Unit 3- chapter 9 (9.1-9.3, 9.8, 9.4)

1. Introduction to the Law of Evidence

Purpose and Function

The law of evidence establishes the rules and principles that govern:

• What information can be introduced during a trial.

• How that information is admitted, excluded, and evaluated.

• Who bears the responsibility of proving facts (burden of proof) and to what degree (standard of proof).

It also regulates the judge’s ability to comment on the evidence and guides the overall fact-finding process.

Two Key Requirements for Evidence to Be Considered:

1. Relevance:
   The evidence must relate to facts in issue. It must logically help to prove or disprove an issue at trial.

2. Admissibility:
   Even if evidence is relevant, it must also satisfy legal rules that permit its use in a criminal trial. For example, hearsay, opinion evidence, or improperly obtained evidence may be ruled inadmissible.

Types of Evidence:

• Direct Evidence: Proves the fact in issue directly (e.g., eyewitness testimony that the defendant stabbed the victim).

• Circumstantial Evidence: Relies on inference. It suggests a fact by implication or association (e.g., evidence of motive or opportunity).

Example:

John is charged with wounding Liam.

• Direct evidence: Eyewitness saw John stab Liam.

• Circumstantial evidence: A threatening letter from John to Liam before the incident.

2. Burden and Standard of Proof

2.1 The Legal Burden

Who bears it?

• Generally: The prosecution bears the legal (persuasive) burden to prove every element of the offence.

• Exceptionally: The defendant bears the legal burden for certain statutory defences (e.g., insanity, some duress cases).

Standard of Proof:

• Prosecution: Must prove the defendant’s guilt beyond a reasonable doubt.

• Case law:

  • Woolmington v DPP [1935] AC 462

    • Lord Sankey described this as the "golden thread running through the criminal law"—that the prosecution must prove the defendant’s guilt.

    • The burden remains on the prosecution unless statute expressly reverses it.

• Defendant (when legal burden applies):
  Must prove the defence on the balance of probabilities (i.e., that it is more likely than not).

Example:

If the defendant raises insanity, they must prove it on the balance of probabilities. This is a reversal of the usual presumption of innocence but is legally permitted.

2.2 The Evidential Burden

2.2.1 On the Prosecution

• The prosecution must present sufficient evidence to establish a prima facie case (i.e., a case to answer).

• Failure to meet the evidential burden entitles the defence to submit a "no case to answer".

Case law:

• R v Galbraith [1981] 2 All ER 1060

  • Lord Lane CJ established the key test:

    • If there is no evidence that a reasonable jury properly directed could convict, then the case must be withdrawn.

    • If the prosecution’s evidence is tenuous or weak, it is for the jury to decide—unless it is so inherently weak or inconsistent that no reasonable jury could find guilt beyond reasonable doubt.

Example:

If, after the prosecution’s case, the evidence is vague or contradictory, the judge may rule there’s no case to answer under Galbraith.

2.2.2 On the Defence

• The defendant is not obliged to prove anything to be found not guilty.

• However, if the defendant raises a specific defence, such as:

  • Alibi

  • Self-defence

  • Automatism

  • Loss of control

  They bear a minimal evidential burden to introduce sufficient evidence to make it a live issue.

• Once raised, the prosecution must disprove the defence beyond a reasonable doubt.

How to meet the evidential burden:

• Usually, the defendant testifies or produces evidence to introduce the defence.

• This burden is light – the evidence must merely be capable of supporting the defence.

Example:

• Case example:
  Arlo is charged with burglary. He claims he was with his girlfriend at the time of the crime (alibi).

  • He testifies to that effect.

  • This satisfies his evidential burden.

  • The CPS must then prove beyond reasonable doubt that the alibi is false and Arlo committed the burglary.

3. Burden of Proof Summary Chart

VISUAL IDENTIFICATION EVIDENCE AND TURNBULL GUIDANCE

1. Introduction

Visual identification evidence arises when a witness purports to identify the defendant as the perpetrator of the offence based on sight. This type of evidence is common, but it is also notoriously unreliable, and the courts have developed strict guidance and legal rules to mitigate the risk of wrongful conviction.

2. Admissibility of Visual Identification Evidence

2.1 Legal Basis for Exclusion: Section 78 PACE 1984

• Section 78(1) Police and Criminal Evidence Act 1984 allows the court to exclude evidence if the admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

• This discretion is particularly relevant when there have been significant and substantial breaches of the Codes of Practice, particularly Code D, which governs identification procedures.

2.2 Typical Breaches of Code D Leading to s.78 Applications

Example:

In Fynn's Case, Nadia’s description of the robber did not match Fynn, and the identification parade breached Code D. An application under s.78 PACE would seek to exclude this evidence as unfair.

3. If s.78 Fails – Turnbull Guidelines

3.1 Authority: R v Turnbull [1977] QB 224 (CA)

A landmark case which sets out judicial directions that must be given to the jury when visual identification is disputed.

3.2 Turnbull Test – “A Serious Miscarriage of Justice May Arise”

Before admitting visual ID evidence, the judge must consider:

• Is the quality of the identification evidence good or poor?

• If poor, is there supporting evidence to strengthen it?

• If no supporting evidence and quality is poor, the judge must withdraw the case from the jury and direct an acquittal.

3.3 Turnbull Guidelines for the Judge’s Direction

If the evidence is admitted, the judge must warn the jury about:

• The special need for caution before convicting based on visual ID.

• The reason: mistaken eyewitness evidence has led to miscarriages of justice.

• The possibility of an honest but mistaken witness.

• The need to examine carefully the circumstances of the identification.

Factors affecting quality (Turnbull list):

4. Supporting Evidence

If the visual ID is weak, the court must consider whether supporting evidence exists. Examples:

• Forensic evidence (e.g., fingerprints, DNA).

• CCTV footage.

• Confession.

• Alibi undermined by strong objective evidence.

If supporting evidence exists, the judge may still leave the case to the jury even if the visual ID is not strong on its own.

5. Practical Application of Turnbull and s.78

• A defendant’s solicitor should first challenge admissibility via s.78 PACE if Code D has been breached.

• If unsuccessful, they should undermine the quality of the original sighting under Turnbull.

• Judges must carefully direct the jury on the risks of relying solely on eyewitness ID.

6. Key Case Law Summary

Visual Identification Evidence and Turnbull Guidelines

1. Introduction to Visual Identification Evidence

Visual identification evidence involves a witness claiming to have seen the defendant commit the offence.

• Significance: Crucial in criminal trials, often forms basis of the prosecution’s case.

• Inherent Risks: Notoriously unreliable due to high error rate (honest mistakes by witnesses are common).

Types of Identification Evidence:

• Direct identification: Witness explicitly recognises defendant (e.g., "I saw X commit the offence").

• Circumstantial identification: Witness provides description or circumstances that indirectly suggest identity.

Case Law on Risks:

• R v Turnbull [1977] QB 224: Key judgment that acknowledged dangers of mistaken visual identification.

2. Admissibility Challenges (PACE 1984, s78)

2.1 Overview of s78 PACE 1984

Under section 78 of PACE 1984, the court has discretion to exclude evidence if admitting it would have such an adverse effect on fairness that the court "ought not to admit it".

• Primarily used when evidence is obtained through breaches of Code D (police identification procedures).

2.2 Breaches of Code D (PACE 1984)

Common breaches include:

2.3 Practical Example

Example Case Study:

• Witness Nadia identifies Fynn in a police lineup, but several stand-ins significantly differ from Fynn. Additionally, investigating officers are improperly present during parade.

• Defence action: Application under s78 PACE to exclude identification evidence as unreliable and unfairly obtained.

3. The Turnbull Guidelines (R v Turnbull [1977] QB 224)

3.1 Introduction to Turnbull Guidelines

The Turnbull guidelines provide judicial safeguards when relying on visual identification to convict.

Turnbull Witness:
A witness who visually identifies the defendant as the person seen committing the crime.

Three scenarios where guidelines apply if defendant disputes ID:

• Formal identification procedure (e.g., lineup, video ID).

• Informal identification (casually or spontaneously identifying defendant).

• Recognition evidence (witness claims prior knowledge of defendant).

3.2 Relevant Case Law

Example Scenario:

• Lewis is at a fight scene. If multiple similar-looking individuals were present, Turnbull applies.

• If Lewis was uniquely identifiable, Turnbull guidelines would not apply.

3.3 Non-applicability of Turnbull

Key Example (Iqbal):

• Witness provides a description ("6ft, moustache") but does not identify the defendant directly.

• Turnbull does not apply, as no direct ID of defendant is made.

4. Judicial Assessment of Identification Evidence

4.1 Judge’s Initial Assessment (Quality Check)

Judge assesses original sighting using ADVOKATE factors:

5. Judicial Directions Based on Identification Quality

5.1 Identification Evidence of Good Quality

• Turnbull Warning Required: Jury reminded of the danger of mistaken identification even by honest witnesses.

• Jury specifically directed to carefully consider ADVOKATE factors.

Illustrative Example:

• Elias identified by witness clearly (40 seconds, daylight, close). Judge gives strong Turnbull warning but allows jury to consider evidence.

5.2 Poor but Supported Identification Evidence

• Judge gives robust Turnbull Warning.

• Identifies weaknesses clearly and instructs jury to seek corroborating evidence.

Types of supporting evidence:

• Confession by defendant

• Fingerprint or DNA evidence

• Stolen goods in possession

• Adverse inferences from silence (s34 CJPOA 1994)

Example (Jake):

• Poor identification (dark alley, brief glimpse) but defendant’s fingerprints found on weapon—judge warns jury strongly about weaknesses and stresses importance of supportive evidence.

5.3 Poor and Unsupported Identification Evidence

• Judge must direct jury to acquit the defendant (usually after submission of no case to answer).

Example (Rebecca):

• Witness viewed briefly from distance in poor conditions with no supporting evidence.

• Defence submission succeeds, trial stopped, defendant acquitted.

6. Application in Magistrates' Court

• Magistrates decide facts and law—Turnbull guidelines must be clearly articulated by defence solicitor directly to bench.

• No Case to Answer: Made at end of prosecution case if ID evidence poor and unsupported.

• Closing Submissions: If ID evidence admitted (good or supported), solicitor emphasises weaknesses and unreliability, urges caution.

7. Flowchart Summary: Visual ID and Turnbull (Key Steps)

1. Witness identifies defendant (formal/informal/recognition).

2. Defendant disputes identification → Turnbull guidelines apply.

3. Check for breaches of Code D → s78 exclusion application.

4. If admitted, judge assesses quality using ADVOKATE factors:

   • Good ID → Jury warned to proceed cautiously.

   • Poor but supported → Jury warned to seek corroboration.

   • Poor and unsupported → Defence submission of no case to answer (likely acquittal).

8. Strategic Considerations for Practitioners

• Always scrutinise police ID procedures carefully.

• Strongly consider applications under s78 PACE.

• Prepare carefully to cross-examine witnesses, using ADVOKATE criteria.

• Anticipate judicial application of Turnbull guidelines to structure arguments effectively.

Inferences from Silence (CJPOA 1994, ss. 34–38)

1. Introduction: Right to Silence and CJPOA 1994

Right to silence:

• A fundamental right allowing a suspect not to incriminate themselves by remaining silent during police questioning.

• Established in common law; modified by CJPOA 1994.

Impact of CJPOA 1994:

• Prior to the Act, no negative conclusion could be drawn from silence.

• Now: The court/jury can draw adverse inferences from silence in certain circumstances (ss. 34–37).

2. Meaning of Adverse Inference

An adverse inference is a negative conclusion the jury/magistrates may draw from a defendant's silence during police questioning or at trial. Typically, it implies that the defendant remained silent because they had no credible explanation at the time, or their defence was fabricated later.

Examples of adverse inference:

• Recent fabrication: Defence created later because it was not mentioned at the interview.

• Fear of scrutiny: Defendant withheld explanation as it wouldn't withstand police examination.

Crucial safeguard (s.38(3) CJPOA 1994):

• A defendant cannot be convicted solely on an adverse inference.

• Other independent prosecution evidence must establish a prima facie case (R v Cowan [1996]).

Legal advice protection (s.34(2A)):

• No inference if suspect denied legal advice (absolute right to silence).

3. Section 34 CJPOA 1994: Failure to Mention Facts

Statutory Provision (s.34(1)):

• Adverse inference if defendant fails to mention, when questioned or charged, any fact later relied on at trial.

• Key requirement: Fact must be something the defendant reasonably could have been expected to mention.

Five Conditions (R v Argent [1997]):

All five must be satisfied for adverse inference under s.34(1)(a):

1. Interview under caution

   • Formal police interview; caution explained clearly.

2. Failure to mention a fact

   • Must be a specific fact defendant relies upon later in trial.

3. Timing of silence

   • Must be silent before charge, or at charge.

4. Purpose of police questioning

   • Police questions directed at discovering who committed the offence or whether an offence was committed.

5. Reasonableness test

   • Defendant could have been reasonably expected to mention this fact at interview.

   • Subjective and objective test considering all circumstances (age, health, disclosure by police).

Relevant Case Law:

• R v Argent [1997]: Set clear tests for conditions above.

• Condron v UK [2001]: ECHR held inference allowed only if silence due to defendant having no credible explanation.

• R v Betts and Hall [2001]: Inference permissible even if defendant answered questions at a later interview.

4. Prepared Written Statements (R v Knight [2003])

Strategy:

• Defendants advised to provide written statements rather than answering orally to police to avoid confusion or distortion of facts.

Significance (R v Knight):

• Court cannot draw adverse inference if statement provided fully covers the facts later relied upon at trial.

• Written statement ensures defence is clearly documented at earliest stage.

Limitations:

• If later defence includes additional facts not in the original written statement, adverse inference can still apply.

5. When Silence is Justified: Legal Advice and Case Law

Courts recognise certain circumstances where remaining silent is reasonable:

6. Silence on Legal Advice (Condron v UK [2001]; R v Beckles [2004])

• Claiming silence due to legal advice does not automatically prevent inference.

• Courts assess whether reliance on advice was genuine and reasonable.

Condron v UK [2001] (ECHR principles):

• Court must consider carefully defendant's claim of reliance on legal advice.

R v Beckles [2004]:

• Jury must be directed clearly:

  • If defendant genuinely and reasonably relied on solicitor's advice to remain silent, no adverse inference should be drawn.

Impact on Legal Privilege (R v Bowden [1999]):

• Legal advice is privileged initially.

• If defendant at trial reveals reasons for legal advice, privilege is waived, allowing prosecution cross-examination about solicitor’s advice.

7. Section 36 CJPOA 1994: Objects, Substances, Marks

Section 36 allows inference if defendant fails to explain the presence of incriminating objects, substances or marks.

Conditions (s.36(1)):

1. Defendant arrested and found with suspicious object/substance/mark.

2. Officer believes it links defendant to crime.

3. Defendant given special caution (PACE Code C, para 10.11).

4. Defendant fails or refuses to explain presence.

Examples:

• Blood on clothing after assault (suspect silent about blood).

• Crowbar possession after burglary (no explanation given).

Overlap with s.34:

• s.36 inference does not require later defence fact; applies immediately upon silence at interview.

8. Section 37 CJPOA 1994: Presence at a Crime Scene

Section 37 allows inference if defendant refuses to explain their presence at a specific location/time related to an offence.

Conditions (s.37(1)):

1. Defendant found at/near crime scene around offence time.

2. Officer reasonably believes presence implicates defendant.

3. Special caution given clearly to defendant.

4. Defendant refuses/fails to explain presence.

Example:

• Suspect near burglary scene, arrested shortly after burglary; suspect refuses explanation at interview.

Overlap with s.34:

• s.37 inference applies regardless of whether defendant later gives a trial explanation.

9. Section 38 CJPOA 1994: Protection Against Conviction by Inference Alone

• Clearly states that a defendant cannot be convicted solely on adverse inference evidence.

• The prosecution must have separate independent evidence (R v Cowan [1996]) that provides a case to answer.

10. Procedural and Tactical Flowchart

Applying s.34:

• Defendant fails to mention fact in interview later raised at trial → was silence reasonable?

• Consider reasons: police disclosure, complexity, defendant’s health, legal advice.

• Genuine and reasonable reliance = no inference.

Applying s.36 & s.37:

• Confirm special caution correctly given.

• Defendant’s silence about object/substance/mark (s.36) or presence (s.37).

• Inference permissible unless justified silence established.

11. Strategic Advice for Legal Practitioners

• Clearly document reasons for advising silence (especially disclosure and defendant’s condition).

• Use written statements strategically to mitigate risk of adverse inference.

• Ensure special caution requirements are fulfilled by police (PACE Code C, para 10.11).

• Be cautious when allowing client to testify at trial about solicitor's advice to remain silent, due to potential waiver of privilege.

12. Key Summary and Practice Points

• Silence can harm defendant’s credibility at trial.

• Carefully consider and document rationale for silence.

• Written statements are valuable tools for clearly presenting early defence facts.

• Police procedural failings can protect against adverse inferences (ss. 36, 37).

• Defendants protected from conviction solely on inference (s.38).

Introduction to Section 35 CJPOA 1994

General Right to Silence at Trial

• Historically protected by Criminal Evidence Act 1898, s 1(1).

• Defendant not obligated to testify at their own trial.

• Right to remain silent at trial remains; however, consequences arise from exercising this right.

Key Statutory Provision: s 35 CJPOA 1994

• Allows the court or jury to draw adverse inferences if a defendant chooses not to give evidence or refuses without good cause to answer any questions at trial.

• Designed to encourage defendants to testify and allow their version of events to be tested through cross-examination.

2. Statutory Framework and Procedural Requirements (s 35)

Section 35(2) CJPOA 1994

At the end of the prosecution's case, the judge must explicitly inform the defendant that:

• The defendant is entitled (but not obliged) to give evidence.

• If the defendant chooses not to testify or refuses questions, the court/jury may draw proper adverse inferences from this silence.

In practice:

• Judge explicitly warns defendant of consequences of silence.

• Typically done on record to avoid any confusion.

3. Rationale Behind Section 35

Purpose and Rationale

• Encourages defendants to explain themselves, aiding fact-finding at trial.

• Silence at trial (where explanation is reasonably expected) may suggest:

  • Defendant has no credible explanation, or

  • Defendant’s explanation would not withstand cross-examination scrutiny.

4. Conditions for Drawing an Adverse Inference (R v Cowan [1995])

Key Conditions (Set by R v Cowan; Gayle; Ricciardi [1995] 4 All ER 939):

Court must carefully consider:

1. Burden of proof always remains on the prosecution.

2. Defendant retains the right to silence; no obligation to testify.

3. Prosecution must have established a case to answer first.

4. Inference alone cannot prove guilt (reinforced by s 38(3) CJPOA).

5. Court/jury must conclude silence is due to the defendant having no plausible answer, or no answer capable of standing up to cross-examination.

Practical Explanation of Conditions:

• Prosecution’s burden: Even with silence, prosecution must independently show a strong prima facie case.

• Defendant’s right: Although adverse inference is possible, it must be balanced against the defendant’s fundamental right to remain silent.

• Case to answer requirement: Before an inference is considered, prosecution evidence must have clearly created a scenario that demands an explanation from the defendant.

• Inference insufficient alone: Silence alone is not enough for conviction; corroborative evidence must be present.

• No plausible explanation: Jury instructed carefully to only draw inference if silence’s only sensible interpretation is lack of explanation or credibility.