Criminal Tests

Question 1

What are the 7 gateways in which bad character can be admitted?

Answer 1

101(1)(a): all parties agree
101(1)(b): D chooses to adduce evidence
101(1)(c): important explanatory evidence
101(1)(d): relevant to an important mater in issue between D and P
101(1)(e): probative value between D and Co-D
101(1)(f): correct a false impression
101(1)(g): D attacks another’s character

Question 2

How does the agreement gateway work?

Answer 2

All parties to proceedings must agree
No need for application to court
No formal requirements as to recording agreement or how it’s reached

Question 3

How does the gateway of ‘D choosing to adduce evidence’ work?

Answer 3

D adduces evidence themselves or is given in answer to a question asked in cross-examaination
Leave of court not required

Question 4

How is ‘important explanatory evidence’ defined as regards to that gateway?

Answer 4

Without it, the court/jury would find it impossible/difficult to properly understand other evidence; and
It’s value for understanding the case as a whole is substantial

Question 5

How does the ‘important explanatory evidence’ gateway work?

Answer 5

Allows the prosecution to adduce evidence of D’s past misconduct where needed to explain P case in current trial
Leave of court required

Question 6

How does the ‘relevant to an important matter in issue’ gateway work?

Answer 6

s103 explains this meaning
a) whether D has propensity to commit offences of the kind charged (of same description or same type)
b) whether D has propensity to be untruthful

Question 7

What is the 3-stage test under R v Hanson for propensity to commit offences of the kind charged?

Answer 7

1. Does history of convictions establish a propensity to commit offences of kind charged?
2. Does that propensity make it more likely the D committed the offence?
3. Is it unjust to rely on the conviction(s) of the same description/category? And will the proceedings be unfair if admitted?

Question 8

What 2 principles apply in assessing the gateway of ‘relevant to an important matter of issue’?

Answer 8

1. No min no. of convictions required (the fewer, the weaker evidence of propensity)
2. Strength of prosecution case should be considered (court shouldn’t admit bad character evidence to bolster a weak case)

Question 9

What is the difference between s101(3) CJA and s78 PACE?

Answer 9

S101(3): creates an obligation to exclude evidence where court is satisfied that admission would lead to unfairness of proceedings
S78: contains discretion to exclude evidence - the court can refuse to admit evidence in those circumstances

Question 10

Is a propensity to be untruthful the same as a propensity to be dishonest?

Answer 10

No
Previous convictions only likely capable of showing such a propensity where:
a) not guilty plea in previous offence but found guilty
b) way in which offence committed involved being untruthful e.g. fraud by false rep

Question 11

Is leave of court required to admit evidence under the gateway of ‘relevant to an important matter in issue’?

Answer 11

Yes

Question 12

When is a D held to have given a false impression under gateway of ‘correct a false impression’?

Answer 12

If responsible for making an express or implied assertion which gives court/jury a false or misleading impression about D
Assertion is made by D in proceedings, or on being questioned under caution before charge, or on being charged
Assertion is made by a witness (can be made in cross-examination)
Made out of court and D adduces evidence of it in proceedings

Question 13

Is leave of court required to admit evidence under ‘correcting a false impression’?

Answer 13

Yes

Question 14

To what gateways does the safeguard under s101(3) CJA 2003 apply to?

Answer 14

S101(1)(d) and (g)

Question 15

How should the jury be directed on the weight of bad character?

Answer 15

The weight to be placed on bad character evidence is a matter for them but should be warned not to place too much reliance on it
Bad character evidence cannot be used to bolster a weak case or prejudice the jury against D

Question 16

What safeguards are there for bad character?

Answer 16

S101(3): court must not admit evidence which would have such an adverse effect on fairness of proceedings that the court ought not to admit it
S103(3): time elapse since commission of offence makes it unfair to admit
S110 CJA: requires court give reasons for any ruling it makes on issue of bad character
S107: court has discretion to stop case where satisfied at any time after P’s case closed that evidence is contaminated and conviction would be unsafe
S78 PACE: gives judge discretion to exclude evidence on basis it would have such an advese effect on fairness of proceedings that it ought not be admitted

Question 17

What time limits are there for prosecution evidence of defendant bad character?

Answer 17

MC: not more than 20 business days after D pleads not guilty
CC: no more than 10 business days

Question 18

What time limits are there for co-defendant’s evidence of defendant bad character?

Answer 18

As soon as reasonably practicable, and in any event, no more than 10 business days after P discloses material on which notice is based

Question 19

What time limit is there for responding to D bad character?

Answer 19

No more than 10 business days after service of notice

Question 20

Should a confession be excluded automatically under s78 if the court is persuaded there has been a breach of PACE?

Answer 20

It is not automatic - significant and substantial breaches may well result in the exclusion of evidence
If police have acted in bad faith, court will have little difficulty in excluding evidence
Main question: extent of unfairness caused

Question 21

What is the test for excluding evidence under s78 PACE?

Answer 21

Whether the admission of the evidence would have such an adverse effect on the fairness of proceedings that they ought not to admit it

Question 22

What evidence does s78 apply to?

Answer 22

Applies to prosecution evidence
To do with exclusion of unfair evidence

Question 23

What do s78 applications often rely on?

Answer 23

Breaches of PACE or Codes of Practice
Breaches are significant and substantial
Look at the effect of the breach

Question 24

When can s78 application for exclusion of evidence be made?

Answer 24

Before trial
Commencement of trial
Must be prior to the protection seeking to admit the evidence
Where there is factual uncertainty, must be voir dire

Question 25

How can confessions be excluded?

Answer 25

Under s76 PACE or s78

Question 26

What is the test for s76 PACE?

Answer 26

The court won’t allow a confession if it was obtained by oppression (inhuman/degrading treatment or use/threat of violence) or it was unreliable

Question 27

Who holds the burden of proof under s76?

Answer 27

The prosecution must prove beyond a reasonable doubt that the confession was not obtained by the two means
Defence just have to represent to the court

Question 28

How does the exclusion for unreliability work under s76?

Answer 28

Anything said and/or done which was likely, in the circumstances at the time, to render unreliable any confession
1. Identify thing said or done
2. Would it render the confession unreliable in the circumstanes

Question 29

What is the test for application for dismissal?

Answer 29

If the evidence against the applicant would not be sufficient to properly convict him

Question 30

When does an application for dismissal have to be made?

Answer 30

Only made in the CC
After the D has been served with evidence
Before the D is arrainged

Question 31

What is the test for a submission of no case to answer?

Answer 31

The judge should stop the case where:
a) no evidence for crime has been committed by the D, or
b) where prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it

Question 32

When can a submission of no case to answer be made?

Answer 32

MC and CC
During trial and after the prosecution has presented its evidence
Can’t acquit until prosecution has made its representations
Court does not have to give reasons if rejecting

Question 33

What is the test for an abuse of process application?

Answer 33

Where there are issues of unfairness or impropriety so fundamental that if trial were to continue, it would be an abuse of process of court
This is remedy of last resort

Question 34

What is the outcome of a successful abuse of process application?

Answer 34

Stay of proceedings - no guilty verdict

Question 35

On what grounds can an abuse of process application be made?

Answer 35

1. Accused can no longer receive a fair hearing (about trial process itself)
2. Accused should not be standing trial at all (unfair to try the accused or necessary to protect integrity of court)
   CC requires both grounds
   MC requires only ground 1