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EVIDENCE, EVIDENCE - Coggle Diagram

- - - - Assessing visual identification evidence
        Judges required to examine state of identification evidence at close of prosecution case + stop case if it is poor and unsupported
        Look at: quality of the identification evidence + other evidence to support the correctness of the identification?
        
        Quality - ADVOKATE
        - A = Amount of time under observation > How long did the witness have the accused in view?
        - D = Distance > What was the distance between the witness and the accused?
        - V = Visibility > What was the visibility like at the time?
        - O = Obstructions > Where there any obstructions?
        - K = Known or seen before > Had the witness ever seen the accuses before? If so, where and when?
        - A = Any reason to remember > Did the witness have any special reason for remembering the accused?
        - T = Time lapse > How long has elapsed between the witness seeing the accused and the ID procedure being held?
        - E = Error or material discrepancy > Are the any errors or material discrepancies between the first description given by the witness and the actual appearance of the accused?
        Assessment
        
        IF quality is good = jury can be safely left to assess the value of the identifying evidence, regardless of is other evidence to support it + having given adequate warning about special need for caution.
        
        IF quality is poor = judge should consider whether there is other evidence to support correctness of identification
        
        NO = judge should withdraw case from jury + direct an acquittal
        
        YES = leave weak identification to jury to be assessed alongside the supporting evidence
        
        Other evidence supporting the identification
        Trial judge will direct jury to consider if there is any other evidence to support correctness of identification - such as:
        - Scientific evidence
        - Multiple identifications by different witnesses
        - accused's bad character or previous convictions
        - accused's silence on interview
        - accused's admissions at the scene / in interview / in the witness box
      - Dock identification
        Identification of defendant by a witness for first time in court = exceptional and rare
        
        It is an undesirable practice so trial judge retains a discretion to permit a dock identification
- - - - Limb 1 – Exclusion for oppression – s.76(2)(a)
        IF represented to court that confession was / may have been obtained by oppression of person who made it = court shall not allow confession to be given in evidence against him
        
        Defence represent that confession was obtained by oppression > prosecution must prove beyond reasonable doubt that it was not so obtained
        
        IF prosecution proves it = admissible BUT not prevent defence during trial to discredit it by cross-examination
        
        IF prosecution cannot prove it = confession must be excluded as inadmissible evidence even if true
        
        Oppression = torture, inhuman or degrading treatment, use or threat of violence
        IF NOT under limb 1 > can be excluded under limb 2
      - Limb 2 – Exclusion for unreliability – s.76(2)(b)
        IF confession was / may have been obtained in consequence of anything said or done likely to render unreliable any confession = court shall not admit it in evidence UNLESS prosecution beyond reasonable doubt that confession was not obtained as so
        1. Identify the thing said or done
        
        Positive acts = promise to release someone from police custody only if they tell all / promise of bail from police station conditional on full confession / threat to arrest a suspect's partner or other family members
        
        Omission / failure to act
        
        NOT simply from suspect, but from something external to the person (promise)
        
        Usually breach of Code C
        
        Can be used in conjunction with oppression
        
        Is what was said / done likely in circumstances to render unreliable a confession made in consequence
        
        Court does NOT consider reliability of confession BUT objective test > if there is a likelihood that any confession would be unreliable in the circumstances
        
        Unreliable = cannot be relied upon as being truth
        
        Concerned with nature + quality of words spoken / things done by the police: e.g. Deprivation of sleep / Failure to caution / Denial of access to legal advice
        
        3. Has prosecution proved beyond reasonable doubt that confession was not obtained in consequence of the thing said and done
        
        Question of fact for the judge = common sense way
      - Evidence discovered as a result of an excluded confession
        Section 76(4) = if confession is wholly or partly excluded NOT affect the admissibility in evidence:
        
        of any facts discovered as a result of confession BUT NOT open to prosecution to suggest that fact was discovered by what defendant said
        
        if confession is relevant as showing that accused speaks, writes or expresses himself in particular way, confession can be used as is necessary to show that he does so
    - - PACE Codes of Practice
        Considered by court
        
        Code A (Stop and Search)
        
        Code B (Entry, Search and Seizure)
        
        Code C (Detention, Treatment and Questioning of Non-Terrorist Suspects)
        
        Code D (Identification)
        
        Code E (Audio Recordings of Interviews)
        
        Code F (Visual Recording of Interviews with Sound)
        
        Code G (Arrest)
        
        Code H (Detention, Treatment and Questioning of Terrorism Suspects)
        
        IF breaches of the codes are significant and substantial = result in exclusion under s.78.
      - Section 78 application examples
        - right of access to legal advice has been improperly denied
        - waiver of the right of access to legal advice was not voluntary, informed or unequivocal
        - failure to caution a suspect before questioning
        - appropriate adult has not been provided for a youth, mentally disordered or mentally vulnerable suspect
        - identification procedures have not been followed
    - - 1. Advance notification
        
        Defence statement (optional in magistrates' court + mandatory in Crown Court) include any points of law + point to admissibility of evidence.
        
        At PTPH / Further Case Management Hearing at Crown Court, judge will review it + likely to order, with time limits, defence to serve a skeleton argument in support of s.76/78 arguments (at least 10 business days before trial in MC) + prosecution to serve a response at least 5 business days after service)
      - 3. Voir dire
        
        Where challenge is raised under s.76(2)(a) and/or (b) prosecution must prove beyond reasonable doubt that the confession was not obtained by: oppression; and/or by anything said or done
        
        Where the facts on both sides are disputed the judge will have to make findings of fact = by hearing called a voir dire in open court + in presence of defendant + absence of jury
        
        During voir dire > prosecution + defence will call its evidence + judge resolve disputed facts before ruling on admissibility of confession
        
        If judge fails to resolve disputed > resulting conviction likely to be quashed
        
        In magistrates' court > application under s.76 / s.78 should be dealt with as a preliminary issue + if relevant evidence is in dispute, hear evidence to resolve the matter BUT if only under s.78 = magistrates have discretion to hear evidence in usual way + decide admissibility at a later stage
        
        In Crown Court > voir dire is required where the application is made under s.76 (or both s.76and s.78) + evidence in dispute
      - 2. Timing
        
        In Crown Court > application to exclude confession can be made at pre-trial hearing listed specifically for this purpose OR prior to opening the case to the jury (in their absence)
        a. Making application prior to trial would be suitable either if prosecution needs to know if confession is admissible or not OR if result of legal argument will be decisive as to whether prosecution can continue with its case
        b. Alternatively, application can be made during trial IF no pressing need to deal with it at the outset
        
        - In magistrates' court > application under s.76 should be dealt with as a preliminary issue +
      - 4. Submissions
        Voir dire only required if factual matter requires resolution for the argument to proceed
        BUT if facts are agreed = no need for a voir dire + legal argument can be made on the agreed factual basis
        
        Defence will make their submissions orally, relying on any previously submitted skeleton argument
        
        Prosecution will respond by making submissions to demonstrate beyond reasonable doubt that confession was not obtained within s.76(2)(a) or (b) + deal with any defence s.78 arguments
        
        Judge would then make a** ruling in open court
        
        If to exclude confession > prosecution could not refer to it during the trial**
        
        If to admit confession > prosecution would be entitled to adduce it BUT not deprive a defendant of raising the same issues before a jury
- - - - 1. Section 101(1)(a): Agreement of the parties
        All parties agree to the evidence being admissible
        
        No need to make an application to court + no formal requirements = fact agreement is enough
      - 2. Section 101(1)(b): Evidence adduced by the defendant
        Reasons why D may wish to do so:
        - To come clean about an old conviction > receive modified good character direction
        - To show D has never been convicted of an offence of the type with which D is now charged
        - To put forward a defence
        - To show why police officers might have a bias against D
        Leave of the court is not required
      - 3. Section 101(1)(c): Important explanatory evidence
        Prosecution can adduce evidence of past misconduct of defendant needed to explain prosecution case in current trial > value to understand case
        Leave of the court is required + fairness test applies
      - 4. Section 101(1)(d): Important matter in issue between the defendant and the prosecution
        Matter of substantial importance in context of case as a whole
        a. Propensity to commit offences of kind with which he is charged, except where propensity makes it no more likely that he is guilty > evidence incl:
        
        offence of the same description as the one charged = written charge / indictment is same
        
        offence of the same category as the one charged = belong to same category of offences
        
        No minimum number of previous convictions required to establish a propensity
        
        strength of the prosecution case should be considered
        
        propensity after the offence = ongoing
        
        b. Important matters in issue
        
        IF facts of previous convictions are so unusual = "signature" > propensity is powerful
        
        c. Propensity to be untruthful
        NOT same as propensity to be dishonest > previous convictions can show this propensity where:
        
        Non-guity plea to previous offence + defendant gave evidence at trial which jury must have disbelieved; or
        
        Way offence was committed involved being untruthful, e.g. fraud by false representation
        
        d. Cross-admissibility
        IF defendant faces multiple charges in same proceedings > bad character apply as if each offence was charged in separate proceedings = gateway required to allow cross-admissibility of evidence of one offence as evidence of other
        e. Functions of the judge and jury
        - Judge determine if evidence is capable of establishing a propensity > if so = admitted
        
        Leave of the court is required + fairness test applies
      - 5. Section 101(1)(e): Important matter in issue between the defendant and a co-defendant
        
        1. Evidence relevant to if defendant has propensity to be untruthful is admissible on that basis only if nature / conduct of his defence undermines co-defendant's defence.
        
        Only evidence:
        - to be adduced by co-defendant OR
        - witness is to be invited to give in cross-examination by the co-defendant
        = admissible
        
        Fairness test + s.78 PACE Act 1984 does not apply = hard for defendant to exclude evidence it
        Leave of the court is required
      - 6. Section 101(1)(f): Correcting a false impression
        IF defendant gives a false impression by making express / implied assertion > evidence to correct impression is admissible
        
        Can apply if prosecution adduces evidence that creates a false impression.
        
        Leave of the court is required
      - 7. Section 101(1)(g): Attack on another person's character
        Evidence / assertion to effect that other person:
        - has committed an offence OR
        - has behaved, or is disposed to behave, in a reprehensible way
        Triggered where an attack is made on any person, living / dead / is or is not a witness in the case.
        Can be used to admit evidence of dishonesty, not just of a propensity to be untruthful
        Leave of the court is required + fairness test applies
      - Directing the jury
        The jury must be warned not to place too much reliance on bad character evidence
        The jury should be directed that:
        - not conclude defendant was guilty / untruthful merely because D had previous convictions; and
        - propensity is not enough to show defendant committed offence alleged in this case.
    - - 1. Section 100(1)(a): Important explanatory evidence
        Important explanatory evidence is same as one given for defendant bad character evidence
        
        without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case; and
        
        its value for understanding the case as a whole is substantial
      - 2. Section 100(1)(b): Substantial probative value in relation to a matter in issue and of substantial importance in the context of the case as a whole
        'Matter in issue' = credibility / disputed fact / propensity to commit offences of the type charged to show that person + not defendant committed offence.
        2nd 'substantial' = to be admissible, evidence must be capable of having an impact on how jury could assess evidence of a witness or the case as a whole. (recent misconduct = greater probative)
      - 3. Section 100(1)(c): all parties to the proceedings agree to the evidence being admissible
    - - Exclusion and safeguards
        Section 78 PACE (may) > no application where one defendant seeks to adduce evidence against another
        Section 101(3) reads: court MUST not admit evidence under subsection (1)(d) or (g) that would have adverse effect on fairness of proceedings
        
        Sections 101(1)(d) and 103(3) CJA 2003 = can exclude evidence of offence of same description / type as offence charged if unjust by elapsed time / other reason
        Section 107 CJA 2003 = court can stop case after close of case for prosecution if bad character evidence admitted is contaminated > charge would be unsafe
        Section 110 CJA 2003 = court must give reasons in open court for any ruling it makes on the issue of bad character
      - Proving convictions
        Section 73: Proving convictions and acquittals
        
        IF dispute as to whether person has been convicted / acquitted, in UK / EU Member State, > may be proved by certificate of conviction / acquittal
        
        Section 74 PACE
        - IF person proved convicted of an offence in UK / EU Member State = committed unless the contrary is proved by them if they show on the balance of probabilities offence was not committed by them
        Section 75 PACE
        - Various documents including information, charge sheet and/or indictment are admissible as evidence of facts on which conviction was based.
      - Procedural requirements
        Court can determine application with / without a hearing in public or in private + decision announced at a hearing in public, but in absence of jury.
        
        Court has discretion to shorten / extend time limits / allow an application or notice to be given in a different form
        
        Defendant bad character
        Rule 21.2: Party wishing to adduce defendant bad character evidence must give notice under rule 21.4
        Prosecution Evidence
        
        Magistrates’ court = Not more than 20 business days after the defendant pleads not guilty
        
        Crown Court = Not more than 10 business days after the defendant pleads not guilty
        
        Co-Defendant’s Evidence
        
        As soon as reasonably practicable + not more than 10 business days after the prosecutor discloses the material on which the notice is based
        
        Response
        
        Not more than 10 business days after service of the notice
        
        Contents
        Prosecution and Co-Defendant’s Evidence
        
        Set out facts of the misconduct on which that party relies;
        
        Explain how party will prove those facts if another party disputes them; and
        
        Explain why the evidence is admissible
        
        Response - include:
        
        any, facts of the misconduct set out in the notice that party disputes
        
        any, facts of the misconduct that party admits instead
        
        Why the evidence is not admissible
        
        Why it would be unfair to admit the evidence
        
        Any other objection to the notice
        
        Non-defendant bad character
        Rule 21.2: Party wishing to adduce non-defendant bad character evidence must make an application under rule 21.3
        Magistrates’ court and Crown Court
        
        As soon as reasonably practicable + not more than 10 business days after prosecutor discloses material on which the application is based
        
        Response
        
        Not more than 10 business days after service of the application
        
        Contents
        Magistrates’ court and Crown Court
        
        Set out facts of the misconduct on which that party relies;
        
        Explain how party will prove those facts if another party disputes them; and
        
        Explain why the evidence is admissible
        
        Response - include:
        
        any, facts of the misconduct set out in the notice that party disputes
        
        any, facts of the misconduct that party admits instead
        
        Why it would be unfair to admit the evidence
        
        Any other objection to the notice