Evidence

• Judge deals with legal issues/jury deal with fact. Beyond this, the judge has a wider role-
• Judge can have input to any extent so long as lawyers are permitted adequate input. 
• Cases: Reynolds (1950) Jury should be present during a voir dire unless prejudice; Broadhurst v R (1964) Jury not bound by judges own views on the credibility of evidence and witnesses; Jones v NCB (1957) Judge has wide discretion but cannot interfere with a party or counsel from conducting their case properly. 
• Positive/ required guidance?§Standard of proof, Value of evidence of children, Court procedure, Corroborative evidence, Circumstantial evidence, Identification evidence, Effect of lies etc. etc.

Self-corroboration: R v Roberts (1842): husband told people that he shot wife by accident. Corroboration is supporting evidence; self-corroboration is inadmissible. 
Lies: R v Lucas (1981) be deliberate, relate to material issue and be shown to be a lie. This distinguishes a lie from untruthfulness. 
Refreshing memory: Dyer v Best (1866) witness need not have prepared the document used to refresh memory. Maugham v Hubbard (1828) receipt for money, the witness can recall evidence or accept evidence must be accurate.

s78 Pace: weighing the weight of the evidence against how far the police have overstepped the mark. 

How obtained:

• Illegally, improperly, breach of codes.

Right to exclude if prejudicial- but not because of the manner in which evidence obtained- R v Sang (1980) a judge can deem any evidence to be inadmissible where there is a prejudicial effect. However, today prejudicial evidence is generally permitted: Hearsay and bad character evidence. 

General View: R v Leatham (1861) even if you steal evidence it would be admissible. Kuruma- inappropriate police search, evidence allowed. 

Willingness to accept evidence: Apicella (1985) police failed to tell D he could refuse sample. Evidence admissible. R v Fox (1986) Breath test 'bona fide mistake' by police as to powers. Evidence admissible. 

Discretion to exclude: Jeffrey v Black (1978) General discretion to exclude evidence (appeal on findings on illegal search admissible). 

Active or passive? Christou (1992) SHAM Business jewelry shop! Evidence admissible. Both active and passive. 

Roberts (1997) 'bugging a cell. Can be seen as a passive role by police. The plan was suspect would speak to his cellmate and reveal crimes committed. 

R v Khan (1996) bugging a house, passive role again, evidence admissible because police were dealing with such a serious crime. 

R v Mills & Lemon: critcism of police but confession deemed admissible. 

Treadaway v CC of W.Midlands (1994) -police conduct criticised, damages awarded against police but evidence allowed. 

Breach of codes gives discretion- must be material breach: R v Alladice (1988) failure to caution and refusal of a solicitor but evidence allowed. 

Loosley (2001) 'State created crime' police planting intention. Police persuasion. Police repeatedly asked L to supply drugs. 1st instance-acquittal, C oF A - Wrong, but was overturned, evidence obtained improperly. 'Prevent abuse of executive power'.

Entrapment: Fletcher v Smith (2005) can be a mitigating factor in regards sentencing, evidence admitted. Allan (2003): hidden microphone in cell, violation of Art 8 but admissible did not violate Art 6.

Civil Law:

• Jones v Warwick University (2003) personal injury claim, agent filmed him with a hidden camera. On appeal, the evidence was allowed because needed to secure justice and fairness. 

Criminal:

Perry 2003: suspect filmed without knowledge for ID parade. Sentence upheld. Must seek deep for justification. 

Moon (2004): CCTV camera filming bus station and captured D. Right to privacy was argued, the conviction was quashed. 

Ask did police provide an unexceptional opportunity to commit the crime? What about repetition or threats and intimidation? Chandler (2001) Had officer behaved 'liked an ordinary customer' buying cocaine? The aggressive language was appropriate.

Differing effect on rights- P (2002) telephone interception constituted interference with rights not a violation of rights. Breach of the right to privacy. The desire of the court to allow in police evidence where it serves justice. 

Regulation of Investigatory Powers Act 2000: Badly drafted- but the aim was commendable. 

R v Harmes (2006): Undercover operation authorized by Investigatory Powers Act 2000. Supply of drugs in return for soft drinks. Conspiracy charge upheld but not supplying drugs. The court said evidence for supplying drugs was inadmissible because the crime would not have been committed without the involvement of the police. Requirements of necessity and proportionality to be achieved. 

Loosley requirements: Lord Nicholls police participation can be justified, three-stage test:

• Nature of crime (Difficulty in securing evidence- cause police to go over the line and to actually participate but it is a question of degree, public protection, public safety, and proportionality. 
  
• Grounds for suspicion: Starting point- police strongly believe individuals are committing a crime but have no evidence. must have notable grounds of suspicion. 
• Nature of police involvement: Question of degree- the vulnerability of the accused: comes back to unexceptional opportunity if the individual is vulnerable they might feel afraid and forced to commit a crime. police effectively committed a crime but was the involvement peripheral or more significant. 
  

Latif (1996) very detailed plan, police assisted importation of heroin. Used customs officer to import heroin. Abuse of process of the court? H of L allowed the evidence. Where police involved in crime, wrong to establish a blanket acceptance or rejection of evidence. 

R v Bryce (1992) Undercover police officer, incriminating conversation, no adequate recording of alleged statement. No formal recording so issues with tampering as possibility. Justice needs to be seen to be done, no recording so evidence was inadmissible. 

Ridgeway v R (1995) Charge- possession of illegally imported drugs. The criminals were not involved in any way it was the police. Not participation but the administration of offense by police. Evidence Inadmissible. Court to protect the integrity of their process. 

Common law: Bad character evidence was inadmissible as it was prejudicial. Accused may or may not have made character an issue- if an accused does make character an issue by bringing in good character evidence then bad character evidence is allowed.

Note burden of proof: Good character of victim- R v Amado-Taylor (2001) can bad character of witnesses be attacked? the extent to which tactics can be used but to what extent does it aid justice. 

R v Wainwright (1998) Bad character evidence of accused introduced by agreement with prosecution and defense, dishonesty offenses fine but did not want jury to know about violent offenses. Cannot bring in half a persons character.

Selvey v DPP (1970) Judicial discretion but not general rule that discretion should be exercised in favor of the accused. 

R v Waldman (1934) exception to the norm- question about earlier acquittal allowed. Charges of receiving stolen goods. Acquittal used as bad character evidence that accused had been charged with a serious offence before. 

R v Winfield (1939) reinforcing that if character is made an issue then good and bad character are admissible. Previous convictions of larceny allowed. 

R v Butterwasser (1948) if characcter is made an issue bad character evidence could be introduced. 

R v Miller (1952) evasion of customs duties- questions bound only by considerations of relevance. Relevance of time of imprisonment where there was a break in the crimes committed. Co-defendant wanted the evidence admitted and the court allowed it on the basis of relevance. Probative value/ prejudicial effect. 

Lowery v R (1974): Two accused. One or both guilty. Expert opinion of psychiatrist allowed. One defendant could not possibly have committed offence because he was too weak so doubtful they could have committed the act. Evidence allowed even though it pointed guilt at the other defendant. 

R v Bracewell (1978) two men charged with murder. Questions about uncontrolled violent attacks of one not allowed. The other party then introduced good character evidence so the 'original evidence' was then allowed. 

R v Neale (1977) Charges of arson and Manslaughter. The relevance of one party having committed arson on other occasions. ( Maybe guilty but does not mean that other party is not). 

s98 'Bad character' evidence of, or disposition towards misconduct- other than that related to the facts of the offence or investigation/ prosecution of that. 

s99- abolition of common law rules (subject to s118 (1) the rule that reputation is admissible for the purposes of proving bad character).

s100- When bad character evidence of parties other than the defendant is admissible: it is important explanatory evidence, it has substantial probative value in relation to the proceedings and the case as a whole (helps the jury understand), nature and number of events is relevant, extent of the similarities is relevant. Evidence also admissible if all parties agree. 

S101 1a) Have the parties agreed?

S101 1b) the defendant gives the evidence in cross-examination 

S101 1c) is it important explanatory information

S101 1d) is it an important matter in issue between the defendant and the prosecution? (Creates a lower threshold than that required under the similar fact evidence rule; Similar fact evidence generally inadmissible however, - even DPP v P (1991)- ‘Striking similarity’ 

§Sec. 101(1)(e) Does it have substantial probative value in relation to an important matter in issue between the defendant and co-defendant. (Only a co-accused can use this see Sec. 104(2)

§Sec. 101(1)(f) Is it correcting a false impression given by the defendant?

§Sec. 101(1)(g) Has the defendant made an attack on the character of another? 

Supplementary provisions: Sec. 101(3) In relation to (1)(d) and (1)(g) admissibility, adverse effect on fairness of the proceedings is to be considered.

Sec. 104 ‘Matter in issue between the defendant and co-defendant’. Evidence of propensity to be untruthful admissible if defense is such as to undermine the co-defendant’s defense.

 Sec. 105 ‘Evidence to correct a false impression’ Express or implied assertion apt to give the jury a false/misleading impression of the defendant. – Given by defendant or witness for the defendant.

Sec. 106 ‘Attack on another person’s character’ has committed an offence, has/is disposed to behave in a reprehensible way

 Sec. 107 stop the case where evidence is contaminated. (Conviction would be unsafe)

Sec. 108 offences committed by defendant when a child. Defendant 21 or over, convictions when under 14 not admissible unless both offences only triable on indictment or interests of justice will be served.

§Sec. 111 Rules of court WILL BE MADE which require the serving of notice on a defendant where bad character evidence of the defendant is sought to be introduced.

§Note possible relevance of Article 6 – presumption of innocence. Evidence of misconduct may undermine a previous acquittal and Art. 8 right to privacy.

§Sec. 103 (Sec. 101(1)(d) ‘Matter in issue between the defendant and the prosecution’

§1. Propensity to commit crime of the same kind with which he/she is charged.

§2. Propensity to be untruthful –

§Can be established by evidence of a conviction of an offence of the same description, or of the same category as that with which he/she is charged.

§Time factor is relevant re. admissibility of previous offences.

R v Brina (2006) Previous history of knife crime and carrying knives- allowed under the gateway 'relevant to an important matter in issue.

Gateway D is most important- what does important fact mean? Similar fact evidence was replaced by gateway D, propensity for violence etc. 

R v Tully and Wood (2006) robbed a taxi driver at gunpoint. all previous offenses of dishonesty admitted at first instance. Appeal upheld but conviction also upheld. previous convictions should only be admitted if probative force. There must be a degree of similarity. 

s101 (3) evidence to be excluded if it would have an adverse effect on the proceedings. 

Best case to use for s103 and 101: R v Smith (2006) gaining entry to house to steal, previous for same offence. Served to show propensity. Degree of similarity important. 

R v Blake (2006) charge of burglary- 15 previous for burglary allowed. Served to assist issue of identification. 

R v Richardson (2014) assaulting traffic warden and similar offences in same area -identification issue. Gateway D propensity, similarity. Bad character evidence supported identification evidence. 

R v Hanson (2005) 'Evidence of bad character cannot be used to simply bolster a weak case or prejudice the minds of the jury against the defendant'. 

R v Ainscough (2006) police officer identified previous convictions from computer, there were no similarities in the way the offences were carried out. 

Weir and others (2006) the act that makes it clear that bad evidence is admissible 'if it satsifies certain criteria' 

D.P.U (2012) charges related to sexual offences. Bad character evidence of possession of *********** allowed. Allowed under gateways D, F and G. CoA duty exists to identify relevant gateways. 

J (2010) Gateway A) usage-agreement. Judge should be informed at the start of the trial. Agreement that evidence is admissible, the judge is to be informed by counsel at the start of proceedings. 

M (2014) Gateway B - Charges of **** and other sexual offences, bad character evidence: drinking in excess and taking illegal drugs- reprehensible behavior (admissible) suicide attempt and self-harming was not (not seen as reprehensible behavior as provided by s98).

Gateway C Important explanatory evidence:

Haigh (2010) Defendant charged with murder of his 3 yr old son. Evidence of defendants mother and sister that he was difficult to deal with was admissible.

M (T) (2000) evidence of sexual abuse separate from offences charged was relevant as background evidence. Intimidation of victim.  

s101 E) substantial probative value in relation to a matter in issue between the defendant and co-defendant. 

Remember: If these cases came before the courts today it would be gateway E. 

Lowery v R (1974) expert opinion of a psychiatrist that one of co-accused could not have committed offence. 

Bracewell (1978) 2 defendants, one had history of violence. Court would not allow in bad character evidence because it was prejudicial.  Character was made an issue so bad character evidence was allowed. 

R v Edwards (2006) summing up must contain clear warning to jury, explanation of why it was provided and its relevance. No rigid formula as to judicial coverage. 

s101 D): R v Williams (2006) conviction for murder. History of violent attacks on the victim. Evidence of violence towards a previous partner admissible. 

R v Beverly (2006) gateway A) having a greater propensity, so greater possibility of guilt. Conviction for importing cocaine, previous for possession and supply of cannabis. On Appeal previous should have been excluded. Scale and sophistication: one thing dealing small quantity of cannabis compared to importing cocaine. 

R v Herman (2012) drug dealing, always cocaine but previously smaller scale, text messages to co-accused admissible. 

Court of Appeal: flood of appeals, few appeals against conviction successful. For the basis of an appeal that might be successful focus on issues of direction by the jury that could be challenged. 

Appeals need to address issue of direction to the jury. Relevance and purpose of the bad character R v Randall (2006) is the legislation inclusionary or exclusionary? Wide s98 definition: legislation is inclusionary as bad character evidence is admissible. 

The greatest cause of wrongful convictions is identification evidence. People get it wrong. Identification evidence can be direct, circumstantial or presumptive. Note psychological issues: perception, recall. 

Importance of warning jury- identified in A.G. v Casey (1963) warning should always be given). Arthurs v A.G for N.I (1970) not an inflexible rule. 

1972 Criminal Law Revision Committee- mandatory caution recommended. 

Devlin Committee: no corroboration requirement but- recommendation judges should give a very strong direction- identification evidence alone is insufficient. 

The Turnbull warning: 

1. need for caution in relying on identification evidence (R v Turnbull 1977) guidelines are flexible in application, it is for the judge to decide the extent they make the evidence an issue, when they do it and how they do it. Acknowledge from the outset that people make mistakes. 

2. Reason for giving warning: why the warning is being given, element of overlap with no 3. Think about human factor. 

3. Examination of circumstances in relation to each identification: Jurors informed to be cautious what weight they assign to the evidence. 

4. Identify specific weaknesses in identification: necessary for the judge to outline specific weaknesses i.e. contradictions. 

5. identify any breach e.g. codes of conduct: Breach of codes does not mean evidence is inadmissible. The courts acknowledge need for 'material' breach of the codes. What if we have series of breaches? Can we look to cumulative effect of all breaches? For jury to recognise the fact that there has been a breach of the codes. 

6. Value of identification evidence- jury determine value, need for the judge to give opinion as to merit. 

7. Identification evidence bad- judge will withdraw the case ( unless other evidence is available: can guide jury not to rely upon identification evidence. 

Case Law guidance: 

R v Courtnell (1961) no Turnbull warning if issue is truthfulness of 'identifying party'. Guidance links purely to what is observed not any asides/ influences. 

R v Oakwood (1978) Different application of the 'Turnbull warning' where police officer identification compared with fleeting glance by member of the public. Emphasizes the discretion of the judge to determine how they 'provide' the Turnbull warning. Judges must issue warning but what they say is up to them. 

Mills v R (1995) No mandatory form of words, no rigid script that the judge must read, as matters unfold it is for the judge to decide when to warn the jury and how. 

R v Fergus (1994) Judicial guidance 'good' and 'bad' evidence: judge gives their opinion on the evidence at hand, acknowledged that the judiciary have to be wary of providing excessive influence. 

R v Quinn (1995) With I.D Parade and breach of code D. If evidence allowed- judge should make reference to breach then jury have discretion. 

Circumstances of the identification and specific weaknesses: 

No guidance on when the Turnbull warning should be provided. 

Recognition instead of identification:

Beckford v R (1997) Turnbull warning must 'normally' be given in recognition cases- failure to do so will nearly always invalidate a conviction based substantially on identification evidence. If other evidence available and identification evidence is not dominant then warning may not be needed. 

Poor identification evidence should be withdrawn from the jury- unless other evidence exists to support the correctness of the identification- corroboration. 

R v Weeder (1980) C of A accepted that eyewitnesses should provide corroborative evidence provided judge reminds the jury that several honest people might all be mistaken. Human nature: if one person can be clear, and another witness can't they may agree with other witnesses simply to feel less embarrassed-hence the importance of the Turnbull warning. 

R v Willoughby (1988) the appearance of the accused in the courtroom cannot serve to corroborate identification evidence. Physical appearance corresponding with the description given is not corroboration.

R v McInnes (1989) Car and description of interior, two separate pieces of evidence that served to corroborate each other. 

R v Flemming (1987) The need for a voir dire in the absence of the jury was questioned on an issue of admissibility evidence. Identification evidence is factual and so the jury should sit in. Acknowledge the use of fact and law as to whether the jury will be asked to leave or not. 

Distinguish from 'support' from 'corroboration': e.g. refusal to give evidence by the accused. Does that serve to corroborate evidence against them? The court can infer whatever they like if an accused stays silent. 

R v Akaidere (1990) Jury decide if corroboration of I.D. evidence is provided: usage of police procedure of having identification parade. For jury to acknowledge fact and what weight it carries. The identification parade is somewhat suggestive. The eyewitness may think, that the police know that one of the people is the wrongdoer and so they may feel pressured to select someone. 

R v Penny (1991) support being interpreted differently to corroboration. A group who were believed to have collectively committed a crime. There was good evidence that one member had committed the offence. Fact that there was clear evidence that the accused associated with the other suspects. Evidence served to support but did not truely corroborate the evidence. 

Jude and Jury can be identification witnesses- can be shown CCTV footage and asked to make their mind up as to clarity and detail provided. Kajala v Noble (1982) national television showed a crime being committed. That footage was shown to the jury and asked to consider is this person seen on the screen etc. Sadly, it is often poor quality. 

Police procedures: 

Aware of use of identification parade, aimed at assisting justice. Replaced to a notable degree by what is known as Viper Procedure. Viper is a video identification rather than have people psychically attend identification. 

S53 (1) YJ&CE 1999- 'At every stage in criminal proceedings all persons (whatever their age) competent to give evidence'

Numerous incompetent persons at common law. 

The accused: always competent to give evidence in his defense. Incompetent as a witness for the prosecution - s53(3) and s53(4) accused has right not to give evidence- however s36 CJ&PO Act 1994- the court can infer whatever they wish from accused's refusal.

Co-defendants: Defendant not permitted to give evidence against another defendant unless Guilty plea, separate trials or acquittal of party, BUT co-defendant may in giving evidence in his own favor inadvertently give evidence against another co-defendant (R v Paul 1920). 

R v Paul: accused pleaded guilty on examination, then damaged defense of a co-accused during cross-examination. Evidence admissible BUT Young v HM Advocate (1932) judicial discretion, prevents such cross-examination. 

Parties Spouse: Previously competent and compellable PACE 1984 s80 as amended by s53 YJ&CE Act 1999: spouse is compellable for the prosecution under s80 (2A) and (3) if:

Civil Partnership Act 2004 s84(1) application of s80 spouse not competent if jointly charged. Former spouse is not subject to limitations. 

Prior to present position: 

Tests of:

• Competence 
  
• corroboration- if we have other evidence that the testimony will support then this aids competence of the child. 
• warnings: appropriately guiding the jury- doubt factor (YOU ARE ONLY 7). Would allowing child to give evidence serve interests of justice? will they cope with cross examination?

s53(1) YJ&CE Act 1999 but not competent if:

• Cannot understand questions
• cannot give answers which can be understood

Relevance of Age: 

R v Wright; R v Omerod (1987) undesirable to call a 5yr old, supporting R v Wallwork (1958). No change in over 30 years. Overtaken by events (video links) and disapproved in R v Z (1990) firmly acknowledged that one could not look rigidly at age. Use of technology takes the pressure of court away. R v Hampshire (1995) Judge's perception of child's understanding. Barker (2010) child under 5 was able to give evidence in **** trial, crime committed when they were 3. Not necessary that all questions will be understood.- Difficult to reconcile with s53(3).  

On balance of probabilities. Competence should be established at an early stage, e.g. pretrial view of recording, questioning in presence of parties. 

Unsworn evidence:

Children under 14 give unsworn evidence: s55(2) YJ&CE Act. 

Civil Law: understanding of child (under 18):

R v Khan (1981) under 14, general rule check.

R v Hayes (1977) too young to take oath. 

Butler-Sloss Report 1988: Guidelines - lack of rigidity, child cannot be led, judicial guidance to jury. Recorded evidence replacing oral testimony (avoid self-corroboration).

Relevant factors:

1. Follow disclosure rules- determine competency at early stage.

2. Serve interests of justice- evidence should not be given where jury will not believe in child's evidence, but justice must be seen to be done! Do children get inferior justice?

3. Availability for Cross-examination- will child be able to take it? What rules should the lawyer follow? 

4. Childs evidence can corroborate other evidence: if other evidence supports the child this makes it more likely that the child's evidence is true. 

5. Unrepresented accused cannot cross-examine child: there would be no worth to the evidence, intimidating for the child. 

6. Value of screen and TV links- decrease stress, increase reliability of testimony. 

7. Child victim of crime- is the judge going to be more likely to see them as competent than if they were not a victim.

8. Application of Hearsay: could mum or dad give evidence for child?

9. Weight/value of evidence: what weight to attach to a young person's evidence, what outcome will it have? 

YJ&CE Act 1999- Special measures s16-33:

s16- under 17 eligible for assistance

s17- fear/distress reducing value of evidence

s19- determining measures 

s20 judicial discretion- vary direction

s21- Under 17, presumption in favour of special measures.

s23 - Screens 

s24 TV Links- also CJA 2003 general provision for criminal actions in s51-56. 

s27 video recordings 

s28 video recordings, cross-examination, re-examination. 

Pre-trial procedure: 

s27- video recorded evidence in chief: Special measure direction, interests of justice (disallow all or part), prejudice to accused, Direction to admit can be reversed- Witness to be available cross-examination, rules of disclosure not satisfied. 

Attendance in court may not be needed: Evidence in recorded form only- but note change in circumstances s27(9) live link can be permitted. 

Replaying video evidence: permissible in exceptional circumstances: Rawlings (1995), Mullen (2004)

Requests from the jury may be sufficient: P (G) (2006) Evidence may be given disproportionate weight? BUT warning from judge is not essential- Campbell (2014). 

s28- not yet in force: Video recorded cross-examination and examination in chief. Made in presence of parties as rules or the direction provides. 

Self-corroboration: s31 (2) video evidence treated as oral evidence, s31 (2) b) not capable of corroborating other evidence. 

After recording witness cannot be cross-examined or re-examined unless -court direction- if new matters which, with reasonable due diligence the witness could not have known about. Interests of justice. 

Therapeutic and forensic considerations: 

Desire to terminate child involvement with the legal process as soon as possible- but need for fair trial. Note for child defendants: 'measures of support' Practice direction (2002) 

Distinguish between expert opinion( generally admissible) and non-expert (generally inadmissible). 

General rules and exceptions exist: 

Opinion is not admissible from a non-expert where special knowledge or skill is required. 

Opinion is inference as opposed to fact, inferences relate to the judge and jury, the decision of the jury is opinion. 

Fact and inference: can overlap e.g. speed, temperature and identity. 

Reasons why opinion excluded: misleading, too influential to avoid perjury. 

R v Loake (1911) - Opinion of a friend of the accused and also a magistrate that the accused was insane inadmissible. Friend could be biased, also non-expert cannot give evidence where expert knowledge is required. 

BUT:

Non-expert opinion can be admissible: Fryer v Gathercole (1849) circulation of a libelous pamphlet, asked to verify document and as he had seen it before this was enough for his opinion to be admissible. 

Pollock: 'There are many cases of identification where the law would be rendered ridiculous if positive certainty were required from witnesses'. 

Fact can serve as basis for opinion: R v Davies (1962) drink driving, non-expert opinion allowed on whether driver had been drinking. 

R v Beckett (1913) non-expert opinion of commonplace objects value (plate glass window) allowed. 

Can Non-expert opinion be more valuable than expert opinion?

Motor Vehicle insurance fund v Kenny (1984) non-expert eyewitness was preferred over expert opinion relating to car crash. 

Witness must be: 

Competent (sufficient on its own)

Have appropriate qualifications (sufficient on its own)

Have appropriate experience (sufficient on its own)

The evidence should be essential to assist the court (sufficient on its own. 

The value of the opinion can be determined by the level of understanding of the relevant facts. If facts are limited this will have a knock-on effect on the value of the opinion. 

Experts can be subject to cross-examination and can be contradicted by other experts. 

R v Mason (1911) murder charge, claim of suicide. Opinion of doctor as to whether or not he thought the fatal wound was inflicted by someone other than the deceased allowed. Expert opinion determined the value of the defendant's version of events. 

R v Smith (1979) defence of automatism not upheld, the psychiatrist gave expert evidence, shows how opinion can dictate what the jury believes and possibly override a defence. 

When questioning lawyer should use more simplistic questions rather than trying to give impression they understand the expert evidence. 

R v Silverlock (1894)- solicitor was treated as expert in handwriting where knowledge acquired was amateur. 

Police officers can be deemed as experts: R v Clare, R v Peach (1995) interpretation of CCTV film footage, more experience with CCTV than average person which qualified them as expert. 

Lowery v R (1974) consider its influence and fairness in a trial of co-defendants. 

Experts needed where need to display expertise: R v Chard (1971) medical expert opinion inadmissible where accused was not insane and did not suffer from DM. Intent is to be determined by the jury. Opinion not using their expertise so it was inadmissible. 

Opinion relating to 'Ultimate view': can now be allowed but it 'must be helpful' R v Sanders (1991) defence of DM. If there is unequivocal and uncontradicted medical evidence favourable to an accused the jury should accept it. 

Value of expert opinion: worth of the factual base? To provide valid opinion it must have a basis in fact with the relevant information. 

R v Bradshaw (1985): defence of DM, psychiatrists evidence lacked weight, based solely on information provided by accused. Evidence inadmissible. 

Goldberg (2001)- expert was a good friend of the accused. Opinion not allowed. Weak factual base= inadmissible.  

Areas of expertise and levels:

R v Dallagher (2003) opinions of experts who examined ear prints were allowed. Science in its infancy but satisfied the tests of reliability and relevance. 

R v Luttrell (2004) lip-reading evidence of expert allowed. 

Compare: R v Robb (1991) lecturer in phonetics allowed to give expert opinion; with R v O'Doherty (2003) auditory analysis alone (quality, pitch, pronunciation) not allowed- acoustic analysis also needed (measure resonance and frequency).  Technical wording, in Doherty the court refused to allow evidence because the factual foundation was insufficient. 

The issue of Hearsay may arise but generally is no longer a barrier to admissibility (Civil Evidence Act 1995 (permits hearsay in civil cases) and Criminal Justice Act 2003. 

R v Abadom (1983) - Robbery, broken window, glass on shoe identical glass to window. Hearsay but admissible. Comparison based on fact, part of expertise lies in knowledge of the unpublished material.

Cost and time:

Civil actions: experts used where reasonably required to resolve the proceedings. Court permission needed. Use of expert-written reports and facility for written questions. Use of a single expert, direct a discussion between experts. 

Criminal actions:

Rules: Criminal Procedure rules 2005 are not exhaustive, any information that may assist the defence- R v Clark (2003) conviction for murder of two sons quashed. The judge on the day can make the decision to allow disclosure of evidence even if it has not been given before. Expert did not disclose alternative possible cause of death. 

R33.2(3) experts must not define their area of expertise and its scope. Rule 33A.5 Court may take account of, the quality of the factual basis/data for the opinion, how reliable is any inference, any reviews of the opinion by other experts, and was the factual foundation complete. (Reinforces case law). 

H (2014) it was alleged that the victim has been subject to physical abuse. Opinion of the defence expert was excluded at first instance. The claim was that the victim may have been affected by 'false memory syndrome' in having a delusional belief and had filled in gaps in her memory. Medical records of doctor and psychologist did not suggest recovered memory- but did show clear and detailed memory during her hospital stay.