Criminal Advocacy (CR)

Question 1

Exclusion of Visual ID Evidence (POOR QUALITY)

Answer 1

• Court has DISCRETION to exclude evidence under s.78 PACE: Having regard to all the circumstances (including circumstances in which the evidence was obtained) admission of the evidence would have such an adverse effect on the fairness of the proceedings the court ought not to admitted it,
• Identify other evidence there is to support prosecution,
• Undermine strength of the ID evidence by reference to Turnbull Factors: ADVOKATE.
  1. Amount of time of sighting,
  2. Distance between witness and suspect,
  3. Visibility (conditions of sighting),
  4. Obstructions (building, trees),
  5. Known or unknown to witness,
  6. Any reason for the witness to remember suspect ID,
  7. Time lapse between sighting and ID procedure,
  8. Errors in description of suspect.

Question 2

Exclusion of ID Evidence (IMPROPERLY OBTAINED)

Answer 2

• Court has DISCRETION to exclude evidence under s.78 PACE: Having regard to all the circumstances (including circumstances in which the evidence was obtained) admission of the evidence would have such an adverse effect on the fairness of the proceedings the court ought not to admitted it,
• Identify breaches of Code D (identification procedure, eg. video identification) including:
  1. Taking into account reasonable objections to appearance of others in the Id procedure,
  2. Keeping witnesses apart during the procedure,
  3. Warning that the suspect might not be shown at all.
• Conclude that evidence was therefore improperly obtained and ought fairly to be excluded.

Question 3

Exclusion of a Confession (s.76 PACE)

Answer 3

• Remind the court about the burden of proof: Once admissibility is challenged, it is for the prosecution to prove beyond reasonable doubt that the confession is NOT unreliable.
• Confession is relevant to a matter in issue between the prosecution and defendant and would therefore be admissible evidence, but for s.76 PACE.
• The court MUST a confession if it appears that the confession was or may have been obtained by:
  1. Oppression of the defendant,
  OR
  2. in consequence of anything said or done which likely, in the circumstances existing at the time, renders unreliable any confession which might be made in consequence thereof.
• Establish causation from oppression / things said or done and the confession.