Principles and Procedures to Admit and Exclude Evidence

Question 1

Give the two requirements that must be met for a jury or magistrate to take a certain piece of evidence into account.

Answer 1

1) Evidence must be relevant to facts in issue in the case; and
2) Evidence must be admissible, meaning rules which comprise the rule of evidence must allow such evidence to be used in a criminal trial.

Question 2

Give examples of situations where the defence may also have a legal burden of proof.

Answer 2

• Where D is pleading not guilty and raises the defence of insanity or duress (in such situations defence will nee to prove those facts).
• Important note - where the defence bears a legal burden of proof, this burden of proof is on the balance of probabilities and NOT beyond a reasonable doubt.

Question 2

Explain the legal burden and standard of proof in criminal cases.

Answer 2

• Prosecution bear the legal burden of proving D’s guilt.
• Standard of proof they need to prove is beyond a reasonable doubt;
• Effectively, D should only be convicted if jury/ migrates are sure of D’s guilt.

Question 3

How is the burden of proof (both evidential and legal) affected where D claims a specific defence (such as an alibi or self-defence)?

Answer 3

In such situations the legal burden stays with the prosecution, but the defence would be under an evidential burden. As such the prosecution had the job of disproving the defence, but the defence will have the evidential burden to raise it.

Question 4

Explain thew evidential burden in criminal cases.

Answer 4

• Prosecution will present their case first. At conclusion of presenting this case, the prosecution must have presented sufficient evidence to the court to justify finding of fully and to show that D has a case to answer. If they do not do this the defence can make a submission of no case no answer and ask for a dismissal.
• In such a situation it would be said the prosecution has failed to discharge their evidential burden.
• D is not obliged to place any evidence before the court to show they are innocent (unless they raise a specific defence such as self-defence where it is expected they will present some evidence if they want the jury/ magistrate to consider such a defence). This is the evidential burden the defence bears. All D needs to do is enter the witness box and give evidence/ details of the defence. Prosecution then have the legal burden of disproving the defence beyond a reasonable doubt.

Question 5

What does s78 of PACE 1984 provide?

Answer 5

The court has the ability to exclude the admission of visual evidence which the prosecution wishes to introduce if they believe it will have such adverse effects on the fairness of proceedings, that the court ought not to admit it.

Question 6

Give an example where the visual evidence being admitted may be excluded by the court under s78.

Answer 6

Evidence obtained by the police were the police breached the identification procedure contained in code D of the Codes of Practice, which may include one of the following:

a) at video identification procedure, police may have breached the requirement that other images shown to witness must resemble suspect in age, genera appearance and position of life;
b) at identification parade, police may breach requirement that witnesses attending the parade are segregated both from each other and from the suspect before ad after the parade; and
c) breach of codes of practice will have occurred if whilst d was detained at police station, the police failed to hold an identification procedure when such ca procedure should have been held (pursuant to para 3.12).

Question 7

Give the requirements arising from the Turnbull guidelines.

Answer 7

Special guidelines which apply when a witness who gives evidence for CPS visually identifies D as the person who committed the offence, and D disputes that identification.

A witness will identify D as the person who committed the offence if:
a) witness picks out D informally;
b) witness identifies D at a formal identification procedure at police station; or
c) witness claims to recognise D as someone previously known to them.

A witness falling into the three above categories will be a Turnbull witness and the Turnbull guidelines will therefore apply provided D disputes the visual identification made by the witness.

Question 8

True or False: Turnbull guidelines apply where witness gives only s description to the court of the person who committed the crime but there is no direct evidence that it was D (other than the fact D’s physical appearance matches the description being given).

Answer 8

False. The Turnbull guidelines will not apply here - as a mere description is not sufficient to warrant Turnbull guidelines being applied.

Question 9

Under the Turnbull guidelines the judge will look at the circumstances of the original sighting of D by the witness to determine the strength of evidence. List the factors the judge will taken into account here.

Answer 9

1) The length of observation - was it just a fleeting glimpse or a sustained look.
2) Distance - was witness close to the person, or some distance away.
3) Lighting - did observation happen in daylight or at night? if at night was there any street lighting? If inside a building, was the building well light or dim/dark?
4) Conditions - if outside what were the weather conditions like? Was it a clear day, rainy or foggy? Was it in a crowded area with people obstructing witnesses view? Was it inside/ outside a building and what obstructions were present?
5) How much of suspect’s face was actually seen? - can a clear description of their face be given/ did the witness only see part of the face? Is the description vague or detailed?
6) Was the person identified known to the witness, or was this a person the witness has never seen?
7) How closely does the original description of the person seen by the witness match D’s appearance (eg age, height, hair colour etc).

Question 10

What is the Turnbull warning given by a judge to the jury?

Answer 10

Judge (if they believe the witness account of identification to be god) will warn jury of dangers of relying on identification evidence and stress the importance of considering the circumstances where relying on such evidence.

Question 11

What Turnbull warning will a judge give the jury where the identification evidence is poor, but is supported by other evidence?

Answer 11

• The warning will be the same (ie warning jury of dangers of relying on identification evidence) but will also draw attention to weakness of the evidence itself.
• However, the judge will also explain the importance of supporting evidence (meaning any other evidence which suggests identification made by witness is reliable). Judge will therefore warn of dangers of convicting on the basis of identification evidence alone and tell jury to look for other supporting evidence.

Question 12

What action should a judge take where they deem the identification evidence to be poor and unsupported by other evidence?

Answer 12

Judge should stop the trial and end the prosecution case. Judge must then direct the jury to acquit D. This will normally follow a submission of no case to answer being made by D’s advocate.

Question 13

List some examples of supporting evidence.

Answer 13

1) confession by D;
2) other evidence placing D at crime scene (eg finger prints/ DNA);
3) regarding theft, stolen property bering found in D’s possession;
4) adverse inferences being drawn from D’s silence when questioned at police station.

Question 14

Explain the operation of the Turnbull guiltiness in the magistrates court.

Answer 14

• Magistrates decide matters of fact and law as there is no jury.
• If D’s solicitor considers the quality of identification evidence to be poor, and CPS has no other supporting evidence, solicitor should make a submission of no case to answer at end of prosecution case.
• if identification evidence is god or poor but supported by supporting evidence, D’s solicitor unlikely to make submission of no case to answer. they will however address the Turnbull guidelines in closing speech to magistrates and point that identification evidence form eye witnesses is quite unreliable, and stress the need for caution when considering such evidence.

Question 15

Explain what s38(3) CJPOA 1994 provides.

Answer 15

A defendant cannot be convicted of an offence based solely on an adverse inference. If this is the only evidence against them this is not sufficient for conviction. As such, prior to the prosecution asking the court to draw an adverse influence, they must first introduce other evidence of D’s guilt.

Question 16

In what situation will a court be unable to draw an adverse inference from D’s silence?

Answer 16

A court is NOT able to draw an adverse inference from D’s silence if the silence came at a time when D had not been allowed to opportunity to consult a solicitor and obtain independent legal advice.

Adverse inferences from D’s silence can therefore only be drawn should the silence have come at a time when D had been given the opportunity to to take ILA.

Question 17

Does the s34 provision for drawing an adverse inference from silence only refer to no comment interviews?

Answer 17

No. It is perfectly possible for for such inferences to be drawn against D where they have answered every question put to them during questioning, but where they raise at trial some other fact in their defence that they did not mention (but could have been reasonably expected to mention).

Question 18

List the R v Argent conditions which need to be met in order for the court to be permitted to draw adverse inferences from D’s silence under s34.

Answer 18

(a) The interview had to be an interview under caution;
(b) The defendant had to fail to mention any fact later relied on in his defence at trial;
(c) The failure to mention this fact had to occur before the defendant was charged;
(d) The questioning of the defendant at the interview in which the defendant failed to mention the fact had to be directed to trying to discover whether or by whom the alleged offence had been committed; and
(e) The fact which the defendant failed to mention had to be a fact which, in the
circumstances existing at the time, the defendant could reasonably have been expected to mention when questioned.

Question 19

If D places their factual defence on record when interviewed by police, but then remains silent after being charged, is the court permitted to draw an adverse inference?

Answer 19

Not usually.

Provided D has mentioned everything they wish to rely on when being questioned prior to being charged, failing to answer questions after being charged will make it practically unlikely the court would draw such adverse inferences (although it remains theoretically possible).

Question 19

Can a court draw adverse inferences from D using a written statement and then declining to answer questions in interview and would this change if the statement is not handed to the police until after D is charged?

Answer 19

No. Provided the statement sets out everything they wish to rely on in court, the court cannot draw adverse inferences from their failure to answers questions after placing the written statement on record.

If the statement is handed to the police after D is charged, the court may be permitted to draw the inference that D was not sufficiently confident about their defence to expose this to investigation by police following the interview.

Question 20

List the three situations where solicitor may advise client to remain silent.

Answer 20

1) Poor disclosure by police;
2) Nature of the cat (ie complex);
3) Personal circumstances of suspect (ie client is particularly vulnerable, ill, mentally unstable, tired confused etc).

Question 21

Can a defendant avoid an adverse inference by claiming their refusal to answer questions was based on legal advice?

Answer 21

No. This will not prevent the court from drawing adverse inferences. In such situations, the court will ultimately look at whether the facts relied upon at trial were facts which D could reasonably have been expected to mention in police interview. Only if they were not, can it be certain no adverse inference can be drawn.

Question 22

If D mentions as evidence at trial they received legal advice to remain silent in interview, does this waive privilege?

Answer 22

No. The court however will want to know the reasons for the solicitor’s advice. If D then gives these reasons their right to legal privilege is said to be waived.

Question 23

What do adverse inferences under s36 relate to?

Answer 23

• Objects on the person of D;
• Objects attached to clothing pr footwear of D;
• Objects, marks, substances found at the scene of the offence, or any such marks on; - Objects found in D’s possession.

Question 24

What are the key differences between section 34 and s36 adverse inferences?

Answer 24

• For s34 to be used, D has to raise a fact a trial which they failed to mention at the police station. S36 will operate irrespective of any defence put forward (and may even operate if no defence is put forward at trial). This is because the inference will arise from D’s failure to mention or account for objects, marks and substances at the time of the interview.

Question 24

What must the suspect be told about by the police in order for s36 adverse inferences to be applicable?

Answer 24

Suspect must be told:
1) what the offence under investigation is;
2) what fact the suspect is being asked to account for;
3) that the officer believes this fact may be due to the suspect taking part in the commission of the offence in question;
4) that a court may draw adverse inferences from failure to comply with the request to account for it; and
5) a record is being made of the interview and that it may be used in evidence if suspect is brought to trial.

Question 25

what does the adverse inference under s37 relate to?

Answer 25

• D’s failure to account for their presence at a particular place at or about the time the offence was committed.
• S37 will operate irrespective of any defence put forward (the same as s36).

Question 26

Is D obligated to put forward evidence at their trial (give evidence in the witness box)?

Answer 26

No.

Question 27

What does s35 CJPOA 1994 provide?

Answer 27

• D’s failure/ refusal to give evidence at trial may lead to the court drawing an adverse inference.
• As such, if prosecution gives evidence which would call from an explanation from D and D refuses, an adverse inference will be drawn from their failure to account for such evidence.

Question 28

List the factors the court must take into account when considering the application of s35 (D’s refusal to give evidence at trial).

Answer 28

1) burden of proof remains on prosecution throughout;
2) D is entitled to remain silent;
3) before drawing adverse inference from D’s silence, court has to be satisfied there was a case to answer on the prosecution evidence;
4) adverse inference from D’s failure to give evidence cannot on its own prove guilt; and
5) no adverse inference could be drawn unless only sensible explanation for D’s silence is that he had no answer to the case presented against him, or none that could have stood up to cross-examination.

Question 28

Explain the statutory exception to the drawing of adverse inference under sections 34-37 CJPOA 1994.

Answer 28

Court has discretion to direct that no adverse inference may be drawn where it appears there is a physical/ mental condition of the accused which makes it undesirable for him to give evidence.

Question 29

Explain the provision of S78(1).

Answer 29

Court has discretion to exclude improperly or unfairly obtained prosecution evidence where it appears to the court that having regard to all circumstances in which the evidence was obtained, the admission of evidence would have an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Question 30

List the common examples where a court may be persuaded to use their power under s78 (ability to exclude evidence).

Answer 30

1) evidence is obtained by illegal search;
2) identification evidence;
3) confession evidence;
4) evidence obtained from use of covert listening and surveillance devices; and
5) evidence obtained in undercover police operations.

Question 31

True or False: the defence of entrapment can always be relied upon as a means of invoking the exclusion of evidence under s78?

Answer 31

False. It may be argued, but the court will use its common law power to determine whether it is justifiably admissible.

The House of Lords set out the following guidelines to help judges decide whether or not the abuse of police power warrants deeming the evidence obtained inadmissible:

1) Nature of investigation - the more intrusive it is the more it should be scrutinised by the court;
2) Nature of the offence - certain offences are more likely to be caught by use of covert operations;
3) Nature of police involvement - eg how they behaved and how persistent they were in getting D to commit the offence.
4) D’s criminal record;
5) Level and extent of supervision of the undercover officers.

Question 32

Where an investigating officer is present at the identification parade, what is the best argument the defence can make to challenge the validity of the evidence?

Answer 32

Defence should ask the court to exercise its discretion to exclude the identification evidence as in this situation the identification parade would have been flawed (investigating officer is not permitted to be present at identification parade).