Unit 10 Preliminary Evidential Matters Flashcards
If you have admitted a fact (such that it is now taken to have been ‘proven’), can you apply to withdraw your admission?
Yes, but leave is unlikely to be given w/o evidence from A of mistake/misunderstanding
What is the general rule regarding the admissibility of evidence? What are two example worth remembering as to the consequences of the general rule?
All evidence “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
Two consequences worth remembering:
- In strict liability offences, evidence as to As state of mind is NOT admissible (bc it’s not relevant to a ‘fact in issue’
- Equally, evidence of a P witnesses’ good character is not generally admissible bc it is unlikely to be relevant to a ‘fact in issue’. Obviously, if it is relevant to a fact in issue then it is admissible.
Why is evidence of a P witnesses’ good character not usually admissible?
Because it is unlikely to be relevant to a ‘fact in issue’. Obviously, if it is relevant to a fact in issue then it is admissible.
Who determines whether evidence is admissible?
It’s a q for the tribunal of law
I.e. the judge. If there are lay magistrates sitting with a judge, then the lay magistrates should participate in factual aspects of Qs on admissibility, but they must accept ruling of judge on any Q of law
Who determines questions of construction of words or documents?
(A) Statutes
- Generally speaking the jury constructs the statute
- However, if any of the words used have a special, ‘legal’ meaning (i.e. something that the jury could not know about unless told by the judge), then the judge must tell them what the statute means
(B) Documents
- Again, generally to be construed by the jury
- Exceptions: (a) binding agreements between the parties, (b) parliamentary and local government legislation
Who determines questions of foreign law?
The judge
Who determines whether A owed V a duty of care in gross negligence manslaughter cases?
Question of law for the judge (but finding of the facts for this purpose is still an issue for the jury)
How does the division between questions of fact and law work in the mags?
(A) Where case heard by lay justices:
- Decide all questions of fact and law
- But should seek advice of legal adviser on legal questions and MUST accept it
(B) Where case heard by district judge:
- Theoretically the same as law justices
- In practice, unlikely to seek legal advice
What ‘general’ powers of exclusion of evidence does the court have?
There are a whole range of specific powers to exclude that we will see later on. But in addition to those, the court has 3 more general powers to exclude prosecution evidence.
(1) S. 78 PACE 1984: power to exclude evidence that would adversely affect the fairness of the proceedings to such an extent that it should not be admitted
(2) Common law discretion: power 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
(3) Common law discretion: power to exclude 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
- These involve an exercise of discretion
- CoA very unlikely to interfere with such judgment calls
Key point to remember: generally exclusion will take place under s. 78 PACE, because s. 78 is wider than the common law powers and where they overlap it has been held that evidence should be excluded under s. 78 rather than at common law. In particular, evidence which was obtained unfairly/improperly can only be excluded on this basis at common law if it is an admission, confession or other evidence obtained after the commission of the offence. By contrast, any type of evidence can be excluded under s. 78 if it has been obtained in such a manner (assuming the test is satisfied).
