Excluding Evidence II Flashcards
What are the principal ways of excluding evidence?
1) Applications for dismissal
2) Submission of no case to answer (Galbrinth test?)
3) Application to exclude evidence under s78 PACE
4) Application to exclude confessions under s76 PACE
5) Applications to exclude evidence under the preserved common law provisions
6) Abuse of process applications
When are applications for dismissal made?
Pre-trial
When can an application for dismissal be made?
1) Only after D sent to Crown by Magistrate’s
2) Only after D served with evidence
3) Only before D pleas
Who is application of dismissal made to?
Crown court judge
Can an application of dismissal be made orally?
Yes, but D must give notice to Crown Court judge
What is the test for dismissal?
If it appears that the evidence against applicant would not be sufficient for him to be properly convicted
What is the test of a no case to answer?
1) No evidence crime been committed by D; or
2) Prosecution evidence at its best could not convict D by jury
When could prosecution evidence at its highest not convict D by jury?
If, for example, weak, unreliable evidence.
What must a judge consider in an application to dismiss?
The evidence as a whole
Could judicial review challenge decision by Crown Court on application to dismiss?
No
Which court can hear a submission of no case to answer?
Both Magistrate’s and Crown
What are the limbs of a submission of no case to answer?
Either:
A) No evidence D committed the offence, or
B) At its highest of evidence, a properly direct jury could not properly convict upon it
When is a submission of no case to answer heard?
After the prosecution case at trial
Will the jury hear a submission of no case to answer in Crown Court?
No, will be in their absence
Does the prosecution have a right to respond to submission of no case to answer?
Yes, they have the right to make representations
Does the Court need to give reasons for rejection a submission of no case to answer?
No
What are the two categories of abuse of process applications?
1) Court concludes accused can no longer receive a fair hearing
2) It would be unfair to try the accused
What is the effect of the two categories of abuse of process applications?
The proceedings should be stayed
What is the effect of staying a proceeding in criminal law?
In criminal law, it is effectively a permanent remedy
Is staying proceedings the automatic remedy of abuse of process application?
No, it is a remedy of last resort – if they can do lesser, they will
When will the court usually stay a case in abuse of process?
1) Impossible to give accused a fair trial
2) It offends the court’s sense of justice and propriety to try the accused on the circumstances (or undermine public confidence in justice system)
In abuse of process, will there be a balancing act by the court?
No, balance is not relevant.
What are 4 examples of abuse of process?
1) D tricked into committing offence
2) D prosecuted despite unequivocal promise by prosecution D won’t be
3) Police acted in a way which undermines public confidence such as destroying evidence
4) Prosecution manipulated or misused process of court
Can delay amount to an abuse of process?
Yes, if done deliberately to gain advantage
Is it necessary to prove deliberate delay of proceedings?
No, inordinate or unconscionable delay due to inefficiency of prosecution is enough
What is the burden of proof by D on abuse of process?
Must prove abuse of process on the balance of probabilities
Does staying proceedings in Criminal mean D will get not guilty?
No, it just means there will be no proceedings
Which court deals with abuse of process application?
Mainly the Crown, but Magistrates can only on the ground D is unable to have fair trial
What is S82 PACE on common law exclusion?
Preserves the common law discretion to exclude evidence where prejudicial effect outweighs probative value
Can the prosecution apply to exclude defence evidence?
No, these are only relevant applications by D
Can one D seek to exclude evidence if Co-D wants to admit it?
No, will have to be tried separately
Does common law discretion have much relevance?
Not much, as mainly covered in s78 and s76 PACE
