Question 1

What are the principal ways of excluding evidence and/or seeking to bring a prosecution case to an end?

Accepted Answer

1. Applications for dismissal 2. Submissions of no case to answer 3. Applications to exclude evidence under s78 PACE 4. Applications to exclude confessions under s76 PACE 5. Applications to exclude evidence under the preserved common law provisions 6. Abuse of process applications

Question 2

What is an application for dismissal?

Accepted Answer

It is a pre-trial application to have the charges against a defendant dismissed.

Question 3

When can an application for dismissal be made?

Accepted Answer

Only: 1. After the defendant is sent by the magistrates court for trial at the CC; 2. After the defendant has been served with the evidence relating to the offence; and 3. Before the defendant is arraigned (the offence is put to D and D pleads guilty or not guilty)

Question 4

Who is an application for dismissal made to and does the defendant have the opportunity to make an oral application?

Accepted Answer

The application is made to a Crown Court judge and if the D wishes to make an oral application, D must give written notice of their intention to do so.

Question 5

What is the test for application for dismissal?

Accepted Answer

a) where there is no evidence that the crime has been committed by the defendant; or b) where the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it.

Question 6

When applying the test for application for dismissal, what must the judge take into account?

Accepted Answer

Judge must take into account the whole of the evidence and not view matters in isolation from their context or other evidence. Where the prosecution seeks inferences to be drawn from the evidence the judge should assess whether such inferences could properly be drawn by the jury.

Question 7

Can judicial review be used to challenge a decision by the Crown Court on an application to dismiss?

Accepted Answer

It was held that judicial review cannot be used to challenge a decision by the Crown Court on an application to dismiss.

Question 8

What is a submission of no case to answer?

Accepted Answer

During the trial and after the prosecution has presented all of its evidence, the defence are entitled to submit to the judge that there is no case to answer on any one or all of the charges faced by the defendant. The application can be made in the magistrates court and the Crown Court.

Question 9

How will a submission of no case to answer take place in the Crown Court?

Accepted Answer

In the Crown Court, the application will take place in the absence of the jury. If the application is unsuccessful, the jury will not be informed that such application has been made. If the application is successful, the jury will be informed that there is insufficient evidence, and the judge will instruct the foreman to enter a verdict of not guilty.

Question 10

Is there an obligation on the magistrates or Crown Court to give reasons why they are rejecting a submission of no case to answer?

Accepted Answer

No.

Question 11

What is the test for submissions of no case to answer?

Accepted Answer

1. There is no evidence that the crime alleged has been committed by the defendant. For example, the witness accepts the person standing in the dock is not the person who committed the offence. The judge will of course stop the case. 2. Where the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it. Where, however, the prosecution evidence is such that its strength or weakness depends on the view to be taken on the witnesses reliability, the judge should allow the matter to be tried by the jury.

Question 12

What is the procedure for submissions of no case to answer in the magistrates and Crown Court?

Accepted Answer

At the conclusion of the prosecution case, on the defendant’s application or on its own initiative, the court: I. may acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict, but II. must not do so unless the prosecutor has had an opportunity to make representations (i.e. the prosecution must be given the right to reply to such an application).

Question 13

What is an abuse of process application?

Accepted Answer

Sometimes, there is an issue of unfairness or misconduct so fundamental that for the trial to continue it would be an abuse of process of the court. In such cases, the defence can apply to stay proceedings as an abuse of process of the court.

Question 14

When does the court have the power to stay proceedings?

Accepted Answer

(i) The defendant cannot have a fair trial; or (ii) Continuing the prosecution offends the court’s sense of justice and proprietary or would undermine public confidence in the criminal justice system.

Question 15

What are examples where the defence might apply to have proceedings stayed?

Accepted Answer

Where a defendant has been tricked or coerced into committing an offence the defendant would not otherwise have committed; Where a defendant is prosecuted despite an unequivocal promise by the prosecution that the defendant will not be; Where the police have acted in such a way as to undermine public confidence in the criminal justice system, such as by deliberately destroying evidence that would have assisted the defence; and Where the prosecution has manipulated or misused the process of the court so as to deprive a defendant of a protection afforded by law.

Question 16

Can delay amount to abuse of process?

Accepted Answer

Yes, if the prosecution has deliberately delayed proceedings in order to gain a tactical advantage this is likely to amount to an abuse of process.

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