The Institute of Legal Executives

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1 5 June 2007 LAW OF EVIDENCE SUBJECT 28 The Institute of Legal Executives LEVEL 6 PROFESSIONAL HIGHER DIPLOMA IN LAW LAW OF EVIDENCE Time allowed: 3 hours Each question carries a total of 25 marks Answer FOUR only of the following EIGHT questions. This paper is divided into two sections. You MUST attempt at least ONE question from Section A and at least ONE question from Section B. Full reasoning must be shown in answers a yes or no answer will earn no marks. Authorities and decided cases should be cited where appropriate. Candidates may use in the examination their own unmarked copy of the designated statute book: Blackstone s Statutes on Evidence, 9 th edition, by Huxley and O Connell, Oxford University Press. Invigilators may carry out spot checks. 1. Andrew has been convicted of:- SECTION A (i) burglary on the 26 th October 2006; an offence of going equipped for burglary on the 1 st November 2006 under the Implements of Crime Act 2006 (a hypothetical statute). In summing up to the jury, having otherwise given accurate directions on the law, the Judge says the following amongst other things:- Now on all this it is for the prosecution to prove their case. I am not going into the meaning of words like burden and standard of proof because that is all the same thing. On the burglary charge you know his defence was that he was out with his friend five miles away at the time and if that is established to your satisfaction, that is the end of the matter and you must acquit him, although you might think it strange that he did not call his friend as a witness to provide corroboration You may recall that I permitted the prosecution to prove that Andrew had been convicted of several previous burglaries in 1999 and 2000 and that he used the same unusual method of entry. What you make of that other evidence of those previous crimes is up to you and you must assess their importance. Bear in mind of course that because someone has twenty previous convictions it does not mean he is guilty of every burglary that happens, but it is obviously important Can I remind you that the fact that it accidentally came out that Andrew has a conviction for cruelty to animals was something that should not have been put before you and you must put that completely out of your mind and not be prejudiced against him. Page 1 of 5

2 With regard to the offence of going equipped for burglary a week after the first alleged offence, as I said earlier section 3 of the statute says possession of any of the scheduled implements is evidence of intention to commit burglary and it shall be for the accused to prove innocent intention. As you know a crow bar and large screwdriver were found in the boot of Andrew s car when he was arrested. The statute clearly means that he has to prove that they were planted there by someone else as he claimed and whether he has called enough evidence about that to satisfy you beyond reasonable doubt is a matter for you. Discuss the above extracts from the direction, indicating what matters appear to arise which might give grounds for appeal in relation either to the direction or to anything else that appears to have happened in the course of the trial. 2. Barbara and Chloe are two colleagues who work as saleswomen for Garretts, a large department store. They are charged with having systematically defrauded their employer over several months by keying into the till on their counter smaller amounts than customers tendered for goods, and keeping the price differences. They are also believed to have had several untraced accomplices who assisted them by receiving goods for which they paid a substantial under-value. Barbara has several previous convictions for public order offences and an assault and also convictions for benefit fraud and abstracting electricity by by-passing the meter at her house. Chloe has no convictions. Consider the following items of evidence in terms of admissibility and consequences:- (a) Barbara suggests that the manageress of her department, Diane, is incompetent and keeps very poor stock records and it may well be the case that nobody stole any goods at all. Diane has given evidence for the prosecution and been cross examined to this effect on Barbara s behalf. (6 marks) (b) Indicate what your response would be if Diane had not been called as a prosecution witness. (3 marks) (c) Another store assistant, Erica, who is called for the prosecution and who says that Barbara and Chloe are always laughing and joking that they had a nice little earner on the side, herself has a substantial criminal record for offences of violence. Chloe wishes to cross examine her about this criminal record. (6 marks) (d) Barbara suggests in evidence that Chloe has money troubles because her husband has recently lost his high earning job, putting the family finances under pressure to support their substantial mortgage and credit card repayments. She insists that she is not saying that Chloe did commit the offences. (e) In final summing up the Judge tells the jury that as far as is known Chloe has no criminal record and that should be taken into account in any way the jury think appropriate. Page 2 of 5

3 3. The Drug Squad of Exminster Police is keeping observation on a house owned by Frank, who they believe to be a major drugs dealer. The observation lasts six days and eight policeman are involved working in shifts in teams of two or three. In the course of the observation, which is conducted from the bedroom of a nearby house, they believe that they have seen clear evidence of more than sixty people coming to the house and appearing to hand over money in exchange for small wraps of white paper. Consider the following matters of evidence:- (a) The police were alerted to Frank s activities by a statement given to them by George, a police informant. Are the police obliged to disclose George s statement? (4 marks) (b) Frank s solicitors demand to know the location of the observation post so that they can test the accuracy of the claimed sightings. (4 marks) (c) There is a written log of the various comings and goings and the identity, where it is known, of the various visitors:- (i) Is this log admissible as a document? Whatever your response to (i), can Inspector Harry, who led the investigation team, refresh his memory from it when giving evidence from the witness box and subject to what conditions, if any, and what is the effect of the document? (7 marks) (d) Part of the observation was recorded on video camera and with a telephoto lens the police have been able to see into the bedroom of Frank s property where it appears Frank keeps important things in a cupboard by the bed, to which he keeps coming and going. In the course of filming Frank going to and from this cupboard they also watch, for their own amusement, Frank having sexual relations with his girlfriend. The police propose to edit this off the tape along with the crude running commentary given by the police observers and then to use the rest of the tape. They wonder if it is proper to edit the tape and whether there are any human rights implications. (e) When the house is raided and the cupboard by the bed searched, the police find over 15,000 in it. Frank refuses to answer when asked to account for the source of this money. Page 3 of 5

4 4. A car driven by Ian is in collision with one driven by John at a crossroads. Ian is seriously injured and has instructed his solicitors to bring an action for compensation. They have the following items of evidence:- (a) A statement from Keith who says that the accident was caused by John driving too fast into the junction. Keith, however, also says that he does not wish to take time off work to attend the trial and will say that he has forgotten everything if he is forced to attend. (b) A statement from Lynne, a child of 13, of average intelligence, who had a clear view of the accident. She blames John, but since the accident Lynne has emigrated with her parents to Hong Kong. (c) After the incident the police came to the scene and breathalysed John who is marginally over the blood/alcohol limit and was subsequently convicted in the Exminster Magistrates Court of a drink driving offence relating to the incident. (d) At the scene John was heard by a passerby, Mark, to say I am so sorry; I just took my eye off the road to adjust the radio, I hope he s not badly hurt. (e) A lengthy medical report from Norman, an orthopaedic surgeon who is responsible for the care of Ian and has carried out a number of operations on his shattered leg. John s insurance company object to the use of Norman s report because they believe that as the treating doctor he will not be independent. Discuss each of the above pieces of evidence, indicating whether they can or cannot be used and any procedural requirements that there are in respect of each of them. (Total: 25 Marks) SECTION B 5. (a) If the law on the so called right to silence at one time leaned too far in favour of the suspect, the balance has now been unfairly reversed in favour of the prosecution. Discuss. (15 marks) (b) Explain the nature and effect of the so called Lucas direction relating to lies told by or on behalf of the accused. (10 marks) Page 4 of 5

5 6. Explain any five of the following:- (i) Section 77 of the Police and Criminal Evidence Act (iii) (iv) (v) Res ipsa loquitur. The uses of DNA profiling. Judicial notice in those cases where it is proper for the Judge to refer to external sources. Without prejudice correspondence. (vi) Section 13 of the Civil Evidence Act (vii) Special measures directions. 7. The chief and most beneficial intended effect of the substantial review of criminal hearsay under the Criminal Justice Act 2003 was to be a re-examination of the nature of hearsay in itself, together with the abolition of a number of obsolete exceptions and the re-classification into simple and clearly understood categories of the types of hearsay which, because of one or other factor, were especially reliable and thus should become admissible. Sadly, the drafting of the Act may have created as many problems as it intended to solve and in parts at least it is something of a muddle. Discuss. 8. Critically consider the provisions of section 78 of the Police and Criminal Evidence Act 1984 as it has been interpreted by the courts. Your answer should deal with:- (i) (iii) Evidence obtained by alleged entrapment. Evidence obtained by alleged illegal search and seizure. The way in which section 78 has been used to supplement the law on confessions in general considerations of unfairness The Institute of Legal Executives Page 5 of 5