relevent Flashcards

Question

s.53 (1) YJ;CE 1999 provides;

Answer 1

'All persons whatever their age, are competent. However this general rule will not apply and a witness, (usually possibly a child or a person with learning difficulties), will not be competent to testify if it appears to the court that he is unable to give intelligible testimony.

Answer 2

Here Met. Police officers did not keep an accurate contemporaneous record of an interview with D where he confessed to charge of possession of an offensive weapon in a car. Met officers claimed they did not know about the provisions of CoP C, at time of D's arrest, and still did not know about them, i.e. 18 months later! LP- will be exclude if the police does not meet the code of practice.

Answer 3

The evidence of the 2 witnesses must relate to the speed of the vehicle at the same place and time.

Answer 4

A rape case-medical evidence adduced showing V had sex. Held this was not corroborative evidence-all it proved was that V had sex at the time-it did not confirm D had raped V, or confirm a lack of consent on her part to sex.

Answer 5

held evidence indicating that a medical condition will be made worse by stress, but which did not indicate clearly that the witness was unfit, will not suffice to satisfy s.116 (2) (b) condition.

Answer 6

On appeal-asked for confession to be excluded under s 76 (2) (b)-arguing it was unreliable because it might have been made in the hope of getting bail. ## Footnote **LP- herion addict is unreliable- 'a causal link must be shown between what was said or done and the subsequent confession.'**

Answer 7

CA Held following R v Makanjuola- ## Footnote **whether a warning is given and, if so, its strength, is down to judicial discretion and depends on the circumstances**

Answer 8

The CA held the jury must be warned that there is a very real danger that distress may be feigned in appropriate cases.

Answer 9

s. 76 (2) PACE '84 a. by **oppression** of the person who made it; b. 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 him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession

Answer 10

involved a sexual assault on V allegedly by D. V complained to her mother shortly afterwards about the assault. Held this victim's recent complaint to her mother was not corroboration of her evidence against D.

Answer 11

(i) V's own evidence as to her distress is not independent evidence and cannot constitute supportive evidence; (ii) evidence of others as to distress immediately after the incident may be supportive evidence but the judge should look at the circumstances of each case and tailor the directions to the facts, emphasising to the jury the need before they act on it to make sure the distress was not feigned and drawing to their attention factors that may affect the weight to be given to the evidence; (iii) evidence of others as to distress some considerable time after the alleged incident may be inadmissible because of no assistance as to who is telling the truth.

Answer 12

wife cannot be CPS witness

Answer 13

Held-Magistrates could convict D on evidence of a police officer who had checked D's vehicle speed from the speedometer of his own police car which was driven at an even distance behind D's car. nb-Speedometers, radar guns, radar speed meters are presumed to be accurate.

Answer 14

Here the victim made a statement 2 months before the trial indicating his fear at reprisals and his intention to move and not testify. At trial there was no evidence as to whether the witness was still scared-the court simply accepted he was. ## Footnote **Fear had to e judged at the time when the witness would be expected to give evidence orally.**

Answer 15

Held-No need for it to be proved/shown fear to be genuine and based on reasonable grounds.

Answer 16

s.82 (1) PACE '84 "any statement wholly or partially adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise."

Answer 17

'Any proceedings held for determining the question shall take place in the absence of the jury (if there is one).'-a voir dire basically. Also; '(5) Expert evidence may be received on the question.' Finally, '(6) Any questioning of the witness (where the court considers that necessary) shall be conducted by the court in the presence of the parties.'

Answer 18

s.76 (2) (b) R v Fulling [1987] 2 All ER 65 at p70- a confession may fail to be excluded under para (b) where there is no suspicion of impropriety.

Answer 19

1. No requirement that evidence be corroborated. 2. Secondly-no requirement to give a full corroboration warning, i.e. that the tribunal of fact be warned of the danger of acting on uncorroborated evidence.

Answer 20

**'These statutory provisions are not limited to the evidence of children. They apply to individuals of unsound mind. They apply to the infirm.** The question in each case is whether the individual witness...is competent to give evidence in the particular trial. The question is entirely witness or child specific. There are no presumptions or preconceptions

Answer 21

s. 58 (1) PACE '84 provides; 'A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time.' s. 58 (4); a. it will lead to interference/harm to evidence connected to the offence or interference with/physical injury to other people. b. will alert other people suspected of having committed an offence but not arrested. c. will hinder the recovery of any property obtained as a result of the offence. nb-s.58 arguably guarantees due process and upholds the presumption of innocence.

Answer 22

a) In sex cases-the argument was that allegations were easy to make but hard to rebut. Complainants in sex cases might complain falsely because of shame, fantasy, neurosis, spite etc; b) accomplices-may have their own interest to serve, do it for financial/other reward, decrease the extent of their own guilt by increasing the guilt of other alleged parties.

Answer 23

'sapped the accused's free will' so that 'he spoke when otherwise he would have remained silent.'

Answer 24

Here D appealed conviction on basis trial judge erred, i.e. had failed to ID which evidence was and was not capable of amounting to supporting evidence. Held CA-appeal allowed-conviction quashed CA-Held-Trial judge had a wide discretion to give a modified corroboration warning, but once it was given it was incumbent on the trial judge to ID any independent supporting evidence which existed. The jury needed careful direction here.

Answer 25

'(2) It is for the party calling the witness to satisfy the court that, on a balance of probabilities, the witness is competent to give evidence.' and '(3) In determining the question the court shall treat the witness as having the benefit of any directions under section 19 which the court has given, or proposes to give

Answer 26

Here an independent witness testified that V had cried out and run away shortly after the indecent assault. Held-if the jury could discount the distress being feigned/put on/an act it could corroborate.

Answer 27

A co-accused giving evidence on his own behalf. The judge should warn the jury to exercise caution because they may have an interest to serve.

Answer 28

Here the witness provided written statements that he had received anonymous implicitly **threatening telephone calls which appeared connected to the offence he was to testify about. Held-this suffices to establish fear.**

Answer 29

the admissibility of a confession = voluntariness test Ibrahim v R [1914] AC 599 Callis v Gunn [1964] 1 QB 495 CCA DPP v Ping Lin [1976] AC 574

Answer 30

Here the CA re-iterated that no form of set words are required for the care warning, (unlike the old full corroboration warning). R v Burrows [2000] Crim LR 48 At trial-prosecution contended D and another accused, (R), were in joint control of capsules containing 1.6 gms. of crack cocaine in each capsule and other items, (i.e. a mobile drug dealer's kit). Both D's ran cut-throat defences. Both were convicted-possession of a class A drug with intent to supply-penalty-30 months in Young Offender's Institution. D appealed. Held-CA-appeal dismissed-trial judge did underline the extreme care with which the jury should approach the allegations against each D-thus, CA could see no lack of safety in verdict.

Answer 31

'(6) A statement is not admissible under this section if the court makes a direction to that effect under subsection (7) The court may make a direction under this subsection if satisfied that the statement's reliability as evidence for the purpose for which it is tendered is doubtful in view of- (a) its contents, (b) the source of the information contained in it, (c) the way in which or the circumstances in which the information was supplied or received, or ( d) the way in which or the circumstances in which the document concerned was created or received.'

Answer 32

The full corroboration warning that the trial judge had to give the jury effectively comprised; 1. The warning that it was dangerous to convict on the uncorroborated evidence of e.g. accomplice/complainant in sex offence. 2. An explanation of the technical meaning of corroboration-(see previous discussion). 3. The judge had to indicate to the jury what evidence was and was not capable of corroborating as a matter of law. 4. An explanation that the jury determined, ultimately as a matter of fact, whether that evidence did corroborate. 5. That the jury, (confusingly?!), could nonetheless convict D despite the fact there was no corroboration/corroborative evidence.

Answer 33

**There should be a written statement of facts as to the steps taken to locate the witness**. In this case matters had proceeded too informally and the steps taken to locate the witness were not clearly stated. Evidence is necessary.

Answer 34

'Any risk of the conviction of an innocent person is lessened if conviction is based upon the testimony of more than one acceptable witness.'

Answer 35

The evidence to amount to corroboration must confirm not only the commission of the offence but that D did it.

Answer 36

Scope of voir dire 1. The prosecution may not cross-examine the D on the voir dire as to the truth of the confession. See Wong Kam-Ming v R [1986] AC 247 PC nb- remember s.76 (2)-the truth of the confession is immaterial to its admissibility

Answer 37

greatest caution and to examine it with the greatest care. He reminded the jury of the dangers involved; 1. The patients' mental illness at the time. 2. Their convictions for serious crimes. 3. Medical evidence that they suffered from delusions and had a tendency to lie or exaggerate. 4. The risk that they might have conspired together to bring false accusations.

Answer 38

1. Where there must be corroboration before a conviction. There are 3 situations where corroboration is needed/required before a conviction can be secured. 1. Speeding 2. Perjury 3. Attempts (at 1-2 above).

Answer 39

The prosecution were permitted to adduce in evidence the statements of the tourist and her companion under s.23 (2) (b) CJA 1988-i.e. tourist outside the UK and it was not reasonably practicable to secure her attendance. This had to be proved by the prosecution beyond reasonable doubt by leading evidence

Answer 40

s.134 Criminal Justice Act 1988

Answer 41

Thus any mental or personality disorder could be relevant re; s.76 (2) (b)-it was not limited to classes of case where D had a 'mental impairment' or 'impairment of intelligence or social functioning' or a very low IQ.

Answer 42

Here an expert in accident reconstruction testified he had inspected the scene of an RTA, including skid marks and damage to D's car, carried out speed and braking tests on the car and calculated its speed had not been less than 41 mph. ## Footnote **Held-this was not solely the opinion evidence of one witness-the expert had also described the objectively determined phenomena on which they were based.**

Answer 43

'if a person pleads guilty...he is no longer incompetent to give evidence for the prosecution against others charged.'

Answer 44

'A person charged does not include a person no longer liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).'

Answer 45

'A person is not competent if it appears that they are not able (a) to understand questions put to them as a witness and (b) give answers which can be understood. Hence to give intelligible testimony and be competent, a child must be able to understand questions put to him as a witness and secondly the child must be able to give answers to those questions which can be understood.

Answer 46

**All witnesses are both competent and compellable.** Why?- To make available all evidence to the court which is relevant and admissible. The modern trend increasingly is to make available evidence where possible, (and relevant/admissible), and **getting away from or at least restricting the number of categories of witness where there are problems with competence and compellability.**

Answer 47

'The mere fact that s**omeone is withdrawing**, and may have a **motive for making a confession**, does not mean the **confession is necessarily unreliable.'**

Answer 48

**scrapped the full obligatory/mandatory corroboration warning being given where the witness was 'merely' an accomplice or complainant in a sex case/offence**. But the trial judge now has a discretion to give some form of warning wherever he considers it necessary to do so.

Answer 49

LP that the lying to a suspect would not amount to oppression Held oppression construed narrowly.

Answer 50

s.76 (1) PACE; 'In any proceedings a confession **made by an accused person may be given in evidence against him** in so far as it is **relevant to any matter in issue in the proceedings** and is not excluded by the court in pursuance of this section.'

Answer 51

D arrested-held in custody in police station. 1. denied access to a solicitor unreasonably. 2. police failed to make contemporaneous notes of interview. 3. breached Code C-interview conducted on a person who asked for but did not receive legal advice. Held-denial of access to a solicitor contrary to s.58 will prima facie have an adverse effect on the fairness of proceedings but s.78 (1) states, 'such an adverse effect'-i.e. not all breaches of CoP will have such an adverse effect. LP- is that judge has the power to excludes the confession

Answer 52

(a) that the relevant person is dead; ( b) that the relevant person is unfit to be a witness because of his bodily or mental condition; (c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;' '(d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken. (e) that through fear the relevant person does not give (or does not continue to 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.'

Answer 53

a) Accomplices/complainants in sex cases no longer presumptively unreliable. b) No need to give full corroboration warnings on a discretionary basis-that would be contrary to the policy and purpose of the Act.

Answer 54

D confessed to manslaughter during a 75 minute interview in presence of his solicitor. **Officers raised voices/repeated questions.** **CA-held no oppression;'** Perfectly legitimate for officers to pursue the interrogation of a suspect with a view to eliciting his account or gaining admissions. They are not required to give up after the first denial or even after a number of denials.'

Answer 55

CA-Held the words 'through fear' should not be qualified in any way. Thus a stranger loitering outside the house may suffice.

Answer 56

a) Civil cases-a party may subpoena another person to attend as a witness. b) Criminal cases-attendance of a witness is achieved in the Magistrate's Court by serving a witness summons.

Answer 57

CA-Held-The term 'reasonably practicable' does not mean what is physically possible.

Answer 58

'(1) In criminal proceedings a statement contained in a document is admissible as evidence of any matter stated if- (a) oral evidence in the proceedings would be admissible as 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.'

Answer 59

1. holding out the possibility of release or bail-See R v Barry (1992) 95 Cr App R 384 2. suggesting offences could be taken into consideration rather than specifically charged-See R v Phillips (1988) 86 Cr App R 18 3. offering a hope of treatment rather than punishment-See R v Delaney (1988) 88 Cr App R 338 CA. 4. length of detention/number of interviews.

Answer 60

nb-s.77 (3) defines 'mentally handicapped' as someone; 'in a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning;' s.77 (1) provides; 'where at such trial- (a) the case against the accused depends wholly or substantially on a confession by him; and (b) the court is satisfied- (i) that he is mentally handicapped; and (ii) that the confession was not made in the presence of an independent person the court shall warn the jury that there is special need for caution before convicting the accused in reliance of the confession and shall explain that the need arises because of the circumstances mentioned in paragraphs (a) and (b) above.'

Answer 61

1. **They were confusing for the jury,** i.e. it was surely contradictory to warn the jury of the dangers of convicting on uncorroborated evidence and at the same time saying they could still nonetheless convict!! **2. Very complex.** 3**. A 'straitjacket'. Trial judge a 'Pavlovian dog'-**if witness a complainant in sex case/offence or an accomplice warning obligatory and automatic regardless of the particular witness, i.e. it was an incredibly blunt and insensitive tool-'one size fits all'! 4. **Sex victims were unlikely to have corroboration due to the nature of the offence.** **5. Paradoxically there was some evidence**, (See the Law Commission Working Paper No 115, at paras. 2.9 and 2.18),

Answer 62

applies only to opinion evidence-not to evidence of fact

Answer 63

**Here the issue was whether a victim of rape, who was suffering from a mental disability, was competent to give evidence.** The Court of Appeal, following R v Hayes held that no enquiry need be made into the religious belief of the witness. It was sufficient if the judge found that a witness possesses sufficient understanding of the duty to speak the truth in the context of court proceedings. Essentially the matter is one for the judge, who must determine if this witness has sufficient capacity to give evidence.

Answer 64

s.53 (4) YJ&CE 1999 provides; 'A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings).' Axiomatically if D is incompetent for the prosecution he is also not compellable for the prosecution.

Answer 65

'(1) Any question whether a witness is competent whether raised- (a) by a party to the proceedings, or b) by the court of its own motion, shall be determined by the court in accordance with this section.' The court/judge therefore basically decides if a witness is competent.

Answer 66

abrogated the requirement to give a corroboration warning re; an accomplice and complainant in a sex case, simply, ('merely'), because W is in one of those categories. 2. It is a matter for the judge's discretion what if any warning he considers appropriate in respect of such a witness, 'as indeed in respect of any other witness in whatever type of case.'

Answer 67

What is the position re; competence of the D for the prosecution where D is no longer liable to conviction?

Answer 68

Corroborative evidence does not have to confirm all the circumstances of the crime.

Answer 69

LP- interviews oppressive because of their, 'length and tenor Miller, IQ of 75, questioned over 5 days, interviewed for 13 hours, 19 tapes recorded of interviews. Miller asked over 300 times did he kill Lynette White-he denied the murder 300 times-then finally confessed.

Answer 70

a) -'In the ordinary way [the] issue should be determined before the witness is sworn, usually as a preliminary issue at the start of the trial.' b) -'the issue...is one of understanding, that is to say: can the witness understand what is being asked and can the jury understand that witness's answers?' c) -'the words ''put to him as a witness'' means the equivalent of being ''asked of him in court''. So, it would be the case that an infant who can only communicate in baby d) -'there is no requirement in the Act (which is commendably clear in its language) that the witness in question should be aware of his status as a witness. Questions of credibility and reliability are not relevant to competence. Those matters go to the weight of the evidence and might be considered, if appropriate, at the end of the prosecution case, by way of a submission of no case to answer.' e) Finally and arguably crucially the Court of Appeal held, 'a child should not be found incompetent on the basis of age alone and the question of competence can be kept under review.' Thus a child should not be assumed/deemed incompetent 'on the basis of age alone'. language with its mother would not ordinarily be competent. But a young child...who can speak and understand basic English with strangers would be competent.'

Answer 71

widely construed...courts are ill-advised to seek to test the basis of fear by calling witnesses before them, since that may undermine the very thing that...was designed to avoid.'

Answer 72

no effort to secure his attendance at the trial. Held the statement of the South Korean witness ought not to have been admitted. Lord Lane LCJ; 'Since seven months have elapsed since Mr Kim departed for South Korea, it was certainly not shown that it was not reasonably practicable to secure the witness's attendance.'

Answer 73

See also R v D(1995)

Answer 74

Here 2 witnesses testified to having heard D admit the falsity of the statement on the same occasion

Answer 75

Facts-D, aged 29, convicted of indecent assault-imprisoned-6 months. D indecently assaulted Emma Lilley, aged 17, by squeezing her breasts when they were alone together in the storeroom of a McDonald's store in Epsom, where they oth worked.

Answer 76

'Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime.' This is the classic definition of corroboration in its strict sense.

Answer 77

'(5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances descried in that paragraph are caused- (a) by the person in support of whose case it is sought to give the statement in evidence, or (b) by a person acting on his own behalf, in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the statement).' is there to prevent a party from relying on any of the five conditions/grounds in s.116 (2) if that party or someone acting on his behalf has brought the condition/ground about in order to prevent the relevant person from testifying.

Answer 78

only remove in if the confession had been made while he was experiencing acute withdrawal symptoms.

Answer 79

s.116 (2) (b)

Answer 80

A witness is compellable if he may be compelled or forced under threat of legal sanctions or punishment by a court to give evidence.

Answer 81

Held in the Administrative Court, that the Police Incident Log was inadmissible in evidence under s.117 to establish the identity of the offending car, because s.117 (2) (c) was not satisfied.

Answer 82

Ognall J- must require quite exceptional grounds to justify the reception of this evidence.

Answer 83

'It is clear that there is an essential difference between a decree absolute for divorce and a decree for judicial separation...**The decree absolute for divorce terminates the marriage; the decree for judicial separation does not, and, therefore, the spouses still remain husband and wife.'**

Answer 84

Accomplices were; a) Parties to the offence in question. b) Handlers of stolen goods-in cases of thieves from whom they receive, on the trial of the thief for theft. c) Parties to another offence committed by D in respect of which evidence is admitted under the similar fact doctrine.

Answer 85

a) perjury in judicial proceedings b) making false statements on oath in statutory declarations etc;.

Answer 86

**Trial judge may point out that cell confessions may be easy to concoct and difficult to disprove and that experience has shown prisoners may have motives to lie**. If the informant witness has a criminal record or history of lying this should be pointed out.

Answer 87

The Report stated that to make a prosecution for perjury too easy might discourage persons from giving evidence and create the danger of a successful party to litigation whose evidence was believed to prosecute his opponent, or his opponent's witnesses for perjury.

Answer 88

a doctor's statement that it would be in the witness's best interests to submit written testimony was not adequate evidence that the witness was unfit to attend. s.116 (2) (b)- mental condition

Answer 89

'A person shall not be liable to be convicted of any offence against this Act, or of any other offence by any other Act to be perjury or subornation of perjury, or to be punishable as perjury or subornation of perjury, solely upon the evidence of one witness as to the falsity of any statement alleged to be false.'

Answer 90

Up till January 1995, a trial judge had to give a full corroboration warning to the jury if the witness was either; a) a complainant in a sexual offence/case b) an accomplice. NB-This mandatory warning was scrapped by s.32 (1) CJ&POA 1994

Answer 91

Leaving contact with the witness such as this until the last working day before the trial is not good enough.' The home, or place of work or agency, should have been visited, or at least telephoned. Held- CA-the statement should not have been admitted under s.116 (2) (d). LP- contacting day before is not enough to improve the reasonable.

Answer 92

1. The competency assessment/investigation should be conducted at the earliest moment-not after the child gives his evidence. 2. The judge conducts the investigation-he discovers the competence of the child in 'ordinary discourse'-not cross-examination. It is a matter of his perception of the child's understanding. 3. If the child is video-recorded under the equivalent of s.19 YJ;CE 1999-the judge's pre-trial view of the recording-should help the judge to determine the child's competence. 4. The assessment of competence is carried out in open court, in presence of D, but not the jury. The jury decides the weight but the judge decides the competency, (admissibility), of the child's testimony.

Answer 93

In criminal proceedings a witness under the age of 14 cannot be sworn and must give unsworn evidence if they satisfy the competency/intelligible testimony test-(see s.55(2) (a) YJ&CE 1999). **A child who has reached the age of 14 can be sworn, i.e. give sworn testimony/evidence in court if, 'he has a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath.'**(see s.55(2) (b) YJ&CE 1999). Finally under s.55(3) YJ&CE 1999-a witness who is able to give intelligible testimony is to 'be presumed to have a sufficient appreciation of those matters if no evidence tending to show the contrary is adduced (by any party)'.

Answer 94

NB-**Opinion evidence of non-experts generally inadmissible but exception to this opinion evidence re; speeding.** See s.89 (2) Road Traffic Regulation Act 1984-persons charged with speeding- 'shall not be liable to be convicted solely on the evidence of one witness to the effect that in the opinion of the witness, the person prosecuted was driving the vehicle at a speed exceeding a specified limit.'

Answer 95

manufactured/concocted/exaggerated evidence from witnesses who have a vested interest in creating or inflating the significance of their evidence. nb**-Sir Rupert Cross-'the great pathological dread' of judges of 'concocted' and 'manufactured' evidence.**

Answer 96

A witness is competent if it is lawful to call him to give evidence.

Answer 97

There must be a **causal connection** between the oppression and the making of the confession. There must also be **some degree of impropriety by the interrogator for oppression** ground to be satisfied.

Answer 98

'reasonably practicable' involves normal steps which would be taken to secure the attendance of a witness, and other circumstances such as a) cost b) steps which might be available to secure attendance.

Answer 99

Here an independent witness testified that V had cried out and run away shortly after the indecent assault. Held if the jury could discount that the V was putting on an act/simulating distress/feigning distress this evidence could be corroborative.

Answer 100

LP- officer raised his voice and used some bad language is not oppressive.

Answer 101

s.117 CJA 2003 is very similar to the earlier exception in s.24 CJA 1988. s.117 allows documentary hearsay to be admissible in court if certain requirements are satisfied.

Answer 102

spouse may be the only witness if she is the victim or the victim is under 16. **It is sensible that the law should force her to give evidence and not have to make her choose to give evidence**

Answer 103

In order to be independent- the evidence must come from a source other than the witness to be corroborated.

Answer 104

This was an affiliation case-evidence from mother of V that D visited mother's home to see complainant, (V), at about the relevant period and met her at the corner of the street on various occasions. ## Footnote **Held this was not corroborative evidence. It was only evidence of opportunity. It did not implicate D with having sex with V.**

Answer 105

'(5) The requirements of this subsection are satisfied if- (a) any of the five conditions mentioned in section 116 (2) is satisfied (absence of relevant person etc), 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 106

CA-Held-**Trial judge obliged to warn/advise the jury to proceed cautiously where material suggested evidence might be tainted by an improper motive, but was not obliged to give an accomplice warning, as the witness was not a participant and not in any way involved in the crime the subject of the trial.**

Answer 107

'(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, b) the person who made the statement (the relevant person) is identified to the court's satisfaction, (c) any of the five conditions mentioned in subsection (2) is satisfied.'

Answer 108

**'business records are made admissible by s.117...** because...they are compiled by persons who are disinterested and, in the ordinary course of events, such statements are likely to be accurate; they are therefore admissible as evidence because prima facie they are reliable...and **the court is not to admit them if there is doubt about their reliability.'**

Answer 109

Whether a party took reasonable steps to secure attendance depends upon numerous factors- a) the importance of the evidence b) the expense and inconvenience of securing attendance c) the weight of reasons for non-attendance.

Answer 110

The accused's spouse is generally not compellable for the prosecution. However under s.80 (2A) (b) of PACE 1984 a spouse or civil partner is compellable if it is a specified offence.

Answer 111

s.76 (3) PACE '84

Answer 112

'(2) The requirements of this subsection are satisfied if- (a) the document or the part containing the statement was 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 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.'

Answer 113

Code C, - which governs the detention and questioning of suspects. Code E, tape-recorded

Answer 114

(a) the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings, (b) the evidence provided by the statement is so unconvincing that, considering its importance to the case against the defendant, his conviction of the offence would be unsafe, the court must either direct the jury to acquit the defendant of the offence or, if it considers

Answer 115

'(1) Any law relating to the giving of evidence by a spouse applies in relation to a civil partner as it applies in relation to the spouse.'

Answer 116

(2) It is for the party calling the witness to satisfy the court that, on a balance of probabilities, the witness is competent to give evidence in the proceedings' ' (4) Any proceedings held for the determination of the question shall take place in the absence of the jury (if there is one). (5) Expert evidence may be received on the question. (6) Any questioning of the witness (where the court considers that necessary) shall be conducted by the court in the presence of the parties.'

Answer 117

(4) Leave may be given under subsection ( 2) (e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard- (a) to the statement's contents, (b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence),' ' (c) in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (c. 23)(special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and (d) to any other relevant circumstances.'

Answer 118

First, in principle, anyone who is a **competent witness is a compellable witness...this general rule is a constitutional principle underlying our whole system of justice**.'

Answer 119

s.78 (1) PACE '84. '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, including 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 120

statements should not have been admitted in evidence-as **LJ Mustill argued because the police officers' evidence was; 'essentially a third-hand account of the witness's apprehensions'**, and was therefore inadmissible hearsay.

Answer 121

When the defence seeks to admit a statement under s.23 CJA 1988, (now s.116 (2) (a)-(e)), the defence needs to prove the existence of the conditions on the balance of probabilities. See R v Mattey & Queeley (1995) Crim LR 308.

Answer 122

here-there is no property in a witness. i.e. A witness does not 'belong' to a party calling them.

Answer 123

'Any provision whereby a person may not be convicted or committed for trial on the uncorroborated evidence of one witness (including any provision requiring the evidence of not less than two credible witnesses) shall have effect with respect to an offence under s.1 of the Act of attempting to commit an offence as it has effect with respect to the offence attempted.'

Answer 124

s.76(8), namely; 'In this section 'oppression' includes **torture,** ## Footnote **inhuman or degrading treatment,** **The use or threat of violence (whether or not amounting to torture**

Answer 125

s. 116 (3) CJA 2003 provides; (3) For the purposes of subsection (2) (e) 'fear' is to be widely construed and (for example) includes fear of the death or injury of another person or for financial loss.'

relevent Flashcards

Confession 116/117 hearsay competence and compellability (149 cards)