Companion Website

Police Law - Ninth Edition

Chapter 7 - The Law of Evidence

Chapter 7 - The Law of Evidence

Admissibility of hearsay evidence: the basic provisions p 210

After points (i) to (ix) insert on p 211 -

However, in determining whether to admit hearsay evidence, although a trial judge must give consideration to all of these nine points, he is not obliged to reach a conclusion in respect of all of them. He should reach a conclusion having given consideration to all of those points and assessed their significance. [R v Taylor (2006) Times, 7 February]

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Evidence of accused's bad character p 231

Where the prosecution seek to adduce evidence of an accused's bad character, by means of previous convictions to establish his propensity to commit offences of the type charged consideration must be given to whether the convictions established such a propensity; whether that propensity made it more likely that he committed the offence; and whether it would be unjust to rely on the convictions; and (in any event) lead to unfairness if they were admitted. [R v Hanson & Ors (2005) Times, 24 March]

Where evidence of an accused's bad character has been admitted as a result of his attack upon the character of another person, it can be used, if relevant, to establish a propensity on the part of the accused to commit offences of the type with which he is charged. [R v Highton & Ors (2005) Times, 9 August]

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Exclusion of Unfair Evidence p 235

[Added September 2006]

The Court of Appeal has held that where the defence challenge the intention of a prosecutor to put before the jury evidence of a defendant's reaction or lack of reaction to a statement made in his presence, the first question for the trial judge was whether that reaction was potentially relevant. Where it is alleged that the defendant by his conduct adopted the statement, three questions had to be answered.

1. Could a jury properly directed conclude that the defendant adopted the statement in question?
2. If so, was the matter of sufficient relevance to justify the introduction in evidence?
3. If so, would the admission of the evidence have such an adverse effect on the fairness of the proceedings that the judge ought not to admit it?
   [R v Osborne (2005) Times, 17 November]

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[Added September 2006] Advance Disclosure of Evidence p 236 - 240

This text totally replaces the existing text in consequence of provisions of the CJA 2003 and a revised Code of Practice coming into force.

The Criminal Procedure and Investigations Act 1996 (CPIA 1996) contains provisions relating to the advance disclosure of information which apply where:

1. a person charged with a summary offence pleads not guilty;
2. a person of 18 or over charged with an either way offence, in respect of which a court proceeds to summary trial, pleads not guilty;
3. a person under 18 charged with an indictable offence, in respect of which a court proceeds to summary trial, pleads not guilty.

The provisions also apply where a person is charged with an indictable offence and is committed or sent for trial, or proceedings are transferred for trial, to the Crown Court.

Initial duty of prosecutor to disclose The prosecutor must disclose to the accused previously undisclosed prosecution material which might reasonably be considered capable of undermining the prosecution case, or of assisting the case for the accused. At the same time, he must give the accused a document specifying any non-sensitive prosecution material which has not been disclosed to the accused.

Compulsory disclosure by the accused Where cases are to be tried on indictment, and the prosecutor complies (or purports to comply) with his initial duty of disclosure and provided the accused has received documents containing the prosecution's case, the accused is required to provide the prosecutor with a defence statement containing specified information concerning his defence. Where there are other accused, and the court so orders, the accused must also give a defence statement to each other accused specified by the court. A defence statement may be supplied by the accused's solicitor. It must set out the nature of the defence including any particular defences which are to be relied upon; matters of fact which are disputed and why the are disputed; and an indicating any point of law (including any point as to the admissibility of evidence or an abuse of process) which he wishes to take and any authority upon which he intends to rely. Any defence statement which includes an alibi must give the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, or as many of those details as are known to the accused and any other information in his possession which may assist in identifying or finding any such witness where details mentioned above are not known to the accused at that time. Evidence in support of an alibi is evidence tending to show that by reason of the presence of the accused at a particular place or area at a particular time, he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission. The Criminal Justice Act 2003 empowers the Secretary of State to make regulations concerning the details of the matters to be included in defence statements.

Voluntary disclosure by the accused Where the case is to be tried summarily, and the prosecutor complies (or purports to comply) with his initial duty of disclosure, the accused or his solicitor may give a defence statement to the prosecutor during the relevant period. If he does so, he must also give the statement to the court.

Updated disclosure by the accused The provisions described in this paragraph are not in force at the time of writing. Where the accused or his solicitor has given a defence statement, he must during the relevant period give to the prosecutor and the court (and any co-accused if the court so orders) an updated defence statement or a written statement that he has no changes to make to his defence statement. An accused or his solicitor must also give the court and the prosecutor notification of his intention to call witnesses (including experts) together with their identity or details which might lead to their identification. Changes must be notified. The provisions concerning witnesses and experts are not in force at the time of writing.

Where it appears to a judge at a pre-trial hearing that an accused has failed to comply with these provisions and those relating to compulsory disclosure by the accused so that there is a possibility of comment being made, or inferences drawn, he must warn the accused.

Continuing duty of disclosure by the prosecutor After the prosecutor has complied (or purported to comply) with his initial duty of disclosure, the prosecutor remains under a continuing duty until the time of acquittal, conviction or a decision not to proceed with the case, to keep under review whether there is any prosecution material which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the accused's case. If there is, the prosecution must disclose it as soon as reasonably practicable.

Where the accused makes a compulsory or voluntary disclosure or an updated disclosure, as a result of which the prosecutor is required by the above provision to make any disclosure, or further disclosure, the prosecutor must do so within the relevant period.

Application by accused for further disclosure Following compliance (or purported compliance) by the prosecutor with the provision just mentioned, or a failure by the prosecutor to comply with a duty (under that provision) to disclose, the accused may apply to the court for the disclosure of material which he reasonably believes is required to be disclosed to him but has not been.

Protected material such as photographs or pseudo-photographs of victims of sexual offences, or reports of medical examinations are 'protected material' within the terms of the Sexual Offences (Protected Material) Act 1997. The provisions are not yet in force and after a period of nine years, must be considered to be unlikely to be implemented. Should they be brought into force, note will be made of this on the website.

Inferences where there are faults in disclosure by accused Where an accused

1. fails to give a defence statement, or
2. gives one out of time, or
3. is required to give an up-dated defence statement or a written statement indicating that there is no change but fails to do so, or
4. gives such a statement out of time, or
5. puts forward inconsistent defences in his defence statement, or
6. puts forward at his trial a defence which differs from that set out in a defence statement, puts forward an undisclosed alibi, or calls a witness to support an alibi about whom he made no disclosure in his defence statement,

the court, or any other party may make such comment as appears appropriate. In such circumstances, the court or jury may draw such inferences as appear proper in deciding whether the accused is guilty of the offence concerned.

Time limits The Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 1997 require disclosure by the accused within 14 days after disclosure by the prosecutor. That period may be extended by the court, on the application of the accused, if the court is satisfied that the accused could not reasonably have acted within that period. There is no limit upon such an extension, or further extensions. Where such a period expires on a bank holiday or at a weekend, it is extended so as to expire on the next day which is not such a day.

The Regulations do not prescribe a particular period of time in relation to disclosure by the prosecution. However, CPIA 1996, s 13 requires such disclosure as soon as is reasonably practicable in the particular circumstances described in the section.

Non-disclosure where disclosure not in public interest Information need not be disclosed by the prosecutor to the extent that the court, on an application by the prosecutor, concludes it is not in the public interest to disclose it and orders accordingly. Nor should it be disclosed if its disclosure is prohibited under the Regulation of Investigatory Powers Act 2000.

Police procedure

Police procedure is controlled by the revised "Criminal Procedure and Investigations Act 1996: Code of Practice under Part II'. The Code was revised in consequence of revisions made to CIPA 1996 by the CJA 2003. Most of these provisions are in force at the time of writing. In summary:

The officer in charge of an investigation

The officer in charge of an investigation is the police officer involved in the conduct of a criminal investigation. All investigators are responsible for the recording and retention of materials and this includes negative material resulting from the interview of persons who could give no positive evidence. This officer must make such material available to the disclosure officer (as to whom see below). While the officer in charge of an investigation may delegate tasks to other investigators, he remains responsible for ensuring that the duties relating to disclosure are properly carried out. All reasonable enquiries, whether pointing towards or away from a suspect must be investigated. Where material is held on a computer, the investigating officer must decide which material it is reasonable to inquire into.

Where an officer in charge of an investigation believes that other persons may be in possession of relevant material he should ask the disclosure officer to invite those persons to retain the material in case a request for disclosure is received. The disclosure officer should inform the prosecutor that those persons have the material. There is no requirement to make speculative inquiries, There must be some reason to believe that the persons concerned have relevant material.

Material which may be relevant to a criminal investigation but is not recorded must be recorded in a durable or retrievable form. Information must be recorded at the time at which it is obtained or as soon as is practicable thereafter. There is no requirement to take a statement where it would not otherwise be taken. The investigator has a duty to retain material obtained in a criminal investigation which may be relevant to the investigation. Where material which previously has been examined but not retained becomes relevant, the officer in charge of an investigation must take steps to obtain it or ensure that it is retained. The duty to retain material includes -

1. crime reports of all descriptions;
2. custody records;
3. records derived from tapes or telephone messages;
4. final versions of witness statements (and draft versions if they differ) together with exhibits retained;
5. interview records in any form with witnesses, potential witnesses or suspects;
6. communications between police and experts (eg forensic scientists);
7. records of first descriptions of suspects; and
8. material casting doubt upon the reliability of a witness.

In addition, the duty to retain material which may be relevant to the investigation includes in particular the duty to retain material which may satisfy the test for prosecution disclosure, such as information provided by the accused which indicates an explanation for the offence with which he is charged; and material casting doubt on the reliability of a confession or a prosecution witness. Such material must be given to the prosecutor.

All such material which may be relevant to the investigation must be retained until a decision has been taken whether to institute proceedings against a person for an offence. If proceedings are instituted the material must be retained until the proceedings result in conviction or acquittal or a decision not to proceed has been taken. Where there is a conviction, material must be retained until the person is released from custody, or in other circumstances, six months from the date of conviction. If a convicted person is released from custody within six months of conviction the material must be retained until the six months has elapsed. Where an appeal is lodged, material must be retained until the appeal is determined.

The disclosure officer

The disclosure officer is the person responsible for examining material retained by the police during an investigation; revealing material to the prosecutor during the investigation and any criminal proceedings resulting from it, and certifying that he has done this; and disclosure of material to the accused at the request of the prosecutor. In any criminal investigation, one or more deputy disclosure officers may be appointed to assist the disclosure officer, and such a deputy may perform any of the above functions of the disclosure officer.

The functions of the disclosure officer may be carried out by the investigator or officer in charge of the case. Indeed, the functions of all three roles may be carried out by one person. Where this is not done there must be full consultation between both officers. The disclosure officer is the link between the investigators and the Crown Prosecution Service and is responsible for providing the material for "primary disclosure' and performing any other tasks required by the prosecutor. He must ensure, by liaison with the officer in charge of the case where that is a different person, that all material is made available for examination.

The disclosure officer, the officer in charge of an investigation, or an investigator may seek advice from the prosecutor concerning which items are relevant to the investigation. Material which may be so relevant which has been retained in accordance with the Code, and which the disclosure officer believes will not form a part of the prosecution case must be listed on a schedule. There must also be a list on a schedule of material which the disclosure officer does not believe to be sensitive. Any material which is believed to be sensitive must be listed on a schedule of sensitive material or, in exceptional circumstances, it may be revealed to the prosecutor separately. If there is no sensitive material this must be recorded by the disclosure officer on a schedule of sensitive material. Sensitive material is material the disclosure of which, the disclosure officer believes, would give rise to a real risk of serious prejudice to an important public interest. Examples of sensitive material include -

1. material relating to national security;
2. material received from the intelligence and security agencies;
3. material relating to intelligence from foreign sources which reveals sensitive intelligence gathering methods;
4. material given in confidence;
5. material relating to the identity or activities of informants, or undercover police officers, or witnesses, or other persons supplying information to the police who may be in danger if their identities are revealed;
6. material revealing the location of any premises or other place used for police surveillance, or the identity of any person allowing a police officer to use them for surveillance;
7. material revealing, either directly or indirectly, techniques and methods relied upon by a police officer in the course of a criminal investigation, for example, covert surveillance techniques, or other methods of detecting crime;
8. material the disclosure of which might facilitate the commission of other offences or hinder the prevention and detection of crime;
9. material upon the strength of which search warrants were obtained;
10. material containing details of persons taking part in identification parades;
11. material supplied to an investigator during a criminal investigation which has been generated by an official of a body concerned with the regulation or supervision of bodies corporate or of persons engaged in financial activities, or which has been generated by a person retained by such a body;
12. material supplied to an investigator during a criminal investigation which relates to a child or young person and which has been generated by a local authority social services department, an Area Child Protection Committee or other party contacted by an investigator during an investigation; or
13. material relating to the private life of a witness.

In exceptional circumstances, where an investigating officer considers the material is such that revelation by means of a schedule entry is inappropriate (and this will apply only where compromising the material would be likely to lead directly to the loss of life, or directly threaten national security) the existence of the material may be revealed to the prosecutor separately.

The above list of examples of sensitive material illustrates the difficulties which arise following the provisions of a general duty to disclose material gained within an investigation.

In relation to all material, the disclosure officer must ensure that the appropriate schedule is prepared where

1. the accused is charged with an offence which is triable only on indictment;
2. the accused is charged with an offence triable either way, and it is considered either that the case is likely to be tried on indictment or that the accused is likely to plead not guilty at summary trial;
3. the accused is charged with a summary offence, and it is considered that he is likely to plead not guilty.

In the case of either way or summary offences a schedule may not be necessary if the offence is admitted, or if it was witnessed by a police officer and the person concerned has not denied it. Where it is believed that an accused will plead guilty at a summary trial, a schedule need not be prepared in advance. However, if, contrary to this belief, there is a not guilty plea at a summary trial, or if the offence is to be tried on indictment, the disclosure officer must ensure that a schedule is prepared as soon as reasonably practicable thereafter.

All items must be listed separately (provided that it is practicable to do so) and numbered.

The disclosure officer must give the schedules to the prosecutor at the same time as he gives the file containing the material for the prosecution case (or as soon as possible after a decision concerning mode of trial or plea), drawing attention to retained material which may meet the criteria for prosecution disclosure. Where material is in a form other than in writing, it should be given to the prosecutor in a form agreed between the disclosure officer and the prosecutor.

Where at the time of the preparation of the schedule of non-sensitive material to the prosecutor, the disclosure officer does not know with certainty the material which will form a part of the prosecution case, but these matters are subsequently determined, the disclosure officer must where necessary provide an amended schedule listing additional material which may be relevant to the investigation but does not form part of the case against the accused, which is not already listed in the schedule and which is not believed to be sensitive.

The CIPA 1996, s 7A imposes a continuing duty upon the prosecutor for the duration of criminal proceedings against the accused to disclose material which might reasonably be considered to undermine the case for the prosecution, or which might assist the accused. After a defence statement has been given, the disclosure officer must look again at the material retained and must bring any material which might have this effect to the attention of the prosecutor.

The disclosure officer must certify that to the best of his knowledge and belief all relevant material which has been retained and made available to him has been revealed to the prosecutor. Further certification must follow subsequent developments.

If material has not already been copied to the prosecutor, but he requests its disclosure to the accused on the grounds that it satisfies the criteria for disclosure or a court has ordered its disclosure, the disclosure officer must disclose it to the accused. If material has been copied to the prosecutor and it is so disclosed, it is a matter for agreement as to who should make the disclosure. Disclosure by the disclosure officer must be made by the provision of a copy or an opportunity to inspect it. Where a request is made for the provision of a copy of inspected material it must be given by the disclosure officer unless he considers that it is not practicable to do so (eg because the material consists of an object which cannot be copied or because the volume of material is too great), or where it is not desirable (eg where the material is a statement by a child witness in relation to a sexual offence). Where information is recorded other than in writing, it is for the disclosure officer to decide whether it should be given in its original form or by means of a transcript certified as a true record.

If a court concludes that an item of sensitive material satisfied the prosecution disclosure test and that the interests of the defence outweigh the public interest in withholding disclosure, the material must be disclosed if the case is to proceed. The court, however, may in such circumstances direct that parts of the material be blanked out, or that the documents may be summarised, or that the prosecutor may make an admission concerning the substance of the material under the CJA 1967, s 10.

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Offences against Administration of Justice p 241

Perjury

Delete the words - 'All of these offences are arrestable offences.'

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Common factors in relation to both offences p 245

Police powers

Delete - 'Both offences are arrestable offences.

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Where the proceedings are other than those connected with an offence p 245

Intimidation

Delete 'arrestable' in first line.

Harming witnesses

Delete 'arrestable' in first line.