4. Principles & procedures to admit & exclude evidence

Question 1

How is a hearsay statement defined?

Answer 1

A statement, not made in oral evidence, that is relied on as evidence of a matter in it

Question 2

What are the four categories under which hearsay is admissible?

Answer 2

1. Admissible under a statutory provision
2. Admissible under a preserved common law exception
3. Admissible by agreement
4. Admissible in the interests of justice

Question 3

What are the situations detailed in statutory provisions under which hearsay is admissible?

Answer 3

Cases where a witness is unavailable (first-hand hearsay only)

Business and other documents

Question 4

What are the 5 conditions of which one must be satisfied in order to permit hearsay in cases where a witness is unavailable?

Answer 4

1. Relevant person is dead
2. Relevant person is unfit to be a witness
3. Relevant person is outside UK and not reasonably practicable to secure their attendance
4. Relevant person cannot be found
5. Through fear, relevant person does not give oral evidence in the proceedings

Question 5

What are the preserved common law exceptions under which hearsay is admissible?

Answer 5

Confession evidence

Evidence admitted as part of the “res gestae”

Question 6

What is the “res gestae”?

Answer 6

Provides that a statement made contemporaneously with an event will be admissible as an exception to the hearsay rule because it couldn’t have been concocted

Question 7

What is the procedure for admitting hearsay contained within Part 20 CrimPR?

Answer 7

Must serve notice on the other party of intention to rely on such hearsay evidence

Question 8

In what circumstances do the rules contained within Part 20 CrimPR apply, in regards to the procedure for admitting hearsay?

Answer 8

1. Where it is in the interests of justice for the hearsay evidence to be admissible
2. Where the witness is unavailable to attend court
3. Where the evidence is multiple hearsay
4. Whether either the prosecution or the defence rely on s 117 for the admission of a written witness statement prepared for use in criminal proceedings

Question 9

What is the definition of confession evidence?

Answer 9

Any statement made wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise

Question 10

Is confession evidence admissible?

Answer 10

Yes, under s 76(1) PACE

Question 11

If evidence given by a co-defendant which implicated a defendant admissible?

Answer 11

Yes

Question 12

Is a pre-trial confession made by one defendant which also implicates another defendant admissible against both defendants?

Answer 12

No, only against the defendant which made the confession

Question 13

Under which PACE grounds would the defence’s solicitor attempt to get confession evidence excluded from trial?

Answer 13

S 76 PACE - obtained in circumstances rendering it unreliable

AND

S 78 PACE - to admit it would have such an adverse effect on the fairness of the proceedings

Question 14

Under s 76 PACE, if a court finds a confession to have been obtained in circumstances rendering it unreliable, what obligation do they have?

Answer 14

They are under a duty to exclude unreliable evidence (i.e. does not have a discretion)

Question 15

How will a defendant usually challenge admissibility under s 76 PACE?

Answer 15

Either oppression

Or in consequence of something said/ done which was likely in circumstances existing at the time to rend unreliable any confession

Question 16

How will a defendant usually challenge admissibility under s 78 PACE?

Answer 16

Will claim it was untrue, or deny making it at all

Question 17

What is the procedure in the Crown Court for challenging admissibility of confession evidence?

Answer 17

A voir dire will be held (trial within a trial) in which the judge will decide whether the confession evidence is admissible

Question 18

Does the court have to exclude evidence under s 78 PACE?

Answer 18

No - court has discretion

Question 19

What is the procedure in the magistrate’s court for challenging admissibility of confession evidence?

Answer 19

The ruling as to admissibility will normally be sought when interviewing officer gives evidence

Question 20

What is the definition of bad character under s 98 CJA?

Answer 20

Evidence of, or a disposition towards, misconduct

Question 21

If alleged misconduct by the defendant is connected to the offence which they are being charged with, does this call within the definition of bad character?

Answer 21

No, therefore is admissible

Question 22

What are the 7 gateways?

Answer 22

Ways in which evidence of a defendant’s bad character may be raised at trial

Question 23

When can gateway (a) be used in order to admit evidence of bad character?

Answer 23

All parties to the proceedings agree to the evidence being admissible

Question 24

When can gateway (b) be used in order to admit evidence of bad character?

Answer 24

The defendant introduce evidence of their own bad character

Question 25

When can gateway (c) be used in order to admit evidence of bad character, and who by?

Answer 25

When it is important explanatory evidence - can only be used by prosecution

ONLY important explanatory evidence if without it the court will find it impossible or difficult to properly understand other evidence in the case, and its value for understanding the case as a whole is substantial

Question 26

When can gateway (d) be used in order to admit evidence of bad character?

Answer 26

When it is relevant to an important matter in issue between the defendant and the prosecution

Question 27

What 2 important matters would be identified through inclusion of bad character evidence under gateway (d)?

Answer 27

1. Defendant’s propensity to commit offences of the kind with which they’re charged - i.e. of same description, or same category
2. Defendant’s propensity to be untruthful - e.g. conviction after a not guilty plea, convictions for perjury or fraud

Question 28

What are the three questions which must be addressed from R v Hanson, Gilmore & Pickstone, in relation to the inclusion of evidence under gateway (d)?

Answer 28

1. Does the defendant’s history of offending show a propensity to commit offences?
2. If so, does that propensity make it more likely that the defendant committed the current offence?
3. If so, is it just to rely on convictions of the same descriptions or category, having in mind the overriding principle that proceedings must be fair?

Question 29

From R v Hanson, Gilmore & Pickstone, what criteria must be met in order for a defendant’s previous convictions to be admissible to show that the defendant has a propensity to be untruthful?

Answer 29

1. The manner in which the previous offence was committed demonstrates that the defendant has such a propensity (because they had made false representations); or
2. The defendant pleaded not guilty to the earlier offence but was convicted following a trial at which the defendant testified and was not believed

Question 30

When can gateway (e) be used in order to admit evidence of bad character, and who by?

Answer 30

May be used by one defendant to admit evidence of another defendant’s bad character

Question 31

What 2 important matters would be identified through inclusion of bad character evidence under gateway (e)?

Answer 31

1. Propensity to commit offences of the same kind
2. Propensity to be untruthful

Question 32

When can gateway (f) be used in order to admit evidence of bad character, and who by?

Answer 32

To give evidence to correct a false impression given by the defendant, and may only be used by the prosecution

Question 33

When can gateway (g) be used in order to admit evidence of bad character?

Answer 33

When the defendant has made an attack on another person’s character

Question 34

Which gateways does 101(3) apply to, and what is the effect?

Answer 34

Gateways (d) and (g)

Court MUST exclude evidence on which prosecution propose to rely if admission of evidence would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted

Question 35

What is the procedure for admitting evidence of bad character?

Answer 35

Notice must be given to both court and other parties

Court will impose time limits to serve notice

Defendant must apply to court for exclusion of evidence

Question 36

Under what grounds can the bad character of persons other than the defendant be admitted, under s 100(1)?

Answer 36

Gateway (a) When it is important explanatory - only applicable if court would not understand evidence without it, and it provides substantial value

OR

Gateway (b) When it has substantial probative value - e.g. proves witness is lying

OR

Gateway (c) All parties agree to it