Concepts Flashcards
(18 cards)
What is the triangulation of interests
Balance between the defendant’s right to a fair trial, the public interest in the prosecution of crime and the interests of the victims and witnesses
What is circumstantial evidence
That circumstantial evidence can be as strong as direct evidence.
No special direction is necessarily required for the jury when circumstantial evidence is submitted to court.
The inference used is required to be the only rational conclusion. (if their is a plausible alternative, the jury should not convict. (McGreevy)
What is corroborative evidence
DPP v Hester - the essence of corroborative evidence is that one creditworthy witness confirms what another credit worthy witness has said any risk of the conviction of an innocent person is lessoned if the conviction is based on the testimony of more than one acceptable witness.
What are the factors necessary before admitting corroborative evidence
In order to accept this type of evidence the court must be satisfied that: (Baskerville 1916)
i. It is testimony independent of the complainant
ii. It connects or tends to connect the accused to the crime.
iii. It implicates the accused in some material particular to the crime
There are some crimes that definitely need corroboration from another.
* Speeding
* Perjury
* Treason
What is a Mackanjoula warning?
A warning from the judge that the jury that corroborative evidence is needed:
The strong warning – A judge can warn a jury on the dangers of convicting on the basis of a single witness
Exercise caution warning – A jury can be warned that they need to exercise caution before convicting on the uncorroborated evidence of a complainant.
When is a strong Mackanjoula warning required? (4 reasons)
When the witness has a history of dishonesty or bad character (like perjury or fraud) per R v Cheema
When there is risk of fabrication / motive to lie / risk of collusion
There is evidence of suggestibility or vulnerability of the witness.
When the case depends heavily on witness testimony (no independent supporting evidence like forensics)
What are the necessary factors needed for a lie to be corroborative?
A lie is not automatically corroborative. It can usually be passed off as a standalone moment of dishonesty. R v Lucas tells us that the lie must be
a. Deliberate
b. Related to the material
issue
c. Made after awareness of
prosecuting case against
them
d. Must not have an innocent
explanation
What is the Lucas direction?
The Lucas direction is the warning (direction) the judge gives to the jury when the prosecution wishes to use a lie told by the defendant as evidence of their guilt. It comes from R v Lucas. They may try to claim that the lie is corroborative the direction can be flipped around, and direction can be given regarding a lie told by a prosecution witness which can be used to undermine or weaken the prosecution case or strengthen the defence case. (R v Burge and Pegg)
What does RAW stand for?
Relevance, Admissability, Weight
What is the test for competence of witnesses?
s.53 YJCEA 1999 - Can the witness understand questions? Can the witness give good answers? (R v Baker 2004 - Very low threshold)
The only exceptions to this rule that have not been swept away are the accused acting as a witness for the prosecution, or per s53(3): children (R v B 2001) and those with a disorder or disability of the mind. (R v Macpherson 2006)
The test is functional, not diagnostic, the court looks to the actual ability of the individual to act as witness.
What is the general rule on witness compulsion?
All competent witnesses, are compellable - exceptions are the
the accused (Bathurst 1968) spouses, (R v Pitt)
heads of sovereign nations (Pinochet No.3) etc…
What is an abuse of process?
An abuse of process occurs when it would be unjust or oppressive to try the accused, or when continuing the prosecution would undermine the integrity of the justice system.
Latif 1996 – Latif and others were involved in a heroin importation scheme. The drugs were brought into the UK with the help of undercover customs officers, some of whom arguably acted improperly. The defence argued that the prosecution should be stayed on the basis of abuse of process, claiming that the authorities were essentially involved in encouraging the crime court found that it had the power to stay proceedings of a case where the evidence was not obtained properly ie through an abuse of process like entrapment.
What is a submission of no case to answer?
This is a submission made by the defence usually at the end of the trial that claims that the evidence as a portfolio against the defendant is so weak that it could be said that the defendant has no case to answer. If the submission succeeds, the judge directs an acquittal and the defendant is found not guilty.
R v Galbraith 1981- Lord Lane CJ set out the test in two parts:
1. If there is no evidence that the crime has been committed by the defendant, then the judge must stop the case.
2. If there is some evidence, but it is so weak or inconsistent that no reasonable jury, properly directed, could convict on it, then the judge may stop the case.
What does s.78 PACE Act establish?
establishes the right of the court to exclude evidence from the trial if it would have an unduly adverse effect on the fairness of the trial.
(Attorney General’s Reference No.3 of 2000) R v Loosely 2001 - the House of Lords established that while entrapment isn’t a formal defence, courts can stay proceedings or exclude evidence if police conduct is so improper as to bring the administration of justice into disrepute
What is an achieveing best evidence interiew? (ABE)
An interview conducted by police officers with vulnerable or intimidated witnesses, most commonly children or adults with communication difficulties, in criminal cases in the UK. The aim is to obtain their best possible evidence in a way that is fair, thorough, and legally admissible—often to be used as their evidence-in-chief in court. Guidance for these interviews is published by the MoJ and it falls in the YCJE Act’s special measures for vulnerable witnesses.
R v Baker 2010 ruling?
R v Baker 2010 involved a child witness who was aged four. The child could not grasp the concept of an oath, and did not understand the difference between the truth and a lie. Nonetheless the trial judge found that the child was competent to give evidence. The court of appeal upheld this decision because the child gave intelligible answers. The court agreed to set a very low bar for what is to be considered competency.
DPP v Kilborune
A matter is relevant if it is probative or disprobative
Admissability
Something is admissable if it is relevant - R v Myers
