Criminal Flashcards
key points in a defence statement (draft)
a) simply just say defence (!! if there’s explanation for part of accusation, this is part of nature of defence)
b) state everything that is disagreed, not just the things you will challenged the CPS on
c) give explanation for both of a (if no person to say alibi just say he says he was at X place) (if explanation for part of accusation - lay it out)
d) this is where you expand on s76 and s78
!! if there is identification procedure being challenged, make sure to say that if it is admitted will be challenged under Turnbull
QUIRK: if gives explanation for accusation, say in a para that s36 adverse inference should not/cannot be raised
quirks to remember about raising s76/s78 in defence statement (quirk)
1) every time want to challenge confession start w s76 (unreliable) and conclude saying thus substantial and significant breach so unfair (s78)
2) if challenging identification procedure under s78 always add para saying that if allowed will challenge under Turnbull
3) if def raised explanation for something say will challenge any adverse inferences that could be drawn
code for interview procedure
code C
code for ID procedure
code D
s76
unrealibility
only for confession
MUST exclude
s78
susbtantial + significant = unfair to let adduce
DISCRETION to exclude
adverse inferences sections
s34: inference from silence when being questioned
s36: adverse inference to not answering about mark
s37: failing to account for particular place at particular time
s35: silence at trial when reasonably expected to raise defence/explanation
s34 inference
remaining silence during interview
before being charged: failing to say something they later rely on
after being charged: fail to mention something could be expected to mention
–> need to have been cautioned for it to apply
s36 inferece
not accounting for mark or object (or fingerprints!!) which the constable believes was caused by participating in the offence
–> needs special caution
–>arises even if def doesn’t raise a defence later (s34)
s37 inference
not accounting for place or time
–> like s36 (and unlike s34), operates even if def doesnt raise a defence or any new facts later
s35 inference
Def who fails to give evidence on his own behalf at trial may be subject to an adverse inference being draw by the court or jury
–> there is no obligation to give evidence, but court can draw inferences especially if its something def would be reasonably expected to answer
- will not apply if no case to answer
- will not apply if theres a medical reason that explains why its undesirable for def to give evidence (low mental age is not enough)
what’s a goodyear indicaiton
indication of sentence in CC PTPH
in MC is just called indication
CJA (criminal justice act)
hearsay and bad character ev
CJPOA (Criminal Justice and Public Order Act)
adverse inferences
what evidence is usable
must be related to the facts in issue and admissible (not bound to s78 PACE 1984 or s76 PACE 1984)
how does burden work
usually only claimant has legal + evidential burden beyond reasonable doubt
If defendant is raising a defence, has evidential burden on balance of prob (i.e only need to give evidence)
EXCEPT where def is raising defence of INSANITY and DURESS where def also had legal burden (balance of probs)
what should you do to challenge identification evidence?
1) s78 PACE 1984
2) Turnbull guidelines
1) admissibility of X will be challenged by virtue of s78 PACE 1984 on the grounds that it contravened procedural requirements. LIST THEM. This is a significant and substantial breach which would make it unfair to allow the CPS to adduce such evidence.
2) If X is ruled to be admissible, the quality of the evidence will be challenged following the principles of the Turnbull Guidelines
when do turnbull guidelines apply
1) witness gave evidence and identified defendant (either formally or informally, or def was previously known to them)
2) def identifies that they were at the scene or that they were seen
when do Turnbull guidelines NOT apply
1) def admits being at the crime scene but has a defence
2) def admits being at the crime scene, argues misidentification but no one else matches description
3) witness is describing the def as criminal but no direct evidence - no other ID procedure or evidence
s78 PACE 1984
provides court with DISCRETION to exclude evidence if the way it was obtained did not follow procedural requirements and such breach was so substantial and signficant that it would be unfair to allow the prosecution to adduce the evidence
code for interview
Code C
code for id procedure
code D
what’s the point of the Turnbull guidelines
it requires the court to assess the conditions and the quality of the sighting to basically indicate how much weight should be placed on it
(whats their relationship, where did it take place, what distance, obstructing view?, what time of the day)
what’s the Turnbull warning
ask jury to closely take into consideration the factors cited when considering the quality of the evidence and remind them that it is a notoriously unreliable and should exercise caution
- if quality not good: also draw attention to the flaws in the identification and direct them to the other evidence available
- if no other evidence: dismiss case
how does turnbull procedure vary in each court
MC: its the def’s solicitor that draws magistrates’ attention to it in closing speech
CC: the judge will assess the quality and THEN direct the jury (the jury doesnt assess anything)
pro and con of making a written statement and no answer interview
pro: as long as you account for everything, rules out possibility of raising adverse inference from failing to mention something should have/give explanation + prevents inference against late fabrication
con: does not prevent inference that thought defence was weak and would not stand up to scrutiny
is saying that your silence is from solicitor’s advice rule out every adverse inference?
no, court can still draw adverse inference if its something that you would reasonably be expected ot mentioned (only blocked if reliance on advice to stay silent was genuine and reasonable)
can court raise adverse inferences from silence before obtaining legal advice?
no
if def stays silent because of legal advice can police ask what the advice was?
no, unless the def says WHY the advice was given or something about the advice, in that case the priviledge is waived
what’s the special caution needed before any inference section
1) what the offence under investigation is
2) what fact the suspect is being asked to account for
3) that officer believes suspect may have been involved in offence
4) that court may raise adverse inferences
5) that a record is being made of the interview
how to challenge admissibility of adverse inferences?
s78 PACE 1984
claim entrapment only by inviting court to think of it as an abuse of process
general rule of hearsay
not admissible (dif from civl which is admissible if its to prove truth of matter, unless inadmissible opinion or irrelevant)
how to use hearsay
needs to fall under one of the conditions of s114 CJA 2003
most relevant:
1- falls under a statutory provision
2- preserved by rule of law (made by def + res gestae)
3- all parties agree
4- its in the interest of justice
is a diary hearsay?
NO! because was not produced with the intention for someone else to hear it/act on it
what are the statutory provisions to adduce hearsay
s114(a)(e) CJA 2003
1- witness is unavailable
2- its a business document
what are the grounds to adduce hearsay if witness is unavailable
s116 CJA 2003
1- witness is dead
2- witness is outside of country and impracticable to summon it
3- witness cannot be found and all practical steps have been taken
4- witness refuses to testify through fear (in connection or not of the subject matter) and the party has obtained leave of the court (+ its in the interest of justice)
5- witness is unfit to be a witness because of bodily or mental conditions
–> and overall its in the interest of justice to adduce it
–> this only applies to first hand hearsay!
imagine you have a witness coming to trial and they die the day before - can you adduce the evidence as hearsay??
DEPENDS because the gateway ‘witness is dead’ only applies to first-hand hearsay
so if it was their info, yes
if it was repeated from someone else, no
what satisfy the ground s114(a)(e) CJA 2003 of ‘business and other documents’ to adduce as hearsay
1) can be multiple hearsay
2) was created or received in course of business, trade, profession
3) the person who created (supplied the info) had personal knowledge of the matters
4) each person to whom the info was supplied received it in the course of trade, business, profession…
= this allows receipts, ledgers
** further requirement if document was PRODUCED for the purpose of criminal proceedins!
how to adduce hearsay if the doc was produced for the purpose of criminal proceedings?
1) needs to satisfy the requirements for adducing business and other docs (personal knowledge, produced in course of bsiness, supplied to everything in course of business)
+
2) witness cannot attend court because either cannot be reasonably expected to recollect the events
how do you adduce hearsay if it was business doc prepared for the purpose of criminal proceedings?
1) need the leave of the court
2) need to serve notice on CPS with intention to use
what are the common law grounds to adduce hearsay evidence?
preserved by s118 CJA 2003
1) def confession (even if mixed statement)
2) made by someone in res gestae (made contemporaneously with the event and spontenously)
3) all parties agree
how to decide whether hearsay adducement is in the interest of justice?
Apply s114(2) CJA 2003 guidelines
(generally not in the interest to admit anonymous witness evidence)
1) how valuable is it for understanding matter in case
2) what other evidence has been or can be given
3) how important is it in the context as a whole
4) how reliable is the maker
5) how reliable is the evidence
6) can it be given in oral evidence? why not?
7) how difficult is it for other party to challenge statement
8) how much would it prejudice the other party?
–> overall, usually say doesn’t cary much probative value but would have an adverse effect on the case
hearsay checklist
1) fall within s114 CJA 2003
2) be either statutory or common law
3) statutory is for witness unavailable (5 options) only first hand, or business docs + made for purpose of criminal proceedings (first or multiple)
4) common law is confession, res gestae or all parties agree
5) must be in interest of justice
how do you admit hearsay evidence?
1) needs to fall in one of the grounds
need to give notice: witness unavailable (s116), interest of justice, multiple hearsay, written witness statement
dont need to give notice: business doc and common law (confession evidence + res gestae + all agree)
–> will usually have pre-trial hearing to deal with disputes about admissibility
MC: case management or pre-trial
CC: PTPH or specific pre-trial hearing
what is a confession
anything the def says that is against his own case
made to anyone - doesnt have to be someone with authority
–> its an exception to the general rule that hearsay is not admissible, because confession is essentially admissible
how does confession of 1 def in 2 def trials affects the other?
- if confession made before trial: not admissible against other def, only against themselves
- if def has plead guilty or makes confession at trial, admissible against himself and the other def
how to challenge a confession
1) s76 PACE 1984 (unreliable)
2) s78 PACE 1984 (susbtantial and significant breach + unfair)
how to exclude confession by s76 PACE 1984
1) did not make confession (person mistake)
2) made confession but was obtained by oppression or by a way that casts doubt on reliability
–> there needs to be a link between breach and unreliability
–> if this is the case, court MUST EXCUDE unless CPS can DISPROVE beyond reasonable doubt
main diffrence between s78 and s76
s78 discretionary, s76 MUST
s76 just for confession (unreliability)
s78 unfairness
how to draft s76
1) X should be excluded by virtued of s76 this is because of the things said and done by the police officer cast doubt on the reliability of the evidence. Namely XXX (long pauses, didn’t give water…)
(additionally, admissibility of the evidence will also be challenged under s78 on the grounds that the things said and done mentioned above amount to such substantial and significant breach of procedural requirements of Code C that would be unfair to allow CPS to admit it
additional (v specific) ways can challenge confession under s78
when def claims police did not record confession accurately, asked def to sign/contest record of their comments or failed to put confession to def at the start of interview
whats the burden like when challenging confession evidence
def has evidential burden
CPS must persuade judge beyond reasonable doubt that evidence ought ot be included
–> even if admisisble, def should still try to attack credibility under cross-exam
in what way (type of hearing) challenges to confession evidence is done?
MC: s76 voir dire
s76 + s78 voir dire
s78 at the close of CPS case or at the end of trial
CC: s76 voir dire
s76 + s78: voir dire
s78: voir dire
whats the effect of an confession being held inadmissible on the facts discovered as a result?
they are not ruled out if there is no link between breach and discovery (illegal entry and find heroin = admissible because heroin was there regardless. Told someone found their fingertips and they confess, not admissible because confession just because of pressure)
but CPS must not tell court how the facts were discovered
what is bad character evidence
previous convictions but also anything that shows evidence or disposition towards misconduct
how can the def raise bad character evidence of a CPS WITNESS
1) both parties agree
2) important explanatory evidence needed to understand other evidence and has substantial value for understanding case as a whole (s100)
3)substantive probative value regarding a matter in issue and its important to undertsand the case as a whole
(matters in issue: credibility of witness, witness has propensity to do something)
–> likely to do this to seek previous conviction to show witness is lying, lacks credibility because has been charged with offences where lying was key element or have been charged with offence where pleaded not guilty)
!! where thye have a previous conviction regarding dishonesty, can bring them regardless of whether they involve untruthfulness!!! (this is different for def) (eg theft is dishonest but not untruthful)
section to adduce bad character evidence
s101 CJA 2003
s101(c) CJA 2003
CPS adduce evidence because important explanatory evidence
a) jury/magistrates would find it impossible or difficult to understand case
b)value of evidence for understanding case is substantial
–> court has discretion to allow or not
how can the CPS raise def’s bad character evidence?
s101
a) all parties agree
(b) raised by def himself)
c) important explanatory evidence
d) relevant to an important matter in issue between def and CPS (propensity)
e) this is for co-def only
f) to correct false impression given by def
g)def made an attack on another persons’ character
s101(d) CJA 2003
CPS adduce bad character evidence because its relevant to an important matter between cps and def, namely
–> propensity makes def more likely to have committed offence
a) show propensity to commit offences of the kind he is charged (same description = same terms) (same category = theft offences) (factual similarities)
b) propensity to be untruthful (offence involving actual untruthfulness (dishonesty eg in plain theft is not enough) or plead non-guilty and found guilty
–> offence being spent or big lapse of time usually annuls this
–> court MUST exlude if inclusion would have such adverse effect on fairness that it ought not be admitted (jury will convict solely based on past conviction, not probative value, more prejudicial than useful, because used to support and otherwise weak case)
(and if don’t will challenged under s78)
what’s court approach to s101(d) and s101(g)
they MUST exclude it if admitting it would have such an adverse impact on the fairness of proceedings –> ‘it is likely that the prejudicial effect of the jury finding out about such X would outweight the probative value of such X determining guilt’
–> this is because weak case otherwise, jury would prosecute just based on this evidence, no probative value, have been spent, no factual similarties
–> if its a theft offence, say he was dishonest but NOT untruthful
s101(e) CJA 2003
co-accused can adduce bad character evidence to show propensity to commit offences of the same kind or to be untruthful
which gateways must the court exclude evidence if found unfair? re bad character evidence
101(d) and 101(g): propensity and attacking anothers characters
for the rest, its up to court’s discretion, but def could still challenge it under s78 and also in cross-examination
what are the guidelines when establishing propensity (s101(d)) for bad character ev
1) does def’s history of offending show a propensity to commit offences?
2) does that propensity make it more likely they committed this offence?
3) is it just to rely on convictions of same description/category keeping in mind overriding principle of fairness?
relevant situations that might make propensity (same description/character)
- same description = exactly the same offence
- same category= same group (theft, sexual offences)
- otherwise factual similarities
–> if fewer number of convictions, less likely to show propensity unless there’s a specific distinguishing factor (eg always using a bottle)
- untruthful: its about manner in which the offence was committed (not necessarily because offence has dishonesty in MR - need to have actively sought to mislead or deceive person)
