Excluding evidence Flashcards
What is an application for dismissal?
A pre-trial application made to dismiss a case
When can an application for dismissal be made?
- After D is sent to the Crown Court for trial
- After D has been served with the evidence
- Only before the defendant pleads
Who is the application to exclude evidence made to?
The application must be made to a Crown Court Judge.
What must a defendant do to make an oral application for dismissal?
Give written notice of D’s intention to do so
Under what circumstances should a judge dismiss a case?
- No evidence that the crime has been committed by the defendant
- Prosecution evidence taken at its highest, is such that a properly directed jury could not properly convict on it (Galbraith)
What is a submission of no case to answer?
A submission made by the defence after the close of the prosecution case
This can be made in both magistrates’ and crown courts.
What happens if there is no evidence that the crime has been committed and a submission for no case to answer is made?
The judge should stop the case
What should a judge do if there is some tenuous evidence but a submission for no case to answer has been made?
- It the judge decides that a jury, properly directed could not properly convict on the evidnece, it is the duty to stop the case on a submission for no case to answer
- Allow the case to proceed if there is evidence for a jury to consider
Galbraith
In what setting does the application for no case to answer take place in the Crown Court?
In the absence of the jury
True or False: The jury is informed if an application for no case to answer is unsuccessful.
False
The jury will not be informed that such an application has been made.
What are the ways in which evidence can be excluded?
- application for dismissal
- submission of no case to answer
- abuse of process application
- common law discretion to exclude evidence
What are abuse of process applications?
Applications made where unfairness or impropriety is so fundamental that continuing the trial would be an abuse of the court’s process.
What does the defence apply for in abuse of process cases?
The defence applies to stay proceedings.
What are the two categories of abuse of process?
- Where the court concludes that the accused can no longer receive a fair hearing.
- Where it would otherwise be unfair to try the accused - the court considers the accused should not be at trial at all (fairness of trial is not important)
What is the remedy for in abuse of process cases?
Staying proceedings - but this should be a remedy of last resort.
What are some examples of abuse of process?
- Defendant tricked into committing an offence.
- Defendant prosecuted despite an unequivocal promise by the prosecution not to prosecute.
- Police actions undermining public confidence in the criminal justice system.
- Prosecution delaying proceedings for tactical advantage (could be deliberate or not deliberate)
Does abuse of process require deliberate actions?
No, inefficiency of prosecution and resulting prejudice to the defence may be sufficient.
Where are abuse of process applications mainly dealt with?
Mainly dealt with in the Crown Court to stay the indictment as an abuse of process.
Can abuse of process applications be brought in magistrates’ court?
Yes, but only on the ground that a defendant is unable to have a fair trial.
What is the common law discretion to exclude evidence?
The discretion to exclude prosecution evidence where its prejudicial effect outweighs its probative value, including to secure a fair trial for the accused.
