Principles And Procedures To Admit And Exclude Evidence

Question 1

Who bears the legal burden of proof in criminal cases?

Answer 1

Prosecution must prove beyond reasonable doubt that D is guilty

Question 2

When will the legal burden of proof fall upon D?

Answer 2

When D raises defence of insanity or duress

Question 3

When is the evidential burden on D?

Answer 3

Raising self-defence e.g. Alibi or self defence
Legal burden of proof of prosecution to disprove defence

Question 4

Section 78 pace 1984

Answer 4

When there is a breach at code D:
- ID procedure carried out incorrectly
-No ID procedure held

Question 5

When will the Turnbull guidelines apply?

Answer 5

• the witness picks out the defendant informally; or
  -the witness identifies the defendant at a formal identification procedure at the police station;
  -the witness claims to recognise the defendant as someone previously known to them.

Then if the D disputes the visual identification made by the witness Turnbull applies

Question 6

How does the judge assess the quality of the identification evidence using the ‘Turnbull guideline ‘

Answer 6

• The length of the observation
• distance
• lighting
• Conditions
• how much of the suspects face did the witness actually see
• whether the person identified was someone already known to witness or someone the witness had never seen before
• how closely the original description given by the W to the police match the actual appearance of the

Question 7

What will the judge say when identification evidence is good?

Answer 7

Judge will give jury a ‘Turnbull warning’ and tell jury that it is easy for an honest witness to be mistaken

Question 8

What will the judge say when identification evidence is poor but supported?

Answer 8

Judge will give jury a ‘Turnbull warning’ , point out the weakness in the identification evidence given, and tell jury to look for supporting evidence before convicting
e.g. Confession made by D, finger prints, DNA evidence, stolen property found in D’s possession

Question 9

What will the judge say when identification evidence is poor and unsupported?

Answer 9

Defence will make submission of no case to answer and judge will direct jury to acquit the defendant

Question 10

What should the solicitor do if they consider visual evidence that has been obtained following a significant and substain breach of Code D?

Answer 10

Initially seek to challenge the admissibility of this evidence and as court to ecerise its discretion to exclude the evidence under s70 PACE

of court declines to exercise discretion. Solicitor should cross examination undermine the quality of evidence of original sighting of D which witness claims to have made and what representation to make in respect of Turnbull guidelines

Question 11

Picture insert

Question 12

Scenario: that there was no one else present who could have resembled the accused in height, clothing and hair colour.
(r v mcevoy)
Does the Turnbull guidelines apply?

Answer 12

No

Question 13

How do turnbull guidelines apply in MC?

Answer 13

If D’s solicitor considers quality of identification evidence is poor and CPS has no other supporting evidence, solicitor would make a submission of no case to answer

If the identification evidence given by the witness is either good or poor but supported by other evidence called by the cps . Solicitor will address turnball guidelines in their closing speech to magistrates and point out that identification evidence from eyewitness is unreliable, and magistrates should exercise caution when considering it.

Question 14

What is adverse inference?

Answer 14

A court is likely to draw a negative conclusion from the Ds silence when interviewed at the police station

Question 15

Will a D be convicted of an offence if the only evidence against the is an adverse inference under s34,36,37 of the CJPOA 1996?

Answer 15

Ds silence when interviewed by the police cannot on it own prove guilt

Question 16

What does s34 CJPOA state?

Answer 16

If D fails to mention at the police station a fact, he later relies on his defence trial the court or jury is allowed to draw an adverse inference effect

Question 17

What are the pre-conditions for the drawing of an adverse inference?

Answer 17

(a) interview had to be an interview under caution
(b)D had to fail to mention any fact later relied on in his defence at trail
(c) the failure to mention this fact had to occur before the D was charged
(d)the questioning of the D at the interview in which the D failed to mention the fact had to be directed to trying to discover whether or by whom the alleged offence had been commited; and
(e) the fact which the D failed to mention had to be fact which, the D could reasonably have been expected to mention when questioned

Question 18

can an adverse inference be
drawn where an individual has
remained silent at their initial
interview at the police station
and answered questions in a
subsequent interview

Answer 18

Yes

Question 19

when a written statement is handed to police before interview, and the D then
refuses to answer questions
at interview, can an adverse
inference be drawn

Answer 19

No court cannot draw adverse inference under s34, if having handed in the statement, the defendant then refuses
to answer questions from the police based on the contents of that written
statement

Question 20

when may a solicitor advise their client to remain silent at police interview

Answer 20

• where level of disclosure by police is so little that solicitor is not able to properly advise their client
• nature of the case; if material police have is particularly complex or relates to events which occurred a long time ago
• personal circumstances of suspect; ill health, mentally disordered or vulnerable etc. would be justifiable to advise them to remain silent

Question 21

can a D argue that no adverse inference should be drawn from their silence on the basis that they remained silent on legal advice

Answer 21

jury will now be directed by the trial judge that adverse inferences should not be drawn under s 34 (and ss 36 and 37) if the jury believe that the defendant genuinely and reasonably relied on the legal advice to remain silent.

Question 22

does legal privilege remain where a D argues no adverse inferences should be drawn from their silence on the basis that they were acting on legal advice

Answer 22

if D wishes to avoid an adverse inference from being drawn from their silence, prosecution likely to ask them questions about the reasons for the advice before removing adverse inference

once D gives this information, legal privilege said to be waived

Question 23

what does s36 CJPOA

Answer 23

allows the court or jury to draw an adverse inference if, when interviewed by the police, the defendant failed to account for the presence of an object, substance or mark.

eg. object in their possession such as a weapon, bloodstains on shirt

if D fails to explain this, jury may draw an adverse inference

Question 24

what is s 37 CJPOA

Answer 24

allows the court to draw an adverse inference if, when questioned at the police station, the defendant failed to account for his presence at a particular place at or about the time the offence was committed.

operates irrespective of any defence put forward

Question 25

what is a special caution

Answer 25

Must be given to suspect:
- what offence is being investigated
-what fact they are being asked to account for
- that this fact may be due to the taking part in the commission of the offence
- that court may draw inference as appear proper if they fail or refuse to account for this fact
- that a record is being made of the interview and it may be given in evidence if they are brought to trial

Question 26

What relation does the special caution and adverse inference have?

Answer 26

must be given in relation to s36 and s37 for adverse inferences to be drawn

if no special caution given, no inference can be drawn

Question 27

What is s.35 CJPOA?

Answer 27

If the Prosecution has raised issues which call for an explanation from the D, should the D then fail to give evidence, the court will be entitled to infer from that failure that the D has either no explanation or no explanation that will sand up to cross examination

Question 28

what is the exception to adverse inferences under s35 (s35(1)(b))?

Answer 28

court has a discretion to direct that an adverse inference is not drawn where
it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence

limited application - distress is generally insufficient

Question 29

what is the definition of a hearsay statement

Answer 29

statement not made in oral evidence, that is relied on as evidence of a matter in it

statement defined as - any representation of fact or opinion made by a person by whatever means; includes a representation made in sketch, photofit or other pictorial form

Question 30

what must the purpose of a hearsay statement be

Answer 30

person making the statement must appear to the court to have been to cause another person to believe that the matter, or to cause another person to act (or a machine to operate) on the basis that the matter is as stated

Question 31

Scenario: diary entries of a 14 yr old sexual abuse victim of the D was not hearsay evidence as the V had not intended anyone to read the entries. Was it admissible?

Answer 31

Admissible

Question 32

what are examples of hearsay evidence in criminal proceedings?

Answer 32

(a) a witness repeating at trial what they had been told by another person;

(b) a statement from a witness being read out at trial instead of the witness attending court to give oral evidence;

(c) a police officer repeating at trial a confession made to them by the defendant;

(d) a business document being introduced in evidence at trial

Question 33

What are the grounds for admitting hearsay evidence?

Answer 33

Will be admissible if it falls within one of the s114 categories

s114 categories
- admissible by statute
- admissible by rule of law preserved by s118
- all parties agree that it is admissible
- where court is satisfied that it is in the interests of justice for it to be admissible

Question 34

when may a hearsay statement be admissible under a statutory provision?

Answer 34

• where witness is unavailable (s116)
• business and other documents (s117)

Question 35

s116 CJA (admissibility of hearsay evidence where the witness is unavailable to attend court)

Answer 35

one of the following conditions are satisfied

1) relevant person is dead

2) relevant person until to be a witness due to bodily or mental condition

3) relevant person is outside UK and not reasonably practicable to secure attendance

4) relevant person cannot be found where reasonable steps have been taken to find them

5) though fear, relevant person does not give oral evidence and court gives leave for statement to be given in evidence

does not apply to multiple hearsay

Question 36

does s116 CJA apply to multiple hearsay

Answer 36

NO

Question 37

s117 CJA (admissibility of hearsay evidence where it is a business or other document)

Answer 37

admissible where;
the circumstances indicate that the information was acquired through professional or occupational channels and when certain conditions regarding the reliability of the information are met

‘first-hand’ and ‘multiple’ hearsay in certain documents admissible in evidence

Question 38

what does s117(4) say

Answer 38

one of the following conditions are satisfied

1) relevant person is dead
2) relevant person until to be a witness due to bodily or mental condition
3) relevant person is outside UK and not reasonably practicable to secure attendance
4) relevant person cannot be found where reasonable steps have been taken to find them
5) though fear, relevant person does not give oral evidence and court gives leave for statement to be given in evidence

6) relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to the length of time since he supplied the information and all other circumstances)

Question 39

what are the hearsay admissible under a preserved common law

Answer 39

(a) evidence of a confession or mixed statement made by the defendant; and

(b) evidence admitted as part of the res gestae;
statement made contemporaneously with an event will be admissible as an exception to the hearsay rule because the spontaneity of the statement meant that any possibility of concoction can be disregarded. eg. victim screaming don’t kill me, heard by a witness

Question 40

can the court admit hearsay evidence that would not otherwise be admissible if it is in the interests of justice to do so

Answer 40

yes, court has wide discretion to admit hearsay evidence which is cogent and reliable

Question 41

where do the procedural rules in part 20 CrimPR apply

Answer 41

apply to hearsay evidence where;

(a) it is in the interests of justice for the hearsay evidence to be admissible (s 114(1)(d));
(b) the witness is unavailable to attend court (s 116);
(c) the evidence is multiple hearsay (s 121); or
(d) either the prosecution or the defence rely on s 117 for the admission of a written witness statement prepared for use in criminal proceedings (CrimPR, r 20.2).

Question 42

what is required where a party wishes to adduce evidence to which the rules in part 20 CrimPR apply

Answer 42

must give notice of intention to adduce or oppose such evidence

can extend or reduce time limits and cane given orally, does not have to be written

Question 43

where is the admissibility of hearsay evidence determined

Answer 43

usually at a pre trial hearing

Question 44

what is confession evidence

Answer 44

‘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 45

is a confession made prior to trial admissible at trial

Answer 45

yes, if someone repeats a confession, will be hearsay, but admissible under s76

Question 46

what is a mixed statement

Answer 46

a statement containing statements which are both adverse and favourable to the defendant

will be admissible under s76

Question 47

Is a confession made by a defendant at trial admissible in evidence against a co-defendant?

Answer 47

Yes,
if the co-defendant has pleaded guilty they will be giving evidence for the prosecution at the trial of the defendant.

Question 48

is a pre trial confession by a co defendant admissible against the defendant implicated, but who did not confess

Answer 48

Only admissible against the D who made the confession

Question 49

What is s.76 PACE 1984?

Answer 49

provides for admissibility of confession evidence and mixed statements as an exception to the hearsay rule of exclusion

Question 50

how can a D challenge the admissibility of a confession under s76 PACE

Answer 50

• D can argue they didn’t make the confession or it was mistaken or fabricated evidence.
• Alternatively, D can argue they did make the confession but still argue against its admission in evidence. This argument could be based on:
  -Oppression in obtaining the confession.
  -Circumstances rendering the confession
  unreliable.
  Prosecution must prove beyond a reasonable doubt that neither of these applied

Question 51

can a court include confession evidence which is true, but where it was obtained by oppression, or the circumstances made the confession unreliable

Answer 51

no

Question 52

what is oppression for the purposes of the admissibility of confession evidence

Answer 52

‘oppression’ includes ‘torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)’

Question 53

when may a confession be excluded due to the unreliability of the circumstances

Answer 53

something must have been said or done which might have caused the D to make a confession for reasons other that the fact that they actually committed the offence

Question 54

what things said or done may render a confession obtained unreliable

Answer 54

usually a breach of code C eg.

• denying D refreshment or rest breaks, so they admit guilt and can leave
• offering suspect inducement to confess, eg. shorter sentence or being able to leave the station earlier
• misrepresenting the strength of prosecution case ie. saying there is no point in denying guilt
• questioning suspect in an inappropriate way eg. badgering them until they give the answer the police officer wants to hear
• questioning a suspect who was not in a fit state to be interviewed, eg. due to drink, drugs or illness
• threatening a suspect, for example by telling them that they will be kept at the police station until they make a confession
• eg. denial of legal advice

must show that the breach caused them to confess, ie. they would not have confessed but for the breach

eg. if they know their right to legal advice, and they are denied it cannot rely on this to have their confession excluded

Question 55

Can a co-defendant rely on a confession made by another defendant?

Answer 55

• Section 76A(1) of PACE permits a defendant to present evidence of a co-defendant’s confession.
• Useful if the confession doesn’t implicate the defendant.
• Even if the co-defendant claims the confession was obtained unfairly or is unreliable, the other defendant can still use it by showing it wasn’t unfairly obtained or unreliable.
• The defendant has a lower burden of proof compared to the prosecution in demonstrating the confession’s admissibility

Question 56

what is s 78 PACE?

Answer 56

allows the court discretion to exclude prosecution evidence where this would have an adverse effect on fairness of proceedings

also applies to confession evidence; can be relied upon where defendant admits making a confession but claims that the confession is untrue, or when the defendant denies making the confession at all.

Question 57

how does s78 apply to confessions which the D accepts they have made

Answer 57

where D alleges police breached PACE or codes in obtaining confession, court only likely to exercise its discretion to exclude evidence where the breaches are significant and substantial

most commonly applies where D has been denied legal advice

Question 58

how does s78 apply to confessions which the D denies they have made

Answer 58

eg. if D makes a confession outside police station and then denies it, admissibility may be challenged under s 78

admissibility of such a confession can be excluded under s78 if police breached code c by;

• failing to make an accurate record of the defendant’s comments
• failing to give the defendant an opportunity to view the record of his comments and to sign this record as being accurate, or to dispute the accuracy of the record
• failing to put this admission or confession to the defendant at the start of his subsequent interview at the police station

Question 59

what is the procedure for challenging the admissibility of confession evidence

Answer 59

crown court;

• determined by trial judge without jury in a “trial within a trial” (voir dire)
• evidence given by interviewing officer
• prosecution and defence both make submissions to judge on whether or not confession should be excluded in light of evidence given
• if judge rules confession inadmissible, jury hears nothing about confession
• if ruled admissible, interviewing officer gives evidence of confession
• defence can still attack credibility of confession to convince jury to place little weight on it

in magistrates court;

• voir dire heard the same if seeking to exclude evidence under s76 (and s78)
• if only seeking to exclude under s78, no obligation to hold voir dire; challenge to the admissibility of the confession may be left either to the close of the prosecution case (if the defendant’s solicitor wishes to make a submission of no case to answer), or to the end of the trial when the defendant’s solicitor makes their closing speech.

Question 60

will evidence obtained as a result of an inadmissible confession be admissible

Answer 60

The fact that the court excludes evidence of a confession made by a defendant will not affect the admissibility in evidence of any facts discovered as a result of the confession

however, prosecution will not be able to tell the court that such facts were discovered as a result of a confession made by D

Question 61

summarise the admissibility of confession evidence

Question 62

what is character evidence

Answer 62

Evidence of a person’s general disposition or propensity.

E.g., character traits of honesty (or dishonesty), peacefulness (or violence), carefulness (or carelessness)

such as evidence of previous convictions

not always admissible

Question 63

what is the definition of bad character

Answer 63

‘evidence of, or a disposition towards, misconduct’, other than evidence connected with the offence for which the defendant has been charged.

‘Misconduct’ -> covers more than just the existence of previous convictions.

• if alleged misconduct by D is connected to the offence with which D has been charged this is admissible in court without needing to see if it satisfies bad character test

Question 64

when may evidence of a D’s bad character be raised at trial

Answer 64

can only be raised at trial through one of 7 “gateways”

bad character evidence will be admissible if;

(a) all parties to the proceedings agree to the evidence being admissible,

(b) D introduces evidence of their own bad character

• either in their own evidence or through answering cross examination

(c) it is important explanatory evidence

• (limited); only applies where magistrates or jury would find it impossible or difficult to properly understand case, or
• where value of evidence for understanding case as a whole is substantial

(d) it is relevant to an important matter in issue between the defendant and the

prosecution,

• most important gateway
• important matters include;

whether D has propensity to commit offences of the kind, or same description of which they are accused

whether D has propensity to be untruthful hence what they say has less credibility

(e) it has substantial probative value in relation to an important matter in issue

between the defendant and a co-defendant,

• can only be raised by a co defendant, not prosecution
• eg. if a co defendant wants to show that other D has lied or has a history of committing violent offences

(f) it is evidence to correct a false impression given by the defendant, or

• eg. if D says they don’t have violent tendencies but have a history of committing violent offences

(g) the defendant has made an attack on another person’s character.

• does not need to take place at trial, can be at police station or in defence statement

eg. calling a V in sexual assault case a slag was enough for the prosecution to raise the D’s previous convictions

eg. accusation of officers “setting defendant up” as a conspiracy; but suggesting an officer’s account is untrue is unlikely to be sufficient

Question 65

if the alleged misconduct is sufficiently connected to the offense in question, it may be admissible in court without needing to satisfy the bad character test or pass through the gateways outlined in the Criminal Justice Act 2003.

Question 66

when will a D’s previous convictions be admissible to show a D has propensity to be untruthful

Answer 66

not unless

(a) the manner in which the previous offence was committed demonstrates that the defendant has such a propensity (because they had made false representations) (distinct from dishonest offences such as theft) ; or

(b) the defendant pleaded not guilty to the earlier offence but was convicted following a trial at which the defendant testified and was not believed.

Question 67

when must a court exclude evidence adduced under gateway D

Answer 67

s 101(3) CJA; court must not admit this evidence (not discretionary) if on an application by the defendant to exclude it, it appears that admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

test (where one satisfied, must exclude evidence);

when the nature of a defendant’s previous convictions is such that the jury are likely to convict a defendant on the basis of these convictions alone

where the evidence of the previous convictions is more prejudicial than probative

when the CPS seeks to adduce previous convictions to support a case which is otherwise weak

when the defendant’s previous convictions are ‘spent’.

Question 68

when is gateway D likely to be used

Answer 68

prosecution will seek to adduce evidence of a defendant’s previous convictions under gateway (d) to demonstrate that:

(a) the defendant has a propensity to commit offences of the kind charged;

eg through multiple convictions of the same kind, or similarities
or

(b) the defendant has a propensity to be untruthful.

Question 69

when must a court exclude evidence adduced under gateway?

Answer 69

same as for gateway D

s 101(3) CJA; court must not admit this evidence (not discretionary) if on an application by the defendant to exclude it, it appears that admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

test (where one satisfied, must exclude evidence);

when the nature of a defendant’s previous convictions is such that the jury are likely to convict a defendant on the basis of these convictions alone

where the evidence of the previous convictions is more prejudicial than probative

when the CPS seeks to adduce previous convictions to support a case which is otherwise weak

when the defendant’s previous convictions are ‘spent’.

Question 70

what constitutes an attack on someone’s character

Answer 70

Evidence attacking another person’s character is evidence to the effect that the other person has:

(a) committed an offence (whether a different offence from the one with which the defendant is charged or the same one);

or

(b) behaved, or is disposed to behave, in a reprehensible way (CJA 2003, s 106(2)).

Question 71

when can bad character evidence be automatically admissible

Answer 71

Bad character evidence under gateways (a), (b), (c), (e) and (f) is automatically admissible if the requirements for each of these gateways are satisfied.

no power to exclude under s101(3) (this only applies to gateways D and G)

however court always has a discretionary power under s78 to exclude evidence where admission of the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted

Question 72

what does it mean if evidence of D’s bad character is contaminated and what is the consequence

Answer 72

character is contaminated and what is the consequence
Contamination may occur if witnesses have colluded in order to fabricate evidence of the defendant’s bad character.

allows a judge in the Crown Court either to direct the jury to acquit the defendant, or to order a retrial in circumstances where evidence of the defendant’s bad character is ‘contaminated’

Question 73

summary of bad character evidence

Question 74

what is the procedure for admitting evidence of bad character

Answer 74

If the CPS wishes to adduce evidence of the defendant’s bad character, notice of this intention must be given both to the court and to the other parties in the case

A prescribed form must be used, with a written record of the previous convictions the party giving the notice or making the application is seeking to adduce being attached to the form.

time limits will be imposed by court to serve notice or make an application to adduce bad character evidence at trial

if D wants to oppose introduction of this evidence, must apply to court to have this excluded, must send application both to curt and other parties in the case

Question 75

when is the bad character of someone other than the D admissible at trial

Answer 75

on very limited grounds s100(1)CJA

(1) … evidence of the bad character of a person other than the defendant is admissible if and only if—

(a) it is important explanatory evidence,

(b) it has substantial probative value in relation to a matter which—

(i) is a matter in issue in the proceedings, and

(ii) is of substantial importance in the context of the case as a whole, or

(c) all parties agree to the evidence being admissible.

usually used for bad character of claimant or witnesses

Question 76

when is bad character evidence of someone other than the D regarded as important explanatory evidence

Answer 76

The evidence will be important explanatory evidence only if:

(a) without it, the court or jury would find it impossible or difficult properly to understand other
evidence in the case; and

(b) its value for understanding the case as a whole is substantial (s 100(2)).

‘Substantial’ in this context is likely to mean more than merely trivial or marginal

leave of the court will be required if a party wishes to adduce evidence of the bad character of a person other than the defendant under s 100(1)(a).

Question 77

when is bad character evidence of someone other than the D regarded as having substantial probative value in relation to an important matter in issue in the proceedings

Answer 77

s100(1)(b)

eg. D seeks to adduce evidence of the previous convictions of a witness for the prosecution in order to support an allegation that either:

(a) the witness is lying or has fabricated evidence against the defendant; or

(b) the witness themselves is either guilty of the offence with which the defendant has been charged or has engaged in misconduct in connection with the alleged offence

In assessing the probative value of the evidence of another person’s previous convictions, the court must have regard to:

(a) the nature and number of the events, or other things, to which the evidence relates; and
(b) when those events or things are alleged to have happened or to have existed (s 100(3)).

substantial means more than trivial

leave of the court will also be required if a party wishes to adduce evidence of the bad character of a person other than the defendant under s 100(1)(b).

Question 78

when may previous convictions for a prosecution witness be used to suggest evidence given by that witness lacks credibility

Answer 78

(a) convictions for offences where the witness has made a false statement or representation (such as perjury, fraud by false representation, or theft, where the witness has lied to another person as part of the commission of the theft); or

(b) convictions where the witness has been found guilty of an offence to which they pleaded not guilty but were convicted following a trial at which their version of events was disbelieved.

case law also suggests that a witness’ previous convictions may be admissible for the issue of credibility whether or not those offences were dishonest

Question 79

summary of s100(1) (bad character evidence in relation to someone other than D)

Question 80

s76 CJA?

Answer 80

court can exclude confession evidence if it was either; unreliable or unfair to do so