4 - Evidence Flashcards

Question

What do Section 78 PACE applications deal with?

Answer 1

- Section 78 PACE applications deal with the exclusion of prosecution evidence in criminal cases. - The court can refuse to admit evidence if its admission would have an adverse effect on the fairness of the proceedings. - The exclusion is based on the fairness principle, ensuring that evidence is not admitted if it would lead to unfairness, even if the evidence was obtained improperly or unlawfully. - This often includes evidence obtained in breach of the European Convention on Human Rights, PACE, or its Codes of Practice. **Key Example**: Excluding confession evidence obtained unfairly, possibly in conjunction with s.76 PACE.

Answer 2

The main ways to exclude evidence or halt a prosecution include: - Applications for dismissal - Submissions of no case to answer - Applications under s.78 PACE to exclude unfair evidence - Applications under s.76 PACE to exclude confessions - Common law applications under s.82(3) PACE to exclude evidence - Abuse of process applications **Key Example**: An abuse of process application might be made where continuing the case would be unjust or unlawful.

Answer 3

Section 78 focuses on ensuring fairness in the admission of prosecution evidence. Courts may exclude evidence if its admission would adversely affect the fairness of the proceedings. It applies only to prosecution evidence and is often invoked when evidence has been obtained unlawfully or unfairly. Key Case Example: R v Quinn [1990] where Lord Lane CJ emphasised that unfairness occurs when one side cannot properly challenge the evidence.

Answer 4

The court must assess whether admitting the evidence would have such an adverse effect on the fairness of proceedings that it should be excluded. It does not aim to punish the prosecution or police for their conduct but is focused purely on fairness. **Key Example**: If the police acted in bad faith, this may lead to the exclusion of evidence due to unfairness.

Answer 5

The PACE Codes of Practice outline the procedures the police must follow. Breaches of these codes often form the basis for applications under s.78 PACE to exclude evidence. The Codes cover areas like stop and search, arrest, detention, and interviewing suspects. **Key Example**: If evidence is obtained in breach of Code C (e.g., failure to caution a suspect), it may lead to exclusion under s.78.

Answer 6

The 8 PACE Codes of Practice are: Code A – Stop and Search Code B – Entry, Search, and Seizure Code C – Detention, Treatment, and Questioning of Non-Terrorist Suspects Code D – Identification Code E – Audio Recordings of Interviews Code F – Visual Recording of Interviews with Sound Code G – Arrest Code H – Detention, Treatment, and Questioning of Terrorism Suspects **Key Example**: Breaches of Code C, concerning treatment during detention, often feature in s.78 applications.

Answer 7

Code C governs the detention, treatment, and questioning of non-terrorist suspects by police officers. Key provisions include: - Right to consult a solicitor - Right to have someone informed of the arrest - Requirement to caution before questioning - Juveniles and vulnerable persons must have an appropriate adult present during interviews. **Example**: Failure to provide a caution or the absence of an appropriate adult can result in a s.78 application to exclude evidence.

Answer 8

If a defendant admits to shoplifting without being cautioned before questioning, this is a breach of Code C. Paragraphs 10.1 and 11.1 require a caution and that the interview should take place at a police station. **Example**: The defence could argue for exclusion of the confession under s.78 on the basis that these breaches denied the defendant critical safeguards.

Answer 9

Section 78 has been used to exclude evidence in cases such as: - Denial of the right to legal advice - Non-voluntary waiver of legal advice - Failure to caution before questioning - Failure to provide an appropriate adult for vulnerable suspects - Breaches of identification procedures **Example**: Failure to provide legal advice can lead to exclusion of evidence due to the adverse effect on fairness.

Answer 10

- Breaches that are considered significant and substantial can lead to exclusion of evidence under s.78. - The seriousness of the breach itself is less important than the adverse effect on the fairness of the proceedings. Key Case Example: R v Keenan stressed that only significant and substantial breaches justify exclusion of evidence.

Answer 11

Significant and substantial breaches of PACE Codes can result in exclusion under s.78 if the court finds the admission of evidence would cause unfairness. Key Example: R v Roberts suggested the trial judge has discretion in determining the fairness of proceedings and whether evidence should be excluded.

Answer 12

Section 78 applications can be made: - Before the trial - At the start of the trial - Before the prosecution introduces the evidence in question **Key Point**: If the application would fatally weaken the prosecution's case, it is often heard pre-trial, especially in the Crown Court.

Answer 13

Where a point of law is clear from the case papers or arises following initial disclosure, the defence should include it in the Defence Statement. The Defence Statement should also reference any legal authorities relied upon (as per s.6A(1)(d) of the Criminal Procedure and Investigations Act (CPIA) 1996). In practice, the defence representative will often draft a skeleton argument to support D's application. The prosecution will typically respond with a skeleton argument opposing the application. In the Crown Court, the judge will issue directions regarding when the s.78 application will be heard, usually at the Plea and Trial Preparation Hearings (PTPH). Similar directions are given in the magistrates' court during case management.

Answer 14

- A voir dire is a mini-trial to resolve factual disputes related to a s.78 application. - It is held when there is disagreement over the facts between the defence and prosecution, often relating to police conduct. **Example**: If the police deny breaching PACE, a voir dire is used to establish the facts before ruling on the legal argument. The burden and standard of proof in criminal cases apply, meaning the judge must be satisfied of the prosecution's version of the facts beyond a reasonable doubt to find in their favour. The judge will then decide how the law applies based on the factual determination. If the judge concludes that the police acted appropriately, the legal argument will fail. If the judge concludes that the police significantly and substantially breached the code, resulting in unfairness to the defendant, the evidence in question is likely to be excluded.

Answer 15

In the Crown Court, a voir dire takes place in the absence of the jury because it is a legal argument. Witnesses testify in the voir dire under a special form of oath/affirmation stating, "that I will true answer make to all such questions as the court shall demand of me." The evidence presented by both the prosecution and defence will relate only to the matters in dispute. In the magistrates' court, since the magistrates act as both the tribunal of fact and law, they can either rule on the s.78 application immediately when it arises or hear all the evidence (including disputed evidence) before making a ruling on admissibility. It is crucial that, in the interests of justice, a ruling on admissibility is made early enough to allow the defendant to know whether the disputed evidence forms part of the case. This is particularly significant where the disputed evidence is a confession, which forms the main evidence against the defendant, as it affects cross-examination, D's evidence, and potential submissions of no case to answer. When the application involves both s.76 and s.78 PACE, a voir dire is held as a preliminary issue, especially when the disputed evidence is a confession.

Answer 16

The key test for the court in deciding whether to exclude prosecution evidence under s.78 is whether 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**. - Although NOTE, simply because evidence has been irregularly obtained in breach of PACE or the codes of practice, do not render it inadmissable per se. 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, nor can it be used after evidence is adduced. This could include situations in which evidence was obtained in breach of the European Convention on Human Rights or the provisions of PACE (or the Codes of Practice issued under PACE). The codes are admissible in evidence. Simply because evidence has been irregularly obtained does not per se render it inadmissible. Directions will be given by the judge as to when a s.78 application will be heard. A s.78 application should be made before the evidence to which objection is taken is adduced. A voir dire will be necessary where there is a dispute on the facts between the defence and the prosecution.

Answer 17

Defined under s.82(1) of PACE (Police and Criminal Evidence Act 1984). A confession includes any statement wholly or partly adverse to the person who made it. It applies whether made to a person in authority or not, and can be made in words or otherwise. Examples of confessions: - Unequivocal confessions: Fully inculpatory, e.g., “I did it.” - Mixed statements: Partly inculpatory and exculpatory, e.g., “I had nothing to do with it but was glad to see the victim die.” - Non-verbal confessions: A nod, sign, or gesture may suffice. Excludes wholly exculpatory statements, e.g., “It was nothing to do with me.”

Answer 18

A confession made by an accused may be given in evidence if relevant to the proceedings and not excluded by the court under s.76. Grounds for exclusion include: - Oppression (s.76(2)(a)). - Unreliability due to things said or done (s.76(2)(b)). The court may require the prosecution to prove beyond reasonable doubt that the confession was not obtained under either of these grounds. Exclusion of a confession does not affect the admissibility of: - Facts discovered as a result of the confession (s.76(4)(a)). - The accused's speech, writing, or expressions (s.76(4)(b)).

Answer 19

1. Oppression under s.76(2)(a). 2. Unreliability due to anything said or done under s.76(2)(b). The defence must represent that one of these grounds applies, but the court can also require proof under s.76(3) even without a defence challenge.

Answer 20

Confessions obtained by oppression must be excluded unless the prosecution proves beyond reasonable doubt that they were not obtained in this way. If the prosecution cannot prove beyond reasonable doubt that the confession was not obtained by oppression, then the confession must be excluded as inadmissible evidence and this applies even if the confession may have been true. The judge's decision, if inadmissability, this does not prevent the defence during the trial seeking to discredit the same evidence by cross-examination and making reference to it in their closing speech, ie that it was obtained by oppression and is therefore unreliable.

Answer 21

Oppression includes: - Torture. - Inhuman or degrading treatment. - The use or threat of violence (whether or not amounting to torture). - Covers a wide range of physical and psychological conduct. R v Fulling (1987): The Court of Appeal held that oppression should be given its ordinary dictionary meaning, which includes: - The exercise of power in a burdensome, harsh, or wrongful manner. - Unjust or cruel treatment. - The imposition of unreasonable or unjust burdens. The court in R v Fulling emphasised the importance of interpreting oppression in its ordinary sense, ensuring a broad understanding of what constitutes oppressive behaviour.

Answer 22

A confession may be excluded if it was, or may have been, obtained in consequence of something said or done that was likely to render it unreliable. The prosecution must prove beyond reasonable doubt that the confession was not obtained as a result of the thing said or done. Note: Unreliability in obtaining a confession can result from various factors, and the prosecution must conclusively demonstrate that the confession was not influenced by any such factors. Even if the confession seems credible, it can still be excluded if it was obtained in a way likely to affect its reliability.

Answer 23

According to R v Barry (1991), the approach involves: 1. Identify the thing said or done: Consider all actions or omissions of the police. 2. Ask whether it was likely to render a confession unreliable: This is an objective test, considering all the circumstances. 3. Ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained as a result of the thing said or done.

Answer 24

The first step is to identify the thing said or done that allegedly caused the confession to be unreliable. Examples include: - A promise of release for cooperation. - A threat to arrest the suspect’s family. - Failing to provide an appropriate adult during the questioning of a young or mentally vulnerable suspect. **Key Points:** Identifying the specific action or statement that may have influenced the confession is crucial to the defence’s challenge. The examples provided illustrate common instances where confessions may be rendered unreliable due to improper conduct by the authorities.

Answer 25

Ask whether there was 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’ This is an objective test considering all the facts, without regard to whether the actual confession is true or false. All relevant circumstances surrounding the confession must be taken into account when applying this test

Answer 26

Unreliable" in the context of s.76(2)(b) PACE refers to: ' A confession likely to be untrustworthy due to the circumstances under which it was obtained, such as coercion, improper influence, or failure to follow proper procedures.' The focus is on whether the methods or conduct during the confession could have produced an untrue or misleading statement.

Answer 27

The test for unreliability requires: 1. Identifying whether any improper actions (such as threats, promises, or lack of procedural safeguards) were likely to render the confession unreliable. 2. Evaluating whether, on an objective basis, those actions could generally lead to an untrustworthy confession. R v Gill: This case highlighted the importance of reviewing police conduct and the objective likelihood of a confession being influenced. The test is applied objectively, irrespective of whether the confession is true or false.

Answer 28

Examples of unreliable confessions include: - A suspect being promised leniency or release in exchange for cooperation. - A threat to harm the suspect's family unless they confess. - Failure to provide an appropriate adult for a vulnerable suspect during an interrogation. These actions create a situation where a confession could be made out of fear or false belief, making it unreliable.

Answer 29

The court must ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained as a result of the thing said or done. Once Defence Counsel represents to the court that the confession 'was or may have been obtained' by anything said or done that was likely in the circumstances to render any confession unreliable, the court cannot admit the confession as evidence unless the prosecution proves beyond reasonable doubt that the confession was not obtained in consequence of the thing said or done, even if the confession is true. This is a question of fact for the judge and should be approached in a common-sense way, as stated in Barry [1991] 95 Cr App R 384.

Answer 30

Section 76(4) of PACE states that the exclusion of a confession does not affect the admissibility of: (a) Any facts discovered as a result of the confession, or (b) The part of the confession necessary to show how the accused speaks, writes, or expresses themselves. For example, if a body is located as a result of a confession that is later excluded, the fact of the body’s discovery is still admissible, but the prosecution cannot suggest that the body was found due to something the defendant said. Section 76(5) further clarifies that evidence of a discovered fact is only admissible if the accused or someone on their behalf provides evidence of how it was discovered.

Answer 31

Section 76(4)(b) allows the prosecution to use part of an excluded confession to show that the accused speaks, writes, or expresses themselves in a particular way. In R v Nottle [2004] EWCA Crim 599: The court held that the prosecution could rely on the way the accused spelt the name 'Justin' during an interview, even though the confession itself was excluded. The words were admissible to show how the appellant spelt 'Justin' under s.76(4)(b). The court found no error or unfairness in admitting this evidence, as it was relevant to demonstrate a specific manner of expression rather than the content of the confession itself.

Answer 32

S.82(1) PACE – ‘"confession", includes 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.’ This element considered the main provision through which the admissibility of a confession can be challenged, s.76 PACE. There are two main ways under s.76 to challenge a confession: - Under s.76(2)(a)- 'oppression’; or - Under s.76(2)(b)- 'anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof’. Aside from a defence challenge, the court under s.76(3) can require the prosecution to prove that the confession was not obtained as set out in s.76(2)(a) or (b). Even where a confession is excluded, this does not prevent facts discovered as a result of it being relied upon in evidence (section 76(4)(a)) nor does it prevent the prosecution using part of the confession if necessary to show the speech, writing or expressions of the accused (section 76(4)(b)).

Answer 33

Under s.78(1), 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, having regard to all the circumstances, including the circumstances in which the evidence was obtained, t**hat 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**. s.78(2) states that nothing in this section shall prejudice any rule of law requiring a court to exclude evidence. Section 78 is concerned with the fundamental concept of fairness and is an important means by which the defence can seek to have prosecution evidence excluded.

Answer 34

It is perfectly appropriate and common practice for the defence to seek to exclude evidence of a confession under s.76 and, as an alternative, under s.78. In Beeres v Crown Prosecution Service [2014], Green J stated that the position under s.78 PACE 1984, which concerns fairness, will not normally differ from that based upon the application to the same facts of s.76 PACE 1984. However, s.78 can in principle exert a broader protective sweep than s.76, acting as an override protection for a detainee, particularly where broader Article 6 (ECHR) considerations are engaged.

Answer 35

**s.78** is concerned with whether the admission of evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Even if evidence is irregularly obtained, such as through breaches of the Codes, it is not automatically excluded. The key test is whether fairness dictates exclusion. The court is not concerned with punishing the prosecution or police for the way evidence was obtained but rather with the fairness of the proceedings. However, where there is **bad faith** by the police in breaching **PACE** or the Codes of Practice, this is a factor likely to lead to exclusion under **s.78**, particularly where the defendant has been unfairly prejudiced.

Answer 36

If a suspect confesses outside a formal police station interview, **Code C** requires that a record is made, timed, signed by the maker, and that the suspect reads it and signs it as correct or indicates inaccuracies. The confession must also be put to the suspect at the start of the formal interview, allowing the suspect to confirm or deny it. These procedures protect both the suspect and the police, ensuring any confessions are dealt with contemporaneously and reducing the risk of fabricated or inaccurate confessions. Even with these safeguards, the court’s decision on admissibility under **s.78** will still depend on whether admitting the evidence would unfairly affect the fairness of the proceedings.

Answer 37

The key test for the court in deciding whether to exclude prosecution evidence under **s.78** is whether: *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.* Simply because evidence has been irregularly obtained (for example, in breach of **PACE** or the **Codes of Practice**) does not per se render it inadmissible. It is perfectly appropriate and common practice for the defence to seek to exclude evidence of a confession under **s.76** and, as an alternative, **s.78**. **s.78 PACE** allows the court to examine a case from a perspective of overall fairness and can in principle offer broader protections to the defendant than **s.76**.

Answer 38

The four key aspects to making an application to exclude a confession are: - Advance notification - Timing - Voir dire (trial within a trial) - Submissions

Answer 39

Under the Criminal Procedure and Investigations Act 1996, section 6A, the defence must notify the court of points of law, including admissibility of evidence, in the defence statement. The defence statement is mandatory in Crown Court cases and optional in magistrates' courts. At the Plea and Trial Preparation Hearing or Further Case Management Hearing, the judge may order the defence to serve a skeleton argument for any s.76/78 arguments with a response from the prosecution. Time limits for case preparation in magistrates' courts: - Defence skeleton argument: at least 10 business days before trial. - Prosecution response: 5 business days after the defence argument.

Answer 40

**Crown Court**: In the Crown Court, the application can be made either at a pre-trial hearing or just before opening the case to the jury (in the absence of the jury). Pre-trial applications are suitable when the prosecution needs to know if the confession is admissible to proceed with the case or when the confession is the only significant evidence. Applications can also be made during the trial, especially when there is no immediate need to resolve the issue at the outset. **Magistrates Court**: In a magistrates' court, any application under s.76 should be dealt with as a preliminary issue.

Answer 41

A voir dire is a trial within a trial used to resolve disputes about the admissibility of a confession. It is required when the prosecution must prove beyond reasonable doubt that the confession was not obtained by: - Oppression or - Anything likely to render the confession unreliable (under s.76(2)(a) and s.76(2)(b)). Both the prosecution and defence can call evidence during a voir dire, and the judge will make findings of fact before ruling on admissibility. The voir dire takes place in open court but in the absence of the jury (**in Crown Court**).

Answer 42

If a judge fails to resolve disputed facts during a voir dire before ruling on the admissibility of a confession, the resulting conviction is likely to be **quashed**. This is because it is logically impossible for the judge to be sure that the prosecution has proved the confession was not obtained by oppression or anything rendering it unreliable if the evidence has not been fully heard.

Answer 43

In magistrates' courts, s.76 applications should be treated as a preliminary issue, with evidence heard to resolve any disputed facts. If magistrates exclude a confession, they must exclude it from their own considerations, as they act as both judges of law and fact. In Crown Court, a voir dire is required when there is a factual dispute under s.76 or both s.76 and s.78. The process occurs in the absence of the jury but in open court.

Answer 44

A voir dire is only necessary when there are **disputed factual matters**. If the facts are **agreed** (e.g., agreed breaches of Code C), submissions can be made directly without the need for a voir dire. Both the defence and prosecution will make **oral submissions**, with the defence relying on any previously submitted **skeleton argument**. The judge will then rule on the admissibility of the confession.

Answer 45

If the confession is excluded, the prosecution cannot refer to it, and if it was their only significant evidence, they must offer no evidence, leading to a 'not guilty' verdict. If the confession is admitted, the prosecution can use it, but the defendant can still challenge its reliability (e.g., claim threats during the interview) before the jury. The jury will then decide whether to rely on the confession.

Answer 46

If the ruling excludes the confession, the prosecution can not refer to it during the trial. If the judge concludes that the confession is admissible, the prosecution would be entitled to adduce it. However, this would not deprive a defendant of raising issues of oppression, unreliability or unfairness before a jury for them to decide whether to rely on the confession.

Answer 47

**In the magistrates’ court**: * Advance notification: any defence skeleton argument in support at least 10 business days before trial and the prosecution response 5 business days after that. * Timing: In a magistrates' court, any application under s.76 should be dealt with as a preliminary issue. * Voir dire: where the application is under s.76 or boths.76 & s.78 and the evidence is disputed, the magistrates should hear evidence on the matter and decide the applications as a preliminary issue. If, however, the application in a magistrates' court is only under s.78, the magistrates have a discretion to hear all the evidence in the usual way and decide upon its admissibility at a later stage. **In the Crown Court**: * Advance notification: generally at the PTPH, the judge is likely to order, when the defence is to serve a skeleton argument in support of any s.76/78 arguments, when the prosecution serve a response and when the arguments will be heard. * Timing: the application to exclude the confession can be made at a pre-trial hearing listed specifically for this purpose or it can be dealt with just prior to opening the case to the jury (and in the absence of the jury). * Voir dire: required where the application is made under s.76 (or both s.76 and s.78) and the evidence founding the application is in dispute.

Answer 48

The burden of proof is always on the prosecution to prove the elements of the offence. The standard of proof is “so that you are sure of guilt”, which is the modern equivalent of saying beyond reasonable doubt. The prosecution must prove this to the jury.

Answer 49

- In some cases, the defendant has to prove something too (although rarely). - The legal burden refers to the obligation to prove certain elements of the case to the required standard. - Typically, the defendant does not have to prove anything. - However, in specific defences, such as insanity, the legal burden shifts to the defendant. - The defendant must prove their case on the **balance of probabilities.** **Example**: In a defence such as insanity, it is not proper or reasonable for the prosecution to prove every single defendant in the world is sane. It is up to individual defendants to indicate (through their advocates) that they are asserting a lack of mens rea by virtue of insanity. That assertion needs to be made by the defence, and proved by the defence. The standard for anything that the defence has to prove is the balance of probabilities.

Answer 50

The evidential burden refers to the responsibility to provide sufficient evidence to allow an issue to be considered by the jury. The judge must decide if there is enough evidence to allow the issue to be put to the jury for their consideration. This is different from the legal burden, which is the obligation to prove the facts of the case to the required standard. The legal burden generally lies with the prosecution. While the legal burden involves proving the overall case beyond reasonable doubt, the evidential burden is only about producing enough evidence to raise an issue.

Answer 51

The defence does not have a burden if it is merely challenging the prosecution’s case. The defendant does not need to prove their innocence; they only need to cast doubt on the prosecution’s evidence. The defence can argue that the prosecution’s witnesses are mistaken, unreliable, or dishonest, or simply deny that they committed the offence, without carrying any burden of proof themselves. The burden remains with the prosecution to prove guilt beyond reasonable doubt.

Answer 52

Typically, the party that has the legal burden also carries the evidential burden. This means that the prosecution, which has the legal burden to prove the defendant’s guilt, must also provide enough evidence to satisfy the evidential burden. However, an exception arises in cases such as self-defence, theft, burglary, and insanity, where the evidential burden is on the defence, while the legal burden remains with the prosecution. In such cases, once the defence produces some evidence of self-defence, the prosecution must disprove it beyond reasonable doubt.

Answer 53

In a theft case, even if the defendant admits to some facts, the prosecution still carries the legal burden of proving every element of the crime beyond reasonable doubt. The prosecution must prove that the defendant: 1. Committed the act of theft, 2. Did so on the specific date outlined in the indictment, 3. Acted with dishonesty, and 4. Intended to permanently deprive the owner of their property. Even if the defendant remains silent or admits to being at the scene, the prosecution still bears the burden of proving each of these elements.

Answer 54

In a burglary case, if the prosecution cannot provide sufficient evidence that the defendant was a trespasser at the time of the offence, they will have failed to meet the evidential burden. If the evidential burden is not met, the case will not proceed to the jury, and the judge will withdraw the case. Without enough evidence of trespassing, a key element of burglary is missing, and the defendant cannot be convicted.

Answer 55

In cases involving the defence of insanity, the defendant carries both the legal burden and the evidential burden. The defendant must show that, on the balance of probabilities, they were suffering from a disease of the mind at the time of the offence. This means the defendant must prove that it is more likely than not that they were legally insane when the crime was committed. The prosecution must still prove all other elements of the offence, but the defendant must prove their insanity defence.

Answer 56

In self-defence cases, the defence only needs to satisfy the evidential burden by presenting some evidence that they acted in self-defence. Once this burden is met, the prosecution must disprove the defence by proving beyond reasonable doubt that the defendant’s actions were not lawful self-defence. The prosecution must show that the force used by the defendant was unreasonable or unnecessary.

Answer 57

In a duress defence, the defendant has the evidential burden of producing evidence that they were acting under duress. Once this evidence is presented, the prosecution must prove beyond reasonable doubt that the defendant did not act under duress. In an alibi defence, the defendant must present evidence that they were somewhere else at the time of the offence. The prosecution then has the burden to prove beyond reasonable doubt that the alibi is false and that the defendant was indeed present at the scene of the crime.

Answer 58

* The burden of proving the elements of the offence is always on the prosecution. * A legal burden- is simply the requirement to prove an element of your case to a prescribed standard. The standard varies between prosecution and defence: * The standard to which prosecution proof is put is always to convince the jury of guilt “so that they are sure” which means the same as 'beyond reasonable doubt’. * The standard for almost everything that the defence has to prove is the ‘balance of probabilities’. * An evidential burden- is where you have to raise some evidence to satisfy the judge that the matter should be argued before the jury. * In every case, if you have a legal burden to prove a fact in issue, you have the evidential burden of 'passing the judge' with the same evidence. However, in very rare cases, the legal burden and the evidential burden become detached, such as self-defence.

Answer 59

Safeguards were introduced at every stage of the criminal justice process to ensure that identification evidence before a jury is reliable as possible: * Investigation stage: Police and Criminal Evidence Act 1984 (PACE) Code of Practice D; and * Trial stage: Turnbull guidelines. In Turnbull, the Court of Appeal gave guidance: * On what a judge should say to a jury when a case depended wholly or substantially on disputed identification evidence; and * To judges on when identification evidence can safely be left to the jury and when a case must be withdrawn to protect the defendant from an unsafe conviction.

Answer 60

A Turnbull direction should be given when the case against the accused depends "wholly or substantially" on the correctness of visual identification. This typically occurs when the defendant was identified in a formal ID procedure but maintains the witness was mistaken. Even in cases of alleged recognition, a Turnbull direction is required, as mistaken identification can happen even when someone thinks they recognise another. If the defendant admits presence at the scene but disputes their role, a Turnbull direction may not be necessary. However, the court should assess the need for it in every case. Judges and advocates should discuss this issue before the jury addresses it.

Answer 61

A Turnbull direction ensures that a jury exercises caution when relying on identification evidence. This is required when the prosecution’s case depends wholly or substantially on the accuracy of one or more identifications of the accused, and the defence claims the identification is mistaken. The judge should: - Warn the jury that mistaken witnesses can be convincing. - Direct the jury to consider the circumstances under which the identification was made. - Highlight any specific weaknesses in the identification evidence.

Answer 62

The judge should guide the jury in considering additional evidence that may support the correctness of the identification. Supporting evidence includes: - Scientific evidence (e.g., footwear, facial mapping, telephone records). - Multiple identifications by different witnesses, provided these are strong enough to be left to the jury. - The accused's bad character or previous convictions (if admissible). - The accused's silence in interviews (if an adverse inference can be drawn). - Admissions by the accused at the scene, in interviews, or during testimony.

Answer 63

A judge should stop the case if the identification evidence is weak and unsupported. Two key questions: - What is the quality of the identification evidence? - Is there other evidence supporting the identification? Factors such as lighting, distance, and the witness's observation time and eyesight should be considered in evaluating the evidence’s quality.

Answer 64

A judge should direct the jury to examine factors such as: - The duration of the observation, especially the time the witness could see the accused’s face. - The distance between the witness and the accused. - Lighting conditions during the observation. - Whether there were any obstructions or distractions during the observation. - Whether the witness had seen the accused before and how many times. - The time gap between the incident and the identification procedure. - Any discrepancies between the witness's description and the appearance of the accused.

Answer 65

ADVOKATE is a mnemonic used to assess identification evidence following the Turnball Guidelines: A - Amount of time the accused was observed. D - Distance between the witness and the accused. V - Visibility at the time of observation. K - Whether the witness had seen the accused before. A - Any reason for the witness to remember the accused. T - Time lapse between observation and identification. E - Any errors or material discrepancies between the witness's description and the accused's appearance.

Answer 66

Good quality: The jury can assess the identification without additional evidence if there is a proper caution. Poor quality: If the identification was brief or difficult, the judge should look for supporting evidence. Without supporting evidence, the judge should withdraw the case from the jury and direct an acquittal. If supporting evidence exists, such as scientific evidence, the jury can consider both the weak identification and the supporting evidence.

Answer 67

Dock identification happens when a witness identifies the defendant for the first time during the trial, while the defendant is in the dock. This is rare and undesirable because the witness has no alternative but to identify the defendant, which can be prejudicial. The witness may assume the defendant is guilty simply because they are in the dock. A judge may allow dock identification if it doesn't jeopardise the fairness of the trial, such as in cases of recognition.

Answer 68

Identification is a live issue when: - The defendant disputes the identification evidence. - The identification is the main evidence implicating the defendant. For example: - If the defendant admits being at the scene but denies involvement, identification is not the issue; the defendant's role is. - If the defendant denies being at the scene and there is no other evidence (CCTV, forensics, witness statements), then identification is a live issue.

Answer 69

Turnbull Guidelines- Determine what a judge should say to a jury when a case depends wholly or substantially on disputed identification evidence. If the judge decides the witness evidence is so weak it would lead to an unsafe conviction, the judge will withdraw the case from the jury and direct the jury to acquit the defendant. Without the identification that was all or the main part of the evidence against D, there is no evidence left of any weight for the jury to decide on. If the judge decides that the evidence given by the witness at trial is strong enough to be left to the jury or is weak but supported by some other evidence, then the trial will proceed. During summing up, the judge will explain to the jury that they must decide whether D was the person seen by the witness. At this stage the judge will give the jury a specific **Turnbull warning**- a direction in relation to how they should assess the weight of the identification evidence.

Answer 70

Bad character is defined in s.98 Criminal Justice Act (CJA) 2003 thus: 'References to evidence of a person's "bad character" are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which— (a) Has to do with the alleged facts of the offence with which the defendant is charged, or (b) Is evidence of misconduct in connection with the investigation or prosecution of that offence.'

Answer 71

'Misconduct' is defined in s.112 CJA 2003 as 'the commission of an offence or other reprehensible behaviour’. 'Reprehensible behaviour' is not further defined in the Act, though there is case law on the issue. 'Reprehensible' connotes some degree of moral blameworthiness. Behaviour is not necessarily reprehensible just because it is morally lax, having an affair, for example, would not be considered in law bad character. It is well established that evidence of membership of a gang is evidence of reprehensible behaviour.

Answer 72

Bad character may be shown by any of the following: * Previous convictions in the UK * Previous convictions in a foreign court where such offences have a domestic equivalent. Blasphemy, for example, would be unlikely to be considered bad character. * Cautions * Acquittals, where the prosecution contends that in fact the defendant was guilty of the previous offence of which D was acquitted * Agreed facts that amount to reprehensible behaviour * Witness evidence of a reputation for reprehensible behaviour

Answer 73

Where the prosecution relies on evidence of previous acquittals, it is open to it to assert that the defendant did commit the offence(s) of which D was previously convicted. The double jeopardy rule is not transgressed so long as the prosecution does not seek to have the defendant punished for the previous offences. The logical corollary of this position is that evidence of a previous conviction is in law a rebuttable presumption that the defendant committed the said offence thus the defendant is entitled to adduce evidence tending to show they were wrongly convicted.

Answer 74

Section 98 CJA 2003 specifically excludes evidence of misconduct which: (a) Has to do with the alleged facts of the offence with which the defendant is charged; or (b) Is committed in connection with the investigation or prosecution of that offence. Evidence which falls within the s.98 definition does not have to satisfy any of the conditions set out in ss.100 (gateways to admissibility of non-defendant’s bad character) or 101 (gateways to admissibility of defendant’s bad character). If a defendant tells a demonstrable lie during interview, subject to relevance, that is not a matter which would require the prosecution to make a bad character application by virtue of s.98(b). Where it is necessary as part of the prosecution case to prove criminal conduct by the defendant or another, evidence of that conduct will fall outside s.98. Examples are offences of driving while disqualified where the prosecution will have to prove that the defendant committed an earlier offence and was disqualified as a result. Attempts at jury tampering or witness intimidation are examples of misconduct connected with the investigation or prosecution of the offence, so evidence of those matters is not bad character evidence. The decided cases seem to accept that evidence of the motive of the accused to commit the offence is evidence that has to do with the alleged facts of the offence.

Answer 75

* Bad character may be shown in lots of different ways: previous convictions, witness evidence, agreed facts and acquittals for example. The bad character evidence must go through a gateway to be admissible: * S.100(1) sets out the gateways for non-defendant bad character * S.101(1) sets out the gateways for defendant bad character * Many of the gateways require a bad character application to be made. Conduct is admissible without going through a gateway if it: * has to do with the alleged facts of the offence with which the defendant is charged; or * is committed in connection with the investigation or prosecution of that offence. Examples include lying in police interview and jury tampering.

Answer 76

The seven gateways for admissibility of a defendant's bad character are outlined in Section 101(1)(a–g) of the Criminal Justice Act 2003. Evidence of bad character is admissible if, but only if, it falls within one of these gateways: (a) Agreement of the parties (b) Evidence adduced by the defendant (c) Important explanatory evidence (d) Done it before (relevant to an important matter in issue) (e) 'E did it (evidence of guilt) (f) False impression created by the defendant (g) Gets at the witness (evidence of intimidation)

Answer 77

Section 101(1)(a) of the Criminal Justice Act 2003 allows evidence of the defendant’s bad character to be admitted if all parties to the proceedings agree to it. No application to the court is required. The agreement can be tacit; there are no formal requirements for recording the agreement or the manner in which it is reached.

Answer 78

Under Section 101(1)(b) of the Criminal Justice Act 2003, the defendant may introduce their own bad character evidence. The evidence may be adduced by the defendant directly or in response to a question during cross-examination that the defendant intends to elicit. Reasons for adducing such evidence include: - To receive a modified good character direction by admitting an old conviction. - To show the defendant has no convictions of the type charged. - To support a defence, e.g., being in prison at the time of the offence. - To explain potential police bias against the defendant. Leave of the court is not required for this gateway.

Answer 79

Section 101(1)(c) allows bad character evidence to be admitted if it is 'important explanatory evidence'. According to Section 102 of the Criminal Justice Act 2003, evidence is considered important explanatory evidence if: - Without it, the court or jury would find it difficult or impossible to properly understand other evidence in the case. - Its value for understanding the case as a whole is substantial. This gateway often allows the prosecution to introduce evidence of the defendant's past misconduct to explain the context of the current case, such as the prior relationship between parties involved. Leave of the court is required to admit evidence through this gateway

Answer 80

Section 101(1)(d) covers the admission of bad character evidence where 'it is relevant to an important matter in issue between the defendant and the prosecution'. Section 112 defines an 'important matter' as a matter of substantial importance in the context of the case as a whole. Section 103 provides further clarification on Section 101(1)(d): (a) Propensity to commit offences of the kind with which the defendant is charged (except where this makes guilt no more likely). (b) Propensity to be untruthful (except where no untruthfulness is alleged).

Answer 81

Section 103(2) allows a defendant’s propensity to commit offences of the same kind to be established by: (a) A conviction of an offence of the same description. (b) A conviction of an offence in the same category. Section 103(3) ensures this does not apply if the conviction is too old or it would be unjust to rely on it. Propensity can be established without a minimum number of convictions, but fewer convictions may provide weaker evidence of propensity. A single conviction may show propensity where it shows a tendency towards unusual behaviour.

Answer 82

From R v Hanson: 1. Does the defendant’s history show a propensity to commit the type of offence charged? 2. Does that propensity make it more likely the defendant committed the current offence? 3. Would it be unjust to rely on previous offences of the same description or category? 4. Would admitting the evidence make the trial unfair (Section 101(3))?

Answer 83

Propensity to be untruthful is distinct from being dishonest. Previous convictions only show untruthfulness if: - The defendant pleaded not guilty and the jury disbelieved their evidence. - The offence involved untruthful behaviour, such as fraud by false representation. Not every dishonesty offence, like burglary, indicates untruthfulness; admitting to the crime does not demonstrate a general untruthfulness.

Answer 84

The court must not admit bad character evidence if doing so would have such an adverse effect on the fairness of the proceedings that it outweighs its probative value. The court must assess whether admitting the evidence would undermine the defendant’s right to a fair trial, particularly where there is little other evidence against the defendant.

Answer 85

If a defendant faces multiple charges in the same trial, bad character provisions treat each offence as if it were charged in separate proceedings. A gateway, such as Section 101(1)(d), is required to make the evidence of one offence admissible in proving another. For example, if a defendant is charged with offences against two stepdaughters, evidence from one could be used to show a propensity relevant to the allegations made by the other, if the jury is sure of guilt in one case.

Answer 86

The judge decides whether the evidence is capable of establishing a propensity. If the evidence is admitted, it is then for the jury to determine whether it actually demonstrates the asserted propensity. The court must give leave for bad character evidence to be admitted through Section 101(1)(d).

Answer 87

Under Section 101(1)(e) of the Criminal Justice Act 2003, evidence of a defendant's bad character is admissible if it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant. Section 104 of the Act states that this evidence is only admissible if the nature or conduct of the defendant's defence undermines the co-defendant's defence. Specifically: - It must be adduced by the co-defendant or a witness in cross-examination by the co-defendant. This gateway allows a co-defendant to introduce evidence of the defendant’s propensity to be untruthful. The fairness test under s.101(3) CJA 2003 does not apply, nor does s.78 of the Police and Criminal Evidence Act 1984, making it difficult for the defendant to exclude this evidence. Leave of the court is required for this gateway.

Answer 88

Section 101(1)(f) of the Criminal Justice Act 2003 allows the admission of bad character evidence if it is needed to correct a false impression given by the defendant. According to Section 105, the defendant gives a false impression if they are responsible for making an express or implied assertion that gives the court or jury a misleading impression about them. A defendant is responsible for an assertion if it was made by: - The defendant in proceedings, or by a witness they called. - A witness in response to cross-examination by the defendant. - Someone else outside of court, where the defendant adduces it as evidence. This gateway can be used even if the prosecution initially introduced the evidence that creates the false impression. The court must ensure that evidence admitted under this gateway goes no further than necessary to correct the false impression, and only prosecution evidence is admissible. Leave of the court is required for this gateway.

Answer 89

(1) For the purposes of section 101(1)(f): (a) The defendant gives a false impression if they are responsible for making an express or implied assertion apt to give the court or jury a false or misleading impression about the defendant. (b) Evidence to correct such an impression is evidence with probative value in correcting it. (2) A defendant is treated as responsible for the making of an assertion if: (a) The assertion is made by the defendant in the proceedings (whether or not in evidence given by them). (b) The assertion was made by the defendant: (i) On being questioned under caution, before charge, about the offence charged. (ii) On being charged or officially informed they might be prosecuted. (c) The assertion is made by a witness called by the defendant. (d) The assertion is made by any witness in cross-examination in response to a question asked by the defendant intended to elicit it or likely to do so. (e) The assertion was made by any person out of court, and the defendant adduces evidence of it in the proceedings. (3) A defendant is not treated as responsible for making an assertion if they withdraw it or disassociate themselves from it. (4) If the defendant's conduct in the proceedings seeks to give a false or misleading impression, the court may treat the defendant as responsible for making an assertion that gives that impression. (5) 'Conduct' in subsection (4) includes appearance or dress. (6) Evidence under section 101(1)(f) is admissible only if it goes no further than necessary to correct the false impression. (7) Only prosecution evidence is admissible under section 101(1)(f).

Answer 90

Section 101(1)(g) of the Criminal Justice Act 2003 permits evidence of the defendant’s bad character if they have made an attack on another person’s character. Section 106 clarifies that an attack occurs when the defendant: - Adduces evidence attacking the other person's character. - Asks questions in cross-examination aimed at eliciting such evidence. - Makes an imputation about the other person during questioning or when charged. This evidence can relate to the other person committing an offence or behaving in a reprehensible manner. The purpose of this gateway is to allow the jury to assess the likelihood of the truth of the attack on the other person’s character, taking into account the defendant’s character. The fairness test under s.101(3) applies to this gateway. Leave of the court is required for this gateway.

Answer 91

When directing the jury about bad character evidence, the judge must make it clear that the weight placed on such evidence is for the jury to decide. The jury should be warned not to place too much reliance on bad character evidence. It cannot be used to: - Bolster a weak case. - Prejudice the jury against the defendant. The jury must be directed that: - They should not conclude the defendant is guilty or untruthful merely due to past convictions. - A propensity alone is not enough to prove the defendant committed the offence in question. The significance of the bad character evidence must be assessed in light of all the evidence presented in the case. If disputed allegations of conduct that did not result in conviction are relied upon as evidence of propensity, the jury must be told not to rely on it unless they are sure it is true.

Answer 92

Defendant bad character (s.112 Misconduct) Admissible only through a gateway · s.101(1)(a)- all parties agree · s.101(1)(b)- D chooses to adduce evidence. · s.101(1)(c)- important explanatory evidence (s.102) · s.101(1)(d)- relevant to an important matter between in issue between D and Pros s.103(1) -(a) Propensity to commit offences of type charged (a) Offence of the same description written in charge or indictment (s.103(4)(b)) (b) Offence of the same category prescribed by order of Secretary of State (s.103(4)(a)) - (b) Propensity to be untruthful s.101(1)(e)- probative value between D and Co Def (s.104) s.101(1)(f)- correct a false impression (s.105) s.101(1)(g)- D attacks another’s character (s.106) Defence can argue relevant safeguards to exclude- s.101(3) and s.103(3).

Answer 93

Section 100 CJA 2003 states: 'In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if: (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 to the proceedings agree to the evidence being admissible. 2 For the purposes of subsection (1)(a) evidence is important explanatory evidence 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.

Answer 94

Section 100 CJA 2003 states: 3 In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant): (a) The nature and number of the events, or other things, to which the evidence relates; (b) When those events or things are alleged to have happened or existed; (c) where: (i) The evidence is evidence of a person's misconduct, and (ii) It is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct, The nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct; (d) Where (i) The evidence is evidence of a person's misconduct, (ii) It is suggested that that person is also responsible for the misconduct charged, and (iii) The identity of the person responsible for the misconduct charged is disputed, The extent to which the evidence shows or tends to show that the same person was responsible each time. 4 Except where subsection (1)(c) applies, evidence of the bad character of a person other than the defendant must not be given without leave of the court.'

Answer 95

Evidence under s.100 can be adduced by any party. Leave of the court is required unless all parties agree to the admission of the evidence.

Answer 96

Section 100(1)(a): Important explanatory evidence The definition of 'important explanatory evidence’ (s.100(2)) is the same as the one given in s.102 in relation to defendant bad character evidence: * Without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case; and * Its value for understanding the case as a whole is substantial. The same considerations apply.

Answer 97

Section 100(1)(b) requires that the evidence has substantial probative value in relation to a matter in issue and of substantial importance in the context of the case as a whole. A 'matter in issue' can refer to either: - Credibility, or - A disputed fact. Although there is no specific reference to propensity in s.100 like in s.103, propensity can still be a matter in issue under s.100. This means: - A defendant can adduce evidence of another person's propensity to commit offences of the type charged to show that this other person, not the defendant, committed the offence. The inclusion of the word 'substantial' means that for evidence to be admissible: - It must be capable of impacting how the jury assesses the evidence of a witness or the case overall. The probative value of non-defendant misconduct depends on: - The nature, number, and age of the misconduct instances. - Recent misconduct tends to have more probative value than misconduct from long ago. - If it's alleged that the non-defendant committed the offence charged, the similarity between the past misconduct and the facts of the offence charged is significant.

Answer 98

Non-defendant bad character (s.98 bad character definition) · s.100(1)(a)- important explanatory evidence. Court to give leave. · s.100(1)(b)- substantial probative value in relation to a matter in issue and of substantial importance in the context of the case as a whole. Court to give leave. · s.100(1)(c)- Agreement of the parties. Admissible without leave of the court.

Answer 99

Section 78 of the PACE Act 1984 allows a judge discretion to exclude any evidence that the prosecution seeks to adduce on the ground that its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. It has no application where one defendant seeks to adduce evidence against another.

Answer 100

Section 101(3) of the Criminal Justice Act 2003 states: - ‘The court **must** not admit evidence under subsection (1)(d) or (g) if, 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.’ The wording of s.101(3) is very similar to s.78 of the PACE Act 1984, except that the word ‘must’ appears in s.101(3), whereas the word ‘may’ appears in s.78.

Answer 101

Sections 101(1)(d) and 103(3) of the Criminal Justice Act 2003 allow the court to exclude evidence of the commission by the defendant of an offence of the same description or type as the offence charged if the court is satisfied that, by reason of the time that has elapsed since the earlier conviction or for any other reason, it would be unjust to admit the evidence.

Answer 102

Section 107 of the Criminal Justice Act 2003 gives the court discretion to stop the case where it is satisfied at any time after the close of the case for the prosecution that bad character evidence that has been admitted is contaminated and the contamination is such that the conviction of the defendant of the offence with which D is charged would be unsafe.

Answer 103

Section 110 of the Criminal Justice Act 2003 requires the court to give reasons in open court for any ruling it makes on the issue of bad character.

Answer 104

Section 73 of the Police and Criminal Evidence Act (PACE) 1984 provides that where there is a dispute as to whether a person has in fact been convicted or acquitted of an offence in the past, whether in the UK or in another EU Member State, the conviction or acquittal may be proved by the production of the certificate of conviction (signed by the proper officer of the court) from the court where the conviction or acquittal took place. The certificate must be accompanied by evidence that the person named in it is the person whose conviction or acquittal is in issue.

Answer 105

Section 74 of PACE Act 1984 provides that where a person is proved to have been convicted of an offence by any court in the UK or other EU Member State, that person shall be taken to have committed the offence unless the contrary is proved. The burden of proving that the offence was not committed by the person whose conviction of the offence has been proved is on that person. The burden can be discharged by showing on the balance of probabilities that the offence was not committed by that person.

Answer 106

Section 75 of PACE Act 1984 makes various documents, including the information, charge sheet and/or indictment, admissible as evidence of the facts on which the conviction was based.

Answer 107

Under Rules 21.2 and 21.4, the time limits for giving notice of defendant bad character evidence are: - **Magistrates’ court**: Not more than 20 business days after the defendant pleads not guilty. - **Crown Court**: Not more than 10 business days after the defendant pleads not guilty.

Answer 108

The notice or application must: - Set out the facts of the misconduct on which that party relies. - Explain how that party will prove those facts (whether by certificate of conviction, other official record, or other evidence), if another party disputes them. - Explain why the evidence is admissible.

Answer 109

In the response, a party must explain, as applicable: - Which, if any, facts of the misconduct set out in the notice that party disputes. - What, if any, facts of the misconduct that party admits instead. - Why the evidence is not admissible. - Why it would be unfair to admit the evidence. Any other objection to the notice.

Answer 110

Under Rules 21.2 and 21.3, for non-defendant bad character: - Magistrates’ court and Crown Court: The application must be made **as soon as reasonably practicable, and in any event, not more than 10 business days after the prosecutor discloses the material on which the application is based** (if the prosecutor is not the applicant). - Response: Not more than **10 business days after service** of the application.

Answer 111

The court can determine an application with or without a hearing in public or in private. The decision must be announced at a hearing in public, but in the absence of the jury. The court has discretion to shorten or extend time limits or to allow an application or notice to be given in a different form. Extensions to time limits can be granted after the time limit has expired.

Answer 112

In practice, written notices in the form required by the rules are usually served where the prosecution proposes to adduce evidence through the s.101(1)(c) or (d) gateways. Evidence that becomes admissible through the other gateways in s.101 is likely to do so 'on the hoof' as a result of something said or done in the course of the trial. In those circumstances, the application is likely to be made orally.

Answer 113

This element considered: The powers for exclusion of defendant bad character and safeguards: - s.78 PACE- prosecution evidence only s.101(3) CJA 2003- discretion to exclude applies to defendant’s bad character under these gateways only: - s.101(1)(d)- relevant to an important matter in issue between D and P - s.101(1)(g)- D attacked another person’s character - s.101(1)(d) and s.103(3)- offences may be excluded by length of time since conviction or for any other reason it would be unjust to admit the evidence. - s.107- stopping the case where evidence is contaminated - s.110- requires the court to give reasons in open court on bad character rulings - Proof of convictions under ss.73- 75 PACE The procedure for adducing and opposing the introduction of bad character evidence- defendant and non-defendant

Answer 114

The rule against hearsay states that a statement made out of court may not be presented in evidence as proof of its contents. The general rule is that hearsay is inadmissible, which is an example of an exclusionary rule. Hearsay evidence is defined in s.114 and s.115 Criminal Justice Act 2003: If the advocate wants to use evidence of the out of court statement to prove that what was said was true and the apparent purpose of the maker of the statement was to cause another person to believe the matter stated then it is a hearsay statement and can only be admitted by one of the ‘gateways’. Example: Where the out of court statement made is made by a person, who intended a machine to operate on the basis that the matter is as stated, which is tendered in evidence as proof of what was said was true

Answer 115

**Relevance** - Subject to the exclusionary rules, all evidence, which is sufficiently relevant to the facts in issue, is admissible. All evidence which is irrelevant to the facts in issue should be excluded. **Excluding evidence** - It does not follow that all relevant evidence is admissible. If an exclusionary rule applies it does not matter how relevant the evidence in question may be, it will be inadmissible.

Answer 116

The exclusionary rule as it relates to hearsay evidence is one that causes problems for many practitioners of criminal law, even those who are very experienced. It is important to address possible hearsay evidence in a structured manner. There are two questions to be asked and they must be kept separate. Any attempt to tackle both questions at once will lead to confusion: 1. Does the evidence fall within the definition of hearsay evidence? If the answer to this question is 'yes', then it is prima facie inadmissible. 2. Does it fall within one of the exceptions to the general exclusionary rule?

Answer 117

The common law excluded statements other than statements made in oral evidence given in court from being admitted as evidence of the truth of their contents. The main reason for this was that the maker of the out of court statement was not available to be cross-examined so the quality of the evidence could not be tested. - For example, in D's trial for the murder of V, A gives evidence that B said that D killed V. - The problem is that only A is in court to be cross-examined. There is no way of testing the credibility of B's statement. - B may have had a motive for wanting to get D into trouble. B may be passing on what someone else said. B may simply be mistaken. What B said may have been misunderstood. - In any event, it could not be safe for a conviction to be founded on this evidence. To avoid unfairness, the common law developed a number of exceptions to the general rule where it appeared that hearsay evidence could properly be relied on. There was, however, no general 'interests of justice' rule whereby hearsay evidence could be admitted until the coming into force of the Criminal Justice Act (CJA) 2003, s.114(1)(d). As a result, some of the pre-2003 case law involves appellate courts taking a broad view of the rules in order to avoid an unfair outcome. Because hearsay evidence cannot be tested by cross-examination in court, there is an obvious risk of unfairness to the defendant where it is admitted. That risk gets greater as the importance of the hearsay evidence to the prosecution case increases. The ECHR Article 6 right to a fair trial may be engaged where hearsay evidence is admitted.

Answer 118

The UK Supreme Court and the European Court of Human Rights have considered the effect of hearsay evidence on the fairness of trials. The principles that emerge from the decided cases are: * The UK statutory framework for the admission of the evidence of absent witnesses is sufficient, properly applied, to provide for a fair trial. * The court must always be satisfied that there is a sufficient basis for the absence of the witness and that a fair trial will be possible. * It will be harder for the court to be satisfied that a fair trial will be possible if the evidence of the absent witness is the sole or decisive evidence against the accused. Where the hearsay evidence is critical to the case, the question of whether there can be a fair trial depends on three principal factors: * Whether there is a good reason to admit the evidence pursuant to the CJA 2003; * Whether the evidence can be shown to be reliable; and * The extent to which counterbalancing measures have been properly applied, eg exclusionary discretion, proper directions to the jury in summing up.

Answer 119

There is a general rule that hearsay evidence is inadmissable. Section 114 CJA 2003 provides that hearsay is admissible if, but only if, it falls within one of the exceptions in s.114(1). Section 114(1) CJA 2003 reads: ‘114 Admissibility of hearsay evidence (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if-- (a) any provision of this Chapter or any other 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.’

Answer 120

Section 115 of the CJA 2003 defines a "statement" as any representation of fact or opinion made by a person, by any means, including representations made in sketches, photofits, or other pictorial forms. A "matter stated" applies if the purpose (or one of the purposes) of the person making the statement appears to the court to have been: (a) To cause another person to believe the matter, or (b) To cause another person to act, or a machine to operate, on the basis that the matter is as stated.

Answer 121

The test for hearsay as explained in R v Twist involves three steps: 1. Identify the relevant fact (matter) it is sought to prove. 2. Ask if there is a statement of that matter in the communication: - If no, then no question of hearsay arises, regardless of other content in the communication. 3. If yes, ask if one of the purposes (not necessarily the only or dominant purpose) of the maker of the communication was for the recipient, or any other person, to believe that matter or act upon it as true: - If yes, it is hearsay. - If no, it is not hearsay.

Answer 122

* **Private diary** - It follows from the definition of hearsay that anything written in a private diary where the writer did not intend that anyone else should ever read it cannot be hearsay. This is because there is no intention on the part of the maker of the statement that any other person should believe anything. * **CCTV- section 115(2)** contains the words '... made by a person ...’, so no issue of hearsay arises where the piece of evidence in question was created entirely by a device such as a CCTV system without any human input. * **Questions** - Where there is no statement of a matter, eg where the communication consists only of the asking of a question, the court in Twist thought that no issue of hearsay could arise. In **Twist ** the communications in question were text messages received by the defendant asking for drugs. There was no statement that he was a drug dealer (which was the matter that the prosecution sought to prove), so the messages were not hearsay and were admissible. The court went on to say that even if on these facts there was an implied statement that the recipient of the messages was a drug dealer, it was certainly not the intention of the sender of the message to make the recipient believe that fact. Applying s.115(3) means that on that interpretation the messages are still not hearsay.

Answer 123

Evidence of words spoken out of court is admissible as original evidence if the purpose of adducing the evidence is to show that the words were spoken, rather than to prove the truth of the words. Original evidence is admissable provided it is relevant and may be admitted as evidence proving a fact in issue. This is not hearsay, as it is not being admitted as “evidence of any matter stated.” Examples of original evidence include: **Evidence of threats**: If a threat such as, “if you don’t do what I say, I shall harm you” is adduced to show the threat was made, not that the threat would actually be carried out. **State of mind**: Statements can also demonstrate the state of mind of the maker. For example, in Ratten v R [1972], evidence of a 999 call made by the deceased before her killing was admitted to show her distressed state, supporting the claim that her death was not accidental.

Answer 124

Statements made out of court are not hearsay if they are used as original evidence in the following contexts: **To show the effect of words**: If the purpose is to show the impact on the listener, not the truth of the statement, it is not hearsay. For example, a defendant referencing solicitor advice to explain a “no comment” interview. **Legally significant words**: Statements are not hearsay if the words have legal significance, such as an offer of sexual services in exchange for money, which could show that a premises is a brothel. **Falsehoods**: If a party adduces evidence of an out-of-court statement as false, it is not hearsay. For instance, the prosecution might present a defendant’s false alibi to indicate an attempt to avoid conviction.

Answer 125

This element provided an introduction to hearsay, as distinguished from original evidence: * The rule against hearsay states that a statement made out of court may not be presented in evidence as proof of its contents. The general rule is that hearsay is inadmissible which is an example of an exclusionary rule. However, section 114 CJA 2003 provides that hearsay is admissible if, but only if, it falls within one of the exceptions in s.114(1). * When addressing hearsay, ask these two questions: Does the evidence fall within the definition of hearsay evidence? If the answer to this question is 'yes', then it is prima facie inadmissible. Does it fall within one of the exceptions to the general exclusionary rule? * Use the three part test in R v Twist [2011] to determine whether a communication is hearsay. * The ECHR Article 6 right to a fair trial may be engaged where hearsay evidence is admitted.

Answer 126

A statement is hearsay if: * It is made out of court; and * The person that made it intended another person to believe it; and * It is adduced as evidence of the matter stated (s.114(1) and s.115 Criminal Justice Act 2003). Section 114(1) provides that hearsay is not admissible unless it falls into one of the four exceptions to the general exclusionary rule: * Any of the statutory exceptions in the CJA 2003 apply; * Any of the common law exceptions preserved under the CJA 2003 apply (s.118 will be covering in detail in a separate element); * All the parties agree; or * The court uses its statutory discretion to admit the hearsay, in the interests of justice.

Answer 127

Hearsay may be admissible if: * The witness is unavailable (**s.116**); * It is a business document (**s.117**) - however, the court has the discretion to exclude such a business document if it is satisfied that the statement’s reliability is doubtful (**s.117(6) and(7)**); or * It is in the interests of justice to admit it (**s.114(1)(d)**). Note the court has discretion to exclude unfair prosecution evidence (s.78 PACE).

Answer 128

Section 116 of the CJA 2003 allows for the admissibility of statements not given orally in court under specific conditions, including: - **The statement maker must be identified**: Section 116 does not permit anonymous hearsay; the maker of the statement must be satisfactorily identified by the court. - **The statement must meet standard admissibility requirements**: Only statements that would be admissible if given in live evidence are permitted; inadmissible evidence, such as that concerning bad character without a valid gateway (ss.100 or 101), cannot be included.

Answer 129

Five key conditions for unavailability (s.116(2)): (a) **Death**: The relevant person is deceased. (b) **Unfitness due to bodily or mental condition**: Unfitness refers to the person’s ability to provide evidence once in court, not their ability to physically attend. It can encompass non-medical conditions, such as trauma from events like sexual assault. (c) **Absence from the UK**: If a witness is outside the UK, the court must find it not reasonably practicable to secure their attendance, either in person or via videolink, weighing practicality and cost against the evidence’s importance. (d) **Witness cannot be located**: Reasonable attempts to locate the witness must have been made and deemed insufficient to secure attendance. (e) **Fear of giving evidence**: If the witness is afraid to give evidence, the court may permit the statement if it is in the interests of justice.

Answer 130

“Unfitness” under s.116(2)(b) relates to a witness’s inability to give evidence due to bodily or mental condition and includes: **The focus on the ability to testify**: This criterion assesses the person’s ability to provide testimony once in court, not simply their physical presence. **Conditions beyond medical impairments**: While unfitness may result from physical or mental health issues, non-medical factors like trauma (e.g., resulting from sexual assault) may qualify as well, recognising the impact of experience on a person’s ability to testify.

Answer 131

For s.116(2)(c) and (d), the CJA 2003 mandates that: **Reasonable practicability of securing attendance**: Courts consider normal steps taken to ensure a witness’s attendance, evaluating factors such as costs and the significance of the testimony. **Both in-person and videolink options**: Subsection 116(2)(c) applies to situations where securing a witness's attendance, either in person or via videolink, is impracticable. **Efforts to locate the witness**: Under s.116(2)(d), a witness who cannot be located must have been searched for to the extent reasonably practicable before admitting their statement.

Answer 132

Section 116(2)(e) broadly defines “fear” for admitting a statement, including: **Wide interpretation of “fear”**: Fear encompasses not only personal physical harm but also the potential harm to others and even financial loss. **Court’s consideration of interests of justice**: Leave is granted if admitting the statement aligns with justice, taking into account: - *The statement’s contents and potential unfairness*: Whether excluding or admitting the statement would disadvantage any party, especially given the challenges of not cross-examining the absent witness. - *Availability of special measures*: Section 19 of the Youth Justice and Criminal Evidence Act 1999 allows measures to aid fearful witnesses in giving testimony. - *Criminal standard proof of fear*: Courts must verify a causative link between the fear and the witness’s refusal to testify to the criminal standard, ensuring that fear is the direct cause of non-attendance. **Varied judicial approaches to fear**: Courts avoid extensive enquiries into the cause of fear (Davies [2007]), but later guidance (Shabir [2012]) suggests maximising efforts to address and potentially test the issue of fear. **Impact of police conduct**: Police should avoid suggesting to witnesses that fear alone could allow their statement to be read, as this may discourage in-person testimony, providing an incentive to claim fear.

Answer 133

The principle of “**intimidation**” prevents a defendant from contesting trial fairness if intimidation of a witness is evident, specifically when: **Intimidation is strongly indicated or proven**: Where the court is satisfied to a high degree of probability that intimidation by the defendant occurred, the right to challenge trial fairness based on inability to cross-examine is restricted. **Application of s.116(5) of CJA 2003**: This subsection aligns with Sellick [2005] and reinforces that clear intimidation impacts trial fairness claims from the defendant.

Answer 134

Section 117 CJA 2003 admits statements in documents from business and other formal settings if: **General conditions are met**: The oral testimony, if provided in court, would be admissible evidence, and s.117(2) requirements are satisfied. **The document’s origin and handling in a professional context**: Requirements include: - Creation or receipt during professional activity: The document must have been produced or received as part of business, trade, profession, or similar roles. - Source reliability: The person providing information should have direct knowledge of the statement’s contents, and information must have been conveyed in a professional context. If these requirements are not met, the court has an exclusionary discretion to make such documents inadmissable. **Widespread applicability**: Medical records and police reports fall under s.117, showing its broad coverage beyond strictly business-related documents.

Answer 135

Documents created for pending or anticipated criminal proceedings are subject to stricter standards under s.117, including: Admissibility depends on either: **Meeting one of the s.116 conditions**: The document must meet one of the five conditions (death, unfitness, absence from the UK, cannot be found, or fear). **Lack of recall**: The information supplier is reasonably unable to remember specifics due to elapsed time or other relevant factors. **Clear distinction for prepared documents**: The court often identifies documents prepared for criminal proceedings based on their context, including witness statements and police investigation notes, as they generally align with this category.

Answer 136

Sections 117(6) and (7) give courts discretion to exclude evidence otherwise admissible under s.117 if reliability is doubted, with considerations including: Evaluation criteria for reliability concerns: - Contents of the statement - Information source quality - Method and context of information transfer - Circumstances of document creation or receipt **Alignment with s.78 PACE 1984**: This exclusion aligns with general exclusionary discretion under PACE 1984 to ensure fair treatment of evidence.

Answer 137

Hearsay evidence can be admitted in the “interests of justice” under s.114(1)(d), with courts considering factors such as: **Probative value and importance**: The statement’s relevance and contribution to understanding other evidence. **Alternative evidence availability**: The impact of other evidence presented on the same matter. **Reliability of the statement and its maker**: Considerations include circumstances of the statement and the reliability of its source. **Feasibility of challenging the statement**: Courts assess the potential prejudice from any difficulties in contesting the hearsay evidence. **Limited use of s.114(1)(d)**: This provision is a cautionary gateway, not to be exploited for evidence outside other exceptions, as seen in cases where trauma or insufficient search efforts fail to qualify under s.116.

Answer 138

A statement is hearsay if: * It is made out of court; and * The person that made it intended another person to believe it; and * It is adduced as evidence of the matter stated (s.114(1) and s.115 Criminal Justice Act 2003). Hearsay may be admissible if: * The witness is unavailable (s.116); * It is a business document (s.117)- however, the court has the discretion to exclude such a business document if it is satisfied that the statement’s reliability is doubtful (s.117(6) and(7)) * It is in the interests of justice to admit it (s.114(1)(d)). Note the court has discretion to exclude unfair prosecution evidence (s.78 PACE).

Answer 139

Section 118 Criminal Justice Act 2003 preserves some common law exceptions to the rule against hearsay. This element considers the following common law exceptions: * Public information; * Evidence of reputation; * Res gestae; * Confessions; * Statements in furtherance of common enterprise; and * Body of expertise.

Answer 140

Admissible public information includes: * Published works dealing with matters of a public nature such as dictionaries and maps; * Public documents such as public registers; and * Records such as court records and public treaties. Also, a person may give evidence of their age and the place of their birth despite the fact that they will have been told these things by someone else.

Answer 141

The common law rule allowing the admission of evidence of reputation as to character, to prove character, is preserved.

Answer 142

For a statement to qualify as res gestae evidence, it must satisfy one of the following: - Made when the declarant was so emotionally overpowered by an event that concoction or distortion can be disregarded. - The statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement; or - The statement relates to a physical sensation or a mental state (such as intention or emotion). **R v Andrews [1978]** provides guidance, requiring that the possibility of concoction be excluded. The event should be so unusual, startling, or dramatic that the statement is an instinctive reaction, made while the declarant’s mind was still dominated by the event. **Jury Direction**: - Jurors must be satisfied that the statement was free from mistake or concoction by the declarant. - Where specific concerns of error arise, the jury’s attention must be directed to them.

Answer 143

In domestic violence cases, the res gestae rule allows for the admission of statements by complainants who do not testify at trial. - Statements made by a complainant in a 999 call or directly to officers after the alleged incident are typically admissible as res gestae. - With the use of body-worn cameras, statements captured immediately post-incident provide reliable evidence, as the prosecutor can present footage showing the complainant’s demeanour and the truthfulness of their statements.

Answer 144

The common law rule to the effect that evidence of confessions is admissible is preserved. There is a broad common law rule that the statements of one party to a common criminal enterprise in furtherance of that enterprise are admissible against all the parties to the joint enterprise. This is of particular significance in conspiracy cases. The common law rule that an expert witness may draw on a body of expertise is preserved. Without this rule, it would be impossible for experts to give evidence of any of the learning within their field, except that which they themselves had contributed to the field.

Answer 145

The common law rule allows statements made by one party in a common criminal enterprise, if made in furtherance of that enterprise, to be admissible against all participants. This is especially relevant in conspiracy cases, as it allows shared intent or actions to be shown through statements made within the joint enterprise.

Answer 146

Common law preserves the rule allowing an expert witness to reference a body of expertise, enabling them to provide evidence from established learning in their field, even if they did not personally contribute to it.

Answer 147

Section 119 of the CJA 2003 provides that a previous inconsistent statement is admissible as evidence if: - The witness admits to having made the statement; or - The witness is proven to have made it. This exception allows such statements to be evidence of the matter stated, expanding beyond pre-CJA rules, which only recognised such statements as evidence of inconsistency.

Answer 148

Sections 120(2) and 120(4) make previous consistent statements admissible as evidence of a matter stated if: - The statements rebut suggestions of recent fabrication, or - Serve as recent complaint evidence. This is a novel exception introduced by the CJA 2003, as prior law only permitted such statements to confirm that they were made.

Answer 149

CJA 2003, s.121 provides that a hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless: a) Either of the statements is admissible under ss.117, 119 or 120; b) All parties to the proceedings so agree; or c) The court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose. The effect of the rule is that multiple hearsay is never allowed through any of the exceptions in s.116 or through any of the preserved common law exceptions in s.118.

Answer 150

Because the maker of a hearsay statement is not present in court to be cross-examined, it is necessary to allow the person’s credibility to be challenged in other ways. CJA 2003, s.124 allows an opposing party to put into evidence anything that could have been put to the witness to challenge credibility in cross-examination. It goes further than that in allowing the admission of evidence as to matters on which the witness's answers in cross-examination would have been final.

Answer 151

CJA 2003, s.125 allows the judge to stop a case where the case depends wholly or partly on hearsay evidence and that evidence is so unconvincing that, considering its importance to the case against the defendant, the defendant’s conviction of the offence would be unsafe. Under those circumstances, the judge must either discharge the jury and order a retrial, or direct the jury to acquit the defendant.

Answer 152

CJA 2003, s.126 allows the court to refuse to admit a statement as evidence of a matter stated if the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence. This is a provision that can be used to exclude hearsay evidence proffered by either the prosecution or the defence.

Answer 153

The jury must be reminded that a hearsay statement that has been admitted at the trial was not given on oath and that it was not tested in cross-examination. The risks of relying on hearsay evidence should be pointed out and the jury should be warned to scrutinise it with particular care. Where the court has concerns about the quality of a particular piece of hearsay evidence, the attention of the jury should be drawn to the limitations on the usefulness of that piece of evidence.

Answer 154

Notice Requirements: Notice must be provided for the introduction of hearsay under Sections: - 114(1)(d) (interests of justice); - 116 (witness unavailable); - 117(1)(c) (document prepared in contemplation of proceedings); or - 121 (multiple hearsay). Notice should be served on the court and other parties, detailing: - The evidence and its admissibility grounds. - Supporting facts, methods of proof, and reasons for admissibility. Timelines: **Prosecution**: Within 20 business days after a magistrates’ court not-guilty plea or 10 business days after a Crown Court plea. **Defence**: As soon as practicable.

Answer 155

A party objecting to the introduction of hearsay evidence must serve an application on the court and every other party as soon as reasonably practicable and in any event not more than 10 business days after either of the following, whichever of those happens last: a) Service of the notice to introduce the evidence; b) Service of the evidence objected to, if that is evidence for which no notice is required; or c) The defendant pleads not guilty. The application must explain: a) Which, if any, facts set out in the notice to introduce the evidence the party disputes; b) Why the evidence is not admissible; and c) Any other objection to the evidence.

Answer 156

Hearsay is admissible if all the parties agree or one of the exceptions apply: * The witness is unavailable (s.116); * It is a business document (s.117) * It falls under a common law exception (s.118); * It is a previous inconsistent or consistent statement of a witness (ss.119 and s.120). If any of the exceptions apply, the court has the discretion to exclude otherwise admissible hearsay if: * A business document etc and the court is satisfied that the statement’s reliability is doubtful (s.117(6) and (7)); * By stopping the case, where the case depends wholly or partly on unconvincing hearsay evidence (s.125); * It is superfluous (s.126); * It is unfair prosecution evidence (s.78 PACE). If the parties don’t agree and the exceptions do not apply, the court has discretion to admit hearsay if it is in the interests of justice to admit it under: s.114(1)(d) in respect of hearsay or s.121(1)(c) in respect of multiple hearsay.