4. Principles & procedures to admit & exclude evidence Flashcards
How is a hearsay statement defined?
A statement, not made in oral evidence, that is relied on as evidence of a matter in it
What are the four categories under which hearsay is admissible?
- Admissible under a statutory provision
- Admissible under a preserved common law exception
- Admissible by agreement
- Admissible in the interests of justice
What are the situations detailed in statutory provisions under which hearsay is admissible?
Cases where a witness is unavailable (first-hand hearsay only)
Business and other documents
What are the 5 conditions of which one must be satisfied in order to permit hearsay in cases where a witness is unavailable?
- Relevant person is dead
- Relevant person is unfit to be a witness
- Relevant person is outside UK and not reasonably practicable to secure their attendance
- Relevant person cannot be found
- Through fear, relevant person does not give oral evidence in the proceedings
What are the preserved common law exceptions under which hearsay is admissible?
Confession evidence
Evidence admitted as part of the “res gestae”
What is the “res gestae”?
Provides that a statement made contemporaneously with an event will be admissible as an exception to the hearsay rule because it couldn’t have been concocted
What is the procedure for admitting hearsay contained within Part 20 CrimPR?
Must serve notice on the other party of intention to rely on such hearsay evidence
In what circumstances do the rules contained within Part 20 CrimPR apply, in regards to the procedure for admitting hearsay?
- Where it is in the interests of justice for the hearsay evidence to be admissible
- Where the witness is unavailable to attend court
- Where the evidence is multiple hearsay
- Whether either the prosecution or the defence rely on s 117 for the admission of a written witness statement prepared for use in criminal proceedings
What is the definition of confession evidence?
Any statement made 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
Is confession evidence admissible?
Yes, under s 76(1) PACE
If evidence given by a co-defendant which implicated a defendant admissible?
Yes
Is a pre-trial confession made by one defendant which also implicates another defendant admissible against both defendants?
No, only against the defendant which made the confession
Under which PACE grounds would the defence’s solicitor attempt to get confession evidence excluded from trial?
S 76 PACE - obtained in circumstances rendering it unreliable
AND
S 78 PACE - to admit it would have such an adverse effect on the fairness of the proceedings
Under s 76 PACE, if a court finds a confession to have been obtained in circumstances rendering it unreliable, what obligation do they have?
They are under a duty to exclude unreliable evidence (i.e. does not have a discretion)
How will a defendant usually challenge admissibility under s 76 PACE?
Either oppression
Or in consequence of something said/ done which was likely in circumstances existing at the time to rend unreliable any confession
How will a defendant usually challenge admissibility under s 78 PACE?
Will claim it was untrue, or deny making it at all
What is the procedure in the Crown Court for challenging admissibility of confession evidence?
A voir dire will be held (trial within a trial) in which the judge will decide whether the confession evidence is admissible
Does the court have to exclude evidence under s 78 PACE?
No - court has discretion
What is the procedure in the magistrate’s court for challenging admissibility of confession evidence?
The ruling as to admissibility will normally be sought when interviewing officer gives evidence
What is the definition of bad character under s 98 CJA?
Evidence of, or a disposition towards, misconduct
If alleged misconduct by the defendant is connected to the offence which they are being charged with, does this call within the definition of bad character?
No, therefore is admissible
What are the 7 gateways?
Ways in which evidence of a defendant’s bad character may be raised at trial
When can gateway (a) be used in order to admit evidence of bad character?
All parties to the proceedings agree to the evidence being admissible
When can gateway (b) be used in order to admit evidence of bad character?
The defendant introduce evidence of their own bad character
When can gateway (c) be used in order to admit evidence of bad character, and who by?
When it is important explanatory evidence - can only be used by prosecution
ONLY important explanatory evidence if without it the court will find it impossible or difficult to properly understand other evidence in the case, and its value for understanding the case as a whole is substantial
When can gateway (d) be used in order to admit evidence of bad character?
When it is relevant to an important matter in issue between the defendant and the prosecution
What 2 important matters would be identified through inclusion of bad character evidence under gateway (d)?
- Defendant’s propensity to commit offences of the kind with which they’re charged - i.e. of same description, or same category
- Defendant’s propensity to be untruthful - e.g. conviction after a not guilty plea, convictions for perjury or fraud
What are the three questions which must be addressed from R v Hanson, Gilmore & Pickstone, in relation to the inclusion of evidence under gateway (d)?
- Does the defendant’s history of offending show a propensity to commit offences?
- If so, does that propensity make it more likely that the defendant committed the current offence?
- If so, is it just to rely on convictions of the same descriptions or category, having in mind the overriding principle that proceedings must be fair?
From R v Hanson, Gilmore & Pickstone, what criteria must be met in order for a defendant’s previous convictions to be admissible to show that the defendant has a propensity to be untruthful?
- The manner in which the previous offence was committed demonstrates that the defendant has such a propensity (because they had made false representations); or
- The defendant pleaded not guilty to the earlier offence but was convicted following a trial at which the defendant testified and was not believed
When can gateway (e) be used in order to admit evidence of bad character, and who by?
May be used by one defendant to admit evidence of another defendant’s bad character
What 2 important matters would be identified through inclusion of bad character evidence under gateway (e)?
- Propensity to commit offences of the same kind
- Propensity to be untruthful
When can gateway (f) be used in order to admit evidence of bad character, and who by?
To give evidence to correct a false impression given by the defendant, and may only be used by the prosecution
When can gateway (g) be used in order to admit evidence of bad character?
When the defendant has made an attack on another person’s character
Which gateways does 101(3) apply to, and what is the effect?
Gateways (d) and (g)
Court MUST exclude evidence on which prosecution propose to rely if admission of evidence would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted
What is the procedure for admitting evidence of bad character?
Notice must be given to both court and other parties
Court will impose time limits to serve notice
Defendant must apply to court for exclusion of evidence
Under what grounds can the bad character of persons other than the defendant be admitted, under s 100(1)?
Gateway (a) When it is important explanatory - only applicable if court would not understand evidence without it, and it provides substantial value
OR
Gateway (b) When it has substantial probative value - e.g. proves witness is lying
OR
Gateway (c) All parties agree to it
