Evidence

Question 1

What are facts in issue?

Answer 1

Facts that any party needs to prove in order to prove its case.

Prosecution: the facts needed to prove the offence charged.

Court then tries to narrow the issues as much as possible to see what elements the defence agree upon.

Question 2

How do you prove a fact other than by calling a live witness?

Answer 2

• agreeing a witness statement as true by consent of the parties
• agreeing any fact between the parties
• a judge or jury to take ‘judicial notice’ of the fact

Question 3

Agreeing a witness statement as true by consent of the parties

Answer 3

• Witness’s statement can be agreed as accurate and true in its written form
• Statement is then simply read out and carries the same weight as if the witness had attended in person, sworn and given evidence in the witness box
• Evidence is only agreed this way if there is no challenge to the evidence.
• If evidence is disputed, then the witness must be called orally so the court can see and assess the dispute being aired openly and decide accordingly

Question 4

Agreeing a fact between the parties

Answer 4

Another way to prove a fact is simply for the advocates in a case to agree that the fact is so.

The fact is reduced to writing and both parties agree and sign the agreement.

Question 5

Judicial notice

Answer 5

If a fact is known generally, can take judicial notice. “The economy is doing poorly”

If a fact that is searchable e.g. which counties border Staffordshire, the parties can ask the judge to take judicial notice on enquiry - and let the judge look up the answer.

Jurors cannot look up the answer.

Question 6

Different forms of evidence

Answer 6

a) oral evidence given by a witness in court (most common)

b) written form:
i) agreed statements
ii) admitted facts

c) real evidence

d) direct evidence

e) circumstantial evidence

f) a view

Question 7

Real Evidence

Answer 7

Objects and things which are brought to court for inspection.

Sometimes in the form of documents which are exhibited by witnesses who vouch for their origin.

Question 8

Direct evidence v circumstantial evidence

Answer 8

Direct evidence: namely evidence that a witness gives of having had direct experience of a matter in issue e.g. someone saw the defendant at the train station at midnight

Circumstantial evidence: evidence from which facts are inferred e.g. found a train ticket for a train on d arriving at midnight

Question 9

A view

Answer 9

Occasionally, juries can visit a scene of a crime or leave court to view an object that cannot be brought into court.

Observations become evidence in the case.

Question 10

Admissible and inadmissible evidence

Answer 10

For evidence to be admissible it must be relevant.

Relevance is established by whether the evidence is logically probative of a fact in issue. - i.e. does the evidence tend to prove or disprove a fact in issue.

Question 11

Exclusionary rules

Answer 11

Considered after relevance.

If relevant can still be subject to an exclusionary rule e.g. fairness of a trial.

E.g. if the police acquired evidence illegally then the exclusionary rule would prevent the use of it in court.

Question 12

Weight

Answer 12

All evidence varies in terms of how strong, reliable and valuable it is.

Attaching the right degree of weight to a piece of evidence is a matter for the jury.

Advocates will typically devote considerable effort into persuading the jurors as to what weight they should attach to the evidence.

If evidence is problematic the judge may intervene to rule it inadmissible. (No one could put reasonable reliance on the evidence).

Question 13

Three types of questions to ask about relevance

Answer 13

1) Is the evidence relevant? (to a fact in issue)

2) Is there an exclusionary rule? (rules around unfairness)

3) Is there an inclusionary rule?

Question 14

Inclusionary rules

Answer 14

Some evidence is inadmissible per se e.g. bad character evidence.

Will need to consider relevance generally and then consider if there is a way to admit the evidence despite the general embargo.

All still subject to s 78.

Question 15

Relevance, discretion and admission

Answer 15

(1) Relevance - all decisions on admissibility start with question of relevance

(2) Exclusionary discretion - the final filter before any evidence is admitted is s78

(3) Inclusionary rule - where the evidence is a type which can’t be admitted without an inclusionary rule:
(i) does the inclusionary rule apply?
(ii) Does the legislation make any provision to exclude evidence that would otherwise pass through the exclusionary rule?

Question 16

s. 78 PACE

Answer 16

Safeguard which allows courts to find evidence as inadmissible is the PACE procedures are not followed.

– so for prosecution evidence which has not been collected or gathered in the appropriate way.

Question 17

s. 78 wording

Answer 17

In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.

Question 18

Examples of wrongly obtained material under PACE

Answer 18

• Searches without proper authority
• Interviewing witnesses without cautioning them properly first
• Denying access to a solicitor
• Oppression or tricks in the interview
• Not following proper procedures in identification cases needing parades

Question 19

s78 - significant and substantial breaches

Answer 19

Not as simple as saying that if there is a breach of PACE then automatically inadmissible - much more nuanced

Breach must be significant and substantial!

Q: what the effect the evidence will have on the fairness of the trial (courts sometime can conclude that the evidence is such good quality that the verdict would reflect the truth of the situation)

Question 20

Common law exclusion of evidence

Answer 20

Courts can exclude evidence when the “probative value of the evidence is outweighed by its prejudicial effect”

Example: eavesdropping is not in PACE and is not against the rules but if the information is spotty/not contextualised
- can apply under common law that it is more prejudiced than probative, despite it being lawfully obtained.

Question 21

What is an application for dismissal?

Answer 21

Pre-trial application to have the charges against a defendant dismissed.

Schedule 3 of Crime and Disorder Act 1998
CrimPR 9.16

Application can be made:
- only after a defendant is sent by MC for trial in CC
- only after the d has been served with the evidence relating to the offence
- only before the defendant is arraigned

Question 22

Application for dismissal

Answer 22

Judge shall dismiss a charge if it appears to him that the evidence against the application would not be sufficient for him to be properly convicted.

Same test as no case to answer:
Judge should stop the case:
(a) where there is no evidence that the crime has been committed by the defendant; or
(b) where the prosecution evidence taken at its highest is such that a properly directed jury could not properly convict on it

Question 23

No case to answer: R v Galbraith

Answer 23

Can submit after the prosecution has presented all of its evidence (in both MC and CC).

In cc, application will be made in the absence of the jury.

Judge should stop the case:
(a) where there is no evidence that the crime has been committed by the defendant; or
(b) where the prosecution evidence taken at its highest is such that a properly directed jury could not properly convict on it

Question 24

Limitations of s78

Answer 24

Only applies to evidence on which the prosecution proposes to rely, so it cannot be used by the prosecution or a co-defendant to exclude evidence that a defendant seeks to admit.

Question 25

What is an abuse of process application?

Answer 25

Application is to stay the proceedings as an abuse of process.

Where an issue of unfairness or impropriety so fundamental that for the trial to continue would be an abuse of the process of the court.

Cases often go beyond applications to exclude evidence and to the heart of whether or not a case should be allowed to continue.

Defence can apply to stay proceedings as an abuse of process of the court.

Grounds

(i) impossible to give the accused a fair trial

(ii) where it offends the courts sense of justice and propriety to be asked to try accused and threatens integrity of the criminal justice system.

Question 26

Examples of abuse of process applications

Answer 26

• Defendant has been tricked or coerced into committing an offence the defendant would not otherwise have committed
• Defendant is prosecuted despite unequivocal promise by the prosecution that the defendant will not be
• Police have acted in such a way as to undermine public confidence in the criminal justice system and bring it into disrepute (deliberately destroying evidence)
• Prosecution have manipulated or misused the process of the court so as to deprive a defendant of a protection afforded by the law

Significant delay can also count as an abuse of process

Question 27

Main methods to exclude evidence or stop a case

Answer 27

1. Application for dismissal (cases sent to Crown Court) - made after evidence is served and before arraignment, same as Galbraith test
2. Submission of no case to answer - only available during trial at the close of the prosecution case (Galbraith test)
3. s.78 PACE - main provision, only exclude prosecution evidence
4. s. 76 PACE - excluding confessions: can be used along with s. 78
5. Exclude under common law
6. Abuse of process application - stay indictment where either (1) defendant cannot have a fair trial or (2) continuing offends the courts sense of justice or would undermine criminal justice system

Question 28

Criminal trial: burden and standard of proof

Answer 28

Burden of proving the elements of the offence is always on the prosecution.

Standard to which prosecution is put is always so that you are sure of guilt - beyond reasonable doubt.

Question 29

Legal and evidential burden

Answer 29

Legal: requirement to prove an element of your case to a prescribed standard

Evidential burden: burden to raise some evidence to satisfy the judge that the matter should be argued before the jury is the evidential burden.

Question 30

Duress and alibi

Answer 30

Once these have been raised, it is for the prosecution to disprove beyond reasonable doubt.