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Circumstantial evidence

Circumstantial evidence is widely misunderstood.  Many people cannot understand how a case can be advanced without primary evidence of wrongdoing.

To illustrate this, we can use two examples relating to burglary.

Burglary can be committed in quite a few different ways, but the most common allegation is that a person entered a building as a trespasser and stole something that did not belong to them.

circumstantial evidence

Scenario 1:

David breaks into a home.  He is seen by a neighbour who calls the police. When the police arrive they arrest David inside the house, he has jewellery in his bag and was intent on stealing more valuables.

This is a classic case of burglary, with direct evidence of David being in the property and having stolen something.

Scenario 2:

A neighbour hears a house alarm and goes to investigate. Upon seeing a man, David, acting suspiciously further down the street.  The neighbour apprehends the man. When the police arrive, they discover that David has jewellery which is traced back to a local house that has been burgled.

In this case, there is no direct evidence that David entered the property, which is a vital element of the offence of burglary. However, his presence in the vicinity and possession of the stolen property (referred to as ‘recent possession’ in law) is strong circumstantial evidence of David having entered the property. How otherwise did he come into possession of the jewellery?  There may be other reasons, but that will be something for David to explain when interviewed by the police).

In law, circumstantial evidence can be explained in this way:

“A circumstantial case is one which depends for its cogency on the unlikelihood of coincidence: circumstantial evidence works by cumulatively, in geometrical progression, eliminating other possibilities”.

The prosecution seeks to prove separate events and circumstances which can be explained rationally only by the guilt of the defendant.

Those circumstances can include opportunity, proximity to the critical events, communications between participants, scientific evidence and motive.

The subsequent conduct of the defendant may also furnish evidence of guilt, for example evidence of flight, fabrication or suppression of evidence, telling lies or unexplained possession of recently stolen property.

The question for the jury is whether the facts as they find them to be drive them to the conclusion, so that they are sure, that the defendant is guilty (McGreevy v DPP [1973] 1 WLR 276).

Some degree of caution must however be exercised. It has been held that circumstantial evidence must always be:

 “…narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. …It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”

(Teper [1952] UKPC 15).

Teper and McGreevy were considered in Kelly [2015] EWCA Crim 817 in which Pitchford LJ said:

“The risk of injustice that a circumstantial evidence direction is designed to confront is that (1) speculation might become a substitute for the drawing of a sure inference of guilt and (2) the jury will neglect to take account of evidence that, if accepted, tends to diminish or even to exclude the inference of guilt.

However, as the House of Lords explained in McGreevy, circumstantial evidence does not fall into any special category that requires a special direction as to the burden and standard of proof. The ultimate question for the jury is the same whether the evidence is direct or indirect: Has the prosecution proved upon all the evidence so that the jury is sure that the defendant is guilty? It is the task of the trial judge to consider how best to assist the jury to reach a true verdict according to the evidence.”

Conclusion

As can be seen from the above analysis, circumstantial evidence can be powerful and compelling evidence against a person accused of criminal activity, but it must always be analysed with the utmost care.

As experts in criminal law, we are acutely aware of the dangers of circumstantial evidence and take care to ensure its relevance is appropriately understood and not overestimated.

Instruct an expert in criminal law

Seeking legal advice at the earliest opportunity will allow us to provide advice to you about how the evidence in a case fits together.

If you are arrested or know that the police wish to speak to you about any criminal allegation make sure you insist on your right to free and independent legal advice.

The advantages of such early advice legal advice can be found here.

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.

Legal aid may well be available to fund your defence at court.

We have offices across the East Midlands and will happily travel across the country to provide representation for all football related offences.

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VHS Fletchers offices across the East Midlands

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Representations made to CPS in sex dolls case

Freddie Sail trainee solicitor
Trainee solicitor and Crown Court litigator Freddie Sail

Crown Court Litigator and trainee solicitor Freddie Sail recently prepared a case for trial at Nottingham Crown Court for a client who faced two allegations of importing what were said to be child-like sex dolls into the UK.

The case shows that often written advocacy can be as important as what is said in court.

A gap in the law on child-like sex dolls?

There is an apparent gap in the law in relation to such items.  For example, it is not illegal to simply possess a child-like sex doll.  As a result, the prosecution choose to bring proceedings under section 50(3) Customs and Excise Management Act 1979 where the item has been brought into the country.

This states, simply, that it is an offence for a person to import any goods contrary to any prohibition with the intention to evade that prohibition.

The prohibition that catches child-like sex dolls is under section 42  Customs Consolidation Act 1876 which states:

“The goods enumerated and described in the following table of prohibitions and restrictions inwards are hereby prohibited to be imported or brought into the United Kingdom.”

The ‘table of prohibition’ includes:

“Indecent or obscene prints, paintings, photographs, books, cards, lithographic or other engravings, or any other indecent or obscene articles.”

You can read more about this aspect of the law here.

New prosecution guidance on child-like sex dolls

sex dollsEarlier this year, new guidance was issued about the evidence that would be needed to bring a successful prosecution and broader public interest consideration.  You can read more about this here.

Freddie saw that the guidance had been issued.  He took the opportunity to review his client’s case.  This was to see whether steps should be taken to ask the prosecution to look again at whether his client should be prosecuted.

His client denied from the outset the two crucial elements of the offence.  Fundamentally, he denied that the doll was representative of a child.  He had bought it as depicting an adult.  Secondly, he was unaware of any prohibition relating to the importation of child-like sex dolls in any event.

Written representations to the CPS

Having looked at the case together with the guidance Freddie wrote a persuasive letter to the Crown Prosecution Service, asking a lawyer to review the evidence.

In brief, he stressed the following factors:

  • the prosecution was not in line with the new guidance
  • ‘expert’ evidence in this case should not be relied upon
  • there were sufficient features of the doll to mean that it was not ‘unquestionably’ a portrayal of a child
  • a lack of evidence suggesting our client was aware of any prohibition
  • the advertising of the items as ‘adult sexy dolls’

This communication with the prosecution was referred to by Freddie on the trial readiness form.

sex doll

No evidence offered following the review

Freddie’s representation were successful.  The prosecution accepted that in the light of the new guidance the case should not be pursued to trial.  The matter was listed quickly and no evidence was offered.

Freddie’s client was overjoyed when the not guilty verdicts were announced.

Contact a criminal law specialist

If you are arrested or know that the police wish to speak to you about any offending arising out of the importation of a child-like sex doll or any other item make sure you insist on your right to free and independent legal advice.  The courts are always likely to take such offences seriously upon conviction.

The advantages of such early advice legal advice can be found here.

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.

Legal aid may well be available to fund your defence at court.

We have offices across the East Midlands and will happily travel across the country to provide representation for all football related offences.

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VHS Fletchers offices across the East Midlands

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How does a court decide on the admissibility of confessions?

The 2015 documentary series Making a Murderer follows the story of two men from Wisconsin who were convicted of sexually assaulting and murdering a woman.

admissibility of confessionsOne of the convicted was an impressionable teenager called Brendan Dassey.  Dassey’s conviction was overturned in 2016 (and confirmed on appeal in 2017) on the basis that his ‘confession’ to the murder was coerced by police officers who exploited his vulnerable character.

What is the law in the England and Wales?

Provisions in the Police and Criminal Evidence Act 1984 allow courts to reject confessions of this kind on the basis that they were obtained ‘oppressively’ or are unreliable.

The relevant statutory provisions relating to the admissibility of confessions are ss. 76(2)(a) and (b) and 77 of the Act.

What does “oppressive” mean?

admissibility of confessionsThe term ‘oppressive’ has caused problems for the courts. It seems to be agreed that oppression implies some “impropriety” which compromises the confession’s veracity (Fulling [1987] QB 426).

Uncertainty exists, however, as the same sort of behaviour in different cases has led to the confession being excluded in one but not the other (see Paris (1993) 97 Cr App R 99; L [1994] Crim LR 839).

What about unreliability?

Aside from oppression, confessions may be excluded on the basis of unreliability. This unreliability may come about via “anything said or done” or something problematic concerning the circumstances in which the ‘confession’ was made.

An important point to note is that the suspect’s own conduct cannot undermine a confession (Goldenberg (1988) 88 Cr App R 285).

Another important reason to exclude a confession on the basis of unreliability is where the suspect is mentally unfit. A separate section of the Police and Criminal Evidence Act 1984, section 77,  deals with this.  In particular, the act seeks to protect suspects who may be suggestible and may simply go along with police officers’ leading questions about an alleged offence.

Deciding on the admissibility of confessions

admissibility of confessionsThe actual process for deciding whether a confession can be admitted is a ‘voir dire’. That is essentially a mini-trial within or alongside the main trial. Section 76(2) of PACE gives guidance on this point.

The prosecution must prove to the criminal law standard that the confession was not obtained in the way alleged by the defence, otherwise it will be excluded. And, although there is some disagreement, the standard position appears to be that the defendant’s evidence at the voir dire cannot be admitted during any trial for the substantive offence (Wong Kam-ming [1980] AC 247).

How we can help advise on admissibility of confessions.

Many of the problems that can arise with confessions will be removed if you have a solicitor with you to provide advice when you are interviewed.

As a result, if you are arrested or know that the police wish to speak to you about any offence  then make sure you insist on your right to free and independent legal advice.

The advantages of such early legal advice can be found here.

If you have already been interviewed or face court proceedings we will be able to advise you about the admissibility of any confession you are said to have made at any stage where you dispute the accuracy or reliability of it.  Legal aid may well be available to fund your defence at court.

 You can find your nearest office here.

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Accredited representative advises during no comment interview

no comment interviewFly on the wall documentaries are increasingly popular, particularly when they show the workings of the criminal justice system.  Such programs may, particularly when they rely on interviews with the police, present a no comment interview as harmful to a suspects case.

While there may be instances where a person is not helped by failing to give an account, there are many occasions when there is substantial benefit to a no comment interview.

Exercising your right to silence

Choosing not to answer questions is your legal right.  The reasons for refusing to answer questions my be complex.  You would certainly be best advised to seek expert legal advice before doing so.

You can read more about your right to silence here.

Choosing a no comment interview might mean that no further action is taken by the police at the conclusion of the police investigation.

Here are two examples where accredited police station representative Rob Lowe at our Chesterfield office provided advice on the right to silence.  His clients conducted a no comment interview.  Ultimately it was to their benefit.

No comment interview following assault allegation

no comment interview
Accredited police station representative Rob Lowe

Rob was instructed to attend for a voluntary interview.  His client was being investigated as an allegation had been made that he assaulted a neighbour.  The neighbour was said to have stepped onto his land to remonstrate with a third party who was driving a tractor.

The allegation was that Rob’s client had then shoved the neighbour.

Upon taking his client’s instructions, he confirmed that he had been present and approached the complaint.  He accepted putting himself between the complainant and the driver.  This was to highlight to the neighbour that he was putting himself in a dangerous position bearing in mind the type of vehicle.

Our client denied touching the complainant at all.

Rob assessed the police evidence as being weak.  Without any form of admission it seemed unlikely that it would proceed to court.  In order to remove any risk that his client would go beyond his instructions when interviewed, Rob advised his client to use a prepared statement and then conduct a no comment interview.

Rob’s assessment of the case was correct because after the interview took place the police confirmed that no further action would be taken.

No comment interview where no complaint made

On this occasion following a client’s arrest, Rob was instructed to advise a suspect who had been arrested of assault and criminal damage within a domestic setting.

Before interview, Rob discovered that the police had no statement of complainant from the only witness who could support a prosecution.  There was no other admissable or independent evidence.

Based on his assessment of the evidence, Rob advised his client that he ought to exercise his right to silence in interview.  As a result, he made no comment replies to questions.

As no one was accusing his client of wrong doing there was no need to answer questions.  Again, Rob’s client was released without any charges from the police.

Instruct a criminal law specialist to advise on a no comment interview.

These are just two examples of how instructing us at the point of police interview can benefit you and ensure that we protect your interests.

Some more benefits of early legal advice can be found here.

We have offices across the East Midlands.  You can find your most convenient office here.   Alternatively you can contact us using the form below.

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Admissability of Evidence argument at Chesterfield Magistrates

admissability of evidenceWe have previously written about the increase in prosecutions over recent years where there is no statement from the alleged victim in the case.  The victim might not be supporting the prosecution or may even be unknown.  This will lead to arguments over the admissability of evidence.

The reasoning is that even though a victim is unwilling to assist the Prosecution, a person should not be able to avoid responsibility for offending that they have committed.  Of course, there are a number of risks to proceeding without evidence from the person who ought to know best what, if anything, happened.

Prosecution rely on principle of Res Gestae

In order to present such cases the prosecution will often rely on a rule of evidence called Res Gestae.  This allows hearsay evidence that would usually not be allowed in court to be used as admissable evidence.

You can read more about this rule of evidence here.

Unfortunately we have noted that the prosecution seek to rely on this exception to the usual rules of evidence in a number of cases where it doesn’t apply.

As a result it is vital to have an experienced solicitor who is able to argue your case in Court to try and avoid this from taking place.

Recent case defended by Chesterfield crime solicitor

Chesterfield Crime Solicitor Kevin Tomlinson was recently presented with such a scenario.  His experience told him that the prosecution was trying to admit evidence in circumstances where it was not admissable.

His skill and expertise as an advocate persuaded the Magistrates that he was right.  The evidence was ruled inadmissable and his client was found not guilty.

Domestic violence allegations

Kevin’s client faced charges of common assault and criminal damage within a domestic setting.  Police officers attended the alleged victim who gave an account implicating stating that our client was responsible for the offending.

She alleged that he had been aggressive and threatening towards her when she returned home with a friend after a night out.  After the friend left he had then assaulted her in the bedroom and caused damage to a wall and perfume bottle.

The police had obtained a recording of the 999 call.  The initial complaint had also been recorded on police bodycam footage.  Finally she made a written witness statement.  Here friend had also made a statement describing our client’s behaviour before she left.

During the course of the investigation, the complainant had provided a further statement stating that she no longer supported the prosecution and wished to withdraw her complaint.

From the outset of the case our client had set out a defence.  He told the police that he had not done what was alleged against him and was therefore not guilty of the offences.

Key witness did not attend the trial

In light of the later statement taken from the complainant it was not surprising that the complainant failed to attend Court for the trial. The supporting witness also failed to attend.

admissability of evidenceDespite this, the prosecutor informed Kevin that they wished to proceed with the case.  They intended to use the account provided by the complainant in the 999 call as well as what she told the police upon their arrival.  The reasoning was that this evidence would be admissable using res gestae.

Kevin argued against the admissability of evidence relating to these allegations.  The key requirement, that the witness was so overcome with circumstances of the situation that she could not have made the allegations up, did not exist in this case. She was calm during both the call and the conversation.  The assertion that the allegation could not have been made up did not stand up to scrutiny.

Additionally, Kevin was able to argue that instead of trying to admit evidence in this way the prosecution, who had known for weeks that the witness did not intend to attend Court, should have taken the appropriate steps to have her there.  The doctrine of Res Gestae should not be used to avoid calling witnesses as it prevents the prosecution challenging the evidence.

Not guilty verdict after trial

admissability of evidenceKevin’s argument found favour with the Court who refused the Crown’s application meaning the Prosecution had no option but to offer no evidence against Kevin’s client.

This case highlights the importance of instructing a solicitor.  It is important that you do not rely on a solicitor appointed by the court as their responsibilities to you in your case are limited.

Had the defendant in this case been unrepresented it might be unlikely that they would effectively challenge the admissability of evidence of this nature and the outcome could have been very different.

Instruct an solicitor who is an expert in the admissability of evidence.

Criminal trials will always feature a certain level of complexity.  The best way to prepare for trial is to seek legal advice at the earliest possible moment.

If you are arrested or know that the police wish to speak to you about an offence of then make sure you insist on your right to free and independent legal advice.

The advantages of such early advice legal advice can be found here.

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.  Legal aid may well be available to fund your defence at court.

A further example of a successful argument against the admissability of evidence can be found here.

We have offices across the East Midlands.  You can find your most convenient office here.   Alternatively you can contact us using the form below.

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VHS Fletchers offices across the East Midlands

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What to expect as a witness in court

If you have provided a statement for the prosecution or for the defence you may be called as a witness in court to give evidence at the defendant’s trial.

Is there help available for me as a witness in court?

defence witness in courtThe Witness Service can provide assistance for any witness who has to attend court. This support can be both practical and emotional. They can provide information about the court process, show you the courtroom prior to the trial and assist with any expenses claim.

If you are a prosecution witness the Crown Prosecution Service witness support unit will be in touch with you and will provide contact details for witness support. If you are a defence witness the solicitor representing the defendant can provide you with support and also provide the contact details for the local witness service.

What happens at court?

 When you attend as a witness in court, you can sit in a separate witness room rather than the general waiting area if you wish. You will be spoken to by the prosecution or defence lawyer, as appropriate, before the trial starts.

Will I be told what to say?

 Whilst the lawyer will be able to provide you with information on trial procedure, layout of the court and the roles of those involved they cannot “coach” you on the evidence you will give as a witness in court. There are very strict rules about training witnesses because this could have a potentially negative effect on your evidence.

Can I read my statement?

You will be provided with a copy of your statement prior to the trial so that you can read through it before you give evidence. You will not usually be allowed to have it with you when you give evidence though. If the rules of evidence allow, you may be able to refer to your statement during evidence in order to refresh your memory.

Can I speak to any other witnesses?

 If there are a number of witnesses, you will not be allowed to communicate with anyone who has given evidence while you are still waiting to do so.

If you are a defence witness, you should also not discuss anything about the trial with the defendant once the trial hearing has started.

The prosecution and defence lawyers are not allowed to discuss any evidence that has been given with you before you give your evidence.

What happens in court?

prosecution witness in courtYou will be called into court at the appropriate time and asked to swear on a holy book or affirm that you will tell the truth. You will then be asked questions by the prosecutor first if you are a prosecution witness and then by the defendant’s representative, or vice versa if you are a defence witness. If the defendant is not represented, you may be asked questions by a court appointed lawyer in his place if the court do not feel it is appropriate for him to ask you questions directly.

Once you have finished giving evidence you may be released from court or you can stay in the public gallery to watch the remainder of the trial.

I’m really worried, do I have to attend court?

 If you think that you would benefit from “special measures” such as screening from the defendant or giving evidence from remote video link you should contact the prosecution, defence solicitor or court as appropriate.

A witness summons can be issued if the court is aware you do not want to go to court.  This is something that you should speak to a solicitor about. If you fail to attend court in answer to a witness summons, then you may be arrested and brought to court.

Contact a criminal law specialist about being a witness in court

It may be that you have given a witness statement to the police and received a witness summons.  Alternatively it might be that you are thinking of doing so but worried about the potential consequences.

You might have provided our office with a statement in respect of one of our clients, or are considering doing so and want to discuss this further.

Contact your nearest office or the office preparing the defendant’s case to discuss any of the matters further.

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The no comment interview – your right to silence

no commentThere is no magic to the phrase no comment.  It is simply a device for a suspect to indicate that they have no intention of answering police questions.  It allows the police to put questions and the interview to progress easily.  An alternative would be to stay mute for the duration of the interview, but that would only prolong matters!

Advice on your decision to answer no comment

The decision whether to answer police questions or make no comment replies in police interview can be a difficult one.  There are many different considerations to balance.  Since the changes brought in by the Criminal Justice and Public Order Act 1994 many more suspects are advised to answer police questions than previously.

no commentThis Act allows Magistrates’ or a jury to draw conclusions from a no comment interview in certain circumstances.  There are four conditions, including whether an accused failed to mention a fact later relied on in their defence and whether it was reasonable at the time for the accused to have mentioned this fact in interview or on charge.

Our advice is subject to legal privilege and cannot be disclosed

There is still, however, a place for the no comment interview but you are best advised to seek free and independent legal advice from a specialist solicitor or accredited police station representative before making the decision not to answer questions in police interview.  As we are entirely independent of the police any advice suggesting that you reply no comment to police questions will be in your best interests.

no commentAny advice that we give to you and your instructions that allow us to give that advice are confidential and subject to legal privilege.  We can only disclose your instructions and our legal advice with your permission.

Your police station representative will always make a note of the instructions that you give, so even if you make ‘no comment’ replies they can give evidence to the court if necessary to show that you haven’t made up a defence once you are charged and papers are served.

Our advice will always be tailored to the circumstances of your case

 Our police station advisers know that each case will turn on its own facts.  Our advice will balance any risks and benefits to you of a no comment interview.  You will be fully advised of the advantages and disadvantages of such a course of action to allow you to make a final decision.

Opportunity for a confidential consultation about the evidence

no commentBefore providing advice allowing you to make that decision your legal representative will always seek a confidential discussion with you about the evidence. That will allow them to take your instructions in private and give you advice.  It could be that the police choose not to provide the private facilities necessary.  That in itself could mean that a full discussion of the allegations is not possible and a no comment interview would be advised.

Your police station solicitor will be alive to factors that might affect whether you should answer questions – these could include youth, mental vulnerability, a hearing or speaking disability, poor command of language, a severe nervous state or other condition.

What if I am guilty of the allegation?

 It may be that although you are guilty of the offence the police may not have enough evidence to put before a court to convict you without your admission. There might be concerns about the level of disclosure of evidence from the police which could suggest that the evidence to convict you simply isn’t there. As a suspect is ‘innocent until proven guilty’ you are perfectly within your rights to choose not to answer questions.

no commentAlternatively, it might be that the police do not know the full extent of your offending and answering questions would make matters far worse for you.  Again, this would be a valid reason for replying no comment to police questions in interview.

As the caution only talks about inferences rather than any benefit of an early admission, the Court of Appeal has stated that you cannot lose discount for early guilty plea on the basis of a no comment interview.

Our free and independent legal advice will balance these considerations against other concerns that you might have.

If you admit the offences in police interview then you will have the benefit of demonstrating remorse for your offending.  True remorse can significantly reduce any sentence that you receive.  The greatest demonstration of remorse might be the strongest evidence it is genuine.

Alternatively, an early admission might mean that a prosecution can be avoided and you can be diverted from the court system.  To receive a caution or a restorative justice disposal an admission will normally be required from you.

What if I have a defence to the charge?  Shouldn’t I tell the police?

There may be a number of reasons why you would choose not to answer questions if you are innocent of the charge.  For example

  • You may know who the true culprit is but not want to name them
  • Your defence might involve admissions to some other damaging or embarrassing conduct but that is not illegal
  • We are unable to fully advise you as the police have not given us enough information about your case
  • The case is too complex or old to provide an immediate response

Other factors that might be relevant could include:

  • Your state of mind at the time of interview. Perhaps you were suggestible or in a state of shock?
  • You might be easily confused and liable to make mistakes in your account
  • There is a need to refer to information that isn’t to hand in police interview to check an alibi
  • We identify that there is some other good reason why you might not come over well in police interview

Our specialist police station advice will include whether there is a good reason for making no comment in interview, including whether a prepared statement should be used instead to control the manner in which the police are told about your defence.

We will advise you as to whether there are likely to be issues of admissibility at court relating to such matters as comment that you have made to the police upon arrest or any informal identification that might mean you should exercise your right to silence.

Always seek our free and independent legal advice in police interview

As you can see there are many factors that affect a decision whether to answer questions in police interview or answer no comment to any questions put.  It is vital that you seek our advice which is free of charge before you commit to a decision that could provide the evidence to secure a conviction or lead to problems in any future court case.

A number of other benefits to seeking legal advice can be found here.

We provide nationwide advice and assistance in the police station from our offices across the East Midlands.  You can find your nearest office here.  Our expert representation is available 24 hours a day, 7 days a week.

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Not guilty verdict after Paedophile hunters fail to produce evidence

Chesterfield Crown Court litigator Ruth Campbell and Nottingham Solicitor Advocate Andrew Wesley were recently instructed in another case involving a prosecution dependent on evidence provided by paedophile hunters.  An outline of a previous case that failed due to problems with such evidence can be found here.

There client had an unusual defence to put forward.  He had logged into an adult chatroom.  He believed that any conversations he had online, and later on other social media threads, was with a person pretending to be a child for the purposes of a sexual fantasy.

His instructions were that a full record of each conversation would support his account.  As a result, immediately following his not guilty plea, specific enquiries were made of the prosecution.

Evidence required from paedophile hunters’ phones

In order to establish the evidence that could lead to our client’s acquittal the following information was requested:

  •  full threads of the messaging from the adult site taken from the paedophile hunters’ phones
  • similar threads from other messaging apps used to communicate, again from their phones
  • the profiles that the hunters were using on the adult site
  • our client’s profile

It appears often the case that the police are content to rely upon screenshots given to them by the paedophile hunters.  As a result, paedophile hunters not guiltythe prosecution is dependent upon evidence that may be incomplete.  It a client intends to advance a defence it is vital that these enquiries are made immediately.

The witnesses also maintained that our client had made a confession that had been filmed and streamed.  The footage located online was only partial and did not contain a confession.  That material was also sought.

The prosecution asked for the case to be brought into the list several months before the trial date.  This was because, as a result of our enquiries, they had look at the case and intended to offer no evidence.  This was because the prosecution had been unable to secure the evidence that we had requested and as a result could not check its veracity or accuracy.

paedophile hunters chesterfield solicitors not guiltyThe evidence had not been preserved by the witnesses themselves, and was no longer available.  A software corruption had also occurred which mean that the phones could not be properly interrogated now.  Finally, there was no footage said to contain a confession to the offence.

Paedophile hunters ‘need to be aware of the rules’

The Judge hearing the case observed that in terms of case numbers, prosecutions dependent upon evidence from paedophile hunters paedophile hunters legal representationwas a ‘growth area’.  Although a large proportion of these cases result in a guilty plea, particularly where charges are backed up with a video of a meeting.

He went on, however, to express a real concern about the nature of the ‘investigators’, accepting that this was in many cases a ‘loose’ use of the term.  The Judge expressed concerns that they operated outside any statutory scheme of evidence preservation and disclosure.  If they were to continue in such cases, his view was that they ought to be made aware of the rules.  If they do not consider and comply with the rules, they won’t be a help and their conduct will lead to more cases with difficulties such as this one.

Contact a Crown Court litigation specialist

chesterfield crown court litigator Ruth Campbell
Chesterfield Cown Court litigator Ruth Campbell

It may be that you face potential proceedings based on evidence provided by paedophile hunters, or another serious allegation.  If so, you will wish to instruct a Crown Court litigation and advocacy team that will takes steps at an early stage of proceedings to advance your case where necessary.

Ruth is based at our new Chesterfield office.  You can find the contact details here.  Alternatively you can use the contact form below.  If one of our other offices is closer to you then please contact the one most convenient to you for an appointment.

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Good character evidence and trial preparation

In criminal law, we talk a lot about ‘character’.  This is, however, mainly in the context of ‘bad character’ rather than good character.  It is often the case that the prosecution will try to put previous convictions before a jury to persuade them of the defendant’s guilt. After all, the prosecution will say, if he’s done it before, he is more likely to have committed this crime too.

Of course, not all defendant’s facing criminal trial will have previous convictions.  In those circumstances the issue of ‘good character’ is likely to be important.

good character direction

This will, of course, involve a reversal of the prosecution argument.  In cases where a person is of good character it will be said, therefore, that they are less likely to have committed the crime charged.

In fact the situation is much more complicated than that.  As a result we believe it is an aspect of case preparation that can often be overlooked.  This will be to the detriment of the person of good character standing trial.

What is the purpose of establishing good character?

For centuries, it has been accepted that evidence of the accused’s good character is admissible in criminal trials.  In more recent years, the courts have accepted that evidence of good character may be admissible:

  • to bolster the accused’s credibility; and,
  • as relevant to the likelihood of guilt.

How is good character established?

In most cases, good character is simply a matter of fact.  If a person has no previous convictions they will by definition be of good character.

But even then, a person may be deprived, at least in part, of their good character status depending on the nature of any evidence they have given.

Similarly, although a defendant may not start off with good character they may be able nonetheless to obtain a good character direction. This is often referred to as ‘qualified or effective good character’. A common scenario is where any convictions are either so old or so irrelevant to the matter before the court, that it would be unjust to take them into account.

Should character witnesses be called?

An essential part of establishing good character will be to consider good character evidencecarefully whether character witnesses should be called on your behalf. These will be people who know a defendant well and who will speak positively about them.

In choosing character witnesses, it is preferable to try and find people who will be highly credible themselves in the eyes of the court or jury.  They ought to be people who would not be willing to lie about a person’s character and qualities simply due to allegiance to that person.

Do I have to do anything?

It is critical that good character or qualified good character is not overlooked during case preparation. It is for the defence to formally establish good character and ensure that the issue is properly before the court for consideration.

Good character and appeals

If defence advocates do not take a point on the character directions at trial and/or they agree with the judge’s proposed directions which are then given, these are good indications that nothing was amiss. good character court of appealThis means that attempting to cure any defect on appeal is unlikely to meet with success.

The Court of Appeal has held:

“…as a matter of good practice, if not a rule, defendants should put the court on notice as early as possible that character and character directions are an issue that may need to be resolved. The judge can then decide whether a good character direction would be given and if so the precise terms. This discussion should take place before the evidence is adduced. This has advantages for the court and for the parties: the defence will be better informed before the decision is made whether to adduce the evidence, the Crown can conduct any necessary checks and the judge will have the fullest possible information upon which to rule. The judge should then ensure that the directions given accord precisely with their ruling.”

What is the content of a ‘good character’ direction?

The actual direction to the court or jury depends on the exact circumstances of the case, but this is a typical full direction:

‘You have heard that the defendant is a man in his middle years with no previous convictions. Good character is not a defence to the charges but it is relevant to your consideration of the case in two ways. First, the defendant has given evidence. His good character is a positive feature of the defendant which you should take into account when considering whether you accept what he told you. Secondly, the fact that the defendant has not offended in the past may make it less likely that he acted as is now alleged against him.

It has been submitted on behalf of the defendant that for the first time in his life he has been accused of a crime of dishonestly. He is not the sort of man who would be likely to cast his good character aside in this way. That is a matter to which you should pay particular attention.

However, what weight should be given to the defendant’s good character and the extent to which it assists on the facts of this particular case are for you to decide. In making that assessment, you may take account of everything you have heard about him.’

In the magistrates’ court, the defence advocate should ensure that the legal adviser provide the magistrates’ with the correct advice on this direction.

How we can assist as criminal trial specialists

We believe in proactive defence work.  This means that we do not merely respond to the prosecution case.  At the same time we are taking all of the positive steps possible to build a strong case for your defence.

An example of a Magistrates’ court trial where good character was important can be found here.

Considerations about character, both good and bad, will be just one aspect of this case preparation, although it may be a significant one.

Any application for legal aid is likely to be assisted where a conviction following trial will deprive a defendant of their good character.

good character direction

Please contact your nearest office to make an appointment to speak with one of our expert criminal lawyers.  The contact details can be found here.

Alternatively you can use the contact form below.

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News

Application to exclude evidence before Nottingham Youth Court

application to exclude evidence obtained unfairly
Nottingham criminal defence solicitor Nick Walsh

Nottingham criminal defence solicitor Nick Walsh recently represented at a Nottingham youth court trial.  The identification evidence was disputed and Nick made an application to exclude evidence from a police officer.

Nick’s client was fourteen year old charged with theft of a motorbike from a domestic garage.  A police officer purported to identify Nick’s client from  The evidence was that he had been identified from CCTV footage by a police officer who our client very well.

Identification evidence from CCTV footage

application to exclude evidence infairly obtainedAn identification in such circumstances is governed by the Codes of Practice set out under Police and Criminal Evidence Act 1984.  As a result, following the not guilty plea being entered, Nick wrote to the Crown Prosecution Service asking that they disclose the contemporaneous notes of the CCTV viewing and the additional records required by Code D of the Codes of Practice.

The prosecution did not supply any of the documentation that had been requested.  The officer did, however, give a further statement dealing with the circumstances of the identification.

Expert cross examination of a police witness

At trial Nick had the opportunity of asking the officer questions about the circumstances of the identification.  His careful cross examination led the  officer to concede that he had not kept any records or notes of his viewing of the CCTV.  Additionally he could application to exclude unfairly obtained evidencenot be sure how many times he had viewed the footage.  More damagingly he confirmed that he had been given that task of viewing the CCTV by his sergeant and had been told that Nick’s client was already suspected of the crime.

The officer stated that he had based his identification on the way the suspect walked.  Having been made to view the footage again in court he had to accept that there was nothing distinguishing about the walk.

He also accepted that he had made his mind up that it was Nick’s client before he got a look at the offenders face.  Finally, he had to accept that the quality of the CCTV footage was poor.

Application to exclude evidence obtained unfairly

At the close of the prosecution case Nick applied to the Youth Court Magistrates’ to exclude the identification evidence.  This application was made under section 78 Police and Criminal Evidence Act 1984.  This is on the basis of the breaches of the Codes of Practice.  In this case, where the identification evidence was the only evidence in the case, it would be unfair to admit it.

The Magistrates agreed and the evidence was excluded.  As a result, the prosecution had no option but to offer no further evidence and Nick’s client was found not guilty.

Client had the benefit of free criminal legal aid

Owing to our client’s age Nick’s representation of him was free of charge to both him and his parents under the criminal legal aid scheme

Contact an expert criminal defence lawyer

This case illustrates the importance of knowing the law that governs identification evidence.  It also shows that you need a criminal solicitor on your side who can make sure that a police office is made to answer the difficult questions.  This might open the door to an application to exclude evidence.

application to exclude evidence nottingham solicitor
VHS Fletchers offices across the East Midlands

Nick can be contacted on 0115 9599550.  Alternatively contact one of our other criminal defence solicitors at our offices across the East Midlands.  A contact form is below too.

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