Evidence Flashcards
What is a ‘hearsay statement’?
A statement, not made in oral
evidence, that is relied on as evidence of a matter in it.
How is a ‘statement’ defined?
Any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form’.
The 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 (or a machine to operate) on the basis that the matter, is as stated.
What are examples of hearsay evidence?
A witness repeating at trial what they had been told by another person;
A statement from a witness being read out at trial instead of the witness attending court
to give oral evidence;
A police officer repeating at trial a confession made to them by the defendant;
A business document being introduced in evidence at trial.
What are the grounds for admitting hearsay evidence?
Any provision of this Chapter of CJA 2003 or any other statutory provision makes it admissible,
Any rule of law preserved by section 118 makes it admissible,
All parties to the proceedings agree to it being admissible, or
The court is satisfied that it is in the interests of justice for it to be admissible.
How does s.116 CJA 2003 make hearsay evidence admissible?
The statement must be first-hand hearsay;
The person who made the statement is identified to the court’s satisfaction; and
Any of the five conditions in s.116(2) is satisfied.
What are the conditions under s.116(2) CJA 2003?
The relevant person is dead;
The relevant person is unfit to be a witness because of his bodily or mental condition;
The relevant person is outside the United Kingdom and it is not reasonably practicable to
secure his attendance;
The relevant person cannot be found, although such steps as it is reasonably practicable to take to find him have been taken;
Through fear, the relevant person does not 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.
According to s.117 CJA 2003, when is a statement contained in a document admissible as evidence of any matter stated?
Oral evidence given in the proceedings would be evidence of that matter.
The requirements of subsection 117(2) are satisfied, and
The requirements of subsection 117(5) are satisfied, in a case where subsection 117(4) requires them to be.
What are the requirements of s.117(2) CJA 2003
The document (or the part of it containing the statement) must have been 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;
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
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.
Under s.117(5) CJA 2003 what requirements must be satisfied if a statement was prepared for the purposes pending or contemplated criminal proceedings/investigation?
Any of the five conditions mentioned in s 116(2) CJA 2003 is satisfied; or
The relevant person cannot reasonably 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).
What are the preserved common law exceptions to the rule excluding hearsay evidence?
Evidence of a confession or mixed statement made by the defendant;
Evidence admitted as part of the res gestae.
What is res gestae?
A statement made contemporaneously with an event will be admissible as an exception to the hearsay rule because the spontaneity of the statement meant that any possibility of concoction can be disregarded.
What are the factors a court must have regard to when considering whether hearsay is admissible in the interest of justice?
How much probative value the statement has;
What other evidence has been, or can be, given on the matter or evidence;
How important the matter or evidence is in the context of the case as a whole;
The circumstances in which the statement was made;
How reliable the maker of the statement appears to be;
How reliable the evidence of the making of the statement appears to be;
Whether oral evidence of the matter stated can be given and, if not, why not;
The amount of difficulty involved in challenging the statement; and
The extent to which that difficulty would be likely to prejudice the party facing it.
When does the Part 20 procedure for admitting hearsay evidence apply?
Where:
It is in the interests of justice for the hearsay evidence to be admissible (s.114(1)(d));
The witness is unavailable to attend court (s.116);
The evidence is multiple hearsay (s.121); or
Either the prosecution or the defence rely on s.117 for the admission of a written witness
statement prepared for use in criminal proceedings.
What is the Part 20 procedure for admitting hearsay evidence?
A party wishing to adduce hearsay evidence to which Part 20 applies, or to oppose another
party’s application to introduce such evidence must give written notice of its intention to do this both to the court and to the other parties in the case.
The court will impose time limits for the CPS and the defendant to give notice of their intention to adduce hearsay evidence at
trial.
The court may dispense with the requirement to give notice
of hearsay evidence, to allow notice to be given orally rather than in writing, and to shorten or
extend the time limits for giving notice.
What is the definition of confession?
Any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.
What is a mixed statement and are they admissible?
When a confession also includes a statement that is favourable to the defendant.
The whole statement will be admissible.
Is a confession made by a defendant admissible in evidence against a co-defendant?
Any evidence given by a co- defendant at trial which implicates a defendant (including a confession made by the co- defendant) will be admissible in evidence against the defendant.
if the co- defendant has pleaded guilty at an earlier hearing and is giving evidence for the prosecution at the trial of the defendant, any evidence given implicating the defendant in
the commission of the offence will be admissible in evidence against the defendant.
Is a pre-trial confession made by a defendant admissible in evidence against a co-defendant?
The longstanding position at common law has been that a pre-trial confession made by one
defendant which also implicates another defendant is admissible only against the defendant
who makes the confession.
What are the grounds for challenging admissibility of confession evidence under s.76 PACE 1984?
The confession was obtained:
By oppression; or
In unreliable circumstances.
What happens when confession evidence is challenged under s.76 PACE 1984
The court must not allow that confession to be used as evidence by the prosecution unless the prosecution prove beyond a reasonable doubt that the confession was not obtained by oppression or in circumstances that render it unreliable.
What constitutes oppression?
Torture, inhuman or degrading
treatment, and the use or threat of violence.
The exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc; the imposition of unreasonable or unjust burdens’.
When will a confession be unreliable?
When there is a breach of Code C that caused the defendant to make a confession for reasons other than the fact that they had actually committed the offence and wanted to admit guilt.
What are examples of breaches of Code C that will render a confession unreliable?
denying a suspect refreshments or appropriate periods of rest between interviews, so that
the suspect is either not in a fit state to answer questions properly, or makes admissions
in interview simply to get out of the police station as soon as possible or to obtain rest or
refreshments.
Offering a suspect an inducement to confess, for example, telling a suspect that if they confess they will receive a lesser sentence.
Misrepresenting the strength of the prosecution case, for example by telling a suspect
that the prosecution case is much stronger than it actually is.
Questioning a suspect in an inappropriate way.
Questioning a suspect who the police should have known was not in a fit state to be interviewed either because the suspect had consumed drink or drugs, or because the suspect was suffering from some form of medical condition or ailment.
Threatening a suspect.
What must be shown when a defendant argues that their confession is unreliable because they were denied access to legal advice at the police station?
There must be a causal
link between the denial of legal advice and the unreliability of the confession that was subsequently made.
Therefore, a defendant will find
it hard to establish a causal link if they are an experienced criminal who is fully aware of their
rights when detained at the police station.
Can a co-defendant rely on a confession made by another defendant?
s.76A(1) of PACE 1984 allows a defendant to adduce evidence that a co-defendant has
made a confession where both defendants plead not guilty and are tried jointly.
What if a co-defendant relies on a confession that was obtained as a result of oppression, or in circumstances rendering it
unreliable?
The court must exclude the evidence of the confession (even if the court believes the confession to be true), unless the court is satisfied that the confession was not obtained in such a way. The court need only be satisfied on the balance of probabilities that the confession was not obtained either by oppression or in circumstances rendering it unreliable in order for the confession to be admissible when a co-defendant wants to rely on it as opposed to the prosecution.
How can the admissibility of confession evidence be challenged under s.78 PACE 1984?
Section 78 provides the court with the discretion to exclude confession evidence on which the CPS seeks to rely if the court considers that the admission of the confession would have such an adverse effect on the fairness of proceedings that it ought not to be admitted.
Section 78 may be relied on either when the defendant admits making a confession but claims that the confession is untrue, or when the defendant denies making the confession at all.
How can s.78 PACE 1984 be relied on for confessions the defendant accepts having made?
When a defendant alleges that the police breached the provisions of PACE 1984 and/ or the Codes of Practice in obtaining a confession, the court is only likely to exercise its discretion
under s 78 to exclude such evidence if these breaches are both significant and substantial.
In most cases where a defendant had been denied access
to legal advice in breach of s 58 of PACE 1984 or the provisions of Code C, this would lead to
the court exercising its discretion to exclude any confession that the defendant subsequently
made, since allowing the CPS to rely on such evidence would have an adverse effect on the
fairness of the proceedings.
How can s.78 PACE 1984 be relied on for confessions made by the defendant when questioned by the police in an interview ‘outside’ the police station?
If the police breached the provisions of Code C of PACE 1984 by:
Failing to make an accurate record of the defendant’s comments.
Failing to give the defendant an opportunity to view the record of his comments and to sign this record as being accurate, or to dispute the accuracy of the record.
Failing to put this admission or confession to the defendant at the start of his subsequent
interview at the police station