevant and admissible as the exclusion of the confession will not affect the admissibility of this evidence.
B) The finding of these items will still be admissible because the confession was not excluded as a result of oppression.
C) Any evidence resulting from an inadmissible confession will not be admitted at trial.
D) It will always be more prejudicial than probative to allow such evidence to be admitted.
E) The finding of the items will be admissible unless it would have such an adverse effect on the fairness of the proceedings that the court ought not admit it.
CORRECT ANSWER A - best describes the operation of s 76(4) PACE 1984 about the admissibility of relevant facts discovered as a result of an inadmissible confession. Not only is the finding of the stolen items relevant, but more importantly, the man’s fingerprints found on the stolen items link him to the burglary.
Option B is wrong because s 76(4) operates regardless of whether the confession is excluded under s 76(2)(a) or (b). Option C is also wrong. Although such evidence coming from an inadmissible confession may not be admitted, this will by no means always be the case. Option D is wrong because although evidence will generally be excluded under the court’s common law power (more prejudicial than probative) it will not ‘always’ be the case. Option E is not the best description because this only sets out the test under s 78 PACE, which is not the only test to apply when determining the admissibility of evidence.
A man has been charged with murder. A key prosecution witness has subsequently died, and the prosecution want to adduce her witness statement in the absence of the deceased witness.
What will the prosecution need to establish for the witness statement to be admitted?
A) That she had first-hand knowledge of the matters contained in her witness statement and all reasonable steps have been taken to secure her attendance.
B) That she had first- or second-hand knowledge of the matter contained in her witness statement and she is identified to the court’s satisfaction.
C) That she has died and so it is not reasonably practicable to secure her attendance and she is identified to the court’s satisfaction.
D) That she had first-hand knowledge of the matters contained in her witness statement and is identified to the court’s satisfaction.
E) That she has died, and she had first-hand knowledge of the matters contained in her witness statement and is identified to the court’s satisfaction.
CORRECT ANSWER E - it identifies the three key requirements needed to adduce such hearsay evidence. Namely, that the witness had first-hand knowledge of the matters contained in her witness statement, she is identified to the court’s satisfaction and the relevant prescribed reason under s 116(2) is satisfied. Here (a), that the relevant person is dead.
Option A is wrong because it only refers to one of these requirements and then goes on to mention part of another prescribed reason under s 116(2)(d). Option B is wrong because
s 116 only allows first-hand hearsay to be admitted. Option C is wrong because although it does refer to two of the above requirements, it also refers to part of another prescribed reason under s 116(2)(c). Option D is not the best answer because it fails to mention the relevant prescribed reason, namely that the witness is dead.
Sue, who is 22 years old, has been arrested on suspicion of theft. It is alleged that she stole goods from a supermarket. She was arrested outside the supermarket having been seen on CCTV to put items into her handbag without paying for them. Following Sue’s arrest the items were recovered from her handbag.
Sue admits that she did dishonestly take the items in question and planned to give them to her grandmother. In light of this, and the strength of the evidence against her, you advise her that her best and safest option in interview is to answer the questions and tell the truth.
Which ONE of the following reasons explains why you have advised Sue to do this?
A) Sue is advised to answer the questions and tell the truth to prevent any adverse inferences being drawn under s34 Criminal Justice & Public Order Act 1994.
B) The advice is given because, on the facts disclosed so far, Sue will have the burden of proving she did not intend to steal the items.
C) Sue will be advised to answer the police’s questions to prevent any adverse inferences being drawn under s.36 Criminal Justice & Public Order Act 1994 as she was found in possession of the stolen items.
D) Sue should tell the truth to avoid an adverse inference being drawn under s.37 Criminal Justice & Public Order Act 1994 if she is given a special caution before being asked to account for her presence at the scene at the time of the offence.
E) Sue should answer questions and tell the truth as it will be good mitigation to show her co-operation with the police.
CORRECT ANSWER E - Although it is not for her to prove that she lacked mens rea but instead for the prosecution to prove each element of the offence, on the facts Sue has no defence and therefore the question of adverse inferences will not be relevant. Her co-operation with the police will be good mitigation when she is sentenced.
You are representing a woman who is charged with an offence of assault occasioning actual bodily harm after allegedly assaulting a man in a bar.
At the interview in the police station, the client exercised her right to silence.
Before her first appearance at the magistrates’ court, you take the client’s instructions with a view to advising her as to her plea. Your analysis of the prosecution case suggests that it is a relatively weak case. The woman says the man had been staring menacingly at her friend and that, after a few drinks, this was behaviour to which the client had taken exception. She admits to you that she punched the man in the stomach but says she wants to plead not guilty because she does not think the court will believe the man as he has “lied before and will lie again”.
Which of the following best describes how you should respond both now and before any subsequent trial takes place?
A) You should persuade the client to plead guilty and, if she refuses, you must cease to act.
B) You can advise the client that she can plead not guilty and force the prosecution to prove its case at trial but that you cannot allow her to testify in her own defence.
C) You must advise the client that you will need her to give evidence in her defence to disprove the prosecution’s allegations.
D) You must disclose the client’s admission to the court because neglecting to do so would breach your duty not to mislead the court.
E) You should advise the client that she must plead guilty to avoid an adverse inference being drawn.
CORRECT ANSWER B - It is possible for her to plead not guilty and put the prosecution to proof of its case so A is wrong. However, if the prosecution discharges its evidential burden and establishes a case to answer, you cannot continue to act if your client wishes to assert a positive defence that you know to be untrue so C is wrong. Your client cannot give evidence that you know to be untrue. At that point you would have to cease to act, as otherwise you would be in breach of your duty not to mislead the court. However, you would not disclose the reasons for your withdrawal as this would breach the duty of confidentiality you owe to the client (both during and after your representation of her), so D is wrong. E is wrong because if your client pleads not guilty you cannot represent her if she wants to raise matters in her defence that she did not disclose in interview, so the ‘adverse inferences’ reasoning is not relevant
TRUE OR FALSE:
A defendant who seeks to rely on a defence of self-defence must adduce evidence to prove the defence on a balance of probabilities
FALSE - A defendant who wishes to rely on self-defence must adduce some evidence of the defence, for example, by testifying (this is referred to as the defendant’s evidential burden). However, once the defence is raised, it is for the prosecution to then discharge its legal burden of disproving the defence beyond all reasonable doubt (as well as proving all elements of the actus reus and mens rea of the offence).
A man is charged with an offence of wounding. He pleads not guilty and chooses to conduct his own case at trial. His defence statement indicates that he relies on the defence of self-defence. At the beginning of the trial, the man tells the judge that he does not intend to give evidence in his own defence.
Which TWO of the following statements are correct?
A) The man must give evidence in his own defence as he has pleaded not guilty.
B) The judge will direct the jury that they must draw an adverse inference as the man has not given evidence at his trial.
C) The man cannot be convicted if the only evidence against him is an adverse inference from his failure to give evidence at his trial.
D) The man can call other witnesses to prove he acted in self-defence then make a submission of no case to answer.
E) The jury may draw an adverse inference from the man not testifying at trial that his defence is too weak to stand up to cross-examination by the prosecution.
CORRECT ANSWERS C & E - Statement A is wrong as a defendant is not obliged to give evidence on his own behalf at trial.
Statement B is wrong as the jury may draw an adverse inference but do not have to do so.
Statement D is wrong for two reasons; firstly, the man does not have to prove his defence (it is for the prosecution to disprove) and secondly, a submission of no case to answer would be made at the end of the prosecution case, before any defence witnesses testify
Fitzy is arrested on suspicion of fraud. Before interview his solicitor prepares a written statement setting out all the facts that Fitzy will rely on at trial if he is charged. Fitzy is then interviewed under caution and he refuses to answer any questions at the police station on the advice of his solicitor. The prepared written statement is not read out or handed to the police but kept on the solicitor’s file. Fitzy is charged with an offence of fraud and pleads not guilty.
Which FOUR of the following statements are correct?
A) The existence of the written statement may prevent the court at trial from drawing an inference of recent fabrication because it contains all the facts relied on at trial.
B) The court may draw an inference that Fitzy was not sufficiently confident about his defence to expose it to investigation by the police.
C) The court cannot draw an adverse inference from Fitzy’s silence as he was acting on legal advice.
D) The jury should not draw an adverse inference from Fitzy’s silence at interview if it is satisfied that he was genuinely and reasonably relying on the legal advice given.
E) Fitzy will waive legal privilege if he gives evidence at his trial about the reasons why his solicitor advised him to remain silent.
CORRECT ANSWERS A,B,D&E - All the statements are correct with the exception of statement C which is wrong. It is important to note that the statement was not read out or handed to the police. It is for this reason that an adverse inference may be drawn as set out in statement B, despite it containing all the facts on which Fitzy relies on at trial. C is wrong because a defendant who states that the only reason for silence at interview was because of legal advice will not automatically prevent the court from drawing an adverse inference if they later raise in their defence a fact that they did not mention at the police station. Instead, consideration should be given to whether reliance on that legal advice was both genuine and reasonable.
TRUE OR FALSE:
If a suspect remains silent during a police interview and is then charged, no adverse inference can be drawn at trial if it appears to the court that the physical or mental condition of the accused made it undesirable for him to answer questions during the police interview.
FALSE - whilst there is a limited statutory exception to the drawing of adverse inferences from silence at trial (s35(1)(b) CJPOAct 1994) where it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence, there is no equivalent provision relating to silence during police interview.
[It is always at the trial judge’s discretion whether or not to invite the jury to draw an adverse inference and this could be a good reason to not invite the jury to draw an adverse inference –see R v Argent but there is no equivalent statutory bar on drawing an inference in these circumstances.]
The police organise an identification parade after a boy is attacked as he walked home. There are two witnesses who are invited to wait in the same room whilst the parade is organised. One of the witnesses positively identifies the suspect at the parade. The suspect is subsequently charged with an offence of assault occasioning grievous bodily harm. The suspect claims that the identification witness is mistaken and says he was not the attacker.
Which THREE of the following statements are correct?
A) The police have breached the requirement that the witnesses attending the parade are segregated from each other before (and after) the parade.
B) The positive identification of the suspect at the parade cannot be used as evidence in the prosecution case at trial because the police failed to follow the appropriate procedures.
C) The defence should argue that the court should use its discretion to rule that the identification evidence is inadmissible.
D) If the identification evidence is used by the prosecution at trial, the defence should seek to undermine the quality of the original sighting by cross-examining the witness who identified the suspect at the police station.
E) If the judge decides that the identification evidence is of poor quality, the judge will tell the jury that they must find the defendant not guilty of the offence.
CORRECT ANSWER A, C & E - Statement B is wrong because the evidence is not automatically inadmissible because Code D has been breached it is for the defence to argue that the judge should exercise their discretion under s.78 PACE 1984. Statement E is wrong because, under the Turnbull Guidelines, it is only if the disputed visual identification is both poor and unsupported, that the judge must direct an acquittal, at the end of the prosecution case.
Mark is on trial for an offence of common assault. The allegation is that he attacked Sally, late at night when no-one else was about.
Which ONE of the following statements best describes the circumstances in which the Turnbull Guidelines will apply?
A) Mark claims Sally is mistaken as he was not present at the time the offence was committed.
B) Sally picked out Mark informally and says he was the person who attacked her.
C) Sally identified Mark at a formal identification procedure. Mark admits being present at the scene of the offence but denies any involvement.
D) Sally says she recognised Mark as she used to be in college with him. Mark admits being involved in the incident but says he was acting in self-defence as Sally attacked him.
E) Sally gave a description of her attacker to the police but did not pick out Mark when a video identification procedure was arranged.
CORRECT ANSWER A - Turnbull Guidelines apply where a prosecution witness (Sally) visually identifies the defendant as the person who committed the crime, and the defendant (Mark) disputes that identification, in this case by denying that he was the person at the scene of the offence.
Whilst the visual identification can occur in any of the ways identified in statements B, C and D, statement B is not the best description because it does not state whether Mark disputes the visual identification. Statement C is not the best description: although the Turnbull Guidelines can apply where the defendant admits his presence but denies involvement, they will only do so if there is the possibility of mistaken identity, for example if another person or people were present who resemble the defendant. The facts are that no-one else was present so the Guidelines will not apply.
The guidelines will also not apply where the defendant admits his presence and involvement but offers an explanation for their conduct, such as self-defence so statement D is not the best description.
Finally, statement E is not the best description as there is no direct visual identification evidence that the attacker was Mark: the Turnbull Guidelines do not apply where a witness only gives a description to the court of the person who committed the crime.
Where disputed identification evidence is admissible in evidence, which THREE of the following statements are correct?
A) In the Crown Court the trial judge is solely responsible for deciding the quality of disputed identification evidence.
B) When assessing the quality of disputed identification evidence, the court must look at the circumstances of the formal identification of the defendant by a witness at the police station.
C) The court will assess the strength of the disputed identification evidence by looking at the circumstances of the sighting of the person who committed the offence made by the eye-witness at the time the offence was committed.
D) In assessing the quality of the disputed identification evidence, the court will take into account a range of factors including the length of the observation and the weather and lighting conditions at the time the witness claims to have seen the suspect committing the offence.
E) One of the factors the court will consider in assessing the quality of the identification evidence is the extent to which the original description given by the witness to the police matches the actual physical appearance of the defendant.
CORRECT ANSWERS C, D & E - Statement A is wrong because, although the judge will make an initial assessment of the quality of the disputed visual identification evidence, if the judge decides that it is of good quality, or poor but supported, it will be the jury who assess the quality of the disputed visual identification evidence (along with any other evidence) in reaching their verdict.
Statement B is also wrong : the court will look at the circumstances of the original sighting , as identified in statement C, rather than the circumstances of the formal identification of the defendant by a witness at the police station
TRUE OR FALSE:
The trial judge does not need to give a Turnbull warning to the jury if the disputed identification evidence is of good quality
FALSE - The trial judge must give a Turnbull warning to the jury if the judge decides that the quality of the disputed identification is good or that it is poor but supported by other evidence. When the judge sums up the case to the jury before they retire to consider their verdict the judge will point out to them the dangers of relying on identification evidence, and the special need for caution when such evidence is relied on. 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 the factors listed above when considering the quality of the identification evidence.
The police interview a man after he was arrested on suspicion of murder. The man was
arrested across the road from a bus stop where a woman was stabbed and killed five
minutes before the man’s arrest.
An eye-witness shouted to the police that the man was the person who stabbed the woman
after she had refused to share her fizzy orange drink with the man. On arrest the man said
he had not been near the bus stop where the woman was stabbed and that he had never
met or seen the eye-witness before the witness had shouted out to the police. When he was
arrested, the man was wearing a white shirt and blue jeans. The shirt and jeans both had
splashes of orange liquid on them (later identified as a fizzy orange drink).
During interview under caution and after all the appropriate special warnings were given, the
police asked the man to explain why he was across the road from the bus stop and why he
had splashes of orange liquid on his clothes. The man refused to answer any questions and
was charged with the offence of murder after the interview. No formal identification
procedure was organised before the man was charged.
Which of the following statements is INCORRECT?
A. At the man’s trial, an adverse inference will be drawn from his refusal to answer any of
the questions raised at interview.
B. At trial, an adverse inference may be drawn from the man’s failure to account for his
presence across the road to the scene of the crime when asked to do so.
C. Irrespective of whether the man testifies at his trial, an adverse inference may be
drawn from the man’s failure to account for the orange marks on his clothes when
asked to do so.
D. It is unlikely that the defence can successfully argue that prosecution evidence of the
police interview should be excluded from the trial.
E. The man’s legal representatives are likely to challenge the admissibility of the disputed
evidence of the eye-witness.
CORRECT ANSWER A - Statement A is wrong. An adverse inference is never mandatory. In addition, we do
not know what, if anything, the man will raise in his defence at trial other than what
he explained to the police at the time of his arrest. An adverse inference under s.34
CJ&POA 1994 can only be drawn if the man relies in his defence on matters which
he did not mention when questioned and even then, only if it was reasonable to
expect him to do so.
Statement B is correct as an adverse inference may be drawn (under s.37 CJ&POA
1994) as we are told that a special warning was given in interview after the suspect
was found at a place (here near to the scene of the crime) at or about the time of the
offence, and is asked to account for that presence and does not do so. Therefore,
irrespective of whether he gives evidence at trial, the prosecution can invite the jury
to draw an adverse inference from the man’s failure to give the account requested.
As with s.34, the drawing of an adverse inference is not mandatory.
Similarly, statement C is correct. Irrespective of whether the man testifies at his trial,
an adverse inference may be drawn (under s.36 CJ&POA 1994) from the man’s
failure to account for the orange marks on his clothes when asked to do so. Again, it
is relevant that the appropriate special warning was administered and, again, the
adverse inference is not mandatory.
Statement D is correct. There seems to be no basis upon which the defence could
successfully challenge the admissibility of the evidence of the no comment interview,
for example. there is no suggestion of a breach of Code C.
Statement E is also correct as there may be an argument to challenge the
admissibility of the disputed evidence of the eye-witness under s.78 PACE 1984.
The police did not hold an identification procedure when such a procedure should
have been held under Code D. None of the reasons for not holding an identification
procedure (under Code D para 3.12) apply:
there is nothing to suggest it would not have been practicable to hold an
identification procedure;
the suspect does not admit to being at the scene and has not given an
account about what happened that the eye-witness does not contradict;
this was not a case where there is no dispute that the suspect is already
known to the witness.
An identification procedure should therefore have been arranged before the man
was charged.
A woman is on trial for an offence of assault occasioning actual bodily harm. The
prosecution allege that she kicked the victim, causing extensive bruising. The
woman has pleaded not guilty and will be tried at the magistrates’ court. She plans to
give evidence in her own defence that this is a case of mistaken identity and that she
was elsewhere at the time of the incident. The prosecution will call evidence from the
victim and the investigating officer who interviewed the woman at the police station.
They will also adduce some forensic evidence linking the woman to the assault.
Which one of the statements below best describes the relevance of the
Turnbull Guidelines to the woman’s trial?
A. Although the matter involves a disputed visual identification, the Turnbull
Guidelines are not relevant as the trial is proceeding in the magistrates’ court
so a Turnbull warning cannot be given.
B. The case involves a visual identification which is disputed so the magistrates
will assess the quality of the original sighting and must acquit the woman as
there is no supporting evidence.
C. The quality of the disputed visual identification evidence will be considered by
the magistrates who must convict the woman if they decide the identification
evidence is of good quality.
D. If the magistrates conclude that the quality of the identification evidence is
poor, the Turnbull Guidelines will play no further part in their consideration of
whether the prosecution has discharged its burden of proof.
E. If the magistrates decide the identification evidence is of good quality, they must still remind themselves of the special need for caution and that mistakes in identification can be made easily and honestly.
CORRECT ANSWER E - The Turnbull Guidelines are relevant in the magistrates’ court as well as the
Crown Court. The court will be reminded of the need to assess the quality of the
disputed identification evidence by the defence advocate. If the magistrates decide
that the identification is poor and there is no supporting evidence, they must dismiss
the case. In this scenario, there appears to be supporting prosecution evidence as
we are told the prosecution will also be relying on forensic evidence that links the
woman to the assault. This would provide the required supporting evidence to enable
the case to proceed if the magistrates decided that the disputed identification
evidence is of poor quality. Therefore, statement B is wrong.
Statement C is wrong because a determination that the disputed identification
evidence is of good quality does not mean the court must convict. The court still
needs to give itself a Turnbull warning and it still needs to be satisfied that the
prosecution has proved every element of the offence beyond a reasonable doubt.
Statement D is wrong as, if they decide the disputed identification evidence is poor,
they still need to follow the Turnbull Guidelines. Firstly, the court must decide if there
is any supporting evidence and secondly, if there is such supporting evidence, the
court must consider the dangers of relying on identification evidence and the special
need for caution when considering such evidence (as highlighted in statement E).
