4.2 Excluding confessions - applications

Question 1

What is a hearing to decide the factual issues in relation to an application to exclude evidence called?

Answer 1

R v Liverpool Juvenile Court, ex p R [1988] QB 1

A voir dire - “trial within a trial”.

Question 2

What is the procedure when the defence tries to exclude evidence?

Answer 2

Ajodha v The State [1982] AC 204

1. The defence notifies the prosecutor;
2. The prosecution cannot rely on the evidence in its opening speech; and
3. The judge will conduct a trial on the voir dire at an appropriate time.

Question 3

What safeguard prevents the jury from being biased by hearing excluded evidence at the voir dire?

Answer 3

Davis [1990] Crim LR 860
Usually in the absence of the jury.

Ajodha v The State [1982] AC 204
However, in common law applications the defence can choose to argue the voir dire in front of the jury.

Question 4

In what situation is the defendant not entitled to a voir dire for the court to decide whether evidence is admissible?

Answer 4

Hayter v L [1998] 1 WLR 854

On common law applications in the Magistrates Court. However, sometimes they may be convenient.

Question 5

When must applications to exclude under s.76(2) PACE be made?

Answer 5

R v Liverpool Juvenile Court, ex p R [1988] QB 1

Before the evidence is adduced in trial.

Question 6

When can applications to exclude evidence using the court’s common law discretion be made?

Answer 6

R v Liverpool Juvenile Court, ex p R [1988] QB 1

At any time during the trial.

Question 7

Does the court have discretion to refuse to hear a voir dire on the admissibility of evidence?

Answer 7

R v Liverpool Juvenile Court, ex p R [1988] QB 1

No. PACE has changed the old common law position in this regard.

Question 8

In what document must D give advance notice to the prosecutor of its intention to object to the admissibility of evidence?

Answer 8

Section 6A(1)(d) Criminal Procedure and Investigations Act 1996
[in the defence statement]

Question 9

What are the stages in an application to exclude evidence?

Answer 9

1. Defence statement - notice to CPS - D sets out objections including the provision relied on;
2. PTPH or Further Case Management Hearing - the judge directs the parties to prepare skeleton arguments and sets a date for voir dire;
3. Voir dire.

Question 10

When must the defendant serve its skeleton argument for a hearing on its application to exclude evidence in the Magistrates Court?

Answer 10

Preparation for Effective Trial form

At least 14 days before the trial.

Question 11

When must the prosecution serve its skeleton argument for a hearing on the defendant’s application to exclude evidence in the Magistrates Court?

Answer 11

Preparation for Effective Trial form

At least 7 days before the trial.

Question 12

When is an application to exclude evidence prior to trial most suitable?

Answer 12

1.
If the prosecution needs to know if the confession is admissible in order to open its case in a full and meaningful way, or
2.
if the result of the legal argument will be decisive as to whether the prosecution can continue with its case, such as where the confession is the only significant evidence in its possession.

Question 13

When might the defence object to evidence during the trial?

Answer 13

Where there is no pressing need to deal with it at the outset.
When the prosecution is on notice that the defence are challenging the admissibility of evidence, it is incumbent on it not to adduce that evidence before the court or to refer to it in an opening speech.

Question 14

When should the Magistrates Court consider s.76 applications?

Answer 14

As a preliminary issue.

Question 15

What happens during a voir dire?

Answer 15

The prosecution will adduce evidence.

The defence may call evidence.

The judge makes a finding of fact.

Question 16

What happens if the judge fails to call a voir dire where evidence is challenged?

Answer 16

It is likely that the conviction will be quashed because the judge cannot be satisfied beyond reasonable doubt that the confession was not unreliable or obtained through oppression.

Question 17

What happens in the Magistrates Court if the judge decides to exclude evidence?

Answer 17

Hayter v L [1998] 1 WLR 854

The judge must put it from her mind.

Question 18

When should the Magistrates Court consider s.78 applications?

Answer 18

The magistrates have a discretion to hear all the evidence in the usual way and decide upon its admissibility at a later stage.

Question 19

When should the Magistrates Court consider applications made together under ss.76 and 78?

Answer 19

Together, as a preliminary issue.

Question 20

If a judge rules that evidence is admissible, is that the end of the matter?

Answer 20

No. The defence can still attack the evidence for being oppressive or unfair or unreliable in front of the jury.