Evidence and Exclusion of Evidence Flashcards
When is evidence generally admissible?
The evidence must be relevant in terms of being logically probative of the facts in issue (i.e does it prove or disprove a fact in issue). Attaching weight to the evidence is a matter for the jury.
In each court, who are the tribunals of fact and law?
Mags: Magistrates are tribunals of both fact and law
Crown: Judge tribunal of law, jury tribunal of fact.
Which applications can be used to exclude evidence?
- Application for dismissal
- Submission of No Case to Answer
- Abuse of Process application
- Common law discretion to exclude evidence (s.82 PACE)
- s.78 PACE
- s.76 PACE
What is an application for dismissal?
Pre-trial application to the Crown Court to have charges against D dismissed if:
1. there is no evidence that the crime has been committed by D; or
2. Prosecution evidence is such that a properly directed jury could not properly convict.
Application can be made only after D sent to Crown Court, served with evidence and before arraignment.
What is a submission of no case to answer?
R v Galbraith
During trial and after prosecution has presented all its evidence, a NG verdict will be entered if:
- there is no evidence that the crime has been committed by D; or
- prosecution evidence is such that a properly directed jury could not properly convict (i.e witness gives inherently weak, vague or contradictory evidence or credibility is open to question, prosecution fails to address or prove an element of the offence).
What is an abuse of process application?
Used where D cannot receive a fair trial or staying proceedings is necessary to protect the integrity of the criminal justice system on the balance of probabilities.
It is a remedy of last resort, only where a lesser remedy is not just and proportionate (i.e D tricked or coerced into committing offence that they would not otherwise have committed, prosecuted despite promise against this or police have deliberately destroyed evidence or manipulated the court to deprive D of rights).
Where a stay is requested, it will only be granted where a trial will offend the court’s sense of justice and propriety or undermine the public confidence in the system and bring it into disrepute.
No verdict but also no conviction or record.
When can the common law discretion to exclude evidence be used?
Where its prejudicial effect outweighs probative value and is necessary to secure a fair trial. Only applies to prosecution evidence.
When can s.78 of PACE be used?
Can exclude evidence where its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
Used usually for significant and substantial breaches of PACE Code of Practice C which lead to unfairness or injustice (i.e access to legal advice, failure to caution, absence of appropriate adult, ID procedures).
What is the relevance of a voir dire to a s.78 application?
If there is a dispute on the facts about the breach of COP C etc, these must be resolved beyond reasonably doubt before the s.76 and s.78 application is made.
How can confession evidence be excluded?
Either by s.76 (confession obtained by oppression or in circumstances which make it unreliable) or s.78 (unfairness).
What is a confession?
A statement wholly or partly adverse to the person who made it, whether having been made to a person in authority or not and in words or otherwise.
i.e unequivocal, mixed statement, nod, sign or gesture.
When can a confession be excluded under s.76 of PACE?
Where the confession was obtained:
* By oppression of the person who made it; and/or
* In consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession made in consequence.
The burden is on the prosecution to prove beyond reasonable doubt that the confession was not obtained by oppression.
Oppression: torture, inhumane or degrading treatment and the use or threat of violence.
What is unreliability in the context of s.76 PACE?
Something said or done
* Inducement, promise, trick or failure to act (e.g interview without appropriate person)
* Must be external to D
* Breaches of PACE: deprivation of sleep, failure to caution, denial of access to legal advice.
Likely to render unreliable
* Test is not whether or not the confession is untruthful or inaccurate but whether it cannot be relied upon as being the truth.
Can evidence discovered via an excluded confession be admitted?
Prosecution cannot tell the jury that the fact was discovered by reason of the confession unless D volunteers this information.
Confession can be used to demonstrate that D writes or expresses himself in a particular way.
What is the procedure for applications to exclude evidence?
- Advance notification: defence statement should include admissibility of evidence. At PTPH, judge will review the defence statement and order the defence to serve a skeleton argument in relation to admissibility 10 business days before trial. Prosecution must reply 5 days after this.
- Timing: in the Mags court, dealt with as a preliminary issue. At Crown Court, there is a pre-trial hearing for admissibility without a jury.
- Voir dire: trial within a trial, without the jury. Required where an application is made under s.76 or s.78 and the evidence founding the application is in dispute. Judge will make findings of fact.
- Impact on Submissions: only required if facts relating to the substance of the legal argument are in dispute. In the Crown Court, the jury are not told of inadmissible/excluded evidence. In the Mags, the magistrates must put the evidence out of their mind. If exclusion deprives prosecution of only real evidence = NG plea.
