Excluding Evidence

Question 1

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

Answer 1

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?

Answer 2

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

Question 3

When can an application for dismissal be made?

Answer 3

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?

Answer 4

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?

Answer 5

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?

Answer 6

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?

Answer 7

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?

Answer 8

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?

Answer 9

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?

Answer 10

No.

Question 11

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

Answer 11

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?

Answer 12

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?

Answer 13

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?

Answer 14

(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?

Answer 15

*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?

Answer 16

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.

Question 17

Even if the defence cannot assert that the prosecution has deliberately delayed proceedings can the delay amount to abuse of process?

Answer 17

Even if the defence cannot assert that the prosecution has deliberately delayed proceedings, inordinate or unconscionable delay due to the inefficiency of the prosecution in bringing a case coupled with prejudice caused to the defence as a result may be sufficient for an abuse of process application to succeed.

Question 18

In bringing an application for abuse of process, what must the defence prove?

Answer 18

In bringing such an application the defence will have to prove abuse of process on the balance of probabilities.

Question 19

Where are abuse of process applications dealt with?

Answer 19

Abuse of process applications are mainly dealt with in the Crown Court. However, they can be brought in the magistrates’ court but only on the ground that a defendant is unable to have a fair trial (and not on the ground that the integrity of the justice system has been brought into disrepute – an application on this basis would have to be made to the Divisional Court by way of judicial review).

Question 20

What is the common law discretion to exclude evidence?

Answer 20

This is the common law discretion for the courts to exclude evidence where its prejudicial effect outweighs its probative value.

IT ONLY APPLIES TO PROSECUTION EVIDENCE.

Question 21

Who is unable to rely on the common law discretion to exclude evidence?

Answer 21

At common law, it is not open for the prosecution to apply to exclude defence evidence, or for one defendant to exclude evidence which a co-defendant seeks to admit. If significant unfairness would result to a defendant from a co-defendant’s evidence, in such circumstances the defendant could apply to be tried separately from the co-defendant.

Question 22

What are section 78 applications?

Answer 22

Section 78 PACE 1984 allows a court to exclude evidence if it would make proceedings unfair.

Question 23

What does s.78 PACE relate to?

Answer 23

Evidence on which the prosecution proposes to rely.

Question 24

What is the key test under s.78 PACE 1984?

Answer 24

Whether the admission of evidence would have such an adverse effect on the fairness of proceedings that the court should not admit it.

Question 25

What situations does s.78 include?

Answer 25

Where evidence was obtained in breach of ECHR, provisions of PACE or Codes of Practice.

Question 26

What are s.78 examples?

Answer 26

• The “fundamental right” of access to legal advice has been improperly denied;
• Where waiver of the right of access to legal advice was not voluntary, informed or unequivocal;
• Where there has been a failure to caution a suspect before questioning;
• Where an appropriate adult has not been provided for a youth, mentally disordered or mentally vulnerable suspect;
• Where identification procedures have not been followed.

Question 27

Will evidence automatically be excluded due to a breach of the Code?

Answer 27

No it must be substantial and significant.

Question 28

What does `substantial and significant’ mean?

Answer 28

When considering an application under s.78, the principal consideration is not the seriousness of the breach per se, but rather the effect of the breach – namely 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 position is therefore that, the more significant and substantial the breach, the more likely it will result in unfairness.

Question 29

Would the CoA interfere with a judge’s decision under s.78?

Answer 29

The CoA will not interfere with a judge’s decision under s.78 unless satisfied that decision was perverse i.e. no reasonable judge having heard the evidence could have reached the conclusion they did.

Question 30

When can an application under section 78 be made?

Answer 30

*Before the trial;
*At the commencement of the trial; or
*Just prior to the prosecution seeking to admit the evidence which the defence wish to be excluded.

Question 31

Where a s.78 application would result in the prosecution case being fatally weakened, when should the application be made?

Answer 31

Where an application to exclude evidence under s.78 would, if granted, result in the prosecution case being fatally weakened a judge will often want that argument to take place at a pre-trial hearing or at the commencement of the trial; in the Crown Court this would often be before a jury is sworn.

Question 32

Where the s.78 application relates to a matter of less significance, when should the application be made?

Answer 32

Where the application relates to a matter of less significance the judge may direct that the matter is dealt with at a convenient moment during the trial itself. If the argument is not heard before the case commences, the prosecution should avoid making any reference to the disputed evidence in the opening speech.

Question 33

Where the s.78 point of law is clear from the case papers or becomes clear following initial disclosure where should the defence include the point of law?

Answer 33

Where the point of law is clear from the case papers or becomes clear following initial disclosure, the defence should include the point of law in the Defence Statement together with any authorities relied upon. In practice, the defence representative will often draft a skeleton argument in support of D’s application and the prosecution will draft a skeleton argument opposing it.

Question 34

When will directions on s.78 applications normally be given in the Crown Court and magistrates court?

Answer 34

Directions will be given by the judge in the Crown Court, usually at the (PTPH), as to when a s.78 application will be heard.

Similar directions will be given when dealing with case management at the magistrates’ court.

Question 35

What is a voir dire?

Answer 35

A voir dire is a separate hearing in which the trier of law determines whether evidence is admissible and can potentially be entered into evidence in the trial. A voir dire can also be convened to determine the competence of a witness or to determine whether an expert witness is qualified to give evidence.

Question 36

What special form of affirmation/oath do witnesses testify on at a voir dire?

Answer 36

In a voir dire, the witnesses testify on a special form of affirmation/oath `that I will true answer make to all such questions as the court shall demand of me’.

Question 37

When will a voir dire take place in the Crown Court?

Answer 37

Being a legal argument, in the Crown Court a voir dire takes place in the absence of the jury.

Question 38

When will a voir dire take place in the magistrates court?

Answer 38

In the magistrates’ court, the magistrates can rule on a s.78 application when it arises or hear all the evidence (including the disputed evidence relating to the legal argument) before ruling on admissibility. However, the interests of justice may dictate that a ruling on admissibility is made early enough to allow the defendant to know whether that evidence forms part of the case, to deal with it in cross-examination and in D’s evidence and, if appropriate, to make a meaningful submission of no case to answer.