Evidence

Question 1

What is a ‘hearsay statement’?

Answer 1

A statement, not made in oral
evidence, that is relied on as evidence of a matter in it.

Question 2

How is a ‘statement’ defined?

Answer 2

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.

Question 3

What are examples of hearsay evidence?

Answer 3

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.

Question 4

What are the grounds for admitting hearsay evidence?

Answer 4

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.

Question 5

How does s.116 CJA 2003 make hearsay evidence admissible?

Answer 5

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.

Question 6

What are the conditions under s.116(2) CJA 2003?

Answer 6

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.

Question 7

According to s.117 CJA 2003, when is a statement contained in a document admissible as evidence of any matter stated?

Answer 7

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.

Question 8

What are the requirements of s.117(2) CJA 2003

Answer 8

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.

Question 9

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?

Answer 9

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).

Question 10

What are the preserved common law exceptions to the rule excluding hearsay evidence?

Answer 10

Evidence of a confession or mixed statement made by the defendant;

Evidence admitted as part of the res gestae.

Question 11

What is res gestae?

Answer 11

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.

Question 12

What are the factors a court must have regard to when considering whether hearsay is admissible in the interest of justice?

Answer 12

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.

Question 13

When does the Part 20 procedure for admitting hearsay evidence apply?

Answer 13

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.

Question 14

What is the Part 20 procedure for admitting hearsay evidence?

Answer 14

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.

Question 15

What is the definition of confession?

Answer 15

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.

Question 16

What is a mixed statement and are they admissible?

Answer 16

When a confession also includes a statement that is favourable to the defendant.

The whole statement will be admissible.

Question 17

Is a confession made by a defendant admissible in evidence against a co-defendant?

Answer 17

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.

Question 18

Is a pre-trial confession made by a defendant admissible in evidence against a co-defendant?

Answer 18

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.

Question 19

What are the grounds for challenging admissibility of confession evidence under s.76 PACE 1984?

Answer 19

The confession was obtained:

By oppression; or

In unreliable circumstances.

Question 20

What happens when confession evidence is challenged under s.76 PACE 1984

Answer 20

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.

Question 21

What constitutes oppression?

Answer 21

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’.

Question 22

When will a confession be unreliable?

Answer 22

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.

Question 23

What are examples of breaches of Code C that will render a confession unreliable?

Answer 23

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.

Question 24

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?

Answer 24

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.

Question 25

Can a co-defendant rely on a confession made by another defendant?

Answer 25

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.

Question 26

What if a co-defendant relies on a confession that was obtained as a result of oppression, or in circumstances rendering it
unreliable?

Answer 26

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.

Question 27

How can the admissibility of confession evidence be challenged under s.78 PACE 1984?

Answer 27

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.

Question 28

How can s.78 PACE 1984 be relied on for confessions the defendant accepts having made?

Answer 28

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.

Question 29

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?

Answer 29

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

Question 30

What is the procedure for challenging the admissibility of confession evidence in the Crown Court?

Answer 30

The admissibility of disputed confession evidence will be determined by the trial judge in the absence of the jury at a voir dire (a trial within a trial).

If the judge rules the confession to be inadmissible, the jury will hear nothing about the
confession. If the judge rules the confession to be admissible, the interviewing officer will
then give evidence of the confession when giving evidence to the jury.

Question 31

What is the procedure for challenging the admissibility of confession evidence in the magistrates’ court?

Answer 31

The magistrates must also hold
a voir dire. If the defendant raises submissions under s 76(2) and s 78, both arguments should
be dealt with at the same voir dire. If the defendant seeks to rely only on s 78, there is no
obligation to hold a voir dire.

Question 32

What happens to evidence obtained as a result of an inadmissible confession?

Answer 32

The fact that the court excludes evidence of a confession made by a defendant will not affect
the admissibility in evidence of any facts discovered as a result of the confession (s 76(4) PACE
1984) although the CPS will not be able to tell the court that such facts were discovered as a
result of a confession made by the defendant.

Question 33

How is ‘bad character’ defined?

Answer 33

Evidence of, or a disposition towards, misconduct other than evidence connected with the offence for which the defendant has been charged.

Question 34

How is ‘misconduct’ defined?

Answer 34

The commission of an offence or other reprehensible behaviour.

Question 35

What are the 7 gateways for bad character evidence to be raised at trial?

Answer 35

All parties to the proceedings agree to the evidence being admissible,

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,

It is important explanatory evidence,

It is relevant to an important matter in issue between the defendant and the
prosecution,

It has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,

It is evidence to correct a false impression given by the defendant, or

The defendant has made an attack on another person’s character.

Question 36

Can a defendant’s bad character prove guilt by itself?

Answer 36

No

Question 37

Why may a defendant want to introduce evidence of their own bad character?

Answer 37

If the defendant only has very minor previous convictions and does not want the jury or magistrates to think that, because they are not adducing evidence of their own good character, they may have extensive previous convictions.

If the defendant pleaded guilty on previous occasions but is pleading not guilty to the current matter. The defendant may use such convictions to say to the jury that they accept their guilt when they have committed an offence, but on this occasion they are
pleading not guilty because they genuinely have not committed the offence charged.

Question 38

When is bad character evidence important explanatory evidence?

Answer 38

If without it, the magistrates or jury would find it impossible or difficult properly to understand the case and the value of the evidence for understanding the case as a whole is substantial.

Where the evidence is clearly understandable without evidence of bad character, it should not be admitted.

Question 39

Does the court have the power under CJA 2003 to prevent the admission of bad character evidence that is important explanatory evidence?

Answer 39

No

Question 40

What does an important matter in issue between the defendant and the prosecution include?

Answer 40

The question whether the defendant has a propensity to commit offences of the kind with
which he is charged.

The question whether the defendant has a propensity to be untruthful

Question 41

What must the prosecution establish before placing evidence of the defendant’s propensity to commit an offence of the kind charged?

Answer 41

The CPS must satisfy the court that establishing such propensity makes it more likely that the defendant committed the offence.

Question 42

What evidence can be used to show a propensity to commit an offence of the kind charged?

Answer 42

An offence of the same description as the one with which he is charged, or

An offence of the same category as the one with which he is charged.

Question 43

What are offences of the same description?

Answer 43

Two offences will be of the same description as each other if the statement of the offence in
a written charge or an indictment would, in each case, be in the same terms.

Question 44

What are offences of the same category?

Answer 44

Two offences will be of the same category as each other if they belong to the same category
of offences prescribed by the Secretary of State such as the sexual offences category and the theft category.

Question 45

What offences are in the theft category?

Answer 45

Theft

Robbery

Burglary

Aggravated burglary

Taking a motor vehicle or conveyance without authority

Aggravated vehicle taking

Handling stolen goods

Going equipped for stealing

Making off without payment

Any attempt to commit any of the above substantive offences.

Aiding, abetting, counselling, procuring or inciting the commission of any of the
above offences.

Question 46

Can an offence that is not of the same description or same category be used as evidence of a propensity to commit offences of the kind with which he is charged?

Answer 46

Evidence of the defendant’s conviction for the an earlier offence may still be admissible if there are significant factual similarities between the offences,

Question 47

What are the guidelines a court must consider when the CPS seeks to adduce evidence of a
defendant’s previous convictions in order to demonstrate his propensity to commit offences of
the kind with which he is charged?

Answer 47

Does the defendant’s history of offending show a propensity to commit offences?

If so, does that propensity make it more likely that the defendant committed the current offence?

If so, is it just to rely on convictions of the same description or category,
having in mind the overriding principle that proceedings must be fair?

Question 48

What is the correlation between the number of previous convictions and the likelihood that a propensity to commit offences of the kind with which he is charged can be established?

Answer 48

The fewer the number of previous convictions the defendant has, the less likely
it is that propensity will be established.

If the defendant has only one previous conviction of the same description or category, this is unlikely to show propensity
unless there are distinguishing circumstances or a tendency towards unusual behaviour.

Question 49

When will a defendant’s previous convictions be admissible to show that the defendant has a propensity to be untruthful?

Answer 49

The manner in which the previous offence was committed demonstrates that the defendant
has a propensity to be untruthful.

The defendant pleaded not guilty to the earlier offence but was convicted following a trial
at which the defendant testified and was not believed.

Question 50

Which offences demonstrate a propensity to be untruthful?

Answer 50

Where the defendant had actively sought to deceive or mislead another person by the making of false representations such as fraud or perjury, but not offences of dishonesty such as theft.

Question 51

Under what grounds can the court exclude evidence admitted under gateway (d) after an application by a defendant to exclude it?

Answer 51

Where the evidence would
have such an adverse effect on the fairness of the proceedings that the court ought not to
admit it.

Question 52

When are the courts most likely to use their powers to exclude evidence admitted under gateway (d)?

Answer 52

When the nature of a defendant’s previous convictions is such that the jury is likely to convict a defendant on the basis of these convictions alone, rather than examining the other evidence placed before them.

Where the evidence of the previous convictions is
more prejudicial than probative.

When the CPS seeks to adduce previous convictions to support a case that is otherwise weak.

When the defendant’s previous convictions are ‘spent’

Question 53

What is the consequence of a conviction being ‘spent’?

Answer 53

The convicted person is to be treated as never having been convicted of the spent offence.

Question 54

What are time limits for spent convictions?

Answer 54

Question 55

When is a co-defendant likely to want to admit evidence of a defendant’s bad character under gateway (e)?

Answer 55

To demonstrate that the other defendant has a propensity to be untruthful (and thus to
undermine the credibility of the evidence given by that defendant), or to show that the other defendant has a propensity to commit the kind of offence with which they have both been
charged (thereby suggesting that it is the other defendant, rather than the co-defendant, who
committed the offence).

Question 56

What must a co-defendant show if they want to introduce evidence of the defendant’s propensity to commit offences of the same kind?

Answer 56

He will need to demonstrate that such convictions are relevant to an important matter in
issue between himself and the defendant, and that the relevance of such convictions is more than merely marginal or trivial.

Question 57

When is a co-defendant likely to want to admit evidence of a defendant’s propensity to be untruthful?

Answer 57

In a ‘cut-throat’ defence when there are two (or more) defendants jointly charged with an offence, and each defendant pleads not guilty and blames the other(s) as having committed
the offence. In such a situation, it will be an advantage for a co-defendant to be able to
adduce evidence of his fellow defendant’s previous convictions, in order to undermine the
credibility of that defendant’s evidence and to suggest that their version of events is the more credible.

Question 58

When will a defendant give a false impression?

Answer 58

‘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’.

Question 59

When will a defendant be treated as being responsible for making a false assertion?

Answer 59

When the assertion is:

Made by the defendant in the proceedings;

Made by the defendant when being questioned under caution by the police before charge, or on being charged;

Made by a witness called by the defendant;

Made by any witness in cross-examination in response to a question asked by the defendant that is intended to elicit it; or

Made by any person out of court, and the defendant adduces evidence of it in the proceedings.

Question 60

Whose character does the defendant need to attack to trigger gateway (e)?

Answer 60

It may be an attack on the character of a person who is dead, or a person whom the CPS does not intend to call to give evidence.

Question 61

When must the defendant attack the character of another person in order to trigger gateway (e)?

Answer 61

The attack on the character of the other person does not necessarily need to take place at trial.

The attack may be made when the defendant is being questioned at the police station, or in a defence statement that is served on the CPS.

Question 62

How must the defendant attack another person’s character to trigger gateway (e)?

Answer 62

Stating that the other person has committed an offence or behaved, or is disposed to behave in a reprehensible way.

Question 63

When must evidence admitted under gateway (d) be excluded by the courts?

Answer 63

If, on an application by the defendant, 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.

Question 64

For which gateways does the court not have the power to exclude bad character evidence?

Answer 64

Gateways (a), (b), (c), (e) and (f) are automatically admissible if the requirements for each of
these gateways are satisfied.

Question 65

How can bad character evidence be contaminated?

Answer 65

Contamination may occur if witnesses (in the Crown Court only) have colluded in order
to fabricate evidence of the defendant’s bad character.

Question 66

How can the Crown Court respond to contaminated bad character evidence?

Answer 66

A judge in the Crown Court can either to direct the jury to acquit the defendant, or to order a retrial.

Question 67

What is the procedure for admitting bad character evidence?

Answer 67

If the CPS wishes to adduce evidence of the defendant’s bad character, notice of this intention
must be given both to the court and to the other parties in the case. A prescribed form must be used, with a written record of the previous convictions the party
giving the notice or making the application is seeking to adduced must be attached.

The court will impose time limits for the parties to serve any notice or make any application
to adduce bad character evidence at trial.

If a defendant opposes the introduction of evidence of their bad character at trial, the
defendant must apply to the court for such evidence to be excluded. The application must
be sent both to the court and to the other parties in the case.

Question 68

When can bad character evidence of a person other than the defendant be admissible?

Answer 68

If it is important explanatory evidence;

If it has substantial probative value in relation to a matter which is a matter in issue in proceedings, and is of substantial importance in the context of the case as a whole; or

All parties agree to the evidence being admissible.

Leave of the court to adduce such evidence has been given.

Question 69

When is a defendant likely to adduce bad character evidence against a witness because it has substantial probative value in relation to an important matter in issue in the proceedings?

Answer 69

To support an allegation that:

The witness is lying or has fabricated evidence against the defendant.

The witnesses themselves is either guilty of the offence with which the defendant has been
charged or has engaged in misconduct in connection with the alleged offence:

Question 70

What evidence shows that a witness may lack credibility?

Answer 70

Previous convictions for offences where the witness has made a false statement or representation.

Previous convictions where the witness has been found guilty of an offence to which they pleaded not guilty but were convicted following a trial at which their version of events was disbelieved.

Previous convictions of a witness which demonstrated a propensity to be dishonest (as opposed to a
propensity to be untruthful) may be admissible.

Question 71

How can another person’s previous misconduct be of probative value to show their misconduct in connection with the current offence?

Answer 71

Where there is a similarity between that person’s previous misconduct and the alleged misconduct in connection with the current offence.

The court will have regard to the nature and extent of the similarities and dissimilarities between each of the alleged instances of misconduct

Question 72

How can another person’s previous misconduct be of probative value to show they are guilty of the current offence?

Answer 72

The court must be satisfied that the other individual was more likely than the defendant to commit the offence having regard to the nature and
the extent of the similarities and dissimilarities between the other person’s previous convictions and the facts of the current offence.