CLP Tests Flashcards
What is an application made under s78 PACE?
- application to exclude evidence made by the defence
- only applies to evidence on which the prosecution seeks to rely
- s78 is concerned with exclusion of unfair evidence - evidence which is obtained unlawfully, improperly or unfairly
- normal burden and standard of proof: judge satisfied of P’s version beyond reasonable doubt
Key test:
- Whether the admission of evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it
What is the application for exclusion of visual identification evidence?
- Court has discretion under s78 PACE to exclude evidence deemed to be unlawfully or improperly obtained
- s78 = adverse effect on fairness of proceedings
- for identification evidence to be excluded, the breach must be significant and substantial
- factors influencing the strength of evidence: time, distance, visibility
What evidence can be used to support exclusion of ID evidence under s78 PACE?
- If identification procedures have not been followed
- procedural breaches udring identification process
What are the two ways under s76 to challenge admissibility of confession?
- s76(2)(a) - oppression or torture
- s76(2)(b) - things said or done to render the confession unreliable
- Consider the context of confession: suspect’s background, prior experience with law enforcement, suspect’s legal rights (whether they have been adhered to)
It is for the defence to raise the challenge to admission of the confession. Once raised, the prosecution must prove beyond reasonable doubt that confession was not obtained by oppression/things said or done which make it unreliable
What is a confession?
A confession is a statement which is wholly or partly adverse to the person who made it
- Admissibility can be challenged under s76(2)(a) or (b) and s78
s76(2)(a) - exclusion of confession for oppression or torture
Oppression = torture, degrading treatment
- shouting, threats, blackmail, abusive language
- There must be a casual link - direct result
- P has burden of proof (prove beyond reasonable doubt that confession was not conducted in the way the defence is saying)
- If P fails to meet burden = confession is excluded
s76(2)(b) - exclusion of confession for things said or done which render it unreliable
Unreliability = inducements
- things said: offers made by police, false statements
- things done: not getting a solicitor or appropriate adult for a minor (suspect’s rights)
- There must be a casual link
- P has burden of proof
What is the general rule for hearsay?
The general rule is that hearsay is inadmissible
- Hearsay is a statement made out of court, that the person who made it intended another to believe, subsequently tendered in evidence as proof of the mater stated
What is the test for hearsay?
s114 and s115 Criminal Justice Act, considered in the case of R v Twist:
- Identify what relevant fact it is sought to prove?
- Whether there is a statement of that matter ini the communication?
- If yes, whether it was one of the purposes of the maker of the communication that the recipient should believe that matter or act upon it as true?
What are the exceptions to the hearsay rules (exceptions where hearsay may be admissible)
- Application to admit hearsay
Under s114 hearsay is not admissible unless it falls into one of the four exceptions:
1. statutory exceptions to hearsay
2. common law exceptions
3. all the parties agree
4. court uses statutory discretion to admit hearsay in interests of justice
What are the statutory exceptions under CJA where hearsay may be admissible?
s9 CJA 1967 - witness statement taken by the police (if the contents are not disputed)
s116 - witness is unavailable
s117 - business document
- It is in the interests of justice
What are the conditions under s116 to admit hearsay?
Judge may allow hearsay evidence where:
- evidence would have been admissible ordinarily
- competent and compellable witness
- witness is known to the court
- one of the five reasons is satisfied: dead, unfit, outside the UK, cannot be found, fear
- Fear - interests of justice test and special measures to alleviate fear
s117 admission of hearsay
Business documents includes:
- medical records
- any statement written down by a police officer in the course of duty
- witness statements and entries in police notes
Admission of hearsay in the interests of justice
- s114(1)(d) of CJA 2003 allows admission of hearsay evidence where the court is satisfied that it is in the interests of justice
What are the common law exceptions for admission of hearsay?
s118 CJA common law exceptions:
- public information
- evidence of reputation
- res gestae
- confessions
- statements in furtherance of common enterprise
- body of expertise
What are the statutory exceptions for admission of hearsay?
Previous statements:
- s119 - previous inconsistent statements
- s120(2) - previous consistent statements
What is the court’s discretion to exclude hearsay evidence?
The court can refuse to admit a statement as evidence under s126 if it is satisfied that
- the case for excluding the statement substantially outweighs the case for admitting it, taking into account the value of the evidence
What are the critical considerations for the court for admitting hearsay?
- Good reason to admit evidence
- Evidence can be shown to be reliable
- Extent to which counterbalancing measures have been properly applied
What is bad character evidence and how is it admissible?
s98 CJA definition of bad character:
- includes previous convictions, police cautions, witness evidence, agreed facts and acquittals, misconduct, reprehensible behaviour
Bad character is generally inadmissible. Only admissible if it falls under one of the gateways
To be admissible:
- The evidence must be relevant to a fact in issue; and
- Bad character evidence must go through a gateway to be admissible (s101(1) CJA 2003)
What can the defence do to apply to exclude bad character evidence of the defendant (safeguards)?
- s78 PACE - courts must consider the fairness
Defence can argue relevant safeguards:
- s101(3) CJA - applies to D’s bad character under the gateways of s101(1)(d) and s101(1)(g) only
- s101(1)(d) and s103(3) - offences may be excluded by the length of time since conviction or any other reason it would be unjust to admit
- The court must ensure that admission does not compromise D’s right to a fair trial as there is potential for bias against D
What are the bad character gateways (gateways for admissibility)?
s101 CJA 2003:
- s101(1)(a): agreement of the parties
- s101(1)(b): evidence adduced by the defendant
- s101(1)(c): important explanatory evidence (without it the court would find it impossible to understand the other evidence)
- s101(1)(d): relevant to an important matter in issue between D and prosecution
- propensity to commit an offence (same offence or same type)
- propensity to be untruthful - s101(1)(e): important matter in issue between D and a co-defendant
- s101(1)(f): correcting a false impression
- s101(1)(g): attack on another person’s character
What must the court also consider in regards to admitting bad character evidence?
When considering whether to admit under one of the gateways, the court considers the overall effect of the evidence
- cannot admit bad character evidence just to bolster an otherwise weak case
What is bad character evidence?
Bad character is evidence of, or evidence of a disposition towards, misconduct or other reprehensible behaviour that is not
- concerning the alleged offence
- misconduct in connection with the investigation or prosecution of that offence
What does the court consider in relation to gateway (d)
Propensity to commit offences of the kind with which D is charged
R v Hanson sets out questions the court will ask to show propensity:
- D’s history establish propensity?
- Does propensity make it more likely that D committed the offence?
- Where previous convictions are of the same description/category, would it be unjust (s103(3))?
- Would proceedings be unfair if evidence were to be admitted (s101(3))?
