Rules of Evidence

Question 1

what is the general principle regarding evidence?

Answer 1

• Evidence must be relevant to the facts in issue and admissible
• Evidence which meets these requirements can either be direct evidence of D’s guilt or circumstantial evidence from which D’s guilt can be inferred

Question 2

if evidence is relevant and admissible, what type of evidence can it be? Give examples

Answer 2

Evidence which meets these requirements can either be direct evidence of D’s guilt or circumstantial evidence from which D’s guilt can be inferred e.g.:
o Direct evidence  directly supports the truth of an assertation i.e. EWT
o Circumstantial evidence  evidence which suggests a fact is true but doesn’t directly prove it i.e. a letter saying D will ‘get event’

Question 3

what is the position if the case relies on circumstantial evidence only?

Answer 3

• If a case depends on circumstantial evidence only, there will be no case to answer if it is not capable of supporting a conviction

Question 4

what is direct evidence?

Answer 4

o Direct evidence  directly supports the truth of an assertation i.e. EWT

Question 5

re: burden & standard of proof

what is the legal burden? who decides this?

Answer 5

• Legal burden (/persuasive burden) = elements of the offence to be proven
  o Decided by Mags/jury

Question 5

what is circumstantial evidence?

Answer 5

o Circumstantial evidence  evidence which suggests a fact is true but doesn’t directly prove it i.e. a letter saying D will ‘get event’

Question 6

re: burden & standard of proof

what is the evidential burden? who decides this?

Answer 6

• Evidential burden = obligation to adduce sufficient evidence on an issue
  o Decided by judge

Question 7

re: burden & standard of proof

what is the legal burden on P?

Answer 7

• Legal burden  always on P

Question 8

re: burden & standard of proof

what is the evidential burden on P?

Answer 8

P must provide sufficient evidence to justify a finding of guilt (inc. disproving any defence) and show D has a case to answer.

Question 9

re: burden & standard of proof

what can happen if P does not satisfy the evidential burden?

Answer 9

o If they fail to do so, D’s solicitor can make a submission of no case to answer (i.e. P has failed to discharge the evidential burden)

Question 10

re: burden & standard of proof

what is the standard of proof?

Answer 10

beyond all reasonable doubt (i.e. must be sure of guilt)

Question 11

re: burden & standard of proof

what is the legal burden on D? what is the standard?

Answer 11

only where raises certain defences i.e. insanity or diminished responsibility to a murder charge

balance of probabilities

Question 12

re: burden & standard of proof

what is the evidential burden on D?

Answer 12

D is not obliged to put forward any evidence of their innocence, but must raise any specific defence (i.e. alibi or self-defence). D does not need to prove the defence, P must disprove it.

Question 13

re: admissibility of visual identification evidence

what is this?

Answer 13

• i.e. challenging the admissibility of eye witness testimony

Question 14

re: admissibility of visual identification evidence

what should D do first?

Answer 14

• D should first challenge the evidence under s78 (used where there’s been a significant & substantial breach of PACE/COP)

Question 15

re: admissibility of visual identification evidence

what are example of Code D breaches in this context

Answer 15

Examples of a breach of Code D in relation to identification procedures:
o Other images do not resemble D
o W were not segregated
o D failed to hold an identification procedure when they should have

Question 16

re: admissibility of visual identification evidence

if the court won’t deem the evidence inadmissible under s78, what should D do next?

Answer 16

o Make representations under the Turnbull guidelines (if applicable); and
o Attempt to undermine the quality of the evidence in cross-examination

Question 17

re: admissibility of visual identification evidence

when do the Turnbull guidelines apply?

Answer 17

• Only applicable when P’s W identifies D and D disputes identification (i.e. D may admit to being at the place, but deny the identification is them)

Question 18

re: admissibility of visual identification evidence (Turnbull Guidelines)

when will W have ‘identified’ D?

Answer 18

W (called a Turnbull witness) will have ‘identified’ D where:
o They picked D out informally;
o They identified D in a formal identification procedure; or
o They claim to know D as someone previously known to them

Question 19

re: admissibility of visual identification evidence (Turnbull Guidelines)

when will these not apply?

Answer 19

• i.e. if W gives a description of D but fails to identify them, then the Turnbull guidelines do not apply

Question 20

re: admissibility of visual identification evidence (Turnbull Guidelines)

what must the court do if these apply?

Answer 20

• If the Turnbull guidelines apply, the Mags/trial judge in the CC must assess the circumstances and strength of the identification evidence

Question 21

re: admissibility of visual identification evidence (Turnbull Guidelines)

if these apply, what must the court consider?

Answer 21

o The length of the observation;
o Distance between W and S;
o Lighting i.e. day, night, street light;
o Conditions i.e. raining, foggy any obstructions;
o How much of S’s face did W see? Is the description clear or lacking detail?
o Was S was already known to W? Or had W never seen them before?
o How closely does W’s original description match D’s description?

Question 22

re: admissibility of visual identification evidence (Turnbull Guidelines)

when is a Turnbull warning given?

Answer 22

• Turnbull warnings are given when judge is summing up before jury retires

Question 23

re: admissibility of visual identification evidence (Turnbull Guidelines)

once the court have assessed the evidence, what must they do?

Answer 23

decide on the quality of the evidence give a Turnbull warning

Question 24

re: admissibility of visual identification evidence (Turnbull Guidelines)

what quality rank may a judge give the evidence?

Answer 24

o Good quality
o Poor but supported
o Poor and unsupported

Question 25

re: admissibility of visual identification evidence (Turnbull Guidelines)

what Turnbull warning is given for good quality evidence?

Answer 25

Judge gives jury Turnbull warning (i.e. warns of dangers of identification evidence and the need for caution as an honest witness can mistake identity; the jury should consider the above factors)

Question 26

re: admissibility of visual identification evidence (Turnbull Guidelines)

what is poor but supported evidence? What Turnbull warning is given?

Answer 26

o W’s initial sighting was poor, but the identification evidence is supported by other evidence (i.e. confession by D, DNA evidence putting them at the scene of the crime, stolen property in D’s possession, adverse inferences)

 Judge gives jury Turnbull warning as above plus weaknesses of the identification; dangers of convicting on identification alone and direct the jury to other supporting evidence

Question 27

re: admissibility of visual identification evidence (Turnbull Guidelines)

what happens if the evidence is poor and unsupported?

Answer 27

 D will make submission of no case to answer & judge will acquit jury

Question 28

re: admissibility of visual identification evidence (Turnbull Guidelines)

how is the process slightly different in the MC?

Answer 28

The judge will still rank the evidence, but there is no jury in the MC, so if the evidence is poor and unsupported, D’s solicitor will make a submission of no case to answer. Otherwise (or if unsuccessful), D will give a Turnbull-esque as part of their closing speech

Question 29

re: adverse inferences

generally, what is the consequence of remaining silent?

Answer 29

• D has a right to silence in interview but AI can be drawn from this

Question 30

re: adverse inferences

explain ‘proper inferences’

Answer 30

• CJPOA uses the phrase ‘proper‘ inferences, but it means adverse

Question 31

re: adverse inferences

when can P ask the court to draw inferences?

Answer 31

• P must adduce other evidence of D’s guilt to establish a case to answer before P can ask the court to draw AIs

Question 32

re: adverse inferences

when can these not be drawn?

Answer 32

AIs cannot be drawn where D was denied access to legal advice (i.e. if D refuses, AI can still be drawn). This is reflected in the caution.

The judge must explain this to the jury

Question 33

re: adverse inferences

when will D not be convicted?

Answer 33

• D cannot be convicted if the only evidence is s34, s35, s36 or s37 inference

Question 34

re: adverse inferences

can multiple inferences be drawn?

Answer 34

More than 1 inference can be drawn i.e. D does not mention why they were in a place (s37 AI), at trial they give a reason for this in their defence (s34)

Question 35

re: adverse inferences

where inferences can be drawn, what inference is the court likely to draw?

Answer 35

• Where an inference can be drawn, the court is likely to draw an inference that D had no explanation or the explanation would not have stood up to scrutiny

Question 36

re: adverse inferences

when will an application for inferences to be drawn be granted?

Answer 36

An application for AIs to be drawn will only be granted where:
o The court is satisfied there is a case to answer
o There is evidence other than silence on which a finding of guilt can be made
o The only sensible explanation for the silence is that D had no answer or would that would have stood up to cross-examination

Question 37

re: adverse inferences (s34 - silence)

when can inferences be drawn?

Answer 37

AIs can be drawn where D fails to mention a fact they could reasonably have been expected to mention during an interview under caution or whilst being charged which they later rely on in their defence at trial.

The purpose of the interview must have been to establish if an offence had been committed and by whom

Question 38

re: adverse inferences (s34 - silence)

when can the court direct a jury that inferences can be drawn?

Answer 38

• The court can only direct a jury that an AI can be drawn where the court is satisfied that the real reason for silent is because D had no answer to the questions or no answer to stand up to scrutiny

Question 39

re: adverse inferences (s34 - silence)

what happens if D was not silent in a subsequent interview

Answer 39

• If D was silent in the 1st interview but not subsequent interviews, AIs can be drawn from the 1st interview

Question 40

re: adverse inferences (s34 - silence)

when will a written statement mean inferences cannot be drawn?

Answer 40

• If D prepared a written statement before the interview which contains all the facts they are relying on and it was given to the police, AIs cannot be drawn

Question 41

re: adverse inferences (s34 - silence)

when will a written statement have less of an effect? what effect will this have?

Answer 41

• If the statement was not given to the police at the time and is later disclosed the court cannot draw an AI of recent fabrication, but can draw an AI that D was not sufficiently confidence in their defence

Question 42

re: adverse inferences (s34 - silence)

when might the solicitor advise their client to stay silent in interview?

Answer 42

• A solicitor may advise a client to remain silent where: the police have given limited disclosure and so they cannot advise; the case is complex or historic; or personal circumstances of D i.e. ill health or vulnerability

Question 43

re: adverse inferences (s34 - silence)

where D was legally advised to remain silent, what effect might this have?

Answer 43

• If D genuinely and reasonably relied on the legal advice, the trial judge will direct the jury that AIs should not be drawn (i.e. could D reasonably have been expected to mention facts they relied upon in the interview?)

Question 44

re: adverse inferences (s34 - silence)

if D states in evidence that they were advised to remain silent, what impact does this have on privilege?

Answer 44

• If D states in evidence they were advised to remain silent, this will not waive privilege but if D explains the reason for this advice, privilege will be waived

o If privilege is waived, D (or their solicitor) can be cross-examined on any other reason for the advice to remain silent/the instructions

Question 45

re: adverse inferences (s36 - object, mark, substance)

when can inferences be drawn?

Answer 45

• AI can be drawn where D is questioned in an interview under special caution about an object, substance or mark that was on their person, clothing, possession on arrest or near/at the place of the arrest & D fails to account

Question 46

re: adverse inferences (s36 - object, mark, substance)

explain special caution

Answer 46

Special caution means D was told:
o The offence under investigation;
o What fact S is being asked to account for and that it is believed this fact may be due to S taking part in the commission of the offence;
o The court can draw adverse inferences from failure to respond; and
o A record is being made of the interview and it may be given in evidence

Question 47

re: adverse inferences (s36 - object, mark, substance)

what is the effect of a special caution?

Answer 47

• If a special caution was not given, AI cannot be drawn

Question 48

re: adverse inferences (s36 - object, mark, substance)

what effect does this have in relation to the defence?

Answer 48

Unlike s34, this applies irrespective of any defence put forward by D (i.e. s34 only applies if D is trying to rely on a fact they didn’t mention at trial, that is not applicable here. The court can draw an inference regardless)

Question 49

re: adverse inferences (s37 - place)

what effect does this have in relation to the defence?

Answer 49

o This applies irrespective of any defence

Question 50

re: adverse inferences (s37 - place)

when can inferences be drawn?

Answer 50

• AIs can be drawn where D is questioned in an interview under special caution about a place where D was at the time of arrest and D fails to account for it

Question 51

re: adverse inferences (s35 - silence at trial)

what right does D have in relation to silence at trial?

Answer 51

• D has a right to silence at trial and is under no obligation to give evidence, they could simply argue P has failed to prove guilt

Question 52

re: adverse inferences (s35 - silence at trial)

if D exercises their right to silence at trial, what might happen?

Answer 52

• However, if D chooses not to give evidence or answer any question put to them under oath without good reason, the court can draw AIs

Question 53

re: adverse inferences (s35 - silence at trial)

when can the court direct inferences are not drawn if D is silent? Give an example

Answer 53

• The court can direct an AI is not be drawn where it appears D is suffering with a physical or mental condition making it undesirable for them to give evidence

o Strict application

below average IQ = exception not allowed

ADHD / schizophrenia meaning D cannot effectively participate in trial = allowed

Question 54

re: hearsay evidence

what is hearsay? give an example

Answer 54

• statement made out of court relied on to prove the truth of a matter, and the purpose of the statement maker was to cause another to believe/act on the facts stated

o i.e. a diary wouldn’t be hearsay as the maker didn’t intend people to read it

Question 55

re: hearsay evidence

what is a ‘statement’?

Answer 55

• any representation made by whatever means inc. pictorial form

Question 56

re: hearsay evidence

give examples of common hearsay in criminal proceedings

Answer 56

o W repeating what they were told by another person;
o Statement from W being read out, rather than W giving oral evidence
o Police officer at trial repeating a confession made by D
o Business document being introduced as evidence

Question 57

re: hearsay evidence

what is 1st hand hearsay?

Answer 57

W is repeated a statement they personally saw/heard

Question 58

re: hearsay evidence

what is multiple hearsay?

Answer 58

information passes through more than one person/source

Question 59

re: hearsay evidence

is hearsay admissible?

Answer 59

• Hearsay is not admissible unless it falls into one of the below categories

Question 60

re: hearsay evidence

what are the categories of admissible hearsay?

Answer 60

1. Statutory Provision
2. Agreement
3. Preserved Common Law Exception
4. Interests of Justice

Question 61

re: hearsay evidence

what hearsay evidence is admissible under statutory provision?

Answer 61

where:
Witness Cannot Attend Court (subject to conditions)
Business (and other) Documents (subject to conditions)

Question 62

re: hearsay evidence (statutory provision)

when will hearsay evidence because W cannot attend court be admissible?

Answer 62

Hearsay evidence will be admissible where W is unable to attend court and…
o The statement would be first-hand hearsay in oral evidence;
o The court has identified the statement maker;
o W cannot give evidence for one of the prescribed reasons

Question 63

re: hearsay evidence (statutory provision)

what are the prescribed reasons when ‘W cannot give evidence because…’

Answer 63

 Are dead or unfit due to a physical or mental condition;
 Are outside the UK & it isn’t reasonably practicable for them to attend;
 Cannot be found after having taken reasonably practicable steps; or
 Cannot give evidence due to fear & it is in the interests of justice for the court to give leave for the statement in evidence
* The court must have regard to the statement’s contents, any unfairness to the other side and other relevant circumstances when considering leave

Question 64

re: hearsay evidence (statutory provision)

when will hearsay evidence in business / other documents be admissible?

Answer 64

Hearsay evidence is admissible where the statement is in a document and…
o Oral evidence would be admissible;
o The document was created / received by a person in the course of their occupation or as a holder of paid/unpaid office;
o The person who supplied the information in the document had/likely had personal knowledge of the matters dealt with; and
o If the information is multiple hearsay, each person passing the information on received it in the course of their occupation/office

Question 65

re: hearsay evidence (statutory provision)

in relation to documents prepared for pending/contemplated criminal proceedings, what are the other requirements?

give an example

Answer 65

If the document was prepared for pending/contemplated criminal proceedings or investigation, in addition to above, the statement will only be admissible if:
o W is unavailable (for one of the reasons set out above); or
o W could not be expected to remember the matters referred to (i.e. due to time that has elapsed)

i.e. a list of items stolen from a business which is given to the police

Question 66

re: hearsay evidence (agreement)

explain this

Answer 66

• Any hearsay is admissible if its admission is agreed by parties

Question 67

re: hearsay evidence (common law)

when will hearsay evidence be admissible under this?

Answer 67

if it is:
- confession evidence
- Res Gestae

Question 68

re: hearsay evidence (common law)

what is a confession?

Answer 68

• any statement wholly/partly adverse to the person who made it

o i.e. ‘I hit him, but only in self-defence’  partly adverse

Question 69

re: hearsay evidence (common law)

when is confession evidence admissible?

Answer 69

• Hearsay confession evidence is admissible where relevant and to prove the truth of its contents (i.e. D’s guilt)

Question 70

re: hearsay evidence (common law)

what is a mixed statement? what is its admissibility?

Answer 70

• confession which inc. a statement which is favourable to D
  o The whole of the mixed statement is admissible i.e. ‘I did have sex with her, but only because she consented’

Question 71

re: hearsay evidence (common law)

what is the admissibility of a co-Ds confession evidence at trial which implicates another D?

Answer 71

• If D and a co-D are on trial together and co-D gives evidence which implicates D (inc. confession), this is admissible hearsay against D but if the co-D makes the confession pre-trial, this is admissible against the co-D only, not D

Question 72

re: hearsay evidence (common law)

when can a co-D’s confession be admissible against D?

Answer 72

• If co-D plead G earlier in the proceedings and is now giving evidence for P, any evidence they give implicating D is admissible

Question 73

re: hearsay evidence (common law)

what is res gestae?

give an example

Answer 73

• Hearsay evidence will be admissible if is made as part of the res gestae
• Res gestae is the principle that if a statement is made spontaneously and contemporaneously with an event it is likely to be highly credible

i.e. W hears the victim shout ‘don’t shoot me Sam’ followed by gun shot. This is hearsay, but would be admissible.

Question 74

re: hearsay evidence (common law)

what is the Ackner criteria?

Answer 74

Judges use the Ackner criteria to determine if a statement is made res gestae:
o Did the statement maker have chance to concoct/distort the statement?
o Was the event so dramatic it caused an instinctive response?
o Was it closely associated with the event?

Question 75

re: hearsay evidence (interests of justice)

explain this and its effect?

Answer 75

the court must have regard to a number of factors

This gives the court a wide discretion to admit hearsay evidence.

Question 76

re: hearsay evidence (interest of justice)

what are the things to court must have regard to?

Answer 76

o The probative value to a matter in issue (Probative value = likelihood to evidence a relevant fact)
o Its value for understanding other evidence in the case
o Other evidence that can be given on the issue / evidence
o Importance of the issue / evidence in the context of the case
o The circumstances the statement was made
o Reliability of the statement maker
o Whether oral evidence on the issue can be given and if not, why
o Amount of difficulty in challenging the statement
o The extent to which it would prejudice the party facing it
o D’s right to a fair trial

Question 77

re: hearsay evidence (notice)

when must notice of intention to adduce/challenge hearsay be given?

Answer 77

Part 20 CrimPR sets out the rules to adduce/challenge hearsay evidence, but this only applies to the following categories:
o Witness is unavailable to attend court;
o Evidence is multiple hearsay;
o Statement in a document prepared for criminal investigation/proceedings;
o Preserved common law exceptions;
o Interests of justice;

Question 78

re: hearsay evidence (notice)

what are the requirements?

Answer 78

a party to file & serve a notice of intention to adduce/challenge:
o P > MC 10 & CC 20 business days after D pleads NG
o D > as soon as reasonably practicable

Question 79

re: hearsay evidence (notice)

what can the court do in relation to the requirements?

Answer 79

• Court can dispense with the notice; allow oral notice; amend the time limits

Question 80

re: hearsay evidence (notice)

if admission is contested, what typically happens?

Answer 80

• If contested, court will usually determine the admissibility at a pre-trial hearing

Question 81

re: challenging confession evidence

what might D try to argue in this regard and on what basis?

Answer 81

D will likely try to argue the confession is inadmissible because either they:
o Did make the confession, but it should not be admitted (s76 or s78); or
o Did not make the confession / it is fabricated (s78)

Question 82

re: challenging confession evidence

explain s76(2) PACE

Answer 82

this is specific to confession evidence

The court must not admit confession evidence obtained by oppression or where anything said or done might render the confession unreliable, unless P can prove beyond all reasonable doubt it was not obtained in this way

This is the case even if the court thinks the confession is true

Question 83

re: challenging confession evidence

explain oppression

Answer 83

torture, inhuman, degrading treatment, the use or threat of violence, unjust or cruel treatment of inferiors, the exercise of authority in a wrongful manner (i.e. D bullied by police into making a confession)

Question 84

re: challenging confession evidence

when will confession be unreliable? give examples

Answer 84

confession often be unreliable where Code C breached:
o Denying refreshments or appropriate breaks and so S is not in a fit state to answer and/or wants to leave the station asap to obtain rest or food
o Offering an inducement to confess (i.e. they can leave early)
o Misrepresenting the strength of the prosecution case
o Questioning in an inappropriate way (i.e. repeating questions/badgering)
o Questioning a suspect who is in no fit state to be questioned (inc. if S had been taking drink/drugs or other medical condition)
o Threatening a suspect if they do not confess
o Denied legal advice  only unreliable if there is a causal link between breach & confession, i.e. if D had legal advice, would they have confessed? (Difficult to argue is experienced criminal who is aware of rights)

Question 85

re: challenging confession evidence

where there are co-Ds been tried together and 1 makes a confession, what might happens and what effect does s76(2) have?

Answer 85

Where both Ds plead NG and are tried together and 1 makes a confession, the other might adduce this evidence (if it doesn’t implicate them).

If s76(2) applies, the confession must be excluded unless the relying D can prove on the balance of probabilities that it wasn’t obtained in this way

Question 86

what is s78 PACE?

Answer 86

this is the court’s general power to exclude

Question 87

when might D rely on s78?

Answer 87

D might apply for the evidence to be excluded under s78 where they allege there has been a breach.

Common argument D where D is denied legal advice (overlap with s76)

Question 88

when is the court likely to exclude evidence on the grounds of s78?

Answer 88

• The court is likely to only exclude the evidence if there’s been a significant & substantial breach of PACE/COP

Question 89

re: challenging confession evidence

explain this and s78

Answer 89

relevant if an interview takes place ‘outside’ the station and the police have breached PACE, i.e.:
o Failure to take an accurate/contemporaneous record of D’s comments
o Failure to give D the opportunity to view, sign or dispute the record
o Failure to put the confession to D at the start of the interview

Question 90

re: challenging confession evidence

what is the procedure in the CC? explain the impact on the evidence and the judge’s decision

Answer 90

voir dire hearing (trial within a trial). If the confession was:
o In interview  evidence from interviewer & likely audio recording played
o Outside interview  evidence from P & D

In either case, submissions from both and judge takes a decision:
 Inadmissible  the jury will hear nothing about it
 Admissible  interviewing officer will give evidence before the jury. D’s counsel can still attack the credibility of the confession

Question 91

re: challenging confession evidence

what is the procedure in the MC?

Answer 91

admissibility usually disputed when interviewer is giving evidence
o S76(2)  mags must hold a voir dire.
o S78 only  no obligation to hold a voir dire (if there is no voir dire, D will need to make a case of no submission or address it in their closing speech)
o If D raises submissions under s76(2) & s78  both arguments should be dealt with under the same voir dire

Question 92

re: challenging confession evidence

what is the effect if the evidence is excluded?

give an example

Answer 92

If the confession evidence is excluded, P can still rely on facts admitted in the confession but they cannot tell the court where they came from

i.e. police recover murder weapon from confession. Can rely on weapon but not confession

Question 93

re: bad character

what is this?

Answer 93

evidence of or disposition towards misconduct (inc. offences and otherwise reprehensible behaviour) not connected to the charged offence

Question 93

re: bad character

when can evidence be admitted without proving a gateway?

Answer 93

If it is not bad character evidence or it is bad character evidence but (in both cases) relates to the offence, the evidence can be admitted without proving a gateway. In other words, the gateways only need to be evidenced to admit bad character evidence where it doesn’t relate to the charged offence

This applies to D and bad character evidence of those other than D

Question 94

re: bad character

when is bad character evidence admissible?

Answer 94

• Evidence of bad character is admissible if it satisfies 1 of the 7 gateways

Question 95

re: bad character

when will this not prove guilt?

Answer 95

Bad character evidence alone does not prove guilt.

Question 96

re: bad character

what must P do before the court can consider this?

Answer 96

• P must adduce other evidence before the Mags/Jury can take it into account

Question 97

re: bad character

what are the gateways?

Answer 97

a) All parties agree to the evidence being admissible
b) The evidence is adduced by D himself or given in answer to a question asked during cross examination and intended to elicit it
d) It is relevant to an important matter in issue between D and P
e) It has substantial probative value in relation to an important issue between D and a co-D
g) D has made an attack on another person’s character

Question 98

re: bad character

explain ‘b) The evidence is adduced by D himself or given in answer to a question asked during cross examination and intended to elicit it’

when might D do this?

Answer 98

Allows D to introduce evidence of own bad character.

D might do this if they have minor pre-cons or if they have previously plead NG but G this time

Question 99

re: bad character

who can rely on ‘c) It is important explanatory evidence’

Answer 99

Only P can adduce evidence under this.

Question 100

re: bad character - c) It is important explanatory evidence

when will evidence be ‘important explanatory’ evidence?

Answer 100

o It would be difficult/impossible to understand the case without it; and
o Evidence’s value for understanding the case as a whole is substantial

• If the case is understandable without the evidence it shouldn’t be admitted

Question 101

re: bad character - d) It is relevant to an important matter in issue between D and P

who can rely on this?

Answer 101

• Only P can adduce evidence under this gateway.

Question 102

re: bad character - d) It is relevant to an important matter in issue between D and P

when will a matter be important?

Answer 102

It will be an important matter if it relates to whether D has a propensity to:
o Commit offences of the kind charged; or
o Be untruthful

Question 103

re: bad character - d) It is relevant to an important matter in issue between D and P

how can P prove D has a propensity to be commit offences?

Answer 103

The evidence must make it more likely D committed the current offence

P can prove this with evidence D has a pre-con of an offence:

o Of the same description (i.e. the same crime); or

o Of the same category, i.e.: SoS has only described 2 categories of offence:
1. Sexual offence category inc. sexual offences against children under 16
2. Theft category inc.: theft; robbery; (+aggravated) burglary; (+aggravated) taking a vehicle without authority; handling stolen goods; going equipped for stealing; making off without payment; an attempt of any of these; aiding, abetting, counselling, procuring or inciting the commission

o If the above isn’t satisfied, case law suggests if the pre-con has a factual similarity it may show propensity (i.e. assault and robbery both used with a knife showed a propensity)

Question 104

re: bad character - d) It is relevant to an important matter in issue between D and P

when can the court refuse evidence put forward by P to show a propensity to be commit offences?

Answer 104

• The court can refuse this evidence if it would be unjust due to the time that has elapsed or any other reason (D can make an application on this basis)

Question 105

re: bad character - d) It is relevant to an important matter in issue between D and P

what might hinder P’s argument that D has a propensity to commit crimes?

Answer 105

the fewer number of pre-cons D has, the less likely to show propensity unless there are distinguishing circumstances/unusual behaviour (i.e. child sexual abuse cases)

Question 106

re: bad character - d) It is relevant to an important matter in issue between D and P

when can P not use the propensity to be untruthful ground?

Answer 106

• P cannot use this where it is not suggested D’s case is untruthful

Question 107

re: bad character - d) It is relevant to an important matter in issue between D and P

when will pre-cons to show a propensity to be untruthful be admissible?

Answer 107

Pre-cons to show a propensity to be untruthful are only admissible if:

o The manner the pre-con was committed shows such a propensity; or
o D pleaded NG to the earlier offence but was convicted

Question 108

re: bad character - d) It is relevant to an important matter in issue between D and P - propensity to be untruthful

explain ‘The manner the pre-con was committed shows such a propensity’

Answer 108

 Must show a propensity to be untruthful (not dishonest) i.e. perjury, false representations. Where dishonesty is part of the mens rea (i.e. theft), this is unlikely to suffice unless they actively mislead/lied to another
 The current crime need not be an untruthful one, but the pre-con must be

Question 109

re: bad character - d) It is relevant to an important matter in issue between D and P - propensity to be untruthful

explain the scope of ‘D pleaded NG to the earlier offence but was convicted’

Answer 109

this captures offences of any type

Question 110

re: bad character - e) It has substantial probative value in relation to an important issue between D and a co-D

when is this used?

Answer 110

Used by 1 D to admit evidence of co-D’s bad character.

Cannot be used by P.

Question 111

re: bad character - e) It has substantial probative value in relation to an important issue between D and a co-D

when will it be an important issue?

Answer 111

• It will be an important matter if it relates to whether D has a propensity to be untruthful and both Ds plea NG and are blaming each other

Question 112

re: bad character - f) It is evidence to correct a false impression given by D

who can use this?

Answer 112

• Can only be used on by P.

Question 113

re: bad character - f) It is evidence to correct a false impression given by D

what is a false impression?

Answer 113

D will give a false impression if they make an express or implied which gives a false/misleading impression about D

Question 113

re: bad character - f) It is evidence to correct a false impression given by D

how may the false impression be made?

Answer 113

The assertation may be made by:
o D in the proceedings (i.e. witness box, defence statement) or when being questioned under caution
o D’s W or any W in cross-examination in response to a question asked by D that intended to elicit this response; or
o Any person out of court and D adduces evidence of this

Question 114

re: bad character - g) D has made an attack on another person’s character

who can rely on this?

Answer 114

• Only P can rely on this.

Question 115

re: bad character - g) D has made an attack on another person’s character

who can the attack be made on and when can it be made?

Answer 115

• The attack can be on anyone (i.e. doesn’t need to be on P W) nor need it take place at trial (i.e. interview under caution or in a defence statement)

Question 116

re: bad character - g) D has made an attack on another person’s character

what must the attack relate to? Give examples

Answer 116

The attack must relate to the commission of an offence or that they behave(d) in a reprehensible way.

Examples:
o D calling V a ‘slag’ = YES
o D saying V fabricated story = NO
o D saying police ‘conspired to set D up’ = YES
o D saying account of officers untrue = NO

Question 117

re: bad character

what is the position as to admissibility of A, B, C, E & F?

Answer 117

evidence is automatically admissible if the requirements are met. No power under CJA 2003 to exclude the evidence (but could under s78)

Question 118

re: bad character

under which grounds if evidence automatically admissible if satisfied?

Answer 118

• A, B, C, E & F

Question 119

re: bad character

what is the position as to admissibility of D & G?

Answer 119

court has power under s101(3) CJA 2003 to exclude the evidence, but it must exclude evidence if admission would have such an adverse effect on the proceedings the court ought not to admit it.

The court must have regard to the length time that has elapsed since the evidence.

Question 120

re: bad character

when is the court likely to use its s101(3) powers to exclude evidence under D & G?

Answer 120

 Nature of the pre-cons means a jury is likely to convict on these alone, rather than the evidence placed before them or where pre-cons are prejudicial rather than probative;
 P has adduced pre-cons to support an otherwise weak case
 Pre-cons are ‘spent’ (i.e. after a prescribed period of time the person is treated as not having committed the offence)

Question 121

re: bad character

what are the offences and timescales for ‘spent’ convictions

Answer 121

• Absolute / conditional discharge  none
• Fine / community order  1 year
• Custodial sentence up to 6 months  2 years
• Custodial sentence between 6 – 30 months  4 years
• Custodial sentence between 30 months – 4 years  7 years
• Custodial sentence over 4 years  never spent

Question 122

re: bad character

what can the court use to exclude evidence? what does this not apply to?

Answer 122

The court retains discretion to exclude P evidence under s78

NB: court cannot exclude under s78 re: E because that is not P evidence

Question 123

re: bad character

what is the procedure to admit bad character evidence?

Answer 123

Parties must file & serve a notice of intention to adduce character evidence:
o P  MC 10 & CC 20 business days after D pleads NG
o co-D  as soon as reasonably practicable but not more than 10 business days after P discloses material on which the notice is based
o D  as soon as reasonably practicable

Pre-cons they seek to rely upon must be attached to the notice form

If D contests introduction of the evidence, they must file and serve an application within 10 business days of service of the notice

Question 124

re: bad character

what are the timescales for serving a notice to adduce this evidence?

Answer 124

o P  MC 10 & CC 20 business days after D pleads NG
o co-D  as soon as reasonably practicable but not more than 10 business days after P discloses material on which the notice is based
o D  as soon as reasonably practicable

Question 125

re: bad character

explain contamination cases

Answer 125

Only applicable to CC

Judge can direct a jury to acquit a D or order a re-trial where evidence of D’s bad character is contaminated (e.g. if Ws had colluded to fabricate evidence of D’s bad character)

Question 126

re: bad character

when can bad character evidence of anyone other than D be admissible? who might this apply to?

Answer 126

i.e. complainant, W or even someone who is not a W

Grounds:
1.It is important explanatory evidence
2. It has substantial probative value to a matter in issue and is of substantial importance in the context of the case as a whole
3. All parties agree to the evidence being admissible

Question 127

re: bad character - of someone who is not D

what ‘is important explanatory evidence’

Answer 127

• The evidence will be important explanatory evidence if, without it, the court / jury would find it impossible/difficult to understand other evidence and its value for understanding the case a whole is substantial

Question 128

re: bad character - of someone who is not D - substantive probative value

what must the court have regard to when assessing the probative value?

Answer 128

When assessing the probative value, the court must have regard to:
o The nature and number of events to which the evidence relates; and
o The time at which such events are alleged to have occurred

Question 129

re: bad character - of someone who is not D - substantive probative value

what is a ‘matter in issue’?

Answer 129

A ‘matter in issue’, will often be where D allege another is:
o Lying / has fabricated evidence;
o Guilty of committing the current offence;
o Engaged in misconduct connected to the offence

Question 130

re: bad character - of someone who is not D - substantive probative value

explain ‘lying/fabricated evidence’

Answer 130

 The evidence need not show a propensity to be untruthful (unlike s101(d)), it just needs to be persuasive as to the issue of creditworthiness

Question 131

re: bad character - of someone who is not D - substantive probative value

explain ‘guilty of committing the current offence’

Answer 131

 i.e. D is charged but claims they were acting in self-defence and they were actually attacked by V
 The court must also have regard to the extent the evidence shows the same person was responsible each time

Question 132

re: bad character - of someone who is not D - substantive probative value

explain ‘engaged in misconduct connected to the offence’

Answer 132

 The court must also have regard to the nature and extent of the similarities and dissimilarities between each alleged misconduct
 Pre-cons to commit a particular type of offence can be relied on if there are sufficient factual similarities between the earlier and current offence

Question 133

re: bad character - of someone who is not D - substantive probative value

when is this commonly used?

Answer 133

• Commonly used by D regarding P’s witness, but can be used against anyone

Question 134

re: bad character - of someone who is not D

when does a party require leave of the court?

Answer 134

1.It is important explanatory evidence
2. It has substantial probative value to a matter in issue and is of substantial importance in the context of the case as a whole

Question 135

if D tries to argue the evidence should be excluded under s78, when is the court unlikely to exclude this? give an example

Answer 135

Applications made by D under s78 that rely on a breach of PACE/COP will only be granted if the breach(es) is significant and substantial

In effect, the police may have breached PACE, but if this breach doesn’t impact the reliability of the evidence it is unlikely to be excluded

Example  drugs found in unlawful search and D assaulted. Breach unlikely to be significant and substantial. The unlawful actions of the police didn’t bring the evidence into existence, the drugs were already there

Question 136

is there a defence of entrapment?

Answer 136

no

Question 137

re: evidence obtained by entrapment/abuse of process

how can this evidence be challenged?

Answer 137

• Evidence obtained in this way could be challenged under s78 but it would be better to ask the court to exercise its common law power to stop the case on the basis it would be an abuse of process to allow P to continue

Question 138

re: evidence obtained by entrapment/abuse of process

how is it determined if there has been an abuse of process?

Answer 138

Case law guidelines for determining if there has been an abuse of process:
o Nature of investigation  more intrusive = greater scrutiny
o Nature of offence  some offences can only be committed covertly and therefore investigated covertly (i.e. drug trafficking)
o Nature of police involvement  behaviour of police, their persistence
o D’s criminal record  only really relevant if similar pre-cons
o Level and extent of supervision of undercover officers