Evidence Flashcards
Proving a fact?
Several ways aside from live witness evidence
- Agreeing a witness statement as true by consent of the parties
o S9 CJA – witness statements can be agreed as accurate and true – simply read out in court
- Agreeing any fact between the parties
o Advocated can agree a fact
- A judge or jury to take juridical notice of the fact
o Judge of a jury to take judicial notice of the fact – judge is permitted to take judicial notice of a fact on enquiry – may not know of top of their head but can easily research it. JURORS CANNOT DO ANY REASRCH AT ANY TIME.
Types of evidence?
- Oral
- Written form
- Real evidence – brought to court for inspection
- Direct evidence - that witness gives having had direct experience of a matter in issue
- Circumstantial evidence – facts are inferred. Train ticket showing midnight time – circumstantial real evidence
- A view juries can visit the scene of a crime
Admissibility, relevance and weight of evidence - All evidence must be relevant to be admissible
- R v Usayi – must be relevant
Exclusionary rules also exist – rules to protect fairness of trial
Weight – depends on how strong and reliable
Tribunals of fact and law
- Tribunals of fact determine the facts of the case – jury and magistrates
- Tribunal of law – responsible for law – judge and magistrates
Legal and evidential burden?
Buren and standard of proof
Legal burden
- Requirement to prove an element – question of fact for tribunal of fact as to whether the legal burden of proof has ben discharged
Evidential burden – some evidence to satisfy the judge that the matter should be argued in front of jury
Burden on the defence
- If defence simply challenged prosecution case – does not create any burden on the defence
Legal and evidential burden are oftentimes together – sometimes become detached like self-defence – where need to put some evidence to judge to show self defence could exist as a defence but there’s not standard of proof required for it itself.
Excluding evidence?
Application for dismissal
Pre-trial appalication
- - Can only be made after a defendant is sent by magistrate’s court for trial to crown court
- Only after the defendant has been served with evidence relating to the offence
- Only before the defendant is arraigned
- The power to make – it sch 3 CDA
- Application is made to crown court judge – if d wishes to make an application d must give written notice of d’s intention to do so
Test for dismissing a charge is
- If it appears to him that the evidence against applicant would not be sufficient of him to be properly convicted
Submission of no case to answer?
- Same test where defence makes a submission of a no case to answer (R v Galbraith)
Two limbs separate
o Where there is no evidence that the crime has been committed by the defendant OR
o there is some flimsy eveidence judge will decide - Where the prosecution evidence taken at its highest is such that a properly directed jury could not properly convict on it.
Submissions of a no case to answer
- Duty if the above test is satisfied to stop the case
- A submission of a no case to answer is made at the close of the prosecution case because its only at this stage that the entirety of the prosecution case can be considered.
- Application in crown court ill take place in absence of a jury.
FOR THE SECOND LIMB OF THE GALBRIATH TEST
itness has given inherently weak, vague or contradictory evidence, or where the credibility of the
witness is open to question, such that the evidence presented by the prosecution could not
properly found a conviction. In general, issues of credibility are matters for the tribunal of fact
(the jury/magistrates) to weigh up in reaching a verdict and will not normally result in a case
being stopped on a submission of no case to answer.
/Abuse of process applications?
- Sometimes there is an issue of unfairness or impropriety so fundamental that continuance of trial would be an abuse of proves of court
- R v Crawly
- Where accused can no longer received a fair trial - NO BALANCING TETST IS NEEDED
- The second limb concerns the integrity of the criminal justice system and applies where the
court considers that the accused should not be standing trial at all, irrespective of the
potential fairness of the trial itself - UNDERMINE PUBLIC CONFIDENCE
Numerous cases where the proceedings may be stays
- Like where a d is coerced into committing an offence
- Where a defendant is prosecuted despite an unequivocal promise by the prosecution that the defendant will not be
- Where police have acted in such a way to undermine public confidence
- Deley can amount to abuse - inordinate or unconscionable delay due to the inefficiency of the prosecution in bringing a case
coupled with prejudice caused to the defence as a result may be sufficient for an abuse of
process application to succeed
Common law discretion to exclude evidence?
PACE S82(3) – preserved common law discretion to exclude evidence where its prejudicial effect outweighs its probative value – ONLY APPLIED TO PROSECUTION EVIDENCE
NOT VERY RELEVANT BECAUSE OF S76 AND 78
S78 applications?
- Exclusions of unfair evidence
- Concerned with fundamental concept of fairness
- Applies to evidence on which the prosecution proses to rely – wide variety of cases applied.
- Often included taking into account matter where defence contends evidence has been obtained unlawfully, improperly or unfairly
- S78 commonly utilised with s76 PACE
- Key TEST IS – hwtehr it would have an adverse effect on fairness of proceedings that court ought not to admit it
- If there has been a break of PACE COP – then likely to lead to it.
Breach of CODE C - Suspects must be informed of their rights
- Must be cautioned
- Interview to take place at a police station
Significant and substantial breaches of the codes - Where a breach is significant and substantial this may lead to an exclusion under s78
- When consider a s78 – you have to consider the effect of the breach the most
Making a s78 application - Can be made before the trial
- At the commencement of the trial
- Just prior to the prosecution seeking to admit the evidence which the defence wish to be excluded
IF S78 will have a material impact?
When an application to exclude evidence under s78 would result in prosecution case being fatally weakened, a judge will often want that argument to take place at a pre-trial hearing. – often before a jury is sworn.
Key point is – it should be made before the evidence is adduced
In practice – defene will often draft a skeleton argument in support
Prosecution will draft a skeleton opposing it
Directions will be given by judge in the crown court usually at plea and trial preparation hearing
Voir dire
- Where there is a dispute of the facts this will court
- Normal burden and standard of proof apply
- so in a voir dire - prosecution will need to prove beyond reaonsbale doubt that the alleged breach did not occur.
Excluding confessions s76? Admissability of s76?
Confession is a statement wholly or partly adverse to the person who made it
Definition in s82 PACE
- unequivocal confessions of guilt
- Mixed statements
- Depending on context a nod or sign can be sufficient
Starting point is that they’re allowed.
UNLESS
S76
- 2(a)Obtained by oppression
o ECHR art 3
- 2(b)Or in such a manner as to amount to be unreliable
o Where it’s represented that the confession was have been obtained din consequence of anything said or don e
o Which was likely in circumstances to render it unreliable
o Court shall not allow it
o Unless prosecution prove beyond reasonable doubt that it was not obtained as aforementioned
How s76 applies?
How to approach
S76(2)b cases –
- Identify thing said or done
o Like a promise to release
o A promise to reduce sentence
o A threat to arrest someone else
- Ask whether it in circumstances would render it unreliable - unreliable taken to mean cannot be relied upon saying the truth
- Whether prosecution has proved beyond reasonable doubt that this did not occur.
Evidence discorvered as a result of an exlcuded confession?
Section 76(4) PACE provides: the fact that a confession is wholly or partly excluded in pursuance
of this section shall not affect the admissibility in evidence—
’(a) of any facts discovered as a result of the confession; or
(b) where the confession is relevant as showing that the accused speaks, writes or
expresses himself in a particular way, of so much of the confession as is necessary to show
that he does so.’
f, for example, the police locate the body of a murder victim following the
confession of a defendant, even if that confession is excluded under s.76(2)(a) or (b), the fact of
the discovery of the body in that place is still admissible under s.76(4)(a). There is, therefore, no
rule excluding the ‘fruit of the poisoned tree’.
However, in these circumstances it would not be open to the prosecution to suggest that the body
was discovered by reason of something said by the defendant (eg ‘Members of the jury, we
cannot tell you what the defendant said, but as a result of what the defendant said the police
discovered the body of the deceased.’). To do so would be to circumvent the exclusion of the
confession itself.
This rule is contained in s.76(5) PACE:
’Evidence that a fact to which this subsection applies was discovered as a result of a statement
made by an accused person shall not be admissible unless evidence of how it was discovered is
given by him or on his behalf.’
Excluding confessions application?
4 parts
Advance notification -
equires that a defence statement
(optional in a magistrates’ court and mandatory in the Crown Court cases only)
should include any points of law – including any as to admissibility of evidence.
- At PTPH – the judge will review the defence statement and is likely to order defence to serve a skeleton argument in support of any s76/78 argument
- When dealing with case management in magistrates court – standard case prep time limit requires any defence skeleton argument in support at least 10 business days before trial.
Timing -
- In crown courts - application to exclude can be made at pre-trial hearing
- or during the trial its self
Voir dire
Where a challenge is raised under s.76(2)(a) and/or (b) the prosecution must prove beyond
reasonable doubt that the confession was not obtained by:
(a) oppression; and/or
(b) by anything said or done which was likely in the circumstances to render any confession
unreliable.
Where the facts on both sides are disputed the judge will have to make findings of fact. This is
done by way of a hearing called a voir dire (also known as a ‘trial within a trial’) where evidence is
called.
Magistrates and s76 and s78 notices?
If they decide to exclude the evidence, they are then (being judges of both fact and
law) required to exclude from their minds the excluded confession evidence, a ‘position in which
justices are commonly placed and one with which they are well capable of coping both by
training and by disposition.’ (Hayter v L [1998] 1 WLR 854, QBD, Poole J.). In a magistrates’ court,
where the application is under both s.76 and s.78 and the evidence is disputed, the magistrates
should hear evidence on the matter and decide the applications as a preliminary issue. If,
however, the application in a magistrates’ court is only under s.78, the magistrates have a
discretion to hear all the evidence in the usual way and decide upon its admissibility at a later
stage.
Submissions? INTSEATD OF A VOIR DIRE?
Submissions
A voir dire is only required if a factual matter relating to the substance of the legal argument
requires resolution for the argument to proceed.
If the background facts are agreed then there is no need for a voir dire and the legal argument
can be made on the agreed factual basis.
For example, where the defence rely for their s.76 argument on Code C breaches and the
prosecution agrees these breaches occurred (but simply wish to argue they do not amount to
oppression/unreliability), there will be no need for the prosecution to call evidence. At the hearing
the defence will make their submissions on s.76 and, should they wish, s.78. They will do this
orally, relying also on any previously submitted skeleton argument. The prosecution will respond,
first making submissions to demonstrate beyond reasonable doubt that the confession was not
obtained within s.76(2)(a) or (b) and, secondly, to deal with any defence s.78 arguments. Having
considered the submissions, the judge would then make a ruling in open court.
If the ruling was to exclude the confession, the prosecution could not refer to it during the trial. If
the effect of an excluded confession was to deprive the prosecution of its only real evidence in the
case, it would have no option but to offer no evidence against the defendant which would result in
a ‘not guilty’ verdict being entered.
