CRIMINAL EVIDENCE

Preliminary Points
Burden of proof • P must prove guilt of D beyond reasonable doubt
Balance of Only when D has a defence but the burden of proof is still upon
Probabilities P.
Proof by evidence • Jury or M only take into account a fact proved by evidence
Improperly • Evidence obtained illegally or unfairly is admissible
obtained
Excluding evidence • Court has discretion to exclude admission of evidence where
(s78, PACE’84) it
would have an adverse effect on fairness of proceedings
• Applies only to P evidence
SEE FLOW • Discretionary power
CHARTS 411, 468, • Court will have regard to all of circumstances, including the
405 circumstances in which the evidence was obtained
• Common uses:
 ID evidence
 confessions
S78 (1) PACE 84 Courts have discretion to exclude P evidence

Witnesses
Competence • Generally, all witnesses are competent (permitted) to give evidence
• Exceptions:
 D is NOT competent to give evidence for P
 Co-D is NOT competent to give evidence for P
Compellability • Generally, all witnesses can be compelled to attend court to give
evidence by service of a witness summon s1(1) of Criminal
Evidence Act 1898
• Exception:
 D is not compellable as a defence witness
 D’s spouse is not compellable to give evidence for P
Examination- Leading • By the party that calls the witness
in-Chief questions • Leading questions should not be asked, unless object
is
to elicit a denial of an opponent’s case
• Definition: suggests the answer expected or assumes
the existence of a fact which has not been proved
 Memory • Can apply to court for witness to refer to earlier doc
refreshing if:
[CJA’03,  witness states that doc records his recollection of
s139(1)] the
matters at that earlier time; and
 his recollection is likely to have been significantly
better at that time than at this present time
Cross- • Leading questions mat be asked
Examination • Purpose:
 put the case of cross-examiner to witness
 challenge the credibility of the witness
Written • May be admissible in evidence
Statements  see notes on first-hand documentary hearsay
Corroboration
Meaning • Independent evidence which supports the evidence to be
corroborated
which implicates the D in the crime charged
Examples • The evidence of another witness
• A confession by D
• Lies told by D
• Circumstantial evidence
• Refusal of D, without good cause, to stand on an ID parade

Disputed ID Evidence – Turnbull Guidelines

When rules • Where there is evidence that a witness visually identified the D
apply
Factors to • Length of observation
consider • Distance
• Lighting
• Conditions
• Whether the person identified was already known to the witness
• How closely the description given to police matches D’s
appearance
Guidelines – • ID poor and without support:
Crown Court  judge should end P case and direct an acquittal
• Any other outcome:
 point out to jury dangers of relying on ID evidence and direct
them to consider above factors when considering quality of
evid.
Guidelines – • ID poor and without support:
Magistrates’  submission of no case to answer
Court • Any other outcome:
 defence is likely to point out unreliability of ID evidence
Admissibility of Evidence
Challenging • By agreement
• By application to the court
Relevance • Fact must be relevant to an issue to be decided by the court
Self-Made • General rule: W is not allowed to support the evidence given at
trial
by introducing a statement which he has made on a previous
occasion
• Exceptions:
 Rebutting a suggestion of recent fabrication
 Statements forming part of the res gestae:
statements made in circumstances of spontaneity
Opinion • W may relate to court any fact that he has personally perceived
• But W cannot give opinion on matters which it is function of court
to
decide
• Expert opinion evidence is admissible in relation to matters outside
competence of jury or magistrates
Privilege • Public policy privilege:
 evidence that discloses police informant is inadmissible
• Legal professional privilege:
 communications between client and solicitor are privileged if
purpose is the giving or receiving of legal advice
 communications between D or solicitor and 3rd party are
privileged if made in contemplation of proceedings

Hearsay Evidence (Draft hearsay notice P445)

The rule • Hearsay is:
against  oral/written statement
hearsay  made out of court
 which is now being repeated in court
 to try and prove the truth of the matter stated out of court
Exceptions
Res gestae • Statements made in circumstances of spontaneity
Confessions • Can only be made by D (s.82(1))
• Any statement adverse to the person who made it, whether made
SEE FLOW orally or in writing and whether made to person in authority or not
CHART 458 • Can be challenged under s76 of PACE’84 on grounds of:
(mandatory to exclude)
 oppression:
• exercise of authority/power in burdensome/wrongful manner
 unreliability: it is necessary to consider:
• the things said or done
 • whether the thing said/done is likely to  confession
unreliable
• Any challenge will usually be based on breach of Code C
• Burden of proof lies on P beyond all reasonable doubt
• Confession at police interview = ‘set piece confession’
• Can also exclude under s78 of PACE(unfairness of Proceedings)
Documentary • CJA’88, s23: admissible if there is a prescribed reason:
hearsay:  dead/unfit to attend
First-hand  outside UK and not reasonable practicable to secure attendance
 disappeared
 fear (where statement made to police)
• If the statement was prepared for criminal proceedings, it will only
be
admissible with leave of the court:
 must be in the interests of justice (s26)
• The court has a general discretion to exclude a statement otherwise
admissible under s23 (s25)
• Usually witness statements
Documentary • CJA’88, s24:
hearsay:  practical effect: automatically admissible because not prepared
Business Docs in
anticipation of criminal proceedings, but created for business use
PROCEDURE TO challenge admissibility
Crown Court Trial within a trial (voire dire)
MAG Meds decides (still knows about the evidence)

Adverse Inferences
D fails to give • CJPOA’94, s34:
evidence  Court/jury may draw such inferences as appear proper
D fails to • CJPOA’94, s34:
mention facts Court or jury may draw inferences where:
• D fails to mention fact he relies on in court; and
• in the circumstances existing at the time, D could rsbly
have
been expected to mention that fact

Evidence of Bad Character – CJA 2003 (s98)

Meaning • Includes past convictions + offences for which D charged and not
prosecuted + offences where D acquitted
Non-Defendant • Need court’s permission + meet 1 of 3 conditions: (s100)
 important explanatory evidence:
 • w/o it court would find it difficult to understand other
evidence
• value for understanding case as whole is substantial
 substantial probative value
• helps prove an issue one way or another
 all parties agree
• If attack character of witness, s101 kicks in [s101(g)] and D’s
character is admissible
Defendant: s101 sets out circumstances where admissible:
s101 Type of evidence Who can ask Power of court to prevent it?
it?
a Agreed N/a N/a
b By D of own bad D only N/a
character
c Explanatory evidence Prosecution No
d In issue between D and P P only Yes – if to admit it would have
s103(6) adverse effect on fairness of
proceedings s101(3)
e In issue between D & Co- Co-D only No
D
f False impression given by P only No
D s105(7)
g Attack on character of P only Yes – if to admit it would have
antoher s106(3) adverse effect on fairness of
proceedings s101(3)

R v Hanson

A) 3 Q’s
(i) Does the defendant history of offending show a propensity to commit
offences?
(ii) If so, does the propensity make it more likely that the defendant committed
the current offence?
(ii) If so, is it just to rely on convictions of the same description or category
having in mind the overriding principle that proceedings must be fair
B) Offences which are relied upon by P to show propensity may go beyond offences
of the same description or of the same category
C) Fewer previous convictions: less likely that propensity will be established
D) The facts of previous convictions (in a later case Re lamaletie CoA held a
number of previous convictions for offences of violence was sufficient to show
propensity to act violently even though the factual circumstances of such
convictions were not known)

Excluding Evidence for Breaches of Code C/ Section 78 (unfairness of

proceedings)
Detention conditions:
 • 8hrs continuous rest in any 24hr period
• If D is unfit through drink or drugs to extent he is unable to appreciate the
significance of questions/answers, cannot be questioned unless superintendent
considers delay will involve immediate risk of harm to persons or loss/damage
to property
• Interview rooms adequately heated, ventilated, lit
• Breaks in interviewing at recognised meal times
• Short breaks for refreshments every 2 hrs
Right to legal advice:
• Volunteers have absolute right
• If juvenile, appropriate adult should be informed and asked to attend
Interviewing the suspect:
• Questioning D re involvement in offence, carried out under caution
• Must not be interviewed outside police station unless:
 interfere/harm evidence/other people
 alert other persons not yet arrested
• Comments made outside police station:
 Make written record, timed and signed
 Give suspect opportunity to read &sign or indicate inaccuracies
• Right to solicitor present if D has requested one unless:
 can be lawfully delayed
 superintendent has rsb grounds delay will involve risk of harm to other
persons
or unrsb delay to investigation
 D changes his mind and agrees in writing

Excluding Evidence for Breaches of Code D

Confrontation is last resort:
• must take place in presence of solicitor/friend unless this would cause unrsb delay
Identification parades:
• No officer involved with investigation can take part