9) Procedures to admit and exclude evidence

Question 1

Requirements needed to be satisfied for the jury/magistrates to take a piece of evidence into account

Answer 1

1) Evidence must be relevant to the facts in issue in the case
2) Evidence must be admissible

Question 2

Adverse inferences from silence

Answer 2

Court is likely to draw a negative conclusion from the defendant’s silence when interviewed at the police station. Namely that
the defendant remained silent when interviewed by the police because they had no adequate explanation for their conduct, and that they fabricated the facts which make up their defence
at trial after being charged by the police. Can also be drawn at trial if they fail to answer something which provides for an explanation

Question 3

Prosecution asking court to draw an adverse inference

Answer 3

Before the prosecution may ask the court to draw an adverse inference from a defendant’s silence
when interviewed by the police, the prosecution must first have adduced other evidence of the
defendant’s guilt.

Question 4

When can an adverse inference not be drawn

Answer 4

The court is not allowed to draw an adverse inference from a defendant’s
silence if that silence occurred at a time when the defendant had not been allowed the opportunity to consult a solicitor to obtain independent legal advice. Or if a written statement is given

Question 5

Conditions which have to be satisfied before adverse inferences can be drawn from a defendant’s silence in police interview

Answer 5

1) Interview had to be under caution
2) Defendant had to fail to mention any fact later relied on in his defence at trial
3) Failure to mention this fact had to occur before defendant was charged
4) the fact which the defendant failed to mention had to be a fact which the defendant could reasonably have been expected to mention

Question 6

Hearsay evidence - Definition

Answer 6

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

Question 7

Hearsay evidence - Examples

Answer 7

1) A witness repeating at trial what they had been told by another person
2) A statement from a witness being read out at trial instead of the witness attending court to give oral evidence
3) A police officer repeating at trial a confession made to them by the defendant
4) A business document being introduced in evidence at trial

Question 8

Which grounds are most likely to be used for hearsay

Answer 8

Ground (a) where a witness is unavailable S.116 and Ground (d) it’s in the interests of justice for it to be admissible S. 114(d)

Question 9

Hearsay evidence - When it will be admissible

Answer 9

It will be admissible if it falls within one of 4 categories:
a) Any provision or any other statutory provision makes it admissible
b) Any rule of law preserved by S. 118 makes it admissible
c) All parties to the proceedings agree to it being admissible
d) The court is satisfied that it is in the interests of justice for it to be admissible

Question 10

Hearsay evidence - Ground (a) - Any provision or any other statutory provision makes it admissible - Statutory provisions

Answer 10

• Cases where a witness is unavailable
• Business and other documents
• Previous inconsistent statements of a witness
• Previous consistent statements by a witness
• Statements from a witness which are not in dispute
• Formal admissions

Question 11

Hearsay evidence - Ground (a) - Any provision or any other statutory provision makes it admissible - Where a witness is unavailable to attend court

Answer 11

A statement can be admissible under this section only if the person who made the statement would have been allowed to give oral evidence at trial of the matters contained in the statement

Question 12

Hearsay evidence - Ground (a) - Any provision or any other statutory provision makes it admissible - Where a witness is unavailable to attend court - Conditions (S.116(2)

Answer 12

• The relevant person is dead
• The relevant person is unfit to be a witness because of a bodily or mental condition
• The relevant person is outside the UK and it is not reasonably practicable to secure his attendance
• The relevant person cannot be found
• Through fear the relevant person does not give oral evidence in the proceedings
• Only first-hand hearsay

Question 13

Hearsay evidence - Ground (a) - Any provision or any other statutory provision makes it admissible - Where a witness is unavailable to attend court - S. 116(4)

Answer 13

Requires the court to give leave only if it considers that the statement ought to be admitted in the interests of justice having regard to the contents, to any risk of unfairness (in particular how difficult it would be to challenge the statement) and the fact that a special measures direction could be made

Question 14

Hearsay evidence - Any provision or any other statutory provision makes it admissible - Business and other documents

Answer 14

• The document must have been created or received by a person in the course of a trade, business, profession or other occupation
• The person who supplied the info. contained in the statement had or may reasonably be supposed to have had personal knowledge of the matters dealt with
• Both first hand and multiple hearsay

Question 15

Hearsay - Ground (b) - Any rule of law preserved by S. 118

Answer 15

Preserves several common law exceptions to the rule excluding hearsay evidence. The most important are:
1) Evidence of a confession or mixed statement made by the defendant
2) Evidence admitted as part of the res gestae

Question 16

Hearsay - Ground (b) - Any rule of law preserved by S. 118 - Confession Evidence

Answer 16

Any confession made by a defendant will be admissible in evidence against him even if it is hearsay.

Question 17

Hearsay - Ground (b) - Any rule of law preserved by S. 118 - Res Gestae

Answer 17

A statement made contemporaneously with an event will be admissible

Question 18

Hearsay - Ground (d) S.114(1)(d) - The court is satisfied that it is in the interests of justice for it to be admissible

Answer 18

Court must have regard to factors:
a) How much value the statement has in relation to a matter in issue in the proceedings or how valuble it is to understand other evidence in the case
b) What other evidence can be given on the matter
c) How important the matter/evidence is in the context of the case as a whole
d) The circumstances in which the statement was made
e) How reliable the maker of the statement appears to be

Question 19

Hearsay - Procedural rules to be followed if a party seeks to rely on hearsay evidence at trial - Part 20 Rules - What a party needs to do to adduce/oppose hearsay

Answer 19

Parties wishing to do this must give notice of its intention to do this both to the court and to the other parties. Notice must be given using a set of prescribed forms. However there is a provision in the act which allows the court to dispense with the requirement to give notice of hearsay evidence to allow notice to be give orally

Question 20

Confession evidence - When a defendant may challenge admissibility of this confession

Answer 20

1) That they did make the confession but it should not be admitted (challenge under S.76 PACE)
2) S.78 court’s general discretion to exclude evidence
3) They did not make the confession and the person who claims that the confession was made was either mistaken as to what they heard or has fabricated evidence

Question 21

Confession evidence - S. 76

Answer 21

Can only be used if they accept that they made the confession. It will be inadmissible if it was obtained:
a) By oppression of the person who made it
b) In consequence of anything said or done which was likely to render unreliable any confession
Will not be allowed to be used unless the prosecution prove beyond a reasonable doubt that it was not obtained in these circumstances

Question 22

Confession evidence - S. 76(2)(a) Oppression

Answer 22

1) Torture, inhuman or degrading treatment and use of threat or violence
2) Exercise of authority or power in burdensome way
3) Unjust or cruel treatment e.g (Denying refreshments or appropriate periods of rest between interviews so that they’re not in a fit state to answer)
4) Offering them an inducement to confess
5) Misrepresenting the strength of the prosecution case
6) Questioning them in an inappropriate way e.g repeating Qs
7) Questioning a suspect they knew was not in a fit state to answer e.g drunk
8) Hostile and aggressive questioning
9) Failure to caution or provide appropriate adult or to record
10) Failure to comply with PACE in relation to detention

Question 23

Confession evidence - S. 76(2)(a) Oppression - Example

Answer 23

1) If the police put to the defendant that they committed the act e.g ‘you stole the items’. If they put it to them multiple times especially after a clear assertion of the defendant’s defence. - bullying and the police aren’t even interviewing them at this point
2) Failing to end the interview if there are no further questions that the police could reasonably conduct
The above constitutes hostile and aggressive questioning
3) If they shout - bullying
4) If they ask for asprin then it is clear they’re unfit to be interviewed and that it should end and they don’t end it.

Question 24

Confession evidence - S. 76(2)(b) Unreliable

Answer 24

Something must have been said or done which might have caused the defendant to make a confession for reasons other than the fact that they had actually committed the offence. E.g denial of a solicitor and the factors for oppression - what the police said and did during the interview rendered it unreliable.

Question 25

Bad character - Definition

Answer 25

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

Question 26

Bad character - When will the defence want to introduce it

Answer 26

Anything involving dishonesty on part of the prosecution witness to discredit evidence

Question 27

Bad character - When it will be admissible

Answer 27

7 gateways:
(a) - All parties agree to the evidence being admissible
(b) - Evidence is adduced by defendant or is given in answer to a Q asked in cross-examination
(c) - It is important explanatory evidence (only prosecution can use this)
(d) It is relevant to an important matter in issue between defendant and prosecution (only prosecution can use)
(e) - It has substantial probative value in relation to an important matter between defendant and a co-defendant
(f) - It is evidence to correct a false impression given by the defendant
(g) The defendant has made an attack on another person’s character

Question 28

Bad character - Which gateways are most important

Answer 28

Most likely to be adduced under C, D, F or G.
C and D are most important

Question 29

Bad Character - Gateway C - Important Explanatory evidence

Answer 29

Without it the court or jury would find it impossible or difficult properly to understand other evidence. E.g prosecution may argue that without knowledge of previous convictions the court might find it impossible or difficult to under defence or lack of dishonest intent

Question 30

Bad character - Gateway (d) - It is an important matter between parties

Answer 30

Important matters include:
1) The defendant has a propensity to commit offences of the kind with which he is charged and there’s similarities between the offences
2) The defendant has a propensity to be untruthful

Question 31

Bad character - When the court will not admit evidence under gateway (d) - Propensity to commit an offence of the same kind isn’t established

Answer 31

1) The defendant’s history of offending does not show a propensity to commit offences - how many offences do they have
2) The propensity does not make it more likely that the defendant committed the current offence
3) It is not just to rely on convictions - they are not using factual circumstances to show significant similarities between current offence and previous convictions
4) do the factual circumstances of the previous convictions differ from the facts of the current offence

Question 32

Bad character - When the court will not admit evidence under gateway (d) - Propensity to be untruthful isn’t established

Answer 32

Need to show that:
1) that they didn’t make false representations to actively deceive or mislead
2) is it not suggested that the defendant’s case is in any way untruthful?

Question 33

Bad Character - When will the court not admit evidence under gateway (d) - S. 101(3)

Answer 33

First try and show that propensity hasn’t been established for both limbs and then argue under S.101(3) that the court MUST exclude evidence if satisfied it would be unjust to admit it as it would have such an adverse effect on the fairness of the proceedings. They will use these in 3 situations

Question 34

Bad character - When the court will not admit evidence under gateway (d) - Excluding under S. 101(3) Situations

Answer 34

1) When the nature of a defendant’s previous convictions is such that the jury are likely to convict a defendant on the basis of these convictions alone
2) When the prosecution seeks to adduce previous convictions to support a case which is weak
3) When the defendant’s previous convictions are spent

Question 35

S. 78 PACE

Answer 35

Court’s discretion to exclude evidence. Need to look at breaches of PACE