Criminal Practice 4 - Procedures to admit / exclude evidence (hearsay, confession).

Question 1

Hearsay Evidence

Answer 1

-

Question 2

‘Hearsay statement’

Answer 2

S 114(1) CJA 2003 as ‘statement , not made in. oral evidence, that is relied on as evidence of a matter in it.

Question 3

‘Statement’

Answer 3

‘Any representation of fact or opinion made by a person by whatever means; and it includes a representation made in sketch, photofit or other pictorial form.

Purpose, or one of the purposes, of the person making the statement must appear to the court to have been to cause another person to believe that the matter, or to cause another person to act on the basis that the matter is as stated.

If person not intended for others to read diary entries then not hearsay evidence (R v Knight 2007).

Question 4

Examples

Answer 4

a) witness repeating at trial what they had 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 5

First hand or multiple hearsay - will be one or the other.

Question 6

First hand

Answer 6

Repeating a statement that the person testifying heard someone make.

Question 7

Multiple

Answer 7

Passed between multiple people from the original person testifying.

Question 8

Grounds for admitting hearsay evidence

Answer 8

Admissible if it falls into one of four categories :

S 114 CJA 2003 :

(1) in criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if :

a) any provision of this chapter or any other statutory provision makes it admissible

b) any rule of law preserved by section 118 making 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 9

Hearsay under a statutory provision

Answer 9

s 114 (1) (a) -

All references to CJA 2003

a) causes where a witness is unavailable s 116

b) business and other documents s 117

c) previous inconsistent statements of a witness s 119

d) previous consistent statements by a witness s 120

e) statements from a witness which are not in dispute s9 and

f) formal admissions s 10.

Question 10

Cases where a witness is unavailable to attend court

Answer 10

S 116 CJA 2003 :

(1)In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—

(a)oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,

(b)the person who made the statement (the relevant person) is identified to the court’s satisfaction, and

(c)any of the five conditions mentioned in subsection (2) is satisfied.

(2)The conditions are—

(a)that the relevant person is dead;

(b)that the relevant person is unfit to be a witness because of his bodily or mental condition;

(c)that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;

(d)that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken;

(e)that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.

S116 gives the court to give leave only if it consider that the statement ought to be admitted in the interests of justice having regard to the contents, to any risk of unfairness and the fact that a special measures direction could be made.

Only applies to FIRST HAND

Question 11

Business and other documents

Answer 11

S 117 CJA 2003

117Business and other documents
(1)In criminal proceedings a statement contained in a document is admissible as evidence of any matter stated if—

(a)oral evidence given in the proceedings would be admissible as evidence of that matter,

(b)the requirements of subsection (2) are satisfied, and

(c)the requirements of subsection (5) are satisfied, in a case where subsection (4) requires them to be.

(2)The requirements of this subsection are satisfied if—

(a)the document or the part containing the statement was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office,

(b)the person who supplied the information contained in the statement (the relevant person) had or may reasonably be supposed to have had personal knowledge of the matters dealt with, and

(c)each person (if any) through whom the information was supplied from the relevant person to the person mentioned in paragraph (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office.

Both first and multipole in certain documents admissible in evidence.

Question 12

Statements prepared for use in criminal proceedings

Answer 12

If prepared for ‘the purposes of pending or contemplated criminal proceedings or for criminal investigation the requirements for s 117 (5) must be satisfied.

Requirements satisfied if :

a) any of the five conditions mentioned in s 116 (2) is satisfied. (Dead, missing etc….).

b) the relevant person cannot reasonable be expected to have any recollection of the matters dealt with in the statement (having regard to the length of time since he supplied the information and all other circumstances).

Question 13

Hearsay admissible under a common law exception s114(1)(b) -

Answer 13

s 118 (1) CJA 2003 - several common law exceptions to the rule excluding hearsay evidence. Most important exceptions preserved are :

(a) evidence of a confession or mixed statement made by the defendant

b) evidence admitted as part of the res gestae

Question 14

Confession evidence

Answer 14

s 76 (1) PACE 1984 -

‘in any proceedings a confession made by an accused person may be given in evidence against him insofar as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.

Question 15

Evidence admitted as part of the res gestae

Answer 15

Statement made contemporaneously with an event will be admissible as the spontaneity of the statement meant any possibility of concoction can be disregarded.

‘Ackner criteria’ -

(1) Judge asks himself : Can the possibility of concoction or distortion be disregarded ?

(2) to answer the judge first has to consider the circumstances in which the statement was made to satisfy the event was so unusual or dramatic as to dominate the thoughts of the victim so that his utterance was an instinctive reaction to the event, giving no real opportunity for reasoned reflection.

(3) - in order for the statement to be sufficiently spontaneous it had to be so closely associated with the event which had excited the statement that it could fairly be said that the mind of the declarant was controlled by the event.

(4) - Special factors which relate to the possibility of distortion ?

(5) - as to the possibility of error in facts narrated in such a statement.

Question 16

Hearsay admissible by agreement s 114(1)(c) -
All parties to case agree

Question 17

Hearsay admissible in the interests of justice s114(1)(d)

Answer 17

‘Catch all’. Gives court wide discretion to admit hearsay evidence which is cogent and reliable.

Must have read to the factors in s 114 (2) :

a) how much probative value the statement has ( assuming it is true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case

b) what other evidence has been or can be given on the matter of evidence mentioned in para (a)

c) how important the matter of evidence mentioned in (a) 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

f) how reliable the evidence of the making of the statement appears to be.

g) whether oral evidence of the matter stated can be given and why

h) the amount of difficulty involved in challenging the statement: and

j) the extent to which that difficulty would be likely to prejudice the party facing it.

The court will have regard to the defendant’s right to a fair trial (Article 6 ECHR).

R v Taylor (2006) -
to reach a proper conclusion on whether this evidence should be admitted under s 114 (1)(d) the trial judge was required to exercise his judgement in light of the factors above, give consideration to them and to any other factors he considered relevant and then to assess their significance and weight that in his judgement they carried. No need to reach a specific conclusion.

Maher v DPP (2006)
‘substantial and reliable’ evidence

R v Z (2009) -
sexual victim did not want to give evidence as she had moved on. Evidence was not admissible as would be unfair to the defendant.

Question 18

Procedure for admitting hearsay

Answer 18

Part 20 of the Crime PR

These rules apply where :

a) it is in the interests of justice for the hearsay evidence to be admissible s 114 (1)(d)

b) the witness if unavailable to attend court s 116

c) evidence is multiple hearsay or

d) either the prosecution or the defence rely on s 117 for the admission of a written witness statement prepared for use in criminal proceedings (Crim PR, r 20.2).

Hearsay evidence which is admissible on any other grounds, procedural rules contained do not apply (R20). If D made confession at time of arrest P20 will not apply should CPS seek to rely on arresting officer reporting details of that confession when officer gives evidence at D’s trial.

Will also not apply if hearsay evidence is admissible under any of the preserved common law exceptions. If the hearsay evidence does not fall within one or more of the four sections above the party seeking to rely on that evidence will not need to serve on the other party notice of its intention to rely on such evidence.

A party wishing to adduce hearsay evidence to which Part 20 applies or to oppose another parties application to introduce such evidence must give notice of its intention to do this both to the court and to the other parties in the case (Crime PR r 20.2).

Will require notice on prescribed forms.

Time limits set out in Criminal PR:

r 20.2(3) for CPS

(3) A prosecutor who wants to introduce such evidence must serve the notice not more than—

(a)20 business days after the defendant pleads not guilty, in a magistrates’ court; or

(b)10 business days after the defendant pleads not guilty, in the Crown Court.

Crim PR r 20.2(3) for D :

(4) A defendant who wants to introduce such evidence must serve the notice as soon as reasonably practicable.

HOWEVER

Rule 20.5 allows the court to dispense with the requirements to give notice of hearsay evidence, to allow notice to be given orally rather thins in writing and to shorten or extend the time limits for giving notice.

Question 19

Determine admissibility of hearsay evidence

Answer 19

When application to adduce hearsay by CPS and opposed by other side court will usually determine admissibility at a pre-trial hearing.

Mags - case management hearing / pre-trial review

Crown court - PTPH or specific pre-trial hearing.

Question 20

Confession Evidence

Answer 20

-

Question 21

Definition

Answer 21

’ Any statement wholly or partly adverse to the person who made it, whether to a person in authority or not and whether made in words or otherwise ( PACE 1984 s 82 (1) ). ‘

Anything said by a defendant that constitutes an admission of any element of the offence with which they are subsequently charged, or that is in any way detrimental to their case will satisfy the definition of a confession.

Question 22

Admissibility

Answer 22

Admissible via s76(1) of PACE 1984 :

In any proceedings a confession made by an accused person may be given in evidence against him insofar as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.

Admissible to prove the truth of its contents. An exception to the hearsay rule.

Mixed statements (partly adverse) still admissible.

Question 23

Co-accused

Answer 23

Confession made by a defendant admissible against a co-defendant.

Co-defendant evidence at trial is admissible.

If the co-D also pleaded guilty earlier and gives evidence implicating D it is also admissible.

Pre-trial confession made by one which implicates the other is admissible only against the defendant who makes the confession. s76 (1).

Question 24

Challenging admissibility of confessions

Answer 24

May challenge by arguing :

a) they did not make the confession so it should not be admitted

b) that they did not make the confession, and that there person who claims that the confession was made was either mistaken as to what they heard or has fabricated evidence of the confession.

Question 25

Challenging admissibility under s 76 PACE 1984

Answer 25

s 76 (2) :
If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained :

a) by oppression of the person who made it : or

b) in consequence of anything said or done which was likely, in the crircustanceds existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.

If D argues obtained in this manner, the court must not allow unless the prosecution proves beyond a reasonable doubt it was not so obtained.

Question 26

Oppression

Answer 26

Section 76)8) PACE -

‘torture, inhuman or degrading treatment and the use of threat of violence’

R v Fulling 1987 - the exercise of authority or power in a burdensome, harsh or wrongful manner, unjust or cruel treatments of subjects, inferiors, the imposition of unjust burdens/

R v Paris (1993) - bullied and hectored into making a confession.

Question 27

Unreliability

Answer 27

For court to exclude under s76(2)(b) something must be said or done which in the circumstances that existed at that time would render unreliable any confession which the defendant made.

Does not require deliberate misconduct. Usually a breach of Code C PACE.

Examples of this :

a) denying a suspect refreshments or appropriate periods of rest between interviews so that the suspect is either not in a fit state to answer properly or make admissions to get out to obtain rest or refreshment (particularly relevant if they are ill or tired).

b) offering a suspect an inducement to confess. Lesser sentence, leave police station quicker etc..

c) Misrepresenting the strength of the prosecution case. ‘No point in denying guilt’

d) Questioning a suspect who the police should have known was not in a fit state to be interviewed due to drink or drugs.

e) questioning a suspect in an innappropriate way. ‘Badgering’

f) Threatening a suspect, e.g. telling them they will remain there until they make a confession.

MUST BE A CAUSAL LINK BETWEEN THE BREACH AND THE UNRELIABILITY OF THE CONFESSION SUBSEQUENTLY MADE.

Question 28

Co-defendant relying on a confession made by another defendant?

Answer 28

S 76A (1) PACE 1984 - allows a D to adduce evidence that a co-defendant has made a confession where both Ds plead not guilty and are tried jointly.

However co-d can represent under s76(2) if confession obtained by a result of oppression or in circumstances rendering it unreliable, the court must exclude the evidence.

Court satisfied on balance of probabilities that confession was not obtained by oppression or in circumstances unreliable in order for it to be admissible.

Question 29

Challenging admissibility under S78 PACE 1984

Answer 29

More general discretion.

Includes confession.

If the admission of evidence ( or confession) would have such an adverse effect on the fairness of proceedings that it ought not to be admitted.

Question 30

Confessions D accepts having made (S78)

Answer 30

Breached PACE 1984. If accept confessions true then court only likely to exercise if the breach if SIGNIFICANT AND SUBSTANTIAL (R v Keenan 1990).

R v Walsh (1989) denial of access to legal advice under Code C - would lead to court exercising its discretion.

Question 31

Confessions D denies having made

Answer 31

Sometimes D alleged to confess ‘outside’ the police station.

Likely to be excluded under s78 if police have breached Code C PACE 1984 :

Failing to make an accurate record of D’s comments

Failing to give D an opportunity to view the record of their comments and to sign this record as being accurate.

Failing to put this admission or confession to the defendant at the start of his subsequent interview at the police station.

Question 32

Significant Statements

Answer 32

Confessions outside the police station.

Happens :
before or at time of arrest

on the way to the station following arrest

whilst at the station (being booked in etc..)

Falls within statutory definition of a confession.

Para 11.4 Code C requires police at beginning of a formal interview after cautioning the suspect to put to them any significant statements and to ask them whether they confirm or deny that earlier statement and if they want to add anything further.

Question 33

Procedure for challenging admissibility

Answer 33

-

Question 34

Crown court

Answer 34

Determined by trial judge in absence of the jury ( voir dire * trial within a trial).

If made at police station interviewing officer will give evidence. Audio likely to be played.

If outside, officer and D will give evidence.

Prosecution and defence will then make submissions as to why it is admissible. Judge will then make ruling.

If inadmissible, jury will hear nothing about the confession. If admissible interviewing officer will give evidence of confession when giving evidence to the jury.

Question 35

Magistrate’s court

Answer 35

Normally sought when interviewing officer gives evidence.

If D wishes to exclude under s 76 (2) mags must hold void dire.

If relying on s78 no obligation to hold.
Will be left to end of close of prosecution case (if D wishes to make submission of no case to answer) or at the end of the trial when D’s solicitor makes closing speech.

Question 36

Evidence obtained from an inadmissible confession.

Answer 36

If inadmissible will not prevent admissibility of facts from confession.

E.g. weapons, items.

Question 37

Character Evidence

Answer 37

-
All references (or most) to CJA 2003

Question 38

‘Bad character’

Answer 38

S98 ‘evidence of or a disposition towards misconduct’ other than evidence connected with the offence for which the defendant has been charged.

‘Misconduct (s 112) - commission of an offence or other reprehensible behaviour’.

If connected to the offence it will be admissible.

Question 39

7 Gateways s 101 (1) CJA 2003

Answer 39

Can be through one or more ;

a) all parties to the proceedings agree to the evidence being admissible

b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it

c) it is important explanatory evidence

d) it is relevant to an important matter in issue between the defendant and the prosecution

e) it has substantial probative value in relation to an important matter in issue between the 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 40

Gateway (a) - all parties to the proceedings agree to the evidence being admissible

Answer 40

CPS and D agree.

Question 41

Gateway (b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it

Answer 41

D introduces own evidence of bad character.

May adduce as they have relatively minor previous convictions and do not want the mags or jury to think they are hiding such evidence.

If pleaded guilty to previous but not guilty to this.

R v Paton (2007) - D said items were from previous offence not current

Question 42

Gateway (c) - it is important explanatory evidence

Answer 42

Only the prosecution may use this gateway.

Important explanatory evidence if :

a) without it the mags or 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 (CJA 2003 s102).
‘More than merely trivia or marginal’

If current evidence clearly understandable without evidence of bad character, it should not be admitted.

Can still challenge under s78 if prosecution successfully argue this gateway.

Question 43

Gateway (d) - it is relevant to an important matter in issue between the defendant and the prosecution

Answer 43

Important matters :

a) D has a propensity to commit offences of the kind of which he is charged (except where having such propensity makes it no more likely he committed the offence).
and

b) the question whether D has a prosperity to be untruthful (except where it is not suggested that D’s case is untruthful in any respect).

Prosecution may only adduce using this gateway.

a) Propensity to commit an offence of the kind charged :
must first satisfy the court that having such propensity makes it more likely that D committed the offence.

S 103 (2) CJA 2003 -
A D’s propensity to commit offence of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of :
a) an offence of the same description as the one with which he is charged or
b) an offence of the same category as the one with which he is charged.

Does not apply if court is satisfied as a result of time passed since the conviction it would be UNJUST for it to be applied. S 103 (3).

(b) Offences of the same description

Will be of the same description if the statement of the offence in the written charge would in each case be in the same terms.

Offences of the same category :

Same category of offences prescribed by Secretary of the State.

• Sexual offences category
  -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
  any attempt to commit any of the above substantive offences
  aiding, abetting, counselling, procuring or inciting the commission of any of the above offences.

If not in same category (can other offences be used to demonstrate propensity ?)

May still be admissible if there are SIGNIFICANT FACTUAL SIMILARITIES between the offences (R v Prima 2006 - propensity to commit assaults and robbery with knife in trial for murder).

GUIDELINES
for judge and mags to consider when CPS seeks to adduce evidence of a D’s previous convictions in order to demonstrate propensity to commit offences of the kind with which he is charged.
Three questions need to be considered :

Does D’s history of offending show a propensity to commit offences ?

Does propensity make it more than likely that D committed the current offence?
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?

Each answer must be affirmative.

Offences which can be relied upon to show may go beyond offences of the same description or same category.

Fewer offences show less propensity (one or two) unless distinguishing circumstances or tendency towards unusual behaviour (sex abuse of children, fire starting).
_______________________________________________________

PROPENSITY TO BE UNTRUTHFUL

May rely on previous convictions to show D has a propensity to be untruthful and therefore evidence given by D may lack credibility. CPS only allowed if it is suggested D’s case is untruthful.

R v Hanson : D’s previous convictions not admissible to show propensity to be untruthful unless :

a) Manner in which previous offence committed demonstrates D has such a propensity

b) D pleaded not guilty to the earlier offence but was convicted following a trial at which D testified and wasn’t believed.

(a) Manner in which previous offence was committed

Court drew a distinction between a propensity to be dishonest and a propensity to be untruthful. Only if previous offence demonstrates propensity to be untruthful will it become admissible.
Only where D actively sought to mislead or deceive another person by making false representations.
(perjury and fraud).
Theft only if actively sought to mislead, otherwise simply dishonest.

Convictions following a not guilty plea -
Offences of any description may fall part if D pleaded not guilty, testified but was convicted as the court disbelieved their version of events.

Question 44

Excluding evidence under Gateway (d)

Answer 44

Under s 101(3) CJA 2003 the court must not admit this evidence if on an application by the D to exclude it it appears to the court that the admission of the evidence would have such an adverse fairness one the proceedings that the court ought not to admit it.

Similar to S78 except S78 is discretionary but under Gateway D the court MUST exclude the evidence.

Courts more likely to use powers under s 101 (3) in three situations :

a) nature of D’s previous convictions is such the jury are likely to commit a defendant on basis of these convictions alone rather than examining other evidence placed before them or where evidence of previous is more prejudicial than probative.

b) CPS seeks to adduce previous convictions to support a case which is otherwise weak.

c) D’s previous convictions are ‘spent’.
Not always inadmissible. Court will more likely consider exercise s (101) 3 power.
s (101) (4) states court must have regard to time between matters.

Question 45

Spent convictions

Answer 45

Absolute discharge - none

Fine - 1 year

Community order - 1 year

Custodial sentence up to 6 months - 2 years

Custodial sentence between 6 and 30 months - 4 years

Custodial sentence between 30 months and 4 years - 7 years

Custodial sentence over 4 years - never spent

Question 46

Summary of (d)

Answer 46

Will seek to adduce previous convictions to show :

a) that the defendant has a propensity to commit offences of the kind charged : or

b) the defendant has a propensity to be untruthful

(a) - offences of same description or category or significant factual similarity

(b) - untruthful - fraud by false representation or perjury. Or pleaded not guilty but convicted following a trial.

Question 47

Challenging admissibility

Answer 47

a) arguing previous convictions do not actually demonstrate relevant propensity and do not satisfy gateway (d) :

Look at :

(1) How many convictions, one is unlikely to show propensity

(2) if the previous convictions are being adduced to show a prosperity to commit offences of the same kind
Look at :

Factual circumstances

Would it be unjust to rely on them given the time which has elapsed scene they occurred ( s 103 (3)) or

Does the propensity make it no more likely that the defendant is guilty of the offence.

(3) - If previous convictions are adduced to show a propensity to being untruthful is it not suggested that D’s case is any way untruthful.

B)

If previous convictions being adduced show relevant propensity can the court be persuaded to exercise its power under s 101 (3) to exclude the convictions.

Arguments that can be raised :

Would the convictions be more prejudicial than probative? Is there a danger D would be convicted on basis of previous convictions alone due to extent or nature of those?

Are convictions being used to support an otherwise weak case

Are the previous convictions spent?

Question 48

Gateway (e) it has substantial probative value in relation to an important matter in issue between the defendant and the co-defendant

Answer 48

Only used by one D to admit evidence of another D’s bad character.

Cannot be used by CPS.

Shows D has propensity and is more likely to commit such offences out of the two,

A co-d who seeks to introduce evidence will need to show that such convictions are relevant to an important matter in issue between himself and the D, and that the relevance of such convictions is more than merely marginal or trivial.

R v Edward - propensity to commit violence between jointly charged Ds with wounding with intent to cause GBH did have substantial probative value.

Question 49

Propensity to be untruthful

Answer 49

S (104) (1) CJA 2003 :

evidence which is relevant to the question whether the D has a propensity to be untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant’s defence.

‘Cut-throat defence’ two co D’s charged and pointing the finger at the other.

Convictions for propensity to be untruthful and conviction following not guilty plea relevant here.

If co-d can establish under the test for admitting evidence is satisfied, court has no power under CJA 2003 to prevent the admission of the evidence.

Question 50

Gateway (f) it is evidence to correct a false impression given by the defendant

Answer 50

Only prosecution may adduce under this.

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

D will be treated as being responsible for making such an assertion if the assertion is :

a) made by D in proceedings

b) made by D when being questioned under caution by the police before charge

c) made by a witness called by D

d) made by any witness in cross-examination in response to a question asked by D that is intended to elicit it

e) made by any person out of court and D adduces evidence of it in the proceedings (CJA 2003, s 105 (2)).

If prosecution can establish test for admitting evidence is satisfied the court has no power under CJA 2003 to prevent the admission of the evidence. Does retain s 78 discretionary power (PACE).

Question 51

Gateway (g) the defendant has made an attack on another person’s character

Answer 51

Could be an attack on anyone.

May be made when questioned or during trial or in statements.

Evidence attacking another person’s character is evidence to the effect that the other person has :

a) committed an offence or
b) behaved, or is disposed to behave, in a reprehensible way (CJA 2003 s 106 (2)).

Courts give wide interpretation to this gateway

R v Ball (2005) - Rapist made remark about victim’s promiscuous behaviour. Although simply the claim they fabricated the rape would not be sufficient in itself.

R v Williams (2007) - saying officers set him up was deemed an attack.

Question 52

Excluding evidence under gateway (g)

Answer 52

As with (d) court must exclude evidence that would otherwise be admitted under this gateway if on application by D, the admission of the evidence would have such an adverse effect on the fairness of proceedings the court ought not to admit it ( CJA 2003, s 101 (3)).

Question 53

Courts powers to exclude D’s bad character evidence

Answer 53

Court has no power under CJA (2003)0 to exclude bad character evidence under any gateways other than (d) and (g).

(a) (b) (c) (e) and (f) are automatically admissible if the requirements for each are satisfied.

Does retain s78 PACE discretionary power if evidence would have such an adverse effect on the proceedings that it ought not to be admitted.
Can challenge (c) and (f) as court should use s78 PACE (R v Highton).

Question 54

Stopping contaminated cases

Answer 54

S 107 CJA 2003 - direct jury to acquit the defendant or order retrial in circumstances where evidence is ‘contaminated’

Contamination may occur if witnesses collude to fabricate evidence of defendant’s bad character.

S107 does not apply to magistrates court.

Question 55

Procedure for admitting evidence of bad character

Answer 55

If CPS wishes to adduce, notice must be given to other parties in case (Crim PR, r 21.4 (1) and (2)).

Crown court will impose time limits and penalties set out in Crim PR, r 21.4

(3) A prosecutor must serve any such notice not more than—

(a)20 business days after the defendant pleads not guilty, in a magistrates’ court; or

(b)10 business days after the defendant pleads not guilty, in the Crown Court.

(4) A co-defendant who wants to introduce such evidence must serve the notice—

(a)as soon as reasonably practicable; and in any event

(b)not more than 10 business days after the prosecutor discloses material on which the notice is based.

Question 56

Bad character of persons other than the D

Answer 56

Not just other witnesses, can be anyone is now admissible only on very limited grounds.

S 100 (1) CJA 2003 :

evidence of the bad character of a person other than the D is admissible if and only if -

a) it is important explanatory evidence

b) it has substantial probative value in relation to a matter which -
(i) is a matter in issue in the proceedings and
(ii) is of substantial importance in the context of the case as a whole or
c) all parties agree to the evidence being admissible.

In practice commonly used when trying to adduce bad character of the complainant.

Question 57

S 100 (1) (a) it is important explanatory evidence

Answer 57

a) without it the court or jury would find it impossible or difficult properly to understand other evidence in the case AND

b) its value for understanding the case as a whole is substantial

‘Substantial’ more than merely marginal or trivial.

R v Lee (2012) - case that is truly one of propensity must not be dressed up as a case of important explanatory evidence.

S 100 (4) leave of the court will be rehired if a party wishes to adduce evidence of the bad character of a person other than the defendant.

Question 58

S 100 (1)(b) it has substantial probative value in relation to an important matter in issue in the proceedings

Answer 58

This ground more likely to arise when seeking to adduce evidence of witnesses previous convictions.

To support that :
a) the witness is lying or has fabricated evidence against the defendant or
b) the witness themselves is either guilty of the offence with which D has been charged or has engaged in misconduct in connection with the alleged offence.

R v Weir - can be used to show that witness engaged in misconduct in connection with the offence or to show evidence given by the witness lacks credibility as witness has a propensity to be untruthful.

Assessing probative value of evidence of another person’s previous convictions court must have regard to :

a) nature and number of events or other things to which the evidence relates and

b) when those events or things are alleged to have happened or to have existed ( s 100 (3)).

‘Substantial’ more than merely marginal or trivial.

Question 59

Credibility as a witness

Answer 59

Previous convictions of a witness for prosecution which may be used to suggest that the evidence given lacks credibility :

a) convictions for offences where the witness has made a false statement or representation (perjury, fraud, or theft where witness has lied to another person as commission of the theft).

b) convictions where the witness has been found guilty of an offence to which they pleaded not guilty but were convicted following a trial at which their version of events were disbelieved.

R v Stephenson (2006) - previous convictions where dishonest. but not untruthful may be admissible under s 100 (1)(B0.

R v Hester (2007) - where credibility is in issue in relation to an important witness, the evidence of dishonest offences may be admissible whether or not involving untruthfulness.

R v Brewster (2011) - whether convictions are persuasive as to creditworthiness depends on nature, number and age. Not necessary to demonstrate propensity to untruthfulness.

Question 60

Misconduct in connection with the current offence or guilty of that offence

Answer 60

Other reason for D wanting to raise bad character other than themselves is to use such evidence to suggest that :

a) the other person has committed some form of misconduct in connection with the current offence (e.g. they were attacked and acted in self-defence0.

b) the other person is in fact guilty of the offence with which the D has been charged.

Question 61

Misconduct in connection with the current offence

Answer 61

If alleged another person’s misconduct has probative value as there is a similarity between that misconduct and alleged misconduct in connection with the current offence, the court will have regard to the nature and extent of the similarities and dissimilarities between each of the alleged instances of misconduct.
S 100 (3) c.

R v Bovell (2005) - could amid previous convictions relied upon to show propensity of a prosecution witness to commit a particular type of offence if D could show sufficient factual similarities between the earlier offence and current incident.

Question 62

Guilty of committing the current offence

Answer 62

If it is alleged that evidence of another persons misconduct has probative value because it is suggested that the person is responsible for having committed the offence with which D has been charged the court will have regard to the extent to which the evidence shows or tends to show the same person was responsible of each time (s 100(3)(d)).

Question 63

Witnesses who are not giving evidence

Answer 63

S 100 (1)(b) used in relation to any persons (even those not giving evidence on the case).

Question 64

Leave of the court

Answer 64

s 100 (4) leave of the court required if a party wishes to adduce evidence of the bad character of another person other than the defendant under s 100 (1)(b)

Question 65

Section 100 (1) (c) all parties to the proceeding agree to the evidence being admissible

Answer 65

if all parties agree to the proceedings agree to the evidence being admissible.