[speaker001:] [talk in background] [someone speaking but too quiet to hear]
[John:] Ah well, he'll tell you about that later. Erm obviously all the information here in the get up of this session is copyright. Now, the defences that we're involved in er are taking conveyance. Your client is alleged to have taken a conveyance. Erm, there's a possibility of dangerous driving as well. Let's look at document two., is that your group? What would you say about document two?
[speaker001:] [too quiet to hear] [too quiet to hear]
[John:] Document two. Right. Section four. Section four what?
[speaker001:] Twenty four.
[John:] Sorry, twenty four, my mistake. Okay? What does section twenty four require? There's an additional
[speaker001:] [too quiet to hear]
[John:] That's not relevant here, is it? Yeah, I think there's some confusion here. Erm, in a civil case the rules of hearsay are basically of little importance because they can almost always be got round. For example, a person compiles a statement under a, that statement can be introduced under cross-section?
[speaker001:] Four
[John:] Four. right? There is an equivalent section that relates to criminal evidence which allows a, a statement to be introduced but only where the needs, where the, I hate that word, the, where justice requires it to be introduced. And the purpose of that section is to prevent trials becoming paper trials where the prosecution do not call evidence. Now, they call evidence under a section nine, you, you can agree a section nine statement, prosecution statement, but you don't have to, right? And in this case you would not agree to statement being written, say being read out, you wouldn't require him to be present, and it could not be introduced under section twenty four because the court would find that it was in the interests of ju justice that it doesn't. Why is it in the interests of justice that?... Why shouldn't the case be conducted just on cross-examination, because of cross-examination? I mean criminal trials are oral trials where the evidence is given orally so that the witnesses can be cross- examined under a and be judged by the tribunal of fact. Okay?... assume that a prosecution statements will be admissible in themselves and always assume that witnesses will give more evidence. Okay? So will give evidence. If he doesn't want to give evidence that y, alright? So, assuming that he gives evidence any a evidential points? You can't see whether you, you're acting for, what's your attitude to this statement?... Anything in it you're not happy with?...
[speaker001:] [too quiet to hear]
[John:] Right, what's the problem about that?
[speaker001:] [too quiet to hear]
[John:] So, sorry, what are you saying exactly? Where are we exactly? Are we at the in the statement?
[speaker001:] Pardon?
[John:] Whereabouts are we in the statement?
[speaker001:] On the second page.
[John:] Right, page eight.
[speaker001:] [too quiet to hear]
[John:] It was who took both cars, okay?
[speaker001:] Yeah [too quiet to hear]
[John:] Alright. You see what's happened there. That the police have got the witness to erm sign, initial, every line. That's not uncommon. Okey-dokey. What is the state of those statements? It was, he took both cars.
[speaker001:] Self-serving statements.
[John:] It is indeed a self-serving statement statement, so, so what does that give us? [clears throat]... If you were to characterize this, this interview, what would you call it?... It's a text. By who?
[speaker001:] [too quiet to hear]
[John:] Part of the confession is a self-serving part, it's a er, possibly mixed statement. Er, in which he blames somebody else, okay? What is the effect of that?... Against who?
[speaker001:] [too quiet to hear]
[John:] Against your client? Yes? Do you agree with that?
[speaker001:] [too quiet to hear]
[John:] No. Why not?
[speaker001:] [too quiet to hear]
[John:] Right, the confession is only admissible against the maker. The statement implicating is not admissible against. Now, when the police officer when the police officer comes to court and goes through this statement, and it's a confession, what would you normally call what he's reading out?... I heard say suppose I
[speaker001:] [too quiet to hear]
[John:] It's hearsay. But why does it have to be that? It's an exception to the hearsay rule. The confession is an exception to the hearsay rule. Okay? But it's an exception to the hearsay rule that only applies against the maker. Because it is something made against your own interest. Erm, the rule of evidence is that it is inherently unlikely that anybody would make a statement against their own interest unless it was true. Right? You might very well say that you were the greatest law lecturer in the world, because people tend to say these things about themselves. It would be unlikely that you would say that you were the worst law lecturer in the world unless you were. Okay? it's a statement against your own interest. This is a separate argument from whether you actually made the statement or not, or whether it was bullied out of you like in the case. But if you did genuinely make that statement it's more likely to be true if it's against your interest, rather than for your interest. Okay? If a double-glazing salesman tells you that his product is crap, believe him. Alright? Get worried if he tells you it's very good. Okay? Right. Because of that reason the confession is admissible against yourself as an admission, as an exception, to the hearsay rule. It is not admissible against the.
[speaker001:] Does that mean that the parts that are inadmissible are stuck out and you can give evidence only to the parts that are not self-serving?
[John:] What do you think?
[speaker001:] [too quiet to hear]
[John:] What would be the point of the evidence if it's not implicating in trial? There's no point. The whole thing. Now, if the police think that this aspect of the case is important to them, how would they get the evidence in?
[speaker001:] [too quiet to hear]
[John:] Oral testimony of?
[speaker001:] [too quiet to hear]
[John:] , call. Okay?... Can give evidence about trial?
[speaker001:] [too quiet to hear]
[John:] What other circumstances?
[speaker001:] [too quiet to hear]
[John:] Good. Yes. Relevant point. Here is, he's pleading guilty. What he's pleading guilty, he is competent to give evidence against. His evidence is then direct evidence. I saw do this. Okay? It is no longer hearsay. You no longer have to bring it within an exception. Yes? Not easy, this stuff. Not easy. Alright, now. I now want to go to back to the beginning of the statement. When you are dealing with statements, you must start off and go through it step by step and not leap ahead. Now, is there anything in the first paragraph that anybody thinks raises an evidential point?
[speaker001:] [too quiet to hear]
[John:] I think so. I can tell a race when I see one. Erm, I go to Silverstone to see races for two reasons. One, because they are advertised as that race and two, I see them dashing around the track. I think that's irrelevant. Okay? Anything else?... First paragraph?
[speaker001:] [too quiet to hear]
[John:] Erm, yes. I can probably say I asked the driver for his.
[speaker001:] [too quiet to hear]
[John:] Yes
[speaker001:] [too quiet to hear]
[John:] I think cross-examine him. Are we happy about cross-examining, do you think? Yes? Great, yeah, that's cross- examining.. Yes? No problems about cross-examining him?
[speaker001:] [too quiet to hear]
[John:] We, if you comes and gives evidence against us, then we can either show that he's incorrect in a substantive way, or we can attack his credibility. How might we attack his credibility?
[speaker001:] [too quiet to hear]
[John:] He's got previous convictions, right. We know about that. No problem about bringing up his previous convictions?
[speaker001:] [too quiet to hear]
[John:] Right, we lose our shield. We have a shield under the which prevents the prosecution in a normal case from bringing to the attention of the court the fact that we have previous convictions. We are a, an innocent man until we are shown to be guilty. However, if we don't and we say we're lily white but the prosecution solicitor, prosecution witnesses, are all bent, then we lose that shield and they can say, hey you're not lily white, you're bent as well. Right. So, if gives evidence, having become competent because he has pleaded guilty, erm, then we can cross-examine him, but we are in difficulties if we then bring up his previous convictions attack his credibility. In the same way as you lose your shield whenever you attack a prosecution witness. So, for instance, if you have an argument with the police er on a matter, you might very well have to say to the police, I think officer you were take that and say you're a lying bastard. If you take the latter point of view but you will also put your client's character. Okay? If your client has good character, fine, if he's got bad character. What is the best tactical way of dealing with your client's bad character?
[speaker001:] [too quiet to hear]
[John:] Now... second paragraph?
[speaker001:] [too quiet to hear]
[John:] Maybe. You don't really know how he had this information. It appears to be hearsay of some sort and therefore is erm inadmissible. What would you do about that if you were at court acting for your client? that paragraph from the earlier comments. Er, what would you do?
[speaker001:] [too quiet to hear]
[John:] You could have a trial. I would suggest that that is not very helpful. If you have a trial within a trial in the crown court, what happens?
[speaker001:] [too quiet to hear]
[John:] If you have a trial within a trial at the magistrates court, what happens?
[speaker001:] [too quiet to hear]
[John:] Yeah. and deal with your objection and then puts it out of their mind if they find that the evidence is inadmissible, doesn't work. Right. So it's very important that you avoid magistrates court. Why can't you avoid the magistrates court in this case?
[speaker001:] [too quiet to hear]
[John:] Erm, he did have the right to that trial for erm what the previous offence before taking conveyance which was a clock taken without the owner's consent and previous offence before that taking but in order to reduce costs right mainly because they also want at the same time to remove the right for theft ah and they failed. That is, of course, because people who steal biscuits from are usually are usually middle class etcetera etcetera but people who steal cars generally tend to be toerags, I think the expression is, erm and therefore nobody much cares. Right. So they lost their rights in that trial very bad idea. So how would you get round that?
[speaker001:] [too quiet to hear]
[John:] Good. pointing out the evidence that you think is inadmissible and any reasonable will the police officer doesn't refer to it. Okay? I'm still interested in paragraph one. You, you looked at this over the weekend and thought there's not much in this, is there? Hopefully you'll think again... he's stating, I'm for it now.
[speaker001:] [too quiet to hear]
[John:] Distress... it could be I suppose. It is intimately connected with the offence. Does anybody understand exception to the hearsay rule? He could be, but what is it really? Does anybody know? It's not really hearsay. No, because he's not actually admitting anything. I mean, if the police stop you on the motorway, you know you're for it, whether you've done anything or not. You'll certainly have an unpleasant few minutes...
[speaker001:] [too quiet to hear]
[John:] True. It's admissible only reaction. The same as when you're charged you're asked if you have anything to say reaction only and not hearsay. Remember that hearsay is a statement, oral or written, made outside of court, introduced into court for the, in order to show that it's true, okay?... you look completely gobsmacked.
[speaker001:] I am. Why would it be hearsay anyway?
[John:] Because it's certainly a statement made out of court because or he's making it with reference to something else. Ah.
[speaker001:] [too quiet to hear]
[John:] If it's oral yes.
[speaker001:] That would be hearsay.
[John:] It would not be simply direct evidence, yes. Alright... makes his confession, let's assume at the moment that it is admissible and gives evidence. Anything about the statement itself, or, or the interview itself, that you would object to on behalf of?
[speaker001:] [too quiet to hear]
[John:] Why do you object to that?
[speaker001:] [too quiet to hear]
[John:] It's. It's completely inadmissible. Okay? Unless what?
[speaker001:] [too quiet to hear]
[John:] Sure, this is where I, this is where erm I must say that I never quite understood this, but if the prosecution witnesses, in their statements or in their oral evidence, refer to your client's bad character, then that is inadmissible, completely inadmissible. Right. If you then cross-examine them and attack their credibility your shield goes in and then after that your previous good character, but only in the context of you being cross-examined by the prosecution. Right. So at no stage would this ever go in. At no stage would this reference ever be admissible because it's not going to be relevant after your shield's gone in because your shield going in relates to the questions understanding be agree or correct me but this is how I understand the situation. So references to bad character are never admissible. There are other references to bad character here. showed me how to do it. It was 's fault, he made me do it. Okay? Var various other pathetic. What about? Are you happy with his treatment at, at the police station?
[speaker001:] [too quiet to hear]
[John:] Why not?
[speaker001:] [too quiet to hear]
[John:] No record of the tape at all. Erm, or what else, crucially??
[speaker001:] [too quiet to hear]
[John:] , more further crucial problem?... Were you arrested and taken to the police station and cautioned? Erm
[speaker001:] [too quiet to hear]
[John:] What's the fir who's the first manifest you see? It's the custody sergeant, okay, the custody officer, the custody officer. So in so far as that affects the confession it may mean that it could be removed but that's really completely irrelevant to you because erm that's his confession, not evidence against him. If he comes to court, what happened at the police station doesn't matter because he'll then give direct evidence, not what he said in the police station but what actually happened on that night in the, in the estate. Does everybody follow that? Is anybody confused? Do you want me to go through that again?
[speaker001:] So the fact that there was no solicitor [too quiet to hear] relevant in this case because the whole confession isn't relevant to
[John:] It may be very very relevant to what happens to but with regard to your client, this statement is not evidence against him because his confession is admissible only against the maker. If he turns up for court and he says, yes I had a terrible time at the police station and there were all sorts of breaches of but I am now here on a, I'm gonna tell the truth, that's no problem. It's the evidence he gives on oath what matters. What happened before is irrelevant. Yes? Okay. Right. Let's go on to document three. We want to go through that line by line so [clears throat]
[speaker001:] [too quiet to hear]
[John:] Erm, what were the words you'd complain about?
[speaker001:] Erm, not necessarily complain but interview police officer about when he was told that upsets my mother
[John:] Sorry, am I, oh yes, yes you're absolutely right.
[speaker001:] Is that it? object to, it's just a point which we thought about raising later on. We might be able to just [too quiet to hear]
[John:] So the rest of the paragraph you're obviously happy with?
[speaker001:] [too quiet to hear]...
[John:] Anybody else? Anybody? Any comments?... A woman came to the door who I, whom I recognized as, 's mother. She said, oh my God, they've come for.
[speaker001:] [too quiet to hear]
[John:] Hearsay exception relates to the state of mind of the defendant. What the relevance of
[speaker001:] [too quiet to hear]
[John:] what?
[speaker001:] [too quiet to hear]
[John:] Well, what can you primarily infer from the words?
[speaker001:] [too quiet to hear]
[John:] Guilt, or?... Conviction surely, known to the police? He recognizes her but how, how many er, let me put it this way, if the police came to your house to talk to your mother, would you expect them to recognize her, or would you expect him to say, oh my God they've come?
[speaker001:] [LAUGHTER]
[John:] You may or may not. It would seem to show that er is known to the police. Okay? On the face of it, the argument I think is this, the words, oh my God he's come for are hearsay, sorry, are not hearsay, because although they're an out of court statement they're not introduced as the truth. They're just reported speech. Okay? But they are almost certainly excluded by common law. Does anybody know the common law principle? This may well be for those of you who did in fact agree.
[speaker001:] [too quiet to hear]
[John:] I don't think that the erm go into this properly and I don't, I think will have dealt with it in lectures, but essentially there's a common law principle that says if a matter is more prejudicial than evidential it should not be read. Here it may be that er it's important to say er what she said value or what relevance it has to the trial of the son anyway. But let's say he did. It clearly is highly prejudicial and therefore whatever spurious relevance it may have should be waived against prejudicial, in fact should be excluded. Okay?... Right., your client is interviewed, document four, are you happy with the contents?
[speaker001:] [too quiet to hear]
[John:] Any other reasons for not being happy?... Anybody else? Any other?
[speaker001:] [too quiet to hear]
[John:] erm, possibly drunk or possibly. Okay, problems, problems here. So what?
[speaker001:] [too quiet to hear]
[John:] Is that what you're worried about? Is that what you wanna do here? Do you want to it? Why do you want to it?...
[speaker001:] [too quiet to hear]
[John:] It's not. It's not a paid profession and therefore the exclusion of this statement under section six two is irrelevant. This is not a confession. Is there anything here that constitutes anything approaching a confession?...
[speaker001:] [too quiet to hear]
[John:] this, this is about being in lines. If you had it numbered, you could refer to a number. What page are we on?
[speaker001:] Er, page eleven [too quiet to hear] It's twenty eight and sixty eight.
[John:] . What, the man said, I'll get you for this? Right. Is that a confession?
[speaker001:] [too quiet to hear]
[John:] was convicted on the murder of after the judge ruled that a statement to the police was admissible. The statement he made was, you say you've got witnesses but none of them will give evidence against me. Okay? That was held to be a confession. Now. Okay, fair enough, it was turned over on appeal eventually erm but erm it was a bit of a miscarriage of justice being kept in prison for that period of time until it was overturned pleaded guilty to another murder but that's by the by. Potentially, the bastard I'll get him for this, could be a confession. It's pretty iffy but it is fairly ambiguous, isn't it?
[speaker001:] [too quiet to hear]
[John:] But the problem is if this is taken out of context with the rest of the statement, the judge might leave it to the jury. I don't think it would be right to do so. The judge should exclude it. So, what you have to argue is that that is not a confession. If it is not a confession the whole statement isn't a confession. it is, other than that. Is the statement admissible?... Can detective constable come to court, show the jury, hand out to the jury the statement which would stand up in court? No. Why not?
[speaker001:] [too quiet to hear]
[John:] And?
[speaker001:] [too quiet to hear]
[John:] Good. It is not an exception to the rule... gives details of alibi witnesses. What should the police do about those alibi witnesses?...
[speaker001:] Find them.
[John:] Find them, check 'em out. Let's look at er document five. Okay?, do you want to deal with that? Comments in that should tell you that is retired. He's unemployed and retired, in his sixties.
[speaker001:] [too quiet to hear]
[John:] I do understand the expression, to know by sight. The Oxford University Library should be worried, but I said what about his sight?
[speaker001:] [too quiet to hear]
[John:] I should, I should warn you that it's best to say that only witnesses perhaps have problems with their sight, not that they are senile. Because. Alright? So, there are problems about the identification. It's a case. What is the effect of that?
[speaker001:] [too quiet to hear]
[John:] Now, in some situations, the magistrate might say there's so little value in the evidence here that I won't hear it all, I'll just exclude it. Is this such a case? Is the I D evidence so weak?
[speaker001:] [too quiet to hear]
[John:] He's identified him in the I D. Is the identification, does the identification at the I D parade strengthen the original identification? It really does. If you think about it, if you have a fleeting glimpse of somebody, you then identify that person at the I D parade, you will, the quality of your identification is now higher than it was in the fleeting glimpse. Yes? The fact that you've made your I D not corroborative evidence
[speaker001:] [too quiet to hear]
[John:] evidentially corroborative evidence is really supportive evidence. What would the supporting evidence, supporting evidence mean here? It can't be another identification. Or could it be?... is with him at the end of the day only evidence against is weak identification evidence then the case would have been thrown out.
[speaker001:] [too quiet to hear]
[John:] Sorry?
[speaker001:] [too quiet to hear]
[John:] So, the court other evidence. One possibility is a failed alibi. The equivalent to being caught lying. What is the other possible corroborative or supporting evidence here? , the evidence of the co-accused if he's pleading guilty. Of course, if you were to give evidence, what would the co what would the magistrates do? They'd warn themselves. They'd have to warn themselves. I warn you. Yes, I warn you, I warn myself. Completely ridiculous but that is how it works. Now, what about the next one? Six... young. What points do you make about young?
[speaker001:] [too quiet to hear]
[John:] Well, she.
[speaker001:] Erm
[John:] Are you happy with this statement? Well already happy with it. What's the effect of this statement?