Hello and a very warm welcome to this video, which is designed to be part of a series to support you to become a an accredited police station representative. I'm Matthew Hickling and I introduced myself in the first of these videos. So those of you who have been following them will already know will know me. So let's have a look at what we are going to be doing in this particular video. It's Essential Criminal Evidence part one, part one of two. And we're going to be looking at types of evidence, evidence that is used to approve approve a case. And so this video forms a part of the Essential Criminal Evidence section and this section is one of six sections that form part of the entire compilation for those of you who have been following it so far, you'll remember that we had one video which is the P. S. Sorry a scheme which is what you need to know. And then we had six videos on Essential Criminal Law and now we move to this one which is Essential Criminal Evidence. There are two videos, as I mentioned, this is the first one, part one and we'll be looking at evidence that's used to prove a case or looking at evidence of criminal evidence in general. Um and then we'll have a look at admission and exclusion of evidence which is more relevant I suppose to court proceedings. But we do need to have an understanding of it at the police station at least at least we need to understand the basics, we're also having a look at confession evidence which is a type of hearsay evidence, and you may have already to the screen and thought, well, here's the evidence in Part two. Well, yes, what I've tried to do is to break them down, break the topic down, if you like, into segments, which are not only easily digestible, but also relevant for police station work. So it's not as if I'm trying to sort of train everybody to be a high rights advocate in court or whatever, we're specifically focused on the police station. So one of the things we're going to be looking at in this video is the so called inferences, whatever that means, and we are going to be making sure that if we try to explain that particular area of the criminal evidence legislation, we do it without using the word inferences. And so in part to the second video in this particular section. The other video, I should say in this section, we'll look at identification evidence, hearsay evidence, as I say, confession evidence is a sort of genus of hearsay evidence. So there's a crossover between the two videos, but I'm hoping that as we go along, it will all make complete sense to you will also have a little look at bad character again, in Part Two, it's something that probably is much more relevant to court, but it's not something that if it's raised by the police at the police station, we can necessarily just brush off, we kind of need at least to know the basics of the law so that when we do brush it off, which we probably will, we know why and we also know the legal basis for it. Um and then in the at the end of the next video of the other video in this section, I want to look at assessing the strength of the evidence which is going to be critical for your portfolio cases because that's where your portfolio cases sort of come into proper focus and it's not something that you can avoid or duck. And so we kind of need to know how we're going to be doing that. So first of all let's make sure that we're, we know where we are with this one. We've got some learning objectives for this part one video. I'm not going to read them out to you. I never do, but please do pause the video and have a look at them if you wish to. We've also got some intended learning outcomes which enable you after you've done the video and possibly the consolidation questions at the end of it. You can look back and say what has that equipped me, has it done what it is intended to do? And this is basically what I'm setting out to better equip you to do. So let's move on rapidly then with this part one, the contents as I set out before these four elements. And so let's have a look at element number one, which is the evidence used to prove a case and and and look at different types of evidence, if you like. Now the law of evidence, criminal and civil here, criminal of course is extensive. And I need to stress that we are only looking at the essentials. We could do a whole one year course on criminal evidence, um certainly could do one on on evidence, legal evidence. And so it can be complicated. This is not the whole story. My intention here is to make sure that you are more than sufficiently equipped to go to the police station and hold your own with a good sound knowledge of the essentials of criminal evidence. So this will be more than enough for you to carry with you at the police station. I've been at the police station as I said to you before, not only as a police officer and a custody sergeant and the duty inspector. I've also been there as a solicitor many many times. So I do know how much you need to know at the police station. The law of evidence is also constantly evolving. The law is always playing catch up, never more so than in recent times. The pace of change of technology and goodness knows what. And so we now have sort of evidence from. So sh media where people witness a crime and then they'll go trawling through their spend hours online trying to to find something relevant and then and then, you know, is that going to be admissible? Well, when the law was written, when it was created, I hadn't really evolved and developed the sort of access to media that that we have now in the internet and all the rest of it. Um And so yeah, the courts are having to play catch up the whole time. Um and I have to say more often than not sort of allowing evidence rather than around disallowing it. So not sort of sitting back and being fussy and saying, no, no, no, no, we must stick to the law were actually being pragmatic and saying, well, you know, society is moving on so quickly that we need to somehow accommodate it. And so It is evolving very quickly. And there's also as I put there giving live evidence by video link, you know from other countries and things like that. So the courts are having to grapple with all of this um and so please do make sure that you keep up to date with it. We're recording this in January 2023. So if you are years ahead, then please do be aware that that's when this recording was made. So the law of criminal evidence is derived from both statute and the common law and we'll be looking at both, there's no need in this in the exam or in your critical incidents test or indeed at the police station for you to go and cite and quote sections and act numbers and say whether or not this is the statute of the common law. So let's not worry too much about that side of things. Let's just make sure we get the law right, which is what you need to do at all times both with clients and also sitting the PSR S assessments. So let's start off with the presumption of innocence. And it's often said that everyone, excuse me, is innocent until proven guilty. No, no, that's not right. It's everyone is presumed innocent. So it's quite different. Um, they may be guilty, but we presume them to be innocent unless they are proved. Unless not until unless they are proved to be guilty. It's a little qualified these days. And I think that is also partly in consequence of the sort of widespread use of media. Um, it's also, you know, text messages and and all of this in a social media platform. Um, and I'm sure you've seen many times, you know, somebody makes an allegation against somebody else. Um, and a lot of people who are non not lawyers, you know, have you heard, have you heard someone say, Oh yeah, I think that's what it says anyway. We don't do that as lawyers. We say, well, what's the evidence, show me what evidence there is to support this. Um, because otherwise, as as I, you know, I put on on your slide there very often, it is all so and so against whom this allegation has been made, as, you know, yet to deny them, you know, or they haven't said they haven't denied it, and you sort of think, is that what we're supposed to do these days, run around denying everything. And, well, the answer in the Criminal Law is no evidence is needed to prove a specific allegation and to prove the elements of a crime. So, you will find that there is a lot of mind set, if you like, in the public domain, which is very much along the lines of, you know, you know, so and so that's been alleged, and they've not denied it. So, well, you know, draw your own conclusions from that. This is not how it's supposed to work, it's not how it does work in Criminal Law, hence the presumption of innocence. But of course, this thinking, if you like, this mindset can can come up at the police station and it can be expressed by others, including police officers. You know, well, you know, you're you're here to sort of get your client to go no comment, and that's because he's guilty of you can't deny it. Um, and actually, it's not true, it's not, life is a little bit more complicated than that. And certainly if I went around denying every allegation that's ever been made against me. Well, probably spend my whole life doing it. It's not true I know it, I'm fine about that. Move on. So this is if you like, the presumption of innocence, and it's a starting point for any case, and and and if you you can practice this pretty much every day, look at media, look at articles and and and see what's being said about who and all that sort of thing and say, well, where's the evidence of that? What specifically is being alleged? And that's how we think as lawyers and it does you good. Um, not only to think like that as a lawyer, but it certainly is the right thing and the right approach at the police station. So we're going to have a look at some categories of evidence, real documentary, oral expert and Presumptions, because they are all relevant. So, let's just take these in turn first and go through each one briefly, just so that we know what each category of evidence is firstly, then real evidence. This is something tangible. Um it's like, like a knife or drugs. It's a maybe a seized item or a crime scene sample, like, you know, some blood or some material that's been scraped off the surface or whatever. Broken glass or anything along those lines that is sort of bagged, if you like, you know, on the television, you bag that up. So it's something that's actually put into a bag and secured, and it should be produced in court. We say produced by the person who created the witness who discovered it. So, it could be the police officer who says that I actually, you know, discovered this at the scene. Or it could be a witness who is producing it from, you know, whatever from their own knowledge. But there has to be sort of an origination of it if or if you like. And that witness should then be the producing witness. And very often for the purpose of referencing the seized items, the real evidence, This will be labeled up with the witnesses initials. So, if it were made, for example, it would be mh 01, mh 02. If there were more than one exhibit that I was producing in these particular proceedings. And so the important thing sometimes is that if if the exhibit sort of remains in my hands and nothing is done with it and then I produce it at court is not a problem. Yes, that's the thing that I that's the exhibit that I actually picked up, put it in a bag, it went in the store room, I've taken it out here we are in court. That's it. It gets a little bit more complicated if that exhibit is going to change hands. So, if, for example, another police officer is going to sort of bring it out and show it to somebody who then maybe identifies it as something or maybe if it's some form of sample that's being analyzed forensically, that is when we always look at and the police will always, I think try to secure continuity of evidence and so you ought to be able to sort of follow the life of an exhibit and make sure that you know at all times who has handled it and and and if it sort of moved it's been taken out of the bag, then there is a full witness record of what happened to it. And certainly with forensic samples, we want to make sure that the forensic lab is actually reporting on analyzing the sample that was obtained from the scene. Real evidence can also be in the form of CCTV recordings, um, and mobile phone recordings which are in the cloud as we say. So there has to be a different mechanism to identify them digitally as to where they are. That the same principles apply. You still need to have some sort of security and continuity of the exhibit, but you have to do it in different ways and B W V. S body worn video. So a police officer may have been equipped with a body wash video, switch it on and then the police officer would be able to produce it as the witness and say yes, I was at the scene and I activated my body worn video and I can see that that is the video that I took using the camera and so it would be if you like produced by that witness, just a word about visual and audio visual recordings is they only offer one perspective and only for a limited time. And even though we sort of treat them as a, as Gospel if you like for what they actually did record and they're very, very useful to actually, certainly for the police extremely useful. Um, probably more so when suspects and defendants just don't realize that they are being audio visually recorded because sometimes you've got them shouting from the, from the background and record before they realize that you're on camera. So they can be very, very helpful and certainly very accurate for recording what took place every period of time. But they also offer a singular perspective and therefore might not give the whole story. Um, I'm sure I don't need to expand on that. So that's the first one real evidence and the second one we're going to look at is documentary evidence. And again here there's a little bit of crossover. So, um, notebook entries, then the police attend scene and make notes. They might, they might make it on, on a tablet or they might make it in writing. However it may it may be, but they will want to record a memory if you like of an incident. It could go straight into a statement of some description, but very often there that there's sort of an initial note of it now. Um, years ago I'm talking 20 plus years ago. Um, these were quite critical courts used to say, well, when did you make the note officer? And we'll go in a couple of days later. Sorry, that's not actually a contemporaneous note. The law changed completely in 2004. The Criminal Justice Act 2003, which I have referred to here on the slide there um enabled a police officer to say, well look, I I made that note either an hour later, four hours later, a day later, whatever it may be. Um But the point is that at the time I made that note, my recollection of those events would have been much better than it is now. So far better for us to seek to either allow me to refresh my memory from my notes or to use my notes. Because what the law actually says is that, you know, a police officer can say any of those things can say, look, I remember it and that is my note of what took place, which, which doesn't really help me because I have a good recollection or um an officer might say, well I have a less than accurate or clear recollection of it now. But my note I can use to help me and therefore that's helping me put things into place. And an officer can even say, do you know what, I don't really remember what happened much at all. But if that's what it says in my note, then that's what happened and all of these things are acceptable. And the court can then make its own judgment as to how much reliance to place on on the note, which of course goes to what we call weight of evidence. So some documentary evidence that just going to my second bullet point on the tile here can be produced by a person who didn't create it. Um and these are essentially relating to business records. So things like a bank statement or business records of usually their accounting records and things like that, and also public records, things like birth certificates, marriage certificates and death certificates and things like that. You can get someone who actually works there to say I didn't create that. I have, I cannot give any direct evidence of how accurate a record that is, but that's what the record says and therefore I would like to produce it. It is a type of hearsay evidence, but it is admissible. And the principle of its admissibility is the fact that the person who made the record firstly would be independent, objective, would have no reason to falsify it or or create as an accurate record of it all. And secondly, the fact that people, someone would be under a duty, they've been paid to work there and therefore, you know, they would have been under a duty to make as accurate a record as possible for the purpose. And so these principles apply to documentary evidence that can also be produced number three out of five, then let's have a look at oral evidence is one you're probably most familiar with here, which is people giving evidence from the witness box and um they will, if they are prosecution witnesses, they will have made a statement clearly. Um somebody whos reviewing the evidence in the file would need to have a look at what it is that they are expected to say and the Crown prosecution service will look at all of the real evidence, documentary evidence, statement, moral evidence and make an assessment as to whether someone should be charged etcetera. Prosecution statements are referred to as section nine statements. There's no need for you to particularly know this. It comes from section nine of the Criminal Justice Act 1967. And just it was a mechanism that was introduced to enable witness evidence to be adduced without the witness appearing in person, provided that the defendant accepted the evidence or didn't wish to dispute it. So, for example, if I would say a police officer whose only evidence was, I attended the scene assisted, my colleague arrested the suspect, took the suspect to the police station and custody suite, booked them into custody. I then had no further involvement with this matter. The defendant might just say, well, yeah, I've done, done arguing with that. Um So there's no need for that police officer to come and give evidence. I'm actually, I'm not disputing that evidence that officers evidence can be allowed to stand as it is in the witness statement. And what section nine does is introduced as a mechanism for that to take place. And there's a caption at the top of the statement and it says along the lines of this statement consisting of 234 pages, whatever it may be. Each signed by me is true to the best of my knowledge and belief and I make it knowing that if it is tendered in evidence, I should be liable to prosecution if I have willfully stated in anything which I know to be false or do not believe to be true. You can check that. I do keep saying, I'm encouraging you always to learn things. It's really, really useful to be able just to um, to know a few of these things off the top. You had not that one particularly. It's just that I've done it so many times taken so many witness statements as a police officer that it sort of sticks in your head after a while. And these statements then from the prosecution are served on the defendant and they, this is what the prosecution says these, this is the evidence that we are going to seek to rely on in order to prove the prosecution against you. And so as I say, the defendant can accept it or say no, I don't accept that evidence. I want that witness to come and give evidence because I don't accept what is in the statement. There are other provisions which will look at in our second video briefly. Um, and so if a witness is dead or can't attend court, things like that. So there are some other provisions where if the defendant disputes the evidence, the statement could in theory still be allowed to stand. But for the purpose of the police station, we we basically focus a little bit more on has the person given a statement at all? Are they willing to support a prosecution of things like that? But at least we kind of know what's going on here. Um, limited research suggests that statements can be inaccurate. The there's a good reason for this, which is that if you imagine a police officer taking a statement from a witness. Um, the idea is not to record a verbatim transcript of everything the witness says, the officer will want to get the witness to focus on that, which is relevant for the purpose of the statement. And it may be that the way that the witness expresses things is ambiguous or potentially misleading. And so it needs to be rephrased. Um, and that is why um, quite often the, the witness statement is not a completely accurate reflection of what the witness will say. This can be a problem for prosecuting advocate. So I've done training with, um, and prosecution advocate has to have a strategy ready, um, and anticipate that a witness will depart from the exact wording of their statement, which can be difficult in court if your opponent has had a copy of the statement and sort of looking at it saying, well, that's what she says in the statement, but that's not what you just said from the witness box. And so as a prosecuting advocate, you need to have some strategies ready and at the police station, if you if you are shown or given a copy of a statement, which you probably wouldn't be, but you might be on occasions, you have to look at it with a little bit of skepticism and think, well, all right, but that's not actually a sort of verbatim transcript of what the person said. It's been taken for a purpose for a reason. So that's prosecution statements which are taken in what we call section nine form. Um, a defense witness will and a defendant will make a proof of evidence. It's not referred to as a statement as such because it's got no Section nine caption. It is in the sort of generically a statement, But the reason that we refer to them as proof of evidence is because they are not formally served. They can be just as inaccurate as a Section nine statement because again, a solicitor sitting down with with an accused client is not sitting down writing everything the client says, it's actually making a record for a purpose. Um, and so these are private documents. Whatever statements are taken either from the defendant as approval or taken from other defense witnesses and these are not disclosed to the prosecution and the same goes at the police station for a record of what the client has actually told you. In other words you take a record of the client's instructions. Save to the extent that you and the client decides that it isn't going to be the client's best interests to disclose some form of written statement. Now there is a provision in Pace code C. It's an X. D. Two code C. And it is at the moment anyway um for a suspect at the police station to make a sort of formal written statement under caution which would be taken either taken by a police officer or written by the suspect. It was never a common thing and neither is it these days. Um, something that you will generally come across as well knowing that provision is there what's more common I say in the comments and what what what what what what happens more often is the is the making of a voluntary written statement sometimes referred to by the police? I think originally by the police as a prepared statement, I'm not really quite sure why everybody sort of jumped on that particular moniker for that. The statement, the word prepared for me is a bit pejorative. It doesn't it doesn't sort of suggest that it's that I don't know, there's something you know, you made a prepared statement and the courts have even jumped onto that one and call it a pre prepared statement or the suspect at the police station made a pre prepared statement. You think, you know it's a statement, this is just covering what the accused wants to express um without the need for answering any further questions. So limited account if you like of what happened, which I think any sort of statement is. Anyway, so and this is these are all reflections if you like of what a witness might do if they were to go into the witness box and give oral evidence in court. So these are, if you like um sometimes slightly less than accurate indications as it were of what oral evidence would be given or should be given number four or five, then let's have a look at expert evidence. Um Now any witness, any eyewitness can give evidence of what they saw. So I saw a man standing in the doorway. I saw a lorry traveling down the road. Um and I saw a woman in the passenger seat and she was looking down towards the football and any witness in addition to giving evidence of exactly sort of the bare facts of what they saw can also give what's called evidence of facts perceived in other words the witness can say, I saw the man standing in the door, He looked really angry. Now that's not saying he was angry is saying to me, he looked really angry. The lorry was traveling down the road, it appeared to me to be traveling very fast. What I'm not trying to do is to give any sort of specific estimate of the speed and then you can question me about my experience of being a pedestrian or being a driver or whatever you like um and make your own assessment of my evidence, but it's evidence of what I perceived to be the case. Or you can say I got the impression that the lady in the passenger seat was looking down to a football was looking at her mobile phone. Again, I'm not saying definitively that that's what was happening, but that's the impression I got. If you think about it, people do have a particular look, don't they? They're looking at the mobile phone and I feel sure that even though I very often not been able to see the phone, I've been pretty confident that the person is actually looking down at a text message. But sadly on occasions when they've been driving. So um that is evidence that any eyewitness can give, what they actually saw together with evidence of facts perceived an expert evidence can then go beyond that and go one stage further and give opinion evidence and that's why experts and need an expert doesn't make a statement. An expert makes a report. So we refer to an expert report not a statement. And that is where an expert can say I've examined those paint samples, examined those paint samples and in my opinion they came from the same vehicle. So this is going beyond facts perceived of say that injury was made by a serrated knife. Or in my opinion it was made by a knife identical to this one here that I've been given. And then the expert would compile a report giving reasons why those conclusions had been reached conclusions. Those tentative conclusions had been reached. Experts can also give evidence of um matches. Be careful with the word match when it comes to um excuse me fingerprints and D. N. A. Um fingerprints and D. N. A. Sample testing is uh is almost invariably a statistical exercise. And and this is to say well this fingerprint in my opinion would only have this statistical probability of coming from a different person bearing in mind that at a crime scene your you may not have a complete fingerprint. So you might only have a partial print. And therefore the experts sort of got to work with whatever they're given DNA can be the same. Although it can be quite definitive. But you also have to be very careful with D. N. A. Evidence that the more miniscule minute the sample the biological sample, the greater danger there is of what they called secondary transfer or it coming from the person in some other way. But again it is a statistical opinion that the chances of this coming from somebody who wasn't the defendant or maybe a close member of the defendant's family or something like that. Or maybe a sibling is whatever the statistical chances. And remember that If that's you know one in 10 million or something. Well there's 70 million people in the country. So in the United Kingdom so that was probably the seven people who would have produced a match. Alright? Not likely but certainly it's the nature of expert evidence. And finally then just for these five statutory provisions, one is the presumption of innocence relating to a child under 10 in England and Wales. It's what we call the age of criminal responsibility until your aged 10 you're incapable of committing crime. Don't like income tax as they say in glutton Um in Scotland it's 12 years old, you'd think it would be the same across the UK But it's not in the Republic of Ireland is different. I quite know what the ages are. But in every country in Europe has a different age as well because their criminal justice systems are constructed differently. Um there's also a statutory provision for inferences with regard to handling stolen goods. You remember when we looked at this offense it was knowing or believing dishonestly etcetera. And so It might be that a person would say well I didn't know these goods were stolen and well hold on a minute we have evidence here, that you were in found in possession of goods that were stolen within the last 12 months, we didn't prosecute you then, because we we we we thought that we we we took your word for it, but we're certainly going to question it now. And so evidence of possession of stolen goods within the last 12 can be adduced to suggest that a person did in fact know that goods were stolen. And the same applies to evidence of a conviction for theft or handling in the last five years. You got to give notice of intention to call the um the the evidence that I'm not sure why I put that in there. But so these things can actually be be relevant, sort of evidential provisions by law, and there's also a common law provision of recent possession. So if you are found to be in possession of stolen goods um, soon after the goods were, can be shown to be actually stolen. Um you know, this recent possession recent has no definition. The courts have repeatedly said, it's common sense. So what, what recent means, but what it suggests is that absent some credible explanation from the defendant, and says it puts the onus, if you like, on the defendant to um to to say something, a court may conclude that the defendant knew that goods were stolen and or stole them themselves by theft, robbery, or burglary. And so these are sort of principles, both a statute or a moment ago and common law. If you get an examination question on this, the thing to look out for is how the question is expressed. Now, I've given you some examples here. I don't mean just talk you through them. The first one here. Damien punched victor without any warning. This tells you in the question what happened that Damien punched victor without any warning? You see, I used D and V all the time with these. It could, however, say the police say that your client punched the complainant without any warning. That's quite different. This is now asking you to question on what basis on what evidential basis do the police say that your client punched the complainant without any warning. So don't read the question and think, oh, that's what happened. Then. The question is telling you question this. Ask yourself, ask, ask you know, answer it in a way that makes it clear that you understand that this may not be capable of being proved or where is the evidence for it? The question might go on and give you the evidence for that. In which case, you can assess the quality and likely accuracy of that evidence. It could even say, here it is, alleged that your client punched the victim without any morning. Well, that's flagging it up for us and saying, well, that's the allegation, but we're not necessarily saying that it's either proved or that it's capable of proof. So another just different types of question here in a similar way. Let's just apply them in a different context. It could say the question because the goods were stolen from a burglary two weeks ago. And if you get this in an examination question, then you can take it as read that the goods were stolen from a burglary two weeks ago. But if the question phrases itself a little bit more as it would be at the police station, the police say that the goods were stolen from a burglary two weeks ago. Well, this is putting you in that position at the police station. The police will say, well, yeah, there's the goods were stolen from a burglary two weeks ago. That's your cue to say, All right, okay, Well, so where was the burglary? And and where's what was the report of that burglary? And what was the recovery? And who's identified them? And have they been identified? Because even with, you know, sample three here on the tile, the warehouse manager has identified the goods as those stolen from his warehouse two weeks ago. Well, I'm still asking, how, how have you identified them? Are they identical? Is it is it a collection of of things that that that that we're missing. Is it everything that was stolen from the warehouse two weeks ago, or just a few items? Have they got serial numbers. And so what we do as lawyers, is we unless it is clear we don't accept anything as red we question question, question, what's the evidence? Where's the evidence? And that's sort of where I started this video and how we're going to continue as well because that's what thinking like a lawyer is all about. So what we do when we've got an allegation against a client at the police station as we consider the elements of every alleged offense. We've looked to defense that the 10 example offenses we looked at in detail and you'll remember that there were elements there. So with a shoplifter for example, it is likely there's going to be no argument that it is property, it belongs to another. But what's the where's the evidence of dishonesty? Well very often it will be that the person was looking around furtively. Um that was a word I was told to get into any store detective statement when when I was in the police. So or looking around, looking around suspiciously or something like that um appropriate. You know, this is the assumption of the rights of ownership as you'll remember from from a little session on the Criminal Law and theft. On what basis are you saying that this person has actually assumed the rights of unknown and they could be that they were sort of secreted in a pocket or the, you know, the hood of a baby buggy out whatever normal people do and what's the evidence of intent to permit deprive, which is generally speaking, acquired where a person goes through the checkout and or leaves the store. So you're thinking that they're not looking as though they're coming back. And so all of these things are proved by showing what a person did and how they were behaving, even though it might be as I told you when, when we covered the offense that the offense was committed, as soon as the person picked it up, looked around in their pocket, we then wait to see what else they did in order to prove that that's what they did at that time. So what we've just covered, we've got just a couple more things to cover before we move on. But that's what we've had a look at, real evidence, documentary evidence, oral evidence, expert evidence, and also having a look briefly at Presumptions. I also, just before we move on to our next part of this video is just have a mention of supporting evidence. So corroborating evidence is evidence that supports other evidence that would go together um tends to confirm or make more certain other evidence. So it could be that witness, a saw a man in a red t shirt, assault the victim, witness a didn't get a good look at the man's face, but can give us a general description, but the main thing was the red t shirt. It could be then the witness be saw the accused at the scene perhaps just before or just after. You know wearing a red t shirt and that would be sort of corroborating evidence if you like. Of and it could be that somebody else again saw the same thing, there's also circumstantial evidence which supports other evidence. So it could be that somebody witness says I saw the man go inside the house a few seconds later I heard a scream from inside the house. This doesn't sort of give direct evidence of what happened inside, but circumstantial evidence. Um It could be that could say that from a mobile phone company. Our records show that the mobile device that relates to this number. Um It was in these geographic locations during that time. Um It doesn't necessarily prove that the person was there and or that they had their mobile phone with them, but it is circumstantial evidence that certainly seems to suggest that the person, it was in fact there at that time. Um and finding evidence of motive, I just mentioned this because it does come up at the police station, why would a person commit the crime? Now it's not usually relevant for the purpose of prosecuting somebody in court. Um So somebody's motive is not going to someone just because somebody had a motive to steal or to assault or whatever. It's not going to be evidence that is going to show on the facts whether or not this person did steal or assault, but it may be relevant to officers and detectives who are investigating crime as you probably know if you've watched any of the sort of who done it tv programs then you'll know that motive is actually important to try to identify who it might have been. But after that that's when you start looking for the facts. Um It also may be relevant to sentencing as as sentencing council cause culpability. Um and so it may be relevant to both of those, but it's not particularly relevant for the purpose of proving that somebody did something. So now I just want to move on and have a look at some categories of evidence and this is going to be. Now the admission and exclusion of evidence. So admitting evidence at trial, we're looking at a criminal trial here, We're looking at court here. Um and so it's not, it's not directly at the police station, but it is still relevant for our purpose and I sort of bring you to a general conclusion in a couple of slides time. So to be admissible at a person's trial, evidence needs to be factually relevant. So relevant to what happened, it needs to be legally relevant. So probative and capable of proving something that the prosecution is trying to prove, like dishonesty appropriate, etcetera. It also should be capable of being tested. So if the defendant says, I don't accept that. I don't, I don't know. No, no, no, I don't think that's right. It didn't, it didn't happen like that. It should be capable of being cross examined. But there are some exceptions to that at trial, where we've already talked about one where evidence might be admitted without the defendant being able to cross examine it, even though the defendant doesn't accept it. So, a court must rule evidence to be admissible and then admit it. And if evidence is admissible and or admitted, the court may nonetheless excluded. Now, the words may here. So, whether evidence goes in or not is a matter of law, whether it's excluded or not is a matter of discretion. And so a court may exclude it. If it would be unfair on the defendant to admit the evidence so unlawfully obtained evidence. For example, if your client had an unlawful search carried out, police barged their way into the house and start turning over things and and and then find some stolen goods or whatever it might be, this would have been unlawful search. But the point is, that doesn't make it inadmissible, because if it's factually relevant and legally relevant and capable of being tested, or which, which it would be all of those things, then it would be on the face of it admissible. So, a court then has to say, well, ought we to exclude it, And section 78 of pace says that evidence should be excluded. If it would have such an adverse effect on the proceedings that the court should not admit it. And as a trial lawyer, I tend to think of it as a probative value versus prejudicial effect. So is it more probative than prejudicial? But it's likely, isn't it? Not If the police have barged into your your client's house and discovered stolen goods, I can't think that the court is going to say why that's not going in in other jurisdictions, you know, not in England and Wales in other countries, possibly, but not in ours. And so if you find out the police station, that evidence is being adduced by the police are thinking, but that was all unlawfully obtained, then it's it's discretionary on the part of the court to exclude it. And you can't assume that that's what a court will do. Um So generally, then, I'm sorry, I'm sorry, I just flicked on there. So, as a general point, then you accept evidence at the police station. I think that probably is going to be um is going to be admissible and whatever you're you're is disclosed, then you ask yourself what is going to be done with it, how it proves the case. So, as far as evidence goes, generally, anyone who can understand the question may give evidence on oath given by very young Children who don't even need to take the oath or affirm all that a court needs to be satisfied about is that the witness feels bound to tell the truth, and that feeling of being bound to tell the truth can be achieved in a number of ways. It could be that somebody says, well, yes, I'll take an oath on religious text or somebody can say, I'm happy to affirm, or it might be that a young child, it's not doing any of those, but of course will be satisfied that um the the whole court is able to assess with the likely truthfulness. And so even in those cases where you've got a child who's, who's made a complaint or made a witness statement or something like this, again, don't disregard that. Because anybody who can understand the question may give evidence. There are a couple of um, sort of provisions relating to spouses and civil partners um about whether or not they give evidence against each other. We saw it remember in conspiracy. If the conspiracy is just those two, then, well, it's not actually a conspiracy because it's just just the two of them between spouses. Um, but here, um, a a spouse is both competent and comparable to give evidence against the other spouse if it is to do with an assault on that particular spouse or assault on a child in the, in the household. Um, And so generally speaking, for our purposes at the police station, they will also be both competent and compatible, which means you can serve a witness, someone's on them. So you come and give evidence, evidence can also be called to rebut assertions that the defendant has made. So a suspect might say something of the police station that is untrue. And it could be that the police, the prosecution want to adduce evidence to rebut that in order to show that the suspect has in fact been untruthful when interviewed. And what happened is that if you remember, it's got to be factually relevant your honor, that the defendant has made it relevant by saying something that is now being uh being put right as they were. And when, if the defendant might also say something initially and then say something different, um, and say something different to court and basically say, well look, you know, I wasn't telling the truth then, but I am telling the truth now. There are mechanisms in court to to deal with that. The detail of court proceedings is beyond our escape. And I've only mentioned and touched upon these topics. I've not tried to equip you to be a high rights advocate. But the point is at the police station and at least needs some sort of working knowledge of how this all works. And the general rule as I said, treat all evidence at the police station that's disclosed as being at least potentially admissible. My message here is don't think just because that evidence is from a six year old child or just because that evidence is from somebody's partner or space or you know, just because if that evidence is, it is whatever it may be, don't rule it out, just unless it is absolutely clear, which I don't think it ever has been for me at the police station. So you treat everything that is given to you as being potentially admissible. And I have read in some portfolios p sort of saying, well, you know, that probably wouldn't be admissible because because it was unlawfully obtained, it was unlawful search everything. No, you know, yes, I can see that your client is saying that, you know, the police grabbed him in the street and bind him up against the wall and started frisking him. And yes, that doesn't look like a lawful search at all. But um this is what they found in his pocket, which and therefore it's looking, I can't think that the court would exercise its discretion to exclude that because it's quite probative of the fact that your client was carrying a knife at the time, which might actually connect him with an incident that took place in a little bit earlier in the evening. And so general rule treat it all as being at least potentially admissible. And be careful about coming to any conclusion that evidence would not be allowed at court. That's the overview, that's the summary for the purpose of the police station. So um confession evidence, then um let's move on and have a look at that. As I said, it's it's a sort of um part of hearsay um and it is important I think to at the police station to understand what confession evidence is. It's all to do with voluntary statements of significant statements. Um They all pretty much mean the same thing and there's anything wholly or partly adverse to the person who made it. Um as what we call in call Patrice to incorporate tree means that that means you're dropping yourself in it. Exculpatory means that you're saying it wasn't me. Um And if you think about it, if as a police officer you go to a suspect's house and the suspect comes to the door and you say, well I'm I'm making inquiries about this and the suspects as well. I'm sorry I don't have no idea what you're talking about. The office is not going to say oh let's make a quick note of that then because obviously I need to need to record that. But you're not going to say that you're you're only going to going to to record it if the person says yeah okay. All right. Yeah. It was me, Hang on a minute, let me make a note of that little confession that you just made. Um And so it is anything wholly or partly and that's sometimes quite significant, partly adverse to the person who made it. Um It doesn't matter that it's made to a person in authority or not. So it can be made to another witness. So another witness can give evidence of somebody having, um, uh, sort of made confessions or admissions to them. Um, and it made whether it made in words or otherwise. So we sometimes talk about confessions and admissions and some practitioners use the word confession to mean the suspect, the accused confessed the entirety of the, of the crime alleged. Um, and and and and maybe say that an admission is admission to a certain element of it, but not the entire thing. For me, it's probably a bit confusing. So I prefer just to treat anything wholly or partly adverse to the person who made it as being confession evidence and understand how if you like, understand why it has that quality and sometimes which part of the statement is confession and which isn't. Well look at that in a second here. So voluntary statements then yes, it was me. I did it. Okay, slam dunk. Not a problem. As long as the person is understanding exactly what it is that's alleged against them. Some people sometimes say yes, I did it and assume that they're guilty when sometimes they're not. I've had clients say to me, well, I suppose that means I'm guilty then if I did that doesn't hold on. Not necessarily. But if you made that statement to the police, it would be available to be used against you. Um, So this can come up in the critical instance test where your client sort of, you know, has a defense, but is convinced that they are in fact guilty. You may need to deal with that in the critical instance test another example I was there, but it wasn't me. Well, okay, let's break that down then. I was their confession because actually that is partly adverse to the maker to admit that they were there, but it wasn't me, it wasn't me that did it. Well, okay, that's a denial. So this is if you like a mixed statement because it is starts off with a confession or admission as some might call it. Um, and then goes on to be a denial. Um, and that's what we do, as long as we look at what's alleged, Has it been accurately recorded? When was it recorded? Who recorded it etcetera. Does the client accept that? That's what the client said because a lot of these, even when they're written down here in practice, the notes that have been made of what your client allegedly said is unlikely to be accurate as a police officer. I have made many records of what I remember that the person said when I arrested them or whatever. But I'm making this note maybe, you know, a good hour later and I have to be honest and say this is my best recollection of what the person said at the time. But unless I've got it recorded on body worn video or something, that's all it's ever going to be. It's not going to be a necessarily a completely accurate account, nor could any of us particularly remember exactly what was said by somebody. So here's another one I've been expecting you officer. Well it's looking just like a sort of a very general statement, but would it be at least partly adverse to the maker to make that statement? Yes. And so that would also fall into the category of confession evidence. I was only carry it in case I was attacked. Well there you go. This is somebody presumably with an offensive weapon in the street and this is not a defense. So this is somebody who thinks that they are saying something exculpatory. Whereas an actual fact what they're saying is something in carpentry because they didn't know the law. It was self defense. Self defense is one of those um, rather odd things that most people would say self defense. If somebody asserts self defense, it is a, it is a complete statement of a defense. It's not, it's 90% confession. If you think about it. If somebody says it was self defense, then what they're saying is I committed the assault, I occasioned those injuries. The only thing that I'm disputing is that actually it was what I did was in self defense. So as lawyers, we go back and say, well hold on a minute, can it be proved that you committed that assault that occasioned those injuries and so I'm not going to be advising you, we're not going to think it's your best interests to say something with self defense. If I've come to the conclusion that it can't be proved that you committed the assault because this is what you're going to be admitting to. This is what you're gonna be confessing to is saying that you committed the assault. And so we will look at this in more detail when we talk about taking instructions and giving advice and so we sort of break this down a little bit into more sort of manageable proportions. But for now it is it's worth just remembering that this confession evidence is anything that's wholly or partly adverse to the person who made it. The hearsay element. Is this what I put at the bottom of the slide here, which is now imagine somebody else repeating these. So this is a police officer saying that when he went to the door the accused came to the door and said yes, it was me, I did it. So this would be a police officer giving evidence. That that's what the defendant said in order to prove the truth of the statement. So not this is not just seeking to prove that that's what the defendant said. It's seeking to prove that the defendant actually did it. And that's where we we look in a bit more detail in our next video, what is hearsay evidence and we keep it contained so that actually we keep everything relevant to the police station, We have an understanding um of of of what this is all about. The second statement there I was there. But it wasn't me. If somebody else is giving evidence that a person said that this would be capable of being adduced as evidence that the person was there because it is confession evidence. So what happens when something is either wholly or partly adverse to the person who made it, it becomes admissible as hearsay. We'll do it a little bit more in the next video. But for the purpose of confession evidence than these are the sorts of things that a police officer would make a note of because they are, as you say in corp a tree, they are wholly or partly adverse to the person who made it and what the officer should do. As soon as practicable, no good if you're fighting somebody as as soon as reasonably practicable after the event is to make a note of it. And significant statements then that are made of this, of this nature that are made by a person made in the street. You made when you go and arrest them, they should be recorded as soon as practicable and if possible. Therefore contemporaneously because if there's no reason why you shouldn't actually just stop and make a note of it there and then well that's what you should do. So it's not always practicable to do that. But whenever you make a note, the making of the note should be timed and dated, the making of the statement should be timed and dated so that you can assess how long after the alleged making of the statement the note was made and where practicable the suspect and any witness should be invited to sign it. So um the police officer should make a note and say well look I've made a note of what you just said, can you please have a look at that? And is that a true record of what you just said? And there's no need for a person to have a solicitor present because they're having questions put to them. This is a voluntary statement. Significant statement. It's not made in response to a question. What we find in practice of course is that some of these statements do smell very deeply of being a response to a question. And that should not be the case. These voluntary or significant statements are things that a suspect has said without prompting. Any refusal to sign the record should be recorded and witnessed uh and should be put to the suspect at the start of an interview under caution. So um and that's in code C. 11.4 C. So any significant statement whether it's been signed and verified or not, it should be disclosed to you if you would go to the police station to represent somebody and should be put to the suspect at the police station interview under caution. Um, the thing about confession evidence, which is anything wholly or partly adverse to the person who made it. If the defendant submits that the confession was or may have been obtained by oppression or in consequence of anything said or done, which was likely to render the confession unreliable. Then the burden shifts back to the prosecution to prove that it was not obtained by oppression or was not obtaining consequence of anything said or done, which was likely to render it unreliable and something said or done that would be likely to render it unreliable. Could be giving the consequences of not answering that question, answering or not answering. So you might say, well, you know, I mean, you can sit there being a police officer now you've guessed, aren't you? You can sit there going no comment if you want to and you might think that's a clever idea, but if you don't start answering my questions, we're going to have to go and arrest your sister. Now this is prohibited question because it is giving to the person the consequences of answering or not answering in as part of the question is prohibited. Um, and so it may also fall into the category, Let's go back a slide of basically saying to the person with the question what the consequences would be of anything said or done. Um, you know, the consequence if you like of answering or not answering. There are limited exceptions. So if a suspect refuses to provide uh an adequate name and address that it may be that you either give us a name and address that that we can verify or you know you're not going to get bail for this. So you're going to be going to court in the morning and that's acceptable. Um refusal to provide a specimen. So if someone's going through the road traffic in toxic lies a procedure or being required to provide a specimen for a class a drug test having been arrested for a trigger offense and they've been authorized by an inspector. Um So it might be said, look you either provide this specimen or you could put an offense. Um Or it could be that with an intimate body sample. For example, it could be say, well you if you refuse to provide the specimen then evidence can be given at court of your refusal to provide the specimen is not gonna be taken by force. But um evidence may be given of that court, you of your refusal. Um It's also there's an exception. If the if the suspect themselves say look okay. Um tell me what would happen then if I if I answer if I don't answer the question. So again I've not come across that in practice but it is possible for a suspect to ask what the consequences would be in which case that would be an exception. Um Whatever happens in court, any facts or data or information gathered as a result of a confession or admission will still be admissible. So even if the confession was obtained by oppression and and ultimately is is not admitted admitted into evidence because the prosecution cannot prove that it wasn't obtained by a press looking, listening to the transcripts, looking like that was obtained by oppression. Even if that ultimately is the case, if if the confession has resulted in further inquiries being made on the basis of it and perhaps other stolen goods being recovered, for example, then that evidence is not going to be tainted so that evidence will be um admissible. Um, and that includes the way in which the defendant speaks, writes expresses themselves as a famous case about the defendant having written something. Um, and then they got the defendant to to write something and that evidence was admissible um of of the way in which the defendant even even spelled a word. And so, um whatever whatever the, the consequence might be, even if these things are done other than within the codes of practice or under under oppression, than any evidence gathered in consequence of them will nonetheless be admissible and just a brief word on the evidence of a co accused sometimes read in portfolios. People say, well, you know, I wasn't worried about the co what co accused would say because the evidence of a co accused is inadmissible against another co accused. No, no, no, stop, stop, stop the rule is that the prosecution, whether our co defendants in the in the dark, the prosecution is not able to call one of those co defendants to give evidence against the other co defendant. That's the rule, there's nothing to stop defendant number one going voluntarily into the witness box and giving evidence under oath and saying, well, it wasn't me, it was him. Um, Also one defendant can adduce evidence of the other defendant confessing. Um, but there is a rule that if there are two accused and the first accused says yes, it's a fair cop, it was me plead guilty and please guilty. Their cases dealt with very quickly. Um, and so the other ones saying, no, it wasn't me, I wasn't involved, we didn't do it together and I was nothing to do with it. Um, and so they are now heading towards trial. While the prosecution is not able to adduce evidence of the first defendants guilty play, there's nothing to stop, in theory that first accused who's now pleaded guilty, coming to court and giving evidence against their what was their co accused. So the rule is actually quite qualified and probably just needs to be understood in principle at the police station. And all I'm trying to avoid is any of you sort of coming up with this, um remarks say, well, I know I wasn't worried about what the co accused because it's not admissible as evidence, it potentially it could be, although the prosecution is not able to call them. So we've had a look at the evidence to prove a case, admission and exclusion confession evidence. I've tried to keep it light and I know there have been a few little sort of rabbit holes that we've we've had to just go down a little bit um, that relate to court procedures and admission, exclusion of evidence. But these things I think are essential. It's essential to have a basic understanding of these at the police station because then you won't sort of make assumptions or go the wrong way with them. As I say, evidence gets complicated. Um, and all of these things, you know, we could do what we could do many more hours on there with lots and lots of examples. So what I'm trying to do is to keep it relevant for the police station and none more so than this wretched concept of inferences, which is what we're going to look at. Now, We're going to look at five ways in which inferences appear. And we're going to look at the first three principally says special warnings. There's two types of special warning, not special caution. A special warning. Don't get that wrong in your portfolios. Again, r
PSRAS - What you need to know