Criminal Flashcards

Question

S 78 PACE ('Fairness') This applies to not only confession.

Answer 1

In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.

Answer 2

R v Alladice (1988) - bad faith on the part of police officers usually lead to evidence being excluded 'Substantial or significant' breaches of PACE code. CODE C - Detention CODE D - Identification In R v Walsh (1989) 91 Cr App R 161, the Court of Appeal said that in most cases where a defendant had been denied access to legal advice in breach of s 58 of PACE 1984 or the provisions of Code C, this would lead to the court exercising its discretion to exclude any confession that the defendant subsequently made, since allowing the CPS to rely on such evidence would have an adverse effect on the fairness of the proceedings

Answer 3

Cannot use S76(2) Is likely to be excluded under s 78 if the police breached the provisions of Code C of PACE 1984 by: (a) failing to make an accurate record of the defendant’s comments (Code C, para 11.7(a)), as the police would not then be able to substantiate that such comments were in fact made by the defendant; (b) failing to give the defendant an opportunity to view the record of their comments and to sign this record as being accurate, or to dispute the accuracy of the record (Code C, para 11.11), as the defendant would then be deprived of the opportunity to challenge the accuracy of the police record; or (c) failing to put this admission or confession to the defendant at the start of his subsequent interview at the police station (Code C, para 11.4), as the whole point of putting the confession to the defendant at the start of the audibly recorded interview is to ensure that the defendant has the opportunity to confirm or deny ‘on the record’ what they are alleged to have said.

Answer 4

Code D, para 3.12 goes on to give two examples of when it would not be necessary to hold an identification procedure, namely: (a) when the suspect admits being at the scene of a crime and gives an account which does not contradict what the witness saw; and (b) when it is not disputed that the suspect is already known to the witness. Paragraph 3.14 of Code D provides that a suspect should initially be offered a video identification unless: (a) a video identification is not practicable; (b) an identification parade is both practicable and more suitable than a video identification; or (c) the officer in charge of the investigation considers that a group identification is more suitable than a video identification or identification parade, and the identification officer considers it practicable to arrange a group identification (Code D, para 3.16). One suspect - 8 others Two suspects - 12 others Identification parade - 8 Identification officer - not below the rank of inspector.

Answer 5

Evidence of a defendant’s bad character may be raised at trial through one or more of the 7 ‘gateways’ which are set out in s 101(1) of the CJA 2003. Section 101 provides that: (1) In criminal proceedings evidence of a defendant’s bad character is admissible if, but only if: (a) all parties to the proceedings agree to the evidence being admissible, (b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it, (c) it is important explanatory evidence, (d) it is relevant to an important matter in issue between the defendant and the prosecution, (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant, (f) it is evidence to correct a false impression given by the defendant, or (g) the defendant has made an attack on another person’s character. As with adverse inferences prosecution cannot rely on these alone.

Answer 6

This gateway allows a defendant to introduce evidence of their own bad character. A defendant may do this if, for example they only have very minor previous convictions and do not want the jury or magistrates to think that, because they are not adducing evidence of their own good character, they may have extensive previous convictions. Another example of when a defendant may do this is if they pleaded guilty on previous occasions but are pleading not guilty to the current matter. The defendant may use such convictions to say to the jury that they accept their guilt when they have committed an offence, but on this occasion they are pleading not guilty because they genuinely have not committed the offence charged

Answer 7

The gateway is, however, likely to be used only in limited circumstances. Evidence is important explanatory evidence if: (a) without it, the magistrates or jury would find it impossible or difficult properly to understand the case; and (b) the value of the evidence for understanding the case as a whole is substantial (CJA 2003, s 102) (‘substantial’ in this context is likely to mean more than merely trivial or marginal). If prosecution can establish test, court has no power to exclude under CJA 2003. Must rely on s78 PACE.

Answer 8

The prosecution will seek to adduce evidence of a defendant’s previous convictions under gateway (d) to demonstrate that: (a) the defendant has a propensity to commit offences of the kind charged; or (b) the defendant has a propensity to be untruthful. Only prosecution may adduce.

Answer 9

Propensity to commit an offence of the kind charged The CPS may place before the court evidence that a defendant has previous convictions in order to suggest that the defendant has a propensity to commit offences of the kind with which they are currently charged. To place such evidence before the court, the CPS must first satisfy the court that establishing such propensity makes it more likely that the defendant committed the offence. Section 103(2) of the CJA 2003 states that: A defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of: (a) an offence of the same description as the one with which he is charged, or (b) an offence of the same category as the one with which he is charged. This subsection does not apply in the case of a particular defendant if the court is satisfied that, as a result of the time which has passed since the conviction (or for any other reason), it would be unjust for it to be applied (CJA 2003, s 103(3))

Answer 10

Offences of the same description Two offences will be of the same description as each other if the statement of the offence in a written charge or an indictment would, in each case, be in the same terms (CJA 2003, s 103(4)(a)).

Answer 11

Offences of the same category Two offences will be of the same category as each other if they belong to the same category of offences prescribed by the Secretary of State (CJA 2003, s 103(4)(b)). The Secretary of State has so far prescribed two categories of offences which are in the same category: (a) the sexual offences category, which specifies a number of sexual offences committed against children under 16 years of age; and Criminal Practice 192 (b) the theft category, which includes the following offences: (i) theft (ii) robbery (iii) burglary (iv) aggravated burglary (v) taking a motor vehicle or conveyance without authority (vi) aggravated vehicle taking (vii) handling stolen goods (viii) going equipped for stealing (ix) making off without payment (x) any attempt to commit any of the above substantive offences (xi) aiding, abetting, counselling, procuring or inciting the commission of any of the above offences.

Answer 12

Even if an earlier offence is not of the same description or in the same category as the offence charged, evidence of the defendant’s conviction for the earlier offence may still be admissible under this gateway if there are significant factual similarities between the offences, since this would fall within the definition of having a propensity to commit offences of the kind with which the defendant is charged.

Answer 13

Propensity to be untruthful The CPS may also place before the court evidence of a defendant’s previous convictions to show that the defendant has a propensity to be untruthful and therefore that evidence given by the defendant at trial may lack credibility. The CPS will be allowed to do this only if it is suggested that the defendant’s case is in any way untruthful (s 103(1)(b)). In R v Hanson, Gilmore & Pickstone, the Court of Appeal held that a defendant’s previous convictions will not be admissible to show that the defendant has a propensity to be untruthful unless: (a) the manner in which the previous offence was committed demonstrates that the defendant has such a propensity (because they had made false representations); or (b) the defendant pleaded not guilty to the earlier offence but was convicted following a trial at which the defendant testified and was not believed. The court drew a distinction between a propensity to be dishonest and a propensity to be untruthful. Only if a defendant’s previous convictions demonstrated a propensity to be untruthful will they become admissible under this gateway. The court stressed that the only types of offence that would demonstrate such a propensity were offences where the defendant had actively sought to deceive or mislead another person by the making of false representations. Convictions following a not guilty plea Offences of any description may also fall within this part of gateway (d) if the defendant pleaded not guilty, testified but was convicted following a trial at which the court disbelieved their version of events, since this will demonstrate that the defendant has been found by a court to have been untruthful on a previous occasion.

Answer 14

Under s 101(3) of the CJA 2003, the court must not admit this evidence if on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The courts are most likely to use their powers under s 101(3) in three situations: (a) when the nature of a defendant’s previous convictions is such that the jury are likely to convict a defendant on the basis of these convictions alone, rather than examining the other evidence placed before them, or where the evidence of the previous convictions is more prejudicial than probative (see R v Bennabou above) (b) when the CPS seeks to adduce previous convictions to support a case which is otherwise weak (R v Hanson, Gilmore & Pickstone [2005] Crim LR 787); (c) when the defendant’s previous convictions are ‘spent’. The Rehabilitation of Offenders Act 1974 provides that after a prescribed period of time, certain convictions are spent. This means that, for most purposes (such as completing an application form for a job), the convicted person is to be treated as never having been convicted of the spent offence. The rehabilitation period varies with the sentence, as follows: absolute discharge None conditional discharge None fine 1 year community order 1 year custodial sentence up to 6 months 2 years custodial sentence between 6 and 30 months 4 years custodial sentence between 30 months and 4 years 7 years custodial sentence over 4 years never spent

Answer 15

Prosecution will argue : (a) the defendant has a propensity to commit offences of the kind charged; or (b) the defendant has a propensity to be untruthful.

Answer 16

The defendant’s solicitor may seek to challenge the admissibility of previous convictions which the prosecution seeks to admit under gateway (d) in two ways: (a) Arguing that the previous convictions do not actually demonstrate the relevant propensity and so do not satisfy gateway (d). For example: (i) How many convictions does the defendant have? One conviction is unlikely to show a propensity. (ii) If the previous convictions are being adduced to show a propensity to commit offences of the same kind: – do the factual circumstances of the previous convictions differ from the facts of the current offence; – would it be unjust to rely on them given the time which has elapsed since they occurred (s 103(3)); or – does the propensity make it no more likely that the defendant is guilty of the offence? (iii) If the previous convictions are being adduced to show a propensity to be untruthful, is it not suggested that the defendant’s case is in any way untruthful? (b) If the previous convictions do show the relevant propensity, can the court be persuaded to exercise its power under s 101(3) to exclude the convictions? Arguments that may be raised include: (i) Would the convictions be more prejudicial than probative? Is there a danger that the defendant would be convicted on the basis of their previous convictions alone, due either to the extent or to the nature of such convictions? (ii) Are the convictions being used to support a prosecution case that is otherwise weak? (iii) Are the previous convictions spent? R v Hanson - Does not have long history of offending Unjust to rely on

Answer 17

This gateway may be used by one defendant to admit evidence of another defendant’s bad character. It cannot be used by the CPS. Used on a co-defendant.

Answer 18

Propensity to commit offences of the same kind A co-defendant may therefore want to introduce in evidence the fact that a defendant has previous convictions for offences of the kind with which they have both been charged, in order to show that the defendant has a propensity to commit such offences and is therefore the more likely of the two to have committed the current offence. A co-defendant who seeks to introduce evidence of a defendant’s previous convictions for this purpose will need to demonstrate that such convictions are relevant to an important matter in issue between himself and the defendant, and that the relevance of such convictions is more than merely marginal or trivial

Answer 19

Propensity to be untruthful Section 104(1) of the CJA 2003 states: (1) Evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant’s defence. This part of the gateway is most relevant where the defendants enter into what is called a ‘cutthroat’ defence. This occurs when there are two (or more) defendants jointly charged with an offence, and each defendant pleads not guilty and blames the other(s) as having committed the offence. In such a situation, it will be an advantage for a co-defendant to be able to adduce evidence of his fellow defendant’s previous convictions, in order to undermine the credibility of that defendant’s evidence and to suggest that their version of events is the more credible. The most relevant previous convictions of a defendant which a co-defendant will seek to adduce in evidence in order to demonstrate that the defendant has a propensity to be untruthful will be convictions for specific offences which involve the making of a false statement or representation (for example, perjury or fraud by false representation), or convictions for any offence where the defendant was convicted at trial after entering a not guilty plea and testifying but not being believed by the court.

Answer 20

Gateway (f) – it is evidence to correct a false impression given by the defendant Only the prosecution may adduce evidence of a defendant’s bad character under gateway (f). A defendant will give a false impression ‘if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant’. A defendant will be treated as being responsible for making such an assertion if the assertion is: (a) made by the defendant in the proceedings (for example, when giving evidence in the witness box, or in a defence statement served on the CPS); (b) made by the defendant when being questioned under caution by the police before charge, or on being charged; (c) made by a witness called by the defendant; (d) made by any witness in cross-examination in response to a question asked by the defendant that is intended to elicit it; or (e) made by any person out of court, and the defendant adduces evidence of it in the proceedings (CJA 2003, s 105(2)) If the prosecution can establish that the test for admitting evidence of the defendant’s bad character through this gateway is satisfied, the court has no power under the CJA 2003 to prevent the admission of this evidence. The court does, however, retain the discretionary power to exclude such evidence under s 78 of PACE 1984 (see below)

Answer 21

Evidence attacking another person’s character is evidence to the effect that the other person has: (a) committed an offence (whether a different offence from the one with which the defendant is charged or the same one); or (b) behaved, or is disposed to behave, in a reprehensible way (CJA 2003, s 106(2)). Although the courts are likely to find that a defendant who makes an emphatic denial of guilt has not attacked the character of another, it is likely that the courts will give a very wide interpretation to this gateway

Answer 22

Excluding evidence admitted under gateway (g) As with gateway (d), the court must exclude evidence that would otherwise be admitted under this gateway if, on an application by the defendant, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it (CJA 2003, s 101(3)) (see gateway (d) above)

Answer 23

The court has no power under the provisions of the CJA 2003 to exclude bad character evidence admitted under any gateway other than (d) and (g). Bad character evidence under gateways (a), (b), (c), (e) and (f) is automatically admissible if the requirements for each of these gateways are satisfied. The court does, however, retain a discretionary power under s 78 of PACE 1984 to exclude evidence on which the prosecution propose to rely if the admission of the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. In R v Highton & Others [2005] EWCA Crim 1985, the Court of Appeal held that judges should apply the provisions of s 78 when making rulings as to the use of evidence of bad character, and exclude evidence where it would be appropriate to do so under s 78 (so in reality this will apply to bad character evidence which the prosecution seek to adduce under gateways (c) and (f)).

Answer 24

Stopping contaminated case Section 107 of the CJA 2003 allows a judge in the Crown Court either to direct the jury to acquit the defendant, or to order a retrial in circumstances where evidence of the defendant’s bad character is ‘contaminated’. Contamination may occur if witnesses have colluded in order to fabricate evidence of the defendant’s bad character. Section 107 does not apply to trials in the magistrates’ court.

Answer 25

A ‘hearsay statement’ is defined in s 114(1) of the CJA 2003 as ‘a statement, not made in oral evidence, that is relied on as evidence of a matter in it’. A ‘statement’ is defined in s 115(2) as ‘any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form’. The purpose, or one of the purposes, of the person making the statement must appear to the court to have been to cause another person to believe that the matter, or to cause another person to act (or a machine to operate) on the basis that the matter, is as stated (CJA 2003, s 115(3)). Examples of hearsay evidence that commonly arise in criminal proceedings are: (a) a witness repeating at trial what they had been told by another person; (b) a statement from a witness being read out at trial instead of the witness attending court to give oral evidence; (c) a police officer repeating at trial a confession made to them by the defendant; (d) a business document being introduced in evidence at trial.

Answer 26

Grounds for admitting hearsay evidence Hearsay evidence will be admissible if it falls within one of four categories. Section 114 of the CJA 2003 states: (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if: (a) any provision of this Chapter or any other statutory provision makes it admissible, (b) any rule of law preserved by section 118 makes it admissible, (c) all parties to the proceedings agree to it being admissible, or (d) the court is satisfied that it is in the interests of justice for it to be admissible.

Answer 27

There are a number of statutory provisions contained in the CJA, including: a) cases where a witness is unavailable – CJA 2003, s 116; (b) business and other documents – CJA 2003, s 117; Criminal Practice 174 (c) previous inconsistent statements of a witness – CJA 2003, s 119; (d) previous consistent statements by a witness – CJA 2003, s 120; (e) statements from a witness which are not in dispute – CJA 1967, s 9; and (f) formal admissions – CJA 1967, s 10

Answer 28

Section 116 of the CJA 2003 provides: (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if: (a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter [ie the statement must be ‘first-hand hearsay’], (b) the person who made the statement (the relevant person) is identified to the court’s satisfaction, and (c) any of the five conditions mentioned in subsection (2) is satisfied. The conditions referred to in s 116(2)(a)–(e) are that: (a) the relevant person is dead; (b) the relevant person is unfit to be a witness because of his bodily or mental condition; (c) the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance; (d) the relevant person cannot be found, although such steps as it is reasonably practicable to take to find him have been taken; (e) through fear the relevant person does not give oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence. Section 116(4) requires the court to give leave only if it considers that the statement ought to be admitted in the interests of justice having regard to the contents, to any risk of unfairness (in particular how difficult it would be to challenge the statement) and the fact that (in appropriate cases) a special measures direction could be made. Remember, s 116 applies only to ‘first-hand’ hearsay. In other words, a statement can be admissible under this section only if the person who made that statement would have been allowed to give oral evidence at trial of the matters contained in the statement. In the examples given above, the statement of each witness who was unable to come to court to give oral evidence would constitute ‘first-hand’ hearsay because their evidence had not passed through any other hands and was direct evidence of what they either saw or did. Below is an example of ‘second-hand’ or multiple hearsay. Such evidence is not admissible under s 116.

Answer 29

Must be a causative link. Fear that something will either happen to them or someone else as a result of them testifying.

Answer 30

Section 117 of the CJA 2003 provides: (1) In criminal proceedings a statement contained in a document is admissible as evidence of any matter stated if: (a) oral evidence given in the proceedings would be evidence of that matter, (b) the requirements of subsection (2) are satisfied, and (c) the requirements of subsection (5) are satisfied, in a case where subsection (4) requires them to be. Requirements - (a) the document (or the part of it containing the statement) must have been created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office; (b) the person who supplied the information contained in the statement (the relevant person) had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with; and (c) each person (if any) through whom the information was supplied from the relevant person to the person mentioned in paragraph (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office. The practical effect of s 117 is to make both ‘first-hand’ and ‘multiple’ hearsay in certain documents admissible in evidence.

Answer 31

Statements prepared for use in criminal proceedings If the statement was prepared for ‘the purposes of pending or contemplated criminal proceedings, or for a criminal investigation’ (s 117(4)), the requirements of s 117(5) must be satisfied. The requirements of s 117(5) will be satisfied if: Principles and Procedures to Admit and Exclude Evidence 177 (a) any of the five conditions mentioned in s 116(2) is satisfied (see above); or (b) the relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to the length of time since he supplied the information and all other circumstances).

Answer 32

s 114(1)(b) Section 118(1) of the CJA 2003 preserves several common law exceptions to the rule excluding hearsay evidence. The most important exceptions preserved by s 118(1) are: (a) evidence of a confession or mixed statement made by the defendant; and (b) evidence admitted as part of the res gestae. The common law principle of evidence being admitted as part of the res gestae provides that a statement made contemporaneously with an event will be admissible as an exception to the hearsay rule because the spontaneity of the statement meant that any possibility of concoction can be disregarded. (1) The primary question which the judge had to ask himself in such a case was: Can the possibility of concoction or distortion be disregard? (2) To answer that question the judge first had to consider the circumstances in which the particular statement was made in order to satisfy himself that the event was so unusual or dramatic as to dominate the thoughts of the victim so that his utterance was an instinctive reaction to that event thus giving no real opportunity for reasoned reflection. (3) In order for the statement to be sufficiently spontaneous it had to be so closely associated with the event which had excited the statement that it could fairly be said that the mind of the declarant was still controlled by the event. (4) Quite apart from the time factor there might be special features in a case which related to the possibility of distortion. (5) As to the possibility of error in the facts narrated in such a statement: If only the ordinary fallibility of human recollection was relied upon that went to the weight to be attached and not to the admissibility of the statement and was therefore a matter for the jury

Answer 33

Hearsay admissible in the interests of justice – s 114(1)(d) This is a ‘catch-all’ provision, allowing the court to admit hearsay evidence that would not otherwise be admissible if it is in the interests of justice to do so. This provision gives the courts a very wide discretion to admit hearsay evidence which is cogent and reliable. In deciding whether to admit hearsay evidence under s 114(1)(d), the court must have regard to the factors in s 114(2): (a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case; (b) what other evidence has been, or can be, given on the matter or evidence mentioned in para (a); (c) how important the matter or evidence mentioned in para (a) is in the context of the case as a whole; (d) the circumstances in which the statement was made; (e) how reliable the maker of the statement appears to be; (f) how reliable the evidence of the making of the statement appears to be; (g) whether oral evidence of the matter stated can be given and, if not, why not; (h) the amount of difficulty involved in challenging the statement; and (i) the extent to which that difficulty would be likely to prejudice the party facing it. In assessing these factors, the court will need to have regard to the defendant’s right to a fair trial enshrined in Article 6 of the ECHR (see below)

Answer 34

Challenge by arguing not in the interests of justice. Challenge the specific ground.

Answer 35

S 34 - Did the defendant fail to mention at the police station a fact he later relies on in his defence at trial? To counter : * lack of disclosure by the police; * weak police case; * complexity of case against the suspect; * events occurred a long time ago; * suspect unfit for interview; * age/maturity of suspect. If not S78 PACE. S36 - When arrested, was there an object, substance or mark * on the defendant’s person? * in or on the defendant’s clothing or footwear? * otherwise in his possession? * in the place of his arrest? Remember special caution needed. If not S78 PACE - unfairness to challenge. S37 - Was the defendant arrested at the scene of the offence at or about the time of the offence? Remember special caution needed If not S78 PACE - unfairness to challenge. S 35 - silence at trial The effect of s 35 is that, if the prosecution has raised issues which call for an explanation from the defendant, should the defendant then fail to give evidence, the court will be entitled to infer from that failure that the defendant has either no explanation, or no explanation that will stand up to cross-examination.

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