W9 examination of witnesses, visual ID evidence

Question 1

before giving evidence, all witnesses must:

Answer 1

take an oath or make an affirmation

there is no difference between the 2 in the eyes of the law

Question 2

When can evidence be recieved unsworn?

i.e. no oath or affirmation taken

Answer 2

1. children; and
2. those of ‘unsound mind’

In these cases, the courts can receive evidence, but it would be wrong to make the witness take the oath.

Question 3

What is the test for children and those with unsound mind?

Answer 3

whether they have ‘sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath.

Question 4

How is the oath/affirmation taken?

Answer 4

• court ushed hands a no. of oath cards to cover all main religions.
• oath is one that the witness would find ‘binding on one’s conscience.

Question 5

What happens a witness refuses to take an oath or affirmation?

Answer 5

can be punished as a contempt of court

Question 6

What should questioning in an EIC look like?

Answer 6

• non-leading Qs
• evidence adduced from leading Q - considered to be inadmissible/carry less weight.
• leading may be allowed where issue is not in dispute or where witness has been deemed hostile.

Question 7

statements made out of court are considered to be hearsay

When can an out of court written witness statement be used in court?

(if they seek to prove the truth of their contents etc.)

Answer 7

1. if the contents of the statement are agreed. Hearsay objection is overcome. Telling the court to regard the evidence as if witness had come to court and given it in witness box.
2. witness an ask to ‘refresh their memory’ from their statement.
3. In cross-examination on previous inconsistent statements.

Question 8

EIC

Are witnesses allow to refresh their memory?

Answer 8

yes

normally uncontroversial, and witnesses are generally free to spend a moment reminding themselves.

Few points of best practice:
- refreshing memory is permissible where the earlier written account provides a ‘significantly better’ recollection than could be achieved without it.

• ensure evidence given by witness is from a recovered memory (rather than them just reading out their statement).

Question 9

Memory refreshing

Answer 9

• a witness does not have to read their statement in the witness box where it would be undesirable, e.g. dyslexic witness may read it from a quiet room.
• when a witness refereshes their memory, they may be cross-examined on the contents of the statement used to refresh their memory without the statement coming into evidence.
• Where material other than that which was used to refresh their memory is raised in Qning, this entitled the other side to apply to put the statment into evidence so the jury can form their own view about the basis for the XX.

Question 10

Why may a witness be hostile?

Answer 10

• witnesses may have evidence that could assist the prosecution then indicate they are not going to give that evidence in court.
• common in domestic violence cases - reports being assaulted but retracts their statement. Usually from pressure from offending partner who promises to change.
• if witness is then called to give evidence and gives an account inconsistent w their original statement to point Judge forms view it is not ‘desirous of telling the truth”, party calling them may apply to judge to treat them as hostile.

Question 11

The use of inconsistent statements

Answer 11

• A party is free to cross examine a hostile witness and put their previous statement to them as the truth of the matter.
• any inconsistent statement presented to a witness can be used to prove the truth of its contents notwithstanding that the statement was hearsay before the witness contradicted it in evidence.

Question 12

Are previous consistent statements ever used?

Answer 12

• an allegation made by a witness does not become more reliable simply from repeating it multiple times.
• It was general rule - witness makes allegation in court + is not generally admissible to elicit evidence that the witness made earlier consistent allegations.

this has been altered by CJA.

• There are some exceptions where the court will hear evidence of an earlier consistent statement.

Question 13

exceptions to the rule

when can previous consistent statements be heard in court?

Answer 13

Where an exception exists, one needs to consider if the earlier consistent statement can be used to prove the statement itself is true, or only to prove the consistency of the person who made the earlier statement.

1. Res gestae
2. Suspect’s response to police allegation
3. Complaints
4. Recent fabircation

Question 14

what is res gestae?

exception to the rule dissallowing consistent statements

Answer 14

= a statement made as an immediate reaction to a crime being committed against the statement maker.

• if a victim of a crime reacts instataneously or in the immediate heat of the incident, that reaction is admissible.
• this is because that person would not have time to make it up as it was said in immediate aftermath.
• i.e. “what are your hands doing there you pervert?!” - admissible to prove the truth of the (implied) allegation.

Question 15

Suspect’s response to police allegation?

exception to the rule dissallowing consistent statements

Answer 15

= statements made by suspects on accusation by the police.

• the police will ‘accuse’ all suspects of an offence when they arrest, interview and charge a suspect.
• responses to all police allegations are admissible, whether they are confessional or involve self-serving denials of guilt.

Question 16

Complaints

exception to the rule dissallowing consistent statements

Answer 16

• common law principle: quicker someone complains about an allegation, the more likely the complaint is reliable.

common law developed doctrine - ‘doctrine of recent complaint’.

• CJA took principle further and made complaints admissible where the complainant testifies that the earlier complaint was made + was true.

this is wider than common law and makes it redundant.

the act also allows the earlier complaint to show consistency in complaining + to prove the truth of the complaint.

Question 17

Rebuttal of ‘recent fabrication’ allegation

exception to the rule dissallowing consistent statements

Answer 17

• if witness is challenged in box + its suggested that something witness has just said has only just been made up - witness is permitted to try to prove this is not the case.
• witness is therefore allowed to negate allegation of recent fabrication by showing that earlier statement was made to same effect as the statement impugned as being a recent fabrication.
• court must consder s.120 CJA in deciding whether there is an earlier complaint that can rebut the allegation of recent fabrication.

Question 18

Cross-examination

Answer 18

• leading Qs
• this is because unless a witness’ account is challenged on a particular point, it is deemed to have been tactically accepted.

Question 19

police witness statements - are they admissible as evidence?

Answer 19

courts do not generally admit into evidence a police witness statement.

It classifies as hearsay.

It can become admissible under s.119, however, if the witness in the box giving live evidence departs materially from the statement, either by contradicting the statement or adding something to it which was not there originally.

Question 20

What Qs cannot be asked to sexaul assault complainant?

Answer 20

• Q’s about complainants general promiscuity or other sexual behaviour is not allowed without leave of the court.

Question 21

what is the general principle that a party cannot call evidence to try to prove a peripheral matter, such as the credibility of something a witness said on a less cruical issue?

Answer 21

finality on collateral matters

Question 22

can the court allow collateral matters to be admitted as evidence?

Answer 22

more lenient in allowing evidence to be admitted on the ‘collateral issue’ of a wintess being ‘biased or partial’ and even when a witness denies such, counter-evidence will be admissible.

Question 23

What are the types of evidence?

Answer 23

• DNA evidence
• telephone evidence
• fingerprint evidence
• testimony from witnesses

Question 24

What is a visual identification?

of a witness

Answer 24

• from an eyewitness
• do not confused visual ID with evidence capable of supporting proseucution’s case e.g. description of clothing or suspect.

-

Question 25

How to deal with visual identification to prevent any miscarriages of justice?

Answer 25

• its easy for an honest and convincing witness to be mistaken during a visual ID.
• safeguards have been put in place to ensure visual ID is reliable as possible:

a. Investigation stage: PACE Code D
b Trial: Turbull guidelines

Question 26

What is Code D?

Answer 26

issued to give instructions to police on how to deal with identification issues.

deals exclusively with the process to be adopted by tge police where the witness purports to identify a suspect or expresses an ability to make a visual ID.

It was introduced for 2 reasons:
1. to protect an innocent suspect from an incorrect ID; and

2. to make a successful ID as watertight and ‘challenge-proof’ as possible.

Question 27

How are suspect’s ID’d?

Answer 27

VIPER - Video Identification Parade Electronic Recording

officers film the suspect asking them to face the camera and be filmed from the right, left and centre. ID police officer, suspect + legal reps select lookalikes from over 10,000 video clips on VIPER system. Video clip is produced of suspect amongst 8 other individuals.
Video clip is then show to witnesses.

Question 28

Breach of Code D

Answer 28

• 1st issue for a trial judge in these circs is to determine if a breach of Code D has occured.
• this can usually be achieved without a voir dire. however, there may be circs when evidence around the alleged breach is disputed. in those circs, a voir dire may be required and the judge will have to hear evidence under oath.
• if there is a breach of Code D, remedy = to apply to exclude evidence obtained in breach of the code under s.78 PACE 1984.
• A breach of the code does not automatically lead to an exclusion of the evidence.
• The key issue to trial judge = if there has been any significant prejudice to the accused. If the judge has determined that there is prejudice, they must then decide if the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court not ought to admit it.
• ID evidence should be a formal ID procedure under formal conditions.
• where ID evidence is admitted into evidence despite a breach of Code D, Defence counsel are still permitted to comment on the breach on the breach in their closing speech.

Additonally, trial judge should draw jury’s attention to breach + invite them to assess whether in their estimation the breaches were such as to cause them to have doubts about safety of ID.

Question 29

What is a voir dire?

Answer 29

a trial within a trial

Question 30

R v Turnbull

Answer 30

the Court of Appeal issued guidelines to be followed in all cases where the case against the accused depended wholly or substantially on evidence of identification which the suspect alleged to be mistaken.

also gave guidance to judges on when ID evidence can be safely left to the jury + when a case must be withdrawn to protect D from an unsafe conviction.

Question 31

What are the Turnbull guidelines?

Answer 31

• gave guidance on what a judge should say to a jury when a case depended ‘wholly or substantially’ on disputed ID evidence.
• it also gives guidance to judges on when ID evidence can safely be left to the jury and when a case must be withdrawn to protect D from an unsafe conviction.

Question 32

When should a Turnbull direction be given?

Answer 32

1. when case against accused depends ‘wholly or substantially’ on the correctness of the visual ID.

• should be given even in cases of alleged recognition; people think they recognise strangers in street and on closer inspection are wrong.

Turnbull not required:
- D admits presence at scene but disputes involvement in incident. - however, each turns on its own facts, court should be alive to fact Turnbull direction may be required.

Question 33

What happens if turnbull guidelines aren’t followed?

Answer 33

LIKELY TO RESULT IN CONVICTION BEING QUASHED

(CofA)

Question 34

How should the Judge direct the jury (Turnbull direction)?

Answer 34

• should warn jury of special need for caution before convicting in reliance on ID being correct.
• Should say a mistaken witness can be a convincing one. And multiple witnesses could be mistaken.
• say Jury should examine closely circs of ID by each witness came to be made.
• Recognition may be more reliable than IDing a stranger. But can mistake recognising relatives and friends sometimes.
• Trial judge should remind jury of any specific weaknesses which appeared in ID evidence.

Question 35

What are other forms of evidence capable of supporting ID?

Answer 35

Trial Judge will direct jury to consider if there is any other evidence to support correctness of ID. Should identify this for jury.

1. scientific evidence - e.g. footwear, facial mapping, telephone evidence
2. multiple IDs (by different witnesses)
3. accused’s bad character or pre-cons
4. accused’s silence on interview (adverse inference to be drawn)
5. accused’s admissions at scene/in interview/ in witness box
6. lies (when accompanied as appropriate by Lucas direction)

Question 36

What is a Lucas direction?

Answer 36

instructs the jury that they can only consider a lie as evidence supporting guilt if certain conditions are met:

The lie must be deliberate.
The lie must relate to a material issue.
The lie must be told after the crime.

Question 37

Why might there not a case to answer against D; withdrawing the case from the jury?

Answer 37

Principles in R v Galbraith must be applied to see if there is a case to answer.

In cases of visual ID, the judge must answer 2 principal Qs:

1. What is the quality of ID evidence?
2. IS there other evidence to support correctness of ID?

Question 38

What will the Judge need to consider when assessing quality of ID evidence?

Answer 38

• lighting
• distance
• length of time of observation
• qualities relating to witness themselves - e.g. eyesight

Question 39

What mnemonic should be used to assess strengths and weakness of evidence as outlined in TURNBULL?

Answer 39

A - amount of time under observation
D - distance
V - visibility
O - obstruction
K - known or seen before
A - any reason to remember
T - time lapse (seeing accused + ID’ing)
E - error or material discrepancy

Question 40

What if the quality of the evidence is good?

Answer 40

jury can be safely left to assess value of ID evidence (regardless of whether there is additional evidence to support it).

Always need to be warning about special need for caution.

Question 41

What if the quality of the evidence is poor?

Answer 41

judge should consider whether there is other evidence to support correctness of ID.

If not, Judge should withdraw case from jury and direct and acquittal.

If there is some weak supporting evidence, e.g. scientific evidence, judge can leave weak ID to jury to be assessed alongside supporting evidence.

Question 42

What if a witness identifies the D whilst in court in the dock?

Answer 42

• rare
• undersirable as it leaves witness w no alternative than D and fact that D is already standing in dock - highly prejudicial.
• well-meaning witness may simply assume that person responsible for crime is D because they’re in dock.

Trial judge retains discretion to permit a dock ID.

Question 43

What should the judge consider when deciding whether to permit a dock ID?

Answer 43

whether such a course of conduct will jeopardise the fairness of accused’s trial.

E.g. in case of alleged recognition, judge may be of view that it would be unjust to allow dock ID.

Question 44

What are the principal ways in excluding evidence and/or seeking to bring a prosecution case to an end?

Answer 44

1. applications for dismissal
2. submissions of no case to answer
3. applications to exclude evidence under s.78 PACE
4. applications to exclude confessions under s.76 PACE
5. applications to exclude evidence under preserved common law provisions s.82(3) PACE
6. abuse of process applications

Question 45

S.78 PACE:

exclusion of unfair evidence

Answer 45

• court may refuse to allow evidence on which the prosecution propose to rely to be given if it appears admission of evidence would have adverse effect on fairness of proceedings that court ought not to admit it.

S.78
- concerned w fairness + is principal and most important means by which defence can seek to have prosecution evidence excluded.

• only applies on ‘evidence on which prosecution proposes to rely’ - cannot be used by prosecution or a co-defendant.
• e.g. evidence which has been obtained unlawfully, improperly or unfairly - prevented. evidence obtained in breach of ECHR.
• S.78 often ustilised alongisde s.76 to seek to exclude evidence of confessions.

Question 46

If evidence has been obtained irregularly, does that make it inadmissible?

Answer 46

not per se

key test for court in deciding whether to exclude prosecution evidence under s.78:

*whether the admission of evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. *

• court not concerned with marking its disapproval of police conduct by excluding evidence,, simply concerned w whether fairness dictates that the evidence should be excluded in the circs.

Question 47

What about if there has been bad faith on behalf of police?

i.e. acting in breach of PACE or codes of practice

Answer 47

a factor which is likely to lead to exclusion of the evidence

Question 48

What are the PACE Codes of Practice?

Answer 48

Code A-H

Question 49

Code A

Answer 49

stop + search

Question 50

Code B

Answer 50

entry, search + seizure

Question 51

Code C

Answer 51

Detention, Treatment and Questioning of Non-Terrorist suspects

Question 52

Code D

Answer 52

identification

Question 53

Code E

Answer 53

audio recordings of interviews

Question 54

Code F

Answer 54

visual recordings of interviews with sound

Question 55

Code G

Answer 55

arrest

Question 56

Code H

Answer 56

detention, treatment and questioning of terrorism suspects

Question 57

Code C: what must Detained suspects be informed of?

Answer 57

1. right to consult privately w solicitor
2. their right to have someone informed of their arrest
3. their right to consult codes of practice

Question 58

Is a caution required before questioning?

Answer 58

yes

code c states that a person whom there are grounds to suspect of an offence must be cautioned before any Qs about offence are put to them, if either the suspect’s answers or silence may be used in evidence against them.

Question 59

What else is required in Code C?

Answer 59

• caution given on arrest.
• interview needs to be in a police station excpet when:
  1. lead to intereference w evidence
  2. interference w or physical harm to others
  3. serious loss or damage to property
  4. lead to alerting others who have not yet been arrested
  5. hinder recovery of property
• under 18 or those w mental disorders to only be interviewed in presence of an appropriate adult.
• mentally vulnerable - cannot understand significance of Qs.
  *

Question 60

What is the role of an appropriate adult?

Answer 60

attends interview and gives advice to suspect, observes whether interview is conducted properly and fairly and assists w communication.

Question 61

What if there is a breach of Code C?

Answer 61

apply to exclude prosecution evidence of D’s confession under s.78 PACE

namely, that having regard to the circs. in which this evidence was obtained its admission would have such an adverse effect on fairness of trial that court ought not to admit it.

Eg of how breach of codes work handinhand in many apps to exclude eviden

Question 62

S.78 application examples

Answer 62

• fundamental right of access to legal advice denied
• waiver of right to legal advice was not voluntary, uniformed or equivocal
• appropriate adult has not been provided for youth, mentally disordered or vulnerable suspect
• where ID proceudres have not been followed

s.78 used as a further or alternative arg to exclude confession evidence

Question 63

Do all breaches of Code lead to exclusion of evidence?

Answer 63

No

significance of breach is taken into account. Needs to be significant and substantial.

Question 64

What is considered in a s.78 application?

not seriousness of breach per se

Answer 64

the effect of the breach

namely whether the admission of evidence would have such an adverse effect on fariness of proceedings that court ought not to admit it.

more significant + substantial the breachm more likely it is to reuslt in unfairness, and thus exclusion.

Appeal will not interefere w judge on s.78 decision unless it is pervers

Question 65

When can a s.78 application be made?

Answer 65

1. before trial
2. at commencement of trial
3. just prior to pros seeking to admit evidence which defence wish to be excluded.

if the application were granted and would result in pros case being fatally weakened, judge will want argument to take place at pre-trial hearing or at commencemen of trial before jury sworn.

if app relates to matter of less significance, judge may direct matter be dealt w at a convenient moment during trial itself.

if evidence not been dealt w yet, pros shouldn’t mention in open speech

Question 66

What is a voir dire?

Answer 66

• mini trial within a trial
• the evidence called by pros + def will relate only to matters in dispute.
• witnesses oath/affirmation slightly different
• takes place in absense of jury
• In MC as they are both tribunal of law and fact, can rule on s.78 app when it arises. However should be dealt w earlier in case to allow pros to know if they can rely on it.
• disputed confessions should be dealt with as a preliminary issue.
  **
  WHEN APP IS MADE UNDER BOTH S.76 and S.78 A VOIR DIRE SHOULD BE HELD AS A PRELIMINARY ISSUE. **

Question 67

What happens in a voir dire?

Answer 67

• def address court first then pros (as it is an application by def to exclude pros evidence)
• judge will not be able to determine s.78 application unless factual matter has been resolved.
  i.e. judge will hear evidence on potential police breaches of Code C
• normal burden apply - prosecution have to convince beyond reasonable doubt. so judge has to be convinced police acted appropriately. S.78 would fail. If police did misbehave, + breach led to unfairness, will exclude evidence.