3.2 Excluding evidence 2

Question 1

What are the six principal ways to exclude evidence or bring a prosecution to an end?

Answer 1

1. Applications for dismissal
2. Submissions of no case to answer
3. Applications to exclude evidence
4. Applications to exclude confessions
5. Applications to exclude evidence under the preserved common law provisions
6. Abuse of process applications

Question 2

Under which statutory provision do you make an application to exclude evidence in general?

Answer 2

Section 78 PACE

Question 3

Under which statutory provision do you make an application to exclude confessions?

Answer 3

Section 76 PACE

Question 4

Which statutory provision preserves the common law exclusions?

Answer 4

Section 82(3) PACE

Question 5

What is an application for dismissal?

Answer 5

A pre-trial application to have the charges dismissed.

Question 6

When can an application for dismissal be made?

Answer 6

Schedule 3(2)(1) Crime and Disorder Act 1998
Only after:
1. The Magistrates Court has sent D to the Crown Court,
2. D has been served with evidence, and
3. before D is arraigned

Procedure is set out in CrimPR 9.16

Question 7

Under what circumstances can the judge dismiss one or more of the charges?

Answer 7

Schedule 3(2)(2) Crime and Disorder Act 1998
if it appears to [the judge] that the evidence against the applicant would not be sufficient for him to be properly convicted.

This is the same test as that for submissions of no case to answer - Galbraith [1981]

Question 8

How is an application for dismissal made?

Answer 8

Schedule 3(2)(1) Crime and Disorder Act 1998
orally or in writing to the Crown Court

Question 9

What is the test for the judge to find that there is no case to answer?

Answer 9

R v Galbraith [1981] 73 Cr App R 124, CA

1. there is no evidence that D committed the offence, or
2. where the prosecution evidence, taken at its highest, could lead a jury to properly convict

Question 10

R (IRC) v Crown Court at Kingston [2001] EWHC Admin 581

Answer 10

A judge considering an application to dismiss must
-
1. take into account the whole of the evidence and
2. not view matters in isolation from their context or other evidence;
3. where the prosecution seeks inferences to be drawn from the evidence the judge should assess whether such inferences could properly be drawn by the jury.

Question 11

R (Snelgrove) v Woolwich Crown Court [2005] 1 Cr App R 18

Answer 11

Judicial review cannot be used to challenge a decision by the Crown Court on an application to dismiss.

Nevertheless, IRC v Kingston Crown Court remains valid.

Question 12

What is a submission of no case to answer?

Answer 12

A submission during the trial that the judge should stop the case.

Question 13

When is a submission of no case to answer made?

Answer 13

A submission of no case to answer (a “half-time submission”) is made at the close of the prosecution case because it is only at this stage that the entirety of the prosecution case against a defendant can be considered.

Question 14

Why is a submission of no case to answer sometimes known as a “half-time submission”?

Answer 14

Because it is made just after the prosecution completes its submissions but before the defence begins to set out its case.

Question 15

What happens when a submission of no case to answer is made in the Crown Court?

Answer 15

It is made in the absence of the jury.

If the submission is successful the jury is brought back in and informed and the foreman instructed to enter a verdict of not guilty.

Question 16

Can the Crown Court judge rule that there is no case to answer because a witness has given weak or contradictory evidence?

Answer 16

In general, issues of credibility are for the tribunal of fact so they are dealt with by magistrates and juries, not Crown Court judges.

Question 17

Which provision contains the Magistrates Court’s power to hold that there is no case to answer?

Answer 17

CrimPR r.24.3(3)(d)

Question 18

Which provision contains the Crown Court’s power to hold that there is no case to answer?

Answer 18

CrimPR r.25.9(2)(e)

Question 19

What is the procedure for determining that there is no case to answer?

Answer 19

Magistrates Court - CrimPR r.24.3(3)(d)
Crown Court - CrimPR r.25.9(2)(e)

At the conclusion of the prosecution case, on the defendant’s application or on its own initiative, the court—

(i) may acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict, but
(ii) must not do so unless the prosecutor has had an opportunity to make representations

Question 20

Who can use Section 78 PACE to exclude evidence?

Answer 20

Section 78 only applies to ‘evidence on which the prosecution proposes to rely’ so it cannot be used by the prosecution or a co-defendant to exclude evidence that a defendant seeks to admit.

Question 21

When can a prosecution be brought to an end because of abuse of process?

Answer 21

R v Crawley [2014] EWCA Crim 1028

1. To ensure fair trial process: where D can no longer have a fair trial, or
2. To uphold the integrity of the criminal justice system: where D should not be standing trial at all whether the trial is fair or not (Crown Court only).

Only as a last resort.

Question 22

What is the role of the public interest in deciding whether to stay a criminal trial?

Answer 22

Attorney General’s Reference (No.2 of 2001)

Charges should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances.

Question 23

R v Maxwell [2011] 2 Cr App R 31 (SC)

Answer 23

1. Where trials are stayed because of the need for fair processes, no competing interests are to be weighed
2. Where the court is protecting the integrity of the justice system, the court is concerned with whether the trial would
   (a) offend the court’s sense of justice or propriety, or
   (b) undermine public confidence in the criminal justice system and bring it into disrepute

Question 24

Give five examples of where allowing a trial would be an abuse of process because it could bring the reputation of the criminal justice system into disrepute?

Answer 24

1. where a defendant has been tricked or coerced into committing an offence
2. where a defendant is prosecuted despite an unequivocal promise by the prosecution not to
3. where the police have acted in such a way as to undermine public confidence in the criminal justice system and bring it into disrepute, eg, deliberately destroying evidence that would assist the defence
4. where the prosecution has manipulated or misused the process of the court so as to deprive a defendant of a protection afforded by law.
5. sometimes delay, eg, the prosecution has delayed for tactical advantage or inordinate or unconscionable delay

Question 25

Which case is authority for the proposition that inordinate or unconscionable delay can be an abuse of process?

Answer 25

R v Gateshead Justices, ex p Smith [1985] 149 JP 861

Question 26

What is the most important provision for excluding evidence?

Answer 26

Section 78 PACE

[see details in other flash cards]

Question 27

Where can applications to stay proceedings as an abuse of process on the grounds of unfair processes take place?

Answer 27

In the Crown Court or the Magistrates Court

Question 28

Where can applications to stay proceedings as an abuse of process because of the need to uphold the integrity of the criminal justice system take place?

Answer 28

Only the Crown Court. An application on this ground in relation to a summary trial would have to be made via judicial review.

Question 29

What is the test to apply the preserved common law discretion to exclude evidence under Section 82(3) PACE?

Answer 29

The court may exclude evidence where its probative value is outweighed by its prejudicial effect. This includes excluding evidence where this is necessary for the accused to have a fair trial.

Question 30

Who can exclude evidence under the common law powers preserved in Section 82(3) PACE?

Answer 30

Only the defence.

Question 31

Are the common law powers to exclude often used?

Answer 31

No. Most situations are covered by Sections 76 and 78 PACE.

Question 32

What is the appropriate application for the defence to make if the police have lost evidence?

Answer 32

Abuse of process

Question 33

In what case is the test for abuse of process due to loss of evidence set out?

Answer 33

Dobson [2001] EWCA Crim 1606

Question 34

What is the effect of the court determining that there has been an abuse of process?

Answer 34

The court will stay proceedings. (The case folds.)

Question 35

Which case sets out the two categories of abuse of process?

Answer 35

Maxwell [2010] UKSC 48

Question 36

What are the two categories of abuse of process?

Answer 36

Maxwell [2010] UKSC 48

1. where it is impossible to give the accused a fair trial;
2. where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case.

Question 37

When will the court stay proceedings because it is impossible to give the accused a fair trial?

Answer 37

Maxwell [2010] UKSC 48

Without more - no question of balancing competing interests arises. The proceedings cannot be made fair.

Question 38

When will the court stay proceedings because it offends the court’s sense of justice and propriety?

Answer 38

Maxwell [2010] UKSC 48
Where the integrity of the criminal justice system is at risk or it will undermine public confidence in the criminal justice system and bring it into disrepute. This concerns the question whether the accused should stand trial at all rather than the proceedings themselves.

Question 39

Which paragraphs in Blackstones deal with abuse of process?

Answer 39

D3.66-112

Question 40

What are the themes that run through the authorities on abuse of process?

Answer 40

1. To what extent has D been prejudiced?

2. To what degree are the rule of law and the administration of justice undermined by the investigators’ behaviour?

Question 41

What four questions must the court answer where there is an application for a stay of proceedings for abuse of process due to loss or destruction of evidence?

Answer 41

Dobson [2001] EWCA Crim 1606

1. What was the duty of the police?
2. Did the police fail in that duty?
3. If so, was there serious prejudice rendering a fair trial impossible? or
4. Did the police failure result from such bad behaviour as to render it unfair for the accused to stand trial?