3. Principles and procedures to admit and exclude evidence

Question 1

What are the 2 basic requirements which need to be satisfied for a piece of evidence to be taken into account?

Answer 1

1. Must be relevant to facts in issue in the case
2. Must be admissible

Question 2

What is the evidential burden on the prosecution?

Answer 2

Must show that the defendant has a case to answer

Question 3

What is the evidential burden on the defence?

Answer 3

Only required to give evidence of some defences - just need to put the evidence forward and then prosecution to prove beyond reasonable doubt that defence raised is not true

Question 4

What is the effect of s 78 PACE?

Answer 4

Provides court with discretion to exclude evidence if it will have an adverse effect on proceedings

Question 5

Is evidence automatically inadmissible if it breaches, for example, Code D?

Answer 5

No, it is for the defence to argue that the judge should exercise their discretion as to its admissibility

Question 6

What is the threshold for a breach of PACE in order for the court to grant an application to exclude evidence?

Answer 6

Significant and substantial - i.e. strong causal link between breach and result

Question 7

If evidence was gained by “entrapment”, what defence is available?

Answer 7

No defence of entrapment is available, so common law power to stop case on basis it would represent an abuse of process to allow such a prosecution to continue

Question 8

What are the Turnbull guidelines?

Answer 8

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

Question 9

If there is a disputed visual sighting, how should s 78 PACE and the Turnbull guidelines be used?

Answer 9

1. Consider whether there is any basis upon which an application can be made to challenge the admissibility of the evidence under s 78
2. If admissible, focus on undermining the credibility of the evidence (not procedure) using the Turnbull guidelines

Question 10

In what identification situations would the Turnbull guidelines apply?

Answer 10

1. Witness picks out defendant informally
2. Witness picks them out as part of a formal identification procedure at police station
3. Witness claims to recognise defendant as someone previously known to them

Question 11

What factors would the judge consider in assessing the quality of the identification procedure?

Answer 11

o Length of the observation
o Distance of witness
o Lighting – was it in daylight or at night etc
o Conditions – weather; sight-line or obstructions to sight
o How much of the suspect’s face did the witness actually see
o Whether the person identified someone who was already known to the witness (recognition case) or someone they had never seen before
o How closely the original description given by the witness initially matched the defendant

Question 12

What steps will the judge take if they consider the identification to be good?

Answer 12

They will still warn the jury of the dangers of relying on identification evidence and special caution needed (Turnbull warning)

Question 13

What steps will the judge take if they consider the identification to be poor but supported by other evidence?

Answer 13

They will warn the jury of the dangers of relying on identification evidence and special caution needed (Turnbull warning) as well as draw attention to weakness of the identification

Question 14

What steps will the judge take if they consider the identification to be poor and it is not supported by other evidence?

Answer 14

They should stop trial and direct jury to acquit defendant - normally follows a submission of no case to answer being made

Question 15

How are the Turnbull guidelines applied in the magistrates’ court?

Answer 15

Similar as in the Crown Court, but the defendant’s solicitor will address the Turnbull guidelines in address to the magistrate in closing evidence

Question 16

What inferences can be drawn from under s 34 CJPOA 1994?

Answer 16

Defendant raises defence at trial that they didn’t mention at interview

Question 17

What inferences can be drawn from under s 35 CJPOA 1994?

Answer 17

Defendant does not give evidence at trial

Question 18

What can inferences be drawn from under s 36 CJPOA 1994?

Answer 18

Defendant fails to account for a mark, substance, property on defendant’s person (requires special caution at interview)

Question 19

What can inferences be drawn from under s 37 CJPOA 1994?

Answer 19

Defendant failed to account for their presence at a certain place any time (requires special caution at interview)

Question 20

What is the effect of s 38 CJPOA 1994?

Answer 20

Jury can’t convict solely on adverse inferences

Question 21

If the adverse inference is being drawn under s 34 for silence in the interview before being charged, what are the pre-conditions as per R v Argent?

Answer 21

1. Interview had to be under caution
2. Defendant failed to mention any fact later relied on at court
3. Questioning in interview had been directed at trying to discover who committed the offence
4. Defendant could reasonably have been expected to have mentioned to fact when questioned

Question 22

If the defendant provides a written statement containing all the facts the defendant intends to rely on in court, can an adverse inference still be drawn from silence in interview under s 34?

Answer 22

No

Question 23

If a defendant’s solicitor has advised them to remain silent, can adverse inferences still be drawn from their silence in interview under s 34?

Answer 23

The court must consider whether they accept the reasons the solicitor gave for silence as good reasons, and then must direct as to whether adverse inferences can be drawn or not

Question 24

Does an object need to be on a person at their time of committing the crime in order for adverse inferences to be drawn under s 36?

Answer 24

No, but must be at time of arrest - e.g. laptop found at home at time of arrest

Question 25

Which types of adverse inferences require “special notice”?

Answer 25

S 36
S 37

Question 26

What constitutes “special notice” with regards to adverse inferences?

Answer 26

Defendant has been told what the offence under investigation is

Defendant has been told what they’re being asked to account for

Officer has told defendant they believe this fact may be due to the suspect taking part in the commission of the offence in question

Been warned of adverse inferences

Defendant aware that record is being made of the interview

Question 27

In order to draw adverse inferences due to failure to give evidence on own behalf under s 35, what additional factors must the court take into account?

Answer 27

o Burden of proof remains on prosecution throughout
o Defendant is entitled to remain silent
o Before drawing adverse inference, court must be satisfied that there is a case to answer
o Adverse inference from defendant’s failure to give evidence cannot on its own prove guilt
o No adverse inference can be drawn unless only sensible explanation for silence is that defendant has no explanation, or that explanation would not stand up to cross-examination

Question 28

What is the limited statutory exception to the drawing of adverse inferences at trial?

Answer 28

None should be drawn where it appears to the court that the physical or mental condition of the accused makes it undesirable for them to give evidence