Rules of Evidence Flashcards
1
Q
what is the general principle regarding evidence?
A
- Evidence must be relevant to the facts in issue and admissible
- Evidence which meets these requirements can either be direct evidence of D’s guilt or circumstantial evidence from which D’s guilt can be inferred
2
Q
if evidence is relevant and admissible, what type of evidence can it be? Give examples
A
Evidence which meets these requirements can either be direct evidence of D’s guilt or circumstantial evidence from which D’s guilt can be inferred e.g.:
o Direct evidence directly supports the truth of an assertation i.e. EWT
o Circumstantial evidence evidence which suggests a fact is true but doesn’t directly prove it i.e. a letter saying D will ‘get event’
3
Q
what is the position if the case relies on circumstantial evidence only?
A
- If a case depends on circumstantial evidence only, there will be no case to answer if it is not capable of supporting a conviction
4
Q
what is direct evidence?
A
o Direct evidence directly supports the truth of an assertation i.e. EWT
5
Q
re: burden & standard of proof
what is the legal burden? who decides this?
A
- Legal burden (/persuasive burden) = elements of the offence to be proven
o Decided by Mags/jury
5
Q
what is circumstantial evidence?
A
o Circumstantial evidence evidence which suggests a fact is true but doesn’t directly prove it i.e. a letter saying D will ‘get event’
6
Q
re: burden & standard of proof
what is the evidential burden? who decides this?
A
- Evidential burden = obligation to adduce sufficient evidence on an issue
o Decided by judge
7
Q
re: burden & standard of proof
what is the legal burden on P?
A
- Legal burden always on P
8
Q
re: burden & standard of proof
what is the evidential burden on P?
A
P must provide sufficient evidence to justify a finding of guilt (inc. disproving any defence) and show D has a case to answer.
9
Q
re: burden & standard of proof
what can happen if P does not satisfy the evidential burden?
A
o If they fail to do so, D’s solicitor can make a submission of no case to answer (i.e. P has failed to discharge the evidential burden)
10
Q
re: burden & standard of proof
what is the standard of proof?
A
beyond all reasonable doubt (i.e. must be sure of guilt)
11
Q
re: burden & standard of proof
what is the legal burden on D? what is the standard?
A
only where raises certain defences i.e. insanity or diminished responsibility to a murder charge
balance of probabilities
12
Q
re: burden & standard of proof
what is the evidential burden on D?
A
D is not obliged to put forward any evidence of their innocence, but must raise any specific defence (i.e. alibi or self-defence). D does not need to prove the defence, P must disprove it.
13
Q
re: admissibility of visual identification evidence
what is this?
A
- i.e. challenging the admissibility of eye witness testimony
14
Q
re: admissibility of visual identification evidence
what should D do first?
A
- D should first challenge the evidence under s78 (used where there’s been a significant & substantial breach of PACE/COP)
15
Q
re: admissibility of visual identification evidence
what are example of Code D breaches in this context
A
Examples of a breach of Code D in relation to identification procedures:
o Other images do not resemble D
o W were not segregated
o D failed to hold an identification procedure when they should have
16
Q
re: admissibility of visual identification evidence
if the court won’t deem the evidence inadmissible under s78, what should D do next?
A
o Make representations under the Turnbull guidelines (if applicable); and
o Attempt to undermine the quality of the evidence in cross-examination
17
Q
re: admissibility of visual identification evidence
when do the Turnbull guidelines apply?
A
- Only applicable when P’s W identifies D and D disputes identification (i.e. D may admit to being at the place, but deny the identification is them)
18
Q
re: admissibility of visual identification evidence (Turnbull Guidelines)
when will W have ‘identified’ D?
A
W (called a Turnbull witness) will have ‘identified’ D where:
o They picked D out informally;
o They identified D in a formal identification procedure; or
o They claim to know D as someone previously known to them
19
Q
re: admissibility of visual identification evidence (Turnbull Guidelines)
when will these not apply?
A
- i.e. if W gives a description of D but fails to identify them, then the Turnbull guidelines do not apply
20
Q
re: admissibility of visual identification evidence (Turnbull Guidelines)
what must the court do if these apply?
A
- If the Turnbull guidelines apply, the Mags/trial judge in the CC must assess the circumstances and strength of the identification evidence
21
Q
re: admissibility of visual identification evidence (Turnbull Guidelines)
if these apply, what must the court consider?
A
o The length of the observation;
o Distance between W and S;
o Lighting i.e. day, night, street light;
o Conditions i.e. raining, foggy any obstructions;
o How much of S’s face did W see? Is the description clear or lacking detail?
o Was S was already known to W? Or had W never seen them before?
o How closely does W’s original description match D’s description?
22
Q
re: admissibility of visual identification evidence (Turnbull Guidelines)
when is a Turnbull warning given?
A
- Turnbull warnings are given when judge is summing up before jury retires
23
Q
re: admissibility of visual identification evidence (Turnbull Guidelines)
once the court have assessed the evidence, what must they do?
A
decide on the quality of the evidence give a Turnbull warning
24
re: admissibility of visual identification evidence (Turnbull Guidelines)
what quality rank may a judge give the evidence?
o Good quality
o Poor but supported
o Poor and unsupported
25
re: admissibility of visual identification evidence (Turnbull Guidelines)
what Turnbull warning is given for good quality evidence?
Judge gives jury Turnbull warning (i.e. warns of dangers of identification evidence and the need for caution as an honest witness can mistake identity; the jury should consider the above factors)
26
re: admissibility of visual identification evidence (Turnbull Guidelines)
what is poor but supported evidence? What Turnbull warning is given?
o W’s initial sighting was poor, but the identification evidence is supported by other evidence (i.e. confession by D, DNA evidence putting them at the scene of the crime, stolen property in D’s possession, adverse inferences)
Judge gives jury Turnbull warning as above plus weaknesses of the identification; dangers of convicting on identification alone and direct the jury to other supporting evidence
27
re: admissibility of visual identification evidence (Turnbull Guidelines)
what happens if the evidence is poor and unsupported?
D will make submission of no case to answer & judge will acquit jury
28
re: admissibility of visual identification evidence (Turnbull Guidelines)
how is the process slightly different in the MC?
The judge will still rank the evidence, but there is no jury in the MC, so if the evidenace is poor and unsupported, D’s solicitor will make a submission of no case to answer. Otherwise (or if unsuccessful), D will give a Turnbull-esque as part of their closing speech
29
re: adverse inferences
generally, what is the consequence of remaining silent?
* D has a right to silence in interview but AI can be drawn from this
30
re: adverse inferences
explain 'proper inferences'
* CJPOA uses the phrase ‘proper‘ inferences, but it means adverse
31
re: adverse inferences
when can P ask the court to draw inferences?
* P must adduce other evidence of D’s guilt to establish a case to answer before P can ask the court to draw AIs
32
re: adverse inferences
when can these not be drawn?
AIs cannot be drawn where D was denied access to legal advice (i.e. if D refuses, AI can still be drawn). This is reflected in the caution.
The judge must explain this to the jury
33
re: adverse inferences
when will D not be convicted?
* D cannot be convicted if the only evidence is s34, s35, s36 or s37 inference
34
re: adverse inferences
can multiple inferences be drawn?
More than 1 inference can be drawn i.e. D does not mention why they were in a place (s37 AI), at trial they give a reason for this in their defence (s34)
35
re: adverse inferences
where inferences can be drawn, what inference is the court likely to draw?
* Where an inference can be drawn, the court is likely to draw an inference that D had no explanation or the explanation would not have stood up to scrutiny
36
re: adverse inferences
when will an application for inferences to be drawn be granted?
An application for AIs to be drawn will only be granted where:
o The court is satisfied there is a case to answer
o There is evidence other than silence on which a finding of guilt can be made
o The only sensible explanation for the silence is that D had no answer or would that would have stood up to cross-examination
37
re: adverse inferences (s34 - silence)
when can inferences be drawn?
AIs can be drawn where D fails to mention a fact they could reasonably have been expected to mention during an interview under caution or whilst being charged which they later rely on in their defence at trial.
The purpose of the interview must have been to establish if an offence had been committed and by whom
38
re: adverse inferences (s34 - silence)
when can the court direct a jury that inferences can be drawn?
* The court can only direct a jury that an AI can be drawn where the court is satisfied that the real reason for silent is because D had no answer to the questions or no answer to stand up to scrutiny
39
re: adverse inferences (s34 - silence)
what happens if D was not silent in a subsequent interview
* If D was silent in the 1st interview but not subsequent interviews, AIs can be drawn from the 1st interview
40
re: adverse inferences (s34 - silence)
when will a written statement mean inferences cannot be drawn?
* If D prepared a written statement before the interview which contains all the facts they are relying on and it was given to the police, AIs cannot be drawn
41
re: adverse inferences (s34 - silence)
when will a written statement have less of an effect? what effect will this have?
* If the statement was not given to the police at the time and is later disclosed the court cannot draw an AI of recent fabrication, but can draw an AI that D was not sufficiently confidence in their defence
42
re: adverse inferences (s34 - silence)
when might the solicitor advise their client to stay silent in interview?
* A solicitor may advise a client to remain silent where: the police have given limited disclosure and so they cannot advise; the case is complex or historic; or personal circumstances of D i.e. ill health or vulnerability
43
re: adverse inferences (s34 - silence)
where D was legally advised to remain silent, what effect might this have?
* If D genuinely and reasonably relied on the legal advice, the trial judge will direct the jury that AIs should not be drawn (i.e. could D reasonably have been expected to mention facts they relied upon in the interview?)
44
re: adverse inferences (s34 - silence)
if D states in evidence that they were advised to remain silent, what impact does this have on privilege?
* If D states in evidence they were advised to remain silent, this will not waive privilege but if D explains the reason for this advice, privilege will be waived
o If privilege is waived, D (or their solicitor) can be cross-examined on any other reason for the advice to remain silent/the instructions
45
re: adverse inferences (s36 - object, mark, substance)
when can inferences be drawn?
* AI can be drawn where D is questioned in an interview under special caution about an object, substance or mark that was on their person, clothing, possession on arrest or near/at the place of the arrest & D fails to account
46
re: adverse inferences (s36 - object, mark, substance)
explain special caution
Special caution means D was told:
o The offence under investigation;
o What fact S is being asked to account for and that it is believed this fact may be due to S taking part in the commission of the offence;
o The court can draw adverse inferences from failure to respond; and
o A record is being made of the interview and it may be given in evidence
47
re: adverse inferences (s36 - object, mark, substance)
what is the effect of a special caution?
* If a special caution was not given, AI cannot be drawn
48
re: adverse inferences (s36 - object, mark, substance)
what effect does this have in relation to the defence?
Unlike s34, this applies irrespective of any defence put forward by D (i.e. s34 only applies if D is trying to rely on a fact they didn’t mention at trial, that is not applicable here. The court can draw an inference regardless)
49
re: adverse inferences (s37 - place)
what effect does this have in relation to the defence?
o This applies irrespective of any defence
50
re: adverse inferences (s37 - place)
when can inferences be drawn?
* AIs can be drawn where D is questioned in an interview under special caution about a place where D was at the time of arrest and D fails to account for it
51
re: adverse inferences (s35 - silence at trial)
what right does D have in relation to silence at trial?
* D has a right to silence at trial and is under no obligation to give evidence, they could simply argue P has failed to prove guilt
52
re: adverse inferences (s35 - silence at trial)
if D exercises their right to silence at trial, what might happen?
* However, if D chooses not to give evidence or answer any question put to them under oath without good reason, the court can draw AIs
53
re: adverse inferences (s35 - silence at trial)
when can the court direct inferences are not drawn if D is silent? Give an example
* The court can direct an AI is not be drawn where it appears D is suffering with a physical or mental condition making it undesirable for them to give evidence
o Strict application
below average IQ = exception not allowed
ADHD / schizophrenia meaning D cannot effectively participate in trial = allowed
54
re: hearsay evidence
what is hearsay? give an example
* statement made out of court relied on to prove the truth of a matter, and the purpose of the statement maker was to cause another to believe/act on the facts stated
o i.e. a diary wouldn’t be hearsay as the maker didn’t intend people to read it
55
re: hearsay evidence
what is a 'statement'?
* any representation made by whatever means inc. pictorial form
56
re: hearsay evidence
give examples of common hearsay in criminal proceedings
o W repeating what they were told by another person;
o Statement from W being read out, rather than W giving oral evidence
o Police officer at trial repeating a confession made by D
o Business document being introduced as evidence
57
re: hearsay evidence
what is 1st hand hearsay?
W is repeated a statement they personally saw/heard
58
re: hearsay evidence
what is multiple hearsay?
information passes through more than one person/source
59
re: hearsay evidence
is hearsay admissible?
* Hearsay is not admissible unless it falls into one of the below categories
60
re: hearsay evidence
what are the categories of admissible hearsay?
1. Statutory Provision
2. Agreement
3. Preserved Common Law Exception
4. Interests of Justice
61
re: hearsay evidence
what hearsay evidence is admissible under statutory provision?
where:
Witness Cannot Attend Court (subject to conditions)
Business (and other) Documents (subject to conditions)
62
re: hearsay evidence (statutory provision)
when will hearsay evidence because W cannot attend court be admissible?
Hearsay evidence will be admissible where W is unable to attend court and…
o The statement would be first-hand hearsay in oral evidence;
o The court has identified the statement maker;
o W cannot give evidence for one of the prescribed reasons
63
re: hearsay evidence (statutory provision)
what are the prescribed reasons when 'W cannot give evidence because...'
Are dead or unfit due to a physical or mental condition;
Are outside the UK & it isn’t reasonably practicable for them to attend;
Cannot be found after having taken reasonably practicable steps; or
Cannot give evidence due to fear & it is in the interests of justice for the court to give leave for the statement in evidence
* The court must have regard to the statement’s contents, any unfairness to the other side and other relevant circumstances when considering leave
64
re: hearsay evidence (statutory provision)
when will hearsay evidence in business / other documents be admissible?
Hearsay evidence is admissible where the statement is in a document and…
o Oral evidence would be admissible;
o The document was created / received by a person in the course of their occupation or as a holder of paid/unpaid office;
o The person who supplied the information in the document had/likely had personal knowledge of the matters dealt with; and
o If the information is multiple hearsay, each person passing the information on received it in the course of their occupation/office
65
re: hearsay evidence (statutory provision)
in relation to documents prepared for pending/contemplated criminal proceedings, what are the other requirements?
give an example
If the document was prepared for pending/contemplated criminal proceedings or investigation, in addition to above, the statement will only be admissible if:
o W is unavailable (for one of the reasons set out above); or
o W could not be expected to remember the matters referred to (i.e. due to time that has elapsed)
i.e. a list of items stolen from a business which is given to the police
66
re: hearsay evidence (agreement)
explain this
* Any hearsay is admissible if its admission is agreed by parties
67
re: hearsay evidence (common law)
when will hearsay evidence be admissible under this?
if it is:
- confession evidence
- Res Gestae
68
re: hearsay evidence (common law)
what is a confession?
* any statement wholly/partly adverse to the person who made it
o i.e. ‘I hit him, but only in self-defence’ partly adverse
69
re: hearsay evidence (common law)
when is confession evidence admissible?
* Hearsay confession evidence is admissible where relevant and to prove the truth of its contents (i.e. D’s guilt)
70
re: hearsay evidence (common law)
what is a mixed statement? what is its admissibility?
* confession which inc. a statement which is favourable to D
o The whole of the mixed statement is admissible i.e. ‘I did have sex with her, but only because she consented’
71
re: hearsay evidence (common law)
what is the admissibility of a co-Ds confession evidence at trial which implicates another D?
* If D and a co-D are on trial together and co-D gives evidence which implicates D (inc. confession), this is admissible hearsay against D but if the co-D makes the confession pre-trial, this is admissible against the co-D only, not D
72
re: hearsay evidence (common law)
when can a co-D's confession be admissible against D?
* If co-D plead G earlier in the proceedings and is now giving evidence for P, any evidence they give implicating D is admissible
73
re: hearsay evidence (common law)
what is res gestae?
give an example
* Hearsay evidence will be admissible if is made as part of the res gestae
* Res gestae is the principle that if a statement is made spontaneously and contemporaneously with an event it is likely to be highly credible
i.e. W hears the victim shout ‘don’t shoot me Sam’ followed by gun shot. This is hearsay, but would be admissible.
74
re: hearsay evidence (common law)
what is the Ackner criteria?
Judges use the Ackner criteria to determine if a statement is made res gestae:
o Did the statement maker have chance to concoct/distort the statement?
o Was the event so dramatic it caused an instinctive response?
o Was it closely associated with the event?
75
re: hearsay evidence (interests of justice)
explain this and its effect?
the court must have regard to a number of factors
This gives the court a wide discretion to admit hearsay evidence.
76
re: hearsay evidence (interest of justice)
what are the things to court must have regard to?
o The probative value to a matter in issue (Probative value = likelihood to evidence a relevant fact)
o Its value for understanding other evidence in the case
o Other evidence that can be given on the issue / evidence
o Importance of the issue / evidence in the context of the case
o The circumstances the statement was made
o Reliability of the statement maker
o Whether oral evidence on the issue can be given and if not, why
o Amount of difficulty in challenging the statement
o The extent to which it would prejudice the party facing it
o D’s right to a fair trial
77
re: hearsay evidence (notice)
when must notice of intention to adduce/challenge hearsay be given?
Part 20 CrimPR sets out the rules to adduce/challenge hearsay evidence, but this only applies to the following categories:
o Witness is unavailable to attend court;
o Evidence is multiple hearsay;
o Statement in a document prepared for criminal investigation/proceedings;
o Preserved common law exceptions;
o Interests of justice;
78
re: hearsay evidence (notice)
what are the requirements?
a party to file & serve a notice of intention to adduce/challenge:
o P > MC 10 & CC 20 business days after D pleads NG
o D > as soon as reasonably practicable
79
re: hearsay evidence (notice)
what can the court do in relation to the requirements?
* Court can dispense with the notice; allow oral notice; amend the time limits
80
re: hearsay evidence (notice)
if admission is contested, what typically happens?
* If contested, court will usually determine the admissibility at a pre-trial hearing
81
re: challenging confession evidence
what might D try to argue in this regard and on what basis?
D will likely try to argue the confession is inadmissible because either they:
o Did make the confession, but it should not be admitted (s76 or s78); or
o Did not make the confession / it is fabricated (s78)
82
re: challenging confession evidence
explain s76(2) PACE
this is specific to confession evidence
The court must not admit confession evidence obtained by oppression or where anything said or done might render the confession unreliable, unless P can prove beyond all reasonable doubt it was not obtained in this way
This is the case even if the court thinks the confession is true
83
re: challenging confession evidence
explain oppression
torture, inhuman, degrading treatment, the use or threat of violence, unjust or cruel treatment of inferiors, the exercise of authority in a wrongful manner (i.e. D bullied by police into making a confession)
84
re: challenging confession evidence
when will confession be unreliable? give examples
confession often be unreliable where Code C breached:
o Denying refreshments or appropriate breaks and so S is not in a fit state to answer and/or wants to leave the station asap to obtain rest or food
o Offering an inducement to confess (i.e. they can leave early)
o Misrepresenting the strength of the prosecution case
o Questioning in an inappropriate way (i.e. repeating questions/badgering)
o Questioning a suspect who is in no fit state to be questioned (inc. if S had been taking drink/drugs or other medical condition)
o Threatening a suspect if they do not confess
o Denied legal advice only unreliable if there is a causal link between breach & confession, i.e. if D had legal advice, would they have confessed? (Difficult to argue is experienced criminal who is aware of rights)
85
re: challenging confession evidence
where there are co-Ds been tried together and 1 makes a confession, what might happens and what effect does s76(2) have?
Where both Ds plead NG and are tried together and 1 makes a confession, the other might adduce this evidence (if it doesn’t implicate them).
If s76(2) applies, the confession must be excluded unless the relying D can prove on the balance of probabilities that it wasn’t obtained in this way
86
what is s78 PACE?
this is the court’s general power to exclude
87
when might D rely on s78?
D might apply for the evidence to be excluded under s78 where they allege there has been a breach.
Common argument D where D is denied legal advice (overlap with s76)
88
when is the court likely to exclude evidence on the grounds of s78?
* The court is likely to only exclude the evidence if there’s been a significant & substantial breach of PACE/COP
89
re: challenging confession evidence
explain this and s78
relevant if an interview takes place ‘outside’ the station and the police have breached PACE, i.e.:
o Failure to take an accurate/contemporaneous record of D’s comments
o Failure to give D the opportunity to view, sign or dispute the record
o Failure to put the confession to D at the start of the interview
90
re: challenging confession evidence
what is the procedure in the CC? explain the impact on the evidence and the judge's decision
voir dire hearing (trial within a trial). If the confession was:
o In interview evidence from interviewer & likely audio recording played
o Outside interview evidence from P & D
In either case, submissions from both and judge takes a decision:
Inadmissible the jury will hear nothing about it
Admissible interviewing officer will give evidence before the jury. D’s counsel can still attack the credibility of the confession
91
re: challenging confession evidence
what is the procedure in the MC?
admissibility usually disputed when interviewer is giving evidence
o S76(2) mags must hold a voir dire.
o S78 only no obligation to hold a voir dire (if there is no voir dire, D will need to make a case of no submission or address it in their closing speech)
o If D raises submissions under s76(2) & s78 both arguments should be dealt with under the same voir dire
92
re: challenging confession evidence
what is the effect if the evidence is excluded?
give an example
If the confession evidence is excluded, P can still rely on facts admitted in the confession but they cannot tell the court where they came from
i.e. police recover murder weapon from confession. Can rely on weapon but not confession
93
re: bad character
what is this?
evidence of or disposition towards misconduct (inc. offences and otherwise reprehensible behaviour) not connected to the charged offence
93
re: bad character
when can evidence be admitted without proving a gateway?
If it is not bad character evidence or it is bad character evidence but (in both cases) relates to the offence, the evidence can be admitted without proving a gateway. In other words, the gateways only need to be evidenced to admit bad character evidence where it doesn’t relate to the charged offence
This applies to D and bad character evidence of those other than D
94
re: bad character
when is bad character evidence admissible?
* Evidence of bad character is admissible if it satisfies 1 of the 7 gateways
95
re: bad character
when will this not prove guilt?
Bad character evidence alone does not prove guilt.
96
re: bad character
what must P do before the court can consider this?
* P must adduce other evidence before the Mags/Jury can take it into account
97
re: bad character
what are the gateways?
a) All parties agree to the evidence being admissible
b) The evidence is adduced by D himself or given in answer to a question asked during cross examination and intended to elicit it
d) It is relevant to an important matter in issue between D and P
e) It has substantial probative value in relation to an important issue between D and a co-D
g) D has made an attack on another person’s character
98
re: bad character
explain 'b) The evidence is adduced by D himself or given in answer to a question asked during cross examination and intended to elicit it'
when might D do this?
Allows D to introduce evidence of own bad character.
D might do this if they have minor pre-cons or if they have previously plead NG but G this time
99
re: bad character
who can rely on 'c) It is important explanatory evidence'
Only P can adduce evidence under this.
100
re: bad character - c) It is important explanatory evidence
when will evidence be 'important explanatory' evidence?
o It would be difficult/impossible to understand the case without it; and
o Evidence’s value for understanding the case as a whole is substantial
* If the case is understandable without the evidence it shouldn’t be admitted
101
re: bad character - d) It is relevant to an important matter in issue between D and P
who can rely on this?
* Only P can adduce evidence under this gateway.
102
re: bad character - d) It is relevant to an important matter in issue between D and P
when will a matter be important?
It will be an important matter if it relates to whether D has a propensity to:
o Commit offences of the kind charged; or
o Be untruthful
103
re: bad character - d) It is relevant to an important matter in issue between D and P
how can P prove D has a propensity to be commit offences?
The evidence must make it more likely D committed the current offence
P can prove this with evidence D has a pre-con of an offence:
o Of the same description (i.e. the same crime); or
o Of the same category, i.e.: SoS has only described 2 categories of offence:
1. Sexual offence category inc. sexual offences against children under 16
2. Theft category inc.: theft; robbery; (+aggravated) burglary; (+aggravated) taking a vehicle without authority; handling stolen goods; going equipped for stealing; making off without payment; an attempt of any of these; aiding, abetting, counselling, procuring or inciting the commission
o If the above isn’t satisfied, case law suggests if the pre-con has a factual similarity it may show propensity (i.e. assault and robbery both used with a knife showed a propensity)
104
re: bad character - d) It is relevant to an important matter in issue between D and P
when can the court refuse evidence put forward by P to show a propensity to be commit offences?
* The court can refuse this evidence if it would be unjust due to the time that has elapsed or any other reason (D can make an application on this basis)
105
re: bad character - d) It is relevant to an important matter in issue between D and P
what might hinder P's argument that D has a propensity to commit crimes?
the fewer number of pre-cons D has, the less likely to show propensity unless there are distinguishing circumstances/unusual behaviour (i.e. child sexual abuse cases)
106
re: bad character - d) It is relevant to an important matter in issue between D and P
when can P not use the propensity to be untruthful ground?
* P cannot use this where it is not suggested D’s case is untruthful
107
re: bad character - d) It is relevant to an important matter in issue between D and P
when will pre-cons to show a propensity to be untruthful be admissible?
Pre-cons to show a propensity to be untruthful are only admissible if:
o The manner the pre-con was committed shows such a propensity; or
o D pleaded NG to the earlier offence but was convicted
108
re: bad character - d) It is relevant to an important matter in issue between D and P - propensity to be untruthful
explain 'The manner the pre-con was committed shows such a propensity'
Must show a propensity to be untruthful (not dishonest) i.e. perjury, false representations. Where dishonesty is part of the mens rea (i.e. theft), this is unlikely to suffice unless they actively mislead/lied to another
The current crime need not be an untruthful one, but the pre-con must be
109
re: bad character - d) It is relevant to an important matter in issue between D and P - propensity to be untruthful
explain the scope of 'D pleaded NG to the earlier offence but was convicted'
this captures offences of any type
110
re: bad character - e) It has substantial probative value in relation to an important issue between D and a co-D
when is this used?
Used by 1 D to admit evidence of co-D’s bad character.
Cannot be used by P.
111
re: bad character - e) It has substantial probative value in relation to an important issue between D and a co-D
when will it be an important issue?
* It will be an important matter if it relates to whether D has a propensity to be untruthful and both Ds plea NG and are blaming each other
112
re: bad character - f) It is evidence to correct a false impression given by D
who can use this?
* Can only be used on by P.
113
re: bad character - f) It is evidence to correct a false impression given by D
what is a false impression?
D will give a false impression if they make an express or implied which gives a false/misleading impression about D
113
re: bad character - f) It is evidence to correct a false impression given by D
how may the false impression be made?
The assertation may be made by:
o D in the proceedings (i.e. witness box, defence statement) or when being questioned under caution
o D’s W or any W in cross-examination in response to a question asked by D that intended to elicit this response; or
o Any person out of court and D adduces evidence of this
114
re: bad character - g) D has made an attack on another person’s character
who can rely on this?
* Only P can rely on this.
115
re: bad character - g) D has made an attack on another person’s character
who can the attack be made on and when can it be made?
* The attack can be on anyone (i.e. doesn’t need to be on P W) nor need it take place at trial (i.e. interview under caution or in a defence statement)
116
re: bad character - g) D has made an attack on another person’s character
what must the attack relate to? Give examples
The attack must relate to the commission of an offence or that they behave(d) in a reprehensible way.
Examples:
o D calling V a ‘slag’ = YES
o D saying V fabricated story = NO
o D saying police ‘conspired to set D up’ = YES
o D saying account of officers untrue = NO
117
re: bad character
what is the position as to admissibility of A, B, C, E & F?
evidence is automatically admissible if the requirements are met. No power under CJA 2003 to exclude the evidence (but could under s78)
118
re: bad character
under which grounds if evidence automatically admissible if satisfied?
* A, B, C, E & F
119
re: bad character
what is the position as to admissibility of D & G?
court has power under s101(3) CJA 2003 to exclude the evidence, but it must exclude evidence if admission would have such an adverse effect on the proceedings the court ought not to admit it.
The court must have regard to the length time that has elapsed since the evidence.
120
re: bad character
when is the court likely to use its s101(3) powers to exclude evidence under D & G?
Nature of the pre-cons means a jury is likely to convict on these alone, rather than the evidence placed before them or where pre-cons are prejudicial rather than probative;
P has adduced pre-cons to support an otherwise weak case
Pre-cons are ‘spent’ (i.e. after a prescribed period of time the person is treated as not having committed the offence)
121
re: bad character
what are the offences and timescales for 'spent' convictions
* Absolute / conditional discharge none
* Fine / community order 1 year
* Custodial sentence up to 6 months 2 years
* Custodial sentence between 6 – 30 months 4 years
* Custodial sentence between 30 months – 4 years 7 years
* Custodial sentence over 4 years never spent
122
re: bad character
what can the court use to exclude evidence? what does this not apply to?
The court retains discretion to exclude P evidence under s78
NB: court cannot exclude under s78 re: E because that is not P evidence
123
re: bad character
what is the procedure to admit bad character evidence?
Parties must file & serve a notice of intention to adduce character evidence:
o P MC 10 & CC 20 business days after D pleads NG
o co-D as soon as reasonably practicable but not more than 10 business days after P discloses material on which the notice is based
o D as soon as reasonably practicable
Pre-cons they seek to rely upon must be attached to the notice form
If D contests introduction of the evidence, they must file and serve an application within 10 business days of service of the notice
124
re: bad character
what are the timescales for serving a notice to adduce this evidence?
o P MC 10 & CC 20 business days after D pleads NG
o co-D as soon as reasonably practicable but not more than 10 business days after P discloses material on which the notice is based
o D as soon as reasonably practicable
125
re: bad character
explain contamination cases
Only applicable to CC
Judge can direct a jury to acquit a D or order a re-trial where evidence of D’s bad character is contaminated (e.g. if Ws had colluded to fabricate evidence of D’s bad character)
126
re: bad character
when can bad character evidence of anyone other than D be admissible? who might this apply to?
i.e. complainant, W or even someone who is not a W
Grounds:
1.It is important explanatory evidence
2. It has substantial probative value to a matter in issue and is of substantial importance in the context of the case as a whole
3. All parties agree to the evidence being admissible
127
re: bad character - of someone who is not D
what 'is important explanatory evidence'
* The evidence will be important explanatory evidence if, without it, the court / jury would find it impossible/difficult to understand other evidence and its value for understanding the case a whole is substantial
128
re: bad character - of someone who is not D - substantive probative value
what must the court have regard to when assessing the probative value?
When assessing the probative value, the court must have regard to:
o The nature and number of events to which the evidence relates; and
o The time at which such events are alleged to have occurred
129
re: bad character - of someone who is not D - substantive probative value
what is a 'matter in issue'?
A ‘matter in issue’, will often be where D allege another is:
o Lying / has fabricated evidence;
o Guilty of committing the current offence;
o Engaged in misconduct connected to the offence
130
re: bad character - of someone who is not D - substantive probative value
explain 'lying/fabricated evidence'
The evidence need not show a propensity to be untruthful (unlike s101(d)), it just needs to be persuasive as to the issue of creditworthiness
131
re: bad character - of someone who is not D - substantive probative value
explain 'guilty of committing the current offence'
i.e. D is charged but claims they were acting in self-defence and they were actually attacked by V
The court must also have regard to the extent the evidence shows the same person was responsible each time
132
re: bad character - of someone who is not D - substantive probative value
explain 'engaged in misconduct connected to the offence'
The court must also have regard to the nature and extent of the similarities and dissimilarities between each alleged misconduct
Pre-cons to commit a particular type of offence can be relied on if there are sufficient factual similarities between the earlier and current offence
133
re: bad character - of someone who is not D - substantive probative value
when is this commonly used?
* Commonly used by D regarding P’s witness, but can be used against anyone
134
re: bad character - of someone who is not D
when does a party require leave of the court?
1.It is important explanatory evidence
2. It has substantial probative value to a matter in issue and is of substantial importance in the context of the case as a whole
135
if D tries to argue the evidence should be excluded under s78, when is the court unlikely to exclude this? give an example
Applications made by D under s78 that rely on a breach of PACE/COP will only be granted if the breach(es) is significant and substantial
In effect, the police may have breached PACE, but if this breach doesn’t impact the reliability of the evidence it is unlikely to be excluded
Example drugs found in unlawful search and D assaulted. Breach unlikely to be significant and substantial. The unlawful actions of the police didn’t bring the evidence into existence, the drugs were already there
136
is there a defence of entrapment?
no
137
re: evidence obtained by entrapment/abuse of process
how can this evidence be challenged?
* Evidence obtained in this way could be challenged under s78 but it would be better to ask the court to exercise its common law power to stop the case on the basis it would be an abuse of process to allow P to continue
138
re: evidence obtained by entrapment/abuse of process
how is it determined if there has been an abuse of process?
Case law guidelines for determining if there has been an abuse of process:
o Nature of investigation more intrusive = greater scrutiny
o Nature of offence some offences can only be committed covertly and therefore investigated covertly (i.e. drug trafficking)
o Nature of police involvement behaviour of police, their persistence
o D’s criminal record only really relevant if similar pre-cons
o Level and extent of supervision of undercover officers
