W4 Principles and Procedures to Admit and Exclude Evidence

Question 1

Who owes the legal burden in the beginning of criminal cases?

Answer 1

Prosecution. What is the standard of proof? To prove beyond reasonable doubt that D is guilty.

Question 2

What is a common type of evidence given by a witness?

Answer 2

Visual identification. But eyewitnesses are notoriously unreliable. Courts will assess the quality of the evidence.

Question 3

Courts are given the discretion (s 78 PACE) to exclude what type of evidence (think about how it was procured that might be wrong)?

Answer 3

If prosecution want to rely on evidence that 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’. Any evidence that has been procured via unfair ways. Code D.

For example (CODE D):
(1) for a video identification procedure: if police do not ensure that the other images shown to witnesses do not resemble the suspect in age, general appearance and position in life - this would be a breach of Code D by police.

(2) for an identification parade: if police do not segegrate the witnesses and the suspect but instead keep them in the same room - this is agai obstructing faireness and contaminating witness evidence - this would be a breach of Code D by police.

(3) for detainment: if the police fails to hold an identification procedure at the time that procedure should have been carried out for D… this would be a breach of Code D by police.

(4) Evidence of confession can also excluded by courts if courts think that it would have an adverse effect on the fairness of proceedings that it should not be admitted. Used when the confessor admits to confession but claims its untrue and when confession is purely denied.

D’s solicitor can raise the defence of admissibility of evidence.

Question 4

If D’s solicitor thinks there has been some major breaches of Code D evidence issues caused by police and their procedures being followed incorrectly - what can D’s solicitor do?

Answer 4

D’s solicitor can raise the defence of admissibility of evidence.

Question 5

If court fails to use their s 78 PACE discretion about excluding bad evidence produced by prosecution/ police etc, what can D’s solicitor do?

Answer 5

They can attempt to cross-examine the witnesses and undermine the quality of evidence that way. Turnbull guidelines apply.

Question 6

What happens if D deny’s a witness saying they saw D do X or be in X location?

Answer 6

Turnbull guidelines apply when D disputes witness identification. Even if D admits that he was in the area at the time but disputes that he was the one the witness saw doing X, Turnbull guidelines apply.

Question 7

What are the Turnbull guidelines?

Answer 7

These examine the quality of witness identification evidence:

(a) The length of the observation – did the witness see this 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 were they some distance away?

(c) Lighting – did the observation happen in daylight or at night? If at night, was there any
street lighting? If the observation occurred inside a building, was the building well-lit or was it dark?

(d) Conditions – if the sighting was outside, what were the weather conditions at the time?
Was it a clear day, or was it raining or foggy? How many other people were present at the time and did they obstruct the witness’s view? Did anything else obstruct the view? If the sighting was in a building such as a pub, did any part of the building (such as a pillar) obstruct the view?

(e) How much of the suspect’s face did the witness actually see – did the witness see all of
the suspect’s face, or merely part of it? Can the witness give a clear description of the suspect’s face, or is the description vague and lacking detail?

(f) Whether the person identified was someone who was already known to the witness (a
recognition case), or someone the witness had never seen before.

(g) How closely does the original description given by the witness to the police match the
actual physical appearance of the defendant? Are there any discrepancies in height,
build, hair colour/length or age?

Question 8

What happens when the identification is good quality?

Answer 8

Judge will issue a Turnbull warning:
(1) the dangers of relying on identification evidence and the need for caution

(2) will tell jury that it is easy for an honest witness to be mistaken on identity

(3) will direct jury to examine evidence and apply turnbull guidelines

Question 9

What happens when the identification is poor but supported (meaning some other evidence which suggests that the identification is reliable)?

Answer 9

Turnbull warning will again be given (same as when identification is good).

Judge will also point out:
(1) the weaknesses in the idenfication evidence given.

Question 10

What are examples of supporting evidence?

Answer 10

(a) a confession made by the defendant;
(b) other evidence placing the defendant at the scene of the offence (such as fingerprints or
DNA evidence);
(c) in a theft case, stolen property being found in the defendant’s possession;
(d) adverse inferences being drawn from the defendant’s silence when questioned at the
police station (see later in this chapter)

Question 11

What happens when the identification is poor and unsupported?

Answer 11

Not cute.

The judge should stop the trial at the end of
the prosecution case and direct the jury to acquit the defendant.

D’s solicitor/ advocate will submit a no case to answer.

Question 12

What is a hearsay statement? 114(1) of the CJA 2003 - it is generally not admissible in court.

Answer 12

‘a statement, not made in oral
evidence, that is relied on as evidence of a matter in it’.

Basically, out of court statements made by someone.

Question 13

What form does hearsay statement have to be? 114(2) of the CJA 2003

Answer 13

A statement is any representation (made in whatever means, including diaries sketch, photofit or other pictorial form) of a fact or opinion.

Question 14

What are the 2 types of hearsay?

Answer 14

(1) First-hand hearsay: when the person stating the evidence personally encountered that evidence - such as D making a confession to the police and him bringing this to the courts.

(2) Multiple hearsay: when the hearsay statement has been passed on to X (presenting it in court) via several people. [Admissability in court is more limited]

Question 15

What conditions are needed for hearsay evidence to be admissible in court?

Answer 15

Needs to come under one of the statutory provisions of admissible hearsay evidence

or

Hearsay must be admissible under a preserved common law exception s 118

AND

(1) all parties in proceedings must agree to it being admissible
+
(2) the court is satisfied that it is in the interests of justice for it to be admissible.

Question 16

What are the hearsays that are admissible under statutory provisions?

Answer 16

(a) cases where a witness is unavailable – CJA 2003, s 116;
(b) business and other documents – CJA 2003, s 117;
(c) previous inconsistent statements of a witness – CJA 2003, s 119;
(d) previous consistent statements by a witness – CJA 2003, s 120;
(e) statements from a witness which are not in dispute – CJA 1967, s 9; and
(f) formal admissions – CJA 1967, s 10.

Question 17

Statutory provision that allows hearsay evidence to be admissible (1/2): When a witness is unable to attend court to give evidence s 116 CJA. Only refers to first hand hearsay.

Answer 17

Evidence must be: if it admissible evidence of the matter at hand (first hand hearsay, for example); if the witness’ identity is to the court’s satisfaction; any of the conditions below has been satisfied.

WHEN it is impossible for a witness to give evidence themselves in court - either because they can’t physically, or if it is unsafe for them to do so.

s 116(2) When:
(a) the relevant person is dead;
(b) the relevant person is unfit to be a witness because of his bodily or mental condition;
(c) the relevant person is outside the United Kingdom and it is not reasonably practicable to
secure his attendance;
(d) the relevant person cannot be found, although such steps as it is reasonably practicable to take to find him have been taken;
(e) through fear the relevant person does not give oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence

Question 18

If someone (the witness) who satisfies all other measures (such as whether the evidence is admissible + the witness is satisfactory to the court + is first hand hearsay + gave witness statement to police and before trial, ends up on life support or was sent abroad or disappeared or too scared to give evidence… would the evidence given by them still be admissible at trial?

Answer 18

Yes. Since this satisfies all the conditions needed for hearsay evidence to be admissible. But must be in the interests of justice.

Question 19

Is multiple hearsay admissible to courts under s 116?

Answer 19

No. Only first hand hearsay is admissible under s 116.

Question 20

Statutory provision that allows hearsay evidence to be admissible (2/2): business and other documents – CJA 2003, s 117 [ APPLIES TO BOTH FIRST AND MULTIPLE HEARSAY]:

Answer 20

Section 117 of the CJA 2003 provides:
(1) In criminal proceedings a statement contained in a document is admissible as
evidence of any matter stated if:

(a) oral evidence given in the proceedings would be evidence of that matter,

(b) the requirements of subsection (2) are satisfied, and

(c) the requirements of subsection (5) are satisfied, in a case where subsection
(4 - where statement was prepared for ‘the purposes of pending or contemplated criminal
proceedings, or for a criminal investigation’) requires them to be.

REQUIREMENTS OF SUBSEC (2) - business records:
(a) the hearsay statement created or received in the course of a trade, business or profession.
(b) person who supplied info has personal knowledge of the matters.
(c) includes multiple hearsay - this info must be passed on by people who are all in a course of trade, business etc

REQUIREMENTS OF SUBSEC (5) - statements made for use in criminal proceedings:
(a) any of the five conditions mentioned in s 116(2) is satisfied (see above) such witness being dead etc; or
(b) the relevant person cannot reasonably be expected to have any recollection of the
matters dealt with in the statement (having regard to the length of time since he supplied
the information and all other circumstances).

Question 21

What are examples of hearsay that is under a preserved common law exception? as per s 114(1)(b)

Answer 21

s 118 (1):

(a) evidence of a confession or mixed statement made by the defendant; and

Basically when D gives a confession that can be used against him in court. This is a common exception used for hearsay.

(b) evidence admitted as part of the
res gestae.

When something is said by a witness or D or C in the moment the crime is occuring that means that what is said is true - there was not enough time for that person to manufacture a concoction or disortion of the truth.
The Ackner criteria needs to be used.

Question 22

What is the Ackner criteria?

Answer 22

Basically, tests how pure the statement is - is it truly free from concoction and disortion of the truth?

(1) The primary question which the judge had to ask himself in such a case was: Can the
possibility of concoction or distortion be disregard?

(2) To answer that question the judge first had to consider the circumstances in which
the particular statement was made in order to satisfy himself that the event was so
unusual or dramatic as to dominate the thoughts of the victim so that his utterance
was an instinctive reaction to that event thus giving no real opportunity for reasoned
reflection.

(3) In order for the statement to be sufficiently spontaneous it had to be so closely
associated with the event which had excited the statement that it could fairly be said
that the mind of the declarant was still controlled by the event.

(4) Quite apart from the time factor there might be special features in a case which
related to the possibility of distortion.

(5) As to the possibility of error in the facts narrated in such a statement: If only the
ordinary fallibility of human recollection was relied upon that went to the weight to be
attached and not to the admissibility of the statement and was therefore a matter for
the jury.

Question 23

The element of hearsay admissible in the interests of justice gives courts what exactly?

Answer 23

A very wide discretion to admit hearsay evidence which is reliable but may not otherwise be admissible.

In deciding whether to admit hearsay evidence under s 114(1)(d), the court must have regard
to the factors in s 114(2):
(a) how much probative value the statement has (assuming it to be true) in relation to a
matter in issue in the proceedings, or how valuable it is for the understanding of other
evidence in the case;
(b) what other evidence has been, or can be, given on the matter or evidence mentioned in
para (a);
(c) how important the matter or evidence mentioned in para (a) is in the context of the case
as a whole;
(d) the circumstances in which the statement was made;
(e) how reliable the maker of the statement appears to be;
(f) how reliable the evidence of the making of the statement appears to be;
(g) whether oral evidence of the matter stated can be given and, if not, why not;
(h) the amount of difficulty involved in challenging the statement; and
(i) the extent to which that difficulty would be likely to prejudice the party facing it.

Question 23

Whats the main jist of where hearsay admissible in the interests of justice cannot be used?

Answer 23

It cannot be used when the evidence or lack of evidence prevents the opposing party from being able to defend themselves - aka unable to challenge that evidence/ lack of evidence. Cannot be used to extremely prejudice one party.

Question 24

The Part 20 procedure to admitting hearsay does not apply to any of the preserved common law exceptions to the rule of excluding hearsay evidence, but when it does apply, how do you apply it?

Answer 24

(1) must give notice of the intention to use hearsay evidence to the court - court can allow for this to happen orally, rather than in writing. There may be time limits to admitting the evidence etc and this will be in the standard directions.

(2) If application of hearsay is opposed by the opposing party, the court will conduct a pre-trial hearing. In magistrates court, this occurs in the case management hearing/ pre-trial review or a special trial. In the Crown Court: at the PTPH or a specific pre-trial hearing.

Question 25

What is a confession?

Answer 25

Something said by a person that is adverse to their own position, either wholly or partly. Partly or wholly adverse to someone’s case. Something that is detrimental to their case.

Question 26

What type of evidence is a confession?

Answer 26

Hearsay evidence. And it will be admissible to court under s 76 (1) - as it is a common law exemption to the excluding hearsay evidence.

Question 27

What is a mixed confession and can it be admitted to court?

Answer 27

When the confession is both adverse and also advances their case or defence. Can be wholly admitted to court via s 76(1)

Question 28

What reasons will someone use when they say their confession is inadmissible? s 76

Answer 28

(1) that the person misheard them
(2) that the confession came through oppression/ force - such as manipulation, threats, degrading human treatment…
(3) that the confession is unreliable as a result of the circumstances - such as no legal advice provided, or that the person was not given food or water, confessor being offered bribes, being questioned whilst on drugs and the interogating person lying about the strength of the case etc.

Question 29

When the confessing person alledges that the confession is unreliable and therefore inadmissible because legal advice was withheld… what can be done?

Answer 29

Courts can step up and examine whether, had confessing person been given legal advice, they would have said something else at the confession. S 78 can be used to exclude this evidence.

Question 30

For a confession to be held inadmissibility either unreliability or oppression needs to be shown: what is important when proving this?

Answer 30

In order for the confession to be excluded, there must be a causal link between the breach and the unreliability of the confession that was subsequently made. ‘But for’ the actions of another person, X would not have confessed to what they have.

Question 31

Can a defendant use their co-defendants confession to advance that it was the co-defendant that did X crime?

Answer 31

YES. But only if co-defendant does not argue and render the confession inadmissible. In this situation, the defendant could try and show that ‘on the balance of probabilities’ nothing will have caused the confession to be inadmissible.

Question 32

What is the threshold for courts to believing that there existed conditions (either oppression or situations that would cause unreliability) that made a confession unreliable?

Answer 32

On a ‘balance of probabilities’

Question 33

If you wanted to render a confession inadmittable, what section of PACE can you use?

Answer 33

When confessor ADMITS confession: can use s 76 and can use s 78

When confessor DENIES confession: s 78 (and so it would affect the fairness of proceedings, if confession is used in this situation)

Question 34

What does s 78 cover when it comes to confessions?

Answer 34

Evidence of confession can also excluded by courts if courts think that it would have an adverse effect on the fairness of proceedings that it should not be admitted. Used when (1) the confessor admits to confession but claims its untrue and (2) when confession is purely denied.

S 78 acts as a general ‘catch all’ for avoiding the admissibility of confessions.

Question 35

Whats the test for seeing if s 78 can be used to exclude evidence where it is argued that the police have breached PACE or the Codes of Practice?

Answer 35

To exclude such evidence if these breaches are both significant and substantial. So, a high threshold - generally, if the evidence is reliable but the codes have been breached by police, it won’t be excluded… unless the breaches are significant and substancial.

Common examples of prosecution evidence which a defendant may seek to persuade a court
to exclude under s 78 are:
(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 36

What procedure should police follow, according to CODE C, when D makes a confession outside of the police station?

Answer 36

1. they should note down the confession and what was said
2. have D sign it
3. then bring this statement up to D at the beginning of the subsequent interview - to give D opportunity to confirm or deny it (Para 11.3 of Code C)

If these steps aren’t followed, the evidence will be excluded under s 78, as it would be unfair to use it in court proceedings.

Question 37

When are significant statements, like confessions, made?

Answer 37

At any time before the formal interview at the police station.

Question 38

If D says they did indeed punch X but only because he thought he was about to be attacked, is this a full or part confession?

Answer 38

Partly.

Question 39

Can police tell D that if they confess, they will be able to get a benefit?

Answer 39

No. This is a breach of para 11.5 - providing inducement to a suspect to admit guilt.

D can argue that the confession is unreliable also under s 76. And additionally, how it would be unfair to use this evidence in court, so also inadmissible under s 78.

Question 40

Challenging the admissibility of evidence in Crown Court

Answer 40

Disputed evidence is examined NOT in the presence of the jury, in a voir dire (a trial within a trial).
If it is held that the evidence is to be excluded, the jury will never hear of it.
If it is held that the evidence is valid, it will be brought out in front of jury and D can attack the credibility still, so that the jury does not give much weight to it.

Question 41

Challenging the admissibility of evidence in Magistrates Court

Answer 41

If it is just s 78 that D wants to rely on, a voir dire is not necessary and can be dealt with during the case or mentioned in the closing speech.

If it is s 76 or also s 76 and s 78 together that D wants to rely on, a voir dire will be used.

Question 42

What if the confession (which is later successfully excluded) leads to more evidence that incriminates D?

Answer 42

Prosecution can rely on the new evidence discovered as a result of the confession, even if the confession itself cannot be relied on anymore (though, the confession is technically true then).

Question 43

Can bad character be used as evidence against D?

Answer 43

Yes. The previous misconduct being references must not be related to the current offence, however.

Previous bad behaviour will not equal culpability in the current offence but it can influence and the prosecution must use other evidence to make their case.

s 101 sets out how bad character can be used.

Question 44

What are the s 101 states ways that bad character can be used?

Answer 44

Any of these 7 ways will allow for the bad character evidence to be used:

In criminal proceedings evidence of a defendant’s bad character is admissible if, but only if:

(a) all parties to the proceedings agree to the evidence being admissible, [automatically admissible evidence]

(b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it, [automatically admissible evidence]

(c) it is important explanatory evidence (prosecution will bring this evidence - this evidence once satisfied under c, can only be excluded as evidence under s 78 PACE, unfair proceedings), [automatically admissible evidence]

(d) it is relevant to an important matter in issue between the defendant and the prosecution (2 questions to answer: whether D is capable of committing the offence alleged [has he committed this type or description of crime or something significantly similar to the facts before] and whether D is capable of being untruthful) (evidence brought by prosecution; this way cannot be used if court is satisfied that so much time has passed that it would be unjust to use D’s old offences against him s103(3)) (excluding this evidence: s 78 can be applied),

(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant (cannot be used by CPS; used by one D to admit evidence of another D’s bad character; so one D will show that the other has a ‘Propensity to commit offences of the same kind’ and ‘Propensity to be untruthful’ - consider ‘cut throat defence’ where both D’s deny guilt and one can bring up details of the other’s previous convictions to show bad behaviour; court cannot prevent the admission of this evidence), [automatically admissible evidence]

(f) it is evidence to correct a false impression given by the defendant (brought by CPS; basically when D lies at any time or if D’s witness lies or if D’s question to a witness illicits a lie from witness or simply, any other person other than D lying and therefore helping misrepresent D) (court can only exclude this evidence under s 78, they cannot prevent the admission of it), or [automatically admissible evidence]

(g) the defendant has made an attack on another person’s character (attack does not need to take place at trial; person does not need to be alive; attacking = D trying to show that another person has committed an offence (either the current one or another one) or showing that the other person has behaved in a punishable by law way). Wide interpretation. However, D saying that C forged the case and facts are false = not an attack. However, D alledging that the police are trying to ‘set him up’ = an attack. (excluding this evidence: s 78 can be applied),

Question 45

If there is enough evidence to understand what has happened and how D has offended, is evidence of bad character needed?

Answer 45

Case law does make it clear that where the evidence is clearly understandable without
evidence of bad character, it should not be admitted.

Question 46

If D only has one other crime in the same category and this is now his 2 crimes in total, will this be enough for propensity to commit that crime to be established?

Answer 46

No. The less crimes there are previously, the less likely it will be enough to establish propensity.

If the defendant has only one previous
conviction of the same description or category, this is unlikely to show propensity
unless there are distinguishing circumstances or a tendency towards unusual
behaviour. The Court gave examples of unusual behaviour as including fire
starting and the sexual abuse of children

Question 47

Whats one thing to consider when considering the admissibilty of bad character and establishing the propensity of D to commit X crime alleged?

Answer 47

Whether it just to rely on convictions of the same description or category, having in mind the overriding principle that proceedings must be fair?

Question 48

When is D’s propensity to be untruthful examined by court?

Answer 48

When D’s case in any way gives vibes that it is untruthful.

Question 49

What does D’s propensity to be untruthful look at?

Answer 49

Whether they have in their past crimes made any false misrepresentations.
Whether in the past case D pleaded not guilty but was tried and found guilty.

Only cases where D has actively sought to mislead another person can be considered as a case that shows D’s capability of being untruthful. Lying and deceit.

Question 50

Will s 78 apply and therefore exclude where bad character is being used with reference to D’s propensity to commit crimes and/ or be untruthful?

Answer 50

It can do.

For example, if the case is weak and prosecution is trying to rely on D’s previous convictions… this won’t work.

For example, if the previous convictions have been ‘spent’ via the Rehab Act which says convict is to be treated as if they never convicted the offence after a certain period of time. Their previous convictions should not be absolutely disregarded however but it is in the court’s discretion.

For example, when jury are likely to convict D on the basis of previous convictions alone, instead of looking at the current case’s evidence… this is a big no no.

Question 51

In what situations can the court exclude bad character evidence ?

Answer 51

2 instances.

(1) it is relevant to an important matter in issue between the defendant and the prosecution (2 questions to answer: whether D is capable of committing the offence alleged [has he committed this type or description of crime or something significantly similar to the facts before] and whether D is capable of being untruthful)

(2) the defendant has made an attack on another person’s character

Question 52

When are the courts going to use the s 78 exclusion of evidence discretion that they have?

Answer 52

When it is the prosecution wanting to bring the evidence forward - D will want s 78 to apply.

Question 53

What is contamination of bad character evidence and what can courts do about it?

Answer 53

Section 107 of the CJA 2003 allows a judge in the Crown Court either to direct the jury to
acquit the defendant, or to order a retrial in circumstances where evidence of the defendant’s
bad character is ‘contaminated’. Contamination may occur if witnesses have colluded in order
to fabricate evidence of the defendant’s bad character. Section 107 does not apply to trials in
the magistrates’ court.

Question 54

What is the procedure for admitting evidence of bad character by the CPS?

Answer 54

(1) notice of intention must be given to the court and other parties to case - a written record of previous convictions intended to be used should be attached.

(2) courts will impose time limits for the parties to serve any notice or make any application
to adduce bad character evidence at trial

(3) if D wants to oppose this evidence being used, D must apply at court for this exclusion to occur and application must be served to court and other parties to case. Time limits.

Question 55

Making an application that someone other than D has bad character, can it be done and how?

Answer 55

Yes. s 100 CJA can be used, but also the things used above can be used too.
Generally, only used when it is actually necessary in the process of ensuring that the court and jury can properly understand other evidences in the case and thus, bad character of someone else has substancial value.

Question 56

What can D do to undermine a witness used by CPS?

Answer 56

Question the credibility of a witness.

If the witness is lying - we can see if we can adduce bad character for them under s 100 CJA.

If the witness has convictions themselves where they have made false statements or misrepresentations. Or falsely claimed not guilty and then was proved guilty.
Propensity to be dishonest will also be admissible for witnesses, not just untruthful.

The decision in Stephenson was approved in
R v Brewster [2011] 1 WLR 601, which said that
whether convictions are persuasive as to creditworthiness depends on their nature, number and age, and it was not necessary for the conviction to demonstrate a propensity to untruthfulness.

Question 57

What about witnesses that are standing witness for a crime they themselves have committed?

Answer 57

Yes, they can be bad characterised.

In R v Bovell [2005] EWCA Crim 1091, the Court of Appeal held that a judge could admit
evidence of previous convictions relied upon to show the propensity of a prosecution witness
to commit a particular type of offence if the defendant could show sufficient factual similarities between the earlier offence and the current incident.

Question 58

What ECHR article does s 78 PACE overlap with?

Answer 58

Article 6 - right to fair trial.

Question 59

If during police investigation where they are trying to gather evidence of D’s criminal activity and they effectively incite D to commit the offence alleged (such as the trading cigarettes for heroin case), will the evidence be admissible?

Answer 59

No. Because police incited this offence. This is abuse of process by the police.
Entrapment was an instance where such misuse of power could occur and that it was not acceptable for the state to lure individuals into committing unlawful acts and then prosecute them for doing so.

Question 60

Lord Nicholls went on to set out guidelines for trial judges when deciding whether
or not to stay proceedings for an abuse of process - list the 5 factors:

Answer 60

(1) The nature of the investigation – the more intrusive the investigation, the harder the
courts should scrutinise it.
(2) The nature of the offence. Certain offences can only be committed in a covert way
such as drug trafficking and therefore police can only crack them in a covert way.
(3) The nature of the police involvement. For example, how they behaved, how persistent
they were in trying to persuade the defendant to take part in the offence, for example
did they behave like a ‘normal customer’ might and no more.
(4) The defendant’s criminal record – usually this would not be relevant unless there was
evidence of recent similar involvement.
(5) The level and extent of supervision of the undercover officers.