3.2 Excluding evidence 2 Flashcards
What are the six principal ways to exclude evidence or bring a prosecution to an end?
- Applications for dismissal
- Submissions of no case to answer
- Applications to exclude evidence
- Applications to exclude confessions
- Applications to exclude evidence under the preserved common law provisions
- Abuse of process applications
Under which statutory provision do you make an application to exclude evidence in general?
Section 78 PACE
Under which statutory provision do you make an application to exclude confessions?
Section 76 PACE
Which statutory provision preserves the common law exclusions?
Section 82(3) PACE
What is an application for dismissal?
A pre-trial application to have the charges dismissed.
When can an application for dismissal be made?
Schedule 3(2)(1) Crime and Disorder Act 1998
Only after:
1. The Magistrates Court has sent D to the Crown Court,
2. D has been served with evidence, and
3. before D is arraigned
Procedure is set out in CrimPR 9.16
Under what circumstances can the judge dismiss one or more of the charges?
Schedule 3(2)(2) Crime and Disorder Act 1998 if it appears to [the judge] that the evidence against the applicant would not be sufficient for him to be properly convicted.
This is the same test as that for submissions of no case to answer - Galbraith [1981]
How is an application for dismissal made?
Schedule 3(2)(1) Crime and Disorder Act 1998 orally or in writing to the Crown Court
What is the test for the judge to find that there is no case to answer?
R v Galbraith [1981] 73 Cr App R 124, CA
- there is no evidence that D committed the offence, or
- where the prosecution evidence, taken at its highest, could lead a jury to properly convict
R (IRC) v Crown Court at Kingston [2001] EWHC Admin 581
A judge considering an application to dismiss must
-
1. take into account the whole of the evidence and
2. not view matters in isolation from their context or other evidence;
3. where the prosecution seeks inferences to be drawn from the evidence the judge should assess whether such inferences could properly be drawn by the jury.
R (Snelgrove) v Woolwich Crown Court [2005] 1 Cr App R 18
Judicial review cannot be used to challenge a decision by the Crown Court on an application to dismiss.
Nevertheless, IRC v Kingston Crown Court remains valid.
What is a submission of no case to answer?
A submission during the trial that the judge should stop the case.
When is a submission of no case to answer made?
A submission of no case to answer (a “half-time submission”) is made at the close of the prosecution case because it is only at this stage that the entirety of the prosecution case against a defendant can be considered.
Why is a submission of no case to answer sometimes known as a “half-time submission”?
Because it is made just after the prosecution completes its submissions but before the defence begins to set out its case.
What happens when a submission of no case to answer is made in the Crown Court?
It is made in the absence of the jury.
If the submission is successful the jury is brought back in and informed and the foreman instructed to enter a verdict of not guilty.
Can the Crown Court judge rule that there is no case to answer because a witness has given weak or contradictory evidence?
In general, issues of credibility are for the tribunal of fact so they are dealt with by magistrates and juries, not Crown Court judges.
Which provision contains the Magistrates Court’s power to hold that there is no case to answer?
CrimPR r.24.3(3)(d)
Which provision contains the Crown Court’s power to hold that there is no case to answer?
CrimPR r.25.9(2)(e)
What is the procedure for determining that there is no case to answer?
Magistrates Court - CrimPR r.24.3(3)(d)
Crown Court - CrimPR r.25.9(2)(e)
At the conclusion of the prosecution case, on the defendant’s application or on its own initiative, the court—
(i) may acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict, but
(ii) must not do so unless the prosecutor has had an opportunity to make representations
Who can use Section 78 PACE to exclude evidence?
Section 78 only applies to ‘evidence on which the prosecution proposes to rely’ so it cannot be used by the prosecution or a co-defendant to exclude evidence that a defendant seeks to admit.
When can a prosecution be brought to an end because of abuse of process?
R v Crawley [2014] EWCA Crim 1028
- To ensure fair trial process: where D can no longer have a fair trial, or
- To uphold the integrity of the criminal justice system: where D should not be standing trial at all whether the trial is fair or not (Crown Court only).
Only as a last resort.
What is the role of the public interest in deciding whether to stay a criminal trial?
Attorney General’s Reference (No.2 of 2001)
Charges should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances.
R v Maxwell [2011] 2 Cr App R 31 (SC)
- Where trials are stayed because of the need for fair processes, no competing interests are to be weighed
- Where the court is protecting the integrity of the justice system, the court is concerned with whether the trial would
(a) offend the court’s sense of justice or propriety, or
(b) undermine public confidence in the criminal justice system and bring it into disrepute
Give five examples of where allowing a trial would be an abuse of process because it could bring the reputation of the criminal justice system into disrepute?
- where a defendant has been tricked or coerced into committing an offence
- where a defendant is prosecuted despite an unequivocal promise by the prosecution not to
- where the police have acted in such a way as to undermine public confidence in the criminal justice system and bring it into disrepute, eg, deliberately destroying evidence that would assist the defence
- where the prosecution has manipulated or misused the process of the court so as to deprive a defendant of a protection afforded by law.
- sometimes delay, eg, the prosecution has delayed for tactical advantage or inordinate or unconscionable delay