Week 6: Foundations of Evidence Law Flashcards
Is the UK adversarial, or inquisitorial?
Adversarial
Although Scotland is becoming increasingly inquisitorial, with a great deal of testimonies being compiled before proceedings begin.
In sexual offence cases can you or can you not defend yourself?
You cannot defend yourself in sexual offence cases.
What are the three types of evidence?
- Oral
- Documentary
- Real evidence
Which type of evidence must be spoken to by a witness?
Real evidence.
How is evidence considered relevant?
If it helps the fact finder determine who is guilty.
What relevant information cannot be brought before the court?
Previous convictions.
Facta probanda
Crutial facts or something that directly proves the accused is guilty.
In cases of diminished responsibilities, is it to be proved beyond a reasonable doubt, or on the balance of probabilities?
Balance of probabilities.
See Criminal Procedure s 51.
How many pieces of corroborating evidence are necessary to prove guilt in Scotland?
Two.
Cadder v HMA.
- Insufficient evidence
- ‘No case to answer’
- Abolition of corroboration began in this case
- The victim was assaulted
- Accused admitted that he had assaulted the accused
- Cadder argued that his admission should be inadmissible, because he wasn’t told that he was entitled to a lawyer
- Right to be offered a lawyer, not
- That you didn’t have a lawyer
- More than 50% refuse a lawyer at the time of question
- Cadder was arguing against Scots – a fair trial should be fair criminal procedure
- However, the court disagreed suggesting that the precise of the lawyer would prolong the process, and that there are sufficient safe guards (corroboration etc.)
- Supreme court overturned the decision, declaring that Scots law must require the offer of a lawyer.
- Looked at the jurisprudence of the ECtHR (Saldoo v Turkey)
- You can be detained for 12 hours, whereas before you could only be detained for 6 hours
*34. Moorov v. H.M. Advocate 1930 JC 68
“Moorov doctrine”: underlying unity of purpose; similar in time, character and circumstance: provide mutual corroboration
* Got into practice of advertising for a female employee
* When him and the woman was working he invited into the back of the shop
* Charged with 21 sexual assaults
* However there was no corroboration
* If there was a linger period between incident courts are hesitant to follow the Moorov Doctrine
Eyewitness identification evidence
* A lot of wrongful convictions where eye witnesses have misidentified the accused
* Famous case in America, women raped, daylight, she was determined that she was going to identify the accused, she gave description, identification parade, she pointed out the accused, testified that she was 99% the accused was accurate, 20 years later it was found that she had actually picked the wrong person with DNA evidence
* Consideration that corroboration requirement should be abolished
* Prof Ferguson disagrees: It serves as a good safeguard
*35. Lord Advocate’s Reference (No. 1 of 2023)
[2023] HCJAC 40: corroboration as supporting evidence
- Monumental changes to evidence law
Facts
- Man and his girlfriend go to their neighbours for drinks
- Women gave evidence that the drink was spiked
- Man goes to the shop to get cigarettes
- Women is raped by the neighbour
- Man returns, see what appears to be the neighbour naked and the girlfriend runs out
- Women cries rape
- Recent statement heard by other neighbour, boyfriend and another friend over the phone
- Accused ‘not proven’
- While recent statements CAN be used as supporting evidence, it only proves that something happened and not necessarily that a rape occurred.
General principles
- Change to evidence law
- Now each individual aspect of a crime does not need to be proved
- now recent statement and distress can be used as corroboration of an incident
*36. HM Advocate v PG and JM [2024] HCJAC 43
Corroboration of perpetrator’s identification
- Followed Lord Advocates reference in 2023
- Highlighted that recent statements need not necessarily be recent but at the earliest convenient and reasonable time.
- Massive step in evidence law
- Recent statements and distress could be used not only as supporting evidence that an event occurred, but that the accused committed the offence.
- Gubinas v HM Advocate [2017] HCJAC 59:
Jury can make up its own mind about video evidence
- Gang rape filmed
- Digital evidence showed to the jury
- Discourse as to whether the jury should be directed and the evidence only be used to support the complainers account, or the jury should be entitled to make up their own mind about the evidence
- Common sense approach
- Jury entitled to make up their own mind about digital evidence.
