👩🏽‍⚖️CLP 3: Ev (s78, turnball, ID, adverse inferences)

Question 1

What must evidence be for jury/magistrates to take evidence into account in deciding what facts are at issue?

Answer 1

1. Relevant-to facts in issue in case
2. Admissible (law allows such evidence to be used in a criminal trial)

Question 2

What are the types of evidence?

Answer 2

Direct evidence of Ds guilt
Circumstantial evidence-from which guilt may be inferred

Question 3

How can evidence be excluded?

Answer 3

S78 PACE 1984: In any proceedings the court MAY refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Question 4

When is evidence unlikely to be excluded under s78 PACE?

Answer 4

1. Evidence relevant to charge
2. AND nothing abt way it was obtained which casts doubt on reliability (even if PACE/Code if Practice breached)

Question 5

In what circumstances is the court likely to exercise its discretion to exclude prosecution evidence under s 78?

Answer 5

If there is something unreliable about the evidence which the police have obtained, which in turn means that it would be unfair to allow the CPS to rely on such evidence.

Question 6

According to case law, when is the only time a s78 application based on a breach of PACE will be granted?

Answer 6

breaches of PACE are significant and substantial

Question 7

Can you challenge evidence via entrapment and abuse of process?

Answer 7

No defence of entrapment but can challenge admissibility of evidence under s78
Not acceptable for police to lure individuals into committing unlawful acts and prosecute them, consider:
□ Nature of investigation-intrusive?
□ Nature of offence-some offences can only be committed and so discovered in covert way
□ Nature of police involvement
□ Defendants criminal record
□ Level/extent of supervision of undercover officers

Question 8

When can the admissibility of disputed visual identification evidence be challenged?

Answer 8

If police breach identification rules (Code D, Codes of Practice)

Question 9

What should a defence solicitor do to challenge disputed visual identification evidence?

Answer 9

1. Challenge admissibility of evidence & ask court to exercise discretion under s78 PACE
2. Undermine quality of evidence in cross-examination and consider Turnbull guidelines

Question 10

What does the Turnbull guidelines apply to?

Answer 10

Where D disputes visual identification evidence made by witness (NOT if just give description to court)

Question 11

When is a witness a Turnbull witness?

Answer 11

If they:
a. Pick D out informally
b. Identify D at formal identification procedure
c. Recognise D as someone previously known to them

Question 12

7

What is considered when assessing the quality of identification evidence?

Answer 12

Consider original sighting and take into account:
1. Length of observation
2. Distance between witness and D
3. Lighting
4. Conditions-weather/view obstructed?
5. How much of suspects face did they actually see (clear v vague description)
6. Identifying someone known to witness v strangers
7. How closely description matches actual physical appearance of D

Question 13

What are the outcomes that the judge/magistrates may find for regarding visual identification evidence

Answer 13

1. Identification is good quality
2. Identification is poor quality but supported by other evidence (ie. Confession, fingerprints, DNA, stolen prop in possession, adverse inferences)
3. If identification is poor quality and unsupported by other evidence

Question 14

What happens if the identification evidence is found to be of good quality?

Answer 14

MC-sol address Turnbull guidelines on closing speech, saying v unreliable and should exercise caution

CC-Judge give Turnball warning-dangers of relying on identification evidence and how honest witness to mistake identity, jury to examine circumstances of original sighting

Question 15

What happens if the identification evidence is found to be of poor quality but is supported?

Answer 15

MC-Ds sol address Turnbull guidelines on closing speech, saying v unreliable and should exercise caution.

CC-Judge give Turnball warning
AND draw specific attention to weaknesses of identification evidence and look for other supporting evidence

Question 16

What happens if the identification evidence is found to be of poor quality and is unsupported?

Answer 16

□ MC-Ds sol make app of no case, must aquitt
□ CC-Judge stop trial at end of pros case and direct jury to acquit , will normally follow submission of no case by Ds advocate

Question 17

When (in time) will an ID procedure occur?

Answer 17

• After initial interview
• If suspect known to police

Question 18

What must police do before an ID procedure takes place?

Answer 18

Police must keep record of witnesses’ first description of suspect and give copy to suspect/their solicitor to use if theres discrepancies

Question 19

4

When must an ID procedure be held?

Answer 19

1. A witness has identified/purported to have identified a suspect
2. OR a witness thinks they can/theres a reasonable chance they can identify the suspect AND the suspect disputes being the person the witness has seen =MUST be held unless not practicable or would serve no useful purpose in proving/disproving if suspect involved in offence
3. A witness says they identified the suspect in the street some time after crime committed
4. Officer in charge considers is would be useful

Question 20

2

When is an ID procedure not necessary?

Answer 20

1. Suspect admits to being at scene of crime and gives account which doesn’t contradict what witness saw
2. Its not disputed the suspect is already known to the witness

Question 21

What are the 4 different types of ID procedure?

Answer 21

1. Video identification
2. Identification parade (line up)
3. Group identification
4. Confrontation by witness

Question 22

Video ID: how many videos must be shown to the witness

Answer 22

• Suspect + At least 8 other people
• Where 2 suspects of similar appearance shown in same images, must be at least 12 other ppl

Question 23

Video ID: so far as possible, what must the other people represent the D in?

Answer 23

Age
General appearance
Position in life

Question 24

Video ID: rules v unusual features?

Answer 24

must be covered/replicated on others

Question 25

Video ID: role of suspects solicitor

Answer 25

* Suspect/sol must be given reasonable opp. to see full set before * If suspect has reasonable objections, police take steps if practicable to remove grounds for objection * Must be given reasonable notice of time/place

Question 26

Video ID how and how many times are videos shown to witness?

Answer 26

1 at time No limit to number of times May be frozen

Question 27

# 4 Video ID: before a witness is shown videos, what must they not be able to do?

Answer 27

1. Communicate with each other about case 2. Overhear witness whos already seen images 3. See/be reminded of photos or description of suspect/given any other indication as to sus identity 4. Be told another witness has identified

Question 28

Video ID: what age can consent be given/who is needed?

Answer 28

Under 14: Parent/guardian Over 14: Suspect

Question 29

Parade: how many people and what must they resemble suspect in?

Answer 29

Suspect +at least 8 others Represent suspect in: * Age * General appearance * Position in life

Question 30

# 3 ID parade: what must witnesses be told before?

Answer 30

1. The person may or may not be present 2. If they cant make positive identification, say 3. Don’t decide until looked at each member twice

Question 31

ID parade: what can a suspect do during/before?

Answer 31

Can choose position in line Can change between witnesses

Question 32

ID parade: what happens during?

Answer 32

* 1 at a time * Can ask member to speak, move or adopt particular posture * Should first be asked if can identify from appearance only * Be reminded chosen on appearance only * Judge will give strong warning to treat ev with caution

Question 33

ID parade: what should be done to guard against future disputes?

Answer 33

Colour photo/vid should be taken of parade

Question 34

How does group identification work?

Answer 34

* Witness sees suspect in informal group where other people passing/waiting and suspect capable of being seen at same time as other people * Police must reasonably expect that the witnesses will see ppls with broadly similar appearance as suspect * With suspect consent/covertly (take witness to where suspect likely to be at given time)

Question 35

What happens during a confrontation with a witness?

Answer 35

Witness bought face to face with suspect at police station Witness must be told: 1. person may or may not be the person theyre to confront 2. If not that person, say so Will usually take place in presence of suspects sol and when sus refused other procedures

Question 36

Who decides what ID procedure to use?

Answer 36

Investigating officer with identification officer

Question 37

Who is responsible for running the ID procedure?

Answer 37

* Identification officer * Investigation officer will have NO involvement in conduct of identification procedure

Question 38

Who can be an identification officer?

Answer 38

* Officer not below inspector whos not involved with investigation * Must be in uniform

Question 39

# 7 What must the identification officer explain to the suspect?

Answer 39

1. Purpose of procedure 2. Entitlement to free legal advice 3. Procedure to be followed inc right to have solicitor/friend present 4. If refuses to consent, that refusal may be given in evidence or may proceed covertly 5. If significantly altered appearance, may be given in evidence 6. Whether witness was shown photos before suspects identity known 7. That they/their sol will be provided with details of description of suspect as first given by witness

Question 40

Why should a solicitor advise a suspect to agree to an ID procedure? (2 reasons)

Answer 40

Because: 1. refusal may result in police holding less satisfactory form of identification procedure 2. Refusal admissible at trial and adverse inferences can be drawn that they refused because they thought they would be recognised by witness

Question 41

When should a solicitor make representations to the investigating officer (and ensure reps are recorded in custody record) that they believe an ID procedure should be carried out?

Answer 41

If Police decide not to hold and have: □ Suspect who disputes their involvement and willing to participate □ Witness who believed that can identify

Question 42

# 3 What should a solicitor do before a video ID procedure?

Answer 42

1. Obtain first description from witness 2. Check images resemble suspect and ensure police get more images if don’t 3. Ensure distinctive features covered

Question 43

# 3 What should a solicitor do when attending an ID procedure?

Answer 43

1.Check witnesses segregated 2. Check no unauthorised ppl present 3. Check number of witnesses and where to be kept before/after and route

Question 44

What should a solicitor do if they believe an ID procedure is contaminated?

Answer 44

Ask witness if discussed description of offender with anyone and ask concerns be noted in written record of procedure by identification officer

Question 45

What should a solicitor do before an ID parade in addition to what should be done for a video ID?

Answer 45

Explain to client what will happen and to not do anything to draw attention to themselves

Question 46

# 4 What written records should a solicitor make regarding an ID procedure?

Answer 46

1. Detailed record of what happens 2. Ensure identification officer complies with procedural requirements of code D Annex A 3. Record objections to conduct by identification officer 4. Record comments made during procedure

Question 47

What ID procedure should a suspect be offered first? (and 3 exceptions)

Answer 47

Video UNLESS: 1. Not practicable 2. Identification parade more practicable and suitable 3. Officer in charge considers group identification is more suitable and identification officer considers it practicable

Question 48

Can an ID procedure be used if a witness recognised a suspect from a photo?

Answer 48

Yes but: * Before shown photo, record witnesses first description * Witness must be shown at least 12 photos at a time * Once made positive identification, no other witnesses should be shown the photos * Suspect/sol must be notified if witness attending identification prev shown photos/artists composite * At trial-witness not allowed to say originally identified from photo

Question 49

What is an adverse inferences?

Answer 49

Means the court is likely to draw negative conclusion from Ds silence when interviewed/hold silence against them when they could have reasonably have been expected to make a defence

Question 50

What are the adverse inferences that are likely to be drawn?

Answer 50

1. Recent fabrication 2. Defence not fabricated but thought it wouldn’t hold up to police questioning

Question 51

Can a defendant be convicted on silence alone?

Answer 51

NO, prosecution must find other evidence of guilt before asking court to draw adverse inference

Question 52

When can an adverse inference be drawn under s35?

Answer 52

1) D fails to mention in interview a fact relied upon at trial 2) That they could reasonable have been expected to mention at interview/on charge

Question 53

# 5 Conditions to draw adverse inference under s35?

Answer 53

1. Must be interview under caution 2. Failed to mention before charge 3. Questioning at interview was trying to discover whether/by who alleged offence committed 4. Must be satisfied real reason for silence was they had no answer 5. If answered qs in subsequent interview, adverse inferences can still be drawn from silence in first interview

Question 54

# 5 When can an adverse inference be drawn under s36 CJPOA 1994?

Answer 54

1. A person arrested has on/in his: a. Person b. Clothes/shoes c. Possession d. In place where they are at time of arrest 2. An object, substance or mark/mark on object AND 3. Another investigating case reasonably believes its presence may be attributable to participation in offence 4. PC informs suspect of this and asks to account for its presence 5. Sus fails to account for it

Question 55

# 5 What must a suspect be told for an adverse inference to be drawn under s36?

Answer 55

1. What the offence is 2. What fact theyre asked to account for 3. That the officer believed this fact may be bc they took part in the commission of the offence 4. That the court may draw adverse inferences 5. That a record is being made of the interview and it may be given as evidence

Question 56

# 4 When can an adverse inference be drawn under s37 CJPOA 1994?

Answer 56

1. Person arrested and found at place/about time the offence committed. 2. A police officer investigating reasonably believed the presence may be attributed to participation in commission of offence. 3. PC informs sus of this and asks him to account for presence. 4. Sus refuses to do so.

Question 57

What adverse inferences only apply when a defence is put forward and which ones operate irrespective of any defence?

Answer 57

If defence: s35 Irrespective of defence: s36/37

Question 58

Which adverse inferences require a special warning that adverse inferences may be drawn?

Answer 58

All of them

Question 59

Can an adverse inference be drawn if silence was because of legal advice?

Answer 59

* Wont automatically prevent adverse inferences if subsequently raise fact relied upon * Jury will be directed by trial judge that adverse inferences should NOT be drawn if they reasonably believe that the D **genuinely and reasonably relied on legal advice** to remain silent

Question 60

When may legal privilege be waived in respect of adverse inferences?

Answer 60

* Once D (to prevent adverse inferences) gives the reasons for their solicitors advice to remain silent, legal privilege is waived * D (or their sol) may be cross-examined as to any other reason for sols advice to remain silent

Question 61

# 3 When CANT adverse inferences be drawn?

Answer 61

1. Not at an authorised place of detention 2. Not been allowed to consult sol prior to questioning (complete right to silence) 3. It appears to the court that the physical or mental condition of the accused makes it undesirable for them to give evidence (applied strictly, not just child with low IQ)

Question 62

Can the prosecution prove a case to answer with just circumstantial evidence

Answer 62

Yes if the evidence is capable of supporting a conviction.