A 2022 Update on the Law of Evidence for Trial Advocates

Hello and welcome to this 2022 update on the law of evidence for trial advocates. This presentation is on behalf of data law. My name is Colin Belmont Usual format. We have 20 slides with four bullet points per slide. So let's just go to the first slide. The Criminal Procedure Rules 2020 and the criminal practice directions. It's as well that we bear in mind as trial advocates that we do have to have regard to the rules and the practice directions that certainly was brought home to us in the court of Appeal decision of Regina in smith in which the Court of appeal were not impressed with the way that the hearsay issues had been dealt with by the parties in the case. The criminal procedure rules are not decorative. The notice requirements within the rules whereby the prosecution should serve a notice regarding an application to introduce hearsay evidence and the defense should serve account and notice if they if they object those notices are there for a reason there were complex hearsay issues within a be achieving best evidence interviews. No notices were served by the crown. Ah The matter was really left for the judge to decide these issues on the day of trial and the Court of Appeal were very critical and said many of the problems that were encountered in this case would have been avoided. Had notice has been served under the rules. The purpose of the notice of course, is to put the other side on notice of the arguments in favor of the hearsay evidence being admitted. The purpose of the counter notice is for the defense to put the prosecution on notice of the nature of their objections to the hearsay evidence going in. As the court of appeal said, these notice periods are there in order to give each side an opportunity to evaluate the measures that are proposed and to develop their stance in order that when the matter comes before the court, the judge is provided with the best arguments from both sides. Well, that clearly didn't happen in this particular case, errors were made which resulted in the court of appeal having to overturn the conviction because evidence was admitted by the judge that had the judge had the time and the opportunity to reflect upon the application. Such evidence would probably not have been admitted. So there you are, if there is hearsay notices particularly complex hearsay notices should be served. Slide too. Section 98 A&B. of the criminal Justice Act 2000 and three. Section 98 A and B. Merely preserve to old common law rules whereby this type of evidence was always admissible and it's nothing to do with bad character and as a prosecutor, you don't have to serve bad character notices 98 A evidence to do with the facts of the offense of chart as charged or evidence of misconduct during the investigation or prosecution of the offense. A couple of cases will illustrate the point. The case of polio wang A. 2020 one Court of appeal decision, suspicion of drug dealing by the police. There was no drug dealing by the defendant. But the crown's case was that it was that suspicion and that reason why the police want wanted to um stop him that led him to drive off in a dangerous manner. In other words, it was evidence to do with the facts of the offense charged and was this admissible under section 90 eight A Of course, those of you who are familiar with the law in relation to bad character will immediately have thought, well, it could also have gone in, couldn't it as important explanatory evidence. Yeah. It put today's evidence of dangerous driving into some sort of context, evidence without which the court would find it difficult or impossible to understand the other evidence in the case A. A. M. And Regina. Another 2020 one quarter of appeal decision this time, in relation to reprehensible behavior, we know, don't we? That bad character is far wider than merely previous convictions and will extend to misconduct, amounting to reprehensible behavior, behavior, deserving of rebuke and on the facts of this particular case. In relation to the actual charge, there was reprehensible behavior, financial control and meanness, undermining of the complainant, humiliating the complainant, bullying of the complainant, violence and the threat of violence directed towards the complainant and the Court of appeal said, and the parties agreed that all of this reprehensible behavior. There was nothing to do with bad character and was all to do with the facts of the offenses charged and was therefore admissible under Section 98 A. So please don't don't ever rule out the prosecution seeking to put the evidence in under section 98 a. or B. They don't have to serve notices. It's nothing to do with bad character slide three. The different methods by which evidence is admissible classically evidence maybe by way of live oral testimony coming from the mouth of the witness whilst in the witness box or perhaps beamed into court via a video link. Evidence may Be agreed under the provisions of the Criminal Justice Act, 1967, Section nine, whereby evidence that isn't challenged is simply red or summarized to the court. As you know, the prosecution will invariably serve their evidence upon the defense. The defense then have a period of seven days and weekends are included within which to respond saying No, we're not happy with this statement being read. We do have certain questions of this witness. We shall require the make of this statement to attend to give live oral testimony and to render themselves subject to cross examination evidence may be agreed between the parties and admissions made concerning those pieces of evidence. Under Section 10 of the Criminal Justice Act of 1967. Clearly only admissible evidence maybe agreed under section 10 and it may be that those section 10, admissions have effectively been made on the pet form at the magistrate's court stage. The preparation for an effective triumph and we know, don't we, that evidence that is admitted does not require any other formal proof in the proceedings because it's been admitted by the other side. Evidence may be admitted by way of a statement being read, albeit it's not agreed. It may be that the statement is read As a result of Section 1141 d. The interests of Justice, Criminal Justice Act two 1003 that's very wide, isn't it? Any statement maybe red if the court takes the view that in the interests of justice it ought to be read. And we had a good example of this of a case. I was reading only yesterday, in which to crown witnesses were deemed to be hostile to the prosecution calling them in the sense of they would not give evidence concerning their earlier statements. Clearly, the earlier statements could Not have been admitted under Section 119 of the Criminal Justice Act of 2000 three, because the statements only go in under section 119. If the witness in the witness box effectively gives evidence at variance to that contained in their earlier statement. In other words, we're talking about a witness making statements inconsistent with their earlier statement. Well, these witnesses didn't do that. They didn't say anything about the nature of the contents of their earlier statements and therefore You couldn't get the statements in under section 119. However, the judge agreed that the statements should go in in the interests of justice. Under section 114 one D. Section 116. Well, I'm sure you're familiar with that section that gives a list of circumstances in which the crown the prosecution makes seek to get into evidence a statement because for one reason or another, the maker of the statement is not available or willing to come to court to give live or will testimony. The witness might be dead or the witness might be abroad and it's not economically viable or sensible to bring them, bring them back into the jurisdiction or the witness might just have disappeared or the witness might be too fearful to come to court to give live oral testimony. There's a whole host of examples given in section 118, I beg your pardon. one month 6 118. of course, that section merely preserves the former common law laws whereby such evidence was always admissible, albeit it was hearsay and you'll find within Section 118, of course, raise GST raise, just die being a common law exception to the rule against the admissibility of hearsay evidence whereby such evidence could be admitted if the party wishing to reduce the evidence could show that the statements were made by a person so overcome emotionally by the events that the possibility of distortion or concoction within the statements could be disregarded. Sometimes. A classic piece of raise GST is the body worn footage that's played during the trial. The maker of the statement being unwilling for one reason or another to come to court to give live or testimony or it might be That the 999 call to the police is admitted under the rays. Just i exception whereby the hearsay evidence always was admissible at common law and has been preserved by section 11 eight slide four. What an interesting case Regina and Belhaj Far Hat this year's Court of Appeal decision concerning D. N. A. And I must confess it's changed my thinking about D. N. A. Evidence and it's particularly relevant for people advising at an early stage in the investigation. Perhaps at the police station. What happened in this case? Well, a road a rolled up cigarette was found propped up against the frame of the front door inside a flat which was burgled During a period of 45 minutes absence from the property. Bad character evidence concerning propensity to commit burglary was also admitted because the defendant had three previous convictions for burglary. Also the defendant or the suspect went, no comment in his interview and adverse influences could be drawn by the jury and the Court of appeal said yes, that was the prosecution evidence at its height, but that the conviction was not unsafe. So let's look at this D. N. A. Then, shall we because we know, don't we that we've had quarter appeal decisions in the past which have said that mixed profiles on an item easily transferrable from place to place like a scarf or a hat might not be sufficient even to raise a primary facial case and let alone secure a conviction. Because if the item is easily movable from place to place, who's to say who put it there, it's evidence of the defendant's D. N. A. Being at the scene. But that's not the same as evidence that the defendant himself was actually at the scene. We've also had dichter in court of appeal decisions which say that if it's just if it's just the profile D. N. A. Profile of the defendant. But it's on an item easily transferrable from place to place that would not of itself be sufficient for a conviction. But in this particular case, the Court of appeal said, one had to consider not only that it was D. N. A. Found on an item easily transferrable from place to place, but one had to consider where the DNA was actually found. It was found on a cigarette roll up propped up against the frame of the front door. one also had to consider the surrounding circumstances of the burglary. This window of opportunity, opportunity for the burglar was merely 45 minutes and that added to his previous convictions for burglary and the fact that in interview, he was not able to give any sort of an account was sufficient. Said the court of appeal and the conviction was not unsafe. And they said this was not a case in which the crown was seeking to put in bad character to essentially bolster a week prosecution case because the evidence wasn't weak, it was fairly strong. So there you are if you're advising clients now about D. N. A. Found on items easily transferrable from place to place and it's just no longer sufficient to say where that probably won't even found a prima facie case. It's a bit more nuanced than that. One has to look at some details of the circumstances in which the DNA was actually found. Slide five and the case of sharks. Yet another encroach chat. Encrypted telephone evidence case, possession of such a phone said to call for appeal, indicated the level of trust placed in him by those higher up in the chain of conspiracy called for people have also said that possession of such a phone of itself can amount to reprehensible behavior in terms of an application to reduce a bad character. Whether or not such evidence should be admitted during the trial is essentially a matter for the trial judge. He or she could exclude evidence under Section 78 of pace, but of the court of appeal have said there is nothing wrong in principle with this evidence that, as we know, has come into the hands of the prosecuting authorities by virtue of the fact that the french and the dutch authorities managed to de encrypt encroach chat. I'm sure you've probably read about this criminals were Talking to one another on phones that they thought were securely encrypted, whereby their conversations would never be heard by prosecuting authorities. Well, that was all well and true until the french and the dutch managed to break the bank row chat code slide six burdens and standards of proof in a criminal trial. Well, most of the time, I'm sure would agree the burden will be upon the prosecution and must be discharged beyond a reasonable doubt or satisfied so that the court is short. Sometimes the burden will be upon the defense and if it is upon the defense, it's what we call a legal stroke, persuasive burden, it's to be discharged on the civil standard of the balance of probabilities. Statutory defenses will often place a legal or persuasive burden upon the defendant. And there were lots of statutory defenses, aren't there without lawful authority, without good cause, without a reasonable excuse. These invariably place a legal or persuasive burden upon the defense at trial to establish that lawful authority. Good calls. We used to break excuse. However, you know, it's not all statutory defenses which impose a legal persuasive burden upon the defendant. I think of the medical defense available in Section five A of the road Traffic Act 1988 concerning drug driving, that the client was taking these legitimate drugs as prescribed by their doctor or dentist. Although it's a statutory defense. Section five A three makes it quite clear that the defense merely has to be raised evidentially. In other words, there's no legal or persuasive bird upon the defendant. It's of a lower order. The defense merely having to be raised evidentially and once it's raised evidentially, the burden shifts to the prosecution to establish beyond a reasonable doubt that the defense is not available on the facts of that particular case. Sometimes called a shifting burden within a trial. And you will find exactly the same is true if someone is trying to argue the statutory defense under section 45 of the modern slavery Act 2015 namely that they were trafficked and they were effectively being used as a slave and therefore wish to avail themselves of the defense mentioned in section 45. Common law defenses, looking at the last bullet Point there one slide 6 common or defenses and a couple of classics there, judas self defense. Well, we know that these common law defenses, the defense has to be raised evidentially the burden being upon the prosecution to satisfy the court that on the facts, the defense simply isn't made out. The defendant wasn't acting under duress. The defendant wasn't effectively defending himself. Slide seven Text Messages. Oh dear. We get a case on this every year, don't we? Text messages And the latest one of course is the 2021 Court of Appeal Decision of Bed Word and the Court of Appeals said in bed Word much the same thing as they said in the early authority of twist remember that's something only falls foul of the rule against hearsay which is defined of course within section 11 five of the Criminal Justice Act 2003. If the purpose or one of the purposes of the party producing the statement is to seek to prove the truthfulness of the contents of the statement. And as the Court of Appeal said, reminding us yet again in the case of Bed Word, it is not hearsay. If the evidence is merely being reduced to show that such text messages were sent and received all to link people together by their text messages. That's important isn't it? When considering here say one has to consider that clearly on the face of it. Text messages would appear to fall foul of the rule against the admission of hearsay because text messages are evidence other than live oral testimony coming from the mouth of the witness in the witness box. And so at first blush they would appear to be here say but no text messages and other statements for that matter made out of court only for foul of the rule against the admission of hearsay. If the purpose or one of the purposes of the party seeking to reduce evidence of the statement is to seek to establish the truthfulness of the statement. Quite an important point in order to fully understand hearsay Slide eight raised, just Die. Well, I touched on this earlier, didn't I? The old body wall or body cam footage and the 999 call much in vogue evidentially at the moment and particularly relevant with all these domestic violence trials and the 999 called on a disk, the complainant who does not wish to make a written statement at all and is therefore not a witness in the proceedings themselves, albeit that particular person may have made a number of statements in their living room, corp on body cam footage. There being an application by the prosecution at trial for the officer to be able to play the body cam footage such that the statements on the footage are received in evidence raise. GST has always been an exception to the rule against the admission of hearsay evidence and the common law rule was retained by section 118 of the Criminal Justice Act of 2003 raise GST if the court accepts the statement was made by someone so emotionally overpowered by the event whereby the possibility of concoction or distortion can be disregarded. In other words, it's safe evidence. Why is it safe because someone in extremists, someone emotionally overpowered by a recent event tends to tell the truth of that recent event rather than concocting a web of lies about it. The quicker the police are there, the easier it is for the prosecution to say that the statements fall within the race. GST principle barnaby High Court decision two 1000 15 police were on the scene within six minutes. The court and the high court had no difficulty with that being raised as time the complainant had not made a formal statement admissible in criminal proceedings. She was worried about what her partner might do to herself and her child if she was a formal witness at trial and gave evidence during the trial. So she didn't even make a statement in the sense of no written statement. Her statements of course were oil statements that she made in her home room, caught on the body cam footage. There was an application for the body cam footage to be played and for her 999 called to be received as well. Think about it the entirety of the evidence against the defendant in those proceedings consistent of hearsay. But as the Supreme Court have said there is nothing wrong with a conviction based solely on hearsay so long as the crown court judge ensures that the trial has been fair. Same in the magistrate's court. If you think about it, it's the case of Horncastle and we know, don't we, that the matter was tested in the european court of human rights. In the case of Al Khawaja and Tahiri al Khawaja and Tahiri and the european court of Human rights said the same thing. That clearly it was the role of the judge always to ensure that any trial was fair. But subject to that caveat, nothing to bar a conviction based solely on hearsay evidence, slide nine body worn footage continue to. Police may not be on the scene. It's all quite some time after the incident. That doesn't necessarily mean that it will not fall within the race. Suggested principle was the maker emotionally overpowered or overcome by the event. Despite the lapse of time, I think most of us would agree that most Of the time the 99 nine called would clearly fall within the race. Just type principle, but it depends upon the state of the maker at the time of the call and the time lapse between the incident and the time of the call. All of the rest GST statements may be filmed using bodycam footage. This bodycam footage is clearly hearsay but may fall within the race. Just I exception. This bodycam footage, You may fall outside the race. GST exception in what state was the maker of these statements at the time of being caught on the body cam footage? Well, it might be necessary for the body cam footage to be played. Perhaps even before the start of the trial in order for the court to give some sort of ruling as to whether or not that evidence would be admissible. Of course, if they ruled that it's not admissible, then the prosecution might have to reconsider what other evidence they've got and they might not have enough other evidence to have a realistic prospect of a conviction. In which case they might have to take a view on their case side. 10 options available to the defense lawyer where the client simply doesn't attend for trial. Option # one, I suppose is that you can leave, you're not going to be criticized for leaving. Option number two is that you could stay but not put your client's case and you're merely staying in order to cross examine the witnesses to see whether or not those witnesses come up to proof. You can do that. You don't need your client's case for that. You can examine or challenge the circumstances in which the prosecution evidence is put. Let's take an example of I don't know driving was disqualified, it might be that a couple of officers put your client in the driver's seat. You could cross examine along the lines of well officer, let's examine the circumstances. Shall we in which you say you saw this particular person in the driver's seat. Would you agree with me that it was late at night? The lighting conditions were not great. Were the officer. Would you agree with me that you didn't have a very sustained view of who was in the driver's seat because you were in a car passing the other car in the opposite direction you were cars that were passing each other. So at the most you could only have had a short perhaps glance as to who was in the driver's seat. Would you agree with that officer? You're allowed to do that? Clearly? You're testing the evidence to see whether or not the witness comes up to proof what you couldn't do. Of course, you're not putting your client's case, but you couldn't do say what you're wrong officer. My client wasn't in the driver's seat, not if you're seeking merely to see whether or not the witnesses come up to proof. Of course, if you are in possession of a signed proof of evidence and you can infer her that the client wants the defense put to the witnesses in his absence, then you was involved in that trial as you would be if the client was actually with you and you can put his or her case in its entirety to the witnesses matter for you As I put there on slide, 10. Yeah. The real problem with putting the defense in the client's absence is that it makes it far more difficult to get a conviction set aside and a retrial Ordered under section 142 of the Magistrate Courts Act 1980 because the legal advisor will say, well before you decide whether or not it's in the interests of justice for the conviction to be set aside and for the prosecution witnesses to have to come to court to give their evidence all over again. I can tell you your worships that the defendant's case was put to those witnesses and was clearly young rejected by the court. Can you see how in those circumstances the court is probably tempted to go on to sentence and then say to you pursue your rights by way of an appeal against both conviction and sentence to the crown called if you want to see section 108 of the Magistrates Courts Act 1980, we're not going to set aside the conviction the conviction if you didn't put your case and the client has a jolly good reason as to why he failed to attend the trial. It then becomes an easier argument in the interests of justice to persuade the Magistrates to set aside the conviction and order a retrial in their court. It's just a point. It's just a thought slide 11 the halftime submission of no case to answer once the crown has closed its case. Obviously the defense have to decide tactically how are you going to proceed? seems to have three options firstly, you could make a submission of no case to answer. Secondly, you could go into a closing speech without calling the client to give evidence and without calling any defense witnesses. Of course it would be very rare for you to call defense witnesses without calling the client as well. Third option, call your evidence, Starting with the defendant C Section 79 of pace by the way, if you're going to go into a closing speech, do tell the prosecutor and that you're about to make a closing speech because the prosecutor also has a right to a closing speech and they're closing speech comes before your closing speech. It may well be they want to say a few things in their closing speech before you have yours in relation to calling evidence. The general rule, of course, is that we do start with the client. Section 79 of pace tells us, doesn't it? That if it's the client and one or more defense witnesses, the defendant shall give evidence first before the defense witnesses. Why? Well, because the defendant is in court and he's listening to what his witness or witnesses are saying and were they to give evidence before the defendant? I'm not saying he would. But the danger is of course he might be tempted to tailor his evidence when he ultimately gives it based upon the evidence already heard from his own defense witnesses. And that's why the general rule is that the defendant testifies first because his defense witnesses are outside at least I hope they're outside. They were outside earlier when I spoke to them still on the halftime submission, you must never make a submission of no case to answer likely otherwise you're just going to lose your credibility as a lawyer with the court only Ever make one if you have the basis for one because on that basis whenever you do make one, you're going to be taken that much more seriously because you're known as a lawyer who only makes a halftime submission. If there's something worth saying the court of appeal have said that you should consider making a submission of no case to answer in one of two legal situations firstly, where the prosecution have failed to establish through evidence, all of the elements of the offense charged, there must be prima facie evidence of all the elements when the crown closed their case secondly, and it's the old galbraith point, isn't it? Where there's some evidence But it is of a week and 10uous nature evidence upon which a reasonable tribunal properly directed could not safely convict. And we know, don't we under the Criminal procedure rules 20 20 that the crown have a right of response on a submission of no case to answer. It may well be that the magistrate will retire. Perhaps calling for the assistance of their legal advisor to determine whether or not a primary facial case has been made out and incidentally, there is no you can ask the magistrate why they found a case to answer, but there's no obligation upon them at that stage to give you their reasons as to why they found such a case slide 13 the halftime submission of no case to answer continued prosecution have a right of reply to the submission and may well in certain circumstances apply to have their case reopened in order to place new evidence before the court, it's going to be a rare occurrence. But there is case law to say that even though they've closed their case if they've made some sort of forensic mistake, they haven't introduced a certificate. We had a case in which the prosecutor prosecution failed to put in the speeding certificate as required under section 20 Of the Road Traffic Act 1988 and successfully applied to have the case reopened in order to reduce that piece of evidence. The high court saying that cases should always be decided on their merits and should not be decided on the forensic mistakes of lawyers so do watch out for that just because they've closed their case. They might in limited circumstances apply to have their case reopened in order to place new evidence before the court evidence that was omitted. That was crucial to their case. Once all the parties have had their say and the court will consider the submission, Magistrates will no doubt retire and called upon the assistance of their legal advisor. If required. If the application is successful, the pronouncement in court should be dismissed no case to answer. Please don't forget to apply for your defendants costs order. If you are privately funded in the trial. We know don't we that section 16 of the Prosecution of Offenses Act 1985 sets out the circumstances in which the defense are deemed to be successful and can therefore apply for a defendant's costs order. If the application is unsuccessful or you don't even make such an application, you then tactically have to consider. What are you going to do? Are you going to make a closing speech in which case do tip off the prosecutor because he or she might want to make a closing speech before yours or are you going to start putting forward The defense case? In which case you will call your client first c section 79 of pace 14 to call evidence or not to call evidence? Hmm. A dilemma sometimes isn't it? Clearly if you take the viewers, the lawyer that the client really not to give evidence, do get the client to sign your notes to the effect that it was his decision not to give evidence, otherwise you might come in for a bit of criticism if you advise him not to give evidence and he's then convicted, there is no evidential need to call evidence. If the client's defense is already before the court. For example, the defense might have been fully articulated in the police station interview and we know, don't we? The police station interview went in as an exhibit during the prosecution case. There is a need to call evidence if the defense is not already before the court and particularly so if you bear the burden in this particular case, it might be a statutory defense, in which case, of course you do bear the burden of the defendant to persuade it accord, albeit on a balance of probabilities of the reasonableness of your excuse for having something with you or lawful authority, Good calls, whatever. If the client doesn't give evidence, Do watch out for section 30 five of the Criminal Justice and Public Order Act 1990 for adverse influences may be drawn from a failure to testify or a failure to answer questions in testifying. It's clearly something you're going to have to address. If you're for the defense in your closing speech as to why the defendant did not testify. You're seeking to persuade the court not to draw adverse inferences under Section 35, there is a duty isn't there upon the defendant in cross examination to answer the questions that are put to him by the prosecutor. Unless unless of course the answers to those questions might involve future criminal proceedings being brought against him. And as we know in those circumstances, the legal advisor is under a duty to give him a warning. You are not obliged to answer that particular question where evidence is to replace before the court, the defendant shall give evidence first. He's in court and shouldn't be listening to his defense witnesses. It's always a tricky situation, isn't it? Where you as the lawyer think what will you do more harm than good if you give evidence, how well will you withstand cross examination match for the client? Ultimately it is a matter for the client, Not a matter for the lawyer. You can merely advise application may be made to call a witness out of turn. Your defense witness has been here since I don't know half past nine this morning. It's now half past two and she has to go to pick up her Children. You can apply for her to give evidence before the defendant but you do need leave of the court and they may say yes and they may say no and if they say no, it might be that once they've heard the defendant give evidence, you might be applying for the case to go part heard in order to hear the evidence from this witness who couldn't hang around today. And if they say no, you might be applying for her statement to be read in the interests of justice Section 11 41 D. Of the Criminal Justice Act 2003. And you might point out to the Magistrates that would it be considered that the defendant had had a fair trial? If they don't agree to this witness's statement being repped, of course the prosecution might oppose the reading of the statement. If the statement is read the wait to be attached to the statement contents or that's entirely a matter for the Magistrates bearing in mind the prosecution had no opportunity to cross examine the witness on the statement and most surely does not agree with the contents of the statement? It would be read would it not as hearsay Under section 1141 D. Because there was always a need to ensure that the trial is fair. What is the definition of a fair trial? But in my view the test is would an impartial observer having nothing to do with the case and that's why they're impartial have considered that the defendant had been given a fair trial if the magistrate had not given themselves an opportunity to at least consider the contents of that witness statement by way of it having been read where the defendant does give evidence clearly it's your task to ensure that they give evidence of the incident factually as they recall it examination in chief and if the witnesses, if the defendant is struggling and there's nothing to stop you putting his earlier proof to him his evidential proof which you can use as an aide memoire whilst giving evidence at trial, is then the task of the prosecution lawyer to put the case for the crown against the defendant by way of cross examination. No doubt the prosecutor will put his case to the defendant that case having been put by his own witnesses and will seek in some way or other to discredit the case as put by the defendant. You may then as a defense lawyer choose to re examine the client. Once the crown have finished their cross examination, the Magistrates themselves may ask questions if they want to at the end. Do you remember the 2-fold purpose of reexamination firstly to repair any damage that might have been caused to the client during cross examination and secondly to explore and to examine any areas that were opened up in cross examination. If you want to explore and examine them. First rule of re examination don't do it. Re examination is a bit like going into a burning building. Yeah. Go in, get out. Don't hang about slide 16. Section 1 39. Criminal Justice Act 2000 three. The section permits any person and this includes the defendant to refresh their memory whilst giving all testimony from a document made earlier by them and that might be their evidential proof. You've labeled it evidential proof. It contains merely the client's instructions concerning his defense. It's a document that he may use possibly as an aide memoire Under Section 1 3 died. Obviously you'd have to put the proof to him. He would have to confirm that he indeed made the document and signed it. It is proof and that the matters were likely to have been significantly fresher in his mind at the time of the making of the document than they are. Now witnesses should make their statements in a form which complies with section nine of the Criminal Justice Act 1967. So long as The requirements of Section 139 and met, there was nothing improper in the defendant being allowed to refresh his memory from his proof at the time of giving his evidence. In much the same way that witnesses, both for the prosecution and the defense are allowed to refresh their memory from their statements that were made earlier by them. So long as they confirm that it's their statement and that the matters were likely to have been significantly fresher or better in their minds at the time of making the statement than they are now and that's going to be true. Let's face it most of the time, no doubt the witness, prosecution or defense will have refreshed their memory from the statement prior to coming into court, but it still might be of assistance to them in remembering dates, timings, etcetera. Please do take two proofs from the client, an evidential proof which deals solely with the client's instructions in relation to the defense. Secondly, a proof dealing with antioxidants etcetera. It might be worth considering taking copies of the proof to court in order that everyone has one just in case it becomes an exhibit. Of course, if he starts reading it and the prosecution don't object, then it may well become an exhibit exhibited by the defendant himself. Don't forget what the court of appeal have said. The best evidence rule if the best evidence is contained within the statement or contained within the proof, then of course the person should be allowed to refresh their memory from that proof or statement? The giving of evidence is not a memory test, say the court of appeal Slide 18 the reading of a witness statement under section 1141 d. Section 1141 d. Of the Criminal Justice Act 2000 three for the first time permitted the court to receive a hearsay statement albeit it didn't fall with any neat statutory or common law exception which would have otherwise have allowed it to be read. It is to be used judicially see Section 1 142 for the factors to which the court is to have regard before allowing a statement in and it is not an exhaustive list under section 114 subsection to the statement. Of course may be red and we looked at an example earlier, didn't we, in which those statements of those hostile witnesses were red Pursuant to section one 141 D. A party may apply for the statement to be read and then it becomes a matter within the discretion of the court. It may be that a witness has to leave the witness I mentioned earlier who had to go to pick up her Children from school and was therefore unable to give live oral testimony of the contents of the statement. There's nothing to stop you as a party asking for the court's consent for that statement to be read Under section 1141 D no doubt the prosecution will oppose the application. But so what do your best always slide 19 Some useful things you might want to say in your closing speech. You might want to say something about the evidential value of any hearsay statements that were received. Those statements having been read. No doubt you would make the point that they are qualitatively of a lower order or a lower value than the evidence that was given by way of life or testimony. Because the evidence that was given by way of live or testimony, of course, was rendered itself subject to scrutiny or testing by way of cross examination from the parties and by way of questioning from the Magistrates. You might want to remind the court about the circumstances in which your client's character formed part of the evidence. Clearly they're not to convict him solely because they've heard about his character. His character was reduced in order to assist the Magistrates in one of the issues at trial or to assist them in their deliberation as to whether or not the defendant had a propensity to commit the very type of offense which has been the subject of today's trial. Anything to say about why the client had a no comment interview. Perhaps it was a no comment interview as a result of legal advice at the police station stage commenting upon the fact the client's case has been consistent throughout. He said the same thing upon testifying as he told the police on the evening in question and finally slide 20 carrying on with useful things to say in your closing speech. You might need to explain why your client chose not to testify in the proceedings. You might want to remind the court of the burden and standard of proof in the case. You might want to comment upon anything the prosecution witness said, which was at variance to that contained in his or her statement. Clearly, you must have examined on the point and you might wish to comment upon anything the witnesses said at variance to that that said by another prosecution witness in the proceedings. Oh, there you are. We've come to the end of the hour and I do hope you found that useful. All that really remains is for me to thank you on behalf of myself, Colline Beaumont and also on behalf of data law for watching this particular webinar. And I do hope that you've found it of interest. Thank you