Unit 4 Principles and Procedures to Admit and Exclude Evidence

Question 1

Hearsay

Answer 1

= a statement, not made in oral evidence, that is relied on as evidence of a matter in it.

First hand – someone overhears someone else and gives evidence of what was said.

Multiple - Maryam is a bank clerk. She receives a cash deposit of £5,000 from a customer and places this in the bank’s safe. She tells Brian, the senior cashier, who in turn tells Emir, the manager. Emir makes a record of the deposit in a ledger. An armed robbery subsequently takes place and the £5,000 is stolen. At the robber’s trial, the CPS seeks to use the entry in the ledger to show how much money was in the safe. The entry in the ledger will be multiple hearsay. The details of the amount of money placed in the safe have passed from Maryam to Brian, then from Brian to Emir and then from Emir into the ledger itself.

Question 2

Hearsay - grounds for admitting

Answer 2

Admissible if:
(a) any statutory provision makes it admissible
(b) any rule of law preserved by section 118 makes it admissible,
(c) all parties to the proceedings agree to it being admissible, or
(d) the court is satisfied that it is in the interests of justice for it to be admissible.

Question 3

Hearsay - grounds for admitting - statutory provision

Answer 3

(a) cases where a witness is unavailable – CJA 2003, s 116;
(b) business and other documents – CJA 2003, s 117;
(c) previous inconsistent statements of a witness – CJA 2003, s 119;
(d) previous consistent statements by a witness – CJA 2003, s 120;
(e) statements from a witness which are not in dispute – CJA 1967, s 9; and
(f) formal admissions – CJA 1967, s 10.

Question 4

Hearsay - grounds for admitting - statutory provision - cases where a witness is unavailable s 116

Answer 4

(a) the statement must be ‘first- hand hearsay’
(b) the person who made the statement is identified to the court’s satisfaction, and
(c) any of 5 conditions met.

5 conditions:
(a) the relevant person is dead;
(b) the relevant person is unfit to be a witness because of his bodily or mental condition;
(c) the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;
(d) the relevant person cannot be found, although such steps as it is reasonably practicable to take to find him have been taken;
(e) through fear the relevant person does not give oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.

Court can only allow if statement ought to be admitted in the interests of justice having regard to the contents, to any risk of unfairness (in particular how difficult it would be to challenge the statement) and the fact that (in appropriate cases) a special measures direction could be made.

Question 5

Hearsay - grounds for admitting - statutory provision - Business and other documents s117

Answer 5

Statement contained in a document is admissible if:
(a) oral evidence given in the proceedings would be evidence of that matter,
(b) the requirements of subsection (2) are satisfied, and
(c) the requirements of subsection (5) are satisfied, in a case where subsection (4) requires them to be.

s2:
(a) the document (or the part of it containing the statement) must have been created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office;
(b) the person who supplied the information contained in the statement (the relevant person) had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with; and
(c) each person (if any) through whom the information was supplied from the relevant person to the person mentioned in paragraph (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office.

‘First- hand’ and ‘multiple’ hearsay.

s5 requirements have to met if statement was prepared for ‘the purposes of pending or contemplated criminal proceedings, or for a criminal investigation’:
(a) any of the five conditions mentioned in s(2) is satisfied 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).

Question 6

Hearsay - grounds for admitting - s118 common law exception

Answer 6

(a) evidence of a confession or mixed statement made by the defendant.
Can be admitted as hearsay.

(b) evidence admitted as part of the res gestae.
= a statement made contemporaneously with an event will be admissible as an exception to the hearsay rule because the spontaneity of the statement meant that any possibility of concoction can be disregarded.

Question 7

Hearsay - grounds for admitting - interests of justice

Answer 7

Wide discretion.

Factors:
(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
(b) what other evidence has been, or can be, given on the matter;
(c) how important the matter is in the context of the case as a whole;
(d) the circumstances in which the statement was made;
(e) how reliable the maker of the statement appears to be;
(f) how reliable the evidence of the making of the statement appears to be;
(g) whether oral evidence of the matter stated can be given and, if not, why not;
(h) the amount of difficulty involved in challenging the statement; and
(i) the extent to which that difficulty would be likely to prejudice the party facing it.

Question 8

Hearsay - procedure for admitting

Answer 8

Part 20.

Only apply to cases where:
(a) it is in the interests of justice for the hearsay evidence to be admissible
(b) the witness is unavailable to attend court
(c) the evidence is multiple hearsay OR
(d) either the prosecution or the defence rely on s 117 for the admission of a written witness statement prepared for use in criminal proceedings

Must apply to adduce or oppose and give notice of intention to all parties and court (court can dispense this requirement).
Notice on prescribed form.
Are time limits (court can dispense these).

Question 9

Confession evidence

Answer 9

= any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.

Admissible even if hearsay.

Mixed statement - whole statement will be admissible.

Any evidence given by a co- defendant at trial which implicates a defendant (including a confession made by the co- defendant) will be admissible in evidence against the defendant.

A pre- trial confession made by one defendant which also implicates another defendant is admissible only against the defendant who makes the confession.

Question 10

Confession evidence - Challenging admissibility by s 76 PACE 1984

Answer 10

Argue
(a) that they did not make the confession at all, and that the person to whom the confession was made was either mistaken as to what they heard or has fabricated evidence of the confession; or
(b) that they did make the confession, but it should still not be admitted in evidence (due to s76)

s76(2):
a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession (prosecution proves to the court beyond reasonable doubt)

Oppression = torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).

Question 11

Confession evidence - Challenging admissibility by s 76 PACE 1984 - Unreliability

Answer 11

More common basis.

Does not require deliberate misconduct on the part of the police, the thing which is said or done will usually involve a breach of Code C.

E.g.
denying breaks, offering inducement to congress, misrepresenting strength of prosecution case, questioning inappropriately e.g. badgering, not in fit state, threats.

Must be causal link.

Question 12

Confession evidence - Challenging admissibility by s 76 PACE 1984 - Can a co- defendant rely on a confession made by another defendant?

Answer 12

Yes if co- defendant has made a confession where both defendants plead not guilty and are tried jointly.

If co-defendant argues obtained by oppression/unreliable - excluded.

Question 13

Confession evidence - Challenging admissibility by s 78 PACE 1984

Answer 13

More general discretion.

If the court considers that the admission of the confession would have such an adverse effect on the fairness of proceedings that it ought not to be admitted.

• Confessions the defendant accepts having made

Breaches of PACE/Codes are both significant and substantial.
E.g. denied access to legal advice.

• Confessions the defendant denies having made

Likely to be excluded under s 78 if the police breached the provisions of Code C of PACE 1984 by:
(a) failing to make an accurate record of the defendant’s comments
(b) failing to give the defendant an opportunity to view the record of his comments and to sign this record as being accurate, or to dispute the accuracy of the record OR
(c) failing to put this admission or confession to the defendant at the start of his subsequent interview at the police station

Question 14

Confession evidence - Challenging admissibility - procedure

Answer 14

• Crown Court

Determined by the trial judge in the absence of the jury at a voir dire (a trial within a trial).

If the confession was made by the defendant in an interview at the police station, the interviewing officer will give evidence. The audio recording of the interview is also likely to be played.

If the confession was made ‘outside’ the police station, the officer to whom the confession was allegedly made will give evidence, as will the defendant.

Prosecuting and defence counsel will then make submissions to the judge.The judge will then make their ruling.

If the judge rules the confession to be inadmissible, the jury will hear nothing about the confession. If the judge rules the confession to be admissible, the interviewing officer will then give evidence of the confession when giving evidence to the jury. The defendant will still be able to attack the credibility of the confession.

• Magistrates’ court

Ruling will normally be sought when the interviewing officer gives evidence.

If the defendant seeks to exclude evidence of the confession under s 76(2) of PACE 1984, the magistrates must also hold a voir dire.

If the defendant raises submissions under s 76(2) and s 78, both arguments should be dealt with at the same voir dire.

s 78 - may be left either to the close of the prosecution case (if the defendant’s solicitor wishes to make a submission of no case to answer), or to the end of the trial when the defendant’s solicitor makes their closing speech.

• Evidence obtained as a result of an inadmissible confession

No effect.
Although the CPS will not be able to tell the court that such facts were discovered as a result of a confession made by the defendant.

Question 15

Bad character evidence

Answer 15

= evidence of, or a disposition towards, misconduct, other than evidence connected with the offence for which the defendant has been charged.

Misconduct = the commission of an offence or other reprehensible behaviour.

7 gateways:
(a) all parties to the proceedings agree to the evidence being admissible,
(b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross- examination and intended to elicit it,
(c) it is important explanatory evidence,
(d) it is relevant to an important matter in issue between the defendant and the prosecution,
(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co- defendant,
(f) it is evidence to correct a false impression given by the defendant, or
(g) the defendant has made an attack on another person’s character.

D and g power under cja 2003 f, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Rest s78 pace.

Question 16

Bad character evidence - Gateway (b) – the evidence is adduced by the defendant himself

Answer 16

A D may introduce evidence of their own bad evidence.

If they only have very minor previous convictions and do not want the jury or magistrates to think that, because they are not adducing evidence of their own good character, they may have extensive previous convictions.

Or if they pleaded guilty on previous occasions but are pleading not guilty to the current matter. The defendant may use such convictions to say to the jury that they accept their guilt when they have committed an offence, but on this occasion they are pleading not guilty because they genuinely have not committed the offence charged.

R v Paton [2007] - D was charged with kidnapping etc, had kidnapping items in car. D raised evidence of his own bad character by claiming that these items had come from a burglary he had committed on an earlier occasion, and that he was not guilty of the more serious offences charged.

Question 17

Bad character evidence - Gateway (c) – it is important explanatory evidence

Answer 17

Only prosecution can use this.

Evidence is important explanatory evidence if:
(a) without it, the magistrates or jury would find it impossible or difficult properly to understand the case; and
(b) the value of the evidence for understanding the case as a whole is substantial (CJA 2003, s 102) (‘substantial’ in this context is likely to mean more than merely trivial or marginal).

If gateway satisfied - court has no power under the CJA 2003 to prevent the admission of this evidence.
Can use discretionary power to exclude such evidence under s 78 of PACE 1984.

Question 18

Bad character evidence - Gateway (d) – it is relevant to an important matter in issue

Answer 18

Relied on by prosecution.

(a) Propensity to commit an offence of the kind charged
(b) Propensity to be untruthful

Question 19

Bad character evidence - Gateway (d) – it is relevant to an important matter in issue -Propensity to commit an offence of the kind charged

Answer 19

(a) an offence of the same description as the one with which he is charged

OR

(b) an offence of the same category as the one with which he is charged.

• the sexual offences category, which specifies a number of sexual offences committed against children under 16 years of age; and
• the theft category, which includes the following offences: theft, robbery burglary, aggravated, handling stolen goods aiding abetting etc.

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

Question 20

Bad character evidence - Gateway (d) – it is relevant to an important matter in issue -Propensity to be untruthful

Answer 20

Ds previous convictions admissible if:
a) the manner in which the previous offence was committed demonstrates that the defendant has such a propensity (because they had made false representations); or
(b) the defendant pleaded not guilty to the earlier offence but was convicted following a trial at which the defendant testified and was not believed.

Distinction between a propensity to be dishonest and a propensity to be untruthful. Only where actively sought to deceive or mislead e.g. perjury, fraud by false representation.

Question 21

Bad character evidence - Gateway (d) – it is relevant to an important matter in issue -excluding evidence

Answer 21

Court must not admit this evidence if it appears that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

E.g.
a) when the nature of a defendant’s previous convictions is such that the jury are likely to convict a defendant on the basis of these convictions alone, or where the evidence of the previous convictions is more prejudicial than probative.
(b) when the CPS seeks to adduce previous convictions to support a case which is otherwise weak
(c) when the defendant’s previous convictions are ‘spent’ = the convicted person is to be treated as never having been convicted of the spent offence.
Fine/community order = 1 year.
Custodial sentence up to 6 months = 2 years
6-30 months = 4 years
30 months - 4 years = 7 years
Custodial sentence over 4 years = never spent.

Court must have regard to the length of time between.

Question 22

Bad character evidence - Gateway (e) – it has substantial probative value for matter in dispute between D and co D

Answer 22

May be used by one defendant to admit evidence of another defendant’s bad character.

Propensity to commit offences of the same kind and therefore the more likely of the two to have committed the current offence.

Propensity to be untruthful - relevant where the defendants enter into a ‘cut-throat’ defence = when there are two (or more) defendants jointly charged with an offence, and each defendant pleads not guilty and blames the other(s) as having committed the offence.

If co-defendant establishes test for admitting evidence under this gateway, the court has no power under CJA 2003 to prevent admission of the evidence.

Question 23

Bad character evidence - Gateway (f) – it is evidence to correct a false impression given by the defendant

Answer 23

Only prosecution can use.

Defendant will give a false impression ‘if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant.’

If the assertion is:
(a) made by the defendant in the proceedings
(b) made by the defendant when being questioned under caution by the police before charge, or on being charged;
(c) made by a witness called by the defendant;
(d) made by any witness in cross- examination in response to a question asked by the defendant that is intended to elicit it; or
(e) made by any person out of court, and the defendant adduces evidence of it in the proceedings

Court has no power under the CJA 2003 to prevent the admission.
Does retain discretionary power to exclude such evidence under s 78 of PACE 1984.

Question 24

Bad character evidence - Gateway (g) – the defendant has made an attack on another person’s character

Answer 24

Attack does not necessarily need to be on the character of a witness for the prosecution who is attending court to give evidence.
Can be on dead person or someone who CPS do not intend to call.

Attack does not have to take place at trial. May be when questioned in police station or on defence statement severed on CPS.

Only prosecution can use.

Attack is evidence to the effect the other person has:
(a) committed an offence (whether a different offence from the one with which the defendant is charged or the same one); or
(b) behaved, or is disposed to behave, in a reprehensible way.

Court must exclude evidence if 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.

Question 25

Bad character evidence - Court’s powers to exclude defendant’s bad character

Answer 25

No power under the provisions of the CJA 2003 to exclude bad character evidence admitted under any gateway other than (d) and (g).

Gateways (a), (b), (c), (e) and (f) is automatically admissible if the requirements for each of these gateways are satisfied.

Court retains discretionary power under s 78 of PACE 1984 to exclude evidence on which the prosecution propose to rely if the admission of the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted.

S107 of the CJA 2003 allows a judge in the Crown Court either to direct the jury to acquit the defendant, or to order a retrial in circumstances where evidence of the defendant’s bad character is ‘contaminated’. Contamination may occur if witnesses have colluded in order to fabricate evidence of the defendant’s bad character.

Question 26

Bad character evidence - Procedure for admitting evidence of bad character

Answer 26

Notice of intention must be given both to the court and to the other parties in the case

A prescribed form must be used, with a written record of the previous convictions the party giving the notice or making the application is seeking to adduce being attached to the form.

As part of the standard directions that will be given in both the magistrates’ court and the Crown Court, the court will impose time limits for the parties to serve any notice or make any application to adduce bad character evidence at trial.

If a defendant opposes the introduction of evidence of their bad character at trial, the defendant must apply to the court for such evidence to be excluded. The application must be sent both to the court and to the other parties in the case.
Is a time limit.

Question 27

Bad character evidence - of persons other than the defendant

Answer 27

Admissible only on very limited grounds.

(a) it is important explanatory evidence,
(b) it has substantial probative value in relation to a matter which—
(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in the context of the case as a whole, or
(c) all parties agree to the evidence being admissible.

Can be used by both but commonly the defence.

Question 28

Bad character evidence - of persons other than the defendant - s100(1)(a) – it is important explanatory evidence

Answer 28

Only if:
(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case; and
(b) its value for understanding the case as a whole is substantial (s 100(2)).

Question 29

Bad character evidence - of persons other than the defendant - s100(1)(b) – it has substantial probative value in relation to an important matter in issue in the proceedings

Answer 29

Leave of the court is needed.

Likely to arise when the defendant seeks to adduce evidence of the previous convictions of a witness for the prosecution in order to support an allegation that either:
(a) the witness is lying or has fabricated evidence against the defendant; or
(b) the witness themselves is either guilty of the offence with which the defendant has been charged or has engaged in misconduct in connection with the alleged offence.

• Credibility as a witness
  Convictions were made false statement or representation.
  Convicted after pleading not guilty.
• Misconduct in connection with the current offence or guilty of that offence
  If claiming self defence or that they are guilty of offence.

Similarities between past misconduct and current offence alleged misconduct.

Can use against someone who is not giving evidence in case.