Notes Criminal Evidence

Roger Leng (roger.leng@warwick.ac.
uk) Criminal Evidence
W1: Introduction – Aims, Tensions and the regulation of the

construction of criminal evidence.
Criminal evidence?
This module is concerned with the rules which govern the reception of evidence in a Criminal Trial.
Because much of the evidence in a criminal trial is created during the investigatory stage of
proceedings (eg by the police) much of the law is concerned with the regulation of that investigatory
stage to ensure that evidence which is created is fair and reliable.
The Trial?
The trial legal proceeding is conducted between the prosecutor (acting in the name of the state) and
a defendant who is charged with committing an offense. The trial is controlled by a judge, but the
question whether the defendant is guilty is determined by the finder of fact (a jury). The jury must
rely upon evidence presented in court.
What is Evidence?
Evidence is information which might assist the jury to decide whether or not the defendant is guilty.
In order to be evidence the information must be “relevant” in the sense of having a tendency to
prove or disprove something which the prosecution or defendant are trying to establish. [Facts in
issue].
Evidence must be “Admissible”
Information must be relevant and legally admissible. Admissibility may depend upon:
- The source of the information (young child?)

- The category of the information (anonymous letter?)
- Whether it was obtained fairly (torture?)
- Whether it might prejudice a fair trial (previous convictions?)
- The public interest (the identity of a police informant)
We also consider issues on which a Judge would be required to direct the jury: what purpose
evidence can be used for? What weight does evidence have? What procedures should be used to
introduce evidence? How much evidence is required to convict the defendant? What evidence is
admissible for prosecution and defense? Detailed scrutiny of the way evidence is created in the
investigatory stage. If evidence is admissible, what weight does it have and what purposes can it
serve? What must a judge tell a jury to assist them to assess the evidence?
The roles/perspectives:
- Prosecution – Seeks to admit relevant evidence

- The Defence – argues to exclude prosecution evidence
- The Judge – law and discretion to determine admissibility
Policy Issues: how does the law facilitate the Construction of evidence? Does the law regulate the
construction of evidence to ensure fairness and reliability? Does the law provide sufficient resources
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Roger Leng (roger.leng@warwick.ac.uk) Criminal Evidence
to allow both prosecution and defence to meaningfully participate in an Adversarial trial? Is the trial
Fair? Does the law achieve an appropriate balance between the community interest in efficiently
punishing offenders (Crime Control) and the community interest in civil liberties and the prevention
of misscarriages of justice (Due Process)?
The Aims of the Law of Evidence (and the aims of the Criminal Justice Process)
To enable a factual determination to be made: rectitude of Decision Making (Jeremy Bentham, 1748
-1832). Getting the right answer. The Rationalist Model of Adjudication (William Twining). The
correct application of the law to the true facts of the dispute. Facts determined by accurate
assessment of relevant evidence by a competent, impartial tribunal.
Maximum admissibility of evidence:
- Exception – where the cost of obtaining evidence outweighs its value.

- Exception – evidence which is unreliable.
- NO Exclusion of evidence for other purposes.
BUT – might other interests justify the exclusion of evidence?
- Excluding evidence to Discipline the Police (?)

- Excluding evidence to protect rights (?) see Ashworth [1977] Crim LR 723
- Excluding evidence to protect the integrity of the Criminal Justice Process.
Other Interests which might justify exclusion of evidence
- The interests of adversarial justice

- eg Legal Professional Privilege
- eg Public Interest immunity (to protect informants)
- Avoiding Harm to Citizens
- Sexual History evidence in rape trials
- Punishment for contempt for reluctant witness
- Protection of other state interests – Public Interest Immunity
Tensions in the Aims of Evidence Law
Bentham – aim should be to get the right answer. Therefore maximum admissibility of evidence.
Counterargument - that other interests, civil liberties, human rights etc might justify exclusion of
evidence. This implies that the Aims of evidence law should include protecting those other interests.
Tensions in the Aims of the Law of Evidence reflect tensions between competing aims of the Criminal
Justice Process as a whole.
Theorizing the Tensions between the aims of the Criminal Justice Process - Packer
Herbert Packer and The Limits of the Criminal Sanction (1968). Due Process v Crime Control:
attempt to explain the tensions within two competing models of the criminal justice system.
I. Crime Control: this model thinks that the interests of the citizen are best protected by
repressing crime and rooting out offenders by any efficient means. It emphasizes the
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confidence in the abilities of the police to detect offenders and to release any innocent
people who wrongly fall under suspicion…. The rest of the process, including the court
stage, can operate on administrative rather than judicial principles.
Crime Control – Features of the System
- Maximisation of investigatory powers

- Requires participation of suspects
- Maximises investigative discretion
- Minimal safeguards and reviews - because these reduce efficiency
- Maximise admissible evidence – don’t exclude because of civil liberty concerns
II. Due Process: the foundations of a Due Process system are: (i) a value statement that the
interests in protecting the citizen from unjust punishment and general diminution in civil
liberty outweigh the community interest in effectively punishing criminals; and (ii) a
recognition of the fallibility of human institutions (i.e. the police and the courts) and a
corresponding need for checks, safeguards and reviewing procedures.
Due Process – Values & Beliefs: nobody should be convicted without an appropriate impartial
process. [Constitutional statement]
- Values – Citizen’s rights

- Values - Avoidance of miscarriages of justice
- Scepticism about human institutions (motives and fallibility)
Due Process – Features of System
- Legal advice and representation, facilities to prepare case

- Disclosure of evidence and other material
- Right to call witnesses and present evidence
- Right to cross examine witnesses and challenge evidence
- Right to appeal and further appeals
W1: The Construction of Evidence. The regulation of the construction of

evidence during the investigatory stage.
Conceptualising Evidence
Traditional focus of law on evidence presented in court. Lack of focus on the manner in which
evidence is created. Two different theories:
- The Sherlock Holmes theory: evidence pre-exists the investigation and trial, the purpose of
investigation is to “find” evidence, investigator is neutral, evidence has objective existence.
- The Case/Evidence Construction theory: evidence is constructed, not found. A “case” is a
construction. Case (or evidence) construction has no pejorative overtones (ex: not police
corruption). Case (or evidence) construction does not necessarily imply that the case or
evidence is unmeritorious or against the interests of the suspect or defendant.
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The Murder of Maxwell Confait 1972
Body of Maxwell was found in a house fire in Catford. Maxwell had been strangled with an electric
cord. No sign of a fight. No rectal temperature taken at the scene (no reliable evidence of time of
death). But the pathologist made an estimated time of death.
The Suspects and Investigation
Colin Lattimore (18, mental age 8), Ronnie Leighton (15), Ahmet Salih (14). Previously suspects for
starting recent small fires? [Logic?]. The boys were interviewed with no adults, no lawyers.
Statements written by police – signed by boys: CL and AS admitted starting fire. CL confessed to
murder, AS admitted watching murder. The boys made accusations of violence and threats from the
police to get the confessions. Confessions retracted after the boys left police custody.
Confait - The Trial
- All 3 boys were charged with murder - All 3 pleaded not guilty.
- Prosecution relied upon Confessions.
- But all 3 boys had alibis for the Pathologist's estimated time of death.
- In court - Pathologist changed opinion of time of death to be consistent with confessions.
- CONVICTIONS
- Colin – Manslaughter /diminished responsibility
- Ronnie and Ahmet - Arson (causing criminal damage by fire)
The Appeal
Public concern and a TV documentary. Home Secretary referred the case back to the Court of Appeal.
Two Pathologists gave evidence contradicting original evidence about time of death.
Court of Appeal – CONVICTIONS QUASHED
- Lattimore and others v R (1976) 62 Cr App R 53

- Lord Scarman – criticised police handing of the case. Declared the boys innocent.
The Confait Case – What did we learn?
1. Three boys gave confessions that were completely false, which they later denied, but which
were relied upon in court.
2. Confessions are often considered the most persuasive evidence.
3. LESSON: But we learn they may be unreliable.
4. The expert evidence of the pathologist was mistaken.
5. Expert scientific evidence is often considered intrinsically reliable. But in this case, the
evidence was influenced by non-scientific factors – the police telling the expert that the time
of death must be incorrect because it was inconsistent with the confessions.
6. LESSON – To assess what weight to give to a confession or to expert evidence, we need to
understand how it was produced.
Confait – the Confessions
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The confessions were constructed. (i) They did not exist before the investigation. (ii) the boy’s
answers would not have been made but for police questioning; (iii) the texts were authored by the
police and signed by the boys. But what caused the confessions to be false? (i) coercive police
questioning; (ii) police suggestion; (iii) violence and threats creating fear; (iv) lack of support for
vulnerable suspects; (v) police authoring of the confessions; (vi) feeling that they had no choice other
than to sign.
Confait – The Expert Evidence
The pathologist’s evidence was also constructed. His finding did not exist (to be found) prior to the
investigation. His finding was created for the purpose of the investigation. His report was based
upon: (i) facts which he discovered/observed at the scene (objective evidence). (ii) His expert
opinion was a product of his professional skill and judgment as applied to the facts observed; (iv) Plus
a non scientific input – information that the original estimated time of death was inconsistent with
the confessions.
Conceptualising Evidence (traditional rules)
Traditional rules of Evidence law were designed on the assumption that much evidence:
- Pre-exists the investigation and has an objective existence.

- Can be found or otherwise perceived.
- That the person who finds it (eg the investigator) or the witness who perceives it, is neutral
in the sense of not influencing the evidence.
This is true of much evidence. (EG) Police officer sees footprint in flower bed, takes photo and
presents this as evidence in court.
Evidence Construction Theory
CONSTRUCTED EVIDENCE
1. The evidence does not exist prior to the investigation.

2. The evidence is created/constructed during the investigation for the purpose of the
investigation.
3. It may be constructed by skilled professional work of investigators.
4. The investigator is not a neutral, passive, finder but is instrumental in the construction.
5. This theory does not imply that investigators are dishonest or act improperly, but simply
describes how evidence is produced.
Constructed Evidence - Implications
1. If investigators are involved in actively constructing evidence this process should be

regulated to ensure fairness and reliability.
2. Where there are problems of lack of evidence, the law may play a role in facilitating the
construction of reliable evidence [EG The law now has provision for taking intimate sample
for DNA tests].
3. In an adversarial system, the suspect/defendant and legal representative should have an
appropriate role in evidence construction.
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4. If the court or jury is to assess the weight and credibility of evidence, the processes by which
it was constructed, should be transparent (to both sides and the court).
The Confait Case – The Response
Royal Commission on Criminal Procedure 1981
- Police and Criminal Evidence Act 1984 – Regulates the investigation.

- Code C – Detention and interview
- Codes E & F – Audio and visual recording of interviews.
- Code D – Identification procedures.
- Prosecution of Offences Act 1985 – introduced Crown Prosecution Service (CPS) to supervise
prosecutions.
- Criminal Procedure and investigations Act 1996 – Disclosure of evidence to the Defendant.
Constructed Evidence Now - Confessions.
- PACE Act – Regulates the Investigation.

- PACE Code C Detention and Interview, Codes E&F recording interviews
- * Bar on informal interviews
- * Caution given before interview
- * Right to legal advice/ presence of lawyer
- * Juveniles must have appropriate adult in attendance
- * Interviews recorded
- * Confessions may be excluded for oppression or unreliability
Constructed Evidence Now – Expert Evidence.
- Code of Practice under the Criminal Procedure and Investigations Act 1996 (Disclosure)
- Requires information supplied, and communications to the expert, to be retained and
disclose by the prosecution to the defence.
- Requires disclosure of earlier drafts of expert report.
- R v Dlugosz [2013] EWCA Crim 2. Expert evidence is admissible only if there is a sufficiently
reliable scientific basis for the evidence to be admitted.”
- Criminal Procedure Rules, Part 33.
The Pre-Trial (investigation)?
There used to be a Traditional Dichotomy between:
- The Pre-Trial - investigation, arrest, interview (pre-1984 largely unregulated)

- The Trial (takes place in court) – Subject to strict rules of evidence and procedure since the
mid 19th century.
Fair Trial Rights
[Human Rights Act 1998] Art 6 (3) European Convention on Human Rights - everyone charged with a
criminal offence has the following minimum rights:
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a) to be informed promptly of the nature and cause of the accusation against him;
b) adequate time and facilities for the preparation of his defence;
c) to defend himself in person or through legal assistance of his own choosing and to be given
it free when the interests of justice so require;
d) to examine or have examined witnesses against him and to obtain the attendance and
examination of witnesses on his behalf
e) to have the free assistance of an interpreter
Scope of Fair Trial Rights under Art 6
Fair trial rights under the ECHR apply to any stage of the criminal process at which the defendant or
suspect’s chances of being convicted or acquitted may be “substantially affected” DeWeer v Belgium
[1980] ECC 169. So, fair trial rights apply to: arrest, searches, interview, pre-trial hearings, (non)
disclosure, etc. And the investigatory stage is included as well as the accusatory stage (formal
procedure in court).
Formalising the Pre-Trial – A History
Pre-1984 – Largely common law. BUT Confait Case exposed the potential to construct evidence in
pre-trial process; exposed dangers of false confessions without safeguards in interrogation; exposed
possibility of convictions on flawed evidence. Royal Commission on Criminal Procedure 1981: Fair,
Open, Workable, Efficient (Balanced).
Where is Evidence Law Practised? [Or to whom does evidence law speak?]
Academic Assumption: evidence law is applied in court, but 95% of investigated cases do not go to
trial because they are dropped by lack of evidence, attrition or guilty pleas, and therefore evidence is
not necessary. Evidence Law practised in Police Station and during investigation
W2: SEMINAR: Case Study - Halliwell
R v Halliwell illuminates issues surrounding legal regulation of police investigation and construction
of evidence, and also provides a focus for a debate about the proper purposes of the law of
evidence. At a preliminary hearing of a trial for murder, the trial judge ruled that confessions
obtained from the accused should be excluded because of investigative impropriety. Following this
ruling, a detective superintendent in the case was resigneded from the police.
- What does “voir dire” mean?
A voir dire is a separate hearing in which the trier of law determines whether evidence is admissible
and can potentially be entered into evidence in the trial. A voir dire can also be convened to
determine the competence of a witness or to determine whether an expert witness is qualified to
give evidence.
- What are PACE and PACE Code C and why are they important?
Police and Criminal Evidence Act 1984 (PACE) Code of Practice C sets out the statutory framework for
custodial care and the rights and entitlements of a detainee in police custody. The defendant has
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some procedural rights and cannot be threatened, because if it was during the interview for
example, the evidence produced in such interview would not be held as evidence in a court.
- What is the significance of the “urgent interview procedure”?
A safety interview is best defined as an interview conducted with a suspect in the absence of many of
his usual pre-interview and interview rights (eg legal advice) on the grounds that there is an urgent
“safety” need which requires an interview to be conducted without delay. CAUTION! We don’t want
police to take suspects to weird places, we want them to be taken inside the police station. Urgent
interviews are often seen as an interview conducted exclusively in Counter Terrorism Investigations
but their use is often relevant to more usual criminal investigations, such as when a young woman is
missing.
- What is a caution? Why was the absence of caution in this case so important?
A caution is a formal warning that is given to a person who has admitted an offence. If the person
refuses the caution then they will normally be prosecuted through the normal channels for the
offence. It is a formal notice given to the suspect. For example the suspect will be told that they have
the right to silence.
- What is s.76 all about?
Police and Criminal Evidence Act (PACE) 1984. S. 76: Confessions can be admitted.
- What is s.78 all about?
Section 78 of PACE enables a court to exclude evidence which would otherwise be admissible against
a defendant on the basis it would be unfair to adduce it. The nature of the court's discretion was
explained by Lord Lane C.J. in the case of R v Quinn [1990] Crim. L.R.
W2: Identification Evidence. Regulating the construction and its

reception in court.
IDENTIFICATION – What does it mean?
A person or thing involved in one incident (crime) is the same person or thing seen or involved in a
second incident. In a criminal trial, the normal issue of identification is whether or not the person
who committed the alleged crime is the same person appearing as the accused at trial.
Not a Category of Evidence
All sorts of evidence can be relevant to Identification!
- X is found in possession of TV stolen in burglary.

- Fingerprints or DNA deposited at scene of crime.
- Email in which X threatens to kill Y. Evidence that X committed the killing. (motive)
- Statement of witness describing perpetrator, where the description fits X.
- CCTV footage which can allow a jury to make their own comparison between the person on
the CCTV and the witness in the dock.
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- Eye-witness identification – where witness to crime, later picks out X from a video
identification procedure or parade. → WE WILL FOCUS ON THIS TODAY
Identity proved by circumstantial evidence: R v Howe [2017]
H was charged with 3 “distraction” burglaries in a two hour period by entering the homes of elderly
people, intending to steal therein.
- Clear that all 3 offences committed by one man.

- H had distinctive appearance – 6’4’’ tall.
- V1 – no identification;
- V2 described clothes and carried newspaper. Video ID = 50% certain
- V3 – Video ID – not able to identify H.
- Convicted: * CCTV images consistent with presence at the burglaries.
- Stolen credit card used at cashpoint near his home.
- Past record for distraction burglaries of the elderly.
Eye-witness identification
The formal Procedures which the Police must follow – PACE Code D
The “Dock Identification”
Witness asked if she can see the perpetrator in court. Problems? Defendant is prominent in the
dock, then the Obvious answer for witness is to point to D. See Stubbs v R [2020] UKPC 27.
Dock Identification must be preceded by formal identification procedure: if an eye-witness has

seen a person committing a crime (or in incriminating circumstances) the police must employ a
procedure to test the ability of the eye-witness to identify a suspected person (PACE Code D, para
3.0). If prosecution sought to rely upon of Dock Identification without first setting up a procedure
under Code D, it would be excluded for unfairness under s.78 PACE or would be ground for appeal
on the basis that the conviction was unsafe.
A Psychological Construction in eye witness identification
“The widely held belief of the general public is that people store visual and sound memories rather
like a video recorder. However general research on memory and more specific research on
eye-witness identification, have shown that human memory and perception do not work like that."
Cognitive Processes in Memory
● Perception (eg seeing the person committing a crime)

● Encoding (converting info to a form that can be stored)
● Storage (in the memory)
● Retrieval (may occur on numerous occasions when the incident is recalled).
● BASIC RECALL IS POOR. What is Recalled?
○ Memory elaboration (extra details are added)
○ Memory replacement (eg recollection of a person seen in the street replaces the
recollection of the robber)
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○ Memory supplementation (extra events/features are added)
George Beattie case 1973 http://news.bbc.co.uk/1/hi/scotland/glasgow_and_west/7923558.stm.
What is Recalled may be influenced by:
- Suggestion from contemporaneous events (Beattie case 1973)

- Suggestion from questions asked of witnesses.
- Suggestion from seeing suspect (ID procedure critical).
- Unconscious transference - Ivan Fergus (1993) 98 Cr App R 313
- Pressure to produce a positive ID.
Ivan Fergus (1994) 98 Cr App R 313
Stabbing (robbery) of young man in street
- Description – 5’11’’, pale brown complexion, stubble, 16-18, shaved patterns in hair.
- Month later – Victim saw Ivan and alerted the police. Ivan = 5’7’’, dark brown complexion,
13, no beard, shaved patterns (but two weeks after stabbing).
Ivan was Convicted - Quashed on appeal. Alibi (coartada) evidence. Failure to test ID evidence.
- “Credible victim” problem. Prosecution, Defence Lawyers and Jury assumed reliability of the
identification.
Identification as an Investigative Construction
- Dock ID unsatisfactory
- Must be a prior identification procedure.
- Identification Procedures regulated by PACE CODE D. (in Crim Evidence Statutory Materials)
- Failure to observe Code - Exclusion under s.78 PACE.
Code D - The First Description
Code D para 3.1 “A record shall be made of the description of the suspect as first given by the
eye-witness (b) must be made before the eye-witness takes part in any identification procedures. A
copy of the record shall be given to suspect or their solicitor before any (identification) procedures.”
Implicit – (i) Police duty to ask for description; (ii) As soon as possible. WHY?
- First description is a resource for BOTH prosecution and defence.

- BUT – no guidance as to what is required for the first description.
Different Procedures depending upon whether or not there is a “Known Suspect”
1. Burglary – modus operandi matches that of Jim, a local burglar. Jim = known suspect
Para 3.1A(a) “known suspect” where there are reasonable grounds to suspect a particular person of
involvement in the offence.
2. Police have information about burglary but no idea who committed it. – No Known Suspect
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Paras 3.2 and 3.4 requires alternative procedures depending upon whether or not there is a “known
suspect”. Why Alternative Procedures? If there is no known suspect, the Police must investigate to
find suspects. But, if the police already have a known suspect (who may later be prosecuted), they
must protect the suspect’s right to a fair trial; collect/construct evidence which is reliable (not
subject to challenge) and avoid compromising any potential identification evidence.
Where there is NOT a known suspect
Para 3.2 “In cases when the suspect’s identity is not known, an eye-witness may be taken to a
particular neighbourhood or place to see whether they can identify the person they saw on a
previous occasion.”
● Description should be taken prior to visit. Para 3(2)(a).

● Duty to avoid giving the witness information about the description of the suspect (ie by
somebody else) or directing the witness’s attention to any particular person Para 3(2)(b).
● Eye-witnesses must be kept apart.Para 3(2)(c).
● Para 3.2(d) “once there is sufficient information to establish that the suspect is “known”
(e.g. after the eye-witness makes an identification), the provisions relating to “known
suspects” shall apply for that and any other eyewitnesses in relation to that individual.” In
other words, once there is a known suspect, the police must adopt the relevant procedure to
protect the witness’s ability to identify the suspect.
Neighbourhood Identifications. Problematic? “Sandy has been mugged. She gives the police a
description of a white male, aged about 20, wearing a green hoodie. The police take Sandy to the
town centre to see if she can spot her attacker. She sees Dan with a green hoodie, with his head
down eating a burger, through the window of McDonalds and say: “That might be him”. What should
the police do?
● It would be unreasonable to arrest Dan on this unconfirmed evidence.

● Is there “sufficient information” to make D a “known suspect”?
● But - if the police take Sandy to have a close look at his fact, this might compromise a later
formal identification procedure.
● If the courts judge that the police got it wrong, later formal ID evidence might be excluded
under s.78 PACE for unfairness.
Photo-books and E-Fits (Annex E)
Para 3.3: If the suspect’s identity is not known, the showing of photographs, computerised, or
artists’ composite likenesses, e-fits etc; to an eye-witness to see if they can identify the person they
saw on a previous occasion must be done in accordance with Annex E.
Annex E:
● The Identification Officer must confirm that the first description has been recorded before
images are shown to witness.
● One witness at a time. [Avoids contamination]
● Must be at least 12 images (of a similar type).
● No decision until all images are viewed.
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● Witnesses must be told that they are not required to make a selection.
● Witnesses must not be prompted or guided in any way.
● If W makes selection but does not confirm it, they should be asked how certain they are.
● Photo gallery must be retained – may be required in court.
Where there is a known suspect
Para 3.12. Formal identification procedure must be used if:
I. an eye witness expresses an ability to identify the offender or there is a reasonable chance
that the witness will be able to do so;
II. the suspect disputes being the person seen by the witness.
Police must avoid anything which might jeopardise ID procedure. Police must avoid contact between
witness and suspect prior to procedure. Witness must not be shown photos or E-Fits (para 3.3),
Identification Safeguards
● ID procedures conducted in specialised suites.

● Suspect must be given detailed notice (3.17) and give consent.
● Controlled by professional Identification Officer (independent).
● Nothing to direct attention to a particular suspect
● Witnesses must be kept apart
● Police should avoid anything which might jeopardise ID procedure.
● Police must avoid contact between witness and suspect prior to procedure.
The Hierarchy of ID Procedures [Para 3.14]
1. Video Identification
2. Identification Parade
3. Group Identification
4. Confrontation (suspect and witness face 2 face) [3.23, if other procedures are impracticable].
Failure to use best procedure
● Presumption in favour of video identification (Para 3.12)

● Police must have good reason (impracticability test), to use procedure lower in the hierarchy.
● Failure to use best procedure can lead to application to exclude under s.78 PACE
Section 78 PACE
In any proceedings the court may refuse to allow evidence on which the prosecution proposes to
rely to be given if it appears that, having regard to all the circumstances, including the circumstances
in which the evidence was obtained, 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.
EG. Nagah [1991]. N was suspected of attempted rape. He was a known suspect and had agreed to
take part in the ID parade. But one had not been arranged and he was released from custody. Victim
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sitting outside Police Station in a police car. V identified N as the attacker. SHOULD THE EVIDENCE OF
IDENTIFICATION BE ADMITTED?
Video Identification - Requirements
Code D, Annex A.
● Witness shown moving images of suspect and 8 others

● Witnesses (separately) view images twice (at least) before being asked whether the
individual seen earlier is present.
● `Foils’ must as far as possible resemble suspect
● Special features must be concealed or replicated in the foils
● Still images may be used if suspect is not available or moving image would disclose
distinctive feature
● Stills may be used if suspect not available (no consent) 3.15
● Images used must show persons in same positions or carrying out same sequence of
movement, and identical conditions
● (But not if impracticable due to the suspect's refusal to consent.)
● Each person identifiable by number
● Suspect/solicitor must be notified of the witness's first description of the suspect.
● Suspect/solicitor has right to pre-viewing and may reasonably object to foils etc.
Identification Procedure Issues
- Suspect has unusual features – (concealed or replicated)

- Should the “foils” all resemble the suspect, or the first description?
- Uncertain/Qualified identifications.
Turnbull Warning [1977]
Judge must warn the jury of the special need for caution before convicting the accused in reliance
on the identification or identifications. Mistaken witnesses can be convincing. How long is under
observation? How closely? What light? Observation impeded. Has the witness seen the accused
before? Material discrepancy with first description. - supply details to the accused.
Recognition is more reliable than ID - but mistakes can be made. If ID evidence good – jury can
convict. Poor evidence (fleeting glimpse) - withdraw (atura) the case unless supporting evidence.
Judge must identify evidence capable of being supported. Jury should be warned false alibi
(coartada falsa) should not be assumed to be supporting evidence, because some innocent
suspects give false alibis.
W3: SEMINAR: Identification Evidence
Scenario: Adam telephoned the police to report seeing a man smash a car window, remove a laptop
computer and run away. A police car attended and PC Penny asked Adam to describe the man he had
seen. Adam described: “A young white bloke wearing jeans and a hoodie.”. Penny decided to take
Adam on a tour of the area to see if he could spot the thief. She did this but there were very few
people on the streets. She spoke to her sergeant by radio. The sergeant suggested that the offender
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might be Dan, who had a record for offences like this and who frequented the Red Lion. Penny took
Adam to the Red Lion. She looked into the public bar which contained a mixed group of young office
workers wearing smart clothes, two old men playing dominoes and a group of three men, one of
whom was white and wearing a hoodie talking to two Asian men. Penny recognized the man in the
hoodie as Dan. Penny took Adam into the bar and asked him if he could see the thief. Adam
immediately pointed to Dan. Penny then suggested that he went closer to check. Adam did this and
confirmed that he thought that Dan was the thief. Dan was arrested. Adam later gave a formal
statement in which he described the thief as being in his early twenties, about five foot ten inches
tall, with very short fair hair and an earring, and wearing jeans and a brown hoodie with a distinctive
logo. This description very closely matched Dan’s clothes and appearance when Adam saw him in the
Red Lion. Three weeks later the police held a video identification procedure at which Adam picked
out Dan. Dan is charged with criminal damage and theft. (BOTH DESCRIPTIONS -BEFORE AND AFTER)
ARE SIMILAR).
1. Prosecution stage – Group to consider what pieces of evidence the prosecution would wish
to present at trial, and in particular to consider why each item would be relevant to
proving the case against Dan.
2. Defence stage – Group to consider what arguments under s.78, the defence might raise to
exclude particular items of prosecution evidence. The group should also consider what
arguments might be put to the jury concerning the weight of any prosecution evidence
which is admitted.
3. Court stage – Group to consider how the Court would resolve the challenges to evidence
under s.78 and other issues relating to the reception of identification evidence in court.
Adam is an eye-witness. Police asked for identification (first description is very important!). Take
witness on a tour of the area. Suggestion to visit a particular place (Red Lion). If there’s not a known
suspect, it's nice to bring her to the red lion. Officer sees Dan and then asks the witness if she
recognizes any suspect (but between all the guys in the red lion, only one was white, then this is not
a group vision!!!). Points and it’s an identification. Going closer may not be allowed, once Adam said
“it's this man”, there is a known suspect: the rule is that the police stop asking and start the
identification procedure. Seems to be a strong piece of identification. The defendant will say in court
that we have to exclude this evidence because it wasn’t the right procedure (it was not permitted to
have a closer look once we have the suspect, once witness points at him). The second description is
very similar to the second one, but it has been influenced by details the witness has seen the second
time → the defence could say: if this logo is so distinctive, why didn’t the witness mention it the first
time he described the suspect? Is the first description good enough??? Why wasn’t the logo
collected in the first description? And what about “damage and theft”: the defence will say obviously
it is, it will not argue that because they’ll try to demonstrate that Dan wasn't the thief.
In a situation where there is street identification, the moment the witness makes some kind of
identification, all freezes to enable a later identification. By taking the witness closer, that
compromises any future/later description. The prosecution would use the first description as
evidence. This first description is admissible as evidence, it tends to prove as long as this description
would exclude a lot of people even though it is very vague. The defendant, though, will ask why the
police didn’t ask for more detail at the first description, because a lot of people match with that
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description. At this moment we only have the first description as evidence for the prosecution. The
prosecution will try to use Dan’s past crimes as evidence.
What happened in the Red Lion is a neighbourhood identification: the witness pointed immediately
to Dan after seeing him. But was it right to take the witness into the Red Lion? We can say for sure
that if the Sergeant hadn’t said “it's probably him”, that would be very good for the prosecutor. But
for Sergeant it was already a “known suspect”, and then the defence would use it, even though the
prosecution could say “it was just a suggestion, an idea, it could be the suspect, and this is not
enough for him to be a known suspect” → it wouldn’t be enough for taking the guy from the bar and
disrupting his life that a sergeant had said that “he could be the suspect”.
IN THE EXAM WE NEED TO SAY WHAT WE THINK THE RELEVANT ARGUMENTS WILL BE FOR THE
PROSECUTOR AND THE DEFENDANT. HE DOESN’T WANT US TO SAY: IT WAS HIM FOR SURE.
W3: Investigative impropriety obtained evidence and its Remedies.
Investigative Impropriety?
- Breaches of PACE 1984 & Codes of Practice (incl. in relation to Confessions and Identification)
- Criminal: unauthorised interception of communications or intrusive surveillance. (Regulation
of Investigative Powers Act 2000)
- Civil wrong: trespass
- Breach of human right – art 8 (privacy, family life), 3 (torture, inhuman or degrading
treatment, 6 (fair trial).
- Entrapment? – X (state agent?) incites D to commit crime (?)
- “Impropriety” is context dependent.
Remedies for Investigative Impropriety?
- Disciplinary – query motivation to discipline police?

- Tort remedies (damages for trespass, injunction for breach of privacy).
- Euro Ct of Human Rights – compensation for breach of right to Fair Trial, Art 6 (Condron –
but they remained convicted)
- Prosecution (eg under Regulation of Investigatory Powers Act 2000)
- Exclusion of evidence
- Quash conviction: (eg where evidence should have been excluded).
- Stay of proceedings
Exclusion of Evidence – Pros and Cons
CONS:
- Crime Control perspective – Admit all evidence – no exclusion.

- Rectitude of Decision making – Admit all evidence – no exclusions.
- Avoidance of wrongful acquittals – No exclusion
PROS:
- Due Process – exclude evidence to remedy breach of rights
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- Regulation of investigation – exclude evidence to discipline the police

- Integrity of the Criminal Justice System – exclude evidence
- Avoidance of wrongful convictions – Exclude (unreliable) evidence.
EXCLUSION OF EVIDENCE - PACE s.78
“In any proceedings the court may refuse to allow evidence on which the prosecution proposes to
rely to be given if it appears that, having regard to all 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 should not admit it.” [S.78 also considered in Topics “Identification” and
“Confessions”]. S.78 PACE:
- Discretionary (“may exclude”)

- Only applies to prosecution evidence
- Question - would admission make the trial unfair?
- Impropriety does not automatically make trial unfair.
- Holistic view of (un)fairness balancing community interests against the Defendant’s interests.
- Holistic view of concept of the trial (to include pre-trial actions)
- Cp. S.76 – deals only with confessions.
Evidence Obtained Illegally
● Common Law – Evidence admissible however obtained.

● Exceptions:
○ Involuntary confessions
○ R v Payne [1963]1 WLR 637 – D tricked to provide blood sample
○ Common factor: D coerced/tricked into providing evidence against himself. (privilege
against self-incrimination)
● Compare: Jeffrey v Black [1978] QB
● Illegal search – evidence of drugs not excluded
Illegally obtained evidence after PACE
R v Khan (Sultan) [1997]
● Investigation of drug importation conspiracy

● Police obtained authority for listening device
● Police committed trespass and damage in installing the device.
● Judge admitted evidence of conversations emphasising reliability.
● House of Lords: s.78 discretion to exclude (even) reliable evidence.
● Fairness must balance community interests against D’s interests.
● Compare – police methods/criminal methods. (Tolerance of illegality)
● Held: Evidence rightly admitted.
ECHR - Khan v UK (2001): “With specific reference to the admission of the contested tape recording,
the Court notes that the applicant had ample opportunity to challenge both the authenticity and the
use of the recording. It is clear that, if the admission of the evidence had given rise to substantive
unfairness, the court would have had a discretion to exclude it under section 78 of PACE. In these
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circumstances, the use at the applicant’s trial of the secretly taped material did not conflict with the
requirements of fairness guaranteed by Article 6(1) of the Convention.”
Infringement of Privacy
Article 8 ECHR: everyone has the right to respect for his private and family life, his home and his
correspondence. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- Loveridge [2001]. Secret filming of the defendants together in a cell. “The breach of Article 8
is only relevant if it interferes with the right of the applicants to a fair hearing. Giving full
weight to the breach of the Convention, the contravention of Article 8 did not interfere with
the fairness of the hearing. The position is the same so far as section 78 of the Police and
Criminal Evidence Act 1984 is concerned.”
R v Mason [2002]. Police arrested 2 suspects in relation to different robberies. Placed suspects
together in a room with covert recording equipment. Conversation formed part of the prosecution
case on robbery charges. CA: Upheld the admission of the recordings. – Not unfair.
- For the Government to prescribe remedies for breach of privacy.

- The court’s declaration of breach of Art 8 was itself a remedy (!!)
- ECHR recognises that exclusion of evidence leads to injustice to the public.
- No breach of right to silence – Ds had chosen to speak.
- No trick. Police had merely arranged to record anything said.
Button [2005] – Cell bugging (bichos) (R v Button [2005]). “The intrusion or interference has already
occurred, the evidence obtained is admissible under English law and so the court’s obligation is
confined to deciding whether or not, having regard to the way in which the evidence was obtained, it
would be fair to admit it. The court is bound to exclude any evidence obtained in breach of article 8
because otherwise it would be acting unlawfully. We reject this evidence because of article 8 then.
Stay (stopping) of Proceedings for Abuse of Process
- Application by the Defence

- Judge has discretion to completely halt the proceedings.
- Tactically – it may be argued alongside a plea to exclude evidence.
- More extreme remedy than the exclusion of evidence.
- Two Grounds:
- where the “involvement of the court in the conviction of the accused in the light of
the behaviour of the law enforcement authorities, would compromise the integrity
of the judicial system”.
- where impossible for D to have a fair trial. This doesn’t require any impropriety.
Impossible to have a fair trial?
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- Pre-trial adverse publicity which might prejudice the jury. [Rarely succeeds].
- Undue delay in bringing proceedings – historic cases. [Occasionally succeeds].
Compromise the integrity of the Judicial Process
R v Horseferry Road Magistrates’ Court ex parte Bennett [1994]
- Forcible abduction (secuestro) of D from South Africa

- Breaches of UK law and international law by state agents.
- Criminal proceedings could be stayed for AoP where: where trial would be contrary to the
public interest in the integrity of the criminal justice system.
- Proceedings stayed (stopped).
R v Mullen [1999]
● *Conviction of terrorist for conspiracy to cause explosions quashed.

● Police had collaborated with police in Zimbabwe to obtain M’s deportation. Should have
used an extradition procedure.
● CA Held: proceedings should have been stayed (stopped). Breach of international law.
Complicity in breach of Zimbabwe law. Court’s responsibility to exercise control over the
whole criminal process. Blatant disregard for rule of law. Need to discourage such conduct in
future. Certainty of guilt did not outweigh the abuse of process. “Degradation of the lawful
administration of justice.”
Evidence Obtained by Torture
A and Others v Secretary of State for the Home Department [2005]. Special Immigration Appeal
Commission. The Government wished to detain applicants under Anti-terrorism legislation. Could
SIAC rely upon evidence obtained by US authorities allegedly by torture? Art 15 UN Convention
against Torture 1987 – duty not to use evidence obtained by torture in any legal proceedings.
House of Lords: did not simply rely on international obligations under Art 15. “English law has
developed a principle that the courts will not shut their eyes to the way the accused was brought
before the court or the evidence of his guilt was obtained. Those methods may be such that it would
compromise the integrity of the judicial process, and dishonour the administration of justice, if the
proceedings were to be entertained or the evidence admitted. In such a case the proceedings may be
stayed or the evidence rejected on the ground that there would otherwise be an abuse of the
processes of the court. The duty not to countenance the use of torture by admission of evidence so
obtained in judicial proceedings must be regarded as paramount and to allow its admission would
shock the conscience, abuse or degrade the proceedings and involve the state in moral
defilement.” THIS IS AN ABSOLUTE RULE (RATHER THAN DISCRETIONARY).
Entrapment
- Where a person is induced to commit the crime (by a state agent?)

- “Agent provocateur” – provokes another to commit a crime, in order to prosecute him.
- Distinguish cases where D is induced to provide evidence (different considerations).
- Sang [1980]
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- (i) no defence of entrapment in English Law

- (ii) No discretion to exclude evidence on the ground that it was obtained by an agent
provocateur.
Modern Law?
- Should evidence be excluded under s.78 for unfairness, where the offence itself only took
place because induced by state agent?
- If a state agent induces an offence would it compromise the integrity of the criminal justice
process so as to amount to an abuse of process?
Preliminary Considerations
1. State agents should not create crime.

2. Unfair to test the virtue of somebody with no known propensity to crime.
3. Unfair to test the virtue of somebody who is vulnerable to criminality.
4. Would it bring criminal justice into disrepute if the state induce a crime and then prosecute
the offender?
5. BUT; entrapment may be necessary to combat some types of crime.
When is entrapment used?
Entrapment and Trading Standards.
● Alcohol and tobacco sales to underage customers.
Entrapment and “victimless” crimes
● Street prostitution
● Drug dealing.
Teixeira de Castro v Portugal (1999)
Police incited D to supply drugs. D convicted. ECtHR held that D had been deprived of a fair trial from
the outset because the police had positively incited him to deal in drugs, where there was no
evidence of prior involvement in drug dealing. Distinction drawn with the case in which the police
have grounds to believe that D is already involved in crime (eg intelligence of regular drug dealing).
R v Smurthwaite; Gill [1994]
S&G both charged with conspiring to murder a relative. Both had sought to hire a hit-man – but had
dealt with an undercover police officer. CA Held: Approved the admission of the undercover
evidence. s.78 Factors: (i) Did the officer incite an offence which would not otherwise have been
committed? (ii) nature of the entrapment (pressure/coercion?) (iii) Was there any breach of PACE
rules, eg by interrogating D? (iv) how active or passive? (iv) quality of the record of what was said.
Looseley [2001]
Supply of drugs to an undercover police officer – no entrapment. “... a useful guide is to consider
whether the police did no more than present the defendant with an unexceptional opportunity to
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commit a crime. I emphasise the word ‘unexceptional’. The yardstick for the purpose of this test is
whether the police conduct preceding the commission of the offence was no more than might have
been expected from others in the circumstances. Police conduct of this nature is not to be regarded
as inciting or instigating crime, or luring a person into committing a crime. The police did no more
than others could be expected to do. The police did not create crime artificially.’
R v Syed (2019)
● D identified as person who might be groomed as a terrorist.

● Security Service officers, posing as terrorist sympathisers communicated with D through
specialist websites.
● Over a number of months, a plan crystalized and D arranged to obtain guns and bomb from
the security officers.
● D convicted of preparing for a terrorist act.
● ON APPEAL: Argued that evidence of on-line conversations should be excluded, or the case
stayed for abuse of process, for entrapment.
● Court of Appeal Judgment: Conviction upheld. No entrapment. Evidence of on-line chat
indicated that D approached the officers with an existing intention to commit a terrorist
offence. The investigative techniques were necessary and proportionate in view of the
gravity of the intended offence. The officers did not go beyond giving D an unexceptional
opportunity to commit the offence. The role players did not bring the CJ system into
disrepute but were to be commended.
Entrapment by Non-State agents?
Tulisa Contostavlos case J. Dein and L Vernon Collier “Non-state entrapment: the X factor” [2014]
● T induced to offer to supply drugs by Mahoud (journalist)

● Offers of lucrative film-part - £3.5m. Expensive entertaining.
● M lied to the court. State prosecution relied entirely on evidence generated by M.
● STAYING of PROCEEDINGS (?)
See Z. Leggert “When will the conduct of non-state actors give rise to entrapment?” [2018]
R v TL [2018]
U was a member of a vigilante group Predator Hunters. U joined a chat room, posing as Bexie, a 14
year old girl. L posted that he and his partner wished to meet a girl (18-29) willing to try new
experiences. After chat an arrangement was made for L to meet Bexie. U and police arrived at the
meeting place.
L was charged with attempting to meet a child following grooming. Defence applied to stay the
proceedings. Judge stayed proceedings in pre-trial ruling. Prosecution appealed. CA HELD: (i) L
“made the running”. U simply offered L an opportunity to groom a girl. (ii) No element of “state”
misconduct. (iii) Requirements for entrapment not satisfied. (iii) Case could proceed.
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W4: SEMINAR: Remedies for Investigative Impropriety
3. What is the abuse of process doctrine? Do we need the abuse of process doctrine in view of the
power of the court to exclude evidence? Abuse of process is "something so unfair and wrong that the
court should not allow a prosecutor to proceed with what is in all other respect a regular
proceeding". Both the Crown Courts and magistrates' courts have discretion to protect the process of
the court from abuse.
4. Consider what arguments about admissibility of evidence which might be deployed by the
prosecution and defence in the following circumstances.
(a) Davina is charged with supplying cocaine. The prosecution wishes to present evidence of
photographs taken in Davina’s house which show kitchen scales (of a type often used to weigh drugs)
and some bags of white powder on a shelf in the kitchen (which may be cocaine). The photographs
were obtained by Sid who is a member of a group which aims to prevent the sale of drugs in the
community. Sid obtained the photographs by pretending to be an electricity meter reader. Davina
allowed him to enter the house and went into another room to take a phone call. When Davina
returned, she saw him taking photos and chased him from the house. Sid handed his photos to the
police. When the police obtained a warrant to search the house, there was no sign of either the
scales or the white powder. The police found minute traces of cocaine in the kitchen. In the
interview, Davina admitted to being a user of cocaine but denies being a dealer.
The prosecution may argue that the photographs are admissible evidence because they were taken
during a lawful entry into the house by someone posing as an electricity meter reader and were
obtained in a manner that did not infringe Davina's privacy. They may also argue that the traces of
cocaine found in the kitchen provide further evidence of Davina's guilt.
The defense may argue that the photographs are not admissible because they were obtained
through deception and without Davina's consent, and therefore violate her right to privacy. They may
also argue that the absence of the scales and white powder in the subsequent police search raises
questions about the reliability of the photographs and the trace evidence. Additionally, the defense
may argue that Davina's admission to using cocaine does not make her a dealer.
(b) A terrorist group linked to Ruritanian separatism is unhappy with current UK foreign policy and
has been responsible for a number of bombings in public places. In order to try and infiltrate the
group, Paul (an undercover police officer) regularly went to a café which was popular with young
Ruritanians. At the café, Paul met and became friendly with Rudi. In discussions with Rudi, Paul
expressed views in support of Ruritanian separatism, and critical of the UK Government. Rudi was
influenced by Paul’s views and because increasingly radicalised. Paul said that he had access to heavy
cutting equipment at work and that he wished he could do something to assist the terrorist group.
Rudi said that he would try and find out how to contact the group. A week later, Rudi met Paul and
said that he would help Paul by arranging a meeting with a local leader of the terrorists. Rudi is
charged with arranging a meeting in support of a proscribed organisation under s.12(2) Terrorism Act
2000. In a police interview, Rudi said that he had never considered getting involved in terrorism until
he met Paul. [Note: Rudi’s actions would constitute the offence in law.].
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Terrorists are so serious, we could expect that the police will try to infiltrate someone to stop them.
But Paul (the policeman) influenced Rudi to have a more radical vision. Rudi only wants Paul to meet
the leader. Rudi said that he had never considered terrorism before Paul. The police really induced
the guy.
The prosecution may argue that evidence of Rudi's conversations with Paul and the agreement to
arrange a meeting with a local leader of the terrorists is admissible because it is relevant and
probative to the charges against Rudi. They may also argue that the evidence is reliable because it
was obtained by an undercover police officer. And the Paul just said that he would like to participate,
and Rudi wanted him to meet with the group (police didn’t ask to meet with the group).
The defense may argue that the evidence should be excluded because it was obtained through
entrapment by Paul, and therefore violates Rudi's right to a fair trial. They may also argue that Rudi
was not predisposed to engage in terrorism and was only influenced to do so by Paul's views and
actions. Additionally, the defense may argue that Rudi's statement in a police interview, where he
claims he had never considered getting involved in terrorism until he met Paul, supports their
entrapment argument.
W4: Confessions.
Confession can be:
- Guilty plea in court - Conviction.

- Confession in court testimony - admissible.
Problematic “Confessions”
● Statements out of court

● Evidence given by another person (for example, a hearer)
● Or – recording (Audio, CCTV etc)
● Typical case – things said in a police interview.
Constructed and Non-constructed confessions
Non-Constructed Confessions
● Words recorded on ‘phone by rape victim

● Words overheard in pub conversation
● Words spoken by perpetrator to victim or friends
● ”Cell confessions”
Constructed Confessions in Police Interview
Police control the time, the place, the conditions and the duration. Police asking questions, and
decide the lines of enquiry (they will avoid asking questions that will help the suspect). Police control
disclosure of information (la divulgación). Influence of legal advisor.
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What is a Confession?
PACE 1984 s. 82 (1) (Part VIII): “confession” includes 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;
Presumptively Admissible
PACE s. 76(1): ‘In any proceedings a confession made by an accused person may be given in evidence
against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by
the court in pursuance of this section.’
Confessions are presumptively and generally admissible only against the maker. Investigative work
is focused on the construction of confessions. Grounds for exclusion set out in s.76(2).
ELEMENTS OF THE DEFINITION OF S.82 PACE. What is confession evidence?
“Adverse”: Tending to prove an element of the offence or something the prosecution would need to
prove or disprove. *Prosecution “Case Theory”
“Inculpatory” BUT does NOT necessarily involve an acknowledgment of guilt. Examples:
- “I killed him” Confession + acknowledgment of guilt.

- “I was in the hotel.” Confession (tends to prove presence) - no acknowledgment of guilt
“Wholly or partly adverse”
‘Partly adverse’ refers to mixed statements by D both inculpatory (suggesting culpability/guilty) and
exculpatory (suggesting innocence) evidence. Any sentence/word/part of D’s statement considered
to be ‘adverse’, it’s a confession even if the rest of/majority of the statement is a denial (exculpatory).
Mixed Statements
Sharp [1988] 1 All ER 65: "Where a "mixed" statement is under consideration the jury must be told
that the whole statement, both the incriminating parts and the excuses, must be considered by
them in deciding where the truth lies. And the judge may, and should, point out that the
incriminating parts are likely to be true , whereas the excuses do not have the same weight.”
Statements may be unclear or ambiguous
“I have been such a fool”. Adversity may depend upon a contested (disputat, no clar) meaning.
Practice is to treat as “adverse” (as a confession) any statement which might arguably be
interpreted as a confession. Where meaning is contested – the statement is normally admitted
under s.76(1) but the jury must determine whether it is in fact inculpatory.
“Made to a Person in Authority or Not”
Confession evidence does not have to be to the police, may be made to anyone (or anything) BUT
the person to whom the statement is made must be called to give evidence Or a recording may be
admitted. Confession may be made to a cellmate or acquaintance or to Twinkie the CAT.
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R v Henton (2008): D was charged with murdering his partner. Police bugged the flat. Recorded
conversation with cats. Meaning of ‘adverse’ statement contested (very ambiguous): “Good God I’ve
done it”. Mumbled words contested (paraules murmurades que es posen en dubte): “Hitting Joyce”
or “Missing Joyce”. This evidence was admissible as a confession but they found him not guilty.
“Made in Words or Otherwise”
Li Shu-Ling v R [1989] AC 270: Confessed to strangling the victim. 2 days after the incident he agreed
to take part in a re-enactment (recreació) of the crime. He changed the story at trial. Video of the
re-enactment of the crime was a confession.
- YES: Acknowledgement of accusation: e.g. nodding/thumbs up (assentint o aixecant dit).

- YES: Sign language positive response to an accusation (Blackstone’s Criminal Practice)
- NO: Driving away very quickly from the scene of a crime. 'Conduct which is not intended to
convey/transmit anything, but may be interpreted as doing so, is not a statement and hence
not a confession' (Blackstone's Criminal Practice F17.1).
Confession by Silence? Christie [1914] AC 545. Accusation of sexual assault made by child in
presence of C. "He may accept the statement by word or conduct, action or demeanour, and it is the
function of the jury to determine whether his words, actions, conduct or demeanour at the time
when the statement was made whether to accept it, in whole or in part (by interpretation)."
HEARSAY (testimonio de oídas, rumor)
Statement out of court, presented in court as evidence of its truth. Hearsay is generally inadmissible
unless it falls under the statutory exceptions under CJA 2003. S.76(1) PACE admits confession
evidence. CJA 2003 preserves the common law rule of admissibility of confessions or mixed
statements in criminal proceedings.
Reasons for EXCLUDING hearsay
● Not evidence on oath in court

● Not the best evidence
● Not made on a formal occasion – no guarantee of truthfulness
● Possibility of transmission errors
● So why does exclusion not apply to confessions? Rationale for Admissibility of Confession:
‘A voluntary out of court confession or admission against interest made by a defendant is an
exception to the hearsay rule and is admissible against him. That was so under the common
law. Admissions made by [an accused] are admissible against him for the obvious reason that
he would be unlikely to have made them unless they were true (R v Hayter [2005]).
Non-constructed Confessions?
1. Spontaneous statements, including to the police, not prompted by police questioning.

2. “Cell Confessions”
Pringle [2003]: where there are indications that the evidence may be tainted by improper motive,
the judge should draw the jury’s attention to these indications and their possible significance. He
should then advise caution in accepting the prisoner’s evidence. Benedetto v R [2003]
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Stone [2005]: cellmate, awaiting trial, alleged that S confessed to murder. CA: Properly admitted as a
confession, but the judge should warn the jury that the prisoner may have motives for lying.
Confessions as a Police Construction
Police and Criminal Evidence Act 1984 S.37 (1) "Where a person is arrested for an offence (2) If the
custody officer determines that he does not have (sufficient evidence to charge), the arrested person
shall be released unless the custody officer has reasonable grounds for believing that his detention
without being charged is necessary to secure or preserve evidence relating to an offence for which
he has been arrested, or to obtain such evidence by questioning him.“
Why is an Interview so attractive to the Police? Useful Outcomes of police interviews: Confession;
Significant silence or failure to mention fact (allowing inferences to be drawn); Committing D to a
story; Prejudicial audio or visual recording of suspect.
Risks, problems, miscarriages of justice about confessions
Confessions are attractive to police officers, for obvious reasons, and can impress juries. However,
experience shows that confessions can prove unreliable and, regrettably, even lead to miscarriages
of justice. Birmingham Six: they spent 16 years in prison, and then were released (liberados)
because the confession was unsafe: interrogation for up to 12 hours without a break, deprived of
food and sleep, threats, beatings, letting dogs within a foot of them, mock execution.
First, the confession may have been totally fabricated by the police; it may never have been made
at all by the person to whom it is attributed. Secondly, while the suspect may have confessed, he or
she may have made a false confession. Third, even if the confession is true, there may be questions
of extrinsic policy which dictate that it is still inappropriate to use the confession, because of the
unacceptable methods by which it was extracted.
The Psychology of Interrogations and Confessions (2003) - Gudjonsson
3 types of false confessions:
1. Voluntary false confession (without pressure from police). Rationale:

a. morbid desire for notoriety
b. feelings of guilt about real/imagined previous acts
c. unable to distinguish fact from fantasy
d. wishes to assist or protect the real suspect
e. confesses to obtain reduced punishment
f. prevent further investigation of a more serious offence
2. Coerced compliant false confessions (when benefits outweigh costs). Rationale:
a. in order to escape police interrogation
b. trickery: they are promised a reward
3. Coerced internalised false confessions (when people come to believe they committed the
crime even though they have no memory of it)
Regulation of Confession Evidence
● PACE Code C – detailed regulation of the interview
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● PACE Codes E& F – audio & visual recording of interviews

● PACE 1984 s. 82: definition
● PACE 1984 s. 76: admissibility
● PACE 1984 s. 76A: used against a co-accused
● PACE 1984 s. 77: judge’s directions (special caution where D is mentally handicapped)
● PACE 1984 s. 78: exclusion
PACE Code C
● No interviewing other than at Police Stations - para 11

● Right to consult solicitor pre-interview at any time (s.58)
● Right to have someone informed of arrest (s.56)
● Reminder of right to consult prior to each interview
● Interview preceded by caution about silence and inferences
● "You do not have to say anything. But it may harm your defence if you do not mention when
questioned something which you later rely on in court. Anything you say may be evidence.“
● Regulation of confession evidence
● Max 2 hours of interview without a break
● Right to 8 hours uninterrupted rest - meals/refreshment
● Right to have someone informed of arrest (s.56)
● Children/mentally handicapped:`appropriate adult' present
● Detention max 24 hrs
● 36 hrs `continued detention' with authority of Superintendent subject to conditions (s.42)
● Up to 96 hrs authorised by Mags (s.43)
● Interviews tape/video recorded (s.60/ Code E/s.76 PRA 2001)
The Exclusion of Confession Evidence
- Confessions are admissible under PACE s.76(1)

- May be excluded under s.76(2) – Specific.
- May be excluded under s.78 – General fairness
Why Exclude?
● Irrelevance (but if so, not prima facie admissible)

● Disciplining the police
● Protecting accused's rights (Ashworth [1977])
● Enforcing humanitarian standards
● Integrity of the criminal justice system: apparently reliable evidence may be excluded if it
carries significant risks of impairing the moral and expressive authority of the verdict.
● Reliability
The Mechanism for Exclusion – Voir Dire
- Application to judge in absence of jury

- May be at a Preparatory Hearing under (CPIA 1996, part III)
- “Voir Dire” means It is a trial within a trial
- The truth of the confession is NOT in issue (no es qüestiona la veritat de la confessió).
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- If confession is admitted – arguments about meaning and reliability can be put to jury.
MANDATORY EXCLUSION- s.76 PACE
76 (2) If, in any proceedings where the prosecution proposes to give in evidence a confession made
by an accused person, it is represented to the court that the confession may have been obtained:
a) by oppression of the person who made it; or

b) in consequence of anything said or done which was likely, in the circumstances existing at
the time, to render unreliable any confession which might be made by him in consequence
thereof (qualsevol cosa que li obligui a dir el que ha dit, perquè era la única opció).
The court shall not allow the confession to be given in evidence against him except insofar as the
prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that
it may be true) was not obtained as aforesaid.
S.76 – Necessary causal link between conduct of another and the confession. This causal link can be,
as said in article 76 (2), OPPRESSION or UNRELIABILITY.
OPPRESSION
(2)(a) represented to the court that the confession was, or may have been, obtained by oppression.
Mohd Ali Bin Burut [1995].
76(8) "In this section oppression includes torture, inhuman or degrading treatment, and the use or
threat of violence (whether or not amounting to torture).” (wide definition) Prager [1972].
Questioning which is by its nature, duration or other attendant circumstances (including the fact of
custody), excites hopes (such as hope of release) or fears or so affects the mind of the subject that
his will crumbles and he speaks when otherwise he would have stayed silent.“ Mushtaq [2005].
Mohammed-Holgate v Duke [1984] AC 437HL
● Legitimate purpose of custodial interview – to induce suspects to speak.

● Legitimate to use arrest to subject D to a coercive atmosphere of police interview.
● Prager definition too wide.
● Tolerance of a degree of oppression (?)
A police officer had purported to arrest the plaintiff under the 1967 Act, suspecting her of theft.
After the interview she was released several hours later without charge. She sought damages alleging
wrongful arrest. The judge had found that he had reasonable grounds for suspicion, and that the
period of detention was not excessive. However the use of an arrest to place her under pressure was
improper. On appeal the chief constable succeeded, the court saying that the question was whether
the decision to arrest was Wednesbury unreasonable; was it made in good faith, and did it take into
account any irrelevant factors.
Held: The idea that a suspect might more readily confess at a police station under arrest was a
proper consideration, and given the reasonable cause for suspicion, the arrest was lawful.
Fulling [1987] QB 426; 85 Cr App R 136
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"Exercise of power or authority in a burdensome, harsh or wrongful manner; unjust or cruel

treatment of inferiors, subjects etc; the imposition of unreasonable or unjust burdens. There is not a
word in the English language which expresses more detestable wickedness than oppression." "Hard
to envisage circumstances in which oppression would not entail some impropriety from the
interrogator."
It was alleged that evidence had been obtained by police oppression. She had at first refused to
answer questions, but an officer talked to her during a break between interviews, telling her that her
lover had been having an affair. The circumstances caused the appellant severe distress, and she
made admissions in the following interview. HELD: Judge correct to rule no oppression. Accepts that
suspect in custody is under pressure.
Crime Control v Due Process
Tension between different interpretations of “Oppression”
● Praeger – (Due Process) broad definition, incl custody, etc. Could PACE compliant interviews
be “oppressive”? Would this restrict the police too much?
● Fulling – (Crime control) narrower definition, requires impropriety. Scope for Investigators
to apply some pressure. Custodial interviews under PACE will not amount to oppression.
Miller, Paris & Abdullahi(1993) 97 Cr App R 99 “The Cardiff 3”
- Stephen Miller's characteristics - IQ 75, mental age 11

- 13 hours of questioning - Denied murder 300 times
- Solicitor in attendance – spoke once on tape.
- Only innocuous parts of tape played in court.
The officers in the present case took the view that unless and until the solicitor intervened they could
not be criticised for going too far… they were wholly wrong. Short of physical violence it is hard to
conceive of a more hostile and intimidating approach by the officers to the suspect. Interviewing
officers not bound to give up at first denial. Held CA: confession excluded for oppression.
Implications of Miller? Oppression established within an interview which followed PACE structure –
including presence of solicitor. But NOTE the extreme language used to describe the oppressive
conduct. Miller did not open floodgates. Raised voice and bad language did not = oppression.
Oppression - Halliwell
Confession to murder of Sian O’Callaghan in interview outside police station.
- Prosecution – “robust and no-nonsense approach” – not aggressive

- Defendant not “vulnerable person” but assessed to be stressed.
- Taken to a rural location – likely to create pressure and anxiety
- Repeated requests to be taken to Station ignored.
- Not cautioned – whole purpose was to persuade H to speak
- Repeated threat - DS would speak to the press and H would be vilified.
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“It is at least possible that this questioning by its nature and given the surrounding circumstances,
affected the mind of the suspect that he spoke when otherwise he would have remained silent.”
“Prosecution have not discharged the burden of proof (beyond reasonable doubt) (prosecution
hasn’t demonstrated that the confession was not obtained by oppression). The evidence relating to
his confession is therefore inadmissible under s.76(2).
UNRELIABILITY
76 (2)(b) represented to the court that the confession was, or may have been, in consequence of
anything said or done which was likely in the circumstances existing at the time, to render unreliable
any confession which might have been made by him.
Breach of rules will not necessarily lead to unreliability. Law-Thompson [1997]: absence of
appropriate adult for minor did not make confession unreliable. But if we look at Everett [1988]: 42
year old (mental age 8) confessed to indecent assault. Held: failure to provide appropriate adult
made confession unreliable.
Cause of Unreliability
Rennie (1981): R argued that his verbal confession was a result of his belief that if he did not confess,
other family members would be arrested. If a hope or belief is self-generated, it is irrelevant, even if
it provides the dominant motive for making the confession. In such a case the confession will not
have been obtained by anything said or done by a person in authority. [Suggests a disciplinary rather
than reliability rationale].
Goldenberg (1988): G (suffering heroin withdrawal symptoms), requested interview in order to

speed his release. Made a confession. Held:
a) Anything said or done, did not include D’s own actions.

b) Even if the confession was induced by desire to be released.
c) It was not induced by anything said or done by police (or others)
Focus on police conduct inducing unreliability, not on objective reliability BUT compare:
Crampton (1990): CA doubted whether the mere holding of an interview at a time when D is
suffering withdrawal symptoms is something “done” within the meaning of s.76(2)(b).
Wahab [2002]: D made admissions following negotiations, conducted by his solicitor about
treatment of other family members. Solicitor advised that family members would be released if D
made admissions. Held CA: (i) Solicitor under duty to give robust and realistic advice. (ii) Proper
advice of the solicitor could not amount to something said or done.
Likely to render any confession unreliable
Doolan [1988] Crim LR 747: D convicted of armed robbery. Informal interview, absence of PACE
safeguards. Held: (i) Absence of safeguards made confessions unreliable. (ii) Even though other
evidence justified conviction + confession probably true.
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EVIDENCE DISCOVERED AS A RESULT OF CONFESSION
Halliwell – Judge ruled that evidence relating to Sian’s body being found as a result of what H said,
was also inadmissible (citing s.76(2)) ??
s. 76(4) "The fact that a confession is wholly or partly excluded in pursuance of this section shall not
affect the admissibility in evidence of any facts discovered as a result of the confession. (5) Evidence
that a fact to which this subsection applies was discovered as a result of a statement made by an
accused person shall not be admissible unless evidence of how it was discovered is given by him or
on his behalf.
Evidence Discovered – ss 76(4) & (5)
Lam v R [1991] 2 AC 212: L charged with murder by stabbing. In an interview and subsequent video
re-enactment, he admitted to the stabbing and to throwing the knife into the sea. Knife subsequently
was recovered. Judge: ruled confession inadmissible for oppression, but admitted the enactment
and the evidence that knife (weapon) found as a result.
Privy Council: (i) Re-enactment excluded. (ii) Evidence linking the recovery of the knife to L’s
re-enactment, must also be excluded. Conviction quashed.
DISCRETIONARY EXCLUSION s.78
PACE s.78(1): "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."
- “Discretionary” – Would a court ever admit evidence after finding that it would be unfair?
- Embodies the Guarantee of Fair Trial in Art 6 ECHR
- Applies to all Prosecution evidence – Confessions, Silence, things found, visual identification.
- Holistic concept of “proceedings”.
R v Mason [1988] 1 WLR 139: D accused of setting fire to a car by Molotov Cocktail. No evidence -
strong suspicion. Police told D that his fingerprints were found on a broken bottle. D had intended to
remain silent. Solicitor advised him to explain his role in light of fingerprints. CA: Judge should have
exercised discretion to exclude. “The vital factor was the deceit (engany) practised upon the
appellant’s solicitor.”
Breaches of PACE and the Codes
- Samuel [1988] QB 15 – denial of access to lawyer

- Cp Alladice (1988) 87 Cr App R 380 `significant & substantial test'
- Kirk [2000] 1 WLR 567 – Interview without disclosing suspicion of manslaughter.
- Halliwell – Rebecca murder, cumulative breaches of PACE.
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W5: SEMINAR: Confessions
Question: Confessions are admitted as an exception to the Hearsay rule, because it is assumed that a
confession is intrinsically reliable. It is also possible to convict a person solely on the basis of an
out-of-court confession. How well founded is the assumption of reliability? Should the rule that a
person can be convicted by confession alone be reconsidered?
Problem for discussion:
Zelda was killed in the course of a burglary at her home. Three weeks later Fred contacted the police
and made the following statement. “I was in the Rose and Crown with Darren. We had both had
three or four pints of bitter. I told Darren about an armed robbery, which I had committed a few
years ago, and told him that he would not have the guts to do a job like that. In reply he blurted out
that he had committed the burglary in which the woman got killed.”
Darren (who has previous convictions for robbery and grievous bodily harm) was arrested and held
for a period of 36 hours (the superintendent having authorised detention beyond 24 hours under
s.42 PACE). During this period he was interviewed on 4 occasions for a total of 12 hours. Throughout,
the interviews were recorded and his solicitor was present. For the first 11 hours of interview Darren
denied the murder and denied having told Fred that he committed it. During this time there were
periods in which the interviewing officer shouted at him. Darren was also read a statement by the
husband of the dead woman and shown photographs of her relatives grieving at her funeral. When
the final interview commenced at 11 p.m. Darren complained that he was exhausted and wished to
go to bed. After 20 minutes, Darren’s solicitor asked for time to consult with his client. In
consultation the solicitor told Darren that the evidence against him was strong and the only way to
avoid a murder conviction would be to admit the killing Z accidentally. The interview re-started,
Darren immediately confessed to the killing and told where the murder weapon could be found. The
weapon was later found in the place indicated by Darren.
At Darren’s trial for murder, the prosecution seeks to rely upon the interviews conducted in the
police station and evidence relating to the weapon and also seeks to call Fred as a witness.
We have to think about what prosecution will rely on and then try to know what the two sides
(defence and prosecution) will argue.
- Someone being drunk because of himself would not be enough to exclude evidence.
- This is a lawful progress (superintendent has authorised detention during this time)
- He has a record of previous convictions.
- He was interrogated 4 times within 12 hours → not ok. This must have exceeded the time of
questioning and therefore it’s an argument for the defence.
- The interviewer shouted at him (could be oppression, unfairness…)
- Emotional manipulation (photographs) is generally allowed.
- Darren needed to go to sleep.
- Solicitor tells him that they have a lot of proof and that he should confess.
- Weapon was found in the place indicated by Darren.
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- The ground for exclusion under unreliability applies even if the weapon is found. If
confession results to be inadmissible, the evidence of the weapon is admitted anyway even
though it is not linked to the suspect.
Think about: why is it a confession? He said something which is adverse to him. Confession is an
exception to the rule of hearsay, this is why we should make sure it fits the definition of confession.
We need to say that Fred needs to be called as a witness in the trial.
76 (2)(b) represented to the court that the confession was, or may have been, in consequence of
anything said or done which was likely in the circumstances existing at the time, to render unreliable
any confession which might have been made by him. → they were discussing their crimes, so he was
(asked?) to speak about his recent crime. CAUSATION: did it cause Darren to make the confession?
Darren said it as a direct response to Fred. RELEVANT CIRCUMSTANCES: they were drinking and it
was a competition about crimes.
Then we need to think about the product of the interview.
- OPPRESSION? (intimidating behavior, overlong time interviewing…)

- UNRELIABILITY? Something said or done by the solicitor. Solicitor’s advice.
Look again at the causation. He has maintained his innocence for 11 hours and then he speaks with
the solicitor and suddenly he confesses. Furthermore, he is exhausted and desperate and he wants to
go to sleep, then (maybe a false confession???).
Argument for unfairness???
W5: Silence as Evidence
Silence as Evidence – Historical Perspective
1990
- D makes “No Comment” in police interview – Right – Not evidence

- D declines to testify in court – Right – Not evidence
1996 (post Crim Justice and Public Order Act 1994)
- “No comment” in interview – jury can draw “adverse inferences” if D raises defence in court.
(s.34)
- No testimony in court - jury can draw “adverse inferences” if D fails to answer prosecution
case.
Right to Silence at Common Law
Two contexts:
1. Silence under accusation/questioning

2. Silence in court
Prosecution burden of proof. Privilege against self-incrimination.
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The Significance of RTS (Common Law)
- Can D demand that he is asked no questions? No

- Can D refuse to go to court if charged? No
- Could D’s silence in the interview be used as evidence? No
- Could D’s silence in Court be used as evidence? No
Right of Silence = A rule about what evidence could be used against D
Exception to RTS at Common Law
“Acceptance” of accusation by silence (Christie [1914]): he may accept the statement by word,
conduct, action or demeanour and it is the function of the jury to determine whether his words,
conduct, action or demeanour amounts to an acceptance of it in whole or in part.
Requirements:
I. Silence in face of accusation in his presence

II. Accused and speaker on “equal terms”
III. Where D could have been reasonably expected to deny.
Silence in Face of Accusation
Explicitly retained
s.34(5) Criminal Justice and Public Order Act 1994: this section does not…
a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the
face of anything said in his presence relating to the conduct in respect of which he is
charged, in so far as evidence thereof would be admissible apart from this section; or
b) preclude the drawing of any inference from any such silence or other reaction of the accused
which could properly be drawn apart from this section.
Christie [1914] AC 545. O (Osbourne) [2005].
- Accusation in the presence of O “Why did you hit him?

- Friend of O answered: “Cos we don’t like Asians.
- O smirked and did not disagree.
CA Held: Jury, properly directed, might conclude that D accepted the statement. Conviction upheld.
Possibility of exclusion under s.78 if it would be unfair to admit it.
RTS under attack
- Criminal Law Revision Committee 11th report 1972

- Criminal Evidence (Northern Ireland) Order 1988
- Home Office Working Group on the RTS 1989
But RTS defended by:
- Royal Commission on Criminal Procedure 1981
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- Royal Commission on Criminal Justice 1993.
The Right to Silence Debate
Constitutional arguments
There is no legal duty to assist the police, only a moral/social duty. The common law basis is the
right of the individual not to answer questions put to him by an authority. Rice v Connolly [1966].
Criminal Control Arguments
A person suspected of committing an offence and refusing to answer a question when arrested is
able to conceal that silence from the jury. This does not provide the jury with all the facts and is not
a sensible, rational basis upon which to proceed. We need to think more about victims and
witnesses who presently lack faith in the process. One aspect of that lack of faith is an exclusionary
rule which does not allow the evidence in the case to be presented to the jury. Neyroud (1994).
Criminal Process Arguments
Rectitude, or accuracy of outcome, is the object of the judicial trial, and the pursuit of this objective
should not be interfered with merely to preserve values external to proof. Greer (1990) (el resultat és
l’objectiu del procediment judicial, i els altres valors no son tan importants).
Due Process/Adversarialism Arguments
Defence disclosure (or being pressured to speak or give evidence) is designed to be helpful to the
prosecution, and to the system. But it is not the job of the defendant to be helpful to either the
prosecution or the system. His task, if he chooses to put the prosecution to proof, is simply to defend
himself."
Exchange Abolitionism – Balancing Crime Control and Due Process
Right to silence had a role when there were few procedural safeguards for the defendant but
nowadays no need for right to silence because there are other safeguards such as:
- Recording of interviews
- Access to legal advice
- Limits on duration of interview
- Exclusion of evidence under .s76 and s.78 PACE
The Right to Fair Trial (adversarialism)
Article 6(3) ECHR – Right to Fair trial
Everyone charged with a criminal offence has the following minimum rights:
a) to be informed promptly, in a language which he understands and in detail, of the nature and
cause of the accusation against him;
b) to have adequate time and the facilities for the preparation of his defence;
c) to defend himself in person or through legal assistance of his own choosing
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d) to examine witnesses against him and to obtain the attendance and examination of
witnesses on his behalf under the same conditions as witnesses against him;
EVIDENCE ARGUMENTS
Bentham (1827): Innocence claims the right of speaking, as guilt invokes the privilege of silence.
- Silence may be a symptom of bewilderment. Silence to shield another

- Suspect may not wish to cooperate whether guilty or innocent (McConville & Hodgson)
- Silence may be a response to police interrogation tactics (McConville & Hodgson, 90 - 95).
Consequentialist Arguments
Ambush Defences (emboscades defensives): a defence raised for the first time in court, leaving no
opportunity for investigation and contradiction. R v Condron and Condron [1997]. Would more
suspects speak if warned of risk of adverse inferences? Yes.
The Royal Commission on Criminal Justice 1993
Crime Control position
- Right to silence favours criminals, but of no benefit to the innocent

- Court should be able to consider all evidence (including silence)
- Suspects should be required/pressured to speak (subject to sanction)
- Failure to speak should be evidence against them
Due Process position
- D should have right to defend himself as he wishes

- Prosecution must prove guilt – without D’s help
- Silence is ambiguous – unreliable evidence
- To force D to speak is unfair
- Retain old caution and the right to silence in the police station.
CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994
Interferences may be drawn against D.
- s.34 – Failure to disclose matters relied upon in defence

- s.36 – Failure to account for incriminating object, substance, mark
- s.37 - Failure to account for presence at particular place
- s.35 - Failure to testify or answer questions in court.
S.34 Failure to Disclose in Interview
S.34 (1) Where evidence is given that the accused:
a) at any time before he was charged, on being questioned under caution by a constable trying
to discover whether or by whom the offence had been committed, failed to mention any
fact relied upon in his defence in those proceedings; or
35
b) on being charged with the offence or officially informed that he might be prosecuted for it,
failed to mention any such fact, being a fact which in the circumstances existing at the time
the accused could reasonably have been expected to mention when questioned, charged
or informed as the case may be, subsection (2) below applies.
(2) Where this subsection applies:
a) the court or jury in determining whether the accused is guilty of the offence charged; may
draw such inferences from the failure as appear proper.
S.34 – The Caution (PACE Code C)
“Questioned under caution.” You do not have to say anything. But it may harm your defence if you
do not mention when questioned something which you later rely upon in court. Anything you do
say may be given in evidence.“
- Must be given on arrest

- At all other times before a person is to be (re-)interviewed or charged
S.34 Purposes
- To prevent "ambush" and fabricated defences

- To encourage `speedy disclosure’ of defence.
- To persuade D "to comment on the evidence against him" (Birch 1999)
- To commit the accused to a story at an early stage.
- To coerce the accused to participate in the construction of the prosecution case.
Does this deny D an opportunity to construct his defence? Cp ECHR Article 6(3) Right: (b) to have
adequate time and the facilities for the preparation of his defence
S.34 - Points
A rule of evidence (inferences may be drawn) but designed to effect the interview (caution =
pressure to speak). Not specifically about “Silence”. D may speak but “fail to mention” a matter
relevant to his defence. S.34 requires COMPARISON between what is said in interview and defence
raised in the proceedings. Police must be diligent to ask all relevant questions. Defence lawyer
must be diligent to advise D to make sure Defence facts are mentioned if relevant questions are
asked.
S.34 Safeguards/Defence Rights
- D must be cautioned pre-interview

- S. 34(2A) (1) and (2) do not apply if he didn’t have an opportunity to consult a solicitor prior
to being questioned, charged or informed that he might be charged.
- No conviction solely on basis of an inference (s.38(3))
ARGENT – The 6 Conditions (R v Agent (1997))
1. Proceedings against D for an offence.

2. Alleged failure must occur prior to charge.
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3. During questioning under caution by a constable

4. Questioning to discover whether, or by whom, the alleged offence had been committed.
5. Failure to mention fact relied upon in his defence in the proceedings.
6. Which in the circumstances.. D could reasonably have been expected to mention. (Per Lord
Bingham)
“A Fact” (relied upon in defence)
Milford [2001] Crim LR 330: Drug conspiracy. In the interview M was silent when asked about phone
contacts with others. In court he gave evidence that he was involved in a lawful import business with
others. Held: evidence of innocent association with other drug conspirators was properly considered
a `fact’ and the jury were properly directed that inferences could be drawn from failure to mention
this at interview (les proves de la innocencia es van considerar facts però es va dir al jurat que això
no s’havia mencionat a la entrevista).
Fact and Speculation
Nickolson [1999] Crim LR 61: semen on a child's nightdress. Held: Speculative explanation is not a
`fact’. But did D’s defence rely upon a mixture of fact and speculation?
When is a Fact relied upon?
Explanation of movements to suggest innocent behaviour. If a defendant maintains his silence, and
does not rely on any particular fact as a defence but simply puts the prosecution to proof (no diu res
i espera que la prosecution porti les proves), then [section 34] its not applied at all.
Bowers [1998] Crim LR 817 CA: where D offered no explanation for drug equipment in interview and
was also silent in court - no inference could be drawn (in this case). Silence at trial did not
(necessarily) prevent s.34 inferences. “Facts relied upon at trial may come from D’s testimony,
defence witness or be elicited from prosecution witness in cross-examination.”
Webber [2004]: alleged drive-past shooting. W was silent in the interview and did not testify in
court. Lawyer in court said to the witness that he had fired first. Trial Judge: Permitted inferences to
be drawn under s.34. HELD: Assertion put by counsel under instruction = fact relied upon. If W had
been fired at would he not have mentioned this? D cannot evade s.34 by putting his defence through
counsel (el tio no va parlar però l’advocat sí, i es confia en l’advocat. S’aplica el s.34.).
Betts [2001]: merely admitting a fact in the prosecution case is not to rely upon a fact.
Chivers [2011]: at trial C accepted that stabbing had taken place in the road. Not accepted at
interview – but this was not a fact relied upon as part of the defence.
Facts which D could have been reasonably expected to mention
Depends upon questions asked.
Nickolson [1999] Crim LR 61. No questions asked about semen on nightdress. D could not have been
expected to explain this fact.
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Green [2019] EWCA Crim 411. D was asked to comment on CCTV footage showing alleged assualt
but not asked specific questions. CA Held: Although no specific questions, it was obvious that he was
asked to explain and has an opportunity to put his defence.
Howell [2005] 1 Cr App R 1, CA: the kind of circumstance which may most likely justify silence will be
such matters as the suspect’s condition (ill health, in particular mental disability; confusion;
intoxication; shock, and so forth), or his inability genuinely to recollect events without reference to
documents which are not to hand, or communication with other persons who may be able to assist
his recollection.”
Roble [1997] Crim LR 449, CA: good reason [for failing to mention facts] may well arise if, for
example, the interviewing officer has disclosed to the solicitor little or nothing of the nature of the
case against the defendant, so that the solicitor cannot usefully advise his client, or where the nature
of the offence or material in the hands of the police is so complex, or relates to matters so long ago,
that no sensible immediate response is feasible.
Silence on Legal Advice
Can an inference be drawn against D?
Condron & Condron [1997]: solicitor advised silence because of illness. Doctor certified fitness for
interview. Held: Inferences could be drawn from failure to disclose defence story.
Condron v UK [2000]:Inferences may be drawn notwithstanding legal advice to remain silent. But,
the Judge should have instructed the jury to take legal advice into account.
Advice does not prevent Inferences
Beckles [2005] 1 All ER 705, CA: in a case where a defendant relies upon the solicitor’s advice, the
the jury needs to use s.34 to know whether the facts relied on at trial were facts which the
defendant could reasonably have been expected to mention at interview. If they were not, that is the
end of the matter. If the jury considers that the defendant genuinely relied on the advice that is not
necessarily the end of the matter. It may still not have been reasonable for him to rely on the advice,
or the advice given may not have been the true explanation for his silence… If…it is possible to say
that the defendant genuinely acted upon the advice, the fact that it did so because it suited his
purpose may mean it was not acting reasonably in not mentioning the facts.
Prepared statements (Is there a failure to mention?)
Knight [2004]: Held: If D “mentioned” relevant facts in prepared statement no inferences could be
drawn. “A requirement to submit to police cross-examination, or at any rate an encouragement to do
so on pain of later adverse inferences being drawn, is a significantly greater intrusion into a suspect's
general right of silence than is a requirement, or encouragement, upon the suspect to disclose his
factual defence.”
Turner [2003]: “The pre-prepared statement gives no automatic immunity against adverse inferences
under s 34. It may be incomplete in comparison with the defendant’s later account at trial or it may
be inconsistent with that account. This court notes a growing practice to submit a pre-prepared
statement and decline to answer any questions. This may prove to be a dangerous course for an
38
innocent person who subsequently discovers at the trial that something significant has been omitted.
No such problems would arise following an interview where the suspect gives appropriate answers to
the questions.”
Inferences (which appear proper) Inference = conclusion (?)
Condron v United Kingdom [2000]:
- Proper balance between RTS and power to draw inferences

- Jury should have been directed that they should not draw an inference against Cs unless
satisfied that the failure to answer could only sensibly be attributed to the Ds having no
answer or none that would stand up to cross-examination.
- Violation of Art 6.
Hackett [2011] EWCA Crim 380: in an interview, H denied visiting the petrol station and buying
petrol. Later in the prepared statement, H admitted buying petrol but said (i) for strimmer; (ii) did
not admit earlier because he had been drunk/driving. Held:
1. No inference could be drawn from failure to mention admitted facts.

2. Inference could be drawn that the story about strimmer was a lie.
3. Inference could be drawn only if jury thought no reasonable possibility that story was true.
W7: SEMINAR: Silence as Evidence
Question for discussion:
1. Is silence evidence? If so, of what? Can you identify any problems of principle or
practicality in treating silence at various stages of the criminal process as a form of
evidence?
Silence can be considered as evidence in certain circumstances, but it is important to note that
silence itself is not inherently indicative of guilt or innocence. Instead, it can be interpreted in
different ways depending on the context and circumstances surrounding the silence.
For example, if a suspect chooses to remain silent during police questioning, this may be seen as a
sign of guilt by the prosecution. On the other hand, the defense may argue that the suspect's silence
is simply an exercise of their right to remain silent and avoid self-incrimination. Similarly, a witness's
refusal to answer a question in court may be seen as an attempt to avoid providing incriminating
information or as an exercise of their right against self-incrimination.
However, treating silence as evidence at different stages of the criminal process can present
problems of principle and practicality.
One problem is the potential violation of a defendant's right against self-incrimination. The Fifth
Amendment protects individuals from being compelled to be a witness against themselves in a
criminal case, and a defendant's silence can be seen as an exercise of this right. If a prosecutor tries
to use a defendant's silence as evidence of guilt, this could be seen as a violation of the defendant's
constitutional rights.
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Another problem is the difficulty in interpreting silence as evidence, particularly when there are
multiple possible explanations for the silence. For example, a witness's silence could be interpreted
as an attempt to conceal incriminating information, but it could also be due to fear or intimidation,
lack of memory, or other reasons. This can make it difficult for a jury or judge to determine the true
meaning of the silence.
In summary, while silence can be considered as evidence in some circumstances, there are important
principles and practical considerations that must be taken into account when using silence as
evidence in a criminal case. It is important to carefully consider the context and circumstances
surrounding the silence and to avoid violating an individual's constitutional rights.
2. Would it make a trial unfair if the jury were permitted to consider the accused’s silence?
In many legal systems, allowing a jury to consider an accused's silence during a trial would be
considered a violation of the accused's right against self-incrimination. The right against
self-incrimination is a fundamental principle of most legal systems.
Allowing the jury to consider the accused's silence would effectively force the accused to testify
against themselves or risk having their silence used against them. This would undermine the
principle that an accused person is innocent until proven guilty, and it would place an unfair burden
on the accused to prove their innocence.
Therefore, in most legal systems, the accused's silence is generally not admissible as evidence against
them, and the jury is typically instructed not to draw any negative inference from the accused's
decision to remain silent. This ensures that the right against self-incrimination is protected and that
the accused's guilt or innocence is based on the evidence presented by the prosecution and the
defense.
In summary, allowing the jury to consider the accused's silence during a trial would be seen as unfair
and a violation of the right against self-incrimination. Legal systems typically exclude such evidence,
and jurors are instructed not to consider an accused's silence in reaching their verdict.
Problem for discussion
3. You are a barrister representing Sid, who is a mechanic running a small garage business, Sid
is charged with handling stolen cars. The prosecution alleges that Sid assisted A&B to
disguise stolen cars by swapping engines, removing identification numbers and
re-spraying. When Sid was arrested, the police searched his garage and found a Ford
(which could be proved to be stolen) with its engine removed and a re-sprayed Volvo
which could not be identified because all identifying numbers had been removed from the
chassis and engine. The garage also contained a power file which might be used for erasing
numbers stamped into metal castings.
Having taken legal advice, he remained silent at interview but handed over a written
statement in which he stated that he was not aware that any cars he worked on had been
stolen, and that he was changing the engine in the Ford at the request of A because the
engine was faulty. He also stated that B had asked him to re-spray the Volvo and that he
was not aware that identifying marks had been removed. In interview he was asked
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whether it is possible to re-spray a car without noticing that identifying marks had been
removed. He did not answer this question.
Prior to trial, you (his barrister) advise Sid that the evidence against him is weak and he
chooses not to testify. At trial, a police witness for the prosecution describes finding the
Ford at Sid’s garage with the engine removed. Under instruction from Sid, you (his
barrister) ask the police witness whether the removed engine was inspected and if so
whether it had a broken crankshaft. The police witness said that the engine had not been
inspected.
As part of the defence case, you (Sid’s barrister) call an expert to give evidence that a
person spraying a car body would not normally inspect identifying marks on the chassis
and engine and also that it is very common for power files to be found in repair garages.
The prosecution indicate that they will apply to the judge to permit inferences to be drawn
against Sid on the basis that he failed to mention at interview facts which he relied on in
his defence. Consider what facts the prosecution will suggest were relied upon and
consider what arguments can be made that inferences should, or should not, be drawn.
The prosecution may argue that Sid's failure to answer the question about whether it is possible to
re-spray a car without noticing that identifying marks had been removed during his police interview
is evidence of guilt (because he remained silent in the interview). They may also argue that Sid's
failure to mention at interview that he had inspected the engine of the Ford and had found that it
had a broken crankshaft, and that he had only replaced it at A's request, is evidence of his guilt.
The defense could argue that Sid had the right to remain silent during his interview and that his
written statement (proof of good faith and collaboration) provided a complete and accurate account
of his involvement in the Ford and the Volvo. They could also argue that Sid did not have to mention
every detail of his defense during his interview and that the prosecution is trying to use his silence
against him.
Furthermore, the defense could argue that Sid did not have any obligation to mention the broken
crankshaft during his interview, as it was not a material fact in relation to the offense. Additionally,
the defense could argue that the expert evidence presented supports the fact that it is not unusual
to find power files in repair garages and that it is common for mechanics to change engines and
re-spray cars without inspecting identifying marks on the chassis and engine.
Ultimately, it is up to the judge to decide whether to allow the prosecution to draw inferences from
Sid's silence during his police interview. The judge will need to consider the facts and arguments
presented by both the prosecution and the defense, as well as the principles of justice and fairness.
Sid was not very specific, but what he said in court and what he said before with the written
statement is consistent. Prosecution might say that he is hiding things because when you write it
down you have a lot of time to think, it’s not the same as an interview in which there’s the
pressure… and you may say things you wouldn’t want to say. Even if he did rely upon legal advice to
remain silent, he has written a statement.
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W7: The (FAIR?) Trial
Article 6 – Right to a fair trial
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and
impartial tribunal. Judgment shall be pronounced publicly. Press and public may be excluded from
all or part of the trial in the interests of morals, public order or national security in a democratic
society, where the interests of juveniles or the protection of the private life of the parties so require,
or to the extent strictly necessary, where publicity would prejudice the interests of justice.
Art 6.2 – Presumption of Innocence
6.2 “Everyone charged with a criminal offence shall be presumed innocent until proved guilty
according to law.” Burden of proof in court. Is treating silence as evidence compatible with this
presumption? But inference is drawn not simply from silence. Cp. S.38 (3) No conviction on
inferences alone.
Art 6.3 – Minimum Rights
a. to be informed promptly, in a language which he understands and in detail, of the nature

and cause of the accusation against him;
b. to have adequate time and facilities for the preparation of his defence;
c. to defend himself in person or through legal assistance of his own choosing or, if he has not
sufficient means …..to be given it free when the interests of justice so require;
d. to examine witnesses against him and to obtain the attendance and examination of
witnesses on his behalf under the same conditions as witnesses against him;
e. to have the free assistance of an interpreter.
Pre-Trial Disclosure (divulgació)
Disclosure of the Prosecution Case (divulgació del cas de l’acusació)
Art 6.3(a) “to be informed promptly, in detail, of the nature and cause of the accusation against”.
Advance Information (summary proceedings) – summary of evidence. Disclosure of Prosecution case
on transfer to Crown Court - All the evidence on which the prosecution chooses to rely.
Ward (1992) 96 Cr App R 1. Judith Ward convicted of murder in relation to the M62 bombing. IRA
bomb on Coach carrying soldiers and their families in 1974. Following arrest for being drunk &
disorderly she confessed to the bombing and other IRA offences. Convicted on the basis of
Confessions and scientific evidence showing contact with explosives. [Scientific evidence later
discredited]. Defence lawyers obtained disclosure of (i) Psychiatric assessment that she was a
fantasist and unreliable; (ii) evidence that she has made false confessions in the past. CA: Conviction
quashed. Right to disclosure of material which undermined the prosecution case. (es va cancelar la
condemna perquè no es va divulgar el material de l’acusació.
Disclosure of Unused Material
Unused material is evidence collected or constructed which the prosecution chooses not to
present. For example, a psychiatric assessment that Judith Ward was a fantasist - Ward (1992), or a
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witness who did NOT select D from a photobook, or evidence of multiple DNA samples at the scene
of crime.
Art 6.3(b)“Adequate time and facilities for the preparation of his defence”. Criminal Procedure and
Investigations Act 1996 (s.3): disclosure of unused material by prosecutor. Material likely to assist
defence or undermine prosecution. Unused Expert Reports (drafts etc).
Prosecution Disclosure – S.3 CPIA 1996
- Prosecutor must examine unused material

- Prosecutor depends upon descriptions of material by Police disclosure officer
- Material which undermines prosecution case (?)
- Material which may assist defence (?)
- Continuing duty – keep material under review
- Secondary Disclosure (s.7) After defence statement
- Continuing duty to disclose (s.7A)
Remedies for Non-Disclosure by Prosecution?
Application for disclosure under s. 8 CPIA. D must have “reasonable cause to believe that the
prosecutor has possession of disclosable material (s’ha de demanar la divulgació segons la section 8
CPIA, però has de tenir una causa raonable per pensar que hi ha informació no compartida).
Non-disclosure is a possible ground to overturn conviction on appeal.
- Compare – Non-disclosure of defence leads to adverse inferences (s.34)

- Compare – Failure to provide defence statement - adverse inferences (s.11 CPIA)
Defence Disclosure
Defence statement (s.5, 6) Crim Procedure & Investigations Act 1996
- Voluntary – where D charged with a summary offence (és voluntaria en delictes menors)
- Compulsory – where D will stand trial for an indictable offence. (delictes majors)
Requirements S 6A CPIA
- Line of defence
- Matters on which issue is taken with prosecution case, and why
- Points of law to be raised
- Facts to be relied upon in defence
- Alibi + evidence
- Identities of witnesses
- Expert evidence (full report)
Does defence disclosure duty go beyond prosecution disclosure?
“Faults” in Defence Disclosure
S.11 CPIA – permits a court to draw inferences against the defendant where
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- Failure to issue a defence statement

- Discloses inconsistent defences
- Raises different defence in court
- Fails to disclose facts to be relied upon
- Discloses late.
Trial Procedure
Prosecution
- Prosecution opens case – summary of what she intends to prove

- Prosecution calls witnesses (free choice).
- Examination in Chief.
- Cross Examination.
- Re-examination.
- Close of Prosecution Case.
- [Time for] Defence Submission of no case to answer.
IN COURT – Defence Case
- Submission of NO CASE TO ANSWER

- Defence opening
- First witness for defence (The accused s.79 PACE 1984)
- Examination in chief
- Cross-Examination
- Re-examination
IN COURT – The Finale
- Prosecution – summing up
- Defence – summing up
- Judge Summing up &
- Direction to jury
- Jury verdict
- (if guilty) The Sentencing Hearing
Burden of Proof
Burden of proof: the requirement (if a party is to succeed on a particular issue) of adducing
sufficient evidence to convince the trier of fact to the relevant standard of proof of the existence of
a certain fact in issue. Example: on a charge of murder, the prosecution bears the burden of proving
to the relevant standard (beyond reasonable doubt) that the defendant (i) by a voluntary act: (ii)
caused the death of a person; (iii) intending to kill or cause GBH.
Evidential burden - the requirement that a party must adduce sufficient evidence to place an issue of
fact before the trier of fact (Jury in Crown Court). EG – Self-defence is not an issue until D brings
evidence. (una part ha de demostrar la evidence si vol basar-se en allò).
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Tactical burden - a recognition that in certain circumstances, if the weight of evidence is against a
party on a particular issue, that issue is likely to be established against him unless he adduces further
evidence. (quan hi ha proves contra tu, has de demostrar que no és així).
Standard of Proof
Woolmington v DPP [1935]: “the presumption of innocence in a criminal case is strong. It is the
duty of the prosecution to prove the prisoner’s guilt, (except) the defence of insanity and any
statutory exception. If at the end of the case there is a reasonable doubt created by the evidence
given by either the prosecution or the prisoner, whether the prisoner killed the deceased with
malicious intention, the prisoner is entitled to an acquittal. No matter what the charge or where the
trial, the principle that the prosecution must prove the guilty of the prisoner is part of the common
law of England.” (si no s’ha provat la culpa, l’acusat és absolt).
Shifting the Burden of Proof?
Insanity and Statutory Exceptions
- Insanity – Convenient presumption that D is sane.

- Statutory Exceptions
If found to be unfair – they will be “read down” to simply require that D provides evidence in
support of her defence (ie not prove it)
Burden of Proof – Statutory Exceptions
Sheldrake [2004] UKHL 43. Charge under Terrorism Act – placed burden on D to prove defence.
1. Where statute shifts legal burden to D, court must determine whether doing so is fair and
reasonable in all the circumstances. In particular, is there justification for shifting legal, not
just evidential burden, to D.
2. Relative factors include how much each side has to prove, wrongfulness and breadth of what
P has to prove, burden on D of proving defence.
3. HoL “read down” the TA to require evidential burden only.
No Case Submission
At close of Prosecution case – Defence or Judge can initiate
Galbraith [1981] 1 WLR 1039
- “If there is no evidence that the crime alleged has been committed by the defendant, there
is no difficulty. The judge will of course stop the case.”
- Test is based on sufficiency not credibility or cogency (both issues for jury)
- General rule that judge should not usurp jury’s role.
- “Difficulty arises where the evidence is of a tenuous character because of inherent weakness
or vagueness or inconsistency. (a) Where a judge comes to the conclusion that the
prosecution evidence taken at its highest, is such that a jury properly directed could not
properly convict upon it, it is his duty…… to stop the case. (b) Where prosecution evidence
45
is such that its strength or weakness depends upon the view taken of a witness’s reliability,
or other matters within the province of the jury and where on one possible view of the facts
a jury could properly conclude that the defendant is guilty, judge should allow the matter to
be tried by the jury.”
Applying Galbraith
- Turnbull [1977] QB 224. Case should be withdrawn from the jury where identification
evidence is poor and there is no supporting evidence.
- Mackenzie (1992) 96 Cr App R 98. Judge should withdraw case from jury where:
- prosecution is wholly dependent upon confession,
- D suffered from significant mental handicap,
- Confession was unconvincing such that a jury could not properly convict upon it.
W8: Character evidence
Introduction and good character evidence
Character - Meaning
- Character Evidence relates to the defendant’s history and reputation

- Distinct from evidence relating to the charged offence.
- General reputation, evidence of specific incidents indicative of character (good or bad),
evidence of cautions/convictions.
- Subject to strict rules about admissibility.
Character at Trial
- Either party may seek to adduce Character evidence

- Relevant to Propensity
- Relevant to Credibility
- Relevant to other issues – eg identity (signature crime)
- Strict rules of admissibility – determined at voir dire
- Questioning in Examination in Chief
- Questioning in Cross-examination
- Reference in closing Speeches
- Judge’s direction re Character
Character in Pre-trial
- Grounds for suspicion/arrest

- Police - interview to collect evidence about bad character?
- Suspect – Answers may risk admission of character at trial.
- Legal Advisor – need for vigilance. See Cape Defending Suspects at the Police Station 7th ed
(2017) 222 - 226
Character of the Accused - Tensions
- Maximising availability of evidence
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- Prejudice - to the accused

- Collateral issues - jury distractions
- Balance of evidence - once character issue raised – should there be a right to respond?
- Witness protection - deterring attacks by D
Good Character of the Accused
Aziz [1995] 3 All ER 149. "...It has long been recognised that the good character of a defendant is
logically relevant to his credibility and as to the likelihood that he would (not) commit the offence in
question.“ What is “good character”? (Aziz) = Absence of (relevant) convictions.
Cp. Timson [1993] Crim LR 58 drunk driving not relevant on dishonesty charge.
- Definition of the minimum required.

- Other evidence may put good character in issue.
Evidence of Good Character
- D’s testimony (examination in chief)

- Right to call evidence of good reputation
- But - Distinction between general reputation and specific conduct.
cp. Rowton (1865): On charge of indecent assault, R called character witnesses. Held:
- * Character evidence must be confined to general reputation

- * Evidence of specific acts not admissible.
- * Avoidance of collateral issues at trial.
Good Character – Modern Approach
Criticisms of Rowton – Admits vague and unhelpful evidence. R v Del Valle [2004]: In many respects
the law has moved well beyond Rowton and evidence of particular opinions and acts are routinely
admitted, as is evidence of good character based on the absence of convictions. Indeed it is rare for
evidence of general character founded on general reputation to be adduced in a modern criminal
trial.
Good Character Direction
- Where D has good character – Judge required to direct jury (Vye)

- Old/irrelevant convictions disregarded Gray [2004] EWCA Crim1074
- D treated as having “effective good character”.
R v Hunter [2015] EWCA Crim 631
a) If D has testified or made pre-trial statements, GC direction relating to credibility.

b) GC direction in relation to likelihood of committing the crime, whether he testified or not.
Exceptions to Direction requirement
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Hunter [2015] EWCA Crim 631: “Where D has no previous convictions/cautions but has admitted
other reprehensible conduct, J has a discretion not to give a good character direction where it would
be an insult to common sense.”
R v Doncaster [2008] EWCA Crim 5: D charged with cheating the revenue, gave evidence in his
defence in which he admitted a range of other dishonest conduct. No previous convictions. Held:
modified GC direction appropriate. Jury invited to weigh the absence of convictions against the bad
character evidence in relation to both credibility and propensity.
The Criminal Justice Act 2003. Admission of evidence which “has to do with” the
offence charged
BAD CHARACTER OF THE ACCUSED
Evidence of Bad Character at Common Law. Makin v AG for New South Wales [1894] AC 57. "It is
undoubtedly not competent for the prosecution to adduce evidence tending to show that the
accused had been guilty of criminal acts other than those covered by the indictment, for the purpose
of leading to the conclusion that the accused is a person likely from his criminal conduct or character
to have committed the offence for which he is tried.”
Rationale for Exclusion at Common Law
● Deduction from character or propensity is barred (the forbidden chain of reasoning).

● Bad character distracts jury from focus on the direct evidence.
● Presumption of Innocence.
● Avoids undermining the prosecution burden of proof.
BUT significant exceptions at CL – “Similar fact” evidence – current offence resembles earlier
offences. Straffen [1952] 2 QB 911.
The Criminal Justice Act 2003
● Law Commission Report --- new statutory scheme.

● Common Law rules about the admission of bad character – abolished.
● Statutory rules about cross-examining on character (Crim Evid Act 1898) abolished.
● Bad character evidence is re-defined to cover evidence of misconduct, meaning a tendency
to commit offences or other reprehensible behaviour. (s.98).
● BUT exception is made for evidence which “has to do with” the offence charged.
● Evidence of D’s bad character is presumptively inadmissible (S.101)
● Unless admitted through one of 7 “Gateways” set out in s.101.
● Also deals with bad character evidence of somebody other than D (s.100).
Bad Character Evidence (s.98)
Bad Character = evidence of, or of a disposition towards, misconduct (meaning offences or other
reprehensible behaviour, s.112) on his part (s.98 ) other than evidence which (a) has to do with the
alleged facts of the offence with which the defendant is charged, or (b) is evidence of misconduct in
relation to the investigation or prosecution of that offence.” (s.98).
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Directly probative evidence is Admissible - not excluded!
s.98 Draws distinction between
- Bad Character Evidence (presumptively excluded)

- Evidence which “has to do with” offence charged - Admitted
Example: D is charged with assault on custody officer while in police custody. Evidence that D was
under arrest at the time, would normally be evidence suggesting bad character, but is admissible
because if “has to do with the alleged facts” of the offence charged.
Who Argues What?
- PROSECUTION: Evidence “has to do with” the offence charged, therefore admissible.

- DEFENCE: Evidence relates to Bad Character and should therefore be excluded.
Manister [2005] EWCA Crim 2866. M argued that evidence of a relationship with a 16 year old girl
was evidence of Bad character – hoping to exclude it. [Held: Not]
Prosecution will argue Evidence “has to do with” the offence charged – therefore not BC – therefore
admissible. If that fails and Judge rules it is BC evidence. Prosecution will argue for admissibility
under one of the 7 “gateways”.
s.98 “Has to do with”
Directly relevant to proving the offence charged.
R v Tirnaveanu [2007] EWCA Crim 1239. T charged with offences relating to immigration.
Prosecution sought to adduce evidence of other occasions on which he had posed as a solicitor and
given immigration advice, to prove identity. CA Held:
- * Insufficient temporal nexus with offence charged

- * Did not “have to do with” offence charged.
- * Evidence that he had done something similar in past = propensity
- * = Bad character evidence – presumptively excluded.
R v McNeil [2007] EWCA 2927. M charged with threats to kill a neighbour. 2 days after the alleged
event she made threats to a housing officer that she would burn down the neighbour’s house. Held
CA:
I. Threats to housing officer admissible – to do with offence. (motive)

II. Motive – animosity to particular person.
III. Directly relevant to the offence charged.
IV. Provided facts were reasonably contemporaneous,
V. and closely associated.
R v Lunkulu [2015] EWCA Crim 1350. L charged with murder in the course of gang warfare. Held:
- Judge right to admit evidence of 2 convictions for attempted murder committed 5 days
before the murder currently charged.
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- Judge right to admit evidence of conviction for possession of firearm with intent to endanger
life, committed 2 months after alleged murder.
- S.98 applied to misconduct whenever it occurs. No temporal requirement.
The crime environment
R v Housen [2012] EWCA Crim 1962. Evidence that H took cocaine with alleged rape victim. Held:
Admissible – had to do with the offence. Examples:
- * Crime alleged to be committed in prison.

- * Assault committed in premises used for prostitution
Evidence to rebut a defence
R v Mullings[2011] 2 Cr. App R. 21(2). D present at gang shootout. Charged with possession of
firearms with intent to endanger life. Claimed innocent presence at scene of gunfight. CA Held:
Evidence of letters expressing animosity towards rival gang, admitted as “to do with the facts of the
alleged offence”. This phrase should not be limited to evidence relating to actus reus.
Definition of Bad Character & Scope of the Exclusionary Rule
S.98. Bad character evidence is “evidence of, or of a disposition towards, misconduct on his part….”.
s.112 Misconduct: “the commission of an offence or other reprehensible behaviour”.
Authorities on Excluded Bad Character evidence?
● There are very little case-law authority on excluded BC evidence.

● Case reach the Higher Courts (CA, HoL, SC) if D is convicted and appeals.
● BUT – D will not appeal against a ruling to exclude BC evidence.
● Thus, the authorities on the meaning of BC evidence are all cases in which the Trial Court
has decided to admit the evidence through a CJA gateway, the Defendant is convicted and
then appeals.
Evidence of a Disposition
Bad character is constituted by offences and reprehensible behaviour but also by a “disposition”
towards such conduct. R v Norris [2013] EWCA 712: N was charged with the racist murder of
Stephen Lawrence in 1993. Prosecution sought to admit a DVD recording of N, obtained by lawful
covert surveillance, 20 months after the murder, expressing violent racist views. CA: The DVD showed
disposition towards “reprehensible” behaviour. Presumptively inadmissible [But admitted, as
relevant to an issue in the case (s.101(d))].
Misconduct/ Reprehensible Behaviour
- R v Edwards [2005] EWCA Crim 3244. Evidence which had been offered in prosecution which
ended in acquittal may be evidence of reprehensible behaviour.
- R v Renda [2005] EWCA Crim 2826. Attack with table leg. R was unfit to plead Held: there
must be some element of blameworthiness or culpability before behaviour could be
considered ‘reprehensible’ under s.112(1).
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- R v Weir [2005] EWCA Crim 2866 (consolidation of 5 appeals). The fact of an arrest is not
evidence of reprehensible behaviour. A caution for an offence (?) is evidence of misconduct
(a caution implies a confession).
- R v Weir. Sexual harassment of vulnerable women by a priest.
Proof of Misconduct (where admissible)
- Convictions – proved by Court record

- Cautions -
- Presumption that conviction proves the offence
- But query whether court record will supply information required
- Other Misconduct – requires proof by witnesses
- Problem of collateral issues which may be contested.
Admission of Bad Character Evidence. The CJA Gateways
RECAP:
- Bad Character evidence involves misconduct (offences or other reprehensible conduct, plus
disposition).
- Bad character evidence is presumptively inadmissible.
- Does not apply to evidence which “has to do with” the offence charged. (ie Directly
probative of something the prosecution need to prove).
- BUT – BC evidence may be admitted via the 7 “Gateways” in s.101 Criminal Justice Act
2003.
Admission of Bad Character The Gateways – s.101
(1) Evidence of D's bad character is admissible if, but only if…
a) all parties agree to the evidence being admissible,

b) the evidence is adduced by the defendant himself or is given in answer to a question asked
by him in cross-examination and intended to elicit it,
c) important explanatory evidence,
d) relevant to an important matter in issue between the defendant and the prosecution,
e) it has substantial probative value in relation to an important matter in issue between the
defendant and a co-defendant,
f) evidence to correct a false impression given by the defendant, or
g) D has made an attack on another person's character.
Gateway (C) Important Explanatory Evidence: evidence is important explanatory evidence if:
without it a jury would find it impossible or difficult properly to understand other evidence in the
case, and if the value for understanding the case as a whole is substantial.
- Chohan [2005]: Witness permitted to give evidence that she recognised robber as C, because
she knew him as her heroin dealer. YES, it is relevant to the case.
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- Davis [2008]: D charged with murder of girlfriend. CA held Judge had been wrong to admit
evidence of jealous violence against ex-gf 20 years previously. NO – this evidence was
relevant to other events. DID NOT assist understanding of the evidence in the case.
Gateway (D) Relevance to important matter at issue between prosecution and defence. S.112
(interpretation) “important matter means a matter of substantial importance in the context of the
case as a whole.” Requires careful analysis of what is in issue between prosecution and defence. Fact
dependent.
Propensity as a matter in issue
Defendant’s propensity is now made an issue between prosecution and defence. Reverses the
“forbidden chain of reasoning” and allows the jury to reason - if she’s done it before, she is likely to
have done it again.
S.103 (1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the
prosecution include-
a) the question whether the defendant has a propensity to commit offences of the kind with
which he is charged, except where his having such a propensity makes it no more likely that
he is guilty of the offence;
b) The question whether the defendant has a propensity to be untruthful, except where it is
not suggested that D’s case is untruthful.
S.103 (2) a defendant's propensity to commit offences of the kind with which he is charged may be
established by evidence that he has been convicted of…
a) an offence of the same description as the one with which he is charged, or

b) an offence of the same category as the one with which he is charged. [But there are only two
categories – Theft Offences and Sexual Offences].
Offences of the “Same Description” applies where conviction relates to exactly the same offence.
But this may operate arbitrarily.
- CASE A D is charged with trashing a Ferrari. (criminal damage). Conviction for damage by
painting graffiti on wall = same description.
- CASE B D is charged with assault occasioning ABH. 3 past convictions for wounding and GBH
– NOT Of the same description.
Old Convictions - Fairness. S.103 (3) Subsection (2) does not apply in the case of a particular
defendant if the court is satisfied, by reason of the length of time since the conviction or for any
other reason, that it would be unjust for it to apply in his case. BUT – Establishing Propensity from a
Past Offending is NOT AUTOMATIC. R v Hanson [2005] EWCA Crim 824.
1) Where propensity to commit the offence is relied upon, three questions to be considered:
a) whether the history of conviction(s) established a propensity to commit offence(s) of
the kind charged;
b) whether that propensity made it more likely that the defendant had committed the
offence charged;
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c) whether it would be unjust to rely on the conviction(s) and the proceedings would
be unfair if they were to be admitted.
2) it was not necessarily sufficient, in order to show such propensity, that a conviction was of
the same description or prescribed category as that charged. [Eg in Hanson record for theft
of cars, not relevant on charge of theft of antiques.]
3) No minimum number of events necessary to demonstrate propensity to commit the offence.
However, the fewer number of convictions, the weaker evidence of propensity.
4) A single previous conviction would often not show propensity, unless, e.g. it showed a
tendency to unusual behaviour or its circumstances demonstrated probative force in relation
to the offence charged. In that regard, circumstances demonstrating probative force were
not confined to those sharing striking similarity.
Problems with Convictions to establish Propensity?
- Hanson requires consideration of the facts to establish propensity.

- Difficult to prove facts behind conviction.
- CPS Guidance advises police to elicit details of past convictions in interview.
- S.103(3) (Past convictions should not be admitted) “if the court is satisfied, by reason of the
length of time since the conviction or for any other reason, that it would be unjust…”
- Exclusion (s.103(3)) to avoid distraction by collateral issues?
Propensity to Untruthfulness
Matters in issue include (s.103(1)(b)) “the question whether the defendant has a propensity to be
untruthful, except where it is not suggested that the defendant's case is untruthful in any respect.”
When is Propensity to be Untruthful an important issue? R v Campbell [2007] EWCA Crim 1472)
“…the only circumstance in which there is likely to be an important issue as to whether a defendant
has a propensity to tell lies is where telling lies is an element of the offence charged.”
Conclusions
Following Campbell, Courts view is that generally whether D is untruthful is an issue but not an
Important issue in the case. This discourages the routines admission of previous convictions on the
issue of credibility of D. Evidence might be admitted where the previous conviction involved telling
lies, and the current case involves an allegation of telling lies. BUT – if BC evidence is admitted
through another gateway – such evidence may be considered in relation to any issue, including
credibility.
Gateway (e) substantial probative value in relation to an important matter in issue between D and
co-defendant:
- propensity to commit type of offence charged (issue of guilt). Co-D wishes to adduce D’s bad
character to suggest that he has propensity to offend & more likely that D is the offender.
- propensity to be untruthful (credibility). Co-D and D have conflicting defences, Co-D wishes
to discredit D
- Other issues (fact dependent).
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Platt [2016] 4 WLR 51. Platt and Mitchensen jointly charged with murder of a sex-offender. P & M
blamed each other. Multiple injuries. Body had been set on fire using accelerant. Judge admitted BC
evidence against P (i) arson (23 yrs ago) (as 15 year old) : (ii) GBH at football match (19 yrs); (iii) GBH
in fight (11 years). CA Held: (upheld conviction) But BC evidence wrongly admitted.
- “Substantial probative value” = higher test that “relevance” under (d)

- The offences were very old and unlike the current charge.
Credibility issue – Cut-throat defences
Section 104 Evidence which is relevant to the question whether the defendant has a propensity to
be untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his
defence is such as to undermine the co-defendant's defence.”
“Cut throat defences.” Evidence of untruthfulness can be admitted against D1 on behalf of D2, only
where D1’s defence tends to undermine D2’s defence.
(e) Credibility. R v Lawson [2006] EWCA Crim 2572
- CA: Co-D’s undermined each other’s defences

- Important matter in issue: which D was telling the truth?
- D2’s conviction for wounding not relevant to the issue of propensity re. the offence charged
but relevant to the issue of credibility.
Broader approach to what evidence is relevant to credibility, to bring law into line with D’s ability to
cross-examine other prosecution witnesses about their criminal record.
(f) Evidence to correct False Impression given by the Defendant. Section 105.
1) For the purposes of section 101(1)(f)-

a) the defendant gives a false impression if he is responsible for making an express or
implied assertion which is apt to give the court or jury a false or misleading
impression about the defendant;
b) evidence to correct such an impression is evidence which has probative value in
correcting it.
When is D responsible for making False Impression? Section 105
(2) A defendant is treated as being responsible for the making of an assertion if-
a) The assertion was made by the defendant in the proceedings or

b) (i) on being questioned under caution,
c) the assertion is made by a witness called by the defendant, OR
d) by a witness under cross-examination by the defendant.
(3) A defendant may withdraw an assertion or disassociate himself from the assertion. [?]
(4) If D , by means of his conduct in the proceedings, is seeking to give the court or jury an
impression about himself that is false, the court may if it appears just to do so treat the defendant
making of a false impression.
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(5) In subsection (4) "conduct" includes appearance or dress.
(6) Evidence is admissible under (f) if it goes no further than is necessary to correct the false
impression.
Rationale for Gateway (f): trial presumption that D’s character not in issue. D has a free choice in the
conduct of her case. If D chooses to “give a (false) impression” about her own character. Fair that the
prosecution can elicit evidence to “correct it” [But query application of rational to Renda]
Correcting a False Impression
R v Spartley [2007] EWCA Crim 1789 D (charged with drug dealing) claimed never to have been in
trouble with the police before. Court allowed evidence that he had been interviewed by police in
Holland and admitted smuggling cannabis.
R v Renda [2005] EWCA Crim 2826 In police interview, R claimed to have been injured in action in
the army and to work as a security guard. In reality had been thrown out of army after crash when
drunk. Not a security guard. HELD: False Impression, allowed contrary evidence.
- Query – Who was responsible for “making the assertion”?

- Query – Was R given an opportunity to withdraw the assertion?
Gateway (g) Attack on another person’s character s.106. Reflects former “Tit for Tat” rule about
attack on the prosecutor or prosecution witness. 106(2) "evidence attacking the other person's
character" means evidence that the other person—
a) has committed an offence (whether a different offence from the one with which the
defendant is charged or the same one), or
b) has behaved, or is disposed to behave, in a reprehensible way…
(g) When is attack made?
- D adduces evidence
- In cross-examination of witness
- When questioned under caution
- When charged
Does (g) Inhibit D in mounting Defence? R v Edwards (Fysh) [2005] EWCA Crim 1813. E denied
attack at house. 4 occupants gave similar evidence of attack. – Inevitable consequence of his defence
was an implication that the 4 had conspired to fabricate a story against him. CA Held: Evidence of
prior convictions properly admitted under (g). What if there was such a conspiracy? Query Art
6(3)(c) - right to defend oneself?
Exclusion for Unfairness
S.101 (3) The court must not admit evidence under subsection (1)(d) or (g) if, on an application by
the defendant to exclude it, it appears to the court that 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.
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(4) the court must have regard, in particular, to the length of time between the matters to which that
evidence relates and the matters which form the subject of the offence charged.
- Applies only to (d) issues between P and D, (g) attacks on another.

- Compare s.78
- Compare s. 103(3) (excludes stale convictions)
- Argument – Attack necessary to raise defence.
- Argument – Unguarded comments in police interview
- Argument – Ambush by police or counsel.
W9: Hearsay evidence
RATIONALE FOR THE EXCLUSIONARY RULE
The Rule against Hearsay
● Long-standing common law rule.

● Excludes statements made outside court as evidence of the truth of what is stated.
● Requires parties to call live witnesses to testify.
Mrs. Jones reports burglary to the police. Prosecution cannot use her report but must call her to give
evidence.
HEARSAY - TRADITIONAL DEFINITION
- A statement
- Not made in oral evidence under oath in court
- Offered as evidence of the truth of what is stated.
- EG – Recounted by another witness
- EG – Offered in documentary form
- But note now defined in s.115 CJA 2003
Rationales for Exclusion
Some categories of Hearsay (now) admissible under CJA 2003. (Hearsay exceptions). The rationales
for exclusion have less relevance in relation to the modern exceptions.
Rationales for Inadmissibility/exclusion
Teper v R [1952] 2 All ER 447: “Hearsay is (1) not the best evidence and is (2) not delivered on oath.
(3) The truthfulness and accuracy of the person whose words are spoken to by another witness
cannot be tested in cross-examination, and (4) the light which his demeanour would throw on his
testimony, is lost.”
Blastland [1985] 2 All ER 1095: “Given that the subject matter of hearsay is relevant to some issue
at trial, it is clearly potentially probative. The rationale for excluding it (5) is a recognition of the great
difficulty of assessing what if any weight can properly be given to a statement of a person whom the
jury have neither seen nor heard.”
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6. The right to confront your accuser? Art 6(3) right to examine or have examined witnesses against
him. 7. The danger of concoction (Kearley [1992] 2 AC 228) 8. Risk of transmission errors.
Examining the Rationales for exclusion
1. Not the best evidence? But there may be no better evidence available. But the hearsay
source may be the only or the best source… (Myers v DPP [1965] AC 1001).
2. Not delivered on oath /affirmation: eternal Damnation? What force? Perjury charge for lies.
Query circumstances where no reason to lie?
3. Not subject to cross-examination: cross examination may expose, ambiguity, omissions, lies,
mistakes, memory errors. But how effective is cross examination?
4. Observing the demeanour of the witness?mWellborn “Demeanour” (1991) 76 Cornell LR
1075. Variations in ability to deceive. Courtroom stress may (falsely) suggest dishonesty.
Assessment of truth depends upon knowledge of witness.
5. Difficulty in assessing weight: not special to hearsay. May be easy to assess weight in some
cases. Studies suggest that juries do not give too much weight to hearsay. AND (Bentham
argument) if Hearsay is excluded the jury has no opportunity to assess it.
6. The right to confront your accuser: but confrontation may intimidate witness. Medieval
contest of personality. Cp. Continental systems which rely upon a dossier. Cp. “Special
Measures” under Youth Justice and Criminal Evidence Act 1999 – to facilitate testimony by
excluding confrontation with D.
7. Danger of concoction: no perjury sanction. But not exclusive to hearsay. Some hearsay
carries minimal risk (eg Doctor’s appointments book)
8. Transmission errors: issue of weight. What about recorded evidence?
HEARSAY Reformed
- Pre 2003, Hearsay presumptively inadmissible

- With important exceptions (eg confessions)
- Royal Commission on Criminal Justice - relax restrictions on hearsay
- Law Commission report 245 Hearsay and Related Topics (1997)
- Criminal Justice Act 2003
Exclusion of hearsay at Common Law and under the Criminal Justice Act 2003.
In the previous subtitle we saw the rule against hearsay at Common Law and we examined the
rationales for exclusion, but the modern law under CJA permits admission of categories of hearsay
where the argument for exclusion is weak.
THE RULE EXCLUDING HEARSAY
s.114 “A statement not made in oral evidence in the proceedings is admissible as evidence of any
matter stated, if but only if….” [List of conditions for admissibility]: in other words, such statements
are not admissible unless one of the conditions is satisfied.
Outside HEARSAY DEFINITION. Distinguish statements from UTTERANCES
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Utterances which are NOT statements (therefore admissible subject to relevance): greetings,
requests, exclamations, threats, offers, invitations. Woodhouse v Hall (1980) 72 Cr App R 39
Plain-clothes PC – evidence that he had been offered sexual services at particular premises [?].
HEARSAY DEFINITION – “statement”
S.115 (2) “A statement is any representation of fact or opinion made by a person by whatever means
– including representations made in sketch, photofit or other pictorial form.”
S. 115(3) “A matter stated is one to which this chapter applies if (and only if) the purpose , or one of
the purposes of the person making the statement appears to the court to have been –
a) To cause another person to believe the matter, or

b) To cause another person to act or a machine to operate on the basis that the matter is as
stated.
Why is the purpose important? US v Long (1990): the goal of hearsay rule is to exclude declarations
when their veracity cannot be tested through cross-examination. When a declarant does not intend
to communicate anything, his sincerity is not in question. (?)
- Query: X writes in a private diary – is this more likely to be “sincere/honest” than a

statement in a letter to another person?
Not Hearsay - Private Narratives: the purpose of the Diarist is not “to cause another to believe the
matter stated”. N (2007) 171 JP158. Held: Contents of private diary kept by Victim of Sexual assault
did not fall within definition of hearsay in s.115. Therefore - Admissible (el que sigui escrit en un diari
privat sense afany de difusió és admissible i no és considerat com a hearsay).
HEARSAY EXCLUSION
The Hearsay exclusion applies only if evidence is presented “as evidence of any matter stated”
(S.114(1)). What purpose does the evidence serve? I heard Fred shouting “I have won £50”
1. TO PROVE Fred won £50 - EXCLUDED

2. TO PROVE Fred was in the house -ADMISSIBLE
R v Lydon (1986) 85 Cr App R 221: paper with “Sean Rules”, apparently had been wrapped round a
gun barrel, found on a getaway route. Paper was not presented as evidence that “matter stated”
(Sean Rules) was true. Circumstantial evidence that somebody called Sean was associated with the
gun. (no es va presentar com a prova un paper que es va trobar però és evidencia circunstancial de
que algú que es diu Sean està relacionat amb el cas).
Ratten v R [1972]: R charged with murdering wife. Defence – gun went off accidentally during.
Prosecution called evidence of telephone call – sobbing woman asking for police. HELD: admitted.
Not hearsay. Evidence of a frightened woman in house. Evidence that call was made (R denied it).
Understanding Hearsay
Think about the Maker’s intention. If she did not intend to make anybody believe the statement – it
is not hearsay. Think about what purpose the evidence will serve.
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1. If it is direct evidence, tending to prove a fact in issue – not hearsay – (Woodhouse v Hall)
2. If circumstantial evidence, from which a fact in issue may be inferred – not hearsay (Lydon,
Ratten).
Subranamiam [1956]. Alleged threats by terrorists mentioned to support defence of duress. (?).
Patel v Controller of Customs [1966] AC 356 PC. Bag printed with “Product of Morroco”(?).
Implied Assertions – No longer Hearsay?
At common law, both express assertions (statements) and implied assertions (statements) were
hearsay. Kearley [1992] 2 AC 228: phone calls to drug dealer’s flat asking for drugs, were hearsay,
because of implied statement that K was dealer. s.115(3) only hearsay if intended to causes another
person to believe the matter stated. NOW – not hearsay – therefore admissible as being relevant
circumstantial evidence.
Evidence presented as Circumstantial
R v Twist [2011] EWCA 1143 (Evidence of mobile phone communications). May be used to prove
that X was in communication with Y, or the nature of the relationship, and not be in the least
concerned with the veracity of what is stated.
But Implied Assertion is hearsay, if maker intended another to believe it
R v Midmore [2017] EWCA 533. D Charged by throwing sulphuric acid in victim’s face. D+G bought
drain cleaner. G sent a Whatsapp message to GF with a picture of the Drain Cleaner and “This is the
one face melter” (implication?). Held:
This statement implied what the prosecution sought to prove (intention to use to cause injury), BUT
G did not intend to make another person believe the statement. Therefore not Hearsay. Admitted -
relevant to D+G’s story that cleaner was for blocked lavatory. Surely Wrong.
1. Query: Did G intend his GF to believe his malicious intent? (Yes)
Admission of Hearsay under the CJA 2003
We have seen the rationale for the general exclusion of hearsay and the definition of Hearsay under
the CJA and the scope of the Exclusionary Rule in s.114. What would NOT be excluded?
1. Distinguished Utterances which are NOT statements.

2. Distinguished representations where maker’s purpose was not to cause another to believe it
to be true.
3. Distinguished statements which are NOT presented as “evidence of (the truth of) any matter
stated” but have some other evidential significance.
Admissibility of Hearsay
s.114 (1) “…is admissible if, but only if…
a) Specific statutory provision in CJA or elsewere makes it admissible (eg. PACE s.76).
b) Any rule of law preserved by s.118 makes it admissible (preserved common law rules)
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c) All parties to the proceedings agree (agreement of parties)

d) The court is satisfied that it is in the interests of justice for it to be admissible.
a. STATUTORY HEADS OF ADMISSIBILITY
- s.76(1) PACE – Confessions

- s.116 – Unavailable Witnesses. Rationale – Best evidence
- S.117 – Business Records. Rationale – Best evidence, Reliable, No transmission error risk
- S.119 – Previous Inconsistent Statements
- S.120 – Previous statements admitted to rebut fabrication. Rationale – Best evidence where
issue is fabrication
S.116 – Unavailable Witness Preconditions for Admissibility: s.116(1) admissible if
a) Oral evidence by the same witness would have been admissible,

b) Maker of the original statement is identified,
c) One of the 5 conditions (of unavailability) is satisfied.
Key Issues of s.116: does not permit statements of anonymous witnesses – Mayers [2008] , must be
a matter on which the original maker could have given oral evidence (ie what he or she
experienced/saw/heard), condition of unavailability must be proved beyond reasonable doubt, and
not admissible if the Defendant caused the unavailability (116(5)).
5 conditions of unavailability (116(2)):
a) maker of the statement is dead, Musone [2007] EWCA 1237

b) He is unfit to be a witness because of bodily or mental condition,
c) Outside the UK and not reasonably practicable to secure his attendance,
d) He cannot be found, although reasonably practicable steps have been taken to find him.
e) He does not give evidence through fear & court gives leave for the statement to be admitted
Abroad - Practicability test - Balancing exercise
- Difficulties and cost in attending

- Importance of witness’s testimony
- Lack of ability to cross-examine - Gymia [2007] EWCA Crim 429. 14 year old US tourist.
Uncooperative parents. Video statement admitted. All reasonable steps had been taken.
Inadequate Steps to Secure witness
Adams [2007] EWCA 3025: key prosecution witness absent from court. Judge allowed the statement
to be read. But minimal attempt to secure attendance of witness (Voicemail 3 days before trial).
Held: ruled impracticability test not satisfied. Should not have been admitted under s.116. Compare:
Kiziltan [2017] EWCA Crim 1461.
Absence through fear (2)(e)
Liberal v Cautious
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- Liberal - Fear is widely construed S.116(3) includes death/injury of another person or

financial loss.
- Cautious: Interests of Justice hurdle S.116(4) Court must be satisfied that admission is in the
interests of justice.
(extra) Interests of justice test for witnesses absent through fear. [s.116(4)] “having regard to: - “
- The statement’s contents

- Risk that admission or exclusion will lead to unfairness for either party, including difficulty in
challenging the statement
- Possibility of a special measures direction
Fear - Context
- Gang crime
- But witness must still be identified
- Compare – Anonymous witnesses/live testimony
- Witness Anonymity Orders – Coroners and Justice Act 2009
- Domestic violence
- V reports but scared to give evidence
- If V goes missing, the bully is satisfied.
- Difficulties of proof of fear, if V disengages.
- R v Woodman – bodycam evidence of V’s distress
Obtaining evidence v Protecting witness. Horncastle [2010] 2 AC 373: “All possible efforts must be
made to get the witness to court. The witness must be given all possible support, but must be made
to understand the importance of the citizen’s duty and that the violent and intimidatory behaviour
will only flourish if that duty is not done.”
Absent Witness: Can trial be fair if D cannot cross-examine his accuser?
- Art 6(3)(d) ECHR – D’s right to examine witnesses against him.

- Al Khawaja & Tahery (2009) 49 EHRR 1. Held: Trial in which the “sole or decisive” evidence
was hearsay statement of absent witness, which D could not cross-examine = breach of fair
trial. * Right to fair trial breached for both applicants.
Horncastle [2010] 2 AC 373 “Sole or decisive” test was too rigid. Any evidence could be “decisive”
because it might make a difference to the finding of guilt or innocence. ECHR in Al Khawaja failed to
understand the complexity of English law re absent witnesses. The hearsay provisions under CJA
2003 carefully crafted to ensure fair trial.
B. Preserved Common Law Exceptions
S.118(1) Public information etc
a) published works dealing with matters of a public nature (such as histories, scientific works,
dictionaries and maps)
b) public documents (such as public registers, and returns made under public authority).
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c) records (such as the records of certain courts, treaties, crown grants, pardons and
commissions).
d) evidence relating to a person’s age or date or place of birth may be given by a person
without personal knowledge of the matter.
Preserved – Confessions exception
S.118. 5 “Any rule of law relating to the admissibility of confessions or mixed statements in criminal
proceedings”. Odd – because Confessions (which are wholly or partly adverse_ are now admissible
by s.76(1) PACE Act 1984.
Preserved – Res Gestae Exception(s)
4. Res Gestae = “Events as they occurred”. THREE Separate Rules of Admissibility preserved:
a) Statement made by a person who is emotionally over-powered. “Excited Utterances”

b) Statement accompanying an Act
c) Statement about a physical sensation or mental state.
Res Gestae – Statement accompanying an Act
S.118(4)(b) the statement accompanied an act which can be properly evaluated as evidence only if
considered in conjunction with the statement. EG – Man seen changing wheel. Shouts: “I cannot
undo this wheel nut”. Edwards (1872) 12 Cox CC 230 – Woman asked neighbour to look after axe
because her husband had threatened her.
Res Gestae – Sensations or states of mind
S.118(4)(c) “the statement relates to a physical sensation or a mental state (such as intention or
emotion).” Rationale – Best evidence. Cases of child neglect (where child has died) where a
neighbour gives evidence that child said she was hungry. Gilfoyle [1996] 2 All ER 883: suicide note
admitted in evidence. Court also admitted statement of a colleague of V, that V had said that G had
asked her to write the note note. [Indicating that she was not suicidal].
Res Gestae – Excited utterances
S.118 (4) (a) “the statement was made by a person so emotionally overpowered by an event that the
possibility of concoction or distortion can be disregarded”. Typical – things said by Victim or while
crime is taking place. TIME FACTOR?
- R v Turnbull (1984) 80 Cr App R 108. Stabbed man, staggered into pub, saying “Tommo did
it” then died – Admissible.
- Andrews [1987] AC 281. Victim named the attacker some time after the attack. (1 hour)
D. Admission in the Interests of Justice
Section 114(1) “In criminal proceedings a statement not made in oral evidence in the proceedings is
admissible as evidence of any matter stated if, but only if— (d) the court is satisfied that it is in the
interests of justice for it to be admissible.” Considerations Section. 114(2)
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a) how much probative value the statement has in relation to a matter in issue in the
proceedings, or how valuable it is for the understanding of other evidence in the case;
b) what other evidence has been, or can be, given on the matter;
c) how important the matter or evidence …is in the context of the case as a whole;
d) the circumstances in which the statement was made;
e) how reliable the maker of the statement appears to be;
f) how reliable the evidence of the making of the statement appears to be;
g) whether oral evidence of the matter stated can be given and, if not, why it cannot;
h) the amount of difficulty involved in challenging the statement;
i) would the difficulty be likely to prejudice the party facing it.
Courts unwilling to admit under (d) for unavailable witnesses (eg where identity not known) because
this would undermine the requirements of s.116. But cp Brown [2019] EWCA Crim 1143: witness on
bus saw stabbing and dialled 999. He read the number of the assailants car from mobile ‘Phone of
another person on bus. Held: Correctly admitted.
Discretion to Exclude – s.126
s.126(1) – Court may exclude hearsay statements, if (b)”The court is satisfied that the case for
excluding the statement, taking account of the danger that it would results in an undue waste of
time, substantially outweighs the case for admitting it, taking account of the value of the evidence.”
Cp. S.78 PACE.
W9: SEMINAR: Character evidence
1. Do the provisions of the Criminal Justice Act 2003 achieve an appropriate balance between
admitting evidence which is useful in determining the issues before the court whilst protecting the
accused from unnecessary prejudicial evidence?
The Criminal Justice Act 2003 (CJA 2003) made significant changes to the law relating to the
admissibility of evidence in criminal trials in England and Wales. The provisions of the CJA 2003
sought to strike an appropriate balance between admitting evidence that is useful in determining the
issues before the court and protecting the accused from unnecessary prejudicial evidence.
One of the key features of the CJA 2003 is the introduction of a new test for the admissibility of
evidence, the "balancing test." This test requires the court to balance the probative value of the
evidence against the risk of prejudice to the accused. This means that evidence that is highly
probative may still be excluded if the risk of prejudice is too great.
In addition to the balancing test, the CJA 2003 also introduced a number of other measures designed
to protect the accused from prejudicial evidence. For example, the Act restricts the admissibility of
evidence obtained in breach of the defendant's rights under the European Convention on Human
Rights (ECHR), and it allows the court to exclude evidence that was obtained in a way that would
make the trial unfair.
Overall, it can be argued that the provisions of the CJA 2003 achieve an appropriate balance between
admitting evidence that is useful in determining the issues before the court and protecting the
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accused from unnecessary prejudicial evidence. However, like any legal framework, it is not perfect
and may need to be reviewed and updated as new issues arise.
2. Arthur and Bill are jointly charged with burglary of a second floor flat belonging to Vera. The flat
was apparently entered through an open window and some valuable silverware was stolen. Bill
was arrested when he tried to sell the silverware to a jeweller’s shop. A witness who is prepared to
give evidence in court, has provided a statement saying that she saw a man, who fits Arthur’s
general description, scaling a wall and climbing onto a flat roof below the window of the flat which
was burgled. A second witness, who is also prepared to give evidence, has given a statement that
she was walking up the stairs in the block of flats and saw a man open the door of the flat which
was burgled to admit a second man.
In separate police interviews both Arthur and Bill denied involvement in the burglary. Bill admitted
that he tried to sell the silverware, but stated that he bought the silverware from Arthur in good
faith. Bill also asserted that he is an honest man who would never do anything dishonest (he is
creating a false impression).
Three years ago Arthur was made subject to an anti-social behaviour order for two years after he
climbed the steeple of Melchester cathedral as a stunt. This anti-social behavior/misconduct
amounts to bad character evidence? This shows too that he is able to climb walls better than a
normal street person. Two years ago, Arthur was charged with attempted burglary, after he had
climbed over a 15 foot wall surrounding a warehouse. He was acquitted after arguing that he
climbed the wall for fun and did not intend to steal anything. Arthur has a criminal record for theft
from unlocked cars, seven years ago when he was 16 (defense could say it was too long ago and
then the evidence should be excluded. Això ho hem tret del cas “HANSON”, que sembla molt
important).
Bill has a criminal conviction, following a not guilty plea, for a sexual assault on a child. Bill was
also disciplined after being found guilty of cheating at University.
At trial Arthur gives evidence that Bill had told him about committing the burglary at the flat. He
did not mention this in the police interview because Bill threatened him.
Discuss issues relating to evidence which may arise at trial.
There are several issues relating to evidence that may arise at trial in this case.
1. The witness evidence: The prosecution will rely on witness evidence to place Arthur at the
scene of the crime. However, the witness's statement is based on a general description of
Arthur, and there is no conclusive evidence linking him to the burglary. The defense may
argue that the witness's statement is unreliable and insufficient to prove Arthur's guilt
beyond reasonable doubt.
2. Bill's admission: Bill has admitted to trying to sell the stolen silverware, but he claims that he
bought it from Arthur in good faith. The defense may argue that Bill's admission does not
prove Arthur's guilt, and that it is possible that Arthur sold the silverware to Bill without
being involved in the burglary.
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3. Arthur's criminal record: The prosecution may try to use Arthur's criminal record to suggest
that he has a propensity to commit crimes, including burglary. However, the defense may
argue that Arthur's previous convictions are not relevant to this case and should not be used
to prejudice the jury against him.
4. Bill's criminal record: The defense may try to use Bill's criminal record to attack his credibility
as a witness. The fact that he has been convicted of sexual assault on a child and has been
disciplined for cheating at university may undermine his reliability and truthfulness as a
witness (all this is against his “good character” try).
5. Arthur's evidence against Bill: Arthur's evidence that Bill told him about committing the
burglary may be challenged by the defense as unreliable, particularly given that Arthur did
not mention this in his police interview. The defense may argue that Arthur is lying to shift
the blame onto Bill and protect himself from prosecution.
In exam we should identify the prosecution case theory (the story), what evidence they have and
what would the defence say, what bad character evidence would there be and if it would be
excluded. Deal with Arthur first, then deal with Bill. Don’t deal between both. Do one person and
then do the other. NOTE: he will send us how to do it in a more clinical way.
W10: The module themes
The Topics
- The pre-trial and the construction of evidence

- Confessions and their exclusion
- Remedies for investigative impropriety
- Identification evidence
- The Fair Trial
- Pre-trial disclosure of evidence
- Silence as evidence
- Character evidence
- Hearsay
The Themes
● Evidence Construction and its Regulation

● Crime Control v Due Process
● Adversarialism/ Fair trial
Theme – Evidence Construction
Some evidence is constructed by the professional work of the police (rather than found). The Law
operates to facilitate such evidence construction. The law must regulate the process of construction.
Transparency, Reliability, Effectiveness, Fairness, participation by defence lawyer.
Regulation of Evidence Construction
IDENTIFICATION EVIDENCE
65
- Video Identification – a product of police work

- PACE Code D, facilitates and regulates
- Resource for Prosecution and Defence
- Prescribes procedure - fairness
- Defence rights
- Safeguards
Identification - Defence Rights
● Duty of police to take first description.

● If D is “known” suspect – right that police should not show photos.
● Video ID if witness states they could identify suspect, or if D contests earlier identification.
● To have solicitor present.
● To view array of images and to object.
Identification - safeguards
● Independent Identification Officer.

● Investigators must not convey witness to the ID procedure.
● Foils must resemble the suspect.
● Prominent features/marks must be replicated or obscured.
● Video ID is itself videoed.
POLICE INTERVIEWS - CONFESSIONS
● Police choose suspect

● Police choose time and place of interview
● The “caution” – constrains choices
● Police control information disclosed to D
● Police set agenda, questions asked and not-asked, issues followed up or not.
● Police supply terminology and concepts
● Legal advice – supplies terminology, concepts, tactics, structure.
Police Interviews – Regulation
● The caution
● Access to legal advice/presence of lawyer
● Appropriate adult for children/vulnerable suspects
● Right to have someone informed
● Time limits, rest, refreshment
● Doctor if unwell.
● Bar on informal interviews.
● Interviews recorded.
● Oppression barred s.76(2)(b) (high threshold)
● Threats/Inducements barred s.76(2)(a)
Silence as a Construction
66
● Silence becomes evidence by virtue of ss.34, 35, 36 & 37 CJPOA

● The caution/threat
● Legal advice – conditioned by CJPOA & court decisions
● Disclosure or non-disclosure
● The questions asked
● The manner of the interview
Evidence Construction - Entrapment
● Entrapment – both the offence and the evidence created by state agents.
● Tension between investigating victimless crimes and prohibiting state actors from inciting
crime.
● Compromise – evidence of induced offences admissible in limited circumstances.
● Entrapment in other circumstances = abuse of process.
Theme – CRIME CONTROL v DUE PROCESS
Crime control
● Effectiveness in investigation and prosecution

● Trust in the police and the courts
● Maximises availability of prosecution evidence
● Minimises defence rights and safeguards.
● Minimises challenges to admissibility
● Minimises reviews/appeals.
Due Process
● Citizens’/suspects’ rights
● Concern about miscarriages of justice
● Scepticism about competence/motives of law enforcers, recognises fallibility of the CJ
process.
● Legal assistance, safeguards in evidence construction, restrictions on admissibility,
opportunities for challenge and appeal.
Paradox
● Successive Criminal Justice reforms (PACE, CJPO 1994, CPIA 1996, CJA 2003) have been
prompted by concerns over miscarriages of justice, but are dominated by a crime control
agenda.
● PACE – extended detention for questioning.
● CJPO – lifted restraint on treating silence as evidence.
● CJA lifted restraints on the admission of bad character and hearsay (in favour of both sides)
Crime Control - Considerations
● Extended powers to detain and interview in PACE 1984.

● Audio recording/video recording.
● Resources and powers to construct ID evidence.
67
● Law facilitates collection and analysis of DNA.

● Lifting of evidential restrictions on silence, bad character evidence, some hearsay.
Due Process Considerations
● Procedural rights accorded by PACE Code C, D.

● Disclosure rights to evidence which might assist the defence or undermine the prosecution
(CPIA 1996, s.3)
● Exclusion of evidence for actions breaching rights (s.78), or oppression (76(2)(a), things said
or done making confession unreliable (76(2)(b))
● Tight(?) requirements for admissibility of BC and Hearsay.
● Exclusionary provisions – BC (S.101(3), s.103(3).
● Exclusionary provisions – Hearsay (s.126) Business Records (s.117(6)(7)).
Due Process Concerns?
● Modern provisions create DILEMMAs for defendants and defence lawyers.

● Tactic of silence – but risk of inferences
● Legal advice does not prevent inferences – diminishes value of legal assistance.
● Putting defence frankly may be an attack on another and allow in Bad Character.
● Vetting for pre-trial disclosure in hands of prosecutor, not defence lawyer.
Theme - Adversarialism
The aspiration that the legal process should be designed to optimise and balance the opportunities
for each of the parties to play an active and effective role in the process. In particular: (i) time and
facilities to prepare case; (ii) access to relevant evidence; (iii) access to legal assistance; (iv) right to
present the case; (v) right/power to challenge the case presented by the opposing party; (v1)
adjudication by an impartial tribunal. Cp “Fair trial” as guaranteed by Art 6 ECHR.
Art 6(3) ECHR. Everyone charged with a criminal offence has the following minimum rights:
a) to be informed promptly, in a language which he understands and in detail, of the nature and
cause of the accusation against him;
b) to have adequate time and the facilities for the preparation of his defence;
c) to defend himself in person or through legal assistance of his own choosing or, if he has not
sufficient means to pay for legal assistance, to be given it free when the interests of justice so
require;
d) to examine or have examined witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses against him;
e) to have the free assistance of an interpreter if he cannot understand or speak the language
used in court.
Adversarialism issues
● Disclosure – s.3 CPIA requires disclosure of material which might undermine the prosecution
or assist the defence.
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● BUT – task of inspecting unused material is delegated to police officer. [Should this be a task
for defence lawyer?]
● Application for further disclosure (s.8)
● BUT – No way of knowing of existence of undisclosed material.
Adversarialism - Confessions
● Admission Rationale – likely to be true (??)

● Wide definition favours Crime Control
● Includes (?):
○ Statements recounted by doubtful witnesses
○ Ambiguous statements
○ False confessions.
● Balance – the Mixed Statement rule (Sharp)
○ Regulation of the Interview environment
○ Exclusionary provisions s.76 and s.78
○ Burden of disproof on Prosecution
○ Disciplinary function of Exclusionary provision
Adversarialism - Silence
● S.34 caution coerces D’s participation in the construction of evidence against himself.
● The coercion lends evidential weight to silence
● But: No inferences without opportunity for legal advice.
● Silence is only supporting evidence (s.38(3))
● No inference should be drawn unless Jury is satisfied that D had no explanation to give.
Adversarialism – Character & Hearsay
● CJA 2003 – Crime Control project

● CJA – Extends evidence available to Prosecution
● BUT: Retains presumption against BC and Hearsay
● Consider: whether grounds for admission are rational/justified.
● Consider: Balancing – eg Good character eg defence hearsay
● Consider: Exclusionary provisions
W10: SEMINAR: Hearsay
1. If hearsay evidence passes the test of relevance, why exclude it?
While hearsay evidence may be relevant to a case, it is often excluded from court proceedings
because it is considered unreliable and lacks the necessary safeguards to ensure its accuracy.
Hearsay evidence is testimony or evidence that is presented in court by a witness who is not the
original source of the information. Instead, the witness is testifying about what someone else said or
did outside of court. This can include rumors, gossip, or statements made by people who are not
available to testify.
69
One of the primary reasons hearsay evidence is excluded is that it is often difficult to determine the
reliability of the original source. For example, a witness may testify about a conversation they
overheard, but there is no way to verify that the conversation actually took place or that the witness
accurately remembers what was said.
Another reason hearsay evidence is excluded is to prevent unfair prejudice or surprise to the
opposing party. If hearsay evidence is allowed, the opposing party may not have had the opportunity
to cross-examine the original source of the information or challenge the accuracy of the information
presented.
Overall, while hearsay evidence may be relevant to a case, it is often excluded because of concerns
about its reliability and potential unfairness to the opposing party.
2. What is the scope of hearsay exclusion under the CJA 2003? What sorts of “utterance” are not
caught by the Hearsay rule? Explain why these other utterance fall outside the scope of Hearsay.
Under the Criminal Justice Act 2003 (CJA 2003), hearsay evidence is excluded if it is adduced as
evidence of any matter stated or implied by the statement, and the statement was made otherwise
than by a person while giving oral evidence in the proceedings. However, there are some exceptions
to this rule, and some types of utterances that are not caught by the hearsay rule.
The following are some examples of utterances that are not caught by the hearsay rule:
1. Confessions: A confession made by a person is not hearsay if it is adduced as evidence

against that person.
2. Business Records: A statement made in the course of a person's business, and contained in a
document kept in the course of that business, may not be hearsay if the person responsible
for the statement had personal knowledge of the matters dealt with in the statement, and if
the document was made in the course of the business.
3. Previous Statements of a Witness: A previous statement made by a witness, which is

consistent with their evidence at trial, may not be hearsay if it is adduced to support the
witness's credibility.
4. Dying Declarations: A statement made by a person who believes they are about to die, and
who has no hope of recovery, may not be hearsay if it relates to the cause of their death.
These other utterances fall outside the scope of hearsay because they are considered to be more
reliable than other types of hearsay evidence. Confessions, for example, are generally considered to
be reliable because they are made by the person who is being accused. Business records are often
reliable because they are created in the course of normal business operations and are subject to
certain standards and procedures. Previous statements of a witness may be considered reliable
because they are consistent with their testimony at trial, and dying declarations may be considered
reliable because they are made in circumstances where the declarant has no motive to lie.
70
Overall, the hearsay rule is designed to exclude unreliable evidence from court proceedings, but
there are exceptions to this rule for certain types of utterances that are considered to be more
reliable.
3. Why is it important to think about the purpose for which a statement might be offered as
evidence?
It is important to think about the purpose for which a statement might be offered as evidence
because it can have a significant impact on how that evidence is evaluated and how much weight it is
given in a legal proceeding.
Different types of evidence are admissible for different purposes, and the rules of evidence can vary
depending on the context and purpose for which the evidence is being offered. For example,
evidence that is relevant and reliable may be admissible for the purpose of proving a fact at issue in a
case, but may not be admissible for the purpose of impeaching a witness's credibility.
Furthermore, the purpose for which a statement is offered can affect how it is perceived by the trier
of fact, whether that is a judge or a jury. For example, a statement that is offered for the purpose of
proving the truth of the matter asserted may be given more weight than a statement that is offered
for a different purpose, such as impeachment.
Additionally, the purpose for which a statement is offered can affect the admissibility of that
statement under certain rules of evidence. For example, hearsay evidence may be excluded if it is
offered for the purpose of proving the truth of the matter asserted, but may be admissible for other
purposes, such as showing the effect the statement had on the listener.
In summary, considering the purpose for which a statement might be offered as evidence is
important because it can impact the admissibility, weight, and evaluation of that evidence in a legal
proceeding.
4. Be prepared to discuss each of the categories of hearsay which are made admissible under ss.
116, 117, 118, and s.114(1)(d). Problem: Frank is charged with assault occasioning actual bodily
harm to his mother, Judy, by pushing her down the stairs leading up to her flat at around 11 pm on
August 1. Eric, a neighbour, heard the commotion and rushed out to see what had happened. He
saw Judy lying at the foot of the stairs. Judy told Eric that Frank pushed her down the stairs. She
repeated that statement to the police an hour later when they called at her house. She assured
them that she would give them a written statement the following day. However, when they called
to get the statement she told them “Frank said he is sorry and I believe him. I do not want to press
charges.” Eric has given the police a signed statement in which he describes finding Judy at the
bottom of the stairs and relates her statement at that time about Frank’s involvement. He now
says that he does not want to testify because Frank and Judy have asked him not to and also says
that if he is called as a witness he will deny making any statement. Doctor Dorothy has provided a
written statement detailing Judy’s injuries.
Frank has denied visiting his mother on 1 August. However, the police found a receipt for car
repairs, naming Frank as the customer and dated 1 August, on the landing outside Judy’s flat.
Assuming the prosecution still want to prosecute Frank, discuss the evidential issues that arise.
71
In this scenario, there are several evidential issues that arise regarding the admissibility of hearsay
evidence.
Section 116 of the Criminal Justice Act 2003 allows for the admission of hearsay evidence in certain
circumstances where the maker of the statement is unavailable as a witness. The requirements for
admissibility under this section are:
1. The statement must be reliable.
2. The maker of the statement must be unavailable as a witness.
3. The evidence must be in the interests of justice.
In this case, Judy is the maker of the statement, and she is still alive, but she is not available as a
witness because she has changed her mind and does not want to press charges. Therefore, the
prosecution may argue that her statement to Eric and the police is admissible under s.116.
However, there may be a challenge to the reliability of Judy's statement. The statement was made
shortly after the incident, and Judy was in a distressed state. Also, she later changed her mind and
decided not to press charges against her son, which could suggest that her initial statement may not
have been reliable. Therefore, the reliability of Judy's statement would need to be assessed by the
court.
circumstances where the maker of the statement is unavailable as a witness due to fear or
intimidation. The requirements for admissibility under this section are:
2. The maker of the statement must be unavailable as a witness due to fear or intimidation.
In this case, there is no evidence that Judy is unavailable due to fear or intimidation, so s.117 would
not apply.
circumstances where the maker of the statement is unavailable as a witness because they are unable
to give evidence in person, for example, due to illness or incapacity. The requirements for
admissibility under this section are:
2. The maker of the statement must be unavailable as a witness because they are unable to
give evidence in person.
In this case, there is no evidence that Judy is unavailable due to illness or incapacity, so s.118 would
not apply.
72
Finally, s.114(1)(d) of the Criminal Justice Act 2003 allows for the admission of hearsay evidence that
is not covered by s.116, s.117, or s.118 if it appears to the court to be in the interests of justice to
admit it. The court must consider various factors when determining the admissibility of hearsay
evidence under this section, including the reliability of the statement and the importance of the
evidence.
In this case, Eric's statement to the police may be admissible under s.114(1)(d) if the court
determines that it is in the interests of justice to admit it. The prosecution would need to argue that
Eric's statement is reliable, and the court would need to consider the importance of Eric's evidence in
the case.
Additionally, Doctor Dorothy's written statement detailing Judy's injuries may be admissible as
non-hearsay evidence if the doctor is called as a witness and can testify to the accuracy of the
statement.
In conclusion, the admissibility of hearsay evidence in this case is complex, and the court would need
to carefully consider the requirements of s.116, s.117, s.118, and s.114(1)(d) of the Criminal Justice
Act 2003 before admitting any hearsay evidence.
A PARTIR D’AQUÍ ÉS EL QUE HE ESCRIT DURANT EL SEMINARI
1. Eric is a witness for the prosecution.

2. Judy makes a statement out of court to Eric. She said it again to the police.
3. She said she would bring a written statement but then she didn't. Has she been intimidated?
4. Eric makes a statement relating all he heard and saw. But says that he won’t testify.
5. Written statement with Judy’s injuries from a doctor. You could bring an alternative doctor to
refuse the doctor’s evidence.
6. Frank denies visiting his mother. Evidence of receipt for car repairs 1 August in mother’s
house. The receipt is consistent with Frank being there on that day. Prosecution could call
the car worker and ask him about the receipt to confirm it, because right now this evidence
is excluded (S. 114 cannot apply here (PK? nose)). RECEIPT IS THE SIMPLEST EXAMPLE OF
BUSINESS RECORD WHICH COULD BE USED BY THE PROSECUTION.
In a case like this the prosecution wants to bring Judy’s evidence in. They want to bring as evidence
what she told to Eric and what she said to the police. But then she refused to write the statement. As
a prosecutor you want to call Judy as a witness. Frank saying that he is sorry to her is a confession per
se?
Police officers or Erik can bring evidence of what they heard? Res gestae: statement made when she
was emotionally overpowered by an event (at least in the case of the statement made to Erik).
73

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Roger Leng (roger.leng@warwick.ac.

uk) Criminal Evidence

W1: Introduction – Aims, Tensions and the regulation of the

Evidence must be “Admissible”

- The source of the information (young child?)

- Prosecution – Seeks to admit relevant evidence

Maximum admissibility of evidence:

- Exception – where the cost of obtaining evidence outweighs its value.

BUT – might other interests justify the exclusion of evidence?

- Excluding evidence to Discipline the Police (?)

Other Interests which might justify exclusion of evidence

- The interests of adversarial justice

Tensions in the Aims of Evidence Law

Crime Control – Features of the System

- Maximisation of investigatory powers

- Values – Citizen’s rights

Due Process – Features of System

- Legal advice and representation, facilities to prepare case

W1: The Construction of Evidence. The regulation of the construction of

The Murder of Maxwell Confait 1972

The Suspects and Investigation

Confait - The Trial

Court of Appeal – CONVICTIONS QUASHED

- Lattimore and others v R (1976) 62 Cr App R 53

The Confait Case – What did we learn?

Confait – the Confessions

Confait – The Expert Evidence

Conceptualising Evidence (traditional rules)

- Pre-exists the investigation and has an objective existence.

Evidence Construction Theory

1. The evidence does not exist prior to the investigation.

Constructed Evidence - Implications

1. If investigators are involved in actively constructing evidence this process should be

The Confait Case – The Response

Royal Commission on Criminal Procedure 1981

- Police and Criminal Evidence Act 1984 – Regulates the investigation.

Constructed Evidence Now - Confessions.

- PACE Act – Regulates the Investigation.

Constructed Evidence Now – Expert Evidence.

The Pre-Trial (investigation)?

There used to be a Traditional Dichotomy between:

- The Pre-Trial - investigation, arrest, interview (pre-1984 largely unregulated)

Fair Trial Rights

Scope of Fair Trial Rights under Art 6

Formalising the Pre-Trial – A History

W2: SEMINAR: Case Study - Halliwell

- What does “voir dire” mean?

- What is the significance of the “urgent interview procedure”?

- What is s.76 all about?

- What is s.78 all about?

W2: Identification Evidence. Regulating the construction and its

IDENTIFICATION – What does it mean?

Not a Category of Evidence

All sorts of evidence can be relevant to Identification!

- X is found in possession of TV stolen in burglary.

Identity proved by circumstantial evidence: R v Howe [2017]

- Clear that all 3 offences committed by one man.

The “Dock Identification”

Dock Identification must be preceded by formal identification procedure: if an eye-witness has

A Psychological Construction in eye witness identification

Cognitive Processes in Memory

● Perception (eg seeing the person committing a crime)

○ Memory supplementation (extra events/features are added)