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Chapter 2

Essay Questions

Why have the adversarial and inquisitorial systems evolved so differently?

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Where on the adversarial / inquisitorial ‘spectrum’ do you think the English criminal trial lies?

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To what extent do the rules of evidence hang on the historical use of juries in the adversarial system?

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Should the criminal trial prioritise truth-finding over and above other goals?

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Is it true that the inquisitorial system does a better job at fact-finding that the adversarial system?

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Chapter 3

 

The Terrorism (Further Measures) Bill 2008 [fictional] contains the following provisions:

Clause 1

  1. It shall be an offence for any person to assist another in any way whatsoever whether by act or omission in the commission, preparation or instigation of an act of terrorism.
  2. Where the prosecution have proved assistance in the commission, preparation or instigation of an act of terrorism by an act or omission it is a defence for the accused to prove that he either did not know or had no reason to suspect that the assistance given was in the commission, preparation or instigation of an act of terrorism.
  3. This offence is punishable on indictment by a maximum of ten years imprisonment.

Clause 25(1) of the Bill further provides that where, in accordance with a provision mentioned in clause 25(2), it is a defence for a person charged with an offence to prove a particular matter, if the person adduces sufficient evidence to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not. Clause 25(2) lists a number of clauses but not clause 1.

Consider whether the above provision, if enacted in the above terms, would be compatible with Article 6(2) of the European Convention on Human Rights and if not, how it may be amended so as to be compatible.

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'No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained' per Viscount Sankey LC in Woolmington v Director of Public Prosecutions (1935).

To what extent has the principle been safeguarded in the years following Woolmington v DPP?

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‘The presumption of innocence, one of the central tenets of a fair trial as enshrined in Article 6 of the European Convention on Human Rights, is epitomised by the requirement that the prosecution prove the guilt of the accused beyond all reasonable doubt. In practice, however, the principle has been whittled down by parliamentary intervention and judicial interpretation. It is hoped that reliance on the Human Rights Act 1998 will serve to restore the principle to its fundamental status.

Discuss the issues raised in the above statement.

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Chapter 4

 

Sanjay, aged 8, has witnessed a burglary at his parents’ home. The prosecution want to call him to give evidence concerning the identity of the accused. Will they be able to call him to give evidence?

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The prosecution wish to call David’s estranged wife, Clara, to testify against him on sexual abuse charges against his 12-year-old niece. Clara is reluctant to testify; can she be compelled to give evidence?

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Pauline, aged 18, has an IQ of 70 and a reading age of 8. She is stopped on her way out of a local clothes shop by a security guard who accuses her of placing a T-shirt in her bag without paying for it. Is Pauline competent to testify in her own defence?

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Why do you think special exemptions exist to limit the compellability of diplomats and foreign heads of state? Are these exceptions justifiable?

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‘The rules concerning the compellability of spouses in English law are outdated and in pressing need of reform.’

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Chapter 5

 

Consider what measures, if any, the court may put in place to assist the following witnesses:

  1. Alec, who was subject to a series of sexual assaults when he was eight years old in a local care home. He is now 16, and has just reported the incident to the police. He is likely to be 17 by the time the case comes to trial.
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  2. Sally, who was recently physically assaulted by a leader at her youth club. She is 12 years old.
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  3. Yvonne, who was raped by her step father at the age of 14. She is now 26 years old.
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  4. Danny, who was the victim of a hit-and-run incident. He is 84 years old, and is very frail
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  5. Paul, 15, who witnessed his girlfriend, aged 17, suffer a violent sexual assault.
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  6. Mandy, 32, who witnessed a local gang commit a robbery at a filling station. She is fearful that she may be subject to retaliation if she gives evidence for the prosecution.
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‘The courts should only resort to anonymity orders for fearful witnesses in the most exceptional of cases. If a lesser measure would suffice, then that measure should be implemented.’

Does the above quotation reflect the rules relating to witness anonymity in English law?

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‘While the government may well have had honourable intentions in introducing a wide range of special measures for vulnerable witnesses, ultimately such measures are unlikely to change the experience of testifying for many. Not only is the legislative framework which created the special measures unduly complex, but also the entire culture of the adversarial form of trial means that special measures can never provide an effective means of protecting vulnerable witnesses.’

Evaluate the issues raised in the above quotation.

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Should special measures apply equally to all vulnerable witnesses, irrespective of whether they testify as part of criminal or civil proceedings?

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1See eg R v Gunning [1980] Crim LR 592; R v Sharp [1993] 3 All ER 225.

 

Chapter 6

 

Dan is charged with robbery. It is alleged that he snatched a handbag belonging to Martha, after knocking her to the ground. You are asked to address a number of questions in respect of the following witnesses who will testify at trial:

  1. Martha, aged 62, is the alleged victim. She identified Dan as the assailant, and told police that he lives in her tenement block. Police are aware that there has been an ongoing feud between Martha’s family and Dan’s family for some years. In particular, Martha has made some twenty complaints to the police and the local council about noise emanating from the flat occupied by Dan, and has told the police that it was ‘time he was locked up once and for all’.

    Can the Defence cross-examine Martha about this animosity and bring evidence in rebuttal if she denies it?

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  2. William lives in the same estate as the victim and the defendant. He will say that he saw the defendant, whom he knows by sight, knock Martha to the ground, snatch the handbag and run off. The defence has evidence that William has recently been diagnosed as a diabetic but is refusing to stick to the diet given him. He insists on eating foods with a high sugar content which, while not putting him into a hyperglycaemic coma, can affect his eyesight and balance.

    Can the defence cross-examine William about his condition and bring medical evidence as to the effect of his condition on him and his ability to identify the accused?

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  3. Dan confessed to DC Lyons in the course of a police interview. However, the defence allege that he only did so because DC Lyons threatened to charge his brother with possession of heroin if he did not do so. D.C. Lyons was recently demoted after the acquittal on appeal of a man convicted of robbery, when it became apparent that the confession had been fabricated.

    On the assumption that the confession is admitted, can the defence cross-examine D.C. Lyons about this acquittal and the subsequent disciplinary proceedings and demotion?

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  4. Benjamin, a traffic warden, was on duty on the day of the robbery. He made a statement to the police later that day in which he said that he had chased the assailant, who fitted the description of the defendant. Benjamin says the assailant managed to outrun him, but claims he saw the man enter Flat 222 on the second floor, which is occupied by the defendant's family. The trial took place nearly ten months after the offence and the Prosecution permitted Benjamin to read his statement before going into the witness box. Despite having done so, once Ben starts to give evidence he states that he is unable to recall the details of his statement. The prosecution now apply for leave to allow Benjamin to refresh his memory from the statement made to the police. The defence object.

    Assuming you are the trial judge, would you permit the witness to refresh his memory?

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  1. Elliott was engaged to be married to Christine for several months in 2001, during which time full intercourse regularly took place between them consensually. Christine broke off the relationship when she discovered Elliott was sleeping with another woman. In June 2006 they met again at a party given by a mutual friend. Christine told guests that she felt unwell, said she was going upstairs to lie down. She then alleges that Elliott entered the bedroom and raped her, despite her struggling and asking him to stop. In defence, Elliott states that Christine had asked him to resume their relationship earlier in the evening, and invited him to the bedroom where intercourse then took place with her consent.

    Elliott pleads not guilty to rape. Can defence counsel adduce evidence of his previous relationship with Christine?

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  2. Would your answer be any different if the following information came to light? It transpires that, during their relationship, the intercourse that took place did so in the circumstances of simulated rape. That is, Christine pretended to resist Elliott by screaming, protesting and struggling, and Elliott pretended to overcome her resistance using force.
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‘Section 41 has clearly failed in obtaining its legislative goal; the time has come to overhaul the provision as to ensure that previous sexual history can never be adduced against a complainant in a rape trial’.

Do you agree with the above statement?

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Chapter 7

 

‘The danger is that the less responsive an accused is, the more difficult it will be for the court or jury to make any inference which it can be satisfied is correct. They are left to speculate about what people in the accused’s position might be expected to do if guilty or innocent.’

Consider the issues raised in the above statement. Does authorising the drawing of inferences encourage a court or jury to be less cautious than it otherwise might be in such situations?

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‘When the decision was taken in 1994 to introduce legislation formally enabling the tribunal of fact, if it thought fit, to draw an adverse inference from the defendant’s failure to respond to questioning, the act had to thread its way through a veritable minefield of motivational and procedural considerations. The relevant provisions are predictably complex’.

Critically discuss the issues arising in the above quotation.

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Pauline is stopped outside a local clothes shop by Tansey, a fellow shopper, who accuses her of placing a t-shirt in her bag without paying for it. Pauline shrugs her shoulders, and walks on. Later that evening, the police arrest Pauline on suspicion of theft. At the police station, Pauline’s solicitor advises her not to answer any questions since she ‘will just end up in more trouble’. Pauline remains silent at the interview, but at trial testifies that the t-shirt was placed in her bag by her four-year-old daughter without her knowledge.

Discuss the evidential issues arising.

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Chapter 8

Consider whether the trial judge should exclude the following confessions:

Aaron is a mature businessman, a director of a number of companies and former mayor. He was arrested on a charge of corruption at 6.30 a.m. on Monday in the presence of his wife and taken to a police station. He was refused access to a solicitor by a superintendent who stated that in reliance on section 58(8)(b) of the Police and Criminal Evidence Act 1984, he had reasonable grounds to believe that others suspected of involvement in the offence and not yet arrested would be alerted. He was interviewed three times. During the course of these interviews he made it clear that he knew his rights and refused to answer a number of questions. However, during the third interview he admitted that he had corruptly received money from a number of contractors in return for ensuring that council contracts went to them.

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Ben is a heroin addict who was arrested for burglary. The police realised he was a drug addict and made no attempt to interview him until 18 hours after his arrival at the police station. Before being interviewed he was asked if he wanted to see a solicitor. He said he did not and signed the custody record to that effect. Ben made no complaint during the 18 hours of detention, and told the police he felt able to answer questions. He was subsequently interviewed by two police officers, having again refused a solicitor. During the interview he admitted involvement in a number of burglaries, which, he said, he did to get money to feed his habit. After the interview he complained that he was suffering withdrawal symptoms. A doctor then attended him, and, on finding a high pulse rate, prescribed medication. However, he expressed the opinion that Ben was otherwise fit to be detained. Ben now says the confession was false. He was suffering from withdrawal symptoms and was prepared to say anything in order to get out and obtain a ‘fix’.

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Julie is a 21-year-old medical student. During her training on a hospital ward, a young boy died after his oxygen equipment had been tampered with and a tube detached. Police arrested Julie on suspicion of murder. She was detained for a total period of 49 hours. Owing to an administrative error, the last thirteen hours were not properly authorised in accordance with PACE and the Code of Practice. Julie was interviewed in the presence of a solicitor six times, for periods of two hours over two days. On the tape recording of the interview the interviewing officer can be heard repeatedly telling Julie in an aggressive voice that she killed the boy. Despite Julie’s denial, the officer repeated the accusation some thirty times over the six interviews. Toward the end of the fifth interview a police officer showed Julie a picture of the little boy taken during the post-mortem and told her to take it to her cell and reflect on what she had done. During the final interview the interviewing officer could be heard shouting at Julie and demanding that she tell the truth. Julie then made a series of statements in which she accepted responsibility for the boy’s death. Julie’s solicitor said nothing during the interviews.

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Ahmed and his girlfriend were arrested on suspicion of making a fraudulent claim on their insurance in respect of an alleged burglary of their flat. Ahmed refused a solicitor and signed the custody record to that effect. During a taped interview, Ahmed asked the interviewing officer what was likely to happen to his girlfriend. The officer told him that she would be interviewed and, if found to be involved, she would be charged. Ahmed then made a confession in which he said he was totally to blame and that the girlfriend was not involved.

Would your answer to (4) above differ, if the interviewing officer told Ahmed that if he admitted the offence, his girlfriend would not be prosecuted?

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Chapter 9

 

In Sang [1980] AC 402, Lord Diplock stated that a trial judge ‘has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means’ (at 437). Is this still an accurate summary of the law?

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Critically evaluate how serious violations of PACE and the Codes of Practice have to be before evidence will be ruled out under section 78.

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Police suspect that Joe and Dave are dealing in cannabis. Having kept them under close surveillance, two officers break into the flat one night after seeing the two men leaving. Without the appropriate authorisation, they install covert listening devices in the kitchen. Over the next two weeks, a number of incriminating statements are transmitted by the devices, but police fear they still do not have enough evidence to charge them.

Consequently, Jemima, an undercover officer is sent to a local pub where the two men have allegedly dealt cannabis on previous occasions. She approaches them in the car park, and asks whether they could supply her with some heroin. Joe tells her he ‘doesn’t do hard stuff’, but Jemima says that if he could get hold of a large quantity for her, she would ‘make it worth his while’ and would pay ‘through the roof’. A week later, the two men meet Jemima and supply her with the requested amount of heroin. Both men are arrested and prosecuted.

The prosecution now seek to use both the recordings transmitted by the listening devices and the heroin offered to Jemima as evidence against Joe and Dave. Advise Joe and Dave.

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Chapter 10

‘Since the mandatory warnings have now been abrogated, the English law of evidence need no longer concern itself with the issue of corroboration.’

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In its 1972 report, the Criminal Law Revision Committee expressed the view that mistaken identification was ‘by far the greatest cause of actual or possible wrong conviction.’

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Darren, Len and Martyn are charged with causing grievous bodily harm with intent. It is alleged by the prosecution that Darren, the leader of a local criminal gang, was furious that the victim, Jeff, was having an affair with his wife. As Jeff was leaving his work at a local pub late one summer’s evening, he was set upon by three men who beat him with baseball bats and an iron bars. All were wearing balaclavas at the time of the attack.

Kitty, a witness who was standing outside the pub, informs police that she saw one of the men remove his balaclava as they ran off, and she identifies one of the assailants as Len, an ex-boyfriend.

Melanie, who was also standing outside the pub, recorded the attack on her mobile phone. During the recording, one of the attackers can be heard shouting ‘that’ll teach you to mess with my missus’. PC Brown, who has arrested and interviewed Darren on a number of previous occasions, immediately identifies the voice as that of Darren. A short distance away, Peter, who was walking his dog in the vicinity, bumped into a man whom he described as being out of breath and carrying a balaclava and an iron bar. Police ask Peter to attend the station, and show him a one-way screen, through which he can see Martyn being interviewed by detectives. PC Hunt asks ‘Was this the man who ran into you?’, to which Peter responds that it was.

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Chapter 11

 

Consider whether the bad character of the defendant is admissible at his trial in the following circumstances:

  1. Mandy is charged with theft from the person. It is alleged that she stole a handbag from a woman after showing her a purse and asking if it was hers. When the woman took her handbag out from her shopping bag to check, Mandy snatched it and ran off. Mandy has two previous convictions for theft from the person using the same trick.
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  2. Gerry is charged with causing grievous bodily harm to Julian, with whom he had an altercation after allegedly being “cut up” on a slip-road. Julian, who sustained bruises and a broken shoulder, says Gerry punched him and he fell to the ground breaking his shoulder. Gerry claims that Julian, who had stopped at the roadside, fell while trying to avoid an HGV that overtook as he was climbing out of his car. Gerry has three previous convictions for assault, one of which followed a road rage incident.
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  3. Eric is charged with causing actual bodily harm to Victor. In his evidence Eric says that he was walking in the park when a young girl complained to him that Victor had made indecent suggestions to her. Eric claims that he then challenged Victor, who responded with violence. In his evidence, Victor said that he went to the park with his children. While in the play area other children told him that Eric, who had been hanging around, had asked several of them if they wanted to come with him to feed the ducks. When Victor approached Eric to ask him about this, Eric punched him a number of times. Eric has two previous convictions for indecently assaulting young girls and is on the Sex Offenders Register.
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  4. Les is charged with assault occasioning actual bodily harm on Leeroy. The arresting officer gave evidence that, on being charged, Les said, ‘Well, he’s gay, and he told me he wanted to take me into the toilets for some fun, so I thumped him’. Les has two convictions for burglary, three for taking a motor vehicle without consent and one for indecent assault on a female.
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    1. Mervyn is charged with indecent assault. In his evidence-in-chief he told the jury that he was a respected member of the community, he regularly attended church and he had been a verger. There is evidence that he had attended church regularly and had been a verger until December 2002. However, following an investigation by the Church authorities into allegations that he had touched choirboys inappropriately in the vestry, he had been required to resign from his position as verger and he no longer attended church.
    2. Two of Mervyn’s alleged victims, Marcus and Maurice, are friends with Mervyn’s 12-year-old son, Alan. The defence alleges that the two boys have known each other all their lives and concocted their stories together as revenge against Mervyn because he had banned them from seeing his son.
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‘Evidence of the accused’s previous misconduct can be highly prejudicial to the case of the defence and should only be admissible in the most exceptional of circumstances. The current rules, contained in the Criminal Justice Act 2003, too readily allow for such evidence to be admitted.’

Critically evaluate the above statement.

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As the number of reported cases on the topic makes clear, similar fact evidence has proved a contentious and uncertain area of the law, particularly in criminal cases but also in civil cases like that before the House. But such evidence may be very important, even decisive. It is undesirable that the subject should be shrouded in mystery.’

Critically evaluate the above statement made by Lord Bingham at [539] in O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534.

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Chapter 12

 

Albert was killed in a brutal attack as he left a London nightclub. He was stabbed and kicked by two men and died of his injuries two days later. Duncan Davies and Eric Evans are charged with his murder. Consider whether the following statements can be admitted at their trial:

  1. Albert’s girlfriend, Mattie, who had attended the nightclub with him, told the police that just before leaving the club on the night of his death, Albert told her he had been threatened by Davies and Evans and said he was going to leave to avoid any trouble.
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  2. Albert was unconscious when the ambulance arrived but revived briefly on his way to the hospital. He told Kelly, the paramedic attending him, ‘It was Davies and Evans. Make sure they don’t get away with it.’
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  3. Stanley, the barman at the nightclub, made a statement to the police on the night of the assault in which he said that he was taking a cigarette break outside the main entrance when he saw Davies and Evans, who were frequent visitors to the club and were well known to him, leave the club and pass between them what appeared to be a knife. The barman has since emigrated from England to Australia and in response to a request from the prosecution that he should return to give evidence wrote that he had no intention of doing so.
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  4. The defence have notified the prosecution that Davies and Evans had an alibi for the night of the assault. They claim to have written statements from James and Paul Murray, who both claim they were at home playing cards with Davies and Evans at the time of the attack. Police officers have tried to contact both men but were unable to find them. The defence solicitor states that a week before trial, she received a telephone call from James Murray in which he said the police were looking for him and his brother and they were too scared to give evidence. There is no evidence of any efforts by the defence to find the two witnesses.
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Akram, Boris, and Chardonnay are charged with conspiracy to evade the duty on cigarettes and tobacco. Police and Customs officers raided a warehouse, and found several thousand packs of cigarettes and tobacco on which duty had not been paid. All three defendants deny involvement in the conspiracy and each denies knowing the other alleged conspirators. Consider the following pieces of evidence which the prosecution wish to adduce at their trial and indicate whether they are likely to be admissible in evidence at their trial:

  1. A container of cigarettes and tobacco had been taken from a bonded warehouse by two men claiming to represent the exporting agency. One had driven a tractor to which the container had been attached; the other drove a white car that followed the container. Michael, a customs officer leaving the warehouse having completed his shift, saw the container leaving and, being suspicious of the direction taken, rang Chris, his supervisor, and gave him the registration number of the white vehicle that proved to be owned by Akram. The supervisor made a note of the number on a memo pad and attached it to his statement. Michael made no note of the number and cannot remember it.
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  2. The owners of the warehouse had leased the premises to a private company known as Enterprize North on the basis that gas, electricity and water supplies would be arranged and paid for by Enterprize North. Following a search of Boris’s home, police found letters addressed to Enterprize North acknowledging the request for the supply of gas, electricity and water to the warehouse and bills for their supply.
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  3. Telephone bills were obtained from a mobile telephone company that were automatically produced by a computer. These showed regular calls made to and from mobile telephones owned by the three defendants to each other over a period of two years.
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  4. Following the arrest of Chardonnay, a police officer conducting a search of her property received five telephone calls from persons asking for her and requesting further supplies of cigarettes. The prosecution wish to call the officer to give evidence of receiving the calls in order to prove the involvement of Chardonnay in the unlawful supply of cigarettes.
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Both the civil and criminal courts of England and Wales now admit hearsay evidence too readily.’ To what extent do you agree with this comment?

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Chapter 13

 

‘The general rule is that expert evidence of a psychologist or psychiatrist is inadmissible where the defendant is a normal person’

To what extent does the above statement accurately reflect English law?

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Graeme is called to testify against Hugh, who is on trial of causing death by dangerous driving. Graeme was at the pub with Hugh on the evening in question. They had several pints of beer together, followed by some whisky. As they left the pub, Hugh appeared unstable on his feet and fell over twice. Graeme advised Hugh that he was very drunk and should not drive home, but Hugh ignored this advice and drove off. Will Graeme be able to tell the court that Hugh was unfit to drive?

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Molly has recently been diagnosed with depression. She finds it difficult to concentrate and is easily agitated. She has recently been charged with the murder of her friend, Alisa, and wishes to run the defence of diminished responsibility. Will the defence be able to call an expert to testify in connection with these matters?

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Molly has recently been diagnosed with depression. She finds it difficult to concentrate and is easily agitated. She has recently been charged with the murder of her friend, Alisa, and wishes to run the defence of diminished responsibility. Will the defence be able to call an expert to testify in connection with these matters?

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Andrew and Zack are charged with inflicting GBH on George contrary to section 18 of the Offences Against the Person Act 1861. Andrew alleges he kept watch while Zack beat George with a cricket bat in a nearby alleyway. Zack claims he kept watch while Andrew attacked George. Andrew’s counsel wishes to call a forensic psychologist to testify that Zack was more likely than Andrew to have carried out the attack since he had an aggressive personality and was prone to violent outbursts. Will he be allowed to do this?

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