Criminal Practice - Evidence

Question 1

Burden of proof

In criminal cases, the prosecution bears the ____ burden of proving…

A defendant raising a specific defence will always have the…

Answer 1

Legal; defendant’s guilt

Evidential burden.

Question 2

Burden of proof

If the prosecution fails to present sufficient evidence to justify a finding of guilt, the defendant’s solicitor is entitled to…

In such cases, the prosecution has failed to discharge their ____ burden.

Answer 2

Make a submission of no case to answer.

Evidential burden.

Question 3

Visual Identification Evidence: Turnbull Guidance

If the defendant’s solicitor considers that disputed visual identification has been obtained which the prosecution will rely upon, what is the solicitor’s best course of action?

If that course of action is declined by the court, what is the solicitor’s next strategy?

Answer 3

Challenge admissibility and ask court to exclude under s.78 PACE.

If declined by the court, try to undermine the quality of the evidence at cross-examination and make representations to the court in respect of Turnbull guidelines.

Question 4

Turnbull Guidelines

(1) When is a witness known as a “Turnbull witness”? (3 circumstances)

(2) The guidelines apply when…

Answer 4

When a witness identified the defendant as the person who committed the offence by:
- picking the defendant out informally;
- attending a formal ID procedure;
- claiming to recognise the defendant as someone previously known to them.

(2) …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 5

Lewis is on trial following a public order incident. A witness called by the CPS tell sthe court that he saw a man involved and later identified Lewis as that man at the video ID procedure. In which of these circumstances will the Turnbull guidelines apply?

(a) Lewis denies being at the scene.
(b) Lewis admits taking part in the incident but claims he was only acting in self-defence.
(c) Lewis admits being at the scene but denies involvement, suggsting that someone else was also present who was involved.

Answer 5

(a) and (c)

But note: in one case, similar facts to (c) occurred where there was no one else present who resembled the accused in height, clothing, or hair colour. There Turnbull did not apply.

Question 6

John is on trial for burglary. A witness sees the burglary and tells the court it was committed by a man who was approximately 6 feet tall, with brown hair and a moustache. John matches that description, but the witness failed to pick him out at the video identification.

Will Turnbull guidelines apply?

Answer 6

No. No direct visual identification evidence, as this was simply evidence of description.

Question 7

Turnbull Guidelines: Crown Court

(1) The trial just must assess the quality of identification evidence by a witness called by the CPS. There are three levels of quality that the identificaiton can be:

(2) What factors will the court take into account in this assessment? (9 factors)

Answer 7

(1)
a. Good quality.
b. Poor but supported.
c. Poor and unsupported.

(2)

(a) Length of observation
(b) Distance
(c) Lighting
(d) Conditions
(e) How much of suspect’s face the witness saw
(f) Whether person identified was someone already known to witness.
(g) How closely original description given by witness to police matches actual physical appearance.

Question 8

Turnbull Guidelines: Crown Court

What is the Turnbull Warning in relation to good quality identification evidence? (state who gives it and when)

Answer 8

The judge gives the Turnbull Warning when summing up the case. He tells the jury 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 factors (above) when considering quality of the identification evidence.

Question 9

Turnbull Guidelines: Crown Court

What is the Turnbull Warning for poor but supported evidence?

Answer 9

The same, but also drawing specific attention to weaknesses in the identification evidence; warn jury about the dangers of convicting on the basis of ID evidence alone and tell the jury to look for other supporting evidence.

Question 10

Turnbull Guidelines: Crown Court

What does the judge do if the identification is poor and unsupported?

Answer 10

Stop trial at end of prosecution case; direct the jury to acquit the defendant.

Will usually follow a submission of no case to answer from defendant’s a

Question 11

Turnbull Guidelines: Magistrates Court

How will the defendant’s solicitor address the Turnbull guidelines?

Answer 11

Warning magistrates of inherent unreliability of ID evidence from an eyewitness and any weaknesses in prosecution evidence.

No case to answer likely to be submitted only if poor and unsupported.

Question 12

Inferences from silence

Adverse inferences may be drawn from the defendant’s silence when…
They are not permitted where the defendant’s silence occurred at at a time when…

Can a defendant be convicted of an offence if the only evidence against him is an adverse inference from silence?

Answer 12

…interviewed at a police station.

…he was not given the opportunity to take independent legal advice.

No.

Note: s.35 is the only inference that arises at trial, not at police int

In contrast, if he is given such an opportunity, but declines, then an adverse inference will be allowed.

Question 13

Adverse inferences: s.34 CJPOA 1994

This is relevant where the defendant remains silent during…

The defendant’s silence will allow the court or jury to draw adverse inferences as appear proper if…

Answer 13

…a police interview under caution.
…defendant fails to mention any fact he later relies upon in his defence.

e.g. alibi

Note: may apply even where defendant is not silent, but does not mention the fact.

Question 14

Adverse inferences: s.34 CJPOA 1994

What are the 5 pre-conditions for the s.34 inference to arise?

If a defendant remains silent in the initial interview, but in a subsequent interview, mentions the relevant fact of their defence, can an adverse inference be drawn?

Answer 14

(a) interview under caution
(b) defendant failed to mention the fact later relied upon in his defence at trial.
(c) failure occurred before defendant was charged.
(d) police questioning was directed to ascertaining whether/by whom the offence had been committed;
(e) defendant could reasonably have been expected to mention the fact when questioned.

Adverse inference may still be drawn in reard to the first interview.

Court will allow adverse inference only if the reason for the defendant’s silence was that they had no answer, or no answer that would stand up to scrutiny.

Question 15

Adverse inferences: s.34 CJPOA 1994

s.34 will be prevented from operating where…

Answer 15

…defendant remains silent in interview, but relies on a written statement that contains the facts later relied upon.

Question 16

Adverse inferences: s.34 CJPOA 1994

In what three instances will the solicitor advice a suspect to remain silent?

Answer 16

• low level of disclosure given by police.
• nature of case is complex.
• personal circumstances of suspect are unfavourable.

Question 17

Adverse inferences: s.34 CJPOA 1994

Will the court automatically be prevented from drawing adverse inferences where defendant remained silent based on legal advice?

What is the relevant test in such cases?

Answer 17

No.
Whether defendant genuinely and reasonably relied on legal advice to remain silent.

This will require that legal privilege is waived, allowing defendant to be cross-examined later about any other reason for solicitor advising client to remain silent.

Question 18

Adverse inferences: s.36 CJPOA 1994

This is relevant where the defendant fails to…. during….

The inference may only be drawn where the police officer requesting the explanation has told the suspect certain specified matters before requesting (“special caution”). What are those specified matters? (5 matters)

Answer 18

…account for the presence of an object, substance or mark during police interview.

(a) what the offence under investigation is
(b) what fact the suspect is being asked to account for
(c) that the officer believes the fact may be due to suspect taking part in commission of the offence.
(d) that a court may draw an adverse inference;
(e) that a record is being made of the interview and that it may be given in evidence.

Question 19

Adverse inferences: s.36 CJPOA 1994

The failure to account for an object, substance or mark will relate to any of those that are:

Answer 19

i. on his person;
ii. in/on his clothing/footwear
iii. otherwise in his possession;
iv. any place which he was at the time of arrest.

Question 20

Adverse inferences: s.37 CJPOA 1994

Relevant where, during interview, the police officer or another investigating officer:

3 points

Answer 20

• reasonably believes that the presence of the person at the place and time of arrest may be attributed to his participation in the offence;
• informs the person of that belief and requests the person to account for their presence;
• Person fails or refuses to do so.

Question 21

Adverse inferences: s.37 CJPOA 1994

The s.37 inference operates irrespective of any defence put forward at trial. As such, it can only be drawn where the police officer…

Answer 21

…has given a special caution.

(same as for s.36)
Not the same as s.34, which is dependent upon defendant’s defence.

Question 22

Adverse inferences: s.35 CJPOA 1994

This is relevant where the defendant fails to…
It may be drawn where:

Answer 22

…give evidence on his own behalf at trial.
Prosecution raises issues that call for an explanation from the defendant.

Court able to conclude that he has no explanation, or none which would stand up to cross-examination, provided this is the only sensible conclusion.

In most cases, defendant has a right to remain silent at trial.
Also, it can only occur where there is a case to answer.

Question 23

Hearsay Evidence

A hearsay statement is defined in s.114(1) of the CJA 2003 as:

Answer 23

“A statement, not made in oral evidence, relied on as evidence of a matter in it.”

Question 24

Hearsay Evidence

(1) A statement is defined as:
(2) The person’s purpose when making that statement is to:
(3) Give four examples of hearsay evidence.

Answer 24

(1) “any representation of fact or opinion made by a person by whatever means.
(2) “cause another person to believe that the matter is as stated”

(3)
a. Witness at trial repeating what they had been told by another person.
b. Witness statement being read out at trial.
c. Police officer at trial repeating a confession made to them by the defendant.
d. business document being used as evidence at trial.

Question 25

Maryam is a bank clerk. She receives $5000 cash from a customer and places it in the bank’s safe. She tells Brian, the senior cashier, who in turn tells Emir, the manager. Emir makes an entry of the deposit in a ledger. An armed robbery takes place and the $5000 is stolen.

The entry in the ledger is an example of….
The CPS want to use the entry to show how much money was in the safe. Can this ever be allowed as evidence at trial?

Answer 25

Multiple hearsay.
Yes, but in more limited circumstances than first-hand hearsay.

Question 26

Hearsay Evidence

Admissible if it falls into one of four categories (s.114, CJA 2003):

Answer 26

1. Admissible under statute
2. Admissible under common law exception.
3. Admissible under agreement.
4. Admissible in the interests of justice.

Question 27

Hearsay Evidence: Admissible under statute

The six statutory provisions for hearsay are:

Answer 27

(a) cases where witness unavailable
(b) business and other documents
(c) previous inconsistent statements of a witness
(d) previous consistent statements by a witness
(e) statements from a witness that are not in dispute
(f) formal admissions

Question 28

Hearsay: Statutory: Witness Unavailable

This applies where the statement is (a) … and (b) …

Additionally, one of five conditions must be satisfied:

Cases where witness is unavailable to attend court

Answer 28

a. first-hand hearsay
b. the witness is identified to the court’s satisfaction

The five conditions are that:

i. relevant person is dead.
ii. relevant person is unfit to be a witness
iii. relevant person is outside of the UK and his attendance is not reasonably practicable to secure.
iv. relevant person cannot be found, despite reasonably practicable steps being taken to find him.
v. relevant person does not give oral evidence through fear, and court gives leave for the statement to be given in evidence.

Question 29

Fozia witnesses an assault. She tells Jenny what she saw. Jenny then gives a signed statement to the police repeating what she had been told by Fozia. Before case comes to trial, Jenny is killed in an accident. Is Jenny’s statement admissible?

Answer 29

No. This is multiple hearsay. Her statement repeats what she had been told by Fozia, which was itself hearsay.

Question 30

Hearsay Evidence: Admissible under statute

The three requirements are that:

Business documents

Answer 30

(a) The document was created or received by a person in the course of a trade, business, profession, or as holder of paid/unpaid office;
(b) person who supplied the information had or may reasonably be supposed to have had, personal knowledge of the matters dealt with;
(c) each person through whom the information was supplied received the information in the course of a trade, business, profession, etc.

Therefore allows multiple hearsay.

Question 31

Hearsay Evidence: Admissible under statute

Statements prepared for use in criminal proceedings are allowed where the conditions that relate to witness statements (s.116) are met or….

Note: the s.117 business documents conditions must also be met.

Answer 31

the relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement.

Due to length of time since supplying the information and other circumstances.

Question 32

Hearsay Evidence: Admissible under common law

Other than confession evidence (discussed later), the most important common law exception allowing hearsay evidence is…

This occurs where a statement made contemporaneously with an event is admissible because…

Answer 32

Res gestae

…the spontaneity of the statement excludes the possibility of concoction.

Jordan is charged with murder. The CPS allege that he shot the victim with a rifle. HIs defence is that the rifle went off accidentally, but the CPS wish to call evidence from a witness who heard the victim shout “Don’t shoot me Jordan!” immediately before the shot was fired. This would be hearsay evidence, but admissible as res gestae to prove the shooting was not an accident.

Question 33

A witness to a conviction of a sexual offence refuses to give evidence that claims that she was also raped by the defendant. Could this be admissible?

Answer 33

Yes, in the interests of justice.

Question 34

Hearsay Evidence: Part 20 Procedure

Which two statutory provisions for hearsay require notice to be given to the other parties, and to the court, of its intention to do adduce it? *

Which other category requires notice?

* (or to oppose another party’s application to do so)

Answer 34

(a) witness is unavailable to attend court
(b) witness statement prepared for use in criminal proceedings
(c) multiple hearsay

The other category requiring notice is (d) hearsay admissible in the interests of justice.

Question 35

Confession Evidence

Definition:

Answer 35

“Any statement wholly or partly adverse to the person who made it”

Question 36

Confession Evidence: Co-accused

At trial, if a confession is made by a defendant that implicates the co-defendant, is this admissible against the co-defendant?

What if a pre-trial confession of the same nature was made?

SKIP THIS CARD

Answer 36

Yes.

Pre-trial confession only admissible against that defendant, not the co-defendant.

Either if

Question 37

Confession Evidence: Challenging Admissibility by s.76 PACE

The defendant can challenge the admissibility of confession evidence in two ways:

Answer 37

(a) deny the confession or accept it was made but it was untrue (s.78)

(b) Accept that they confessed, but argue that it should not be admitted in evidence due to oppression or unreliable circumstances under s.76.

Question 38

Confession Evidence: Admissibility by s.76

If the defendant argues that a confession was obtained under s.76, is the court allowed to use that evidence?

Answer 38

No, unless the prosecution prove beyond reasonable doubt that it was not obtained in that way.

Question 39

Confession Evidence: Admissibility by s.76

A defendant is denied access to legal advice and confesses to robbery. The defendant gives evidence to the effect that he knew his rights and understood the police caution given. Will his application to exclude the confession evidence succeed?

Unreliability

Answer 39

No. He was fully aware of what his rights were. There needed to be a causal link between the denial of legal advice and unreliability of confession.

Case where defendant b

Question 40

Confession: Co-defendant admits guilt

Where there are two co-defendants pleading guilty, and one of them admits his own guilt (without implicating the other), can the other defendant adduce that as evidence?

If the defendant who made the confession represents to the court that s.76 is in play, the court must exclude it. If, in turn, the other defendant wants to argue that the confession was not obtained in that way, the court would need to be satisfied of such…

Answer 40

Yes.
…on the balance of probabilities.

Question 41

Confession: Challenging admissibility under s.78

Where the defendant alleges the police breached PACE in obtaining a confession, the court is only likely to exercise its discretion if…

In most cases where the defendant has been denied…. this would amount to a significant and substantial breach.

Confessions made but untrue

This not only relates to confession evidence, but any question of admissibility of evidence under s.78.

Answer 41

…the breaches are significant and substantial.
…access to legal advice.

Question 42

Confessions: Challenging admissibility under s.78

Provide three instances where the confession is excluded under s.78 having been made “outside” the police station.

Confessions defendant denies making

Answer 42

a. Failing to make accurate record of defendant’s comments.
b. Failing to give defendant opportunity to view the record and sign or dispute it.
c. Failing to put the confession to the defendant at the start of a subsequent interview.

Question 43

Confessions: Procedure for challenging admissiblity

Admissiblity of disputed confession evidence in the Crown Court is determined by the trial judge in…

If the court deems it admissible, the defendant will still be able to…

Crown Court

Answer 43

…the absence of the jury (at a voir dire)
…attack credibility of confession.

Representations will be made by defendant and interviewing officer or whoever the confession was obtained from.

Question 44

Confession Evidence: Procedure for admissibility

If defendant raises submissions under s.76 and s.78, both arguments are heard in a voir dire What about if it is s.78 only?

Magistrates Court

Answer 44

No obligation to hold voir dire

Question 45

Confession: Evidence obtained as a result of inadmissible confession

The fact that the court excludes evidence of a confession made by a defendant will…

Answer 45

…not affect the admissibility in evidence of facts discovered as a result of the confession.

Question 46

Character Evidence

Definition of bad character:

If there is misconduct related to the offence, will this be admissible evidence?

Answer 46

Evidence of, or a disposition towards, misconduct other than evidence connected with the offence”

Yes. This does not count as bad character evidence (i is admissible without needing to sastisfy the test for bad character evidence.)

Misconduct = offence or other reprehensible behaviour.

Question 47

Character Evidence

What are the seven gateways under s.101 of CJA 2003 allowing the defendant’s bad character to be raised at trial?

Can a defendant’s bad character prove guilt?

Answer 47

(a) All parties agree to it being admissible.
(b) It is evidence adduced by defendant himself or in answer to a question when cross-examined, with the intention to elicit it.
(c) It is important explanatory evidence
(d) It is relevant to an important matter in issue between defendant and prosecution.
(e) It has substantial probative value for important matter in issue between defendant and co-defendant.
(f) It is evidence to correct a false impression
(g) The defendant has made an attack on another person’s character.

Not by itself.

On (b) this will be relevant where defendant raises evidence of his own bad character to claim that on an earlier offence the defendant accepted guilt, but on this occasion he is pleading not guilty because he genuinely did not commit the offence.

Question 48

Character Evidence: Gateway C: Important Explanatory Evidence

(1) What party can adduce such evidence?
(2) What are the two conditions for this gateway to be satisfied?

Answer 48

(1) Prosecution only.
(2) Two conditions:
a) Without it, magistrates/jury would find it impossible or difficult property to understand case.
b) Its value for understanding the whole case is substantial.

Question 49

Character Evidence: Gateway D: Important issue between D and prosecution

Only the prosecution can adduce this. It must show one of two things:

The most important gateway relied upon by prosecution.

Answer 49

(a) Propensity to commit an offence of the kind charged.
(b) Propensity to be untruthful.

Question 50

Character Evidence: Gateway D: Important issue between D and prosecution

To place such evidence before the court, the CPS must first satisfy the court that…

Thus, s.103(2) of CJA 2003 states that it must be established that the defendant has previously been convicted of: (2 circumstances)

Propensity to commit an offence of the kind charged

Answer 50

…establishing such propensity makes it more likely that the defendant committed the offence.

(a) An offence of the same description; or
(b) An offence of the same category

Question 51

Character Evidence: Gateway D: Important issue between D and prosecution

(1) For the purposes of identifying “an offence of the same category”, the Secretary of State has prescribed two categories:

(2) In the second category, what are the four main offences? Name five more.

Propensity to commit an offence of the kind charged

Answer 51

(a) Sexual offences category against children under 16.
(b) Theft category.

i. Theft
ii. Robbery
iii. Burglary
iv. Aggravated Burglary.

Seven more exist:

v. Taking a motor vehicle or conveyance without authority;
vi. Handling stolen goods;
vii. Going equipped for stealing;
viii. Making off without payment
ix. attempting any of the above;
x. aiding, abetting, counselling, procuring, inciting the commission of any of the above.

Question 52

Character Evidence: Gateway D: Important issue between D and prosecution

If the earlier offence is not in the same description or category, when can it be used under this part of gateway d?

Propensity to commit an offence of the kind charged

Answer 52

…when there are significant factual similarities between the offences.

Question 53

Character Evidence: Gateway D: Important issue between D and prosecution

The CPS will only be able to use this where…

The defendant’s previous conviction will not be admissible unless…

Propensity to be untruthful

Answer 53

…it is suggested that the defendant’s case is in any way untruthful

(a) manner in which previous offence was committed demonstrates such a propensity; or
(b) defendant was convicted following a not guilty plea.

Question 54

Character Evidence: Gateway D: Important issue between D and prosecution

Provide two offences that demonstrate a propensity to be untruthful under the (a) “Manner in which previous offence was committed” provision?

Why isn’t theft one of these offences?

Propensity to be untruthful

Answer 54

• Perjury
• Fraud by false representation

Not theft, as it must be shown that the defendant actively sought to mislead or had lied to another person.

Theft is dishonest, but not necessarily untruthful.

Question 55

Character Evidence: Gateway D: Important issue between D and prosecution

Kate is charged with common assault. She is claiming defence of alibi at trial. She has several previous convictions in which she pleaded not guilty, but was convicted following a trial. Can CPS raise these previous convictions?

Propensity to be untruthful

Answer 55

Yes, to show that she has a propensity to be untruthful - in those previous convictions, the defendant was convicted following non-guilty plea so Gateway D can be used.

Question 56

Character Evidence: Gateway D: Important issue between D and prosecution

Under s.101(3) CJA 2003, the court must not admit evidence under gateway (d) if, upon an application from the defendant to exclude it, the court finds that it would have…

This is similar to excluding unfairly obtained evidence under s.78 PACE. What is the difference?

In what three situations will the court use their power under s.101(3) to exclude bad character evidence?

Answer 56

…such an adverse effect on the fairness of proceedings that the court ought not to admit it.

In this case, the court must exclude the evidence. It doesn’t have a discretion.

(a) Nature of previous convictions are such that the jury are likely to convict on the basis of those convictions alone.
(b) Used by CPS to support an otherwise weak case.
(c) Previous convictions are spent.

Technically, the Act doesn’t specifically exclude spent convictions, but it requires that, upon an application to exclude evidence, the court considers length of time.

Question 57

Character Evidence; Gateway (e)

(1) Which two reasons will a co-defendant use this gateway for?
(2) This must relate to a “matter in issue”, meaning…
(3) If a co-defendant establishes this, what power does the court have to exclude it under CJA 2003?

Substantial probative value - defendant and co-defendant

Answer 57

(1) Reasons to use this gateway in relation to a matter in issue:
a. Show propensity to be commit offences of the same kind.
b.Show propensity to be untruthful.

(2) …the relevance of such convictions is more than merely marginal.

(3) None. (unlike gateway (d)).

(a) seems less restricted than the equivalent in gateway d: no mention of “related categories”.
(b) seems the same as in gateway d: offences that involve making a false statement or representation.

On (3) note that the court always has discretionary power under s.78.

Question 58

Character Evidence: Gateway (f): False impression created by defendant

(1) Who may adduce evidence under this gateway?
(2) A defendant is treated as being responsible for making such an assertion where the assertion is made by: (5 circumstances)
(3) If the CPS establishes this, what power does the court have to exclude it under CJA 2003?

Answer 58

(1) Prosecution only.
(2) False impressions are challengeable where they are made by:
a. defendant in the proceedings.
b. defendant when questioned under caution by police;
c. defence witness;
d. any witness in cross-examination by defendant, intended to elicit it;
e. any person out of court and defendant adduces evidence of it.

(3) None.

But on (3) s.78 PACE still available.

Question 59

Character Evidence: Gateway (g) - Attack on another person’s character

(1) Which party may adduce this?
(2) Evidence attacking another’s character is evidence to the effect that the other person has either:
(3) What power does the court have to exclude such evidence under CJA 2003?

Includes any person - dead, alive, witness, non-witness.

Answer 59

(1) Prosecution only.
(2)
a. Committed an offence.
b. Behaved reprehensibly.

(3) On an application by the defendant, the court must exclude evidence that would have such an adverse effect on fairness of proceedings that it ought not to admit it.

Question 60

Court’s power to exclude bad character evidence

Other than the 101(3) powers to exclude evidence under gateways (d) and (g), and the discretionary power for all gateways under s.78 PACE, the judge may also direct the jury to acquit, or order a retrial where there has been… This may occur if witnesses have colluded in order to fabricate evidence of the defendant’s bad character. (s.107 of CJA 2003).

s.107 CJA 2003 doesn’t apply to…

Answer 60

Contamination of bad character evidence.

…trials in the magistrates’ court.

Question 61

Character evidence: Procedure for admitting

What is required of the CPS if they wish to adduce evidence of defendant’s bad character evidence?

If the defendant wishes to oppose such evidence, they must…

Answer 61

Give notice of this intention to the court and all other parties.
…apply to the court . This application must be sent to the court and all other parties.

Question 62

Trial procedure: Magistrates

A trial in the magistrates begins with…
After that, the prosecutor will…

If the defendant was interviewed at the police station, either a… unless… If so ____

Answer 62

…prosecution giving an opening speech.
…call their first witness.
…summary or full transcript of the interview will be read out, unless the defendant’s solicitor objects. If so,an audio recording will be played out.

Each witness will be cross-examined by the defendant’s solicitor, and the prosecutor may, if they choose, re-examine the witness.

The defendant’s solicitor has a choice between an opening and a closing speech. Neither of these are evidence.

Question 63

Trial procedure: Magistrates

Where the prosecutor seeks to place evidence which the solicitor considers inadmissible, the magistrates will normally hold a…

This will involve witnesses giving evidence on matters relevant to admissibility.

Alternatively, magistrates will hear the disputed evidence as part of the trial itself, and will consider the question of admissibility when the defender’s solicitor…

Answer 63

voir dire

…makes a submission of no case to answer.

(or when the defence makes their closing submissions).

Question 64

Trial procedure: Magistrates

When presenting the prosecution case, the prosecutor bears the… of presenting sufficient evidence to the court to…

If they fail to do this, the defendant’s solicitor will…

Other than the prosecution failing to prove an essential element of the offence, when else would the defendant’s solicitor do this?

Answer 64

evidential burden.
…justify a finding of guilt.
…make a submission of no case to answer.
…when the evidence produced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict.

Question 65

Trial procedure: Magistrates

(1) A defendant is a ____ witness for the defence, but not ____. What does this mean?

(2) A defendant who is raising a defence such as ____ or ____ has the evidential burden of placing…

(3) What is the big downside of the defendant failing to give evidence on their own behalf at trial?

(4) If the defendant’s solicitor elects to give a closing speech, rather than an opening speech, what must they always remind the magistrates?

The defence case

Answer 65

(1) Competent, but not compellable. This means he can give evidence on his own behalf, but he is not obliged to.

(2) Self-defence or alibi; some evidence of the defence before the court.

(3) The court will draw an adverse inference under s.35.

(4) That CPS bears the burden of proving guilt beyond reasonable doubt.

On (4) the defendant’s solicitor may also need to cover evidential issues during the clsoing speech.

Question 66

Trial procedure: Magistrates

Most rials in the magistrates’ court will be before a bench of… Do they need to return a unanimous verdict?

The verdict

Answer 66

…three magistrates.
No.

Question 67

Trial procedure: Crown Court

If a defendant wants to change their plea to not guilty, they must…

Change of plea from guilty to not guilty

Answer 67

…apply in writing as soon as practicable after becoming aware of the grounds for making the application.

(there’s a similar procedure in the magistrates’ court)

Question 68

Trial procedure: Crown Court

How many members does the jury consist of?
Between what ages?
Their names must be on the… and must have resided in the UK for at least…
Certain people are ineligible, such as…
Certain people are disqualified, such as

Answer 68

Twelve.
Ages 18 - 75.
Electoral roll; five years.
People suffering from a mental disorder.
People on bail in criminal proceedings and many who have previous convictions for which they served a custodial sentence.

Question 69

Trial procedure: Crown Court

The prosecutor’s opening speech in the Crown Court usually contains the following three elements:

What would not be mentioned in the opening speech, if the prosecutor, has advance notice of the issue?

When would a defendant be likely to change their plea from not guilty to guilty?

Answer 69

i. Legal elements of the offence.
ii. Outline of the evidence the prosecutor will call;
iii. Explanation of the operation of the burden and standard of proof.

An admissibility issue that was not resolved at a hearing prior to trial.

When the judge made a ruling on a point of law or admissibility that deprives the defendant of a defence upon which they hoped to rely.

Then prosecution witnesses are called, cross-examined, re-examined as in the Mags.
On admissibility matters during trial, a voir dire will be held without the jury.

Question 70

Trial procedure: Crown Court

When directing the jury on the law, the judge covers three areas:

Deliberations of the jury must remain…

Generally, the jury must decide unanimously. What are the two exceptions?

If the jury cannot reach a majority verdict within a reasonable time, the judge will…

Answer 70

(1) Directing the jury:

i. Burden and standard of proof;
ii. Legal requirements of offence;
iii. Any other issues of law and evidence (e.g. Turnbull warning)

(2) …completely secret.

(3) A majority vote of 11:1 or 10:2 is accepted if after 2 hours and 10 minutes, unanimity is not possible.
A majority vote will also be sufficient where any juror has been discharged.

(4) Discharge the jury.

On (4), CPS is likely to ask for a retrial before a new jury.

Question 71

Modes of Address and Court Room Etiquette

Refer to magistrates as either:
Refer to district judges as:
Refer to Crown Court judges as:
Refer to the opposing advocate as:
If opposing advocate is a barrister:
On entering or leaving court, it is customary to…
When addressing the court or examining witnesses, the default position is that you are required to… if proceedings take place in an open court.

However, there are some situations in which you would remain seated. Name three.

Answer 71

“Sir” or “Madam”
“Sir” or “Madam”
“Your Honour”
“My friend”
“My learned friend”
…bow to the Royal Coat of Arms.
…stand up

• Representing a juvenile in a youth court.
• Defendant appears via videolink from prison.
• Witness appears via secure link due to special measures.
• Making a bail appeal before a judge in Crown Court chambers.

Traditionally, “Your worships” was used for the magistrates.

Question 72

Trial procedure: Examination and cross-examination

(1) For examination-in-chief, are you allowed to use leading questions? What about for cross-examination?

(2) What are the three main purposes of cross-examination?

(3) In an assault case, the defendant is claiming self-defence. When cross-examining the victim, the defendant’s solicitor does not put to the victim that the defendant was acting in self-defence.

What is the consequence?

(4) Re-examination a party’s own witness should only be in relation to… Are leading questions allowed?

Answer 72

(1) Leading questions
Examination-in-chief: non-leading questions only.
Cross-examination: leading questions allowed.

(2) Purposes of cross-examination
- enable the party to put their case to the witness;
- undermine credibility of evidence the witness has given;
- obtain favourable evidence from the witness.

(3) The defendant will not be able to enter the witness box and say they were acting in self-defence.

(4) …matters that have arisen in cross-examination. No.

Question 73

Trial procedure: Competence and Compellability

The general rule is:

Compellable means the court can issue a ____ after which, failure to attend court or refusal to answer questions will amount to:

Answer 73

All persons are competent and compellable to give evidence at a criminal trial.

witness summons; contempt of court.

Question 74

Trial procedure: Competence and Compellability

The exception to the general rule on competence is that a person is not competent to give evidence in crimina proceedings where they cannot: (2 conditions)

Do child witnesses automatically meet this exception?
Do child witnesses give sworn or unsworn evidence?

Exception to general rule on competence

Answer 74

(a) understand questions put to him as a witness; and
(b) cannot give understandable answers.

No.
Sworn, unless under 14.

For 14 and above: sworn, provided he appreciates the solemnity of the occasion. This is presumed unless there is evidence to the contrary.

Question 75

Trial procedure: Competence and Compellability

(1) Is an accused generally a competent and compellable witness for* the Crown*?
(2) In what four situations may the prosecution call a co-accused?
(3) Is an accused competent and compellable as a witness for a co-accused?
(4) Is an accused competent and compellable as a witness for his own defence?

Exceptions to general rule on compellability: Accused

Answer 75

(1) No.
(2) Crown calling co-accused:
a. Under the AG’s formal notice (nolle prosequi)
b. An order is made for separate trials.
c. Accused is formally acquitted.
d. Accused pleads guilty.
(3) Competent, but not compellable.
(4) Competent but not compellable.

For b. a co-accused from the first trial may be called for the second trial, but not vice versa.

Question 76

Trial procedure: Competence and Compellability

(1) The spouse of an accused is only competent and compellable for the Crown in relation to two categories of specified offences:
(2) In all other cases, the spouse is a …. for the Crown.

John is charged with assaulting his daughter aged 16. This was witnessed by John’s wife Belinda. Is Belinda a competent and compellable witness?

Exceptions to general rule on compellability: Accused’s Spouse

(assuming spouse is not also an accused)

Answer 76

(1) Compellability as Crown Court suspect:
- where the offence involves assault, injury or threat of injury to the spouse, or a person under 16.
- where the charge is a sexual offence (or attempted) involving a person under 16, or aiding and abetting such offences.

(2) Competent but not compellable.
(3) Competent, but not compellable. Mia is over 16.

Question 77

Trial procedure: Competence and Compellability

(1) Is the accused’s spouse a competent and compellable witness for the accused?
(2) Is the accused’s spouse a competent and compellable witness for a co-accused? E.g. If a man and his friend are accused, can the man’s wife be a witness in favour of the co-accused?
(3) Where spouses are co-accuseds, are they competent and compellable against each other?
(4) If spouses are no longer married at the date of trial, how are they treated?

(5) Hassan is charged with fraud. At the time of the offence he was married to Brianna and the prosecution want to call her to testify against Hassain. Is she competent and compellable?

Exceptions to general rule on compellability: Accused’s Spouse

Answer 77

(1) Yes.
(2) Competent, but only compellable to the extent of the specified offences that apply for prosecution.
(3) Never compellable.
(4) As if they were never married, therefore they are compellable.

(5) Competent but not compellable, as the offence is not one of those limited offences in ss.(3). They were also still married, not divorced, at the date of trial.

Question 78

Trial Procedure: Special Measures