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Does the following witness statement constitute being classified as contaminated.

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  • Does the following witness statement constitute being classified as contaminated.

    Hypothetically, a woman walking in a road is attacked and bitten by a dog, she then runs off, leaves the scene and the dog disappears. Subsequently, the woman's brother appears in the street making enquiries and learns from a house owner that a neighbour has German Shepherd dogs. Without speaking to the neighbour, or ever seeing the dogs, the brother assumes one of these dogs must be the culpable party that attacked his sister.

    He then proceeds to glean descriptions, colourings, breeds, et al of the neighbour's dogs and exact location where they reside from the house owner who has a grudge against the neighbour with the aforementioned dogs. The incident is then reported to the Metropolitan Police who do not attend the scene, but turn up 5 wks. later with a warrant to seize one of the neighbour's dogs. The neighbour is subsequently charged under section 3 of The Dangerous Dog's Act 1991. based upon the sole identification of the woman who was attacked.

    My question being, is this identification contaminated because the witness statement was given to the police at a subsequent stage after conferring with her brother on the breed,description and location of the neighbour's dogs.
    Last edited by Diatribe; 8th November 2021, 15:10:PM.
    Tags: None

  • #2
    Is this a genuine situation or a student problem?

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    • #3
      Originally posted by islandgirl View Post
      Is this a genuine situation or a student problem?
      Thank you for replying, Islandgirl unfortunately,, this is a genuine situation, whereby the Metropolitan Police have had my 9 yr. old GSD in custody for 2 months with a first court. appearance scheduled for the 2nd. inst. Dec.

      The police have the wrong dog who doesn't remotely resemble the victim's description, the problem being, by the time I get through to the Crown Court, which could take anything up to 2 yrs. my dog won't have much life left. I have requested DNA samples and Odontology mouldings be taken but the police are not interested in determining the truth. I can't get any expert evidence or opinion until I can make representations at the CC.

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      • #4
        Oh I am so sorry. Apologies. The "hypothetically" threw me. How awful for your GSD. Is this a magistrates court case? I have certainly heard cases in the past where we have ruled that a dog could live but must be muzzled when outside and not left under the control of children for example (following an "attack" in which the dog was definitely the guilty party). However you have the problem of the statement. Whether or not she spoke to the brother the details she gives of the dog which attacked her will be key. Obviously a solicitor would cross examine this witness and bring in the issue of the brother etc. If you want to save your dog you really do need legal representation. There are specialists in this area - give them a call would be my advice. eg https://doglaw.co.uk/

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        • #5
          It is triable either way, but I will be opting for trial by jury. I don't require representation at this stage, but may do at a subsequent stage in order to attain the forensic evidence I require. Obviously there will be a lot of unused material that I will require disclosure of .
          Last edited by Diatribe; 11th November 2021, 13:24:PM.

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          • #6
            So you have been charged - have you had your first (mags) hearing yet?

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            • #7
              No, its the 2nd. inst. Dec. at Wilsden mags. Ct. I don't anticipate having received any pre advanced information by this time. I presume this hearing will simply be for an indication of plea and whether I will be electing for trial. I will use this hearing to make an application for the return of my dog pending the trial due to his age and the length of time prior to trial.

              The police have had to acknowledge awareness of the victim's brother which gives me the opportunity to subpoena him, along with the occupants of no. 22 where he acquired his knowledge which was in turn imparted to his sister. I cannot believe the victim's evidence has not been compromised by the aforementioned's behaviour. I was utterly shocked that the police decided to charge me until I realised that the decision wasn't made by the CPS, but by Evidential Review Officers of the Metropolitan Police Status Dog Unit who aren't even lawyers. The evidence in this case is more flawed and corrupt than the 1950's LAPD.

              The problem being, I will in all probability never see my dog again because one can no longer make mags. ct. submissions of no case to answer.

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              • #8
                No case to answer is a decision which can be reached by magistrates. Details are here:
                https://www.defence-barrister.co.uk/...case-to-answer
                I really really think you need help on 2nd Dec. There is no such thing as a subpoena in the English courts. The application for return of your dog will have to be properly made and I assume in advance - you really need some advice re procedure in this matter. There is the whole matter of hearsay evidence to consider (what someone told someone else). You maybe should not have been charged but now you have been you need to "play the game" and it is not an easy thing to do. Sorry.

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                • #9
                  ''No case to answer is a decision which can be reached by magistrates. Details are here:
                  https://www.defence-barrister.co.uk/...case-to-answer''

                  But, doesn't this only apply where one has agreed to have one’s case heard in the mags. Ct. The old style committal proceedings were abolished circa 2013.

                  . ‘’There is no such thing as a subpoena in the English courts.’’

                  D’accord, I’ll rephrase it, ‘’witness order.’’

                  ‘’The application for return of your dog will have to be properly made and I assume in advance - you really need some advice re procedure in this matter’’

                  There doesn’t appear to be any bail facility for seized dogs, only a concession agreed with the police under certain circumstances which won’t involve those not playing the game.

                  ‘’There is the whole matter of hearsay evidence to consider (what someone told someone else). ‘’
                  ​​​​​​​
                  The situation here isn’t a question of ‘’hearsay’’evidence, its a matter of identification evidence being provided to a witness prior to their making an identification.

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                  • #10
                    I believe the defence can submit a no case to answer in any court. As for the release of the dog, play the game is my advice. You have a hill to climb in my opinion re the ID. How do you prove the "victim" based their description of the dog on the brother's version and not what they saw?

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                    • #11
                      ''I believe the defence can submit a no case to answer in any court''

                      Of course they can, but if it isn't successful, if electing for summary trial, then one's fate lies with mags. as opposed to a jury. Also, one would not get the legal aid for expert witnesses and forensic tests, ie, DNA, Odontology testing et al. at a summary trial.

                      ''As for the release of the dog, play the game is my advice.''

                      Are you intimating I plead guilty, surely not.

                      ;;How do you prove the "victim" based their description of the dog on the brother's version and not what they saw?''

                      One wouldn't have to prove whether the victim based statement was based on her brother's information, the very fact that he was conducting an investigation on her behalf and had the potential to impart information to influence her identification would be enough to render it contaminated. A similar analogy would be showing an image of a suspect to a witness prior to them picking that suspect out on an identity parade.

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                      • #12
                        My posts are just my view and what I would do in your situation. You can choose to take on board or ignore my views.
                        Legal aid will depend on your income. It has to be extremely low these days and legal aid is only available for certain types of case. I do not see that it will fund DNA / dental analysis of the bite mark and indeed have never seen that type of evidence in court but for the sake of your dog I hope I am wrong. Good luck with your legal aid application. I really think you need advice from a specialist in this area.
                        I do not understand why you think we mags are less likely to decide your fate appropriately than 12 good men/women of the jury but of course the choice is yours. Remember if you lose you pay costs.
                        "Play the game" was NOT advice to plead guilty. Indeed all my comments have been about how to get you the best outcome in the matter for the good of your dog (and yourself) and to give you the best chance of winning. But if you go not guilty you have to play the game properly - make the right legal submissions, tick the right boxes. It is not a smple matter and there is a need for legal knowledge to fight the charges.
                        However you say you are innocent (which I don't doubt) but expect the system to bend to that fact. It won't. You need to fully engage with the system to get your not guilty verdict and know how to do so.
                        I do not agree with your analysis of the victim's statement and what needs to be proved but for you dog's sake I hope you are right and I am wrontg.

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                        • #13
                          '' legal aid is only available for certain types of case. I do not see that it will fund DNA / dental analysis of the bite mark and indeed have never seen that type of evidence in court''

                          I think I would have extremely good grounds of appeal were a Crown Court judge to disallow me the funding ability to defend my case where my dog could be euthanised and I could be sentenced to 5 yrs. imp. You will no doubt note from the following link(albeit from an American perspective) that without the necessary forensic evidence, it would be extremely difficult to attain a conviction against an owner who is disputing a dog bite case, particularly where the dog has disappeared from the scene.

                          https://www.dogexpert.com/collection...og-bite-cases/

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                          • #14
                            Legal aid is very hard to get now. The judge / mags do not decide on funding. The calculator here is for non criminal so not much help unfortunately https://www.gov.uk/check-legal-aid below the calculator it says
                            You can only check for non-criminal (‘civil’) cases. If you’ve been charged with a crime, ask your solicitor or barrister if you’re able to get criminal legal aid. You’ll only get guidance on whether or not you can get legal aid - you will not get a final decision until you speak to an adviser.
                            You will need your legal aid in place before your first hearing and it takes a while - I assume you have already got this underway? At the hearing on 2nd Dec you should be represented. You will be asked what are your grounds for the NG plea (eg if it were an assault charge your grounds may be self defence or it may be mistaken identity etc) and there will be a count of witnesses etc in order to decide how long the trial will be and then a date will be found. We are booking well into 2022 at my court.

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                            • #15
                              ''You will be asked what are your grounds for the NG plea (eg if it were an assault charge your grounds may be self defence or it may be mistaken identity etc) and there will be a count of witnesses etc in order to decide how long the trial will be and then a date will be found. We are booking well into 2022 at my court.''

                              This procedure will not apply in my case, if the advanced warning information hasn't been served by the time of the hearing, it will merely be adjourned until it has. If the papers have been served, I will be asked to give an indication of how I intend to plead and whether or not I wish to be tried summmarily, or at CC. I will then be given a date for committal proceedings. I will not be asked at Wilsden mags. ct. to prepare a defence document, because my case will not be heard at the aforementioned court.

                              Comment

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