👩🏽‍⚖️CLP 4: Ev (hearsay, confession, character)

Question 1

What is hearsay?

Answer 1

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

Question 2

Hearsay: what counts as a ‘statement’?

Answer 2

Any representation of fact or opinion made by a person by whatever means (inc a representation made in a sketch/photofit/other pictorial form)

Question 3

Examples of hearsay?

Answer 3

(a) witness repeating at trial what they’d been told by another person;
(b) a statement from a witness being read out at trial instead of the witness attending court to give oral evidence;
(c) a police officer repeating at trial a confession made to them by the defendant;
(d) a business document being introduced in evidence at trial.

Question 4

Hearsay

Types of hearsay

Answer 4

First hand-hasn’t passed through another person
Multiple-has passed through another person (less circumstances where its admissible)

Question 5

Hearsay

What are the 4 grounds for admitting hearsay?

Answer 5

1. Statutory provision
2. Preserved common law exceptions
3. All parties agree
4. Court satisfied its in the interests of justice

Question 6

Hearsay

Grounds for admitting: what are the 6 statutory provisions?

Answer 6

1. Witness unavailable
2. Business and other docs
3. Prev inconsistent statements of a witness
4. Prev consistent statements of a witness
5. Statements of a witness not in dispute
6. Formal admissions

Question 7

Hearsay

Statutory provisions ground: Conditions for witness unavailable hearsay to be admissible?

Answer 7

1. First hand
2. Relevant person identified to courts satisfaction
3. relevant person:
   a. dead
   b. unfit mentally/physically
   c. outside UK +not reasonably practicable to secure attendance
   d. cant be found after taking reasonably practicable steps
   e. is fearful to give oral ev +court gives leave
4. Court considers its in the interests of justice regarding contents, risk of unfairness (difficulty of challenging) and the fact that a special measures direction could be made

Question 8

Hearsay

Stat provision ground: conditions for business and other docs to be admissible?

Answer 8

1. oral ev would be evidence of matter
2. AND
   * Doc (or part w/ statement) created/received in course of trade, business, profession, other occupation, as holder of a paid/unpaid office
   * Person who supplied info had/may reasonably be supposed to have had, personal knowledge of the matter
   * Each person info supplied through received info in course of trade, business, profession, other occupation, as holder of a paid/unpaid office
3. IF prepped for crim proceedings or investigation ALSO: Eelevant person cannot reasonably be expected to have any recollection of the matters dealt with (regarding the length of time since info supplied and all other circumstances)

Question 9

Hearsay

Grounds for admitting: what are the preserved common law exceptions?

Answer 9

a. Confession/mixed statement
b.. As part of Res gestate consider‘ Ackner criteria:
Primary Q: Can possibility of concoction or distortion be disregard?
1. circumstances so unusual/dramatic as to dominate thoughts/no time for reflection
2. Sufficiently spontaneous/mind controlled by event
3. Special features apart from time related to the possibility of distortion
4. Error of facts issue of weight not admissibility (q for jury)

Question 10

Hearsay

Grounds for admitting: what will the court have regard to when considering admitting hearsay under the interests of justice ground? (7)

Answer 10

1. Probative value of statement
2. Other ev that has/can be given
3. How important matter is to case
4. Circumstances statement made
5. Reliability of maker
6. Can oral ev of matter stated be given?
   7.Difficulty in challenging statement/how it would prejudice party facing it

AS A WHOLE: Ds right to a fair trial

Question 11

4

What cases do the procedural rules for admitting hearsay apply to?

Answer 11

1) Interests of justice
2) Witness unavailable to attend court
3) Multiple hearsay
4) s 117 (business docs) for the admission of a written witness statement prepared for use in criminal proceedings

Question 12

What is the procedure for admitting hearsay?

Answer 12

Party wanting to adduce hearsay/oppose other parties app to adduce must:
□ Give notice of intention to court and other parties using set of prescribed forms
□ court will impose time limits for CPS and D to give notice of their intention to adduce hearsay evidence at trial.

Question 13

What can the court do regarding the procedure for admitting hearsay?

Answer 13

□ Dispense of need for notice
□ Allow oral notice
□Shorten/extend time limit for notice

Question 14

When will the admissibility of hearsay be determined if its opposed?

Answer 14

Court will determine admissibility at pre trial hearing:
a. MC: case management/pre trial review/specific hearng to resolve admissibility disputes
b. CC: PTPH/specific pre trial hearing

Question 15

What is a confession

Answer 15

‘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’

Question 16

Are confessions admissible?

Answer 16

Yes as an exception to the hearsay rule

Question 17

If a confession is made in a mixed statement, which part of the statement is admissible?

Answer 17

Whole statement

Question 18

Is a confession made by a co defendant admissible?

Answer 18

• Yes if implicates D
• Can also use to say it was Co-D who did it
• NOT if co-D represents it was obtained via oppression/unreliability UNLESS satisfied on balance of probabilities it wasn’t obtained that way

Question 19

Overview of way to challenge the admissibility of a confession

Answer 19

1. s78
2. s76(2): Did confess but was obtained via:
   a. Oppression
   b. Unreliability
3. Didn’t confess, person claiming is mistaken/fabricated evidence

Question 20

How can a confession be challenged under s76(2)(a) PACE

Answer 20

If confession was/may have been obtained by OPPRESSION of the person who made it, the court MUST exclude unless prosecution can prove beyond a reasonable doubt that the confession was not so obtained

Question 21

How can a confession be challenged under s76(2)(b) PACE

Answer 21

If confession was/may have been obtained in consequence of 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, the court MUST exclude unless prosecution can prove beyond a reasonable doubt that the confession was not so obtained

Question 22

Meaning of a confession being obtained by ‘oppression’?

Answer 22

Exercise of authority/power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc/the imposition of unreasonable or unjust burdens’
Inc: – torture – inhuman or degrading treatment
– use or threat of violence

Question 23

7

Examples of things which may render a confession unreliable

Answer 23

1. Denying refreshment/rest so not in fit state to answer Qs (esp if ill)
2. Inducement to confess
3. Misrepresenting strength of pros case
4. Questioning in inappropriate way (repeating qs a lot/badgering)
5. Questioning sus police should have known was not in a fit state to be interviewed (drink/drugs/condition)
6. Threatening (eg to keep at station until confession)
7. Denied access to legal advice but MUST be a causal link between breach and unreliability of confession (if D had been allowed access, they would not have confessed)

Question 24

When is a confession likely to be excluded under s78

Answer 24

Confessions D accepts making: Mostly access to legal advice
Confessions D denies making
Eg an interview outside the police station likely to be excluded under s78 if police breached by:
1. failing to makeaccurate record of D’s comments
2. failing to give D an opp to view the record of their comments and sign it
3. failing to put this admission or confession to the defendant at start police interview

Question 25

What is a significant statement?

Answer 25

Something said by sus in presence and hearing of police officer/staff outside a formal police interview that appears to be capable of being used in evidence against the suspect in particular a direct admission of guilt: ◊ At/just before time of arrest ◊ On way to station following arrest ◊ At station

Question 26

If a confession is deemed inadmissible, can evidence obtained as a result of it still be admissible?

Answer 26

Wont affect admissibility of any facts discovered as a result of the confession BUT cps wont be able to tell court facts were discovered as a result of confession

Question 27

What is the procedure for challenging the admissibility of confession evidence in the CC?

Answer 27

* At voir dire * Officer it was made to +D will give evidence +interview played if relevant * Pros/defence council will make submissions * If ruled admissible-interviewing officer will give evidence (Defence can still attack credibility of confession)

Question 28

What is the procedure for challenging the admissibility of confession evidence in the MC?

Answer 28

* Ruling sought when interviewing officer gives evidence * If D seeks to exclude, mag hold void dire (consider s76/78 at same time) * Pros must prove beyond reasonable doubt that defence wasn’t obtained as said under s76 * If s78 only, no voir dire needed

Question 29

How can significant statements be excluded?

Answer 29

Rules of admissibility of confessions applies bc falls within def of confession as is adverse to person who made it

Question 30

What is bad character evidence?

Answer 30

Evidence of, or a disposition towards, misconduct (‘the commission of an offence or other reprehensible behaviour’) other than evidence connected with the offence for which the defendant has been charged.

Question 31

Can bad character evidence alone prove guilt?

Answer 31

No ,pros must substantiate case before jury/mag can take bad character into acc

Question 32

7 gateways for admitting character evidence?

Answer 32

A. All parties agree B. Adduced by D in cross indented to elicit it C. Important explanatory ev (pros only) D. Relevant to important matter in issue (propensity to be 1. untruthful/2. commit offences of same kind) E. Substantial probative value in relation to an important matter in issue between D and a co-D F. Correcting false impression G. D has made attack on another character

Question 33

Character: Gateway B, evidence is adduced by D or is given in answer to a question asked in cross- examination and intended to elicit it: why would a D introduce evidence of their own bad character

Answer 33

◊ Only v minor prev convictions and don’t want jury to think they have extensive ◊ Pleaded guilty lots before and NG here

Question 34

When will character evidence be important explanatory evidence (Gateway C)

Answer 34

(a) without it, magistrates/jury would find it impossible or difficult properly to understand the case (b) the value of the evidence for understanding the case as a whole is substantial (more than merely trivial or marginal)

Question 35

How can character evidence be excluded under gateway C (important explanatory evidence)

Answer 35

If est, court has no power to prevent admission but has discretionary power to exclude under s78

Question 36

Character: Which gateways can ONLY be relied on by the prosecution

Answer 36

C: important explanatory evidence D: relevant to an important matter in issue between D and prosecution F: evidence to correct a false impression given by D G: D has made an attack on another person’s character

Question 37

Character: Which gateways can only be relied on by the D

Answer 37

E: it has substantial probative value in relation to an important matter in issue between D and a co-D

Question 38

Character evidence: when will evidence be relevant to an important matter in issue between d and pros (gateway D)

Answer 38

1. Propensity to commit offence of kind they're charged with a. same description b. same category (sex and child u18 OR theft) c. significant factual similarities 2. Propensity to be untruthful a. offence inc untruthfulness eg. fraud by false rep/perjery (NOT just dishonesty) b. plead NG but convicted

Question 39

Character: when will an offence be of the same description (gateway D)

Answer 39

the statement of the offence in a written charge or indictment would be in the same terms

Question 40

Character: when will an offence be in the same category (gateway D)

Answer 40

1. Sexual offences against children under 18 2. Theft category: theft robbery burglary aggravated burglary taking a motor vehicle or conveyance without authority aggravated vehicle taking handling stolen goods going equipped for stealing making off without payment attempts to commit above aiding, abetting, counselling, procuring or inciting above

Question 41

Character: What factors will be considered when deciding if an offence shoes D has propensity to commit the kind of offence they're charged with? (gateway D)

Answer 41

1. Does Ds history of offending show a propensity to commit offences? 2. does that propensity make it more likely D committed the current offence? 3. If so, is it just to rely on convictions of the same description or category, having in mind the overriding principle that proceedings must be fair?

Question 42

Character: what is 'D has propensity to be untruthful' (under gateway D) only used for?

Answer 42

(a) the manner in which the previous offence was committed demonstrates that the D has such a propensity (false representations OR perjury) must be untruthful NOT dishonest (ie. Actively sought to mislead by making false representation eg perjury not offences with dishonesty as element) (b)D pleaded NG to but was convicted following trial at which they testified and was not believed.

Question 43

Character: when will a co-D want to admit evidence under ground E (Substantial probative value for important matter in issue beteen D/Co-D)

Answer 43

1. Other Ds propensity to be untruthful undermines their credibility 2. Other Ds propensity to commit same type of offence makes it more likely they (not D) did it

Question 44

Character: What is a 'false impression' under ground F?

Answer 44

‘ responsible for making an express or implied assertion which is apt to give the court or jury a false or misleading impression about the D’.

Question 45

Character: when will D will be treated as being responsible for making a false impression under gateway F?

Answer 45

If the assertion is: a. made by D in the proceedings b. made by D when being questioned under caution by police c. made by a witness called by D d. made by any witness in cross- examination in response to a question asked by the D that is intended to elicit it; or e. made by any person out of court, and the defendant adduces evidence of it in the proceedings

Question 46

Character: what amounts to an attack on another persons character under gateway G?

Answer 46

Evidence to the effect that the other person has: a. Committed an offence b. Behaved or is deposed to behave in a reprehensible way (court likely to give wide interpretation)

Question 47

How can evidence of the Ds bad character excluded?

Answer 47

ONLY under ground D ( Relevant to important matter in issue ) and G (D made attack on anothers character) Other gateways: automatically admissible if requirements satisfied unless exclude under s78 discretionary power

Question 48

Character: how can character evidence be excluded under ground D? And specifically for proprensity to commit offences of the same kind vs prorensity to be untruthful

Answer 48

Court MUST not admit if on an application by D to exclude it, it appears 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. **Offences of same kind** 1. Do the facts differ? 2. Has a long tome elapsed? 3. oes the propensity make it no more likely that the defendant is guilty of the offence? **Untruthful** Most likely to use powers when (still at their discretion): 1. Convictions more prejudicial than probative 2.Nature of convictions such that jury likely to convict on basis of these convictions alone 3. Being used to support a case which is otherwise weak 4. Prev convictions spent

Question 49

Character: How can evidence be excluded under gateway G?

Answer 49

Court must exclude evidence that would otherwise be admitted under this gateway if, on an application by the defendant, 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

Question 50

What is a 'contaminated' case and how can it be stopped?

Answer 50

witnesses have colluded to fabricate evidence of the defendant’s bad character. To stop: Judge in CC (not MC) can direct jury to acquit/order a retrial in circumstances where evidence of the defendant’s bad character is ‘contaminated’.

Question 51

What is the procedure for admitting bad character evidence?

Answer 51

* If CPS wish to adduce: give notice of intention to court and other parties using prescribed form with written record of convictions * Standard directions-court will impose time limits * D opposes-must apply to court for such evidence to be excluded, app sent to court and other parties (time limit in CrimPR

Question 52

When can bad character evidence of a NON defendant be admitted?

Answer 52

1. It's important explanatory evidence 2. OR It has substantial probative value in relation to a matter which: a. is in issue b. AND is of substantial importance in the context of the case as a whole 3. OR all parties agree

Question 53

What may previous convictions discrediting prosecution witness be?

Answer 53

a. convictions for offences w/ false statement or representation b. convictions where witness pleaded NG but convicted at trial where their version of events was disbelieved Convictions may show just dishonesty (as opposed to untruthfulness)

Question 54

Where credibility is in issue in relation to an important witness, what evidence of their bad character can be admitted?

Answer 54

Previous convictions for offences involving dishonesty, may be admissible as being relevant to the issue of credibility, whether or not the previous convictions involved untruthfulness.

Question 55

What D may want to raise bad character ev to suggest in relation to misconduct or guilt in connection with the current offence?

Answer 55

1. other person has committed some form of misconduct in connection with the current offence (Court will have regard to the nature and extent of the similarities and dissimilarities between each of the alleged instances of misconduct) 2. Other person guilty of current offence ( Court will have regard to the extent to which the evidence shows or tends to show that the same person was responsible each time)