2.

introduction
It's generally known that the vagaries of eyewitness identification evidence have a poor
history of being linked to miscarriages of justice, since eyewitnesses can be wrong
sometimes even they’re being honest. According to the Criminal Law Revision Committee, it
is the leading cause of false convictions in 75% of cases.

For example, Adolf Beck was wrongly convicted twice due to wrongful identifications done

by eyewitnesses, and Laszlo Virag was wrongfully convicted for murder based on eight
misidentified witnesses who repeat the same errors, giving the shared illusion the
appearance of supported reality. Aside from that, Mahmoud Hussein Mattan was hanged
for murder, despite the fact that the eyewitness testimony proved defective 46 years later!
In the book 'Forensic Facial Identification,' it stated that there are 20% of chances that the
eyewitnesses will identify the innocent as the suspect. These facts show the importance of
eyewitness identification and the impact of the identification of criminal suspects.

Despite the likely dangers and flaws in eyewitness identification, it's debatable whether the
safeguards offered by the Turnbull warning at common law and Code D of the Police and
Criminal Evidence Act 1984 are sufficient to protect innocent defendants from eyewitness
mistakes. The Turnbull warning must only be used in several situations First, when the
prosecution relies solely or mostly on the ID evidence.  It's worth noting that eyewitness
confidence has nothing to do with accuracy or reliability. Second, Shand v. Queen, 1996
stated that if the identification is based on a mere fleeting glimpse, the warning must be
given. This is because it is classified as a poor quality evidence with a higher risk of error
mistake (Oakwell v R). Nonetheless, it was decided in R v Bentley that even if the
eyewitness observing opportunities were strong and they’re certainly confident about
identifying the suspect, the warning is still required. Third, it is important to note that the
warning is required even if the evidence is based on recognition and the individual identified
is familiar to or recognised by the witness. (R v Wait). Moreover, if the jury was requested
to make an identification based on photographs or video recordings, a Turnbull warning is
not required. (R v Blenkinsop)
The warning is divided into three sections. First, the jury is advised that there is an extra
level of caution required before convicting the accused based on identification evidence.
Second, the reason for the warning must be stated. The court should also consider the idea
of miscarriages of justice as a result of inaccurate identification evidence. Finally, the judge
must ask the jury to carefully examine the circumstances leading up each identification. 
According to R v Stanton, the duty to summarise the case's strengths and weaknesses is
mandatory. If the evidence is of good quality, it can be admitted without further evidence.
In contrast, if the evidence is of poor quality, it must be excluded from the jury unless there
is supporting evidence that can compensate for otherwise inadequate identification
evidence. The judge can deliver the direction in their own way as long as they follow the
spirit and the guidance of Turnbull's guidance. There is no such prohibition in that the
suspect cannot be convicted solely on the basis of poor identification evidence.
Furthermore, there is a gap between extremely good and poor quality evidence example
provided by Turnbull. Should a short, but not fleeting, observation good conditions be
classified as good or poor quality?

Apart from that, the threshold for "good quality" might be rather low. Because it was made
by a police officer, a two-second observation of a person in a moving car was ruled not to be
of poor quality in Williams. The evidence of a tired and intoxicated victim who recognised
the defendant during a video identification 22 days later was not 'inherently unreliable' in
Waterfield.

It is obvious that Turnbull warnings do not purport to have fully eliminated the risk of
wrongful convictions. The epistemological conundrum provided by the absolutely certain &
unimpeachably honest, yet nonetheless mistaken eyewitness is ultimately intractable.

Nonetheless, Turnbull has likely accomplished all that can be reasonably expected in terms
of evidentiary form without substantially rethinking the adversarial structure of English
criminal procedure. However steps should be made, however, to ensure that Turnbull's
warnings are adequately addressed.

Code D
The requirements for pre-trial identification evidence are outlined in Code D to give further
safeguard for the defendant. First, under Para 3.1, the witness's description of the suspect
must be captured as soon as possible, whereas under Para 3.5, the images must match the
suspect's appearance. These two paras maintain accuracy and prevent memory distortion.
Next, the police officer conducting the ID procedure should be at least an inspector.
(para 3.11) Such a requirement is in place to ensure that an experienced police officer is
competent in responsible for the procedure in order to reduce the chance of mistake.

Para 3, Annex E states that the photos must be shown to just one eyewitness at a time, and
that each must be granted privacy to review the photos and is not entitled to communicate.
According to Andrew Roberts in his book 'The Problem of Mistaken Identification,' contact
between witnesses can corrupt recollection and lead to witness tampering (2004). This
lowers distortion and collusion, improves accuracy, and creates a sterile environment to
reduce risk.

4. Introduction
The origins of the hearsay rule can be traced back to Sir Walter Raleigh's trial in 1603, when
he was found guilty of high treason based on testimony that someone had overheard
someone else say Raleigh was planning to slit the King's head. Because of the miscarriage of
justice in the case, English jurists developed a strict rule against hearsay evidence. Hearsay
evidence is evidence obtained from an out-of-court statement and presented in court as the
matter stated in the statement. A rule against hearsay has long been recognized in common
law. Unless there was an exception to the rule against hearsay, the evidence will always stay
inadmissible. The position of Hearsay In civil proceedings is now governed by the Civil
Evidence Act 1995 and in Criminal proceedings by the Criminal Justice Act 2003.

Rules against Hearsay / Hearsay at common law ( Before CJA 03 was introduced )
The general rule in common law was that hearsay was inadmissible in evidence. Before any
such evidence could be found admissible, a recognized exception to the general rule had to
be established and applied. With regards to this exception, the exceptions to the rule were
mostly based on a largely shambolic and random collection, offering no guarantee that
reliable evidence would be thrown a lifeline. Several exceptions to the rule have been
allowed by statute in recent years and can provide for specific circumstances. This mirrored
Lord Justice Auld's recently published Review of the Criminal Courts of England and Wales
(2002). It stated that the purpose of evidence law is to assist rather than block the search
for truth and simplify rather than complicate the trial process. He later on stated that
hearsay can be admissible if it is relevant to the case. Part 11 of the Criminal Justice Act
(CJA) of 2003 later formalized this, excluding hearsay and the rule against narrative, but
added a list of exceptions to the basic rule.

The admissibility of hearsay evidence has received one of the most significant changes. Lord
Havers of the House of Lords (HOL) stated in the case of R v Sharp that "an statement other
than one made by a person when providing oral evidence in the proceedings is inadmissible
as evidence of any fact asserted.“ This statement created the common law concept, which
was later formalized in the CJA 2003 without further change. However, in terms of
admissibility, the CJA 2003 appeared to go against Lord Havers and made changes that
allow for four main categories of admissible exceptions under s.114 (1). This change was
necessary to ensure flexibility in the law and to uphold justice in circumstances when
hearsay evidence may potentially affect the proceedings.

Reforms brought about by the CJA 2003

From the Criminal Justice Act of 1988 to the most recent CJA 03, hearsay has been
redefined over the years. CJA 2003 has brought about a number of reforms. As the court of
appeal acknowledged in the case of R V SINGH 2006, one of the significant improvements
made by the act was to exclude the idea of implied assertions from the scope of the rule
against hearsay. This was done by the addition of the term "matter stated. This was used to
filled the gap between rule and rationale that the Kearley case had created. Because the
CJA 2003 focuses on the 'matter stated,' the case of R v Twist strongly recommended
avoiding the complex idea of the "implied assertion."

Further, the case of Sparks v R is another example of a call for reform. Despite the fact that
there was no danger of hearsay, the evidence was excluded, with Lord Morris explaining
that the law is firmly based on the view that it is wiser and better that hearsay, and it should
be excluded unless in certain well-defined and quite rare situations. Such unjust outcomes
could now be prevented thanks to the CJA 2003, which includes admissible circumstances in
the scope of s.114(1)(d), or the exception for admissibility based on 'interests of justice.'

Apart from that , the HOL's decision in Myers v DPP showed graphically how rigid
adherence to the hearsay rule might make cogent documentary hearsay inadmissible. The
case was ultimately decided on a technicality, rendering the hearsay evidence inadmissible.
As a result of the Myers case, Parliament was left to broaden the exceptions to the hearsay
rule in criminal proceedings by allowing some types of documentary hearsay to be
admissible. This is now defined in s.117(1) and s.117(2) CJA 2003. However, while Section
116 subsections (A)-(D) of CJA 2003 define evidence admissibility as automatic, there are
exclusionary requirements under S126 of CJA 2003, that allow the court to choose whether
to exclude evidence by using their discretionary powers. In the other hand, Section 118
addresses several elements of how evidence might be admitted and preserved from
exclusionary rules. Also, how expert evidence may be preserved while still being admissible
as evidence.
After considering the foregoing, similar situations have arisen under sections 117(6), 125,
126, and 116(4) CJA 2003, where there may have been an excess of judicial discretion.
Nonetheless, any definition that seeks to limit trial discretion will be wrong in some
situations. The question is not whether there is any case in which the definition would allow
questionable evidence to be admitted, but whether it is capable of sorting in everyday
operation. In the heat of the courtroom, judges apply most rules instantly. Furthermore,
even if unreliable evidence gets through the exclusionary rule, the trier can always reject it.

Hearsay in Other Countries Hearsay Compatibility with regards to ECHR .

Hearsay evidence appears to infringe the wrongdoer's right to confrontation as well as the
right to challenge, as provided by the European Convention Human Rights. In English law,
there is no absolute right to physical confrontation. For example, evidence can be given via
video link, and European decisions show that hearsay evidence can be used against a
defendant in certain circumstances, despite article 6(3)(D) of the European Convention
Human Rights, which states that anyone charged with a criminal offence has the right to
question witness statements against him. The hearsay held in the case Al Khawaja vs UK
2009 was inadmissible because it was the only evidence against the defendant. However, in
R V Horncastle 2009, the supreme court refused to follow the European court's decision on
the grounds that the rule prohibiting the use of hearsay in such cases had already been
introduced into European Jurisprudence without discussion of its underlying principles.

Conclusion
In Conclusion, it should be noted that, prior to the CJA 2003, the court was reluctant to
admit hearsay unless special circumstances required it. However, in light of CJA 03, courts
are now more willing to admit hearsay evidence as long as it fulfill the laid down
requirements. Thus, Hearsay evidence has been extensively covered over the years, from
the CJA 1988 to the more recent in the CJA 03, which have been refined to cover all aspects
of admitting hearsay evidence into the courtroom to ensure that important material needed
to prove a fact in issue at court is admitted but in a way that both the defences and
prosecution agree on in order for them to receive a fair treatment and essentially progress
onto an unbiased charge

5. introduction
General rule under s41(1) YJCEA1999 is that all of the sexual behavior of the victim will be
inadmissible. This is because by admitting the sexual behaviors of the victim will deem to
attack the moral character of the victim. So what’s a sexual behavior (SB)? This can be
understand under s42(1)(c), which stated that SB is when a sexual experiences had occured
whether or not involving the defendant. However this definitions too broad and Mantell LJ
in R v Mukadi later on come up with a statement stating that SB should be a matter of
impressions and common sense, and defining SB will be impossible. However nevery general
rule have exceptions. s41(2) clearly stated that a victim sexual behavior can be admissible if
court has granted leave for it. Moreover a prosecutor can also adduced victim SB under
s41(5) but noted that it can only be done in examining in chief. On the fact, this is irrelevant
because the defence was under cross-examination.

Evan may want to raise a defense under s41(3)(a) YJCEA1999 that he belief in consent about
the sexual intercourse by arguing that Dora dressed in a revealing costume as Cleopatra meant
that she would willingly have sex with anyone. As per R v Mukadi, dressing can amount to SB
hence it will fall under the scope of s41(3)(a) YJCEA1999. R v A allow Evan to bring Dora SB
to rebut the false allegation. In contrast, It also can be argue that Dora dressed in a revealing
costume as Cleopatra is reasonable since Dora is attending a fancy dress party, so it shouldn’t be
considered as SB, thus it fall outside the scope of YJCEA and go under common law which is test of
relevancy set by the case Barton. General rule in of R v Barton is that the victim's sexual behaviour is
irrelevant to the defendant. In other words, Dora dressing is irrelevant to the offences. This is
supported by the cases R v Bahador; R v Harrison; R v Gjoni. Another discussion is that the victim SB
can be relevant only if the defendant can prove that they had knowledge of the victim idiosyncratic
behaviour. (Barton’s exception). Here Evan and Dora wasn’t in an intimate relationship, hence he
can’t claim that he know Dora idiosyncratic behaviour, Barton’s exception failed,

6. Introduction
Generally, confession is defined under s.82(1) PACE 1984 as any statement wholly or
partially adverse made to a person in authority or not, and whether made in words or
otherwise. On the facts, Danny’s statement was made verbally towards police, who is in
authority and it was partly adverse because when Danny made the statement he is partially
confessing and partly exculpating, it is referred to as a mixed statement. According to R v
Sharp and R v Duncan, mixed statements can be considered as a confession hence the
whole statement will be admitted.

Exclusion
Confessions are generally admissible in court, however even if the confession is truthful,
since the courts are worried about the police will abuse their power during interrogation, so
there are grounds created for exclusion. According to s.76(2)(a) PACE 1984 stated that a
confession can be excluded if it’s obtained by oppression. Parliament had once come up
with a definition defined that if a statement is obtained through inhuman or torture
treatment and use of threat of violence it will be defined as oppression. R v Fulling [HOL],
Lord Lane later stated that an oppression is when an exercise done by an authority is
burdensome, harsh, unjust or cruel, or the imposition of an unreasonable or unjust burden.
Furthermore R v Seelig stated that a serious breaches of code C can amount to oppression,
mere breaches will not automatically exclude the confession. (Keenan). Moving on, Para
12.8 state that there must be a break every 2 hours during the interview for refreshment at
intervals. On the fact, Danny was interrogated for more than 2 hours without a break hence
it’s a significant breaches of code C. As mentioned above, this is a serious breaches of code
C which can amount to oppression under S76(2)(a) .

S76(2) (b)PACE
Nevertheless, under S76(2)(b)PACE any confession obtained in consequence of anything
said or done in the circumstances existing at the time, would made the confession
unreliable. Applying the facts, during the interview, the police lie about the evidence they
had over Danny which is a threat that caused Danny confession. The lie is an external factor
came from something had said by the police and there was certainly a causation between
the lie and the unreliable confession. This can be seen under the case of R v Crampton and
R v Goldenberg. Thus s76(2)(b)PACE was satisfied. The confession is obtained Illegally, s78
PACE applicable. It’s important to noted that para 11.15 of Code C stated that the
confession will be excluded if there wasn’t a appropriate adult present during the
interrogation of the suspect but only if the suspects was low IQ. In this case this was
irrelevant since Danny is of normal traits.

S78(1) PACE 1984

According to S78 PACE 1984, the court has the discretionary power to exclude the
confession only if the confession is obtained illegally. This is to prevent the admission of the
evidence will cause an adverse effect on the fairness of the proceedings. Applying the fact,
the requested for solicitor by Danny was rejected by the police, this can amount to breaches
of code C because under s58(1)PACE suspect are entitled to consult a solicitor. Para 6.1
stated that a free legal independent advice will always be available for the suspect.
According to the case of Samuel (1988), this right is a fundamental right. However S58(4)
PACE allow the delay of the solicitor only if the suspect satisfies the condition under s58(6)
and s58(8)PACE. In this case, S58(6)(a)PACE is satisfied because Danny is charged with a
serious offence. Moving on S58(6)(b)PACE can argued to be satisfied since the officer
authorizing the delay is at a higher rank than superintendent. If both of the S58(6)PACE is
satisfy then there must have a valid reason why they seek four delay. As per S58(6) and
Para 6.6 the police believe that allowing Danny to access to solicitor might lead to
interference with their evidence. Thus the delay is permissible, and the confession is legal,
s78 PACE 1984 is inapplicable.

Gateways
Because of Danny confession the police found the condom at the place he described. Noted
that even the evidence had excluded, the discovery can still be admissible under the ground
of s76(4)PACE. This is because Danny had seven previous convictions (pc) for rape which he
did plead guilty. S101(1)(d) CJA2003, s103(1)(a) CJA 2003, a defendant previous conviction
can be adduced to show his propensity to commit the same offences again. But under
s103(1)(a) CJA 2003, there are narrow definitions given by the parliament and broader
definition deprived from cases. As per the narrower definitions, the parliament listed down
in s103(2) that in order for the the previous conviction to apply there must be the same
categories with the current charges, which is harsh. However, judges have come up with
broader definitions that the bad characters being adduced need not to be the same
categories, but must be somewhat relevant as per s103(3). This is supported by the case of
R v Hanson. Applying the fact, Danny pc can be adduced, his seven pc are likely to show his
propensity. Additionally, Hanson laid down some requirements for pc to be adduced. Danny
pc did fulfill the requirement of Hanson. Hanson stated that the pc must be connected to
untruthfulness; the suspect must have more than one pc unless that one pc is strikingly
similar with the current charge. Applying the fact, Danny did have more than one pc and 6
of those pc are strikingly similar with the current charges. Danny pc can be adduced by
applying Hanson.

Bad character
Furthermore, Danny have one previous conviction for fraud, which he pleaded non guilty. As
mentioned above, by applying the Hanson and s103(1)(b), Danny bad character can be
adduced successful. This because his pc are fraud and it’s related to untruthfulness which is
regarded dishonesty. Another example of untruthfulness is that despite in pc Danny plead
not guilty for fraud and eventually got convinced that. This show that the likelihood of
Danny being untruthfulness. this can be admissible under s103(1)(b), Hanson.

Gateway g
In the case, Danny attacked Aysha bad character by calling she is an alcoholic and a liar.
S101(1)(g) is applicable so Danny bad character will be admissible, the seven pc for rape will
be relevant to show Danny propensity and the pc for fraud will be attack his credibility.
(Campbell)