Evidence Flashcards
1
Q
What are ‘facts in issue’?
A
The facts that any party needs to prove in order to prove its case.
2
Q
What is the role of the prosecution regarding facts in issue?
A
To prove the offence(s) charged by establishing the necessary facts.
3
Q
What is one way to prove a fact without calling live evidence?
A
By agreeing a witness statement as true by consent of the parties, Criminal Justice Act 1967, s.9.
4
Q
What is the Criminal Justice Act 1967, s.10 about?
A
It allows parties to agree on any fact, which is then reduced to writing and signed.
5
Q
What does ‘judicial notice’ mean?
A
A judge or jury can accept certain facts as known without needing formal proof.
6
Q
What types of evidence exist?
A
- Oral evidence
- Written evidence
- Real evidence
- Direct evidence
- Circumstantial evidence
- A view
7
Q
What is ‘real evidence’?
A
Objects and things brought to court for inspection.
8
Q
Differentiate between direct evidence and circumstantial evidence.
A
Direct evidence is from a witness with direct experience, while circumstantial evidence is inferred from facts.
9
Q
What is a ‘view’ in legal terms?
A
When juries visit a scene of a crime or an object that cannot be brought into court.
10
Q
What must evidence be to be admissible?
A
Relevant.
11
Q
What does ‘relevance’ in evidence imply?
A
Evidence must be logically probative of a fact in issue.
12
Q
What happens if evidence is deemed irrelevant?
A
It is inadmissible.
13
Q
What is the significance of the case R v Usayi [2017]?
A
The court found certain evidence insufficiently relevant and inadmissible.
14
Q
What are exclusionary rules?
A
Rules that prevent the admission of relevant evidence to protect the fairness of trials.
15
Q
What is meant by ‘weight’ of evidence?
A
The strength, reliability, and value of evidence.
16
Q
Who determines the facts in a trial?
A
The tribunal of fact.
17
Q
Who determines the law in a trial?
A
The tribunal of law.
18
Q
What is the difference between the Crown Court and Magistrates’ Court regarding tribunals?
A
In the Crown Court, the judge and jury serve different roles, while in the Magistrates’ Court, the same individuals serve both roles.
19
Q
What should jurors do if they have personal knowledge relevant to a case?
A
They should inform the court.
20
Q
What is the implication of a judge ruling evidence as inadmissible?
A
In the Crown Court, jurors will not learn of the excluded evidence, but in the Magistrates’ Court, the same bench must disregard it.
21
Q
What are the three criteria for evidence to be admissible?
A
- Relevant
- Not subject to an exclusionary rule
- Not poor-quality evidence
22
Q
Fill in the blank: Evidence must be _______ to be admissible.
A
relevant
23
Q
True or False: Jurors can conduct their own research on a case.
A
False.
24
Q
Who bears the legal burden of proving the elements of a criminal offence?
A
The prosecution.
25
What is the standard of proof for the prosecution in a criminal case?
Beyond reasonable doubt (or 'so that you are sure').
26
What is the legal burden?
The obligation to prove an element of a case to a prescribed standard.
27
What is the standard of proof when the defence bears the legal burden?
On the balance of probabilities.
28
Give an example of when the defence has a legal burden.
When raising a defence like insanity or diminished responsibility.
29
What is the evidential burden?
The obligation to raise some evidence so that a fact or issue can be considered by the jury.
30
Who decides if the evidential burden is met?
The judge (tribunal of law).
31
Does the defence acquire a legal burden by simply challenging the prosecution case?
No, unless asserting a specific defence like insanity.
32
In self-defence, does the defence carry the legal burden?
No, only the evidential burden. The prosecution must disprove self-defence.
33
What happens if the prosecution fails to meet the evidential burden on an element?
The judge may withdraw the issue from the jury and the case could be dismissed.
34
What is required for the defence to raise self-defence before the jury?
Some evidence of self-defence must be introduced (pass the judge).
35
Who must disprove an alibi once raised?
The prosecution, beyond a reasonable doubt.
36
Who must disprove duress once it's raised with sufficient evidence?
The prosecution, beyond a reasonable doubt.
37
Can the legal and evidential burden ever be detached?
Yes, in rare cases like self-defence.
38
What is an application for dismissal?
Pre-trial application to have charges against defendant dropped.
39
What is the first question to consider for the admissibility of evidence?
Is the evidence relevant?
40
What happens if the evidence is not relevant?
The evidence is inadmissible.
41
If the evidence is relevant, what is the next question to ask?
Is the evidence of a special character (e.g., hearsay or bad character)?
42
What should you ask if the evidence is not of a special character?
Does an exclusionary discretion apply (s.78 or common law)?
43
If an exclusionary discretion does not apply, what is the status of the evidence?
The evidence is admissible.
44
What if the evidence is of a special character?
Proceed to the next question: Does the inclusionary rule allow for admission of the evidence?
45
What happens if the inclusionary rule does not allow for admission?
The evidence is inadmissible.
46
After confirming the inclusionary rule allows admission, what is the next question?
Does an exclusionary provision within the statutory framework for the ‘special character’ apply?
47
If no exclusionary provision applies, what should you ask next?
Does an exclusionary discretion apply (s.78 or common law)?
48
What is the significance of s.78 PACE in evidence admissibility?
It allows courts to exclude evidence if its admission would adversely affect the fairness of the proceedings.
49
What are some examples of evidence that could be 'wrongly' obtained according to PACE?
Searches without proper authority, interviewing witnesses without proper caution, denying access to a solicitor, oppression in interviews.
50
What is required for a breach of PACE to lead to exclusion of evidence?
The breach generally needs to be 'significant and substantial'.
51
What is the common law power regarding evidence exclusion?
Courts can exclude evidence when its probative value is outweighed by its prejudicial effect.
52
Why might common law apply instead of s.78 PACE?
In cases like police eavesdropping, where PACE does not specifically address the method of evidence collection.
53
Excluding evidence
Methods to exclude evidence or stop a criminal case if necessary.
54
Application for dismissal
A pre-trial application to dismiss charges against a defendant, made after evidence is served and before arraignment.
55
Submission of no case to answer
An application made during trial after the prosecution has presented all evidence, stating that there is no case to answer.
56
Application under s.78 PACE
The main provision used to exclude prosecution evidence based on fairness.
57
Application to exclude a confession
An application under s.76 PACE to exclude confessions, often used with s.78 PACE.
58
Application to exclude evidence under the common law
Application under s.82(3) PACE to exclude prosecution evidence when its prejudicial effect outweighs its probative value.
59
Abuse of process application
An application to stay proceedings if continuing the prosecution would either (1) prevent a fair trial, or (2) undermine public confidence in the justice system.
60
R v Galbraith [1981]
A case that set out the test for submissions of no case to answer, where there is either no evidence or weak evidence.
61
R v Crawley [2014]
A case that summarized the power to stay proceedings for abuse of process in two categories: (1) unfair trial, (2) undermining the integrity of the justice system.
62
R v Maxwell [2011]
A case that discussed the two categories for staying proceedings: (1) unfair trial, (2) offenses to the court's sense of justice.
63
CrimPR r.9.16
The procedure for making an application for dismissal in the Crown Court after evidence is served and before arraignment.
64
CrimPR r.24.3(3)(d)
The procedure for making a submission of no case to answer in the magistrates' court.
65
CrimPR r.25.9(2)(e)
The procedure for making a submission of no case to answer in the Crown Court.
66
Section 76 PACE
A provision used to exclude confessions that have been improperly obtained.
67
Section 78 PACE
A provision used to exclude prosecution evidence based on fairness and trial fairness.
68
Section 82(3) PACE
Preserves the common law discretion to exclude evidence where its prejudicial effect outweighs its probative value.
69
Abuse of process cases
Includes situations where a defendant is tricked or coerced, or where the prosecution has acted unfairly, such as destroying evidence or delaying proceedings.
70
What is the key test for the court in deciding whether to exclude prosecution evidence under s.78 of PACE?
The court considers whether 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.
71
Which party can use s.78 PACE to exclude evidence?
Only the defence can use s.78 to exclude prosecution evidence.
72
Can the prosecution use s.78 PACE to exclude evidence?
No, s.78 only applies to evidence the prosecution intends to rely on, and cannot be used by the prosecution or a co-defendant to exclude evidence the defendant seeks to admit.
73
What is a common situation where s.78 PACE might be applied to exclude evidence?
It is commonly applied to exclude evidence obtained in breach of the European Convention on Human Rights or the provisions of PACE or the Codes of Practice.
74
How do the Codes of Practice under PACE relate to s.78 PACE applications?
Breaches of the Codes of Practice, such as improper detentions or failure to caution, can be cited in a s.78 application to exclude evidence.
75
What is a voir dire in the context of a s.78 application?
A voir dire is a mini-trial within a trial where the judge hears evidence to resolve factual disputes before deciding whether evidence should be excluded.
76
When can a s.78 application be made?
A s.78 application can be made before the trial, at the commencement of the trial, or just prior to the prosecution seeking to admit the evidence.
77
Can a judge exclude evidence merely to mark disapproval of police conduct?
No, the judge is not concerned with punishing the police but with determining whether the admission of the evidence would be unfair.
78
What is the effect of a significant breach of the PACE Codes of Practice on a s.78 application?
A significant breach of the PACE Codes is more likely to lead to the exclusion of evidence under s.78, particularly if it results in unfairness to the defendant.
79
Is it automatic that a breach of the PACE Codes leads to the exclusion of evidence?
No, not every breach leads to exclusion; the court considers whether the breach causes unfairness in the trial.
80
Can a s.78 application be made after evidence has been adduced?
No, the s.78 application must be made before the evidence is adduced.
81
Which legal test is applied in the case of a significant breach of the PACE Codes?
The court will assess whether the breach led to unfairness or injustice, with the trial judge having discretion on the matter.
82
How can the defence prove that a breach of the PACE Codes resulted in unfairness?
The defence may argue that the breach affected the fairness of the trial, for example, by denying access to legal advice or failing to caution the suspect properly.
83
What should happen if a dispute arises over the facts in a s.78 application?
If there is a dispute over the facts, a voir dire (trial within a trial) will be held to resolve the factual issues before applying the law.
84
Can a s.78 application be made in the magistrates' court?
Yes, similar directions will be given in the magistrates' court for when a s.78 application will be heard.
85
Give an example of a case where s.78 was used to exclude evidence obtained through a breach of the Codes of Practice.
In Charles v Crown Prosecution Service [2009], a breach of the PACE Codes was found to undermine detainee protection, resulting in the exclusion of evidence.
86
What happens if a s.78 application results in a prosecution case being fatally weakened?
The judge may decide to hear the application at a pre-trial hearing or the start of the trial to determine whether the prosecution can proceed with the remaining evidence.
87
What is hearsay?
Hearsay is a statement made out of court that cannot be presented as evidence of its contents.
88
What is the general rule about hearsay?
The general rule is that hearsay is inadmissible, as it is an example of an exclusionary rule.
89
What are exclusionary rules in evidence?
Exclusionary rules prevent relevant evidence from being admitted if it fails to meet certain criteria, such as hearsay.
90
What is the primary issue with hearsay in criminal cases?
The primary issue is that hearsay cannot be cross-examined, which affects the reliability and fairness of the trial.
91
What is the first question to ask when addressing potential hearsay evidence?
Does the evidence fall within the definition of hearsay evidence?
92
What is the second question to ask when addressing potential hearsay evidence?
Does the evidence fall within one of the exceptions to the general exclusionary rule?
93
What was the rationale for the hearsay rule at common law?
The rationale was that out-of-court statements could not be tested by cross-examination, which raised concerns about the credibility of the evidence.
94
How does the Criminal Justice Act (CJA) 2003 relate to hearsay evidence?
Section 114 of the CJA 2003 allows hearsay evidence to be admissible if it falls within one of the exceptions in the Act.
95
According to the CJA 2003, when is hearsay admissible?
Hearsay is admissible if it meets one of the exceptions listed in Section 114(1) of the CJA 2003.
96
What is the purpose of Section 115 of the CJA 2003?
Section 115 defines 'statement' and 'matter stated' to clarify what constitutes hearsay evidence.
97
What is the three-part test for determining hearsay in R v Twist?
1. Identify the relevant fact the communication seeks to prove. 2. Check if the communication contains a statement of that matter. 3. Determine if the communication's purpose was for the recipient to believe or act on the matter as true.
98
What is an example of non-hearsay evidence?
A private diary is not hearsay if the writer did not intend for anyone else to read it.
99
What is an example of non-hearsay evidence involving CCTV?
CCTV footage created by a device without human input is not hearsay, as it does not involve a statement made by a person.
100
What does 'not hearsay' mean in relation to questions?
If a communication consists only of a question, it is not hearsay, as there is no statement of matter.
101
How is evidence of threats considered in relation to hearsay?
Evidence of threats is not hearsay if it is used to show that the threat was made, not that the threat will be carried out.
102
What is the significance of original evidence?
Original evidence refers to evidence of words spoken out of court, which may be admissible if the purpose is to show that the words were spoken, not their truth.
103
Can hearsay be used to show the effect of words spoken?
Yes, if the purpose is to show the effect the words had on the listener, it is not hearsay.
104
What is an example of legally significant words not being hearsay?
An offer of sexual services in exchange for money is not hearsay as it forms part of the definition of 'brothel'.
105
Can hearsay be used to prove falsehoods?
Yes, evidence of false statements made out of court is not hearsay if it is used to assert that the statement is untrue.
106
How does hearsay relate to the European Convention on Human Rights (ECHR)?
The right to a fair trial under Article 6 of the ECHR may be engaged when hearsay evidence is admitted.
107
How should hearsay evidence be handled in court?
Hearsay evidence must be assessed using the structured questions and tests, and any exceptions under the CJA 2003 must be considered.
108
What is hearsay according to the Criminal Justice Act 2003?
A statement is hearsay if: it is made out of court; the person that made it intended another person to believe it; and it is adduced as evidence of the matter stated (s.114(1) and s.115).
109
Under what circumstances is hearsay admissible under s.114(1) of the Criminal Justice Act 2003?
Hearsay is admissible if: any statutory exceptions apply, any common law exceptions preserved under the CJA 2003 apply, all parties agree, or the court uses its discretion to admit it in the interests of justice.
110
What are the exceptions to the hearsay rule according to s.116 of the Criminal Justice Act 2003?
Hearsay may be admissible if the witness is unavailable due to death, unfitness to be a witness, being outside the UK, being untraceable, or fear (s.116).
111
How does the court define an unavailable witness under s.116?
An unavailable witness is one who is dead, unfit to be a witness, outside the UK, untraceable, or unwilling to testify due to fear, and the court considers the conditions under s.116(2).
112
What does unfitness to be a witness mean under s.116(2)(b)?
Unfitness to be a witness refers to the person's inability to give evidence due to their bodily or mental condition, which may include trauma such as being a victim of a sexual assault.
113
What conditions allow hearsay evidence from a witness outside the UK according to s.116(2)(c)?
Hearsay may be admissible if the relevant person is outside the UK and it is not reasonably practicable to secure their attendance.
114
What is required for hearsay evidence when a witness cannot be found under s.116(2)(d)?
The court must consider whether reasonable steps were taken to find the witness and the cost versus the importance of the evidence.
115
How does 'fear' affect the admissibility of hearsay evidence under s.116(2)(e)?
If a witness does not give evidence due to fear, the court may admit hearsay evidence if it is in the interests of justice, considering the statement's contents, risk of unfairness, and other circumstances.
116
What does the term 'fear' include under s.116(3)?
'Fear' is broadly defined to include fear of death, injury, or financial loss.
117
How does the court approach cases of witness intimidation under s.116(5)?
If intimidation by the defendant is proved or highly probable, the court may admit hearsay evidence, and the defendant cannot complain about not cross-examining the witness.
118
What types of documents qualify as business documents under s.117 of the Criminal Justice Act 2003?
Business documents include those created or received in the course of trade, business, profession, or office, such as medical records or police reports.
119
What extra requirements apply to documents prepared for criminal proceedings under s.117(4) and (5)?
Documents prepared for criminal proceedings must either meet one of the conditions under s.116 or show that the person who supplied the information cannot reasonably remember the facts.
120
Can the court exclude business documents under s.117 if they are unreliable?
Yes, under s.117(6) and (7), the court can exclude business documents if it doubts their reliability based on content, source, or circumstances of creation.
121
What factors does the court consider under s.114(2) when admitting hearsay evidence in the interests of justice?
Factors include the probative value of the statement, available evidence, importance of the matter, reliability of the statement's maker, and difficulty of challenging the statement.
122
What is the purpose of s.114(1)(d) in the Criminal Justice Act 2003?
S.114(1)(d) allows the court to admit hearsay if it is in the interests of justice, but this should not be used to circumvent other exceptions to the hearsay rule.
123
Can hearsay evidence be admitted if the Crown fails to take reasonable steps to secure a witness?
No, if the Crown fails to secure a witness’s attendance, they cannot use s.114(1)(d) to admit hearsay evidence.
124
Summary: Under what conditions can hearsay evidence be admitted according to the CJA 2003?
Hearsay can be admitted if: the witness is unavailable (s.116), the statement is a business document (s.117), or it is in the interests of justice (s.114(1)(d)).
125
What are the three conditions that make a statement hearsay?
"• It is made out of court;\n• The person that made it intended another person to believe it; and\n• It is adduced as evidence of the matter stated (s.114(1) and s.115 Criminal Justice Act 2003)."
126
What are the four exceptions to the general exclusionary rule for hearsay under s.114(1) CJA 2003?
"• Any of the statutory exceptions in the CJA 2003 apply;\n• Any of the common law exceptions preserved under the CJA 2003 apply (see s.118);\n• All the parties agree; or\n• The court uses its statutory discretion to admit the hearsay
127
Name some common law exceptions to the rule against hearsay preserved under s.118 CJA 2003.
"• Public information;\n• Evidence of reputation;\n• Res gestae;\n• Confessions;\n• Statements in furtherance of common enterprise; and\n• Body of expertise."
128
Give examples of admissible public information.
"• Published works dealing with matters of a public nature such as dictionaries and maps;\n• Public documents such as public registers; and\n• Records such as court records and public treaties.\nAlso
129
What type of evidence of reputation is preserved as a common law exception?
"Evidence of reputation as to character
130
What are the three circumstances under which a statement is admissible as res gestae?
"a) The statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded;\nb) The statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement; or\nc) The statement relates to a physical sensation or a mental state (such as intention or emotion)."
131
What is the key requirement for a statement to be admissible under the res gestae rule according to R v Andrews?
"The possibility of concoction can be excluded
132
What must the jury be satisfied of when res gestae evidence is admitted?
"• That there was no mistake on the part of the witnesses as to what had been said to them.\n• That there was no concoction on the part of the maker of the statement."
133
How is the res gestae exception particularly useful in domestic violence cases?
"It can provide an alternative to s.116(2)(e) for admitting the evidence of a complainant who does not give evidence at trial
134
What common law rule regarding confessions is preserved?
"The common law rule to the effect that evidence of confessions is admissible."
135
What is the broad common law rule regarding statements in furtherance of a common criminal enterprise?
"The statements of one party to a common criminal enterprise in furtherance of that enterprise are admissible against all the parties to the joint enterprise."
136
What common law rule regarding expert witnesses is preserved?
"That an expert witness may draw on a body of expertise."
137
Under what conditions are previous inconsistent statements admissible as evidence of the matter stated (s.119 CJA 2003)?
"• A previous inconsistent statement that a witness admits to having made; or\n• A previous inconsistent statement that the witness is proved to have made."
138
Under what conditions are previous consistent statements admissible as evidence of the matter stated (s.120(2) and 120(4))?
"Previous consistent statements admitted to rebut a suggestion of recent fabrication or as recent complaint evidence."
139
What is the difference between oral hearsay and multiple hearsay?
"Oral hearsay: A witness testifies to what another person said.\nMultiple hearsay: A witness testifies to what one person said that another person told them."
140
Under what circumstances is a hearsay statement admissible to prove the fact that an earlier hearsay statement was made (s.121 CJA 2003)?
"a) Either of the statements is admissible under ss.117
141
How can the credibility of an admissible hearsay statement be challenged (s.124 CJA 2003)?
"An opposing party can put into evidence anything that could have been put to the witness to challenge credibility in cross-examination
142
Under what circumstances can a judge stop a case based on unconvincing hearsay evidence (s.125 CJA 2003)?
"Where the case depends wholly or partly on hearsay evidence and that evidence is so unconvincing that
143
What discretion does the court have regarding the exclusion of hearsay evidence (s.126 CJA 2003)?
"The court can refuse to admit a statement if the case for excluding it (due to undue waste of time) substantially outweighs the case for admitting it (taking account of its value)."
144
What reminders and warnings should the jury receive regarding hearsay evidence?
"The jury must be reminded that a hearsay statement was not given on oath and was not tested in cross-examination. The risks of relying on hearsay should be pointed out
145
Under which circumstances is notice required for introducing hearsay evidence (Criminal Procedure Rules Part 20)?
"• s.114(1)(d) (interests of justice);\n• s.116 (witness unavailable);\n• s.117(1)(c) (document prepared in contemplation of criminal proceedings); or\n• s.121 (multiple hearsay)."
146
What information must be included in a notice to introduce hearsay evidence?
"a) Identify the hearsay evidence\nb) Set out the facts relied on that make the evidence admissible\nc) Explain how those facts will be proved if they are disputed\nd) Explain why the evidence is admissible\nThe evidence itself must also be attached if not already served."
147
What are the time limits for the prosecution to serve notice of intention to introduce hearsay evidence?
"• 20 business days after a not guilty plea in the magistrates' court; or\n• 10 business days after a not guilty plea in the Crown Court."
148
When must a defendant serve notice of intention to introduce hearsay evidence?
"As soon as reasonably practicable."
149
What are the time limits for a party to object to the introduction of hearsay evidence?
"Not more than 10 business days after the latest of:\na) Service of the notice to introduce the evidence;\nb) Service of the evidence objected to (if no notice is required);\nc) The defendant pleads not guilty."
150
What information must be included in an application objecting to the introduction of hearsay evidence?
"a) Which
151
Summarise the key conditions for a statement to be hearsay.
"• It is made out of court;\n• The person intended another to believe it;\n• It is used as evidence of the matter stated."
152
Name some key exceptions that make hearsay admissible.
"• Witness unavailable (s.116)\n• Business document (s.117)\n• Common law exception (s.118)\n• Previous inconsistent/consistent statement (ss.119 & 120)"
153
What are some grounds for the court to exclude otherwise admissible hearsay?
"• Doubtful reliability of a business document (s.117(6) & (7))\n• Unconvincing hearsay leading to an unsafe conviction (s.125)\n• Superfluous evidence (s.126)\n• Unfair prosecution evidence (s.78 PACE)"
154
When can the court use its discretion to admit hearsay if no other exception applies?
"If it is in the interests of justice to admit it under s.114(1)(d) (for general hearsay) or s.121(1)(c) (for multiple hearsay)."
155
What is usually used as evidence of a defendant's good character?
"The fact that the defendant has no previous convictions."
156
What is 'absolute good character'?
"The defendant has no previous convictions and there is no evidence of other bad behaviour."
157
What is 'effective good character'?
"The defendant has previous convictions that are old
158
What is 'positive good character'?
"The defendant shows they have acted virtuously
159
What are four ways a defendant can show they have good character?
"• Cross-examining a police officer about no previous convictions\n• Formal admissions (saying it officially in court)\n• When the defendant gives their own evidence\n• Calling a 'character witness' who knows the defendant well"
160
When would a defendant in a Crown Court trial want the judge to give a 'good character direction' to the jury?
"If the defendant is of good character."
161
Can a judge give a good character direction if there's no evidence of good character?
"No
162
When is the issue of a good character direction usually discussed?
"At the end of the evidence
163
If a defendant has previous convictions but wants to be seen as having 'effective good character', when should this be raised with the judge?
"At the start of the trial."
164
What is the most important legal case about good character directions?
"R v Hunter and others [2015] EWCA"
165
What did the 'Hunter' case change about good character directions?
"It made the judge's decision more important and discouraged giving good character directions if there was evidence of bad behaviour."
166
What are the two parts (limbs) of a 'good character direction'?
"Credibility and propensity."
167
When should the 'credibility' part of the good character direction be given?
"• When the defendant has given evidence in court\n• If the defendant made pre-trial statements they are relying on\n• If the defendant answered questions (like in a police interview)"
168
What does the 'credibility' part of the good character direction tell the jury?
"They *should* consider the defendant's good character when deciding if the defendant's evidence
169
Is it up to the jury to decide if good character is relevant to believability?
"No
170
When is a good character direction usually given if the defendant has 'absolute good character'?
"It would be normal."
171
If a defendant's character isn't 'absolute good character', who decides if a good character direction is given?
"The trial judge."
172
When should the 'propensity' part of the good character direction be given?
"In all cases where the defendant is of good character."
173
What does the 'propensity' part of the good character direction tell the jury?
"They *should* consider the defendant's good character when thinking about how likely it is that the defendant committed the crime they are accused of."
174
What must the judge also tell the jury about good character and guilt?
"That good character by itself doesn't mean the defendant is innocent."
175
If someone with 'absolute good character' is on trial with others who don't have good character, are they still entitled to the full good character direction?
"Yes."
176
What might a defendant who doesn't have good character worry about if they are on trial with someone who does?
"They might worry that the good character direction for the other defendant will make them look worse."
177
What is a possible solution for a defendant who doesn't have good character in a joint trial with someone who does?
"To ask for their trial to be separate (severance)
178
If a defendant has old, spent, or irrelevant convictions, who decides if they can be treated as having 'effective good character'?
"The judge."
179
What did the case of R v Nye say about old, spent, or irrelevant convictions and the jury?
"The jury must be told about these convictions so they are not misled."
180
What has been the effect of the 'Hunter' case on giving a 'modified' good character direction (just the propensity part)?
"It has made it less likely that a judge *has* to give a modified direction. The judge can even refuse any good character direction if there's evidence of bad behaviour."
181
If bad character evidence about a defendant with no previous convictions is presented at trial, what must the judge do?
"Give a 'bad character direction' to the jury."
182
In the situation where bad character evidence is admitted against someone with no previous convictions, can the judge also give a good character direction?
"The judge can consider giving a modified good character direction (about no previous convictions) if it seems fair
183
What is the main way good character is usually shown in court?
"By the defence showing the defendant has no previous convictions."
184
Name the three types of 'good character' discussed.
"Absolute good character
185
What did the 'Hunter' case emphasize about giving good character directions?
"The importance of the trial judge's decision and being careful about giving them when there's evidence of bad behaviour."
186
What are the two parts of the 'good character direction'?
"Credibility (believability) and propensity (likelihood of committing the crime)."
187
What is the definition of 'bad character' under s.98 CJA 2003?
"Evidence of misconduct or a disposition towards misconduct
188
How is 'misconduct' defined under s.112 CJA 2003?
"The commission of an offence or other reprehensible behaviour."
189
What does 'reprehensible behaviour' mean?
"Behaviour with some degree of moral blameworthiness. Not just morally lax behaviour (like having an affair)."
190
Give an example of behaviour that is generally considered 'reprehensible'.
"Membership of a gang."
191
What are some sources of 'bad character' evidence?
"• Previous UK convictions\n• Equivalent foreign convictions\n• Cautions\n• Acquittals (where guilt is still asserted)\n• Agreed facts of reprehensible behaviour\n• Witness evidence of a bad reputation"
192
If the prosecution uses evidence of previous acquittals as bad character, can they argue the defendant was actually guilty of those offences?
"Yes
193
What was the key point in the case of Z [2000] regarding previous acquittals?
"In a rape case with a consent defence
194
If the prosecution uses a previous conviction as bad character, can the defendant argue they were wrongly convicted?
"Yes
195
What type of misconduct is *specifically excluded* from the definition of bad character under s.98 CJA 2003?
"Misconduct that:\na) Has to do with the alleged facts of the current offence.\nb) Is connected to the investigation or prosecution of the current offence."
196
Does evidence *excluded* under s.98 need to go through the 'gateways' for admissibility?
"No."
197
Is a lie told by the defendant during a police interview usually considered 'bad character' evidence requiring a gateway?
"Generally no
198
When might evidence of past criminal conduct *not* be considered 'bad character'?
"If it's necessary to prove an element of the current offence (e.g.
199
Are attempts at jury tampering or witness intimidation considered 'bad character' evidence?
"No
200
Is evidence of the defendant's motive to commit the offence considered 'bad character' evidence?
"No
201
What are the two main things to remember about bad character evidence?
"1. It must fit the definition in s.98 CJA 2003.\n2. It usually needs to go through a 'gateway' to be admissible (s.100 for non-defendants
202
What are the seven 'gateways' in s.101(1) CJA 2003 for admitting a *defendant's* bad character evidence? (Use the mnemonic)
"a) Agreement\nb) Blurts it out (adduced by defendant)\nc) Context (important explanatory evidence)\nd) Done it before (important matter in issue - propensity)\ne) 'E' did it (important matter with co-defendant)\nf) False impression (correcting one)\ng) Gets at the witness (attack on another's character)"
203
Does admitting bad character evidence through the 'agreement' gateway (s.101(1)(a)) require a court application?
"No."
204
If a defendant brings up their own bad character evidence (s.101(1)(b)), do they need the court's permission?
"No."
205
What is 'important explanatory evidence' (s.101(1)(c))?
"Evidence that
206
Does the prosecution need the court's permission to use 'important explanatory evidence'?
"Yes."
207
What does gateway s.101(1)(d) relate to?
"Evidence relevant to an important matter in issue between the defendant and the prosecution
208
What is meant by 'propensity to commit offences of the kind with which the defendant is charged' under s.103(1)(a)?
"The question of whether the defendant has a tendency to commit similar offences
209
How can the prosecution try to establish a 'propensity to commit' similar offences (s.103(2))?
"By showing the defendant has been convicted of an offence of the same description or the same category as the current charge."
210
Can the court refuse to use a previous conviction to show propensity if it's very old?
"Yes
211
What is meant by 'propensity to be untruthful' under s.103(1)(b)?
"The question of whether the defendant has a tendency to be dishonest
212
According to R v Hanson, is a 'propensity to be untruthful' the same as a 'propensity to be dishonest'?
"No."
213
Give an example of when a previous conviction might show a 'propensity to be untruthful'.
"If the defendant pleaded not guilty to a previous offence and the jury must have disbelieved their evidence
214
What is 'cross-admissibility' of bad character evidence in cases with multiple charges?
"Using evidence of bad character related to one charge as evidence for another charge in the same trial."
215
Which gateway is most likely used for 'cross-admissibility'?
"s.101(1)(d) (important matter in issue - propensity)."
216
Who decides if evidence is *capable* of showing propensity?
"The judge."
217
Who decides if the evidence *actually does* show the asserted propensity?
"The jury."
218
Does admitting evidence through gateway s.101(1)(d) require the court's permission?
"Yes."
219
What does gateway s.101(1)(e) relate to?
"Evidence with substantial probative value regarding an important matter in issue between the defendant and a *co-defendant*."
220
Under s.104, when can evidence of a defendant's untruthfulness be used against them by a co-defendant?
"Only if the nature of the defendant's defence undermines the co-defendant's defence."
221
Does the 'fairness test' in s.101(3) apply to evidence admitted through the co-defendant gateway (s.101(1)(e))?
"No."
222
Does the Police and Criminal Evidence Act 1984 (PACE) s.78 (fairness of proceedings) apply to evidence admitted through the co-defendant gateway?
"No
223
Does admitting evidence through gateway s.101(1)(e) require the court's permission?
"Yes."
224
What does gateway s.101(1)(f) relate to?
"Evidence used to correct a false or misleading impression given by the defendant."
225
How can a defendant give a 'false impression' (s.105)?
"Through express or implied statements in court
226
Can the prosecution use bad character evidence to correct a false impression even if the false impression came out during the prosecution's case?
"Yes."
227
Does evidence admitted to correct a false impression have any limits?
"Yes
228
Is only prosecution evidence admissible through the 'correcting a false impression' gateway?
"Yes."
229
Does admitting evidence through gateway s.101(1)(f) require the court's permission?
"Yes."
230
What does gateway s.101(1)(g) relate to?
"Situations where the defendant has made an attack on another person's character."
231
What counts as 'attacking another person's character' (s.106)?
"Adducing evidence that the other person committed an offence or behaved reprehensibly
232
Can evidence admitted through the 'attack on another's character' gateway include evidence of dishonesty?
"Yes
233
Is it important if the person whose character was attacked is a witness in the case?
"No
234
Is only prosecution evidence admissible through the 'attack on another's character' gateway?
"Yes."
235
Does admitting evidence through gateway s.101(1)(g) require the court's permission?
"Yes."
236
Does the 'fairness test' in s.101(3) apply to evidence admitted through the 'attack on another's character' gateway?
"Yes."
237
What must the judge make clear to the jury about bad character evidence?
"That the weight they give it is up to them
238
What specific directions should the jury receive about bad character evidence?
"• They shouldn't conclude guilt or untruthfulness just because of previous convictions.\n• Propensity alone isn't enough to prove the current offence.\n• They should consider the bad character evidence along with all other evidence."
239
If the prosecution relies on disputed past conduct that didn't lead to a conviction, what should the jury be told?
"They should only rely on it if they are sure the conduct actually happened."
240
In summary, what is 'misconduct' under s.112?
"Committing an offence or other reprehensible behaviour."
241
How can a defendant's bad character be admitted in court?
"Only through one of the s.101(1)(a-g) gateways."
242
Name some of the key gateways for admitting a defendant's bad character.
"Agreement
243
What are some of the safeguards a defence can argue to exclude bad character evidence?
"s.101(3) (adverse effect on fairness) and s.103(3) (unjust to rely on past convictions for propensity)."
244
What does s.78 PACE Act 1984 allow a judge to do regarding evidence?
"It lets them exclude *prosecution* evidence if it's really unfair to let it in."
245
Does s.78 PACE apply when one defendant tries to use evidence against another?
"No
246
What does s.101(3) CJA 2003 let a judge do?
"It *must* exclude evidence of a *defendant's* bad character if it's really unfair
247
Which gateways does s.101(3) apply to?
"s.101(1)(d) (important matter in issue) and s.101(1)(g) (defendant attacks another's character)."
248
What's the difference between 'may' in s.78 PACE and 'must' in s.101(3) CJA?
"For the defendant
249
What do s.101(1)(d) and s.103(3) CJA 2003 say about old convictions?
"The judge can refuse to use old convictions against the defendant if it would be unjust."
250
What does s.107 CJA 2003 allow a judge to do?
"If bad character evidence is really unreliable
251
What does s.110 CJA 2003 require?
"The judge must explain their decisions about bad character evidence in court."
252
How do you prove someone was convicted or acquitted in the past (s.73 PACE)?
"You show a certificate from the court where it happened."
253
What else do you need with the certificate?
"Proof that the person on the certificate is the same person in this trial."
254
What does s.74 PACE say about using convictions as evidence?
"If you prove someone was convicted
255
Who has to prove the person *didn't* commit the past offence?
"The person who was convicted."
256
How much proof do they need to show they didn't do it?
"They need to show it's more likely than not that they didn't do it (balance of probabilities)."
257
What does s.75 PACE say?
"Certain documents (like the charge sheet) can be used as evidence of what happened in the past case."
258
Where are the rules for using bad character evidence found?
"In Part 21 of the Criminal Procedure Rules."
259
What must a party do if they want to use bad character evidence?
"For *non-defendant* evidence
260
How long does the *prosecution* have to give notice for *defendant* bad character evidence in the Magistrates' court?
"20 business days after the defendant pleads not guilty."
261
How long does the *prosecution* have to give notice for *defendant* bad character evidence in the Crown Court?
"10 business days after the defendant pleads not guilty."
262
When does a *co-defendant* have to give notice?
"As soon as reasonably possible
263
How long does the other party have to respond to a notice or application?
"10 business days after getting it."
264
What must the notice or application include?
"• The facts of the bad behaviour\n• How they'll prove it\n• Why it's allowed as evidence"
265
What must the response include?
"• Which facts are disputed\n• Which facts are admitted\n• Why the evidence isn't allowed\n• Why it's unfair\n• Any other objections"
266
When must applications for non-defendant bad character evidence be made?
"As soon as reasonably possible
267
Where will the court's decision on bad character evidence be announced?
"In a public hearing
268
Can the court change the time limits for notices or applications?
"Yes."
269
When are written notices usually used?
"When the prosecution wants to use evidence through s.101(1)(c) or (d)."
270
When are applications usually made orally?
"When the bad character evidence comes up unexpectedly during the trial."
271
In summary, what does this section cover?
"• Rules to exclude unfair bad character evidence\n• How to prove past convictions\n• The procedure for using bad character evidence"
272
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273
What are the Turnbull Guidelines?
"Guidance from the Court of Appeal on how judges should handle cases where the main evidence against the accused is visual identification that the accused says is wrong."
274
When should a Turnbull direction be given?
"When the case against the accused depends 'wholly or substantially' on the correctness of visual identification."
275
Does a Turnbull direction only apply to formal ID procedures?
"No
276
If the defendant admits being at the scene but denies doing the crime, is a Turnbull direction always needed?
"Not usually
277
What are the three key parts of a Turnbull warning?
"1. Explain *why* caution is needed (mistaken witnesses can be convincing).\n2. Tell the jury to carefully look at the *circumstances* of each identification.\n3. Remind the jury of any *weaknesses* in the identification evidence."
278
What should the judge tell the jury about other evidence that might support the identification?
"The judge should point out any evidence that *can* support the ID and also say if any evidence *cannot* be used to support it."
279
Give some examples of evidence that *can* support an identification.
"Scientific evidence (footprints
280
When should a judge take a case away from the jury in an identification case?
"If the identification evidence is *poor* and there's *no other evidence* to support it."
281
What two main questions should a judge ask when deciding if an identification case should go to the jury?
"1. How good is the quality of the identification evidence?\n2. Is there other evidence to support the identification?"
282
What factors should a judge consider when assessing the *quality* of visual identification evidence?
"Lighting
283
What is the ADVOKATE mnemonic used for?
"To help remember the key things to check when assessing the strength and weaknesses of identification evidence."
284
What does 'A' stand for in ADVOKATE?
"Amount of time under observation - How long did the witness see the person?"
285
What does 'D' stand for in ADVOKATE?
"Distance - How far away was the witness?"
286
What does 'V' stand for in ADVOKATE?
"Visibility - How good was the lighting and view?"
287
What does 'K' stand for in ADVOKATE?
"Known or seen before - Had the witness seen the person before?"
288
What does 'A' stand for in ADVOKATE?
"Any reason to remember - Did the witness have a special reason to remember the person?"
289
What does 'T' stand for in ADVOKATE?
"Time lapse - How long between seeing the person and the ID procedure?"
290
What does 'E' stand for in ADVOKATE?
"Error or material discrepancy - Were there big differences in the witness's first description?"
291
If the identification evidence is *good*, can the case go to the jury even if there's no other supporting evidence?
"Yes
292
If the identification evidence is *poor*, what should the judge do if there's no other support?
"Take the case away from the jury and tell them to find the defendant not guilty."
293
What is a 'dock identification'?
"When a witness identifies the defendant for the first time when they are sitting in the dock in court."
294
Why is dock identification generally seen as bad?
"Because the witness might just assume the person in the dock is the one who did it
295
Can a judge ever allow a dock identification?
"Yes
296
In an identification case, what two things must be true for 'identification' to be a key issue at trial?
"1. The defendant says the identification is wrong.\n2. The identification evidence is the main or only thing linking the defendant to the crime."
297
In summary, what are the Turnbull Guidelines about at the trial stage?
"They tell the judge how to explain to the jury that they need to be very careful when deciding if the witness's identification is correct."
298
What happens if the judge thinks the identification evidence is too weak?
"They will stop the trial and tell the jury to find the defendant not guilty because there isn't enough good evidence."
299
What happens if the judge thinks the identification evidence is strong enough or has some support?
"The trial continues
300
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301
What must the prosecution prove in a criminal trial?
"Beyond a reasonable doubt that the person in court (the defendant) committed the crime."
302
Besides eyewitnesses, what are some other ways the prosecution can show the defendant committed the crime?
"DNA evidence
303
What is 'visual identification'?
"When a witness says they saw the person who committed the crime and can recognise them."
304
Give some examples of things that are *not* visual identification evidence.
"Describing clothes
305
Why is there a 'special need for caution' with eyewitness identification?
"Because even honest and sure witnesses can be wrong
306
What two main things were introduced to make identification evidence more reliable?
"PACE Code D (for police investigations) and the Turnbull Guidelines (for trials)."
307
What is PACE Code D for?
"It gives police instructions on how to handle identifications during an investigation."
308
What is the goal of PACE Code D?
"To protect innocent people from being wrongly identified and to make good identifications as strong as possible."
309
What usually happens if identity is disputed and a suspect is arrested?
"The police will often do an identification procedure like VIPER (video identification)."
310
How does VIPER work?
"The suspect is filmed
311
What should a judge do if PACE Code D might have been broken?
"They need to figure out if it really happened. Sometimes they might need to have a special mini-trial (a 'voir dire') to hear evidence about it."
312
If PACE Code D was broken, what can the defendant's lawyer ask the court to do?
"They can ask the court to not allow the identification evidence to be used in the trial (exclude it) under something called section 78 of PACE."
313
Does breaking PACE Code D automatically mean the identification evidence is excluded?
"No
314
When might identification evidence be excluded if PACE Code D was broken?
"Usually when important rules weren't followed
315
If identification evidence is allowed even though PACE Code D was broken, what can the defence lawyer and the judge do?
"The defence lawyer can point out the problems in their closing speech
316
What are the Turnbull Guidelines for?
"They tell judges what to say to the jury when the main evidence is a disputed identification."
317
When should a judge give a 'Turnbull direction'?
"When the case mostly or completely depends on whether the witness correctly identified the defendant."
318
What are the three main things a judge should tell the jury in a Turnbull direction?
"1. Explain why they need to be extra careful about identification evidence (mistakes happen).\n2. Tell them to really look at how the witness made the identification.\n3. Remind them of any weaknesses in the identification evidence."
319
What should the judge tell the jury about other evidence that might support the identification?
"The judge should point out what evidence *can* support the ID and what evidence *cannot*."
320
When should a judge take the case away from the jury in an identification case?
"If the identification evidence is really weak and there's no other good evidence to back it up."
321
What two main questions should a judge ask when deciding if an identification case should go to the jury?
"1. How good is the quality of the identification evidence?\n2. Is there other evidence that supports the identification?"
322
What is the ADVOKATE mnemonic for?
"It helps people remember what to think about when looking at how good an identification is."
323
What does 'O' stand for in ADVOKATE?
"Obstruction - Was anything blocking the witness's view?"
324
What is a 'dock identification'?
"When a witness identifies the defendant for the very first time when the defendant is in the court dock."
325
Why is dock identification generally not a good idea?
"Because it's very obvious who the witness is supposed to identify
326
Can a judge ever allow a dock identification?
"Yes
327
When is identification a key issue in a trial?
"When the defendant says the identification is wrong
328
In summary, what are the important things to remember about visual identification evidence?
"Police must follow PACE Code D during investigations
329
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330
What is a 'confession' according to Section 82 of PACE?
"Any statement a person makes that is partly or wholly against their own interests
331
Give an example of a statement that would be a confession.
"'I did it.'"
332
Give an example of a 'mixed statement' that counts as a confession.
"'I wasn't part of it
333
Can a nod or a sign be a confession?
"Yes
334
What kind of statement is *not* a confession?
"'It wasn't anything to do with me.'"
335
What does Section 76(1) of PACE say about confessions being used as evidence?
"A confession can be used as evidence against the person who said it if it's relevant to the case and the court doesn't exclude it under this section."
336
Under Section 76(2), what two main reasons can the defence give to try and get a confession excluded?
"1. It was obtained by *oppression*.\n2. It was obtained because of something said or done that was likely to make *any* confession unreliable."
337
Does Section 76 automatically stop confessions from being used?
"No
338
What can the court do on its own regarding a confession?
"Even if the defence doesn't say anything
339
What does 'oppression' include according to Section 76(8) of PACE?
"Torture
340
What is the ordinary dictionary meaning of 'oppression' used by the courts?
"Using power in a harsh
341
If the defence says a confession was obtained by oppression, what must the prosecution prove to the court?
"They must prove *beyond reasonable doubt* that the confession was *not* obtained by oppression
342
What happens if the prosecution can't prove beyond reasonable doubt that the confession wasn't obtained by oppression?
"The confession *must* be excluded as evidence."
343
If a confession is allowed in because the judge doesn't think it was obtained by oppression, can the defence still argue to the jury that it's not reliable?
"Yes
344
What is the first step a court takes when the defence argues a confession is unreliable under Section 76(2)(b)?
"Identify *what* was said or done by the police (or anyone else involved)."
345
What is the second step?
"Ask if what was said or done was *likely*
346
What is the third step?
"Ask if the prosecution has proven *beyond reasonable doubt* that the confession wasn't obtained *because* of what was said or done."
347
Does the court look at whether the actual confession was true when deciding if it was unreliable under Section 76(2)(b)?
"No
348
What does 'unreliable' mean in this context?
"It means a confession that 'cannot be relied upon as being the truth'."
349
Is the test for 'unreliability' based on how the person felt at the time?
"No
350
Give an example of something 'said or done' that could make a confession unreliable.
"Promising to release someone if they confess
351
Can breaking the rules in PACE Code C (about how police should treat suspects) be something 'said or done' that makes a confession unreliable?
"Yes
352
If a confession is excluded under Section 76, can the police still use evidence they found *because* of the confession?
"Yes
353
However, if a confession is excluded, can the prosecution tell the jury that they found evidence *because of what the defendant said*?
"No
354
What is the exception in Section 76(4)(b) about?
"Even if a confession is excluded
355
Give an example of when Section 76(4)(b) might be used.
"To compare how a defendant spells a word in a confession with how the same word is spelled at a crime scene."
356
In summary, what are the two main ways a confession can be challenged under Section 76 of PACE?
"1. It was obtained by oppression.\n2. Something was said or done that was likely to make any confession unreliable."
357
Can the court ever question a confession even if the defence doesn't?
"Yes
358
Even if a confession is excluded, can the police still use evidence they found because of it?
"Yes
359
What's another exception where parts of an excluded confession can still be used?
"To show how the defendant speaks
360
What does Section 78 of PACE do?
"It lets a court refuse to use evidence the prosecution wants to use if it would make the trial really unfair."
361
What is Section 78 of PACE mainly concerned with?
"Fairness."
362
Is it common for the defence to try and exclude a confession under both Section 76 and Section 78 of PACE?
"Yes
363
What did the Beeres case say about using both Section 76 and Section 78?
"It said that usually
364
Can Section 78 protect the defendant more than Section 76?
"Yes
365
What's an example of when Section 78 might be used even if Section 76 doesn't apply?
"If the police didn't let the defendant get proper legal advice
366
What was the Keenan case about?
"It was about a confession that was allowed in court even though the police broke PACE Code C rules. The appeal court said that was wrong."
367
What were the PACE Code C breaches in the Keenan case?
"The police didn't properly record the interview
368
Why are PACE Code C rules important?
"They protect suspects from being treated badly and help prevent police from making up what a suspect said."
369
What did the court say about 'significant and substantial' breaches of PACE Code C?
"It said that if the police seriously broke the rules about recording interviews
370
How was the defendant in the Keenan case treated unfairly?
"He didn't get a chance to say if the police record of his confession was correct."
371
What does the Keenan case teach us about PACE Codes?
"They protect both the suspect and the police."
372
What should police do if a suspect confesses outside a formal interview?
"They should record the confession
373
Does breaking PACE Codes automatically mean evidence is excluded?
"No
374
What is the main question the court asks when deciding whether to exclude evidence under Section 78?
"Would using the evidence be so unfair that the court shouldn't allow it?"
375
Is the court trying to punish the police when it excludes evidence under Section 78?
"No
376
Is 'bad faith' by the police likely to lead to evidence being excluded?
"Yes
377
What does the court consider when deciding if it was unfair to use the evidence?
"How much the defendant was unfairly harmed by how the evidence was obtained."
378
In summary, what is the key test under Section 78?
"Whether using the evidence would be so unfair that the court should not allow it."
379
Does simply breaking PACE Codes always mean the evidence is excluded?
"No."
380
Is it common to try and exclude a confession under both Section 76 and Section 78?
"Yes."
381
Can Section 78 offer broader protection to the defendant than Section 76?
"Yes."
382
What is the first key step in applying to exclude a confession?
"Advance notification to the court and the prosecution."
383
What document should include any legal arguments about excluding evidence (like confessions)?
"The Defence Statement (mandatory in Crown Court
384
When in the Crown Court will the judge likely set deadlines for arguments about excluding confessions?
"At the Plea and Trial Preparation Hearing (PTPH) or Further Case Management Hearing."
385
What are the standard time limits in a Magistrates' Court for the defence to provide a written argument for excluding a confession?
"At least 10 business days before the trial."
386
What are the standard time limits in a Magistrates' Court for the prosecution to respond to the defence's argument?
"5 business days after receiving the defence's argument."
387
When in the Crown Court can an application to exclude a confession be heard?
"At a pre-trial hearing specifically for this
388
When in a Magistrates' Court should an application to exclude a confession under s.76 PACE be dealt with?
"As a preliminary issue (before the main trial)."
389
What is a 'voir dire'?
"A 'trial within a trial' where the judge hears evidence to decide if a confession should be allowed as evidence."
390
When is a voir dire usually held when challenging a confession?
"When the defence argues the confession was obtained by oppression or in a way that makes it unreliable
391
Who calls evidence during a voir dire?
"Both the prosecution and the defence can call witnesses."
392
Where does a voir dire take place?
"In open court
393
What happens if a judge doesn't resolve disputed facts in a voir dire before deciding if a confession is admissible?
"Any conviction is likely to be overturned."
394
How do Magistrates deal with disputed evidence when considering excluding a confession under s.76 or both s.76 & s.78?
"They should hear evidence as a preliminary issue and then try to ignore the excluded confession if they decide to exclude it."
395
How do Magistrates deal with an application *only* under s.78 PACE with disputed evidence?
"They have the choice to hear all the evidence during the main trial and decide on admissibility later."
396
Is a voir dire always needed to argue for excluding a confession?
"No
397
What happens if the judge rules that the confession is excluded?
"The prosecution cannot mention it during the trial."
398
What happens if the judge rules that the confession is admissible?
"The prosecution can use it as evidence
399
In summary, what are the four key steps in applying to exclude a confession?
"1. Advance notification\n2. Timing of the application\n3. The possibility of a voir dire\n4. Making legal submissions."
400
In the Magistrates' Court, when should an s.76 application be dealt with?
"As a preliminary issue."
401
In the Crown Court, when is a voir dire required?
"When the application is under s.76 (or both s.76 & s.78) and the facts are disputed."
402
What is the purpose of a voir dire?
"For the judge to decide on the admissibility of the confession by hearing evidence and resolving any disagreements about how it was obtained."
403
If a confession is excluded, can the prosecution still use it?
"No
404
If a confession is allowed, can the defence still argue to the jury that it's unreliable?
"Yes
405
What is an 'inference' in simple terms?
"It's like a common-sense guess you make based on the facts."
406
What is an 'adverse inference'?
"It's a common-sense guess that makes someone look guilty or not telling the truth."
407
Before 1994, could the jury think someone was guilty just because they stayed silent in an interview?
"No
408
What big change did the Criminal Justice and Public Order Act 1994 (CJPOA) make about staying silent?
"It said that in some situations
409
What part of the CJPOA 1994 deals with inferences from silence in interviews?
"Sections 34 to 37."
410
What is the main idea behind Section 34 of the CJPOA 1994?
"If a defendant doesn't mention something important when the police ask them
411
Name some of the situations where Section 34 might apply.
"If the defendant is questioned under caution *before* being charged
412
What does 'under caution' mean?
"It's when the police tell someone they don't have to say anything
413
If the police don't give the caution, can the jury draw a negative conclusion if the defendant stays silent?
"No
414
If the police ask the defendant about some things but not others, and the defendant stays silent, can the jury make a negative guess about the things the police *didn't* ask about?
"No
415
What if the defendant refuses to even go to the interview room? Can the jury make a negative guess?
"Section 34 doesn't apply because they weren't 'questioned'
416
Can the defendant 'mention' a fact by having their lawyer read a prepared statement?
"Yes
417
What does 'reasonably be expected to mention' mean?
"It means thinking about the situation the defendant was in at the time
418
Can Section 34 be used if the defendant didn't even *know* the fact they later use in court when they were being questioned?
"No
419
If the defendant gives a reason in court for why they didn't mention the fact earlier, should the jury think about that reason?
"Yes
420
Does Section 34 apply if the defendant agrees with something the prosecution says?
"Not usually
421
If the defendant's story changes between the police interview and the trial, what might the prosecution argue?
"They might say the defendant is lying
422
If the rules of Section 34 are met, does the jury *have* to make a negative guess?
"No
423
What are some of the negative guesses the jury might make?
"That the defendant made up the fact later
424
Is there a special rule if the defendant wasn't allowed to talk to a lawyer before being questioned?
"Yes
425
What if the defendant was offered a lawyer but said they didn't want one?
"The jury can still make a negative guess
426
If a defendant says they stayed silent because their lawyer told them to, does that mean the jury can't make a negative guess?
"Not necessarily. The jury should think about *why* the lawyer gave that advice and if it makes sense in the situation."
427
Can the jury find someone guilty *just* because they stayed silent in an interview?
"No
428
What does the judge have to do about Section 34?
"The judge has to tell the jury when they *can* make a negative guess
429
In summary, what is an inference from silence in an interview?
"It's when the jury makes a negative guess about why the defendant didn't mention something to the police that they later use as a defense in court."
430
Is it okay to make a negative guess if the defendant wasn't allowed to see a lawyer?
"No
431
Can a guilty verdict be based only on the defendant staying silent?
"No
432
What is an 'inference'?
"It's a common-sense guess or conclusion you draw from the facts."
433
What did the Criminal Justice and Public Order Act (CJPOA) 1994 change about the 'right to silence'?
"It said that in some situations
434
What is an 'adverse inference'?
"It's a common-sense guess that suggests someone is guilty or not telling the truth."
435
What are the four types of silence (besides in interview) that can lead to inferences?
"1. Silence when arrested with suspicious things.\n2. Silence when arrested at the crime scene.\n3. Silence at trial (not giving evidence).\n4. Lying."
436
What part of the CJPOA 1994 deals with silence when arrested with suspicious things?
"Section 36."
437
For an inference under s.36, what must have happened?
"The person must have been arrested with something suspicious on them or nearby
438
Does s.36 require the police to think it was 'reasonable' for the person to explain?
"No
439
Can a guilty verdict be based *only* on an inference from s.36 silence?
"No
440
What part of the CJPOA 1994 deals with silence when arrested at the crime scene?
"Section 37."
441
For an inference under s.37, what's important about where the person was arrested?
"They had to be arrested near the place where the crime happened
442
Similar to s.36, does s.37 require the police to think it was 'reasonable' for the person to explain why they were there?
"No
443
Can a guilty verdict be based *only* on an inference from s.37 silence?
"No
444
What part of the CJPOA 1994 deals with a defendant's silence at trial (not giving evidence)?
"Section 35."
445
What must happen before the jury can draw a negative inference from the defendant not giving evidence?
"The defendant must be told they can give evidence and warned that the jury might draw a negative conclusion if they don't."
446
What negative inference can the jury draw if the defendant doesn't give evidence?
"That the defendant is guilty of the crime they are charged with."
447
Can a guilty verdict be based *only* on an inference from the defendant not giving evidence (s.35)?
"No
448
When *can't* the jury draw a negative inference from the defendant not giving evidence?
"If the defendant's guilt isn't really in question (like in a special type of hearing)
449
What is a 'Lucas direction'?
"It's a warning a judge gives to the jury about being careful when they think the defendant has lied."
450
Why is a Lucas direction needed?
"Because sometimes people lie for reasons that don't automatically mean they are guilty of the crime."
451
Give an example of why someone might lie without being guilty of the main crime.
"They might lie about where they were to hide something embarrassing
452
What are some situations where a judge might give a Lucas direction?
"If the defendant gives a false alibi
453
What are the four things the jury needs to be sure of before they can use a lie as supporting evidence of guilt?
"1. The defendant told a lie.\n2. The lie was deliberate (not a mistake).\n3. The lie was about something important in the case.\n4. There's no innocent reason for the lie."
454
Even if the jury is sure about those four things, can they convict the defendant *just* because they lied?
"No
455
In summary, what are the three types of silence (besides in interview) that can lead to inferences?
"1. Silence with suspicious things (s.36).\n2. Silence at the crime scene (s.37).\n3. Silence at trial (s.35)."
456
Can a guilty verdict be based *only* on inferences from silence?
"No
457
What is the main point of a Lucas direction?
"To warn the jury not to automatically think a lie means the defendant is guilty."
