Excluding Evidence Flashcards
What is the correct test for dismissing a charge under Schedule 3 CDA 1998?
A. The evidence would not be sufficient for a properly directed jury to convict
B. The evidence is weak and requires further clarification
C. The defendant intends to plead not guilty
D. The court has discretionary power to dismiss before service of evidence
A – The evidence would not be sufficient for a properly directed jury to convict
Explanation: This mirrors the Galbraith test and is the legal threshold for a dismissal application in the Crown Court before arraignment.
When is a submission of no case to answer typically made?
A. Before any prosecution evidence is served
B. At the close of the prosecution case during trial
C. After the defence witnesses testify
D. During pre-trial review hearings
B – At the close of the prosecution case during trial
Explanation: This is known as a half-time submission and is only made after the prosecution closes its case.
Which section of PACE preserves the court’s common law discretion to exclude evidence?
A. s.76
B. s.78
C. s.82(3)
D. s.101
C – s.82(3)
Explanation: Section 82(3) preserves common law powers to exclude evidence where its prejudicial effect outweighs its probative value.
Under abuse of process, what is required for the court to stay proceedings for fairness reasons?
A. Impossibility of a fair trial or serious system injustice
B. Any irregularity in police conduct
C. Any hearsay evidence presented
D. Witness memory lapses
D – Impossibility of a fair trial or serious system injustice
Explanation: Abuse of process stays the case if (1) D cannot receive a fair trial, or (2) continuing the case offends justice or integrity.
D is sent to Crown Court, the evidence is served, but D hasn’t pleaded yet. D believes the evidence is clearly insufficient. What should D apply for?
A. An application for dismissal
B. An application under s.76 PACE
C. A submission of no case to answer
D. Judicial review
A – An application for dismissal
Explanation: This is a pre-trial Crown Court route used after evidence is served but before arraignment.
A witness says D was present but gives contradictory times and locations. What application should the defence consider after the prosecution case closes?
A. Application to stay for abuse of process
B. Submission of no case to answer under Galbraith
C. Section 76 application
D. Section 82(3) application
B – Submission of no case to answer under Galbraith
Explanation: The second limb of Galbraith allows the court to stop the case if evidence is weak or inconsistent, taken at its highest.
The police used an illegal phone tap to gather evidence. What is the most appropriate route to exclude it?
A. Submission of no case to answer
B. s.82(3) – common law discretion
C. s.78 PACE
D. Application for dismissal
C – s.78 PACE
Explanation: s.78 PACE is used to exclude prosecution evidence if its admission would undermine the fairness of the trial.
D claims that prosecution delayed the case for three years causing loss of witnesses and records. What is the correct legal mechanism to challenge this?
A. Submission under s.76 PACE
B. No case to answer
C. s.82(3) discretion
D. Abuse of process application
D – Abuse of process application
Explanation: Deliberate or prejudicial delay may support an application to stay proceedings for abuse of process.
D applies to exclude evidence obtained unlawfully. The judge refuses. Can D then make a no case submission based on the same evidence?
A. Yes, if the evidence is insufficient when taken at its highest
B. No, because exclusion has been denied
C. Only if the jury agrees
D. Not unless the co-defendant objects
A – Yes, if the evidence is insufficient when taken at its highest
Explanation: If the admitted evidence is weak, D may still submit no case to answer under Galbraith.
A co-defendant introduces evidence highly prejudicial to D. Can D apply to exclude it under s.78 PACE?
A. Yes, always
B. No, s.78 applies only to prosecution evidence
C. Yes, if the co-defendant consents
D. No, unless it was gathered under duress
B – No, s.78 applies only to prosecution evidence
Explanation: s.78 PACE is limited to excluding prosecution evidence — not evidence from co-defendants.
D argues that being prosecuted breaches a promise made by the CPS. What is the right type of application?
A. s.76 application
B. Application to dismiss
C. Abuse of process – integrity limb
D. Appeal to the CPS
C – Abuse of process – integrity limb
Explanation: Prosecuting D despite a clear promise not to may offend the court’s sense of justice, justifying an abuse of process stay.
In a Magistrates’ Court case, D applies to stay the proceedings under the integrity ground. What happens next?
A. The court considers both limbs of abuse
B. The magistrates must stay the proceedings immediately
C. The prosecution must retry the case
D. The application must be made by judicial review
D – The application must be made by judicial review
Explanation: Magistrates’ courts can only grant a stay based on fair trial grounds. Integrity-based claims must go to the Divisional Court.
What is the primary legal test under s.78 PACE for excluding prosecution evidence?
A. Whether admitting the evidence would have such an adverse effect on fairness that it ought not to be admitted
B. Whether the evidence was gathered without legal authority
C. Whether the police acted unlawfully
D. Whether the evidence is contradicted by defence witnesses
A – Whether admitting the evidence would have such an adverse effect on fairness that it ought not to be admitted
Explanation: This is the legal test under section 78(1) PACE and is focused solely on protecting the fairness of the trial, not punishing the police.
Which of the following is true about the use of s.78 PACE?
A. It applies to all evidence regardless of source
B. It applies only to prosecution evidence
C. It can be used to exclude defence confessions
D. It applies only to physical evidence, not oral evidence
B – It applies only to prosecution evidence
Explanation: Section 78 can only be used to exclude evidence the prosecution seeks to rely on, not defence or co-defendant evidence.
What are the PACE Codes of Practice issued under?
A. Section 6 PACE
B. Section 10 PACE
C. Section 66 PACE
D. Section 78 PACE
C – Section 66 PACE
Explanation: Section 66 of the Police and Criminal Evidence Act 1984 allows for the creation of the Codes of Practice, such as Codes C and D.
Which of the following statements is correct regarding breaches of PACE Codes?
A. Any breach means the evidence must be excluded
B. Minor breaches automatically result in unfairness
C. Only a judge can use the breach to punish the police
D. Breaches must be significant and substantial to justify exclusion
D – Breaches must be significant and substantial to justify exclusion
Explanation: Not every breach justifies exclusion. The courts focus on whether the breach causes unfairness; significant breaches are more likely to result in exclusion.
D, a 17-year-old, is questioned without an appropriate adult present. He confesses. What is the most appropriate legal action?
A. Apply under s.78 to exclude the confession
B. Ignore it — age is irrelevant
C. Appeal under judicial review
D. Bring a private prosecution against the police
A – Apply under s.78 to exclude the confession
Explanation: Code C requires that juveniles be interviewed in the presence of an appropriate adult. A breach can make the confession unfair, justifying exclusion under s.78.
D is arrested and questioned immediately, without caution or legal advice. He confesses. Which Code and remedy are relevant?
A. Code E and judicial review
B. Code C and s.78 PACE application
C. Code F and no case to answer
D. Code D and abuse of process
B – Code C and s.78 PACE application
Explanation: Code C governs police procedures on cautioning and access to legal advice. Violating these may make the evidence unfair and inadmissible under s.78.
A judge finds the police failed to caution D, but D had access to legal advice and was not vulnerable. What is the likely outcome?
A. Automatic exclusion of the confession
B. Admissibility left to the jury
C. Judge may admit the evidence if no unfairness is found
D. The case must be referred to the CPS
C – Judge may admit the evidence if no unfairness is found
Explanation: The test is not about whether there was a breach, but whether the breach caused unfairness. Minor or technical breaches may not justify exclusion.
D is tried in the magistrates’ court and disputes the police’s conduct during interview. What procedure should be followed?
A. Voir dire before a judge
B. Confession automatically excluded
C. The magistrates rule on admissibility during or before trial
D. The CPS must abandon the charge
D – The magistrates rule on admissibility during or before trial
Explanation: In the magistrates’ court, the bench hears both facts and law, so they can rule on s.78 applications without a separate voir dire.
What is a voir dire?
A. A trial within a trial used to resolve factual disputes before a s.78 ruling
B. A form of judicial review
C. An appeal against exclusion of evidence
D. A jury instruction on fairness
A – A trial within a trial used to resolve factual disputes before a s.78 ruling
Explanation: A voir dire is held when the prosecution and defence disagree on the facts underpinning a s.78 application. It takes place without the jury.
D argues that the police fabricated a statement. The police deny it. What must the judge do before ruling on s.78?
A. Strike out the evidence automatically
B. Hold a voir dire to decide facts
C. Refer the case to the jury for decision
D. Call a retrial
B – Hold a voir dire to decide facts
Explanation: Where facts are disputed, the judge must hold a voir dire to decide what actually happened before applying the legal test.
The police failed to comply with Code D (identification), but D was still picked out in a fair lineup. What is most likely?
A. The evidence must be excluded
B. The trial judge may admit the evidence if no prejudice occurred
C. The magistrates must stay the proceedings
D. The court must refer the case to the High Court
C – The trial judge may admit the evidence if no prejudice occurred
Explanation: Even where there is a breach, if no actual unfairness is found, the judge has discretion to admit the evidence.
What must the court consider when deciding whether to exclude evidence under s.78?
A. Whether the breach led to an injustice or unfair trial
B. Whether the defence has prior convictions
C. Whether the jury would be confused by the evidence
D. Whether the police acted negligently
D – Whether the breach led to an injustice or unfair trial
Explanation: The core question under s.78 is whether admitting the evidence would undermine the fairness of the trial.
