Criminal Procedure Flashcards
Visual identification evidence
Identify courts discretion to exclude evidence under section 78 PACE
Identify other evidence there is to support prosecution
Are you for or against the strength of the identification evidence
- Amount of time
- Distance
- Visibility
- Obstruction
- known
- any reason to remember
- Time-lapse
- errors
Visual, identification evidence - exclusion as improperly obtained
Identify the courts discretion to exclude evidence under section 78 PACE
Identify the relevant breaches of identification procedures under code D (usually video)
- Taking into account reasonable objections to appearance of others in the ID procedure
- Keeping witnesses away from the suspect before and during the procedure
- Keeping witnesses apart during the procedure
- Warning that the suspect might not be shown at all
- Covering any significant marks
Exclusion of confession
- Once the admissibility is challenged, it is for the prosecution to prove beyond reasonable doubt that the confession is not unreliable.
- The convention must be excluded if the prosecution do not discharge this burden of proof under section 76 PACE
- The confession is relevant to a matter in issue between prosecution and defense, and is therefore admissible.
- Identify under which the confession is to be excluded and provide relevant details.
- Unreliability, owing to things said or done, rendering it unreliable
- Unreliability owing to oppression - Demonstrate causation from the things said or done or oppression to the confession.
Exclusion of any evidence
The court has a general discretion to exclude prosecution evidence, if having regards to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceeding that the court ought not to admit it under section 78 PACE
Admissibility of hearsay evidence
- Identify whether the hearsay is single or multiple hearsay
- For single hearsay, identify that hearsay is inadmissible unless one of the exceptions applies.
- under statute
- By rule of law
- By agreement of the parties
- In the interest of justice - Multiple hearsay
- business document
- inconsistent or consistent statement
- agreement
- Value of evidence in interest of Justice - Apply the test from the relevant exception
Admissibility of defendants bad character
- Is it evidence of, or of a disposition towards, misconduct, commission of offense or other reprehensible behavior outside of the facts of defense? If yes, it is not admissible unless
- It falls under any of the seven gateways to admission because:
- corrects false impression given by the defendant (F)
- important explanatory evidence (E)
- agreement by all parties (A)
- relevant to an important matter in issue between prosecution and defence (R)
- substantial probative value to an important matter in issue between co-defedants (P)
- defendant attacks another’s character (A)
- defendant adduces it (D) - If it is adduced under ‘important matter issue between prosecution and defense’, or under ‘the defendant attacked another character’, the court must not admit it if the defense make an application to exclude, and it appears to the court that admitting evidence would have such an adverse effect on the fairness of the proceeding that the court must not admit.
Bail application
N.B. Rules of evidence do not apply as strictly to bail applications as other hearings.
- Defendant has the right to bail - it can only be refused if one of the exceptions to the right bail apply AND there is a real prospect of a custodial sentence being imposed.
- Exceptions to the right to bail
- substantial grounds to believe failure to surrender, commit further offences (that would cause harm/injury to an associated person), interfere with witnesses
- indictable offence + on bail while committed
- own protection
- insufficient evidence
- failed to surrender whilst on bail - Factors affecting substantial grounds:
- Nature and seriousness of the offense
- Defendants character
- Defendants record of complying with bail conditions
- Strength of evidence - Bail conditions
- reporting
- electronic tag
- non-contact tag
- curfew
- residence
- restricted area - Conclude why bail should or should not be granted.
Plea in mitigation
- The sentence must be proportionate to the seriousness of the offense bearing in mind the offenders culpability, and any potential harm from the offense.
- Identify the starting point for sentence and the range of sentences available.
- Consider the aggravating and mitigating factors relating to the offense.
- Explain why the sentence should be concurrent (not consecutive)
- Consider mitigating factors relating to the offender.
- The court of credit for guilty plea.
- Propose an appropriate sentence.
Submission of no case to answer
Remind the court that the burden is on the prosecution to prove the defendant guilt and prove that all the elements of the offense are made out
Argue that the evidence the prosecution have used is insufficient for any reasonable court to convict either because
- the prosecution have failed to prove an element of the offense
- evidence adduced by the prosecution is so manifestly unreliable that no reasonable court could convict on it
Mode of trial
And deciding whether to accept jurisdiction, the court must consider the adequacy of its sentencing powers
The magistrates court sentencing powers are restricted to six months imprisonment for a single offense or 12 months imprisonment for two or more either way offences
Consider the starting point for sentencing and the range
Submit that the court sentencing powers are adequate and it should therefore accept jurisdiction
Bad character of a non-defendant
- It is important explanatory evidence,
- It has substantial probative value in relation to a matter which –
- Is a matter in issue in the proceedings, and
- Is of substantial importance in the context of the case as a whole, or - All parties to the proceedings agree to the evidence being admissible.
