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 value 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 it will be admissible

Answer 20

A confession made by a defendant prior to trial will be admissible in evidence at trial as long as it is relevant to the matter in issue and is not excluded by the court.

Question 21

Confession evidence - Mixed statement

Answer 21

A confession including a statement which is favourable to the defendant. This will also be admissible

Question 22

Confession evidence - Evidence given by a co-defendant

Answer 22

Any evidence given by a co-defendant at trial which implicates a defendant including a confession made by this co-defendant will be admissible in evidence against the defendant. Additionally, if the co-defendant t has pleaded guilty at an earlier hearing and is giving evidence for the prosecution at the trial of the defendant any evidence given implicating the defendant will be admissible

Question 23

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

Answer 23

1) That they did make the confession but it should not be admitted (challenge under S.76(2) 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 24

Confession evidence - S. 76(2)

Answer 24

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 25

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

Answer 25

1) Denying suspect refreshments or appropriate periods of rest between interviews so that they’re not in a fit state to answer
2) Offering them an inducement to confess
3) Misrepresenting the strength of the prosecution case
4) Questioning them in an inappropriate way e.g repeating Qs
5) Questioning a suspect they knew was not in a fit state to answer e.g drunk
6) Threatening a suspect

Question 26

Confession evidence - Differences between S. 76 and S. 78

Answer 26

S. 76 deals exclusively with the court’s power to exclude evidence of a confession made by the defendant S. 76(a) oppression S. 76(b) unreliability breach of Code C. S. 78 the court has a more general discretion to exclude prosecution evidence and they can do this if the court considers that the admission would have such an adverse effect on the fairness of proceedings - S. 78 unfairness.

Question 27

Confession evidence - Determining whether disputed confession evidence is admissible in the Crown Court

Answer 27

This will be determine by the trial judge in the absence of the jury at a voir dire (a trial within a trial) - prosecutor has the burden to prove. If the judge rules the confession to be inadmissible the jury will hear nothing about the confession. If the judge rules it to be admissible then the interviewing officer will give evidence of the confession when giving evidence to the jury

Question 28

Confession evidence - Determining whether disputed confession evidence is admissible in the Magistrates court

Answer 28

If the defendant seeks to exclude evidence of the confession under S. 76 (confession made by oppression or breach of Codes C) magistrates must hold a voir dire. However if just trying to exclude it on the grounds of S. 78 (unfairness) then no voir dire is needed.

Question 29

Character evidence - Bad character - Definition

Answer 29

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

Question 30

Character evidence - Misconduct - Definition

Answer 30

The commission of an offence or other reprehensible behaviour

Question 31

Character evidence - Misconduct - When it will be admissible

Answer 31

If the misconduct by the defendant is connected to the offence with which they have been charged this will not fall within the definition of bad character and will therefore be admissible in evidence without needing to consider whether it satisfies the test for admissibility of bad character

Question 32

Character evidence - Bad character - When it will be admissible

Answer 32

7 gateways:
1) All parties agree to the evidence being admissible
2) Evidence is adduced by defendant or is given in answer to a Q asked in cross-examination
3) It is important explanatory evidence (only prosecution can use this)
4) It is relevant to an important matter in issue (only prosecution can use) - after a prescribed period of time certain convictions are spent
5) It has substantial probative value in relation to an important matter between defendant and a co-defendant
6) It is evidence to correct a false impression given by the defendant and will mislead court/jury
7) The defendant has made an attack on another person’s character

Question 33

Character evidence - Bad character - When it will be admissible - Gateway 4 It is an important matter

Answer 33

Important matters include:
1) The question whether the defendant has a propensity to commit offences of the kind with which he is charged
2) The question whether the defendant has a propensity to be untruthful - R v Hanson - defendants previous convictions will not be admissible to show defendant has been untruthful unless:
a) The manner in which the previous offence was committed demonstrates defendant has propensity
b) The defendant pleaded not guilty and was convicted - if someone says not guilty but then gets charged they were being untruthful

Question 34

Character evidence - Bad character - When the court will not admit evidence

Answer 34

For gateway 4 (important). The court must not admit this evidence if it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Most likely to use this:
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

Adverse inference

Answer 35

An inference can be drawn if a suspect is silent when questioned under caution prior to charge and subsequently relies upon a relevant fact at court which they could reasonably have been expected to mention when questioned

Question 36

Investigation parade and investigation officer

Answer 36

The presence of the investigation officer at the parade is a significant and substantial breach of code D and the court should be asked to exercise its discretion to exclude the disputed identification evidence

Question 37

Special caution

Answer 37

Adverse inferences may be drawn subject to the courts power to exclude the interview record on the grounds of unfairness

Question 38

What happens if someone doesn’t testify

Answer 38

If someone doesn’t testify it can be appropriate for an adverse inference to be drawn from the silence at trial

Question 39

What happens if the defendant does not give evidence at trial

Answer 39

The court may infer from this that the defendant has no defence to the charge or none that would stand up to cross examination

Question 40

Raising a specific defence of an alibi

Answer 40

Whilst a defendant is not obliged to place any evidence before the court to show that they are innocent of the offence with which they have been charged if they raise a specific alibi defence and wish the jury to consider that defence they must place some evidence of that defence before the court - evidential burden

Question 41

Turnbull warning and other evidence

Answer 41

Judge is required to give a Turnbull warning if the quality of the identification evidence is poor but is supported by other prosecution evidence