Evidence I (relevance, application for dismissal, submission of no case to answer, abuse of process application)

Question 1

What are ‘facts in issue’? What are they specifically for prosecution?

Answer 1

• Those that either party needs to (dis)prove it case
• For prosecution it’s the facts needed to prove offence(s) charged

Question 2

In what 3 ways can evidence be established other than a witness giving live evidence?

I.e. proving facts by means other than calling evidence

Answer 2

1. Agreeing a witness statement as true by consent of parties - simply read out in court
2. Agreeing any fact between parties - advocates in case will agree fact is so (fact in writing and lawyers sign)
3. Judge/jury take ‘judicial notice’ of fact

Question 3

What dos it mean to take ‘judicial notice’ of a fact? What can notice not be taken on?

Answer 3

• Where judges could look up the answer (saves parties having to prove every fact tediously)
• Cannot take notice on personal matters that judge happens to know but are not generally known

Question 4

What are the different type of evidence? Which is most common?

Answer 4

• Oral evidence given by witness in court (most common)
• Written form
• Agreed statements
• Admitted facts
• ‘Real’ evidence
• ‘Direct’ evidence
• ‘Circumstantial’ evidence
• A ‘view’ (juries can visit a scene of crime/leave court to view object)

Question 5

What is the difference between real, direct and circumstantial evidence?

Answer 5

• Real = objects/things brought to court for inspection e.g. document
• Direct = evidence a witness gives of having had direct experience of matter in issue e.g. witness saw D at station at midnight (= direct oral evidence)
• Circumstantial = evidence from which facts are inferred e.g. train ticket found in D’s pocket showing train ticket for just before midnight at station

Question 6

What is the most fundamental principle of evidence?

Answer 6

Evidence must be relevant to be admissible

Question 7

How is relevance established?

Answer 7

By whether evidence is ‘logically probative’ of a fact in issue e.g. does evidence tend to prove/disprove fact in issue

R v Usayi [2017] - D charged with sexual assault; defence had a note that tended to suggest complainant had earlier incorrectly indicated her mother had died - defence argued this showed her to be dishonest - CoA indicated evidence was insufficiently relevant regardless of hearsay argument and it should not have been admitted; insufficient bearing on issues at hand

Question 8

What do the exclusionary rules do after relevance is considered?

Answer 8

Prevent evidence from being admitted that is relevant but would damage fairness of trial

Question 9

Who allocates weight to a piece of evidence? How will they decide how to do this?

Answer 9

The jury - who will be persuaded by advocates as to what weight they should attach to evidence

Question 10

What is the difference between tribunal of fact and tribunal of law? What does each comprise in magistrates’ and Crown?

Answer 10

Tribunal of fact = determine facts

• Mags = bench of magistrates / District Judge
• Crown = jury

Tribunal of law = determines law (and admissibility of evidence)

• Mags = magistrates / District Judge
• Crown = judge

Question 11

What is the problem with tribunals being played by same people in magistrates’? What course of action can be pursued to avoid this?

Answer 11

• In exclusion of evidence hearings, the same people hear the evidence, exclude it, and then considers guilt (supposedly with that evidence out of their mind)
• Strong reason for Ds to prefer trial in Crown

Question 12

Who is the burden of proving elements of offence always on? What is the standard to which proof must be put?

Answer 12

• Prosecution will always have burden of proving elements of offence
• Standard = beyond reasonable doubt (so that you are sure of guilt)

Question 13

What burden does the defence have when it challenges the prosecution’s case?

I.e. asserts it is wrong

Answer 13

Does not have one - even when it calls evidence/makes positive assertions (was not me!) it does not mean burden has shifted, but simply that they are engaging with issues prosecution must prove

Legal and evidential burden exist for prosecution alone and judge not called upon to check sufficiency of defence evidence

Question 14

When will the burden be on the defence? And what will the standard be?

Answer 14

• When it runs an active defence e.g. DimRes
• Standard is balance of probabilities

Do not confuse ‘active defence’ with challenging prosecution’s case

Question 15

What is the difference between legal and evidential burden?

Answer 15

• Legal burden = requirement to prove an element of your case to prescribed standard
• Evidential burden = burden to raise some evidence to satisfy judge that matter should be argued before jury

Question 16

How does the tribunal of law (judge) ensure evidential burden is met?

Answer 16

Will ensure some evidence has been raised on issue of fact before tribunal of fact (jury) can find fact - otherwise judge can and must intervene where the evidential burden is not discharged

Where evidential burden satisfied; judge approving sufficiency of evidence to make it viable to argue that fact is proved before jury

Question 17

What happens to the evidential burden to adduce evidence where D concedes a fact in issue?

Answer 17

It is lifted

Question 18

If you have the legal burden to prove a fact in issue, what will you almost always have?

Answer 18

The evidential burden of ‘passing the judge’ with the same evidence

I.e. legal and evidential burdens are attached

Question 19

What is the only regular example of where legal and evidential burden become detached?

Answer 19

Self defence - judge requires some evidence to be raised to put issue before jury but no actual standard of proof required - if judge content then prosecution has to disprove self-defence to show use of force was unlawful

Effectively nothing has changed: burden always on prosecution to prove force was unlawful - but now proving force was unlawful requires proof force was not in self-defence

Defence just needs some evidence of self defence

Question 20

Is an alibi a matter for the defence to prove?

Answer 20

No - prosecution retain burden of disproving alibi beyond a reasonable doubt

Question 21

What are the different ways of excluding evidence and/or bringing a prosecution case to an end?

The exclusion of evidence can result in a case coming to an end

Answer 21

• Applications for dismissal
• Submissions of no case to answer
• Applications to exclude evidence under s78
• Applications to exclude evidence under s76
• Applications to exclude evidence under preserved common law provisions [s82(3) PACE]
• Abuse of process applications

Question 22

What is an application for dismissal?

Answer 22

A pre-trial application to have charges against D dismissed

Question 23

For an application for dismissal to be made, what must this be after and before? Who is an application made to and if D wishes to make an oral application what must they do?

Answer 23

Application can be made:

1. After D is sent by magistrates’ for trial in Crown and served with evidence relating to offence; and
2. Before D is arrainged (offence put to D and pleads)

• Application made to Crown Court Judge
• If D wishes to make oral application they must give written notice of intention to do so

I.e. can only be made in Crown

Question 24

When considering an application to dismiss a charge, what should the judge take into account in terms of the evidence?

Answer 24

The whole of the evidence, rather than viewing matters in isolation from their context or other evidence

Question 25

What is the test for dismissing a charge? I.e. what must be the evidence against applicant not be

On an application for dismissal

Answer 25

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

Question 26

What is the test for dismissing a charge ultimately the same test as?

Answer 26

The test to be applied where defence makes a submission of no case to answer

Question 27

What is a submission of no case to answer?

Answer 27

A submission after all prosecution evidence is presented at trial that there is no case to answer on any (one) charge by D

Question 28

What is the test to be applied where the defence makes a submission of no case to answer (and on application for dismissal)?

2 limbs of R v Gailbraith

Answer 28

Judge should stop the case where:

1. There is no evidence that crime has been committed by D; or
2. Prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it

Question 29

How would prosecution evidence, taken at its highest, not be enough for a properly directed jury to properly convict on it?

Answer 29

Where integrity of existing evidence is open to question and judge decides that conviction could not be properly founded upon it (even at highest)

Question 30

Where should judge allow the matter to be tried by the jury even where the evidence is open to question?

Answer 30

Where the strength/weakness of evidence depends on the witness’ reliability/other matters that are within province of jury

Question 31

What does this mean where credibility is the issue with the evidence?

This = Where the strength/weakness of evidence depends on the witness’ reliability/other matters that are within province of jury

Answer 31

As issues of credibility generally matters for tribunal of fact (jury/magistrates) to consider in reaching verdict, such issues will not usually result in case being stopped/submission of no case to answer

Question 32

When and in what court is the defence entitled to submit to judge that there is no case to answer?

Answer 32

• After prosecution has presented all evidence (half-time submission)
• Made in magistrates’ or Crown

Only at this stage that the entirety of the prosecution case against a defendant can be considered

Question 33

Do the jury witness the submission of no case to answer?

Answer 33

No - made in their absence

Question 34

In the Crown court, what is the consequence of a successful and unsuccessful submission of no case to answer on the jury?

Answer 34

• If successful = will be instructed to enter not guilty verdict
• If unsuccessful = not informed

Question 35

What is the difference between application for dismissal and submission of no case to answer in terms of where they can be made?

Answer 35

• Application for dimissal in Crown only (as needs to be sent there first)
• Submission of no case to answer in both

Question 36

Does a half-time submission only occur after an application by the D?

Answer 36

No - court can make on its own initiative

Question 37

What must the court do before it acquits on the grounds that prosecution evidence is insufficient?

Answer 37

Give prosecution the opportunity to make representations (reply to application)

Question 38

What is there not an obligation for either magistrates’ or Crown to do re a submission of no case to answer?

Answer 38

Give reasons when rejecting a submission of no case to answer

Question 39

What evidence can be excluded under s78?

Covered more later

Answer 39

Evidence on which prosecution intends to rely only

I.e. prosecution cannot rely on s78

Question 40

Other than the prosecution, what other party cannot rely on s78 to exclude evidence of the D?

Answer 40

A co-D!

Question 41

What is the preserved common law under PACE s82(3) that can exclude evidence? Is it used today?

Answer 41

• Gives courts discretion to exclude evidence where its prejudicial effect outweighs its probative value
• Little relevance today due to wide-ranging statutory powers of s78 and s76

Question 42

For what type of issue would an abuse of process application be used? How is it different to an application to exclude evidence?

Answer 42

• Issue of unfairness/impropriety is so fundamental that for trial to continue would be an abuse of process of the court
• Goes beyond application to exclude evidence; concerned with whether or not case should be allowed to continue

Cf application for dismissal - evidence not enough
This has to do with an abuse of process

Question 43

What are the two categories in which the court has power to stay proceedings for abuse of process? Will either consider other factors and will either be found lightly?

Answer 43

1. Where accused can no longer receive a fair hearing (no balancing exercise);
2. Where stay is necessary to protect the integrity of the criminal justice system (balancing exercise)

Stay of proceedings is a remedy of last resort

Question 44

For what 4 reasons may the defence apply to have proceedings stayed as an abuse of process of the court?

(Will be more)

Answer 44

• D tricked/coerced into committing offence they otherwise would not have committed
• Where D is prosecuted despite unequiovcal promise by prosecution that they won’t be
• Where police have acted in such a way to undermine public confidence e.g. destroying evidence
• Where prosecution has manipulated/misused process of court to deprive D protection by law

Question 45

Where does delay fit in with abuses of process of the court?

Answer 45

Delay can amount to an abuse of the court, esp where prosecution deliberately delays to gain a tacticla advantage

Question 46

Must the defence prove that the prosecution delayed deliberately to apply for abuse of court?

Answer 46

No! Inordinate or unconscionable delay due to inefficiency of prosecution + prejudice caused to defence may be sufficient for successful application

Question 47

What does it mean if the proceedings are stayed in the event of a successful application? What happens to D?

Answer 47

The prosecution cannot proceed - not same as ‘not guilty’ but no conviction and D’s record not tarnished

Question 48

What is the burden of proof for defence in its abuse of process application?

Answer 48

Abuse of process on a balance of probabilities

Question 49

What is the difference re grounds between abuse of process applications in the magistrates’ and Crown?

Answer 49

• Magistrates’ = only on ground that D unable to have fair trial (not on integrity of justice system ground)
• Crown = both grounds available

Question 50

Summary: difference between application for dismissal, submission of no case to answer, and abuse of process application?

Answer 50

• Application for dismissal (only in Crown): pre-trial application to dismiss charge where evidence not sufficient to properly convict (Galbraith basically)
• Submission of no case to answer: submission at half-time where 1) no evidence against D or 2) evidence taken at highest is such that jury not able to properly convict (re integrity of evidence; bar where open to jury’s interpretation)
• Abuse of process application: unfairness so fundamental that continuing would be abuse of process of court - 1) accused can no longer receive fair hearing or 2) case must be stayed to protect integrity of CJS