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5.2 Identification Evidence - Coggle Diagram
5.2 Identification Evidence
Disclosure - prosecution
Investigative material
Used material:
Material prosecution will rely upon at trial to prove its case against D. They consist of of case papers and other material that forms part of the evidence in the case, such as:
statements from the prosecution witnesses
D's record of taped interview
other document exhibits like pans and diagrams that are relevant to proving the case
It's from these materials that D will know what the cases against them are
Unused material:
Material
not
being relied upon by prosecution, such as
statements from witnesses that the prosecution is not relying upon at trial to prove its case
records of previous convictions of prosecution witnesses
disciplinary findings against police officers
Importance:
Unused material can be extremely important to D in a criminal trial, where if material is believed, its enough to convict D of a criminal charge. In the same case there might be other witnesses who throw doubt on this
If prosecution reviewed all the material available, and that its in the public interest to prosecute the case, it would be wrong to only reveal to D the material that supports its case and not the material one that does not
Fairness demands that material in the hands of the prosecution that might help D is served on that D
D may choose to present that material in defence at trial
Main Disclosure Provisions
Criminal Procedure and Investigations Act (CPIA) 1996
Code of Practice on Disclosure (S.23 CPIA)
Criminal Procedure Rules (CriminalPR) Part 15
AG's Guideline's on Disclosure
Judicial Protocol on Disclosure and Unused Material
4 Stages of Disclosure
Full and proper disclosure:
Follows that full and proper disclosure is at the heart of a fair system of criminal justice. It's a vital part of the preparation for trial
For this reason rules are developed as to both the duty to disclose unused material and for the duty to retain material during a criminal investigation
4 stages of disclosure:
Investigation stage - duty to record and retain material during the investigation;
Initial duty of disclosure on prosecution;
Defence disclosure
Continuing duty on the prosecution to keep disclosure under review
(1) Investigation stage:
The duty to retain and record relevant material:
Under Disclosure Code of Practice, during a criminal investigation all material which may be relevant to the investigation must be recorded in a durable/retrievable form and retained
Every investigation will have:
an officer in charge of investigation
- responsible for directing investigation + ensuring proper procedures are in place for recording info and retaining them
an investigator
- namely any police officer conducting the investigation and
a disclosure officer
- responsible for examining material retained and revealing material to the prosecutor and defence at the prosecutor's request
Duty to retain + record relevant material:
All material which may be relevant to a criminal investigation must be retained, particularly:
crime reports
records of tapes/telephone messages (like 99 calls) containing descriptions of alleged offender
witness statements (drafts if they differ from the final version
exhibits
interview records
expert reports and communications between police and experts for the purposes of criminal proceedings
records of first descriptions of suspects and any material casting doubt on reliability of a witness
cont:
Duty to retain material last until decision is taken whether to start proceedings against a suspect for a criminal offence
Once proceedings start, all material must be retained until accused is acquitted or convicted or prosecutor doesn't want to continue with the case
Where D is convicted, material must be retained at least until D is released from custody
In cases where appeal against conviction is ongoing all material must be retained until appeal is concluded. Where material comes to light after proceedings have concluded that throws doubt on safety of conviction, prosecutor must consider disclosure of the material
Unused material to prosecutor:
Disclosure Code of Practice sets out procedure for Prosecutor to be notified by disclosure officer of every item of Unused Material
In CC cases: disclosure officer prepares schedule known as MG6C which individually lists the items of unused material
In MC cases: cases where a Not Guilty plea is anticipated the unused material is listed on streamlined disclosure certificate
In case with sensitive material: they are listed in a separate schedule or if they are exceptionally sensitive: revealed to the prosecutor separately. This may form the subject of Public Interest Immunity Application at a later stage
cont:
Disclosure officers must certify that to the best of their knowledge and belief they complied with their duties under the Disclosure Code of Practice
This includes ensuring all relevant unused material is clearly listed and brought to the attention of the prosecutor so that full and proper disclosure is made according to the test
Disclosure officer should exercise judgement and be directed by the prosecutor as to what's likely to be the most relevant and important material for disclosure
(2) Prosecution duty of disclosure:
All these fuctions may be carried out by the same person, but complex cases need individually-assigned rules:
The investigator
- must follow all reasonable lines of enquiry, whether these points towards/away from the suspect and the investigator must be 'fair and objective'
Disclosure officers
- inspect, view and listen to/search all relevant material that are retained by the investigator and must provide personal declaration that it has been done. When there's doubt whether material is disclosable, disclosure officer must get advice + assistance of the prosecutor
Initial duty of disclosure -
S.3 Criminal Procedure and Investigations Act (CPIA) 1996:
S.3(1) The prosecutor must:
(a)
disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, or
(b)
give to the accused a written statement that there's no material of a description mentioned in para (a)
cont:
The duty of disclosure relates to 'prosecution material' - defined in
S.3(2)
as material:
(a)
which is in the prosecutor's possession, and came into his possession in connection with the case for the prosecution against the accused, or
(b)
which in pursuance of [the Disclosure Code of Practice], he has inspected in connection with the case for the prosecution against the accused'
The disclosure test under
S.3 CPIA
is an objective - where there's existence of prosecution material which might help the defence they must be disclosed
The AG's Guidelines add further detail to the disclosure test (deciding weather or not material should be disclosed under
S.3 CPIA
prosecutors should consider amongst other things:
(a) the exclusion of evidence
(b) a stay of proceedings as an abuse of process, where the material is required to allow a proper application to be made;
(i) the exclusion of evidence;
(ii) a stay of proceedings as an abuse of process, where the material is required to allow a proper application to be made
(iii) a court/tribunal findings that any public authority had acted incompatibly with the accused's rights under the ECHR
(c) its capacity to suggest an explanation or partial explanation of the accused's actions
(d) the capacity of the material to have a bearing on scientific/medical evidence in the case
AG's Guidelines:
While items of material viewed in isolation may not be reasonably considered to be capable of undermining the prosecution case or assisting the accused, several items together can have that effect
As such, when considering if unused material must be disclosed, prosecutors must make sure all those circumstances in which such material might reasonably be capable of supporting the defence case or undermining the prosecution case
Material which are supportive of the prosecution case (or they are neutral) may not need to be disclosed as unused material because it doesn't satisfy the disclosure test
What is important is that prosecution must fulfill its duty of considering all material in light of disclosure test and acting on it
Time limits for initial disclosure:
Prosecution will serve initial details of prosecution case no later than beginning of the day of 1st hearing per
CrimPR Part 8:
Details must include enough info to allow D and court at first hearing to take an informed view:
(1) on plea
(2) on venue for trial (for either-way offences)
(3) for purposes of case management
(4) for purposes of sentencing (including for sentence for either-way offences)
Cont:
Concerning the disclosure of unused material by the prosecution, this statutory duty under the CPIA (the initial duty of disclosure) arises:
in the MC only when D pleads not guilty and the case is adjourned for summary trial
In the CC when D is sent for trial or where a Voluntary Bill of Indictment has been preferred against a D
(S.1 CPIA)
But even when statutory duty has not arisen, a prosecutor still must advance disclosure material which the prosecutor recognises should be disclosed at this early stage in the interest of justice and fairness
The
S.12 CPIA
provides for statutory time limits for prosecution initial disclosure to be set by regulation but non has yet to be made
The default position under
S.13 CPIA
is that the prosecutor must act 'as soon as its reasonably practicable' once initial duty of disclosure arises
Disclosure - defence
Defence statement:
In the CC,
S.5 Criminal Procedure and Investigations Act (CPIA) 1996
imposes a duty to a duty on D to serve a defence statement on the CC and the prosecution
A defence statement is a written statement setting out the nature of the accused's defence
Should not be confused with D's proof of evidence to D's own legal advisors which is a privileged document and thus not disclosable to the prosecution
Defence disclosure should also not be confused with prosecution disclosure where there's no duty on the defence to serve material which might not be helpful to prosecution
Defence statement is about setting out reasonable clarity what the defence is
S.6A CPIA 1996
-a defence statement must contain:
For the purposes of this Part a defence statement is a written statement -
(a) setting out the nature of the accused's defence, including any particular defences on which he intends to rely
(b) indicating the matters of fact on which he takes issue with the prosecution, and
(c) setting out, in the case of each such matter, why he takes issue with the prosecution; and
(d) setting out particulars of the matters of fact on which he intends to rely for the purposes of his defence; and
(e) indicating any point of law (including any point as to admissibility of evidence or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose
A defence statement that discloses an alibi must give particulars of it, including:
(a) the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, or as many of those details as are known to the accused where the statement is given;
(b) any information in the accused's possession which might be of material assistance in identifying/finding any such witness in whose case any of the details mentioned in para (a) are not known to the accused when the statement is given
Time limits:
Crown Court:
Defence statement is compulsory only in CC and must be served on the prosecution and the court
(CrimPR r.15.4(2))
within 28 days of the date of the prosecution complies with its duty of initial disclosure
Time limit can be extended but:
only if the application to extend is made within the time limit; and
only if court is satisfied that it would not be reasonable to require D to give defence statement within 28 days
cont:
Magistrates Court:
Defence statement not compulsory. But if D chooses to serve a defence statement in such a case standard directions in the MC provide that:
D must do it within 10 business days of the prosecution complying (or purporting to comply) with initial duty of disclosure
There is also no obligation to serve a defence statement in the MC. But if you don't do it, defence cannot make an application for specific disclosure
Defence Witnesses:
In both CC and MC, D must disclose to the court and the prosecutor a notice indicating:
if D intends to call any witnesses at trial (other than D being a witness); and
if so, identifying the witness by name, address and date of birth or any information to locate and identify witness
Alibi witnesses should be included in the defence statement and do not need to be repeated in the Notice of Intention to Call Defence Witnesses
The Notice of Intention to Call Defence Witnesses must be given within 10 business days (MC standard directions) and 28 days (CC) of the prosecution complying or purporting to comply with initial disclosure
The notice may be amended to add or remove witnesses
Disclosure Failures and Consequences:
A number of consequences may follow, where D in the CC:
(a) fails to serve a defence statement
(b) fails to do so within the required time limits
(c) serves a defence statement which is deficient in its content (such as not adequately setting out the defence relied on at trial or not including an alibi witness called at trial)
(d) relies on a defence at trial which different to that contained in the defence statement
Consequences:
In the MC:
No adverse inference can be drawn against D for failing to serve a defence statement as there is no duty to do so under
CPIA
But if the choice is made to serve a defence statement in the MC, adverse inference can be drawn for the same reasons as in the CC (such as for serving out of time or putting forward a different defence at trial to that contained in the defence statement)
If defence statement is not served in MC or the CC, D won't be able to make an application for specific disclosure under
S.8 CPIA
Failure to serve a defence statement in either MC or CC means prosecutor won't have the opportunity to review disclosure in light of issues that would otherwise have been set out within them
S.11 CPIA - jury may draw adverse inferences as appear proper against D for such a failure although D cannot be convicted solely or mainly on the basis of such an adverse inference
Prosecution or co-D may comment on such failure without leave of the court, other than where it relates to a point of law where leave is required
S.6E(2) CPIA
- a judge can warn D at the PTPH or other pre-trial hearing that failure to comply with the relevant provisions may lead to comment being made or adverse inferences being drawn
CONTINUE TMW
Trial in the Crown Court I
Trials are only necessary when D pleads 'not guilty' and their guilt needs to be determined by the hearing of evidence.
CC trials are also referred to as "trials of indictment" and offences which can be tried in the CC are 'indictable' offences that is
either way
or "indictable only" offences
They are often more serious
either-way
offences where MC have considered that they sentencing powers in the event of conviction are insufficient and have sent the case for trial in the CC
D also has the right to elect to be tried on indictment
CC is the court where
indictable only
offences can be tried. These are offences like murder, attempted murder, manslaughter, causing GBH with intent and robbery
C differs from MC in that it has to incorporate space for a jury of 12 people. The CC clerk differs from MC clerk where:
not legally qualified and never gives legal advice
responsible for many duties relating to:
selecting and taking verdicts from the jury; and
for arraigning Ds
cont:
Trials in the CC takes place before a judge and a jury, save for a few exceptional occasions where trials by a judge alone can take place
Judge who sit in the CC are:
Circuit Judges
- referred to as 'Your Honour'. They wear a violet and black robe and a red tippet (sash) over their left shoulder;
Recorders
- referred to as 'Your Honour'. Recorders are barristers or solicitors who sit as part-time judges. They wear black robes; and
HC Judges
- referred to as 'My Lord, My Lady'. Occasionally, the most serious CC cases are heard by HC Judges who are distinguished by their red robes, hence often referred to as 'red' judges
Role of judge:
is the arbiter of the law
makes rulings about the admissibility of evidence (in the absence of the jury)
directs the jury about matters of law (e.g. explaining what has to be proved and who by)
can direct a jury to find D not guilty (e.g. following a successful submission of no case to answer) but cannot direct a jury to find a D guilty
Role of jury:
is the sole decider/arbiter of facts
decides whether D is guilty
must accept and apply the judge's directions about the law
must reach its decision only based on the evidence only based on the evidence it hears in court. It will:
determine whether, and to what extent the evidence is to be believed; and
decide whether to draw inferences from the evidence or from a D's silence
CC Trial Procedure Rules Part 25:
Legal arguments
Jury selection and swearing in the jury
Prosecution opening speech
Prosecution opening speech
Defence identify matters in issue
Prosecution evidence f
Conclusion of the prosecution case
Submission of no case to answer
Legal arguments:
CC cases are actively managed in the lead up to trial so that trial itself runs smoothly
Sometimes pre-trial hearings before trial judge takes place specifically for the purpose of dealing with legal arguments
In practice, many legal arguments takes place on the 1st day (or first few days) of trial
Legal arguments in the CC can be heard before or after jury are sworn
(1)
Voir dire
Where
voir dire
is required, it still takes place in the absence of the jury since its a procedure for the judge to resolve a factual dispute which is relevant to a legal argument
In practice, when a legal representative says to the judge that 'a matter of law' has arisen, the judge will take this as a cue to ask the jury to briefly retire whilst the legal argument is dealt with
Common legal arguments dealt with just prior tot he commencement of a jury trial in the CC are:
applications relating to bad character;
hearsay applications;
applications to exclude evidence under
S.76 or S.78 Police and Criminal Evidence Act 1984;
and
abuse of process applications
(2) Jury selection and swearing in the jury:
12 jurors are required to start a CC trial
A 'jury panel' of about 16 people go into court from which the 12 will be chosen at random. As each juror is called from the panel they will take their place in the jury box
When the jury box is full but before each juror takes the jury oath or affirmation, D is told by the court clerk that they have the right to object to any juror. Each jury member is then sworn
The jury
selection
process that takes place in the USA is very different
(3) Judge's preliminary instructions to the jury:
The judge will tell the jury that the evidence upon which they must decide the case is the evidence that will be presented to them in court, and they must not discuss it with anyone else who may have a view but will not have heard the evidence
Judge will also explain that matters of law are for the judge alone, so if any legal applications are made during the trial the jury will be asked to leave the court while they are dealt with
(4) Prosecution opening speech:
In the CC, the prosecution opening speech is focused on facts and issues in the case, namely:
on what the case is about
what areas of dispute are
why the prosecution says D is guilty of the offences or offences with which D is charged
The prosecutor will tell the jury what counts the D is facing
The prosecutor should avoid the use of overly emotive language
(5) Defence identify matters in issue:
To help the jury to understand the case, the judge can invite the defence to confirm or clarify what the issues in the case are (i.e. what precisely is in dispute)
(6) Prosecution evidence:
Prosecution case has been served on the defence at the outset of the proceedings
All witnesses the defence wish to question will have been included in the Plea and Trial Preparation Hearing form (PTPH). The defence will only want to question a prosecution witness if there is some disagreement with the content of that witness's statement
The prosecution will start by calling all prosecution witnesses that the defence asked to be called. The prosecutor will then take the witness through evidence in chief. The witness is then cross-examined by D's legal representative
When defence has no dispute with content of a prosecution witness's statement no purpose would be served in calling the witness to give live evidence and instead, where defence agree, the prosecution can read the statements of prosecution witnesses
Just before prosecutor reads a witness statement to the jury, judge will explain to the jury that they can receive evidence in various ways and that this agreed evidence which is why its being read to them
D's 'recorded of tape interview' (ROTI) with the police will be produced in an edited form containing the salient questions and answers. Jury will get a copy of the ROTI and the prosecution will also read the interview out in court
Where D has made a 'no comment' interview instead of presenting a ROTI to the jury the prosecution will often instead present agreed written admissions stating what D was asked about and that D replied 'no comment' to all questions put
This allows the jury to consider whether it would be proper to draw an inference from D's silence
(7) Conclusion of the prosecution case:
The case for the Crown is concluded
(8) Submission of no case to answer:
At the end of the prosecution evidence, on D's application or on its own initiative, judge may direct the jury to acquit on grounds that prosecution evidence is insufficient for any reasonable court to properly convict
But they must also not do so unless the prosecutor has had an opportunity to make representations
This is known as a submission of no case to answer and is often referred as "half time" submission due to the stage in teh trial at which its made
The submission will be made in accordance with the test laid down by Lord Lane CJ in
R v Galbraith
[1981]
Right to give evidence & adverse inferences
Defence opening speech
Defence evidence
Legal discussions
Closing speeches
Judge's summing up
Jury bailiffs sworn & jury retire
Verdict
(9) After the prosecution has closed its case the judge will ask D's legal representative in the presence of the jury if D is going to give evidence
If answer is yes, the case will proceed
If answer is no the judge will ask, the judge will ask:
"Have you advised your client that the stage has now been reached at which D may give evidence and, if D chooses not to do so, or having been sword, without good cause refuses to answer any question, the jury may draw such inferences as appear proper from D's failure to do so?"
D's right to give evidence or not
If legal representative says D has been so advised the case can proceed; if D has not been advised the case will be adjourned briefly for the advice to be given
There's no obligation on D to give evidence, but failure to do so can result in adverse inferences being drawn pursuant o
S.35 Criminal Justice and Public Order Act 1994
The final decision as to whether or not to give evidence is for D to take, but D's advocate should advise D and, should D decide not to give evidence, it should be recorded in writing that D has received advice and has decided freely not to testify
(10) Defence opening speech:
When the prosecution case has ended, or following a rejected submission of no case to answer, Defence case wills start.
Defence do have a right to make an opening speech at thsi stage but only if one or more defence witnesses, other than D in person, will be called to give factual (as opposed to merely character) evidence
Even though there's a right to defence opening speech, its rarely used
(11) If D is represented and D chooses to give evidence, defence advocate:
If D is represented and D choses to give evidence, D advocate will call D and take D through evidence in chief
D will then be cross-examined by any other Ds and the prosecution
Any other defence withnesses will be examined in chief, cross-examined and re-examined in the same order as the D
(12) Legal discussions:
When defence case is closed its common practice for the jury to be sent out in order to allow the judge and prosecution and defence advocates opportunity to consider those matters of law which should be raised during the judge's summing up
This allows submissions to be made on all legal matters that have arisen in course of the trial and which will form part of the judge's directions on law to the jury
This is a easy way of ensuring that any problems are ironed out before speeches and summing up
So appeal is less likely in event of conviction
(13) Closing speeches
The prosecution can make a closing speech where D is legally represented, or has called at least 1 defence witness (other than D in person) to give factual evidence or where the court otherwise so permits
The prosecution closing speech is always first. Defence is always entitled to make a closing speech which will follow that of the prosecution
(14) The judge's summing up:
After closing speeches have been delivered by the prosecution and defence, the judge will sum the case up to the jury
Summing-up falls into 2 parts: laws and facts
Means that judge will deal with all necessary legal directions and then move on to sum up the prosecution and defence cases
Both prosecution and defence advocates should be alert to errors in the summing-up and draw them to the judge's attention at its close so that corrections can be made
The judge will direct the jury that they have different functions:
The judge is the arbiter of the law; the judge will give the jury directions on the law which they must accept
The jury however are the arbiter of facts. They must reach their own conclusions base done evidence
Every case is different and the legal directions the judge gives to the jury will be tailored accordingly
In summing up the case to a jury, the judge will deal with the following:
burden and standard of proof
the ingredients of the offence and any defences
a written route to verdict
other legal directions relevant to the case
electing a foreman
unanimity
separate considerations of counts and Ds if needed
To assist the jury to focus on the issues during retirement, the judge should provide:
a reminder of the issues;
a summary of the nature of the evidence relating to each issue
a balanced account of the points raised by parties; and
any outstanding directions
It's not necessary for the judge to recount all relevant evidence or to rehearse evidence or to rehearse all the significant points raised by the parties
Foreman:
The judge will tell the jury to appoint a foreman (a person of ay gender) to deliver the jury's verdict in due course
Unanimity:
Just before the jury bailiffs are sown and jury retire to consider their verdict, the jury will be told that they may have heard of majority verdicts, but the only verdict the judge can accept is a unanimous verdict
Judge will go on to say that if the time should come when a majority verdict can be accepted from them, the judge will call the jury back to court and give them further direction
(15) Jury bailiffs & jury attires:
Jury bailiffs swear/affirm to keep jury in some private and convenient place and not to allow anyone to speak to them or to speak to them themselves without the leave of the court other than to ask them if they have reached a verdict
Jury bailiffs are court ushers who become jury bailiffs once they take the jury bailiff's oaths/affirmations
The jury will go to their retirement room to deliberate on their verdict
They are allowed to ask questions of the judge by giving a note to the jury bailiff who will pass it to the judge. Judge may give further directions during retirement
Majority direction:
The Juries Act (JA) 1974
permits a majority verdict to be given by a jury after they have deliberated for at least 2 hours although in practice the minimum period is 2h and 10m as required in
Criminal Practice Direction VI Trial 26Q Majority Verdicts.
This is to take account of any time not spent deliberating, like getting to the jury room and electing a foreman
A majority verdict should not be accepted unless it appears to the court that the jury have had such period of time for deliberation as the court thinks reasonable having regard to the nature and complexity of the case
Hence, what is reasonable depends on each case and in long + complex cases with multiple Ds the jury could be out for many days before any thought is given to their receiving a majority direction
(16) Verdict:
Once the jury have reached a verdict they'll inform the jury bailiff
The court will reassemble and the foreman will be asked to stand
If the jury have not received a majority direction the court clerk will ask the foreman if the jury have reached a verdict on which they are all agreed.
If the answer is yes, clerk will ask "What is your verdict?" and the foreman will reply "Guilty" or "Not guilty"
Convicting of alternative offences:
In certain circumstances the jury can convict of a lesser offence which is an alternative to a count on the indictment
e.g. an offence of inflicting GBH contrary to
S.20 Offences Against Person Act 1861
is included in (and thus a direct alternative to) the more serious offence of causing GBH with intent, contrary to
S.18 Offences Against the Person Act 1861.
In essence, S.20 is the same as S.18 without the element of intent, so the lesser offence is included in the greater offence
Guilty verdict:
A D who is found guilty will either be sentenced immediately or if reports are required to assist with sentencing, such as pre-sentence report or a psychiatric report, the case will be adjourned for a sentence to a later date
Its common practice for judge whether a D is acquitted or convicted to thank the jury for carrying out their public duty
Not guilty verdict:
A D who is acquitted will be entitled to be discharged
The D will therefore be free to leave so long as no further matters facing the D are before the court