3. Principles and Procedures to Admit and Exclude Evidence - Part 1

Question 1

What are the two fundamental requirements for considering evidence in a criminal trial?

Answer 1

1. The evidence must be relevant to the facts in issue.
2. The evidence must be admissible.

Question 2

What types of evidence, relevant and admissible, can be used in a criminal case to establish a defendant’s guilt?

Answer 2

Both direct evidence of a defendant’s guilt and circumstantial evidence from which guilt may be inferred can be used.

Question 3

In criminal cases, who bears the legal burden of proving the defendant’s guilt, and what is the required standard of proof?

Answer 3

Legal burden: the prosecution
Standard of proof: beyond reasonable doubt

Question 4

When will the legal burden of proving the defendant’s guilt fall on the defendant?

Answer 4

defendant pleads not guilty + raises the defence of insanity/duress

Question 5

When the defendant bears the legal burden what is the standard of proof that is required?

Answer 5

proof on the balance of probabilities

Question 6

What is the burden on the prosecution for evidential burden?

Answer 6

present sufficient evidence to the court to justify

Question 7

What is the evidential burden on the defendant?

Answer 7

to raise a defence

Question 8

What is the evidential burden on the prosecution and what is the required standard of proof?

Answer 8

To disprove the defence rasied by the defendant beyond reasonable doubt.

Question 9

What is required of the prosecution in disproving the defence, with regards to evidential burden?

Answer 9

Must present sufficient evidence to the court and justify a finding of guilt and to show that the defendant has a case to answer.

Question 10

When will the defence be entitled to make a submission of no case to answer, and what is the effect?

Answer 10

If the prosecution fail to meet the evidential burden on them (discharged their evidential burden)

Allows the defence to ask the court to dismiss the case.

Question 11

Is the defendant obliged to submit evidence to prove their innocence?

Answer 11

No

Question 12

When will a defendant be expected to submit evidence to prove their defence?

Answer 12

When raising a specific defence, a defendant must place some evidence of that defence before the court if they want it to be considered for the verdict.

Question 13

What is an example of evidence a defendant can submit to satisfy their evidential burden for raising a specific defence?

Answer 13

Enter witness box and give details of defence

Question 14

What does Section 78 of PACE 1984 allow the court to do in relation to evidence sought by the prosecution?

Answer 14

grants the court the discretion to exclude evidence that, if admitted, would have such a negative impact on the fairness of proceedings that it should not be allowed.

Question 15

When is Section 78 of PACE 1984 typically raised by a defendant’s solicitor?

Answer 15

commonly raised by the defendant’s solicitor when police methods for obtaining evidence substantially breach PACE 1984 or the Codes of Practice.

Question 16

What are examples of situations where breaches of the Codes of Practice may occur during police procedures?

Answer 16

• Breaches may occur during a video identification procedure if the images don’t resemble the suspect as required by Code D
• Breaches can happen at an identification parade if witnesses aren’t properly segregated as required by Code D.
• A breach occurs if the police fail to hold a required identification procedure during the defendant’s detention at the police station according to Code D.

Question 17

What steps should the defendant’s solicitor take when visual identification evidence is obtained following a significant breach of Code D, and the prosecution seeks to rely on it?

Answer 17

• Initially, challenge the admissibility of the evidence and request the court to exclude it under s 78 of PACE 1984.
• Only if the court does not exercise its discretion under s 78, consider undermining the quality of the original sighting evidence through cross-examination and making representations to the court regarding the Turnbull guidelines.

Question 18

What are the turnbull guidelines and what is their purpose?

Answer 18

Special guidelines
Purpose: apply when a witness who gives evidence for the CPS visually identifies the defednant as the person who committed the crime, and the defendant disputes that identification.

Question 19

What characterizes a ‘Turnbull witness’?

Answer 19

Witness who identifies the defendant as the perpetrator of the offense through one of these means:
* informal identification,
* formal identification at a police station, or
* recognizing the defendant as someone previously known to them.

Question 20

When do the Turnbull guidelines apply?

Answer 20

apply only when the defendant disputes the visual identification made by the witness.

Question 21

When will the turnbull guidelines not apply?

Answer 21

If a witness only gives a description to the court of the person who committed the crime, but
there is no direct evidence that it was the defendant .

Question 22

In applying the Turnbull guidelines, what factors will the judge consider when assessing the quality of the identification evidence?

Answer 22

1. the length of the observation
2. distance
3. lighting
4. conditions
5. How much of the suspect’s face did the witness actually see?
6. Whether if the person identified was someone the witness knew, or first time to see.
7. Closeness of initial description given to actual appearance of the defendant.

Question 23

In the Crown Court, who is responsible for assessing the quality of the identification evidence given by a witness called by the CPS?

Answer 23

the trial judge

Question 24

What is a ‘Turnbull warning’?

Answer 24

• Alerts the jury to the dangers of relying on identification evidence.
• Emphasizes the need for caution when considering such evidence.
• Advises the jury to closely examine the circumstances of the sighting.
• Directs the jury to consider specific factors when evaluating the identification evidence.

Question 25

When is a Turnbull warning given?

Answer 25

Given when the quality of the original eyewitness sighting is considered, either:
* good quality; OR
* poor quality but supported by other evidence

Question 26

What is the extra factor the judge will consider for a Turnbull warning for poor but supported identification?

Answer 26

judge will also draw to the specific attention of the jury the weaknesses in the identification evidence which has been given.

Question 27

What is the meaning of supporting evidence and what are the examples?

Turnbull Warning - poor but supported

Answer 27

some other evidence which suggests that the identification made by the witness is reliable.

Examples: confession + DNA + stolen property found + adverse inferences

Question 28

What should the judge do if the identification evidence is of poor quality and lacks support from other prosecution evidence?

Answer 28

• judge should stop the trial at the end of the prosecution’s case.
• judge directs the jury to acquit the defendant
• following a submission of no case to answer by the defendant’s advocate.

Question 29

Is it necessary for the defendant’s solicitor to address the magistrates on the Turnbull guidelines during the course of the trial?

explain why

Answer 29

Yes, because the magistrates decide matters of both fact and law.

Question 30

What action should the defendant’s solicitor take if they believe the identification evidence is of poor quality and there is no other supporting evidence from the CPS?

Answer 30

The solicitor should make a submission of no case to answer at the end of the prosecution’s case.

Question 31

When is a submission of no case to answer unlikely?

Answer 31

when the identification evidence is supported by other CPS evidence, regardless of whether it’s good or poor.

Question 32

How does the defendant’s solicitor typically handle identification evidence when a submission of no case to answer is unlikely?

Answer 32

The solicitor addresses the Turnbull guidelines in their closing speech to the magistrates. They emphasize the potential unreliability of eyewitness identification evidence, urge caution, and point out any weaknesses in the evidence.

Question 33

What are the possible disadvantaged of an aressted suspect exercising their right to silence?

Answer 33

On trial, the court may be allowed to draw ‘adverse inferences’ from the earlier silence.

Question 34

What is an adverse inference?

Answer 34

The term ‘adverse inference’ means a court
is likely to draw a negative conclusion from the defendant’s silence when interviewed at the
police station.

Question 35

Can a defendant be convicted of an offense based solely on an adverse inference under ss 34, 36, or 37 of the CJPOA 1994?

Answer 35

No, a defendant cannot be convicted of an offense solely based on an adverse inference from their silence during a police interview.

Silence alone cannot prove guilt.

Question 36

When can the prosecution ask the court to draw an adverse inference from a defendant’s silence during a police interview?

Answer 36

The prosecution can request an adverse inference only after presenting other evidence that establishes the defendant has a case to answer and warrants an explanation from the defendant.

Question 37

Under what circumstances can a court draw an adverse inference from a defendant’s silence during police questioning?

Answer 37

• A court is not allowed to draw an adverse inference if the defendant’s silence occurred when they had not been given the opportunity to consult a solicitor for independent legal advice.
• The defendant must have had the opportunity to take independent legal advice, even if they declined it, before adverse inferences can be drawn.

Question 38

If a defendant decliens legal advice and chooses to stay silent, can adverse inferences be drawn?

Answer 38

Yes

Question 39

When can a court or jury draw an adverse inference from a defendant’s silence during police questioning, as per Section 34?

Answer 39

If the defendant fails to disclose something later relied on at trial if it was reasonably expected for the defendant to know at interview, before or after charging, and being informed of potential prosecution.

Question 40

Do inferences against a defendant under Section 34 only apply to ‘no comment’ interviews?

Answer 40

No, inferences against a defendant can arise even if the defendant answers all questions during the interview.

Section 34 is satisfied when the defendant, at trial, raises a fact in their defense that they didn’t mention during the interview but could reasonably have been expected to mention.

Question 41

What are the key conditions for Section 34 to apply, allowing the court to draw adverse inferences from a defendant’s silence during a police interview?

Answer 41

• The interview must be conducted under caution.
• The defendant must fail to mention a fact later used in their defense at trial.
• The failure to mention this fact must occur before the defendant is charged.
• The questioning during the interview must be aimed at discovering the alleged offense’s perpetrator.
• The fact not mentioned must be one that, under the circumstances at the time, the defendant could reasonably have been expected to mention during the interview.

Question 42

When can a jury be directed to draw an adverse inference from a defendant’s silence during questioning?

Answer 42

if the court is satisfied that the defendant’s silence stems from having no valid answer to the questions posed or no answer that would withstand scrutiny.

Question 43

Can inferences from a defendant’s failure to answer questions during their initial police station interview be drawn at trial, even if they later answered questions in a subsequent interview?

Answer 43

Yes, inferences from the defendant’s failure to answer questions in the first interview can still be drawn at trial, even if they subsequently answered questions in a later interview.

Question 44

What is the key difference in how a court handles a defendant’s silence under Section 34(1)(a+b) when the defendant places their factual defense on record during a police interview and remains silent when charged compared to when the defendant remains silent during the interview and raises a defense at trial?

Answer 44

• Factual defence at interview + silent at trial = no adverse inferences.
• Silent at interview + defence at trial = adverse inferences.

Question 45

What is the advantage of using a prepared written statement completed by the solicitor rather than an interview?

Answer 45

Allows the client’s version of events to be set out in a clear and logical way - better for client’s who may not interview well.

Question 46

What is the purpose of s 34?

Adverse Inferences

Answer 46

To encourage defendants to make an early disclosure of their defence to the police, not to
allow the police to scrutinise and test that defence in interview

Question 47

Can a court draw adverse inferences if a defendant refuses to answer questions on witness statement they submitted?

Answer 47

No - a defendant does not have to answer the police’s questions on their witness statement.

Question 48

When may a solicitor advise a suspect to remain silent?

Answer 48

• The level of disclosure given by the police, particularly when meaningful disclosure is lacking.
• The nature of the case, such as complexity or events occurring a long time ago.
• The personal circumstances of the suspect, which may include health issues, mental disorder, vulnerability, exhaustion, confusion, shock, or intoxication.

Question 49

What happens when a defense solicitor prepares a written statement for their client but doesn’t hand it to the police?

Answer 49

• If the written statement is not given to the police, it prevents the court from drawing the inference of recent fabrication at trial.
• However, the court can still draw an inference that the defendant lacked confidence in their defense and didn’t want it investigated by the police after the interview.

Question 50

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

Answer 50

• Claiming that their silence during a police interview was due to legal advice from their solicitor does not automatically prevent the court from drawing an adverse inference if they later raise a fact in their defense that they failed to mention at the police station.
• Legal advice is a fundamental part of the right to a fair trial and must be given appropriate weight at trial, but it doesn’t guarantee that an adverse inference won’t be drawn if the defendant raises new facts.

Question 51

What is the ultimate question for the court or jury under Section 34 when a defendant relies on legal advice for their silence?

Answer 51

whether the facts relied on at trial were ones the defendant could reasonably have been expected to mention during the police interview.

Question 52

Does genuine reliance on legal advice necessarily prevent adverse inferences under Section 34?

Answer 52

No, genuine reliance on legal advice is not necessarily the end of the matter. Even if the defendant genuinely relied on legal advice, it might not be reasonable to rely on the advice, or the advice might not be the true explanation for their silence.

Question 53

Under what circumstances should adverse inferences not be drawn under Section 34?

Silence on legal advice

Answer 53

if the jury believes that the defendant genuinely and reasonably relied on the legal advice to remain silent.

Question 54

What is protected by legal privelege?

Inferences under s34

Answer 54

Conversations between a suspect and their solicitor at the police station

Question 55

What is the difference in how the police can inquire about the advice a suspect received from their solicitor during an interview and at trial?

Legal Privilege

Answer 55

Interview: police are not allowed to ask a suspect about the advice they received from their solicitor during an interview - legal privilege.
Trial: a defendant may give evidence that waives this privilege, allowing the prosecution to cross-examine them about the reasons for the legal advice they received.

Question 56

Does a defendant waive privilege by testifying that they remained silent in an interview on their solicitor’s advice to prevent an adverse inference at trial?

Answer 56

No, giving evidence at trial that they remained silent in the interview only on their solicitor’s advice to prevent an adverse inference does not automatically waive privilege.

Question 57

What happens when a defendant provides the reasons for their solicitor’s advice to remain silent at trial?

Answer 57

When the defendant gives these reasons during their evidence-in-chief, legal privilege is waived.

Question 58

What does waiving legal privilege allow at trial?

Answer 58

Waiving legal privilege enables cross-examination of the defendant (and possibly their solicitor) about any other reasons for the advice.

Question 59

Can the prosecution cross-examine the defendant and their solicitor on instructions given at the police station leading to advice to remain silent?

Answer 59

Yes

Question 60

Under what circumstances can the court or jury draw an adverse inference according to Section 36?

Answer 60

D fails to account for the presence of a substance, object or mark on arrest/interview.

Question 61

When does section 36 apply?

inferences - fail to account for substance, object or mark on arrest.

Answer 61

• The defendant is arrested by a constable, and there is an object, substance, or mark on their person, clothing, footwear, in their possession, or in their vicinity at the time of arrest.
• A constable investigating the case reasonably believes that the presence of the object, substance, or mark may be linked to the defendant’s involvement in a specified offense.
• The constable informs the defendant of this belief and requests an explanation.
• The defendant fails or refuses to provide an explanation.

Question 62

What is the key difference between Section 34 and Section 36 regarding when they apply?

Answer 62

• Section 34 applies if a defendant raises a fact at trial that they failed to mention at the police station.
• Section 36 operates regardless of any defense put forward; it can apply independently of any defense raised by the defendant (even if no defence raised).

Question 63

Under what conditions can inferences be drawn under Section 36 + 37, and what must the police officer inform the suspect before requesting an explanation?

Answer 63

Only drawn if the police officer provides the suspect with a ‘special caution,’ informing them of the following:
* The offence under investigation.
* The specific fact the suspect is being asked to explain.
* The officer’s belief that the fact may be linked to the suspect’s involvement in the offense.
* The potential for a court to draw an adverse inference from failure to comply.
* The recording of the interview and its potential use as evidence at trial.

Question 64

Under what circumstances can the court draw an adverse inference according to Section 37?

Answer 64

when questioned at the police station, the defendant failed to account for their presence at a particular place at or about the time the offense was committed.

Question 65

What are the conditions under which the court can draw an adverse inference according to Section 37?

Answer 65

• if a person arrested by a constable was found by the constable at a place at or about the time the alleged offense was committed.
• A constable investigating the offense reasonably believes that the person’s presence at that place and time may be attributed to their participation in the offense.
• The constable informs the person of this belief and requests an explanation for their presence.
• The person fails or refuses to provide an explanation.

Question 66

What is an inference that is likely to be drawn?

s34, 36 and 37

Answer 66

D had no explanation/knowledge OR none that would stand up to police questioning.

Question 67

Does Section 37 operate independently of any defense put forward, and when does it apply?

Answer 67

Section 37 operates irrespective of any defense put forward (even if no defence).

Question 68

What are a defendant’s obligations regarding giving evidence in their own defence at trial?

Answer 68

• A defendant is not obligated to give evidence on their own behalf at trial, and they are not obligated to raise any facts in their own defence.
• They are entitled to remain silent at trial and simply argue that the prosecution has failed to prove guilt beyond a reasonable doubt.

Question 69

Can adverse inferences be drawn against a defendant for not raising new facts in their defence that were not mentioned at the police station? What about when a defendant fails to give evidence at trial?

section 34 and 35

Answer 69

• Section 34: No adverse inferences for not raising new facts post-police station.
• Section 35: Adverse inferences possible if defendant doesn’t testify at trial.

Question 70

What is the effect of section 35?

silence at trial

Answer 70

Section 35 Effect: If the prosecution raises issues requiring an explanation from the defendant, their failure to testify may lead the court to infer they have no valid explanation.

Question 71

What factors does the court consider when applying Section 35, which allows for adverse inferences from a defendant’s silence at trial?

Answer 71

• Burden of proof on prosecution.
• Defendant’s right to remain silent.
• Requirement of a case to answer.
• Inability of adverse inference to prove guilt alone.
• Silence only inferred as admission when no credible defense exists.

Question 72

Can a defendant be convicted of an offense based solely on an adverse inference from their failure to give evidence in their defense at trial? What does this apply to?

Answer 72

No, a defendant cannot be convicted of an offense if the only evidence against them is an adverse inference from their failure to give evidence

Applies to all inferences drawn under s 34, 35, 36, and 37.

Question 73

Is there an exception to the drawing of adverse inferences when a defendant doesn’t give evidence at trial?

Answer 73

Yes, the court may choose not to draw an adverse inference if it appears that the defendant’s physical or mental condition makes it undesirable for them to give evidence.

exception applied strictly

Question 74

What does Section 78(1) allow a court to do regarding the admission of evidence in proceedings, and under what circumstances?

exclusion of evidence

Answer 74

allows a court to refuse to admit evidence that the prosecution wants to rely on if, considering all the circumstances, including how the evidence was obtained, admitting it would significantly harm the fairness of the proceedings.

Question 75

Under what circumstances is the court likely to exercise its discretion to exclude prosecution evidence under Section 78, and what is the key factor in this decision?

Answer 75

• to exclude prosecution evidence when there is something unreliable about the evidence obtained by the police
• which would make it unfair for the CPS to rely on such evidence.

Question 76

Under what circumstances is evidence unlikely to be excluded under Section 78, even if there were breaches of PACE 1984 and/or Codes of Practice during its acquisition?

Answer 76

if it is relevant to the defendant’s charge and there are no reliability concerns

Question 77

When can applications to exclude prosecution evidence under Section 78 be granted based on police breaches of PACE 1984 or the Codes of Practice, according to court decisions?

Answer 77

can be granted based on police breaches only if the breaches are deemed** ‘significant and substantial’ **

Question 78

What are common examples of prosecution evidence that a defendant may seek to have excluded under Section 78 and why?

Answer 78

Examples:
* (a) Evidence obtained following an illegal search.
* (b) Identification evidence.
* (c) Confession evidence.
* (d) Evidence obtained from the use of covert listening and surveillance devices.
* (e) Evidence obtained in ‘undercover’ police operations.

Reason: significant and substantial breaches of legal procedures or pose reliability concerns.

Question 79

What is the scope and application of s 78 PACE and the right to a fair trial?

Article 6 ECHR

Answer 79

• Article 6 of the ECHR guarantees a ‘fair’ hearing for criminal defendants.
• Section 78 grants trial judges discretion to exclude evidence to prevent unfairness.
• ECHR emphasizes the overall fairness of proceedings.
• Section 78’s discretion helps ensure fairness of those proceedings for the defendant.

Question 80

Is ‘entrapment’ a recognized defence, and what is the preferred approach to address cases involving potential entrapment?

Answer 80

• ‘Entrapment’ is not a recognized defense.
• Preferred approach: is to challenge the admissibility of evidence under Section 78, or to invite the court to exercise its common law power to stop the case if it would be an abuse of process to allow the prosecution to continue.

Question 81

Does the jury have to draw adverse inferences?

Answer 81

No, it is discretionary.

They may choose to if there is reasonable reasons to believe that they need to.

Question 82

What courts are the Turnbull guidelines relevant in?

Answer 82

Both the magistrates and Crown Court

Question 83

In a crown court case, who will direct the Turnbull guidelines and who takes the final decision?

Answer 83

The judge will direct the jury but the jury have discretion to make the final decision of on the evidence.