Evidence: Excluding Evidence and Ending Cases Early Flashcards
in what ways can a defendant seek to bring the prosecution case to an end early? (3)
- application for dismissal = only in CC; galbraith
- submission of no case to answer = half time submission; galbraith
- application to stay proceedings on abuse of process = ends P’s case
in what ways can a defendant seek to exclude prosecution evidence?
- common law provisions = prejudicial effect of evidence outweighs its probative value (discretionary)
- s 78 PACE = admitting evidence would have such adverse effect on the fairness of proceedings that the court ought not to admit it (discretionary)
- s 76 PACE = confession evidence must be excluded if it was obtained by oppression or it is unreliable due to something said or done
what is an application for dismissal and when can it be made?
- a pre-trial application by the defendant to a Crown Court judge to have the charges against them dismissed
- can only be made where:
- D is sent by MC to CC for trial (cannot be made in MC trial cases)
- after D is served with prosecution evidence, and
- before D is arraigned (before D enters plea at the PTPH)
what is the test for an application for dismissal
- CDA 1998 Schedule 3 = the judge shall dismiss a charge if it appears to him that the evidence against the applicant would not be sufficient for him to be properly convicted
- this is the Galbraith test
Case held =
- the judge must consider the whole of the evidence and not view matters in isolation from their context or from other evidence
- where P seeks to draw inferences from evidence, the judge must assess whether such inferences could properly be drawn by the jury
when can a submission of no case to answer be made?
- D can apply during trial after P presents its evidence but before D presents its case
- can be made in MC and CC (in absence of a jury)
- P must be give an opportunity to make representations and reply
- if the application succeeds, the judge will direct the jury to enter a verdict of not guilty
- if the application fails, the judge does not have to provide reasons for rejecting it
what is the test for a submission of no case to answer?
- test = the court may acquit on the grounds that the prosecution evidence is insufficient for any reasonable court to properly convict
- this is the Galbraith test
what is the Galbraith test (for submission of no case to answer and application for dismissal)?
(1) where there is no evidence to support the charge, the judge must stop the case
- example = no evidence after D successfully applies to exclude evidence
(2) where there is some evidence but the integrity of that evidence is in question, the judge must consider whether that evidence taken at its highest is such that a conviction can properly be found upon it (if not, the judge will stop the case)
- example = witness gave inherently weak, vague, or contradictory evidence
- but where the strength of the prosecution evidence depends on views taken regarding the witnesses’s credibility or reliability, the judge should allow the matter to be tried as such issues are for a tribunal of fact to decide and weigh
who has the legal and evidential burden for a submission of no case to answer?
prosecution has legal and evidential burden to show beyond reasonable doubt that the prosecution evidence taken at its highest is sufficient to properly convict the defendant
what is an abuse of process application?
D can apply to stay proceedings if there is an abuse of process where:
- D cannot have a fair trial
- Continuing the prosecution offends the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system (judicial review ground - cannot be brought in the magistrates court)
D must prove this on a balance of probabilities
effect = this is not a not guilty verdict, but P is prevented from proceeding and D will not be convicted
what are examples of cases in which D can bring an application for abuse of process? (5)
- D was tricked or coerced into committing an offence they otherwise would not have committed
- D is prosecuted despite an unequivocal promise by P that D will not be
- Police acted a way that undermines public confidence in CJS – e.g., deliberately destroying evidence
- P manipulated or misused the court’s process so as to deprive D of a protection afforded by law
- P deliberately delayed proceedings to gain a tactical advantage
what is the test for a defendant to exclude prosecution evidence on preserved common law provisions?
- test = the prejudicial effect of the evidence outweighs its probative value
- i.e., does fairness dictate the evidence be excluded?
- court has discretion which it exercises if it is necessary to secure a fair trial for the accused
what is the test to exclude evidence under s78 PACE?
the court has discretion under s78 to exclude prosecution evidence if it is satisfied that the admission of the evidence would have such adverse effect on the fairness of the proceedings that the court ought not to admit it
what type of evidence can be excluded under s 78?
can only be used to exclude evidence which the prosecution proposes to rely on not which it has already adduced
examples:
- confession evidence
- evidence obtained as a result of PACE or Codes of Practice breaches
Should evidence be excluded automatically under section 78 if the court is persuaded there has been a breach of PACE or Codes of Practice?
- if evidence is obtained as a result of breaches, this does not per se render it inadmissible
- for breaches which are significant and substantial= the court is more willing to exclude evidence obtained as a result
- if there has been bad faith on the part of the police when acting in breach of PACRE/COP, this is a factor which is likely to lead to the exclusion of evidence
- the ultimate question for the court is not the seriousness of the breaches exactly, but the extent of any unfairness caused obtained as a result of breaching codes which are designed to protect a detainee and risking a conviction based on such evidence
what are some examples of PACE / COP breaches which may lead to a defendant applying to exclude evidence under s 78? (13 examples)
- improperly denying access to legal advice
- coercing or intimidating D into waiving their right to legal advice (waiver was not voluntary, informed, or unequivocal)
- failure to caution before an interview
- appropriate adult was not present at an interview with a vulnerable suspect
- police did not make every effort to notify the parent, guardian, or appropriate adult of vulnerable suspect’s detention
- police did not allow reasonable time for the appropriate adult to be present at the police station
- ID procedures and Code D were not followed
- searches without proper authority
- oppression or tricks in interview
- suspect confesses outside an interview and this was not recorded and signed by them
- significant statements, including confessions, were not put to the suspect at the beginning of an interview
- confessions improperly obtained
- detention was improperly extended
