UNIT 1 - Preliminary evidential matters (BSB 11)

Question 1

Fact in issue

This comprise:

Answer 1

(a) the facts which the prosecution bear the burden of proving or disproving (in order to establish the guilt of the accused)

(b) the facts which, in exceptional cases, the accused bears the burden of proving (in order to succeed in the defence);

Question 2

Evidence is material used by a party to prove/disprove a “fact in issue”

Answer 2

Evidence can also include material used by a party to enhance his/her witness’s credibility or undermine his/her opponent’s witness’s credibility

Question 3

Whenever there is a not guilty plea = everything is in issue, prosecution have to
prove whole of their case, including:

Answer 3

i. identity of accused;
ii. nature of act (AR);
iii. existence of any necessary knowledge/intent (MR)

Question 4

What are formal admissions?

Answer 4

These are admitted facts

Power to ‘simply agree’ any fact (s10 CJA 67)

The advocates in a case simply agree that the fact is so

• It is also important that the jury are clear as to what has been formally admitted

Question 5

How is a formal admission made?

Answer 5

formal admission may be made by counsel or a solicitor orally

A written record must be made of the admission (unless court directs otherwise), both parties (the lawyers, not the witnesses) agree and sign the agreement.

Question 6

In Lewis (1971)

Answer 6

(1) which counsel for D formally admitted every fact alleged in the prosecution’s opening speech and the prosecution called no evidence, relying solely on admissions, leave to appeal against conviction was refused.

(2) The court added, however, that such a procedure should be adopted only rarely and with caution, because jurors, when considering the opening speech, might find it difficult to distinguish between law, mixed fact and law, and comment. Where a party introduces in evidence a fact admitted by another party, or parties jointly admit a fact, then unless the court otherwise directs, a written record must be made of the admission

Question 7

Relevance: CARDINAL RULE: For any evidence to be admissible…

Answer 7

all evidence which is sufficiently relevant to the facts in issue is admissible, and all evidence which is irrelevant or insufficiently relevant to the facts in issue should be excluded.

Question 8

All evidence which is sufficiently relevant to the facts in issue is admissible:

Answer 8

Evidence which is relevant may nonetheless be excluded if it is such that no reasonable jury, properly directed as to its defects, could place any weight on it

Question 9

All evidence which is irrelevant or insufficiently relevant to the facts in issue should be excluded:

Answer 9

In as much as an offence of strict liability involves no proof of mens rea, evidence of motive, intention or knowledge is inadmissible, being irrelevant to what the Crown has to prove and merely prejudicial to the accused

Question 10

Meaning of relevance:

Answer 10

the word signifies that ‘any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present or future existence or non-existence of the other’.

Question 11

Relevance [EXAMPLE]:

Answer 11

• Nethercott [2001] provides an example of a fact which was relevant to the past existence of another fact.
  o D1’s defence was that he had acted under duress as a result of threats by his co-accused D2. Evidence of the fact that D2 had subsequently attacked D1 with a knife was relevant to the defence because it made it more likely that D1, at the time of the offence, had genuinely feared for his safety.
• On the question of relevance, Lord Simon of Glaisdale has said:
  o Evidence is relevant if it is logically probative or disprobative of some matter which requires proof. I do not pause to analyse what is involved in ‘logical probativeness’, except to note that the term does not of itself express the element of experience which is so significant of its operation in law, and possibly elsewhere.
  o It is sufficient to say, even at the risk of etymological tautology, that relevant (i.e., logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable.

Question 12

Good character of P’s witness

Answer 12

Evidence of good character P W generally = inadmissible (“oath-helping”)

Question 13

When may Good character of P’s witness be admissible?

Answer 13

If relevant to an issue in the case, for example: in a case of rape, the defence being consent, evidence of the complainant’s disposition to resist any form of pre-marital sexual intimacy

in a case of murder, the defence being self-defence, evidence of the deceased’s non-violent disposition (RG [2002] EWCA Crim 1056);

In a case of inflicting grievous bodily harm, the defence being self-defence accompanied by evidence that the complainant had started the violence making racially abusive comments, evidence to show that the complainant was not a racist (Lodge [2013] EWCA Crim 987).

Question 14

Good character of P’s witness

In Mader [2018] EWCA Crim 2454 the following propositions were said to be well established

Answer 14

(1) Generally, evidence is not admissible simply to show that a prosecution witness has a good character in the sense that he or she is a generally truthful person who should be believed.
(2) However, evidence is admissible if it is relevant to an issue in the trial.
(3) The category of issues to which evidence of disposition may be relevant is not closed.
(4) If the evidence is admitted because ‘issue-relevant’, the judge should ensure that the effect of admitting it is not to water down the burden of proof on the prosecution and any good character direction given for the accused.

Question 15

Real evidence - tangible objects

Answer 15

material objects and things brought to court for inspection by the tribunal of fact; the existence/condition/value of which is in
issue, or relevant to an issue.

Little, if any, weight can attach to real evidence in the absence of
accompanying testimony

Question 16

Real evidence - tangible objects

Expert testimony

Answer 16

• In some cases the tribunal of fact must not draw its own unaided conclusion without the assistance of expert testimony:

e.g., Tilley (comparison of handwriting).

Question 17

Views

Answer 17

Where occasionally juries can visit a scene of a crime, or leave
court to view an object that cannot be brought into court. Their observations
become evidence in the case.

A “view” = both

(a) an inspection out of court of some material object which it is
inconvenient/impossible to bring to court; and

(b) an inspection of the locus in quo (scene of the crime).

Question 18

When should view not take place and who should attend?

Answer 18

• A view should not take place after the summing-up

A view should be attended by the judge, the tribunal of fact, the parties, their counsel, and the shorthand writer

MC = as a general rule a visit to the locus in quo should take place before the conclusion of the evidence and in the presence of the parties or their representatives, so as to afford them the opportunity of commenting on any feature of the locality which has altered since the time of the incident or any feature not previously noticed by the parties which impresses the magistrates

The presence of the accused is important because he or she may be able to point out some important matter of which the legal adviser is ignorant or about which the magistrates are making a mistake

Question 19

Views: ground rule

Answer 19

nder CrimPD VI, para. 26J.1, a judge must produce ground rules for a view, after discussion with the advocates. The ground rules should contain details of what the jury should be shown, and in what order, and who will be permitted to speak and what will be said; and they should make provision for the jury to ask questions.

Question 20

As a general rule, questions of law (including practice) are for the judge, and questions of fact for the jury.

Question 21

• In trials on indictment without a jury, the judge decides all questions of both law and fact and, if the accused is convicted, must give a judgment which states the reasons for the conviction

Question 22

• Lay magistrates, when sitting with a judge in the Crown Court, are also judges of the court

Answer 22

+ they should participate in all questions to be determined by the court, including the factual aspect of any question relating to the admissibility of evidence, but must accept the ruling of the judge on any question of law

Question 23

In jury trials, questions of law for the judge include those relating to:

Answer 23

(a) where the court has determined that an accused is unfit to plead, whether the accused did the act or made the omission charged as the offence — see D12.10;
(b) challenges to jurors — see D13.22 et seq.;
(c) the discharge of a juror or the whole jury — see D13.50 et seq.;
(d) the competence of persons to give sworn or unsworn evidence — see F4.2 et seq.;
(e) the admissibility of evidence;
(f) the withdrawal of an issue from the jury;
(g) submissions of no case to answer — see D16.53 et seq.;
(h) the numerous issues on which the jury should be directed in the summing-up, such as the substantive law governing the charge, the burden and standard of proof, the use which the jury is entitled to make of the evidence adduced, the operation of any presumptions, the nature of, and any requirement for, corroboration, etc. — see further D18.21 et seq. and F5; and
(i) matters ancillary to the trial itself, such as questions of bail, costs and leave to appeal.

Question 24

Questions of fact for the jury include:

Answer 24

(a) whether the accused stands mute of malice or by visitation of God;
(b) the credibility of the witnesses called and the weight of the evidence adduced; and
(c) whether, applying the burden and standard of proof applicable to the case, they are satisfied as to the existence or non-existence of the facts in issue.

Question 25

• In jury trials, questions of fact which fall to be determined by the judge are:

Answer 25

whether the accused is fit to plead;

the existence or non-existence of preliminary facts, i.e. facts which must be proved or disproved as a condition precedent to the admissibility of certain types of evidence;

the sufficiency of evidence (in deciding whether an issue should be withdrawn from the jury);

and the evaluation of evidence adduced by the parties (for the purpose of commenting on its weight in summing up to the jury).

Question 26

Summary trials: who determins questions of law & fact in the case of proceedings presided over by lay justices?

Answer 26

The justices decide all questions of both law and fact, but on questions of law, including the law of evidence, should seek and accept the advice of the justice’s legal adviser.

In theory, district judges (magistrates’ courts) are in the same position as lay justices.

In practice, however, the district judge will be the more experienced lawyer, so that the occasions for asking for advice will be quite rare.

Question 27

Court’s powers to exclude evidence will consist of general principles of the common law discretion to exclude evidence and of the discretionary power to exclude evidence under section 78 of PACE.

Answer 27

Section 78 applies to evidence on which the prosecution propose to rely and therefore applications to exclude evidence under the section should be made before the evidence is adduced

Question 28

• Police and Criminal Evidence Act 1984, s. 78 [THE LAW]

Answer 28

(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.

Question 29

The mere fact that evidence of D’s conduct might have a prejudicial effect is not a reason to exclude it under the PACE 1984, s.78

Answer 29

Hunter [2021]

a case of fraudulent trading, in relation to evidence of ‘ticket touting’ for two highly emotive events, a concert in memory of those killed in a terror bombing and a teenage cancer trust concert

Question 30

evidence of D’s conduct might have a prejudicial effect is not a reason to exclude it under the PACE 1984, s.78

= evidence open to exclusion at common law

Answer 30

o (a) any admissible evidence which is likely to have a prejudicial effect out of proportion to its probative value, and
o (b) admissions, confessions and other evidence obtained from the accused after the commission of the offence by improper or unfair means, and which might operate unfairly against the accused

… may be excluded either at common law or pursuant to the PACE 1984, s. 78.

Question 31

Discretion to exclude at common law

Answer 31

a judge, as part of his or her inherent power and overriding duty in every case to ensure that the accused receives a fair trial, always has a discretion to exclude otherwise admissible prosecution evidence if, in the judge’s opinion, its prejudicial effect on the minds of the jury outweighs its true probative value.