Evidence Rules And Procedures

Question 1

What is the statutory definition of hearsay - s114(1) CJA 2003

Answer 1

1. section 114(1), a statement made outside of court, relied on as evidence of a matter stated in it
2. section 115: A statement for these purposes in any representation of fact or opinion made by a person by whatever means

Question 2

What is the general rule to the admissibility of hearsay?

Answer 2

That hearsay is not admissible evidence unless it comes under one of the exceptions

Question 3

What are the statutory exceptions to the hearsay rule under s114(a)?

Answer 3

• Absent witness (s116 CJA 2003)
• Business and other documents (s117 CJA 2003)
• Previous inconsistent statements of a witness (s119 CJA 2003)
• Previous consistent statements by a witness (s120 CJA 2003)
• Statements from a witness which are not in dispute (s9 CJA 1967 and formal admissions (s 10 CJA 1967)

Question 4

Common law exceptions to hearsay rule

Answer 4

• confession
• res gestae

Question 5

What is the two-steps to identifying whether a statement/ evidence is hearsay?

Answer 5

• Was it a statement made outside of court?
• Does the prosecution want to rely on the statement(s) to prove the truth of its contents? (e.g., that the defendant is the person who carried out the attack?)

Question 6

Components to prove for s116 absent witness

Answer 6

a) Must be first-hand hearsay; must not contain any inadmissible evidence e.g., inadmissible opinion evidence) (“If oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter”

b) Person who made the statement is identified to the courts satisfaction

c) any of the 5 conditions in s 116(2) are satisfied

Question 7

Conditions in s 116(2) to admit hearsay when witness is abesent

Answer 7

The relevant person is:
(a) Dead;
(b) Unfit to be a witness because of his bodily/mental condition;
(c) Outside the UK and its not reasonably practicable to secure his attendance;
(d) Person cannot be found and such steps as reasonably practicable to find him have been taken
(e) Through fear the relevant person does not give oral evidence either at all/in connection with the subject matter of the statement; AND the court gives leave [» s116(4)]

Question 8

s116(4) requires the court to grant leave to admit hearsay only if…

Answer 8

It considers that the statement ought to be admitted in the interests of justice having regard to:
a) The contents; and
b) Any risk of unfairness, in particular the difficulty in challenging the statement; and
c) The fact that (in appropriate cases) a special measures direction could be made

Question 9

Exception to hearsay rule: s 114(d) It is in the interests of justice.
What is the rule?

Answer 9

The court has a wide discretion to admit hearsay evidence which is COGENT and RELIABLE

Question 10

Factors under s114(2) to decide whether to admit hearsay under ground 114(1)(d) interests of justice, the court must have regard to 9 factors:

Answer 10

a) probative value - How valuable is it in proving the matter? and understanding of other evidence in the case?
b) What other evidence has been/can be given on the matter?
c) In the context of the case as a whole - How important the matter or evidence itself?
d) circumstances in which the statement was made
e) How reliable does the maker of the statement appear?
f) reliability of the making of the statement/ evidence - i.e., how was it made?
g) whether oral evidence can be given of the matter stated and if not why not?
h) amount of difficulty involved in challenging the statement
I) extent to which difficulty would likely prejudice the party facing it

Question 11

What is the definition of bad character under s98 CJA 2003 + 112 CJA

Answer 11

S98- evidence of or disposition towards MISCONDUCT
S112 - misconduct is defined as the commission of an offence or other reprehensible behaviour

Question 12

What are the gateways for admitting bad character evidence? (7 gateways) under s101(1)

Answer 12

101(1)(c) it is important explanatory evidence
101(1)(d) it is relevant to an important matter in issue between the defendant and the prosecution
101(1)(e) it has substantial probate value in relation to an important matter in issue between that defendant and a codependent
101(1)(f) it is evidence to correct a false impression given by that defendant
101(1)(g) that defendant has made an attack on another person’s character

Question 13

Under gateway (d) what are the arguments that the prosecution can make?

Answer 13

(a) the defendant has a propensity to commit offences of the type charged (significant factual similarity / of the same category or same description)

(B) the defendant has a propensity to be untruthful (previous guilty plea and testified but court found against)

Question 14

EDIT To exclude bad character evidence under gateway (d) what are the arguments the defence can make?

Answer 14

First: The previous convictions do not show any propensity of x

Question 15

What is the rule in s34 CJPOA 1994

Answer 15

The court or jury may draw an adverse inference from a defendant’s silence when the defendant was being questioned or charged at the police station if:

• At any time before he was charged on being questioned under caution, failed to mention any fact relied on his defence that they later relies on at trial
• On being charged, failed to mention any FACT relied on in his defence which, in the circumstances existing at the time, the accused could reasonably have been expected to mention

Question 16

What is the rule in s36 CJPOA

Answer 16

Allows the court to draw an adverse inference if when interviewed by the police, the defendant filed to account for the presence of an object, substance or mark (under special caution): Either:

• on the defendant’s person?
• in or on the defendant’s clothing or footwear?
• otherwise in his possession?
• in the place of his arrest?

Question 17

Whats the rule under s37 CJPOA 1994

Answer 17

Allows the court to draw an adverse inference if when questioned at the police station, the defendant failed to account for his presence at a particular place at or about the time the offence was committed

(s37 will apply irrespective of any defence put forward)

Question 18

What is the rule under s35 CJPOA? (AT TRIAL)

Answer 18

Silence at trial
- A defendent who fails to give evidence on his own behalf at trial may be subject to an adverse inference being drawn by the court/ jury
[basically if prosecution has raised issues which call for an explanation from defendant, at trial, and D fails to give evidence, the court will be entitled to infer from that failure that the defendant has either no explanation or no explanation that will stand up to cross-examination]