Police Probationer Training Programme PDF

OFFICIAL Unit 3 Lesson 3...

OFFICIAL Unit 3 Lesson 3 Meaning and Admissibility Lesson Aim: The learner will be able to explain the concept of evidence with particular reference to its meaning and admissibility Learning Outcomes: On successful completion of the lesson Introduction students will be able to:- In Scots Law a person is:- 1. Define evidence in relation to police enquiries Presumed innocent of a crime until guilt has been proved beyond reasonable doubt. 2. Explain what is meant by onus of proof The Police are responsible for investigating crimes and offences and submitting reports, 3. Explain the essentials required to prove by way of a Standard Prosecution Report, to the guilt of an accused the Procurator Fiscal detailing the facts and circumstances of the case. 4. Explain the principle of corroboration On receiving your Standard Prosecution Report the Procurator Fiscal will consider the evidence and decide whether or not to 5. State the rule of best evidence prosecute. The Crown Office may later become involved in this process in relation to more serious crimes but the initial decision to 6. Explain the meaning of hearsay prosecute always rests with the Procurator evidence Fiscal. 7. Explain what a credible and competent witness means 8. Explain the common law caution and when it should be used 1 th Amended 24 April 2024 v.5 OFFICIAL  OFFICIAL Unit 3 Lesson 3 Meaning and Admissibility What is Evidence? So what do we mean by evidence? You may well be a witness in a minor theft or a brutal murder where the volume and complexity of evidence will vary considerably. Evidence however remains the same and is defined as follows:- “Evidence includes all legal means (exclusive of mere argument) which tends to prove or disprove the truth of the subject before the court.” This can include:- Eye witness statements CCTV footage D.N.A. Fingerprints Admissions Forensic material Onus of Proof In criminal law, it is for the prosecution to prove the guilt of an accused, beyond reasonable doubt and the accused is under no obligation to offer any explanation for their conduct. Even in some statutory cases where the defence may argue an accused person had a "reasonable excuse”, the defence need only introduce a reasonable doubt rather than prove the issue was beyond reasonable doubt. Note:- You may also hear onus of proof referred to as burden of proof. 2 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 3 Meaning and Admissibility Essentials Required to Prove Guilt The mnemonic CRIES is useful for remembering the essentials required to prove guilt. In order to prove the guilt of an accused the prosecution must satisfy the court that:- Crime has been committed Relevant charge to the crime Identification of the accused as culprit Evidence is competent/admissible Sufficient evidence to prove the case Crime Has Been Committed Before being able to prove an accused has committed a crime, the prosecution must first prove that what has occurred is in fact a crime. For example:- In a case of vandalism, the prosecution must prove that the damage was intentional or the result of a reckless act and not merely accidental. 3 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 3 Meaning and Admissibility Relevant Charge to the Crime Having shown that what took place was in fact a criminal act, the prosecution must then show that the charge made against an accused relates accurately to the criminal act committed. Example:- If in a case involving a broken shop window the prosecution libel a charge of ‘housebreaking with intent to steal from the shop’, the accused would be acquitted if it were proven that the window breaking was merely an act of vandalism. Identification of the Accused as Culprit It is fundamental in a criminal case that the accused can be identified by corroborated evidence and as we have discussed in the lesson on Identification, this identification can come in various forms, for example:- Eye witness or witnesses Forensic evidence such as body fluids, fingerprints and DNA CCTV evidence Presentation of forensic evidence requires evidence to be led in court from the individuals involved in obtaining, gathering and analysing this evidence. In the correct circumstances, the identification of an accused can be proved by fingerprint evidence alone. It is not up to the Police to decide if evidence is competent. We must use good judgement and ensure that the evidence is obtained by following the correct procedures outlined within guidelines set out by Police Scotland, Crown Office and Procurator Fiscal Service (COPFS) and Scottish Courts. Remember the Police must disclose all the evidence to the courts, regardless of whether it may prove or disprove the guilt of the accused. Failure to do so may result in the case collapsing. 4 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 3 Meaning and Admissibility Evidence is Competent/Admissible The terms:- competent evidence; and admissible evidence have virtually the same meaning. Put simply, they refer to evidence which the courts allow to be taken into consideration. Both are used interchangeably within Scottish Courts. Each criminal case is unique and what is accepted in one circumstance may be rejected in another. Sufficient Evidence to Prove the Case It is worth emphasising that Scots Law states there must be sufficient, admissible, evidence to prove beyond reasonable doubt that the accused committed the crime libelled. Principle of Corroboration The principle of corroboration means that one piece of evidence is supported by another. It is for this reason that Scots Law requires evidence from at least two separate sources to convict an accused. As fully explained in the Sufficiency lesson note, the principle of corroboration requires that there must be two sources of evidence to establish that a crime has been committed and that the accused committed it. The evidence of separate credible eye witnesses, circumstantial evidence or physical articles of evidence (known as productions) may do this. There are occasions when it can be proved that an accused has lied when giving an explanation for their actions. This may have an obvious significance to the police investigation but the lies cannot be used in court as corroboration of the guilt of an accused. It has been accepted by the High Court that there are many reasons for a person, both accused and witnesses, telling lies, other than to conceal their guilt or involvement. 5 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 3 Meaning and Admissibility Scenario S A store detective, Julie Sanders, employed by Tiffany's Store, The Sidings, Brookbank, was working within the store when she observed a woman approach a display of ladies coats. The following then occurred:- The woman grabbed 10 ladies coats from the rack and ran from the store pursued by the store detective. She radioed for staff and police assistance. Police control were informed and they immediately focused City Centre CCTV on the area. CCTV cameras recorded the woman running from the shop premises carrying what appeared to be a quantity of ladies coats and being pursued by a store detective. The woman disappeared from the view of the CCTV camera and was lost to sight by the store detective A short time later the CCTV camera operator observes the woman again, this time walking in the High Street nearby, but without the coats. They direct you and your colleague to the woman’s location. When you arrest her you note that she is breathing heavily, sweating and agitated You note the woman’s details and complete a PNC check on her. This confirms her to be Marissa Long At this time the store detective approaches and states "that’s the woman, she stole the coats" The coats were never recovered 6 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 3 Meaning and Admissibility Activity 1 A1 Have a look at the evidence available in this Brookbank scenario. Summarise what you would consider as evidence and what you think the outcome of this case was. 7 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 3 Meaning and Admissibility Professional Standards PS When investigating a crime or offence make sure that statements and physical articles linked to the case, known as "productions", are accurately recorded within your Police notebook. You may be asked to verify noting a statement or when and where you took possession of a certain production. If you don’t have these details within your notebook, this may affect your credibility and the integrity of the court case. Rule of Best Evidence The rule of best evidence is that the best evidence available must always be led. The courts will not allow any evidence, which, by its very nature, implies that better evidence is available. Example:- When a theft of perishable goods has taken place, it would be impractical to store these items until trial. Therefore, a printed receipt detailing the stolen and recovered items along with witness testimony could be used as evidence. It has been agreed that photographs and samples (if appropriate) can be taken and these can be produced in court by virtue of the original having been destroyed. Note:- An exception to this rule is the use of documentary evidence. The Criminal Procedure (Scotland) Act 1995 allows for an authenticated copy of a document to be led even when the original exists. 8 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 3 Meaning and Admissibility Documentary Evidence It is a common misconception that the term ‘documentary evidence' merely relates to a production that also happens to be a document. More accurately it is the:- "Evidence of fact brought to the knowledge of the court by inspection of a document produced to the court". Example:- The court will normally accept that a substance is in fact a specific drug if a certificate to that effect is produced and signed by two forensic scientists. In the past the courts have not accepted in evidence a copy document where the original still exists. The Criminal Procedure (Scotland) Act 1995 allows for an authenticated copy of a document to be given the same status as the original, regardless of the existence of the original. However, the trial judge has the discretion in application of these provisions e.g., an official copy of your police notebook. Hearsay Evidence This is evidence which is:- “Evidence at second hand given by a person who is merely repeating something said by another person.” Because of the rule of best evidence, hearsay evidence is normally inadmissible. However, the following are examples of when hearsay evidence can be admissible, remember CID. Caution - Statements made by accused persons after they have been cautioned etc. Involuntary - Involuntary exclamation made by persons at the time of the relevant incident (e.g. “He’s got a knife!”) Death - Statement made by a witness on their deathbed (known as a dying deposition or dying declaration depending upon the circumstances in which the statement was taken). 9 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 3 Meaning and Admissibility Feedback 1 F1 The woman was arrested and appeared at Brookbank Sheriff Court the following day. She pled not guilty and was subsequently released to appear at a later date. At the trial the Defence Agent suggested:- Defence Agent Insufficient evidence of the theft as only one eye witness had allegedly seen her steal the coats The defence suggested that it was inconceivable that their client had the opportunity to dispose of this property and therefore it could not have been her Prosecution (Procurator Fiscal) The store detective’s testimony was corroborated by:- The police CCTV footage showing the accused running from the store pursued by the store detective CCTV footage showing accused in possession of the coats You noted when you arrested the accused she was breathing heavily, sweating and agitated. Her presentation indicated she had been running prior to her arrest The prosecution were able to prove a chronological chain of events which effectively acted as corroboration for each part. CCTV footage played a significant part. She was found guilty and when her previous criminal record was reviewed she was imprisoned for 3 months. 10 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 3 Meaning and Admissibility What is a Credible Witness? A credible witness is:- “One whose evidence is held by the court to be trustworthy no matter how bad the character of the witness may be.” Any person who has a connection with a case can be called as a witness to give evidence but the court will consider only evidence given by a credible witness. With this in mind you should treat everyone who can provide information during your investigation of an incident as a potential credible witness. You should not decide to exclude information from a person on the basis that you do not consider the evidence given as credible as it runs contrary to other information you have been given; the individual concerned has given false information (lied to you) in the past or the individual is a member of a group you might consider (stereotype) to be untrustworthy generally. There is an opportunity when submitting your standard prosecution report (SPR) to make comment in relation to your views on the credibility of the information given by any witness (this is done in the ‘Remarks’ section of the SPR – non disclosable) but it is the prerogative of the Procurator Fiscal to decide who will be called as a witness and ultimately the Court - in the presence of the Judge - to decide on the credibility of a witness. Competent Witnesses When the court decides to permit a person to give evidence this person is described as a competent witness. When a witness is cited to attend court they must attend for the purpose of giving evidence. 11 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 3 Meaning and Admissibility Activity 2 A2 Can you think of any reasons why an accused or a witness may lie in a court of law? Common Law Caution The common law caution consists of the following form of words:- ‘You are not obliged to say anything but anything you do say will be noted and may be used in evidence’. The common law caution is administered to any person:- prior to a search, identified as a suspect, who is an arrested person, or prior to any questioning by Police By administering the caution to the suspect or accused in this way you are advising the person of their right to remain silent. The administration of a caution also demonstrates the over-arching principle of fairness which the police must adhere to when dealing with a suspect. Regarding fairness, the fact that you issue a caution does NOT release you from your obligation to afford a suspect the opportunity to consult with a solicitor prior to being interviewed should circumstances dictate such a need. 12 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 3 Meaning and Admissibility This same form of words will be used when an interview is being recorded in another or additional format, e.g. on a mobile device or in an audio or video format (whether on tape or a digital system) since it is no longer mandatory that interviews have to be "taken down in writing". What is essential here is that the person being interviewed is aware that their words are being "recorded" in some format and may be made available to the court. Should this record be in some format other than or in addition to written notes, the suspect should be made aware of this. This form of words should be given verbatim (i.e. repeated in full) to the suspect or accused, before asking:- ‘Do you understand?’ It is of the utmost importance that a suspect fully understands the common law caution when it is administered and every effort should be made to explain it in language they comprehend. Good practice dictates that confirmation of understanding should be obtained prior to proceeding with the interview/statement, noting any response. If you are in any doubt whatsoever that the suspect does not fully understand the caution, guidance should be sought from your supervisor in relation to possibly consulting and using an Appropriate Adult or interpreter (further details will be provided in the Adult Protection lesson in Unit 6). The importance of this is clear in the following case law; An accused (aged 14 at the time of the offence) was charged with rape. The accused was convicted and appealed on the ground that the interview had been unfairly obtained. The accused argued that he was tired and unfamiliar with the procedure at interview; he had a verbal IQ of around 74 and had not in fact understood the caution given to him and having regard to his age, the timing of the interview which took place very early in the morning and his inability to understand the caution, the purpose of the interview and his rights, it was unfair to have admitted the interview as evidence. LB v HM Advocate 2003 S.L.T. 662 13 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 3 Meaning and Admissibility Any response given to the caution and the way in which the suspect or accused indicated that they understood should be noted, again verbatim, in your police issue notebook/ mobile device. Additionally, the time that the caution was given should be detailed in your notebook together with details of your corroborating officer. Where a suspect or accused indicates that they do not understand the terms of the caution, you should note this in your notebook/ mobile device and make an attempt to explain the caution in simpler terms. For example, you could ask the question:- ‘What is your understanding of what I have said to you?’ Again any reply made should be noted verbatim in your police issue notebook/mobile device. In the majority of instances it will be clear to you as a Police Officer that the suspect or accused understands the caution although you should remain aware of an individual's physical or mental state in determining their understanding. Where you have any doubt, you should satisfy yourself that they fully understand the caution before proceeding to question them. Remember you may be called upon to justify the questioning of a suspect or accused. Furthermore the court may scrutinise your perception of the suspect or accused's understanding of the caution. It is therefore important to have sufficient relevant information detailed in your notebook to justify your actions. During the course of investigations you may have to interview suspects who have mental health issues. You should note that Mental Health (Care and Treatment) (Scotland) Act 2003 defines mental disorder as “any mental illness, personality disorder or learning disability however caused or manifested”. In such instances the rule of fairness must always apply. It would be wholly inappropriate to interview such a person without some form of support mechanism being in place to safeguard the suspect and the investigation. 14 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 3 Meaning and Admissibility Consequently, the ‘Appropriate Adult Scheme’ should be considered prior to the interviews of suspects perceived to have a specific learning difficulty. Police Scotland procedures should always be adhered to in respect of this and your supervisor should also be consulted. Note:- The Lord Advocate has instructed that where it is judged that a suspect should be provided the assistance of an Appropriate Adult during an interview, the suspect should not be allowed to waive their right to consult with a solicitor prior to interview. Incriminating Statements Clearly, if a witness has not been involved in the actual commission of a crime or offence, there is no need to deliver the common law caution to them, prior to asking questions and noting a full statement. However, there may be occasions where you are speaking to someone who you do not initially suspect of having involvement in the crime or offence but they make an incriminating reply or spontaneous statement inferring guilt. At this point you must immediately caution them at common law before they make any further comments. You should note in your notebook/ mobile device the words they uttered which lead to the caution being administered and thereafter note any further words. Where any comments or incriminating statements are made to you as a Police Officer by a suspect and you have no corroboration present at the time, you should note them in your notebook/ mobile device, give the common law caution, note the reply (if any) and ask no further questions. You should inform the Procurator Fiscal of this chain of events in any subsequent police report or statement. 15 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 3 Meaning and Admissibility Feedback 2 F2 There are numerous reasons for an accused and a witness to lie in court, for example:- Accused trying to protect other criminals who may have been involved Accused not wishing to reveal the extent of their involvement further in fear of incrimination Accused lying to protect his or her financial position A witness in fear of repercussions A witness lying to protect the accused The list is endless and obviously the punishment for lying within a court of law is a serious criminal offence. (See Crimes Against Public Justice lesson in Unit 4) Activity 3 A3 Practice delivering the common law caution to another class member. Ensure that you record in a notebook/notepad the relevant details:- Time Date Place By Who Corroborating Officer Confirmation of understanding Any statement made after caution. 16 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 3 Meaning and Admissibility Feedback 3 F3 RESTRICTED T12345 1630hrs End Shift Wednesday 22nd January 2020 1530hrs Stephanie Jones 16/05/1986 (34) Dunblane 15 Brookbank Avenue Brookbank FK55 3FZ Unemployed 07791234567 [email protected] 1535hrs o/s Coop High Street Brookbank I cautioned the above female in the Presence of PC Dick. Understood. No reply RESTRICTED 47 17 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 3 Meaning and Admissibility For further information, use the resources shown below:- Legal Database:- Evidence Review: You can define evidence in relation to police enquiries You can explain what is meant by onus of proof You can explain the essentials required to prove the guilt of an accused You can explain the principle of corroboration You can state the rule of best evidence You can explain the meaning of hearsay evidence You can explain what a credible and competent witness means You can explain the common law caution and when it should be used 18 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 3 Meaning and Admissibility Learning Log: How will what you have learned in this module impact your day-to- day role? Are there any skills or knowledge you would like to develop further following this module? End of Module 19 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 3 Meaning and Admissibility 20 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL