Criminal slides part 3 Flashcards
1
Q
What is an application to dismiss?
A
A pre-trial application to have the charges against a defendant dismissed.
2
Q
What is Voir Dire?
A
Hearing evidence on a legal argument is called a trial “on the voir dire.” A mini trial and evidence will only relate to matters in dispute and has a special form of oath.
3
Q
When can application to dismiss be made?
A
- only after a defendant is sent by the mags to the CC for trial
- Only after D has been served with evidence relating to the offence; AND
- Only before D is arraigned.
4
Q
Who is an application to dismiss made to?
A
a crown court judge and if D wishes to make an oral application D must give written notice of their intention to do so.
5
Q
What is the test for an application to dismiss?
A
Should be quashed if it appears the evidence against the applicant would not be sufficient for him to be properly convicted.
This is the same test as when the D make a submission of no case to answer:
R v Galbraith: The judge should stop the case where:
a) There is no evidence that the crime has been committed by the defendant OR
b)The prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it.
6
Q
What is a submission of no case to answer?
A
After a prosecution has presented all its evidence, the defence can submit that there is no case to answer.
7
Q
What is the test for a submission of no case to answer?
A
R v Galbraith: ‘(1) if there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case;
(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.
(a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.
(b) Where, however, the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury …’
8
Q
If section 78 relates to less significant matters what will happen?
A
where the application relates to less significant matters, the judge might direct for that matter to be dealt with at a convenient moment during the trial.
If the argument is not heard before the case commences, the prosecution should avoid making any reference to the disputed evidence in the opening speech.
9
Q
What are the differences of Voir Dire in Crown and Magistrates Court?
A
In the crown court, it takes place in the absence of the jury. In the mags, they can rule on a s78 or hear all the evidence before ruling on admissibility.
10
Q
When may a ruling of admissibility be made earlier?
A
However ruling for admissibility may be made earlier if its in the interest of justice to do so e.g. to allow D to know whether evidence forms part of the case. (So D knows how to be tactical)
11
Q
If a submission of no case to answer is successful or unsuccessful, what should the court do?
A
Crown court:
Successful: Tell the jury to being a verdict of not guilty.
Unsuccessful: Bring the jury back in and carry on as normal.
Mags and CC:
Unsuccessful: There is no obligation for the court to give reasons why it has been rejected.
12
Q
What is an abuse of process application?
A
An application to stay the proceedings when Issues of fairness or impropriety are so fundamental that for the trial to continue would be an abuse of the process of the court. Less to do with evidence and more about if the trial should even go ahead.
13
Q
What are the two categories of an abuse of process application?
A
1) where it will be impossible to give the accused a fair tria
2) where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case.
14
Q
What are examples of an abuse of process?
A
• where a defendant has been tricked or coerced into committing an offence the defendant would not otherwise have committed
• where a defendant is prosecuted despite an unequivocal promise by the prosecution that the defendant will not be
• where the police have acted in such a way as to undermine public confidence in the criminal justice system and bring it into disrepute, such as by deliberately destroying evidence that would have assisted the defence
• where the prosecution has manipulated or misused the process of the court so as to deprive a defendant of a protection afforded by law.
-The prosecution delay proceedings deliberately to gain a tactical advantage.
15
Q
How does an abuse of process application differ from a return of not guilty verdict?
A
If an application for a stay for abuse of process is permitted, the court will order a stay on the proceedings. This means the prosecution would not be able to proceed with the case. Therefore its as if the case never happened.
16
Q
What is the burden and standard of proof for an abuse of process application?
A
Balance of probabilities on the defence.
17
Q
Where is an abuse of process application dealt with?
A
Mainly dealt with in the CC.
Can be dealt with in mags but only on one ground: That the defendant is unable to have a fair trial.
18
Q
Section 78 applications test?
A
the police misbehaved and there was a significant, substantial breach of code which resulted in unfairness to the defendant
19
Q
What is the normal burden and standard of proof in a trial?
A
beyond reasonable doubt on the prosecution
20
Q
What is the common law discretion to exclude evidence (S82(3) PACE)?
A
exclude evidence where its prejudicial effect outweighs its probative value;
if it is necessary in order to secure a fair trial for the accused.
21
Q
Who can make an application under the common law discretion to exclude evidence?
A
The defendant can make an application against the prosecution.
The prosecution or the co-defendant cannot make an application against the defendant.
22
Q
What is a S78 PACE application?
A
to exclude evidence on the circumstances in which the evidence was obtained, 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
23
Q
What evidence does a S78 PACE application apply to?
A
Only applies to evidence that the prosecution proposes to rely on.
So can only be made by a defendant or co-defendant to the prosecution.
24
Q
What kind of evidence might be excluded under S78?
A
Any evidence that was obtained unlawfully, improperly or unfairly. For example, PACE or human rights were breached to obtain it.
25
What is the key test for a S78 application?
whether 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.
26
Are the PACE codes of practice admissible in court?
Yes. A defendant can rely on them to show what procedures should have been followed.
27
What are the 8 PACE codes of practice?
* Code A (Stop and Search);
* Code B (Entry, Search and Seizure);
* Code C (Detention, Treatment and Questioning of Non-Terrorist Suspects);
* Code D (Identification);
* Code E (Audio Recordings of Interviews);
* Code F (Visual Recording of Interviews with Sound);
* Code G (Arrest); and
* Code H (Detention, Treatment and Questioning of Terrorism Suspects).
28
PACE CODE C
Code C
To take an example, Code C (the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers) contains, amongst many others, the following provisions which must be followed by the police:
(a) Paragraph 3.1 provides that detained suspects must be informed of:
(i) their right to consult privately with a solicitor and that free independent legal advice is available;
(ii) their right to have someone informed of their arrest; and
(iii) their right to consult the Codes of Practice.
(b) Paragraph 10.1 provides that a person whom there are grounds to suspect of an offence must be cautioned before any questions about the offence are put to them, if either the suspect's answers or silence may be used in evidence against them.
(c) Paragraph 10.3 requires the caution to be given on arrest.
(d) Paragraph 10.5 states that the caution should be in the following terms: 'You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.' Minor deviations are permissible (para 10.7).
(e) Paragraph 11.1A defines an interview as 'the questioning of a suspect regarding their involvement or suspected involvement in a criminal offence'.
(f) Paragraph 11.1 requires an interview to take place at a police station, except where the delay would:
(i) lead to interference or harm to evidence connected with an offence
(ii) interference with or physical harm to other people
(iii) serious loss or damage to property
(iv) lead to alerting other suspects who have not yet been arrested; or
(v) hinder the recovery of property obtained as a result of the offence.
(g) Paragraph 11.15 requires juveniles (under 18s) or those with mental disorders or who are mentally vulnerable only to be interviewed in the presence of an appropriate adult.
29
When can S78 application be made?
An application can be made:
- Before the trial,
- at the commencement of the trial or
- Just prior to the prosecution seeking to admit the evidence which the defence wish to be excluded.
30
If S78 is granted and results in the prosecutions case being fatally weak what may happen?
If S78 is granted, it may result in the prosecution case being fatally weakened. They may be left with no evidence or insufficient evidence to proceed. A judge in this case will often want that argument to take place at a pre-trial hearing or at commencement of the trial. In the CC, this will often be before a jury is sworn.
31
If section 78 relates to less significant matters what will happen?
the judge might driect for that matter to be dealt with at a convenient moment during the trial.
If the argument is not heard before the case commences, the prosecution should avoid making any reference to the disputed evidence in the opening speech.
32
Whats the difference between an application to dismiss and a submission of no case to answer?
An application to dismiss is a pre-trial application when the prosecution does not have sufficient evidence to convict. Where as a submission of no case to answer happens during a trial after the prosecution has presented their case.
33
What is the difference between a S78 application and an abuse of process application?
An abuse of process application is where the trial itself is unfair. Where as a S78 is where evidence has been unfairly obtained.
34
Appeals on s78 applications
COA will not interfere with a judge’s decision under s.78 unless satisfied that the decision was perverse, ie no reasonable judge could have reached the conclusion after hearing the evidence.
35
What is absolute good character?
the defendant has no previous convictions and there is no evidence of other reprehensible conduct.
36
What is effective good character?
the defendant has previous convictions that are old, minor or relate to offences of a different nature to the offence charged. In such cases the court may treat the defendant as being of good character.
37
What is positive good character?
defendants can go further than saying that they are of good character and adduce evidence of so-called “positive good character” by showing that they have behaved virtuously, (e.g. charity work).
38
How can a defendant adduce that they are of good character?
* Cross-examination of a police officer who can confirm that the defendant has no previous convictions
* Formal admissions (s.10 Criminal Justice Act 1967)
* Examination in chief of defendants as to their character
* Calling a character witness as part of the defence case
39
Why would a defendant want to adduce their good character?
The defendant in a Crown Court trial who is of good character will want the judge to give the jury a direction as to how they should approach the fact that the defendant is of good character.
40
When will a judge decide on absolute good character being adduced?
Whether and how a good character direction is given is ordinarily raised by Defence Counsel with the judge at the end of the evidence and before closing speeches when most directions are discussed.
41
When will judge decide that a defendant has effective good character?
Where Defence Counsel wants a defendant who does have previous convictions to be treated as a person of effective good character, tactically speaking, the issue is best raised with the judge at the start of the trial, as Counsel will need to decide whether or not to adduce evidence of the defendant's previous convictions.
42
What are the two limbs of a good character direction?
- Credibility
| - Propensity
43
When should a Turnbull direction be given?
A Turnbull direction should be given when the case against the accused depends 'wholly or substantially' on the correctness of the visual identification.
Although no particular words need to be used, the judge should not pay 'lip service' to the guidelines.
A particularly robust direction is required when the disputed evidence is adduced as hearsay in the form of statement from a witness who has not been cross-examined. A Turnbull direction should be given even in cases of alleged recognition; many times someone has seen a stranger in the street and thought they recognised them, even when on closer inspection they discover they were wrong.
44
What direction should the judge give under the credibility limb for good character?
The jury should take the defendant's good character into account in weighing the credibility of the evidence D gave in the trial or of the statements or answers D gave pre-trial. Note, the relevance of good character to credibility is not a matter for the jury, so a direction given in the form of a rhetorical question is a fatal misdirection (R v Lloyd [2002] 2 Cr App R 355). The weight to be given to the good character of the defendant is a matter for the jury.
45
When will a Voir Dire be required when theres a breach of code C?
When evidence around the alleged breach is disputed. In those circumstances, a voir dire may be required and the judge will have to hear evidence under oath.
Can usually be done without trial (voir dire).
46
What direction under the propensity limb of good character should be made?
The jury should take into account the defendant's good character in considering the likelihood of the defendant having committed the offence charged.
The judge should indicate that good character, in and of itself, cannot amount to a defence.
47
What examples of evidence that does not constitute visual identification evidence?
* Description of clothing/vehicle ('I couldn't see his face but he was wearing a purple jumper')
* The suspect has a connection to a particular place or others at the scene (eg 'I thought it was Maria because I know she is always at the café on a Saturday morning')
* A description of the suspect ('He was 5'7' with dark hair and blue eyes')
48
What is misconduct in bad character?
'the commission of an offence or other reprehensible behaviour’.
49
What are sources of bad character evidence?
* Previous convictions in the UK
* Previous convictions in a foreign court where such offences have a domestic equivalent. Blasphemy, for example, would be unlikely to be considered bad character.
* Cautions
* Acquittals, where the prosecution contends that in fact the defendant was guilty of the previous offence of which D was acquitted
* Agreed facts that amount to reprehensible behaviour
* Witness evidence of a reputation for reprehensible behaviour
50
Why is dock identification rare and undesirable?
It is an undesirable practice, as it leaves the witness with no other alternative than the defendant and the fact that the defendant is already standing in the dock is highly prejudicial.
A well-meaning witness may simply assume that the person responsible for the crime is the defendant because it is the defendant in the dock.
But can still happen if the judge believes after consideration it will not jeopardise the fairness of the accused trail.
51
In what situation is identification a live issue?
If D disputed being at the scene of the burglary and there was no CCTV or forensics or witness statements to implicate D then that would be a situation where identification was a live issue.
52
What happens if the quality of identification is poor?
he judge should consider whether there is other evidence to support the correctness of the identification. If there is not, the judge should withdraw the case from the jury and direct an acquittal. If there is some supporting evidence, for example scientific evidence, then the judge can leave the weak identification to the jury to be assessed alongside the supporting evidence.
53
What if the quality of the identification is good?
When the quality of the identification is good, the jury can be safely left to assess the value of the identifying evidence, regardless of whether there is other evidence to support it: provided always, however, that an adequate warning has been given about the special need for caution.
54
What does section 107 of CJA give the court discretion to do?
This section gives the court discretion to stop the case where it is satisfied at any time after the close of the case for the prosecution that bad character evidence that has been admitted is contaminated and the contamination is such that the conviction of the defendant of the offence with which D is charged would be unsafe.
55
Whats the principles for 'case to answer' for visual identification need to be applied?
R v Galbraith [1981] 2 All ER 1060.
In cases of visual identification, the judge must answer two principal questions:
* What is the quality of the identification evidence?
* Is there other evidence to support the correctness of the identification?
56
What is the double jeopardy rule for the prosecution relying on ;previous acquittals?
The prosecution cannot seek to have D punished for the previous offences.
57
What conduct falls outside of S98? (Evidence of misconduct)
Section 98 CJA 2003 specifically excludes evidence of misconduct which:
(a) Has to do with the alleged facts of the offence with which the defendant is charged; or
(b) Is committed in connection with the investigation or prosecution of that offence.
58
What conditions need to be satisfied to admit evidence that falls outside of s98?
The conditions in S100 or S101.
59
What is S100 applicable to?
gateways to admissibility of non-defendants bad character.
60
What is S101?
Gateways to admissibility of defendants bad character.
61
Can an attempt at jury tampering or witness intimidation be adduced as bad character?
No, because they are examples of misconduct connected with the current case.
62
Jury should be directed to in regards to bad character evidence....
The jury must be warned not to place too much reliance on bad character evidence. It should be stressed that bad character evidence cannot be used to bolster a weak case, or to prejudice the jury against the defendant. The jury should be directed that:
* they should not conclude that the defendant was guilty or untruthful merely because D had previous convictions; and
* a propensity is not enough to show that the defendant committed the offence alleged in this case.
The significance of bad character evidence should be assessed in the light of all the evidence in the case.
Where an allegation of conduct that did not result in a conviction is relied on as evidence of propensity and it is disputed, the jury should be directed that they should not rely on it unless they are sure that it is true.
63
Which S101 bad character for the defendant gateways require leave of the court?
```
C
D
E
F
G
```
64
Which S101 bad character for the defendant gateways don't require leave of the court?
A
| B
65
What evidence is capable of being supporting evidence of identification?
* Scientific evidence, for example footwear, facial mapping, telephone evidence
* Multiple identifications by different witnesses (as long as the identifications are of sufficient quality so as to be left to the jury to assess)
* The accused's bad character or previous convictions (if admissible)
* The accused's silence on interview (if it is proper for an adverse inference to be drawn)
* The accused's admissions at the scene / in interview / in the witness box
* Lies (when accompanied as appropriate by a Lucas direction)
66
How should the judge direct the jury when the case wholly or substantially depends on the correctness of identifying the accused?
* The trial judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification.
* The judge should make some reference to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken. Provided such a warning is given, no particular form of words need be used.
* Further, the trial judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made.
* Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.
* Finally, the trial judge should remind the jury of any specific weaknesses which have appeared in the identification evidence.
67
What is S101(1)(c)?
Context:
'(a) For the purposes of section 101(1)(c) evidence is important explanatory evidence if—
(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.'
This gateway allows the prosecution to adduce evidence of past misconduct of the defendant where it is needed to explain the prosecution case in the current trial.
Often the evidence will be to show the previous relationship between people involved in the trial without which it would not be possible to understand the narrative put forward by the prosecution.
68
When will a Voir Dire be required when theres a breach of code C?
When evidence around the alleged breach is disputed. In those circumstances, a voir dire may be required and the judge will have to hear evidence under oath.
Can usually be done without tiral (voir dire).
69
Why was pace code D introduced and what does it require?
* to protect an innocent suspect from an incorrect identification; and
* to make a successful identification as watertight and 'challenge-proof' as possible.
- it requires a Video identification parade
Officers film the suspect asking them to face the camera and be filmed from the right, left and centre. The identification police officer, suspect and legal representative select lookalikes from over 10,000 video clips on the VIPER system. Once that process is complete, a video clip is produced with the suspect placed amongst eight other individuals of similar appearance. The video clip is then shown to the witnesses in the controlled environment of the identification suite.
70
What is S101(1)(a)?
Agreement of the parties:
In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if, -
(a) all parties to the proceedings agree to the evidence being admissible
71
What is S101(1)(b)?
Blurts it out:
This allows defendants to introduce evidence of their own bad character.
'Section 101(1)(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".'
There are a number of reasons why D may wish to do so. Reasons include:
• To come clean about an old conviction in order to receive a modified good character direction
• To show that D has never been convicted of an offence of the type with which D is now charged
• To put forward a defence, e.g. to show that D was in prison at the time of the alleged offence
• To show why police officers might have a bias against D
72
What is S101(1)(c)?
Context:
73
What are the time limits for non-defendant bad character and how long do you have to respond?
Magistrates’ court and Crown Court
* As soon as reasonably practicable; and
* In any event not more than 10 business days after the prosecutor discloses material on which the application is based (if the prosecutor is not the applicant)
Response- Not more than 10 business days after service of the application
74
What are the courts powers in determining a non defendant bad character app?
The court can determine an application with or without a hearing in public or in private. The decision must be announced at a hearing in public, but in the absence of the jury.
The court has a discretion to shorten or extend time limits or to allow an application or notice to be given in a different form.
Extensions to time limits can be granted after the time limit has expired.
In practice, written notices in the form required by the rules are usually served where the prosecution proposes to adduce evidence through the s.101(1)(c) or (d) gateways. Evidence that becomes admissible through the other gateways in s.101 is likely to do so 'on the hoof' as a result of something said or done in the course of the trial. In those circumstances the application is likely to be made orally.
75
What are the time limits for defendant bad character and how long do you have to respond?
* Magistrates’ court- Not more than 20 business days after the defendant pleads not guilty
* Crown Court- Not more than 10 business days after the defendant pleads not guilty
Co-Defendant’s Evidence
• As soon as reasonably practicable, and in any event not more than 10 business days after the prosecutor discloses the material on which the notice is based
Response
• Not more than 10 business days after service of the notice
76
Who has the burden of proving the offence was not committed?
The burden of proving that the offence was not committed by the person whose conviction of the offence has been proved is on that person. The burden can be discharged by showing on the balance of probabilities that the offence was not committed by that person.
77
Where there is a dispute as to whether a person has in fact been convicted or acquitted of an offence in the past, whether in the UK or in another EU Member State, what does section 73 say?
may be proved by the production of the certificate of conviction (signed by the proper officer of the court) from the court where the conviction or acquittal took place.
The certificate must be accompanied by evidence that the person named in it is the person whose conviction or acquittal is in issue.
78
What does section 110 of CJA require the court to do?
Section 110 requires the court to give reasons in open court for any ruling it makes on the issue of bad character.
79
What is S101(1)(d)?
Done it before:
'(1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include—
(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;
(b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect.
80
What evidence can you use for S101(1)(d)?
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.
81
Is S101(1)(d) applicable to prosecution evidence or defence evidence?
Prosecution evidence only.
82
What does the case of r v Hanson say about propensity to commit offences?
R v Hanson and others [2005] EWCA Crim 824 is the leading case on whether evidence of bad character does establish a propensity to commit offences of the kind with which the defendant is charged. The court formulated the following questions to be posed when an application is made to admit bad character evidence to show propensity:
• Does the defendant's history establish a propensity to commit offences of the kind charged?
• Does that propensity make it more likely that the defendant committed the offence charged?
• Where the previous offences are of the same description or category as the offence charged, would it be unjust to rely on them (s.103(3))?
• In any event, would proceedings be unfair if the evidence were to be admitted (s.101(3))?
83
What is the rule on the number of previous convictions needed to establish propensity?
There is no minimum number of previous convictions required to establish a propensity. The fewer the number of previous convictions, the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category as the offence charged might show propensity where it shows a tendency towards unusual behaviour.
84
Is the strength of the prosecutions case relevant when deciding admissibility under S101(1)(d)?
Yes, It is unlikely to be just to admit bad character evidence where there is no or little other evidence against the defendant.
85
is the propensity to be untruthful the same as a propensity to be dishonest?
a propensity to be untruthful is not the same as a propensity to be dishonest. Previous convictions are only likely to be capable of showing such a propensity where:
• There was a plea of not guilty to the previous offence and the defendant gave evidence at trial which the jury must have disbelieved; or
• The way in which the offence was committed involved being untruthful, e.g. fraud by false representation.
In practice this means that while burglary is categorised as a dishonesty offence, it does not logically follow that each and every burglar is untruthful. A person can commit a burglary and go onto admit it in interview and plead guilty, in such circumstances, it would incorrect to describe their behaviour as general untruthful.
86
What do these two sections allow 101(1)(d) and 103(3) CJA 2003?
These sections allow the court to exclude evidence of the commission by the defendant of an offence of the same description or type as the offence charged if the court is satisfied that, by reason of the time that has elapsed since the earlier conviction or for any other reason, it would be unjust to admit the evidence.
87
Why is section Section 101(3) better for a defence advocate in regards to bad character evidence to use and what does it say?
Section 101(3) reads:
‘The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court 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.’
MUST stricter approach than s.78
88
what is Section 100(1)(b) ?
Substantial probative value in relation to a matter in issue and of substantial importance in the context of the case as a whole
89
What is S101(1)(f)?
False impression:
(a) the defendant gives a false impression if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant;
(b) evidence to correct such an impression is evidence which has probative value in correcting it.
(2) A defendant is treated as being responsible for the making of an assertion if:
(a) the assertion is made by the defendant in the proceedings (whether or not in evidence given by him),
(b) the assertion was made by the defendant:
(i) on being questioned under caution, before charge, about the offence with which he is charged, or
(ii) on being charged with the offence or officially informed that he might be prosecuted for it,
and evidence of the assertion is given in the proceedings,
(c) the assertion is made by a witness called by the defendant,
(d) the assertion is made by any witness in cross-examination in response to a question asked by the defendant that is intended to elicit it, or is likely to do so, or
(e) the assertion was made by any person out of court, and the defendant adduces evidence of it in the proceedings.
(3) A defendant who would otherwise be treated as responsible for the making of an assertion shall not be so treated if, or to the extent that, he withdraws it or disassociates himself from it.
(4) Where it appears to the court that a defendant, by means of his conduct (other than the giving of evidence) in the proceedings, is seeking to give the court or jury an impression about himself that is false or misleading, the court may if it appears just to do so treat the defendant as being responsible for the making of an assertion which is apt to give that impression.
(5) In subsection (4) 'conduct' includes appearance or dress.
(6) Evidence is admissible under section 101(1)(f) only if it goes no further than is necessary to correct the false impression.
(7) Only prosecution evidence is admissible under section 101(1)(f).'
90
If a D is charged with multiple offences, how does a bad character provision apply?
It applies as if they are all in separate proceedings.
| S101(1)(d) is most likely to apply here.
91
What is S101(1)(e)?
'E Did it!:
Section 101(1)(e): 'it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant'.
Section 104 CJA 2003 states:
'1 Evidence which is relevant to the question whether the defendant 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.
2 Only evidence—
(a) which is to be (or has been) adduced by the co-defendant, or
(b) which a witness is to be invited to give (or has given) in cross-examination by the co-defendant, is admissible under section 101(1)(e).'
92
What are the rules for S101(1)(e)?
- Only defence evidence
| - S101(3) and S78 do not apply.
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What is S101(1)(f)?
False impression:
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Section 100 In criminal proceedings evidence of the bad character of a person other than the defendant 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 to the proceedings agree to the evidence being admissible.
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Finish off the rule for:
In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant):
(a) the nature and number of the events, or other things, to which the evidence relates;
(b) when those events or things are alleged to have happened or existed;
(c) where:
(i) the evidence is evidence of a person's misconduct, and
(ii) it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct,
the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct;
(d) where
(i) the evidence is evidence of a person's misconduct,
(ii) it is suggested that that person is also responsible for the misconduct charged, and
(iii) the identity of the person responsible for the misconduct charged is disputed,
the extent to which the evidence shows or tends to show that the same person was responsible each time.
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What sections leave for court required and what sections is it not required?
A and B = Don’t need leave.
| CDEFG= Need leave.
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What is Section 101(1)(g): GETS AT THE WITNESS: Attack on another person's character ?
a) he adduces evidence attacking the other person's character,
(b) he … asks questions in cross-examination that are intended to elicit such evidence, or are likely to do so, or
(c) evidence is given of an imputation about the other person made by the defendant—
(i) on being questioned under caution, before charge, about the offence with which he is charged, or
(ii) on being charged with the offence or officially informed that he might be prosecuted for it.
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What is warrant backed for bail?
An arrest warrant can be backed for bail, which means, that the person should be arrested and given a date on which to appear in court then released on bail.
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What is warrant not backed for bail?
Most warrants are not backed for bail, meaning that the person should be arrested and brought to court in custody (not released).
