Evidence pre trial Flashcards
What is the primary purpose of calling evidence in a case?
To prove the ‘facts in issue’.
Define ‘facts in issue’.
The facts that any party needs to prove in order to prove its case.
What must the prosecution prove in a theft case?
That the defendant appropriated property belonging to another, dishonestly, with the intention of permanently depriving another of it.
List three ways evidence can be established without calling live evidence.
- Agreeing a witness statement as true by consent of the parties (CJA 1967, s.9)
- Agreeing any fact between the parties (CJA 1967, s.10)
- Judicial notice taken by a judge or jury.
What does Criminal Justice Act 1967, section 9 allow?
A witness’s statement can be agreed as accurate and true in its written form.
What is the purpose of agreeing any fact between the parties under section 10 of the CJA 1967?
To reduce a fact to writing, agreed and signed by both parties’ lawyers.
What is ‘judicial notice’?
When a judge or jury recognizes a fact without needing formal proof.
What are the different types of evidence?
- Oral evidence
- Written evidence (agreed statements, admitted facts)
- Real evidence
- Direct evidence
- Circumstantial evidence
- A view.
Define ‘real evidence’.
Objects and things brought to court for inspection.
Differentiate between direct evidence and circumstantial evidence.
- Direct evidence: Given by a witness with direct experience.
- Circumstantial evidence: Evidence from which facts are inferred.
What is a ‘view’ in the context of court evidence?
When juries visit a crime scene or view an object that cannot be brought into court.
What is the first principle for evidence to be admissible?
It must be relevant.
What establishes the relevance of evidence?
Whether it is ‘logically probative’ of a fact in issue.
What is the significance of R v Usayi [2017] EWCA Crim 1394?
The Court of Appeal ruled that certain evidence was insufficiently relevant and should not have been admitted.
What are exclusionary rules in relation to evidence?
Rules that prevent the admission of relevant evidence to protect the fairness of trials.
What is meant by ‘weight’ of evidence?
The strength, reliability, and value of evidence.
Who determines the facts in a case?
The tribunal of fact.
Who determines the law in a case?
The tribunal of law.
What is a pre-trial application for dismissal?
A request to have the charges against a defendant dismissed before arraignment.
List the principal ways to exclude evidence or stop a criminal case.
- Applications for dismissal
- Submissions of no case to answer
- Applications to exclude evidence under s.78 PACE
- Applications to exclude confessions under s.76 PACE
- Applications to exclude evidence under s.82(3) PACE
- Abuse of process applications.
What does an application for dismissal require?
It can only be made after a defendant is sent for trial and served with evidence, and only before arraignment.
What is an application to exclude evidence under s.78 of PACE?
A request to exclude evidence that was obtained in a manner that would render its admission unfair.
What is the role of the judge regarding the admissibility of confessions?
The judge hears the application to exclude the confession and decides its admissibility.
True or False: In the magistrates’ court, the tribunal of fact and law is the same.
True.
What is the implication of the same tribunal for fact and law in magistrates’ court?
It can affect how evidence is considered and the fairness of the trial.
What is the procedure for making an application to dismiss charges against a defendant?
An application can be made only after:
* The defendant is sent by the magistrates’ court for trial to the Crown Court
* The defendant has been served with the evidence relating to the offence
* Before the defendant is arraigned.
What is the power to make an application to dismiss charges based on?
The power is contained in Schedule 3 of the Crime and Disorder Act (CDA) 1998 and is set out in CrimPR r.9.16.
What is the test for dismissing a charge as per Schedule 3 para 2(2) of the CDA?
The judge shall dismiss a charge if it appears that the evidence against the applicant would not be sufficient for a proper conviction.
What are the two limbs of the Galbraith test for submissions of no case to answer?
- No evidence of the crime has been committed by the defendant.
- Prosecution evidence, taken at its highest, is insufficient for a properly directed jury to convict.
True or False: A judge must consider the whole of the evidence when deciding on an application to dismiss charges.
True
What is a submission of no case to answer?
It is a request made during a trial after the prosecution has presented all evidence, arguing that there is no case against the defendant.
When is a submission of no case to answer typically made?
At the close of the prosecution case, often referred to as a ‘half-time submission’.
What happens if a submission of no case to answer is successful?
The jury will be informed that there is insufficient evidence, and a verdict of not guilty will be entered.
What is Section 78 of the Police and Criminal Evidence Act 1984 (PACE) concerned with?
It is concerned with fairness and allows the defence to seek to have prosecution evidence excluded.
What are the two categories of cases where the court can stay proceedings for abuse of process?
- The accused can no longer receive a fair hearing.
- It would otherwise be unfair to try the accused.
What is the significance of the public interest in prosecution as discussed in the context of abuse of process?
There is a strong public interest in the prosecution of crime, and a stay of proceedings is a remedy of last resort.
List examples of when the defence might apply to have proceedings stayed as an abuse of process.
- Defendant tricked or coerced into committing an offence
- Prosecution despite an unequivocal promise not to prosecute
- Police actions undermining public confidence in the justice system
- Prosecution manipulating the court process.
What is the common law discretion to exclude evidence under PACE Section 82(3)?
It allows the court to exclude evidence if its prejudicial effect outweighs its probative value to secure a fair trial.
What are the main methods to exclude evidence or stop a case?
- Application for dismissal
- Submission of no case to answer
- Application under s.78 PACE
- Application to exclude a confession under s.76 PACE
- Application to exclude evidence under common law (s.82(3))
- Abuse of process application.
How does a successful application to stay proceedings as an abuse of process affect the prosecution case?
The prosecution case will not be able to proceed, but it is not the same as a ‘not guilty’ verdict.
What is the primary purpose of applications to exclude evidence under s.78 PACE?
To ensure fairness in proceedings by refusing to admit evidence that may adversely affect the fairness of the trial.
Section 78 PACE focuses on whether the admission of evidence would have an adverse effect on the fairness of the proceedings.
List the principal ways to exclude evidence or stop a prosecution case.
- Applications for dismissal
- Submissions of no case to answer
- Applications to exclude evidence under s.78 PACE
- Applications to exclude confessions under s.76 PACE
- Applications to exclude evidence under preserved common law provisions – s.82(3) PACE
- Abuse of process applications
These methods are utilized to challenge the admissibility of evidence in court.
What does s.78(1) PACE state regarding the exclusion of unfair evidence?
The court may refuse to allow evidence if its admission would have an adverse effect on the fairness of the proceedings.
This section emphasizes the importance of fairness in legal proceedings.
True or False: Section 78 PACE can be used by the prosecution to exclude evidence that a defendant seeks to admit.
False.
Section 78 only applies to evidence that the prosecution intends to rely on.
What is the key test for excluding evidence under s.78 PACE?
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.
The focus is on the fairness of the trial rather than punishing police misconduct.
What must the police inform detained suspects according to Code C, Paragraph 3.1?
- Their right to consult privately with a solicitor
- Their right to have someone informed of their arrest
- Their right to consult the Codes of Practice
These rights are essential safeguards for suspects during detention.
Fill in the blank: Section 78 PACE is concerned with the fundamental concept of _______.
[fairness].
Fairness is a core principle in legal proceedings, guiding the exclusion of evidence.
What is required before questioning a suspect according to Code C, Paragraph 10.1?
The suspect must be cautioned before any questions about the offence are put to them.
This caution is crucial for ensuring that the suspect understands their rights.
What is a ‘voir dire’ in the context of legal proceedings?
A mini-trial to resolve factual disputes before a legal argument can be decided.
It is a hearing on a specific legal issue, often related to the admissibility of evidence.
In what circumstances can an application under s.78 PACE be made?
- Before the trial
- At the commencement of the trial
- Just prior to the prosecution seeking to admit the evidence
Timing is critical for the effectiveness of a s.78 application.
What does Code C, Paragraph 10.5 state regarding the caution given to suspects?
The caution should inform suspects that they do not have to say anything, but it may harm their defense if they do not mention something they later rely on in court.
This helps ensure that suspects are aware of the implications of their statements.
True or False: Not every breach of the PACE Codes will lead to the exclusion of evidence.
True.
The seriousness of the breach and its effect on fairness are key considerations.
What is the function of the judge in relation to s.78 PACE?
To protect the fairness of the proceedings by deciding on the admissibility of evidence.
The judge has discretion based on the circumstances of each case.
What are the eight Codes of Practice issued under s.66 PACE?
- Code A (Stop and Search)
- Code B (Entry, Search and Seizure)
- Code C (Detention, Treatment and Questioning of Non-Terrorist Suspects)
- Code D (Identification)
- Code E (Audio Recordings of Interviews)
- Code F (Visual Recording of Interviews with Sound)
- Code G (Arrest)
- Code H (Detention, Treatment and Questioning of Terrorism Suspects)
These codes guide police conduct and ensure the rights of suspects are protected.
What must be proven for a judge to exclude evidence based on a breach of the PACE Codes?
That the breach led to unfairness or injustice in the proceedings.
The focus is on the impact of the breach rather than the breach itself.
What is a trial ‘on the voir dire’?
A mini-trial or ‘trial within a trial’ to hear evidence on a legal argument
It occurs in the absence of the jury in Crown Court and can involve disputed evidence.
What is the key test for the court under s.78 PACE?
Whether the admission of the evidence would have an adverse effect on the fairness of the proceedings
This applies specifically to prosecution evidence.
What does s.78 PACE apply to?
‘Evidence on which the prosecution proposes to rely’
It cannot be used by the prosecution to exclude evidence a defendant seeks to admit.
What is defined as a ‘confession’ under s.82 of PACE?
Any statement wholly or partly adverse to the person who made it
This includes unequivocal confessions and mixed statements.
What are the two main ways to challenge a confession under s.76 PACE?
- Oppression (s.76(2)(a))
- Unreliability (s.76(2)(b))
What constitutes ‘oppression’ under s.76(8)?
Torture, inhuman or degrading treatment, and the use or threat of violence
This definition aligns with the European Convention on Human Rights, Article 3.
What must the prosecution prove if a confession is challenged on the basis of oppression?
That the confession was not obtained by oppression beyond reasonable doubt
What does ‘unreliable’ mean in the context of confessions?
Cannot be relied upon as being the truth
The focus is on whether the circumstances under which it was made could render it unreliable.
What is the requirement for a confession to be admissible under s.76(1)?
It must be relevant to any matter in issue and not excluded by the court
What is a key consideration when determining whether a confession is unreliable?
Whether the actions or words of the police were likely to render the confession unreliable in the circumstances
This involves an objective assessment of the situation.
What is the significance of an appropriate adult during police questioning?
To provide protection and support for vulnerable suspects, which can affect the reliability of confessions
What defines a mixed statement as a confession?
A statement that is partly inculpatory and partly exculpatory
What must occur before a s.78 application is heard?
The application should be made before the disputed evidence is adduced
What happens if a confession is partly excluded under s.76?
It does not affect the admissibility of facts discovered as a result of the confession
True or False: Wholly exculpatory statements are considered confessions under PACE.
False
What does ‘the thing said or done’ refer to in the context of challenging a confession?
Any act or omission by police likely to render a confession unreliable
What is the role of the jury regarding a confession once it is deemed admissible?
To decide for themselves whether to rely upon the alleged confession
Fill in the blank: The absence of an appropriate adult for a vulnerable suspect can render a confession _______.
unreliable
What is the first step in approaching s.76(2)(b) cases?
Identify the thing said or done by the police
What must be proven for a confession to be excluded under s.76(2)(b)?
The confession should be excluded if the absence of an appropriate adult likely rendered it unreliable.
This is based on the requirement for an appropriate adult to protect the suspect’s rights during interrogation.
What is an example of an unreliable confession related to deprivation of sleep?
R v Trussler [1988] Crim LR 446 - The defendant was 18 hours without rest before confessing.
This case illustrates a clear breach of PACE Code C.
In which case was a confession excluded due to failure to caution the suspect?
R v Doolan [1988] Crim.L.R. 747, CA - The confession was admitted despite the failure to caution.
The court held that this failure likely rendered the confession unreliable.
What was the outcome for R v McGovern regarding the confession made without legal advice?
The appeal was allowed because the confession was likely unreliable due to denial of access to legal advice.
The appellant was a 19-year-old pregnant woman with limited intelligence.
What must the prosecution prove regarding confessions under s.76(2)(b)?
The prosecution must prove beyond reasonable doubt that the confession was not obtained as a result of anything said or done that could render it unreliable.
This is a question of fact for the judge.
What does section 76(4)(a) PACE state about evidence discovered due to an excluded confession?
Facts discovered as a result of a confession, even if excluded, can still be admissible in evidence.
For example, locating a murder victim’s body following a confession.
What does section 76(4)(b) PACE allow regarding the confession?
It allows the prosecution to use part of the confession necessary to show how the accused speaks, writes, or expresses himself.
This was illustrated in R v Nottle [2004] EWCA Crim 599.
What is the main provision through which the admissibility of a confession can be challenged?
s.76 PACE - It allows challenges based on oppression or anything that could render a confession unreliable.
The two main ways to challenge under s.76 are s.76(2)(a) and s.76(2)(b).
What does section 78 PACE concern?
Exclusion of unfair evidence in court proceedings.
This section allows the court to refuse evidence that adversely affects the fairness of proceedings.
What case illustrated the exclusion of confessions under s.78 due to unfairness?
R v Keenan [1990] 2 Q.B. 54 - Significant breaches of Code C led to the exclusion of the confession.
The case highlighted the importance of proper procedures to ensure fairness.
What is the key test for excluding evidence under s.78?
Whether the admission of the evidence would adversely affect the fairness of the proceedings.
The court focuses on fairness, not punishing police conduct.
What does s.76(5) PACE state about confessions?
It states that evidence discovered as a result of a confession is not admissible unless evidence of how it was discovered is provided.
This prevents circumvention of the exclusion of the confession itself.
What is the key test for the court in deciding whether to exclude prosecution evidence under s.78?
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.
This is a fundamental consideration for the court’s decision-making process regarding evidence admissibility.
Does irregularly obtained evidence automatically render it inadmissible?
No, simply because evidence has been irregularly obtained does not per se render it inadmissible.
This emphasizes that other factors must be considered in the context of the case.
Is it common practice for the defence to seek to exclude evidence of a confession?
Yes, it is perfectly appropriate and common practice for the defence to seek to exclude evidence of a confession under s.76 and, as an alternative, s.78.
This reflects standard procedures in legal practice regarding confessions.
What does s.78 PACE allow the court to examine?
A case from a perspective of overall fairness.
This provision can offer broader protections to the defendant than s.76.
Under what circumstances might the court exclude evidence due to police bad faith?
When there has been bad faith on the part of the police acting in breach of PACE or the Codes of Practice.
This factor is likely to lead to exclusion of the evidence.
What does the court consider when determining if the defendant has been unfairly prejudiced?
The court will consider how, if at all, the defendant has been unfairly prejudiced.
This assessment is crucial in the context of evidence admissibility.
