Plans Flashcards
1
Q
Content
A
- Define confession a. s.82 (1) PACE ‘84 ‘…‘confessions’ includes any statement wholly or partially adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise
- Safeguard a. Code of practice (code E and Code A) 3.Reason for confession a.’a morbid desire for publicity or notoriety b.a desire to protect someone else.’ c. People can see a prospect of immediate advantage from confessing, d. The suspect may be ‘persuaded’ temporarily by the interrogators
- Admissibility at common law a. voluntariness test- Callis v Gunn [1964] 1 QB 495 CCA 5. Admissibilty at PACE a. s.76 (1) PACE; b. ‘In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.’
c. 76(2) PACE
d. by oppression of the person who made it; or
e. in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, f. the court shall not allow the confession g. 76(3) PACE 84 h. the court is given power to raise the issue and require the prosecution to prove the conditions of admissibility under s.76 (2)
2
Q
S116 (2) (d)- Cannot be found
A
- Identify would be possible to allow in a statement if cannot be found 1. Explain/evidence a. R v Riat [2013] 1 All ER 349- : this will include not only looking for him if he disappears but also keeping in touch with him to avoid him disappearing.’ b. R v Adams [2008] 1 Cr App R 35 CA- Leaving contact with the witness such as this until the last working day before the trial is not good enough.’ 2. Apply
3
Q
116(2)(a) – Dead
A
- Identify – would be possible to allow in a statement if the person is dead 2. Define 3. Explain/evidence a. R v McGillivray [1993] 97 Cr App R 232 b. Give the LP that if the person given the statement is dead then the court can allow in hearsay
4
Q
The Co-accused
A
- Point- can be call to the stand but only if not liable anymore 2. Evidence - 53(5) YJ&CE- person charged does not include a person no longer liable to be convicted of any offence in the proceedings 3. Explain a. 1. D is acquitted, 2. D enters a guilty plea., 3. A nolle prosequi is entered by the Attorney General., 4. The indictment is severed, (i.e. Co-accused and D get separate trials b. R v McEwan [2011]- LP that once a CO D has plea guilty then they can be called to the stand by the CPS
5
Q
Persons with learning difficultie
A
- Point – LD person can be use in a court of law. 2. Evidence - s.53 (1) YJ&CE 1999 and s.53 (3) YJ&CE 1999- can the witness give intelligible testimony-thus has the witness the ability to, ‘(a) understand questions put to him as a witness, and (b) give answers to them which can be understood.’ 3. Explain a. R v R [2007] EWHC 1842 QBD- can be use if there can give strong statement b. R v F [2013]- LJ-rulings must be given in a courtroom and did not include an informal communication by way of courtesy to counsel.
6
Q
Content comp and comp
A
- Definition
a. Competence- A witness is competent if it is lawful to call him to give evidence.
b. Compellability- A witness is compellable if he may be compelled or forced under threat of legal sanctions or punishment by a court to give evidence. - Basic Rule
a. All witnesses are both competent and compellable.
b. Hoskyn v Metropolitan Police Commissioner
c. .53(1) of the Youth Justice and Criminal Evidence Act 1999- ‘At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.’ - Determining competence a. s.54 YJ&CE 1999 b. ‘(1) Any question whether a witness is competent whether raised-
c. (a) by a party to the proceedings, or
d. b) by the court of its own motion, shall be determined by the court in accordance with this section.’
e. (2) party calling the witness- balance of probabilities, the witness is competent to give evidence f.
(3) shall treat the witness as having the benefit of any directions under section 19 which the court has given, or proposes to give.’ g.
(4) a voir dire basically
h. ‘(5) Expert evidence may be received on the question
i. ‘(6) Any questioning- the court in the presence of the parties
7
Q
Children
A
- Point – are both compellent and comp to be a witness.
- Evidence
a. s.53 (1)- all person whatever they age are competent but only if can give intellialble testimony
b. s.53(3)- not competent if it appears that they are not able (a) to understand questions put to them as a witness and (b) give answers which can be understood
. 3. Explain
a. R v MacPherson[2005]- child should not be assumed/deemed incompetent ‘on the basis of age alone’.
b. Old law - R v Wallwork (1958) and R v Wright (1987)-‘most undesirable to use children.
c. G v DPP [1997] simple one well within the capacity of a judge or lay magistrates
d. R v Z- use video link e. R v Powell[2006]- Age alone does not necessarily determine competency
f. R v B[2010] EWCA Crim 4 CA- The question is entirely witness or child specific
8
Q
Corroboration
A
- Idenifty
- Define
a. No requirement that evidence be corroborated.
b. Secondly-no requirement to give a full corroboration warning, i.e. that the tribunal of fact be warned of the danger of acting on uncorroborated evidence.
c. 1. Relevant
d. 2. Admissible-(i.e. not excluded by an exception).
e. 3. Credible-See Lord Hailsham in DPP v Kilbourne (1973) AC 729 at p746-‘Corroboration can only be afforded…by a witness who is otherwise to be believed.
’ f. 4. Independent
g. 5. Evidence which implicates D in commission of offence-that he did it-as e.g. required by statute
3. Evidence
a. R v Whitehead (1929)- meaning of independent
b. R v Redpath (1962)- can be Corroboration if the jury remove the distress
c. R v Chauhan (1981)
d. R v Zala[2014]
e. In R v Hills- combined effect of the three items would be capable of corroborating the girl’s evidence.’
f. R v Baskerville- must confirm not only the commission of the offence but that D did it.
9
Q
Oppression
A
- Identify – oppression may cause for the confession to be throw out.
- Define-
a. s.76(8), namely;
b. ‘In this section ‘oppression’ includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).’
c. must be a causal connection d. must also be some degree of impropriety by the interrogator
e. R v Priestly - Evidence
a. R v Fulling- lying to the D is impropriety but is not oppressive
b. R v Paris- interviews oppressive because of their, ‘length and teno - Apply
a. R v Emmerson- one officer raised his voice and used some bad language is not oppressive.
b. R v Heaton- Officers raised voices/repeated questions. no oppression
c. Mohd Ali Bin Burut v Public Prosecutor- was oppression by the hooding of the D
d. R v Seelig- court are to take in to account the personal characterise when decising the oppressive
10
Q
S117- business document
A
- Identify would be possible to allow in a statement if business document
- Define- s.117 allows documentary hearsay to be admissible in court if certain requirements are satisfied.
- Explain/evidence
a. 117
b. Maher v DPP [2006] EWHC 1271 (Admin), (2006) 170 JP 441- the need of the for person receive the information is under business
c. R v Horncastle- they are compiled by persons who are disinterested and, in the ordinary course of events, such statements are likely to be accurate - Apply
11
Q
Mental illness
A
- Identify- if someone is mental ill can allow for a removal of the confession
- Define a. ‘in a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning;’
b. (a) the case against the accused depends wholly or substantially on a confession by him; and
c. (b) the court is satisfied-
d. (i) that he is mentally handicapped; and
e. (ii) that the confession was not made in the presence of an independent person the court shall warn the jury that there is special need for caution before convicting the accused in reliance of the confession and shall explain that the need arises because of the circumstances mentioned in paragraphs (a) and (b) above - Evidence- s77(1) and (3) PACE 84
12
Q
spouses
A
- Point- The accused’s spouse not be call by the CPS but there are now competent witness.
- Evidence- s.53(1) YC&CE 1999
- Explain
a. s.80 (2A) (b) of PACE 1984 a spouse or civil partner is compellable if it is a specified offence.
b. s.80(3)- specified offence
c. R(CPS) v Registrar General of Births, Deaths & Marriages [2003] QB 1222 CA
d. R v Khan (1987) 84 Cr App Rep 84 (CA)- meaning of spouse
e. Moss v Moss [1963] - The decree absolute for divorce terminates the marriage; the decree for judicial separation does not, and, therefore, the spouses still remain husband and wife.’
13
Q
S116 (2)(e)- Fear
A
- Identify- would be possible to allow in a statement if the RP is under fear.
- Define
a. Require leave
b. (a) to the statement’s contents,
c. (b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence),
d. (c) in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (special measures) could be made in relation to the relevant person,
e. (d) to any other relevant circumstances - Explain/evidence
a. R v Martin [1996]- words ‘through fear’ should not be qualified in any way. Thus a stranger
b. R v Doherty (2007) 171 JP 79- threatening telephone calls which appeared connected to the offence he was to testify about.
c. R v H [2001] Crim LR 815 CA- Fear had to e judged at the time when the witness would be expected to give evidence orally.
d. R v Acton Justices ex parte McMullen- genuine and based on reasonable grounds.
e. Neill v North Antrim Magistrates’ Court- must itself be admissible.
14
Q
- Identify would be possible to allow in a statement if Res Gestae 1. Define a. ‘A fact which is relevant to the case by virtue of its close association with the facts in issue is sometimes said to form part of the transaction with which the case is concerned and hence to be admissible as part of the res gestae.’ 2. Explain/evidence a. R v Ratten- However held it was original evidence to show victim, (maker of statement’s/speaker’s), state of mind. Secondly, it was admissible, as part of res gestae. b. R v Nye and Loan (1977) - was a very short time involved before L gave the statement and his mind was still dominated by the event. c. R v Andrews [1987] AC 281 The key thing was not the passage of time but whether or not the statement was sufficiently spontaneous to eliminate any real risk of concoction. d. trigger mechanism for the statement is still operative. e. Tobi v Nicholas- showed time lapses 3. Apply
A
S118- rest gueast
15
Q
Right solicitor
A
- Identify- everyone since the right to a lawyer
- Define
a. ‘A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time
b. s.58 (4);
c. a. it will lead to interference/harm to evidence connected to the offence or interference with/physical injury to other people.
d. b. will alert other people suspected of having committed an offence but not arrested. e. c. will hinder the recovery of any property obtained as a result of the offence. - Evidence
a. R v Samuel [1988] 2 All ER 135 CA- ‘one of the most important and fundamental rights of a citizen
b. R v Alladice (1998) 87 Cr App R 380- CA held D denied access to a solicitor and made the confession, but D well aware of his right to silence and was capable of using it if he wished.
16
Q
Content hearsay
A
- s.116 provides;
- ‘(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if-
- (a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,
- (b) the person who made the statement (the relevant person) is identified to the court’s satisfaction, and
- (c) any of the five conditions mentioned in subsection (2) is satisfied.’
- ‘(5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances descried in that paragraph are caused-
- (a) by the person in support of whose case it is sought to give the statement in evidence, or
- (b) by a person acting on his own behalf
17
Q
Care Warnings
A
- I- care waring
- D
a. Old law- need for a waring in sex case and accomplice but scrapped by s32(1) CJ&POA 1994
b. 1. The warning that it was dangerous to convict on the uncorroborated evidence
c. 2. An explanation of the technical meaning of corroboration
d. 3. The judge had to indicate to the jury what evidence was and was not capable of corroborating as a matter of law.
e. 4. An explanation that the jury determined, ultimately as a matter of fact, whether that evidence did corroborate.
f. 5. That the jury, still can convicted - E- s.32 (1) CJ&POA1994 meant that the judge had the discretion
a. Makanjuola - Apply
a. R v Muncaster [1999] Crim LR 409 CA- down to judicial discretion and depends on the circumstances
b. R v B (MT) [2000] Crim LR 181 CA- need for a waring - real risk jury might have improperly treated certain evidence as support
c. R v Blasiak [2010] EWCA Crim 2620 CA- dismissed the case
d. R v Beck [1982] All ER 807 CA- purpose of his own to serve.
e. R v Cheema- exaggeration or invention. The judge should warn the jury to exercise caution
f. R v Spencer [1987] AC 128 HL- need for a waring in mental patients bad character
g. R v Stone- need for a warning - Trial judge may point out that cell confessions may be easy to concoct and difficult to disprove and that experience has shown prisoners may have motives to lie.
18
Q
s.116 (2) (b)- Mental Condition
A
- Identify would be possible to allow in a statement if relevant bodily or mental condition
- Explain/evidence
a. McEwan v DPP (2007)- indicating that a medical condition will be made worse by stress does not allow for HS
b. R v Meredith (2007)- DR statement is not enough to amount to the RP being unfit 2. Apply
