Evidence

Question 1

What are facts in issue?

Answer 1

The facts that any party needs to prove in order to prove its case.

Question 2

How is a witness statement agreed as true by the parties?

Answer 2

Statement is read out, if there is no challenge and both parties consent to agree it is true, then this will prove a fact.

Can also be reduced to writing, and both lawyers agree and sign the agreement.

Question 3

How can a fact be proven without evidence by judicial notice?

Answer 3

Facts which are generally and widely known do not need formal proof. Judge can take judicial notice of a fact on enquiry - might not know off the top of their head but could easily find out if true.

Jurors cannot do their own research, and also can’t take notice on personal matters they know but are not generally known,

Question 4

What is real evidence?

Answer 4

Objects and things brought before court for inspection.

Question 5

What is the difference between direct and circumstantial evidence?

Answer 5

Direct evidence is that which a witness gives of having direct experience of a matter in issue.

Circumstantial is from which facts are inferred.

Question 6

What is ‘ a view’?

Answer 6

Occasionally juries can visit a scene of a crime to view an object that cannot be brought to court and their observations become evidence in the case.

Question 7

For any evidence to be admissible, it must be…

Answer 7

RELEVANT! Relevance is established by whether the evidence is logically probative of a fact in issue.

It also must not be subject to an exclusionary rule.

Question 8

What is the tribunal of fact?

Answer 8

IN MC, bench of magistrates or district judge.

In CC, jury.

They are responsible for determining the facts.

Question 9

What is the tribunal of law?

Answer 9

MC magistrates or district judge.

CC, Judge.

Issues of admissibility of evidence are matters of law for tribunal of law to decide.

Question 10

What is the legal burden?

Answer 10

the burden to prove an element of your case to a prescribed standard.

Question 11

What is the evidential burden?

Answer 11

TO raise some evidence to satisfy the judge that the matter should be argued before the jury.

Question 12

What is a rare example of when legal and evidential burden become detached?

Answer 12

Self-defence - some evidence has to be raised to put it before jury, but no actual standard of proof is required.

If judge is content that some evidence has been presented that D acted in self defence, prosecution has to disprove the force level was unlawful, not lawful.

Evidential burden on the defence is simply that is must raise some evidence of self-defence earlier in the trial.

Question 13

Who has the burden when duress or alibi has been raised?

Answer 13

Defence may raise defence, it is for prosecution to have the burden of disproving it.

Question 14

What are the key ways of excluding evidence?

Answer 14

Applications for dismissal;
Submissions of no case to answer;
Applications to exclude evidence under s78;
Applications to exclude confessions under s76;
Applications to exclude evidence under preserved common law provisions;
Abuse of process applications.

Question 15

What is an application for dismissal and when can it be made?

Answer 15

Pre-trial application to have the charges against a defendant dismissed. Can only be made after D has been sent by MC to trial in CC; after defendant has been served with evidence relating to the offence; or before the defendant is arraigned.

Question 16

How is an application for dismissal made?

Answer 16

Application is made to a CC judge. IF D wishes to make an oral application, they should give written notice of their intention to do so.

Test = judge shall dismiss a charge if it appears to him that the evidence against the applicant would not be sufficient for him to be properly convicted. This is the same test as where d makes a submission of no case to answer.

Question 17

What is a submission of no case to answer and when can it be made?

Answer 17

During a trial and after the prosecution has presented all of its evidence, D entitled to submit to judge that there is no case to answer on one or all charges. Can be made in MC or CC.

It is made at the close of the prosecution case.

CC will be in the absence of the jury.

Galbrainth test =
1. Where there is no evidence that the crime has been committed; or
2. Where the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it.

Question 18

What is an abuse of process application?

Answer 18

Asks whether a case should be allowed to continue.

1. If accused can not longer receive a fair hearing.
2. Where it would be otherwise unfair to try the accused or where a stay is necessary to protect the integrity of the criminal justice system.

Question 19

What is the common law discretion to exclude evidence?

Answer 19

Only applies to prosecution evidence - usually this is not relied upon. Would be used where the prejudicial effect of evidence outweighs its probative value.

Question 20

To what evidence does s78 PACE apply?

Answer 20

Only to evidence on which the prosecution proposes to rely.

Can be used if it appears to the court that having regard to all the circumstances, including 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.

Where breaches of the codes are significant and substantial, this may result in exclusion under s 78.

Question 21

When can an s78 application be made?

Answer 21

Before the trial, at the commencement of the trial, or just prior to the prosecution seeking to admit the evidence which the defendant wish to be excluded.

IF the application under s78 would result in prosecution case being fatally weakened, a judge will often want the argument to take place pre-trial or at commencement.

Question 22

What is voir dire?

Answer 22

Trial within a trial - e.g. judge hears defences argument (for example that police acted in a breach) and prosecutions side and then makes a decision.

Witnesses testify on a special form of oath ‘that I will true answer make to all such questions as the court shall demand of me’.

CC absence of jury.

Question 23

What counts as a confession?

Answer 23

Unequivocal confessions, some mixed statements, sometimes a nod or gesture in the right context.

Question 24

What are the two main ways under s76 to challenge a confession?

Answer 24

s76(2)(a) oppression

s76(2)(b) anything said or done which was likely in the circumstances existing at the time to render unreliable any confession which might be made by him in the consequences thereof.

Question 25

When would s76(2)(a) allow a confession to be excluded for oppression?

Answer 25

Oppression includes torture, inhuman or degrading treatment and the use or threat of violence. Consider the character and attributes of the accused. Once defence represent that confession was obtained by oppression, (or court chooses to act of its own motion under s76(3), prosecution must prove beyond reasonable doubt that it was not so obtained.

Question 26

When can s76(2)(b) exclusion for unreliability be used?

Answer 26

Where it is represented to the court that the confession was or may have been obtained in consequence of anything said or done which was likely in the circumstances existing at the time to render unreliable any confession which might be made by them in consequence thereof except if prosecution can prove beyond reasonable doubt that the confession was not obtained as aforesaid.

Question 27

What is the correct approach when the defendant alleges their confession is unreliable within s76(2)(b)?

Answer 27

1. Identify the thing said or done. This can include a promise, inducement or trick, as well as an omission or failure to act like interviewing a young suspect without an appropriate adult. 2. Ask whether the thing said or done was likely in the consequences to render unreliable a confession made in consequence. Objective test taking into account all the circumstances. This could include deprivation of sleep, failure to caution, denial of access to legal advice. 3. Ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done, Question of the fact for the judge.

Question 28

What are the four key aspects to making an application for excluding confession?

Answer 28

1. Advance notification - defence statement should include any points of law including regarding admissibility of evidence. At PTPH or Further Case management hearing at CC, judge will review defence statement and is likely to order with time limits for the defence to serve a skeleton argument in support of any s76/78 arguments and prosecution to save response. 2. TIming - can be made at pre-trial hearing or just prior to opening the case to the jury in CC. 3. Voir dire - where facts on both sides are disputed, judge will have to make a finding of fact by a void dire hearing. 4. Submissions - voir dire only required if factual matter relating to substance of legal argument requires resolution.

Question 29

You are representing a man for theft of a credit card. It is alleged that the man stole the credit card from his friend. Part of the prosecution evidence against your client is a statement from a police officer stating that he arrested the man and found he was in possession of the credit card. Your client confirms to you that he was in possession of the credit card but that his friend had lent it to him. Which of these statements is the best advice to your client about the police officer’s statement? A You will be able cross examine the police officer about your client’s possession of the credit card in court. B The prosecution will want to agree the witness statement, but you will not agree as you don’t want to accept the police officer’s account. C The witness statement should be agreed so it will be read out in court. D The fact that the credit card does not belong to your client can be agreed between the parties. E The officer will have to attend court to read out his statement otherwise it will not be admissible.

Answer 29

C - our client does not challenge the witness’s account and therefore the statement can be agreed between the parties under the Criminal Justice Act 1967 s.9. The statement will be read out in court and given the same weight as if the police officer had attended and given oral evidence. The other options while plausible are incorrect: The police officer’s statement does not deal with the ownership of the credit card. The fact that it doesn’t belong to your client might be agreed as a fact between the parties under CJA 1967, s.10. There is no need to challenge the officer’s statement. Your client does not disagree with the account put forward by the officer and therefore it can be agreed under s.9. As per the above, you are able to accept the statement as true as per CJA 1967, s.9. If the statement is agreed under s.9 the witness does NOT have to attend to read the statement. It can be read by the prosecutor.

Question 30

Your client is facing trial for the possession of an offensive weapon, namely a knife, that was found in his possession during a search. The search was not conducted properly and in accordance with the relevant police codes of practice. Which of these best summarises the position regarding whether you can seek to exclude the knife from evidence? A You can seek to exclude the knife from evidence on the basis that the evidence would have such an adverse effect on the fairness of proceedings. B You cannot seek to exclude the knife from evidence because breaches of police codes of practice are irrelevant to the status of the evidence. C You cannot seek to exclude the knife from evidence because it is fundamental to the prosecution case. D You can seek to exclude the knife from evidence and it will automatically be excluded on the basis that there has been a breach of police codes of practice. E You can seek to exclude the knife from evidence and it is for the prosecution to prove beyond reasonable doubt that the exclusion of the knife would have an adverse effect on the fairness of proceedings.

Answer 30

A - You can make an application under s.78 (1) of PACE. The court has the discretion to exclude the evidence or not. The other answers while plausible are incorrect: Circumstances of obtaining the evidence are relevant under s.78 PACE. The importance to the prosecution of that piece of evidence is not relevant to s.78. There is no burden of proof. The court will have the discretion to decide whether or not to exclude under s.78. Evidence is not excluded automatically for breach of police codes of practice.

Question 31

Your client is a 19 year-old woman with learning difficulties, who was interviewed by the police following her arrest for murder. The police refused to give her access to a solicitor. In the interview, she confessed to having taken part in the killing and is now charged with murder. The prosecution seek to rely on the confession as part of the evidence. You are seeking to exclude the evidence from the trial. What is the basis of your application? A You rely on s.76 Police and Criminal Evidence Act 1984: the court should refuse to allow the evidence as in all the circumstances 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. B You rely on s.76 Police and Criminal Evidence Act 1984: the court should not allow the confession to be given in evidence as it was obtained by oppression. C You rely on s.78 Police and Criminal Evidence Act 1984: the court should not allow the confession to be given in evidence as it was obtained by oppression. D You rely on s.78 Police and Criminal Evidence Act 1984: the court should not allow the confession to be given in evidence because it was made as a consequence of actions that rendered it unreliable E You rely on s.78 Police and Criminal Evidence Act 1984: the court should refuse to allow the evidence as in all the circumstances 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.

Answer 31

E - The court should refuse to allow the evidence as the admission of an interview without a solicitor where the suspect has learning difficulties could have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The other answers while plausible are incorrect: There is no evidence of oppression under s.76 The wording of the statute is incorrect in the remaining answers.

Question 32

Your client attends your office in advance of his Plea and Trial Preparation Hearing (PTPH) at the Crown Court. He is facing six charges of burglary to which he will plead not guilty. He has various questions about what will happen with his case. In particular, he wants to know whether his previous convictions will be admitted as evidence, whether one of the witnesses who is only 13 years old will be allowed to give evidence via videolink, and what will happen in relation to his police interview during which officers repeatedly stated he was ‘talking nonsense’. Which of these statements is the most accurate summary of what will happen at the PTPH in relation to your client’s questions? A A timetable will be set for the defence to make an application to object to the bad character evidence being admitted at trial and the prosecution reply. The court will make directions as to special measures for the 13 year old witness, who automatically qualifies for special measures. The court will set a timetable for the prosecution and defence to agree an edited version of the police interview transcript. B A timetable will not be set as the prosecution will make a bad character application at trial. The court will make directions as to special measures for the 13 year old witness, who automatically qualifies for special measures. The court will set a timetable for the prosecution and defence to agree an edited version of the police interview transcript. C A timetable will be set for the prosecution to make a bad character application and the defence reply. The court will make directions as to special measures for the 13 year old witness, who automatically qualifies for special measures. The court will set a timetable for the prosecution and defence to agree an edited version of the police interview transcript. D A timetable will be set for the prosecution to make a bad character application and the defence reply. The court will hear argument from prosecution and defence as to whether the 13 year old witness should be granted special measures. The prosecution will be given a timetable by which to serve a ‘final’ edited version of the police interview transcript. E A timetable will be set for the prosecution to make a bad character application and the defence reply. The court will hear argument from prosecution and defence as to whether the 13 year old witness should be granted special measures. The court will set a timetable for the prosecution and defence to agree an edited version of the police interview transcript.

Answer 32

C - Timetables will be set for bad character applications as well as agreement of interview transcript. Because the witness is under 18 she automatically qualifies for special measures. The other answers while plausible are incorrect: Bad character applications would not be made at trial. An application must be served and responded to as per the court’s standard directions. A timetable will be set for this at the PTPH. The witness is 13 years old so no argument would need to be heard regarding special measures as they would automatically qualify. The prosecution and defence will agree and edited version of the police interview transcript. Bad character evidence is inadmissible and the prosecution must apply to admit the evidence.

Question 33

Your client has confessed to theft but claims he was threatened in his cell by a police officer just prior to his police station interview. He was unrepresented at interview and agreed to everything put to him including his confession that he committed a theft. He now wants to plead not guilty at his first appearance before the magistrates’ court and want to know what will happen in relation to his confession. Which of these best sets out the law in relation to his confession and the possible exclusion of his confession. A The court will not allow the evidence of the confession to be admitted unless the prosecution prove beyond reasonable doubt that the confession was not obtained by oppression. We can also seek to exclude the confession on the basis that it would have an adverse effect on the fairness of proceedings. B The court will not allow the evidence if we seek to exclude the confession on the basis that it would have an adverse effect on the fairness of proceedings. C The court will not allow the evidence of the confession to be admitted unless the prosecution prove beyond reasonable doubt that the confession was not obtained by oppression. D The court will not allow the evidence of the confession unless the prosecution can prove on the balance of probabilities that the confession was not obtained by oppression. We can also seek to exclude the confession on the basis that it would have an adverse effect on the fairness of proceedings. E The court will not allow the evidence of the confession if we can prove on the balance of probabilities that the confession was obtained by oppression. We can also seek to exclude the confession on the basis that it would have an adverse effect on the fairness of proceedings

Answer 33

A - n application would be made under s.76(2)(a) of PACE. Further, an application under s.78 could also be made. The other answer while plausible are incorrect: The defence do NOT need to prove that the confession was obtained by oppression. The defence can make an application under s.76 as well as s.78 PACE. The defence can make an application under s.78 as well as s.76 PACE. The prosecution must refute any claim under s.76 beyond reasonable doubt.

Question 34

Your client is facing jury trial for burglary. The evidence against her is very weak and once the prosecution case has concluded it is apparent that only very weak evidence has been put forward that your client has committed the offence. You speak with your client before the start of the defence case and explain to her what is going to happen next. Which of these statements best sets out your advice to your client as to whether the case might be discontinued? A We can make a submission of no case to answer. If the judge finds there is no evidence that you committed the offence then they have the discretion to acquit. If we are successful the court will acquit. B We can make a submission of no case to answer. The judge will have to consider whether there is any evidence against you in order to properly convict. If we are successful the court will acquit. C We can make a submission of no case to answer. The jury will decide whether there is sufficient evidence in order to convict you. If we are successful the court will acquit. D We can make a submission of no case to answer. The judge will have to consider whether the prosecution evidence taken at its highest is enough on which a jury can safely convict. If we are successful the court will acquit. E We can make a submission of no case to answer once the court has heard the defence case. After the defence case has concluded we can make an application when the judge will have to decide whether there is sufficient evidence for the jury to convict. If we are successful the court will acquit.

Answer 34

D - You can make a ‘half time submission’ of no case to answer. See guidance under R v Galbraith [1981] 73 Cr App R 124. The other answers while plausible are incorrect: If there is no evidence against your client then the judge must acquit (this is not a discretion). The jury does not hear an application of no case to answer. When deciding if there is no case to answer, the judge will not simply consider whether there is any evidence against your client as this is not the correct test. A submission of no case to answer would always be made after all of the prosecution evidence has been heard. It would not be made after the defence case.

Question 36

You are representing a client who is on trial for grievous bodily harm with intent at the Crown Court. The only evidence against her is an independent witness who saw her strike the victim with a metal bar. Which of these statements best sets out the law with regard to identification evidence? The identification evidence is unsupported so the judge must decide on the strength or weakness of the witness evidence and direct the jury accordingly. The identification evidence is unsupported and the prosecution case wholly depends on the correctness of the identification so the judge must give a special direction to the jury. The identification evidence is unsupported and the only evidence against your client so the judge will have to remind the jury of the weakness of the evidence during summing up. The identification evidence is unsupported but there is no need to give any particular direction to the jury as they will consider the strengths and weaknesses of the evidence as part of their deliberations. The identification evidence is unsupported so the judge is obliged to withdraw the case from the jury.