3. Procedures to Admit and Exclude Evidence

Question 1

In what context are Turnbull guidelines relevant?

Answer 1

When a case wholly or substantially relies on identification evidence and the evidence is disputed by defendant.

Question 2

What are the eight ADVOKATE guidelines given to the jury to consider in evaluating the weight of the identification evidence?

Answer 2

• Amount of time for which the witness observed the suspect
• Distance between W and S
• Visibility at the time
• Obstruction between W and S?
• Known or unknown (S to W)
• Any particular reasons to remember
• Time lapse between incident and ID
• Errors in W’s first description

Question 3

What must the judge do if the ID evidence is of poor quality and unsupported by additional evidence?

Answer 3

Judge has discretion to either:

1) Withdraw the case from the jury at the end of the prosecution’s case; or
2) Give “special direction” to jury to acquit the defendant.

Question 4

When giving a Turnbull warning to the jury at the end of the trial, what three things should the judge do?

Answer 4

1. Warn of special need for caution before convicting based on ID evidence, as mistaken Ws can be convincing
2. Ask jury to consider circumstances in which W identified D
3. Specifically refer to objective weaknesses in the evidence, considering ADVOKATE

Question 5

Can the defendant be convicted on the basis of an adverse inference alone?

Answer 5

No

Question 6

Adverse inferences drawn under s.34 CJPOA

Answer 6

Where defendant remains silent when questioned or charged, but later puts forward an account/fact responding to original question + reasonably ought to have mentioned.

Question 7

What are the two questions the court must answer when determining whether to admit bad character evidence under gateway s.101(1)(e) between co-defendants?

Answer 7

1) Does the evidence has substantial probative value?
2) If so, is it a matter of substantial importance to the case as a whole?
* consider whether other evidence in case already sheds light on this same issue - does it bring something more to case…?

If court is satisfied in relation to both questions - must admit evidence.
* no discretion to refuse.

Question 8

What is a way a defendant might seek to avoid inadvertently opening the prosecution to rely on s.101(1)(f) to admit bad character evidence?

Answer 8

by withdrawing or dissociating themselves from the assertion before trial

Question 9

What conduct may be considered an ‘attack on another,’ and consequently leave a defendant vulnerable to the prosecution adducing bad character evidence under gateway s.101(1)(g)?

Answer 9

• allegation that the prosecution’s witnesses are biased;
• alleging that police deliberately fabricated evidence or flouted Pace rules;
• adducing evidence of a prosecution witness’ bad character w/ out prior permission from the court

Question 10

What are key points to note about the implications of triggering gateway (g) for bad character?

Answer 10

• can be triggered early on, ie. at police station.
• no opportunity to withdraw attack.
• even if permission is granted to adduce witness’ bad character evidence, gateway (g) may still be triggered.

Question 11

Adverse inferences drawn under s.36 CJPOA

Answer 11

Failure to account for mark, object, or substance found on person at time of arrest.

Question 12

Adverse inferences drawn under s.37 CJPOA

Answer 12

Failure to account for presence at crime scene at time of arrest.

Question 13

Adverse inferences drawn under s.35 CJPOA

Answer 13

Failure by defendant to testify at trial

Question 14

What distinguishes adverse inferences drawn raised under s.36 versus those arising via s.36/37 CJPOA

Answer 14

S.37 and s.36 = do not require additional facts to be mentioned by defendant at trial.
- A mere failure to account suffices to draw an adverse inference.

Question 15

Six conditions allowing for an adverse inference to be drawn under s.34 CJPOA

Answer 15

ALL conditions must be met:

• proceedings against an person for an offence have started.
• alleged failure occurred before or on charge:
• D was questioned by a constable.
• Purpose of questioning was to discover how/who committed alleged offence.
• D relies on a fact as part of their defence that was not mentioned during interview.
• reasonable in circumstances for D to have mentioned fact.

Question 16

What key principle must the court consider when determining whether to admit adverse inferences at trial?

Answer 16

s.38 of CJOA, which states that adverse inference cannot be admitted to bolster what is an otherwise weak case.
- judge should direct jury that a defendant cannot be convicted on basis of adverse inference alone.

Question 17

In what two circumstances can an adverse inference not be drawn under s.34/36/37 CJOPA

Answer 17

1) unfit to be interview - ie. ill-health, confusion, or shock. (‘Thames’ factors);

OR

2) D was not at an authorised place of detention at time (ie. police station) of the failure to account + not given opportunity to consult a solicitor prior to questioning/charge.

Question 18

If suspect declines legal advice, can an adverse inference still be drawn?

Answer 18

Yes - where suspect is given opportunity to consult with a solicitor, but declines, then an adverse inference can be drawn if appropriate.

Question 19

In relation to adverse inference, when should a solicitor advise their client to remain silent and why?

Answer 19

Where any of the following ‘Argent’ factors are in existence at the time:

THAMES
1) Tiredness
2) Health: ill-health
3) Age: under 18
4) Mental capacity: not mentally capable to answer questions. 5) Experience
6) Sobriety: deemed fit for interview? Being intoxicated is not an Argent excuse

• these may be considered “good/reasonable cause” for remaining silent.

Question 20

What is hearsay?

Answer 20

• statement (also includes pictures/photos)
• not made in oral evidence; and
• relied on to prove a matter stated (“truthfulness” of something)

Question 21

When is a statement considered as being made to prove a “matter stated”?

Answer 21

• made by a person with the intention of either:

1) causing someone to believe the matter stated;
2) causing someone to act or operate on basis that matter is as stated.

• must be intended to be heard/communicated (ie. ≠ private diary)

Question 22

Where the prosecution/defence intends to admit a statement to assert the ‘matter stated’ is untruthful, is that hearsay?

Answer 22

No!
- hearsay is about relying on a statement to assert truth of a matter.

Question 23

What are the four categories under which hearsay is admissible?

Answer 23

1. Under statutory gateways
2. Common law rules
3. Agreement of all the parties
4. In the interests of justice

Question 24

What are the categories under which hearsay evidence is admissible under statute?

Answer 24

1. Witness is unavailable
2. Business document adduced
3. Previous inconsistent statements.
4. Previous consistent statements.
5. Documents prepared in anticipation of criminal proceedings.
6. Interests of justice
7. Multiple hearsay

Question 25

For hearsay, what is one key point to note about the business document that might be a trick-question?

Answer 25

If information is recorded into a police log following report of multiple hearsay, can only fall under this gateway if parties passing information to each other are engaging in business-type activity.

• If this was the case, then a police incident log could be treated as a business record.
• Otherwise, next best recourse is interest of justice gateway.

Question 26

When is a witness deemed unavailable?

Answer 26

1. Dead
2. Unfit due to physical/mental condition
3. Fear’s testifying due to defendant
4. Outside UK and not reasonably practicable to return
5. Unable to be found despite steps taken

DUFOU

Question 27

What are the three requirements for a business document to be adduced in exception to the rule against hearsay?

Answer 27

1. Created/received in the course of trade
2. Person who supplied the information may reasonably be considered to have personal knowledge of the matter, and
3. If the information was received by other persons, it was in the course of trade.

Question 28

What are the three categories under which hearsay evidence is admissible at common law?

Answer 28

1. Confessions, or statements part inculpatory and part exculpatory
2. Statements in public documents
3. Statements preserved by res gestae
4. Words spoken by co-defendants in a common enterprise

Question 29

What are the three categories of res gestae statements which are admissible in exception to the general rule against hearsay?

Answer 29

Statements:

1. Made when a person is so emotionally overpowered, the idea of fabrication can be disregarded
2. Accompanying an act which can only be properly evaluated with reference to the statement
3. Relating to physical or mental state

Question 30

In deciding whether to admit hearsay evidence in the interests of justice, what nine things must the court consider?

Answer 30

1. Probative value of the statement in proving a matter;
2. Alternate evidence is available?
3. Importance of the statement to the case;
4. Circumstances in which the statement was made;
5. Reliability of the maker;
6. Reliability of the evidence of actually being made (ie. multiple hearsay);
7. Can oral evidence be given?
8. Difficulty in challenging the statement?
9. Extent of prejudice to D

• also relevant when considering exclusions in s.117/116

DEAR COP - mnemonic

Question 31

What is one key point to note about the ‘interests of justice’ gateway for hearsay evidence in relation to prosecution witnesses?

Answer 31

court will not allow prosecution to rely on ‘safety valve’ provision to simply rescue it form its failure to get its own witnesses to attend trial.

Question 32

What may a defendant seek to adduce where their co-defendant confesses to the crime?

Answer 32

if charged the same proceedings, then defendant can rely on co-defendant’s confession where it supports its own defence to crime.

Question 33

What is multiple hearsay?

Answer 33

Hearsay within hearsay, where statement is relayed through more than one person before getting to court.

only gateways through which it can be adduced are (i) previous consistent/inconsistent statements (s.120/119) and (ii) business documents

Question 34

Is a defendant entitled to a ‘Vye direction’ even where they may be subjected to adverse inferences under s.35/36/37?

Answer 34

Yes.

Question 35

In additions to all parties agreeing and in the interests of justice, what are the four situations in which multiple hearsay will be admissible?

Answer 35

1. Business document
2. Consistent or inconsistent statement
3. All parties agree
4. Court is satisfied that the value of the evidence in question is so high it is in the interests of justice to admit it.

Question 36

What distinguishes gateway (c) from (d) regarding bad character evidence?

Answer 36

Gateway (c) is appropriate where there is an overlap with evidence that ‘has to do with’ the alleged facts of the offence.

• Without this background, the case would be incomplete.

Question 37

What is a key point to remember about propensity to be untruthful regarding gateway (d)?

Answer 37

not the same as dishonesty, and types of offences that show lack of truthfulness are not the same (ie. more akin to fraud, than theft).

Question 38

What is the definition of confession?

Answer 38

Any statement, wholly or partly adverse to the person who made it, whether made to a person in authority or not, and whether made in words or otherwise

Question 39

What is required for a confession to be admissible?

Answer 39

It must be relevant to a matter in issue, i.e. it goes to proving or disproving some fact in issue.
- prima facie admissible.

Question 40

What are the two bases on which the defence can challenge the admissibility of a confession?

Answer 40

1. Mistake, i.e. the listener misheard
2. Untruth

Question 41

Two ways a confession can be challenged under s.76(2) of PACE Code

Answer 41

1) obtained due to oppression; or
2) through something said or done that may render confession unreliable

• requires a causal link between the alleged conduct and D’s confession - ie. would otherwise have been made.

Mandatory ground if successful in adducing evidence regarding either of these objections.
* once evidence is adduced, burden shifts to prosecution to prove on a balance of probalities why this should be the case.

Question 42

When the admissibility of a confession is challenged, who bears the burden?

Answer 42

Prosecution must prove beyond a reasonable doubt that the confession was not obtained by oppression or unreliably.

Question 43

What is the distinction between the two gateways in s.76(2) of PACE Code to challenge confession evidence?

Answer 43

Oppression - adduced confession via ‘torture, inhuman or degrading treatment, and the use or threat of violence.’
- if so, must be excluded even if court thinks that the confession is true/genuine.

Unreliable - confession was adduced via coercive means (ie. false promises, significant breaches of PACE).
- key question - whether any evidence obtained in these circumstances would be reliable (not just D’s).

Question 44

Is any further evidence obtained in light of a confession ruled inadmissible also automatically excluded?

Answer 44

No!

Question 45

In what situation does the court have discretion to exclude any evidence offered by the prosecution?

Answer 45

If it appears, considering all the circumstances, that admission of the evidence would have an adverse effect on the fairness of the proceeding

Question 46

Other than s.76(2), what additional provision may allow for the exclusion of confession evidence?

Answer 46

S.78 of PACE Code - catch-all provision.
- gives judge discretion to exclude otherwise admissible evidence on basis of unfairness.
- adverse effect on proceedings must be significant/substantial.

cf. from s.76, power to exclude under s.78 is discretionary (‘may’)

Question 47

What are the seven grounds for admitting bad character evidence?

Answer 47

1. All parties agree
2. Evidence adduced by D
3. Important explanatory evidence
4. Relevant to important matter in issue (including propensity to commit similar offences)
5. Matter in issue between co-defendants
6. Correct a false impression given by D
7. D attacked another’s character, or questions a witness intending to elicit such

Question 48

What are the two conditions required for bad character evidence to be admitted as important explanatory evidence?

Answer 48

1. Without it, jury would find it difficult or impossible to properly understand other evidence
2. Its value to understanding the case as a whole is substantial

Question 49

What are two ways hearsay may be adduced with respect to a testifying witness?

Answer 49

1) Proof of previously inconsistent statements;
2) Proof of prior consistent statements, rebutting suggestion of pre-fabrication.
3) Statements used to refresh witness’ memory when cross-examined.

Question 50

What are six safeguard when admitting hearsay?

Answer 50

1) Inadmissible due to witness’ incapacity;
2) Challenging W’s credibility by adducing information undermining it (ie. convictions);
* note - likely require court’s permission as non-defendant bad character evidence.
3) Unconvincing hearsay - due to its importance, renders any possible convinction unsafe.
4) Unnecessary - time-wasted
5) Fairness (S.78 PACE) and common law rule (probabtive value outweighed by its prejudicial effects).
6) Jury direction pointing to the limitations of any hearsay evidence where jury has been unable to see or hear witness, or where it has not been subjected to cross-examination.

Question 51

Evidence of what prior offences can be admissible as relevant to important matter in issue?

Answer 51

All offences of the same kind, i.e. that demonstrate a similar pattern/mode of offending (ie. signature)

Question 52

If the prosecution wishes to introduce hearsay evidence, within how long of entry of a not guilty plea must notice be served in (1) the Magistrates Court and (2) the Crown Court?

Answer 52

1. Magistrates Court: as soon as praticable and no later than 20 business days.
2. Crown Court: no later than 10 business days.

Defence must object within 10 business days

Question 53

If a defendant wishes to admit hearsay evidence, within how long of entry of a not guilty plea must notice be served?

Answer 53

both Mags and C.C - as soon as practicable

Question 54

Where a co-defendant wishes to introduce hearsay, when must such notice be served?

Answer 54

as soon as practicable, and in any case, no later than 10 business days after initial disclosure from prosecution.

Question 55

In what instance might bad character evidence showing a propensity to be untruthful?

Answer 55

1) If untruthfulness is part of the offence (ie. fraud offences), or
2) Defendant plead not guilty to an offence they were subsequently convicted of.

Question 56

What is the higher threshold for bad character evidence to be admissible due to a matter in issue between co-defendants?

Answer 56

It must have substantial probative value, not just be relevant

Question 57

If the prosecution wishes to introduce bad character evidence, within how long of entry of a not guilty plea must notice be served in (1) the Magistrates Court and (2) the Crown Court?

Answer 57

1. Magistrates Court: 28 business days after guilty plea
2. Crown Court: 14 business days

Defence must object within 14 business days

Question 58

What is true when any of the seven grounds for admitting bad character evidence are made out?

Answer 58

The evidence is admissible

Question 59

To which two grounds does a special procedure apply?

Answer 59

1. Important matter in issue between P and D
2. D attacked another’s character

Question 60

For adverse inference, what is a special warning, and when is it relevant?

Answer 60

relevant for adverse inferences drawn under s.36 and s.37

Suspect must be told in ‘ordinary’ language about:
- what offence is being investigated;
- fact they are made to account for;
- fact may be due to them partaking in offence;
- court may draw adverse inference if they fail to account for this fact; AND
- record is being made of interview that can be admitted as evidence against them at trial.

Question 61

What is the special procedure for admission when the ground for admitting bad character evidence is either important matter in issue between prosecution and defence (s.101(d))
or defendant attacked another’s character (s.101(g))?

Answer 61

If the defendant makes an application to exclude, the court must not admit it if it appears that admitting the evidence would have such an adverse effect on the fairness of the proceedings, that they must not do so

Question 62

What is the similar general exclusion which applies to all seven grounds for admitting bad character evidence?

Answer 62

The court may refuse to admit evidence for the same reason: if it appears that admitting the evidence would have such an adverse effect on the fairness of the proceedings, that they must not do so

Question 63

Therefore, what is the difference between the adverse effect relief available generally, and in the two specific instances of important matter in issue between prosecution and defence
or defendant attacked another’s character?

Answer 63

Generally: When there would be an adverse effect on the fairness of the proceedings, court may refuse to admit the evidence

Two specific grounds: When there would be an adverse effect on the fairness of the proceedings, court must refuse to admit the evidence, if D applies

Question 64

When is a defendant entitled to a good character direction from the judge, and what are the two parts of this?

Answer 64

If D has no previous conviction.

Good character direction = Vye Direction
- made up of a propensity direction and a credibility direction.

Question 65

What is the propensity direction and what is the credibility direction?

Answer 65

Propensity direction: Person of good character is less likely to have committed an offence.

Credibility direction: Person of good character is more likely to be credible when they assert their innocence before of during trial.

Question 66

In what additional situation might a defendant receive a good character direction?

Answer 66

If they have previous convictions, but they are old, minor, or not related to the current charge

Question 67

Even if the defendant has no previous convictions, in what situation will a good character direction probably not be available?

Answer 67

If there is other bad character evidence upon which the prosecution relies

Question 68

If there is other bad character evidence upon which the prosecution does not seek to rely, can a good character direction be given?

Answer 68

The judge has discretion

Question 69

Common law exceptions for hearsay evidence

Answer 69

• public information
• evidence of reputation - if used only to establish character, and not that a matter is true.
• Res gestate - statement made spontaneously by victim during crime (ie. what are your hands doing there pervert?)
• confessions
• statements in furtherance of joint enterprise (ie. one defendant’s statement can be used against all others)
• expert evidence (as in disputes)
• Statements by agents (ie. D’s solicitor)

Question 70

Where a witness is unavailable to testify orally at trial, will their statement be inadmissible as hearsay?

Answer 70

NO - one of the statutory exceptions.
- where W is known but unfit/unavailable, then statement is prima facie admissible (≠ hearsay)

Question 71

How must the judge direct the jury where the ID evidence is of poor quality, but supported by additional prosecution evidence?

Answer 71

Give Turnbull warning:

1) Reason for warning: may convict someone by mistake.
2) Direct jury to examine circumstances in which identification was made and take into account difficulties in identification.
3) Remind jury of weakness in ID evidence - go through ADVOKATE.

Question 72

When will a judge make a Vye direction?

Answer 72

If D has no prior cautions/convictions = entitled to full Vye Direction (‘absolute good character’)

if D has prior cautious/convictions, but these are minor/old/unrelated = judge has discretion to make Vye Direction.
- if need, judge can modify test to reflect other matters to ensure jury is not misled (‘effective good character’)

If D has previous cautions/convictions that are adduced via s.101 by the defence = no entitlement to Vye Direction, but judge has discretion.

Question 73

Can the prosecution rely on s.76 and s.78 of PACE to exclude defence evidence?

Answer 73

NO!
- prosecution may only seek to do so on the common law basis.

Question 74

What general power does the court have to exclude bad character evidence?

Answer 74

S.101(3) CJA - if court takes the view that admitting bad character evidence would have “such an adverse effect on fairness of proceeding,” it must exclude it.

Relevant where prosecution applies to admit bad character evidence under (i) propensity gateway (101(1)(d)) or (ii) where D attacks another person’s character (g).

• revised form of s.78

Question 75

What bad character gateway is available only to the prosecution?

Answer 75

Bad character to correct a false impression(s.101(1)(f))

Question 76

What evidence of a defendant’s bad character is prima facie admissible without satisfying any of the gateways?

Answer 76

Evidence relates to either:
(1) alleged facts of the offence with which the defendant is charged;
(2) evidence of misconduct connected to investigation/prosecution related to current offence.

Question 77

What are two offences falling under the same category by order of the SoS when considering gateway s.101(1)(d) to admit bad character evidence?

Answer 77

theft offences and sexual offences against children under 16

Question 78

When might a court refuse admissibility of bad character evidence under s.101(1)(d)?

Answer 78

where it is satisfied that given the length of conviction, it would be unjust to.

Question 79

What are the three questions the court will follow when deciding whether to admit bad character evidence under gateways gateways (d) and (g)?

Answer 79

1) Does the history of conviction show a propensity to commit offences of the kind charged?
2) Does the propensity make it more likely that the defendant committed the offence charged?
3) In any event, is it unjust to rely on the conviction of the same description/category?

Question 80

What are key guidelines to consider when admitting bad character evidence under s.101(1)(d) and (g)?

Answer 80

• degree of similarity between past convictions and current offence (notwithstanding falling in same category)
• gravity of offences/convictions
• strength of prosecution’s case - weaker it is, themore unjust it would be to admit it.
• date of commission is more significant than date of conviction.
• look at each individual conviction, rather than record as a whole.
• where past events are disputed, important to ensure trial does not turn into a prologed investigation of D’s past misconduct.
• where a judge directed themselves correctly, CoA will be slow to interfere regarding any appeal as to its admissibility by defence.

Question 81

What disclosure duties is the police subjected to at the investigative stage?

Answer 81

1) duty to follow all reasonable reasonable inquires whether or not the point to the defendant. Remain fair and objective.

2) duty to inspect, view, listen, and search for all relevant material.

Question 82

How long must the police retain material discovered during its investigation?

Answer 82

• if defendant is charged and found guilty, must be retained until its release date (custodial sentence), or 6 months from date of conviction (non-custodial/hospital order).
• If acquitted - until acquital

Question 83

Where part of the identification appears weak, will a Turnbull warning be required?

Answer 83

yes, even if the other witness accounts corroborate the ‘weaker’ one, and other physical evidence is present.
- note- no such thing as partial warning.

Question 84

What are the additional requirements
when adducing documents prepared in criminal proceedings under the business document gateway for hearsay?

Answer 84

Beyond general requirements, must also show that either that W is :
(i) unable to testify or
(ii) cannot be reasonably expected to have recollection given length of time since information was supplied.

Question 85

As a first step before drawing any adverse inferences, what must the jury be satisfied with?

Answer 85

that the prosecution has a case to answer.

Question 86

In which cases of hearsay is a notice required?

Answer 86

• Business and other documents (s.117)
• Unavailable witness (s.116)
• Interests of justice (s.114)
• Multiple hearsay (s.121)

Question 87

What are the consequences of failing to give a hearsay notice, or doing so late?

Answer 87

1) Evidence is not admissible without the court’s permission;

2) Where permission is grant, it may draw such inferences as appear proper from the failure to give notice; and take this into account when exercising powers as to costs.

Question 88

What are the three gateways for admitting non-defendant bad character evidence?

Answer 88

1) Important explanatory evidence
2) Substantial probative value to either context of case as a whole or specific matter in issue;
3) Agreement by all parties

Question 89

What type of bad character evidence may be adduced by a defendant under s.101(g), which is not admissible under s.101(d)?

Answer 89

s.101(g) can also be used to illustrate a propensity to be dishonest

cf. s.101(d) - only where it shows a propensity to be untruthful

Question 90

Where a defendant faces multiple charges in the same proceedings, is the evidence from one charge admissible as bad character evidence?

Answer 90

yes, under gateway s.101(d), where a defendant is charged for committing the same offence against two different victims (ie. sexually assaulting two siblings).