UNIT 4: EVIDENCE 2

Question 1

Hearsay statement definition?

Answer 1

a statement, not made in oral evidence, that is relied on as evidence of a matter in it’

any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit, or other pictorial form’ (s115(2) CJA)

• Key point - the purpose, or one of the purposes of the person making the statement must appear to the court to have been to cause another person to believe that the matter, or to cause another person to act (or a machine to operate) on the basis that the matter, is as stated (s115(3) CJA)

Question 2

Examples of hearsay evidence

Answer 2

 a witness repeating at trial what they had been told by another person;
 a statement from a witness being read out at trial instead of the witness attending court to give oral evidence;
 a police officer repeating at trial a confession made to them by the defendant;
 a business document being introduced in evidence at trial

Question 3

First-hand hearsay?

Answer 3

repeating a statement that police officer heard D make. Details of the contents of D’s statement did not pass through anyone else before getting to PC

Question 4

Multiple hearsay?

Answer 4

o Multiple hearsay less likely to be admissible in evidence than first-hand hearsay.
goes through multiple people

Question 5

When is a hearsay statement admissible under a statutory provision?

Answer 5

1. In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if:
2. oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter [i.e., the statement must be first-hand hearsay],
3. the person who made the statement (the relevant person) is identified to the court’s satisfaction, and
4. any of the five conditions in (2) is satisfied.
   o The conditions in s116(2)(a)-(e) are:
    the relevant person is dead;
    the relevant person is unfit to be a witness because of his bodily or mental condition;
    the relevant person is outside the UK and it is not reasonably practicable to secure his attendance;
    the relevant person cannot be found, although such steps as it is reasonably practicable to take to find him have been taken;
    through fear the relevant person does not give oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.

Question 6

When can a court grant leave for a hearsay statement?

Answer 6

requires the court to give leave only if it considers that the statement ought to be admitted in the interests of justice having regard to:
 the contents
 any risk of unfairness (particularly how difficult it would be to challenge the statement) and
 the fact that (in appropriate cases) a special measures direction could be made.
o s116 only applies to first-hand hearsay
 basically - a statement can be admissible only if the person who made that statement would have been allowed to give oral evidence at trial of the matters contained in the statement

Question 7

When is a statement contained in a document admissible?

Answer 7

1. the document (or part of it containing the statement) must have been created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office;
2. the person who supplied the information contained in the statement (the relevant person) had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with; and
3. each person (if any) through whom the information was supplied from the relevant person to the person mentioned in paragraph (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office

Question 8

Business documents - key hearsay admissibility difference with statements?

Answer 8

makes both first-hand and multiple hearsay contained in certain documents admissible in evidence
o Business documents - commonly admissible under s117

Question 9

Statements prepared for use for criminal proceedings?

Answer 9

 If a statement was prepared for ‘the purposes of pending or contemplated criminal proceedings, or for a criminal investigation’ (s117(4)), the requirements of s117(5) must be satisfied. They will be satisfied if:
 any of the five conditions in s116(2) (above) are satisfied; or
 the relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to the length of time since he supplied the information and all other circumstances)

Question 10

Hearsay admissible under preserved common law exception?

Answer 10

• Confession evidence:
  o s76(1) PACE - in any proceedings a confession made by an accused person may be given in evidence against him insofar as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section
  o Effect - preserves the common law rule that a confession made by D will be admissible in evidence against D, even if the confession is hearsay evidence
• Evidence admitted as part of the res gestae:
  o Common law principle of evidence being admitted as part of the res gestae - a statement made contemporaneously with an event will be admissible as an exception to the hearsay rule because the spontaneity of the statement meant that any possibility of concoction can be disregarded

Question 11

Ackner criteria?

Answer 11

For res gestae admission.

1. The primary question which the judge had to ask himself in such a case was: Can the possibility of concoction or distortion be disregarded?
2. To answer that question, the judge first had to consider the circumstances in which the particular statement was made in order to satisfy himself that the event was so unusual or dramatic as to dominate the thoughts of the victim so that his utterance was an instinctive reaction to that event thus giving no real opportunity for reasoned reflection.
3. In order for the statement to be sufficiently spontaneous, it had to be so closely associated with the event which had excited the statement that it could fairly be said that the mind of the declarant was still controlled by the event.
4. Quite apart from the time factor, there might be special features in a case which related to the possibility of distortion.
5. As to the possibility of error in the facts narrated in such a statement: If only the ordinary fallibility of human recollection was relied upon that went to the weight to be attached and not to the admissibility of the statement and was therefore a matter for the jury.

Question 12

Hearsay admissible in interests of justice?

Answer 12

• Effect - is a ‘catch-all’ provision, giving the courts wide discretion to admit hearsay evidence which is cogent and reliable
• Judge does not need to reach a specific conclusion in relation to all of the factors, but does need to give consideration to them and to any other factors considered relevant by him.
• Factors which must be taken into account (s114(2));
  o (a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
  o (b) what other evidence has been, or can be, given on the matter or evidence mentioned in para (a);
  o (c) how important the matter or evidence mentioned in para (a) is in the context of the case as a whole;
  o (d) the circumstances in which the statement was made;
  o (e) how reliable the maker of the statement appears to be;
  o (f) how reliable the evidence of the making of the statement appears to be;
  o (g) whether oral evidence of the matter stated can be given and, if not, why not;
  o (h) the amount of difficulty involved in challenging the statement; and
  o (i) the extent to which that difficulty would be likely to prejudice the party facing it.

Question 13

Witness who refuses to comment about D’s previous crime?

Answer 13

may allow evidence to be adduced which fell outside s 116, but such evidence would only usually apply to hearsay evidence which formed part of the incident itself.

Question 14

When do the procedural rules for admitting hearsay apply?

Answer 14

o it is in the interests of justice for the hearsay evidence to be admissible (s 114(1)(d));
o the witness is unavailable to attend court (s 116);
o the evidence is multiple hearsay (s 121); or
o either the prosecution or the defence rely on s 117 for the admission of a written witness statement prepared for use in criminal proceedings (CrimPR, r 20.2).

Question 15

Procedure for adducing hearsay evidence?

Answer 15

o A party wishing to adduce hearsay evidence to which Part 20 applies, or to oppose another party’s application to introduce such evidence, must give notice of its intention to do this both to the court and to the other parties in the case (CrimPR, r 20.2)
o Notice must be given using a set of prescribed forms
o The court will impose time limits for the CPS and the defendant to give notice of their intention to adduce hearsay evidence at trial. The relevant time limits are set out in CrimPR, r 20.2(3) (for the CPS) and CrimPR, r 20.2(4) (for the defendant)
* NB r 20.5 of the CrimPR allows the court to dispense with the requirement to give notice of hearsay evidence, to allow notice to be given orally rather than in writing, and to shorten or extend the time limits for giving notice

Question 16

Determining admissibility of hearsay evidence?

Answer 16

• If an application to adduce hearsay evidence is opposed by the other party, the court will usually determine admissibility at a pre-trial hearing
  o At Mags Court - likely to be at the case management hearing or pre-trial review, or at a specific pre-trial hearing to resolve disputes about the admissibility of evidence
  o In Crown Court - likely to be at the PTPH or at a specific pre-trial hearing

Question 17

What is a confession?

Answer 17

• Confession is ‘any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise’ (PACE 1984, s82(1))
• Anything said by a defendant that constitutes an admission of any element of the offence with which they are subsequently charged, or that is in any way detrimental to their case, will satisfy the definition of a confession in s 82(1) - even if self defence

Question 18

Admissibility of a confession?

Answer 18

• s76(1) of PACE 1984:
  ”In any proceedings a confession made by an accused person may be given in evidence against him insofar as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section”
  
  • ie a confession will be admissible at trial to prove the truth of its contents (ie to prove the defendant’s guilt) and is therefore also an exception to the hearsay rule

Question 19

Mixed statement?

Answer 19

o Mixed statement: A confession may sometimes also include a statement which is favourable to the defendant.
o The whole statement will be admissible under s76(1) as an exception to the rule excluding hearsay evidence

Question 20

Confessions and co-accused?

Answer 20

• Any evidence given by a co-defendant at trial which implicates a defendant (including a confession made by the co-defendant) will be admissible in evidence against the defendant.
• If the co-defendant has PLEADED GUILTY at an earlier hearing and is giving evidence for the prosecution at the trial of the defendant, any evidence given implicating the defendant in the commission of the offence will be admissible in evidence against the defendant

Question 21

Pre-trial confession made by co-defendant?

Answer 21

• A pre-trial confession made by one defendant which also implicates another defendant is admissible only against the defendant who makes the confession (s 76(1))

Question 22

s76 PACE - challenging admissibility of a confession grounds?

Answer 22

o D may challenge a confession they made by arguing either:
1. that they did not make the confession at all, and that the person to whom the confession was made was either mistaken as to what they heard or has fabricated evidence of the confession; OR
2. that they did make the confession, but it should still not be admitted in evidence
o If D accepts that they made a confession, they will usually challenge the admissibility of the confession under s 76(2) of PACE 1984. that:
If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained:
1. by oppression of the person who made it; or
2. 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
the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid

Question 23

When will the evidence be inadmissible under s76?

Answer 23

if D argues that a confession was obtained in falling into (a) or (b), the evidence is inadmissible, unless the prosecution prove beyond a reasonable doubt that the confession was not so obtained
 This is regardless of the actual truth or court’s belief of the truth of the statement

Question 24

s76 definition of oppression?

Answer 24

o Section 76(8) of PACE 1984 states that ‘oppression’ includes ‘torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)’
o oppression consists of ‘the exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc; the imposition of unreasonable or unjust burdens’
o Example – verbal bullying in police interview

Question 25

s76 definition of unreliability?

Answer 25

o Most common avenue
o Standard: something must be said or done which, in the circumstances that existed at the time, would render unreliable any confession which the defendant made
 eg something said or done which might have caused the defendant to make a confession for reasons other than the fact that they had actually committed the offence and wanted to admit guilt
o Does not require deliberate misconduct of police, but typically will involve breach of Code C PACE

Question 26

Examples where evidence may be deemed inadmissible for unreliability?

Answer 26

1. denying a suspect refreshments or appropriate periods of rest between interviews, so that the suspect is either not in a fit state to answer questions properly, or makes admissions in interview simply to get out of the police station as soon as possible or to obtain rest or refreshments (this may be particularly relevant if the suspect is suffering from some form of illness or ailment, even if the police are not aware of this condition);
2. offering a suspect an inducement to confess, for example, telling a suspect that if they confess they will receive a lesser sentence, suggesting to the suspect that they will be able to leave the police station much more quickly if they admit their guilt, or telling the suspect that they will only be granted police bail if they make a confession;
3. misrepresenting the strength of the prosecution case, for example by telling a suspect that the prosecution case is much stronger than it actually is and that there is no point in denying guilt;
4. questioning a suspect in an inappropriate way, for example by repeatedly asking a suspect the same question, or badgering a suspect until they give the answer the officer wants to hear;
5. questioning a suspect who the police should have known was not in a fit state to be interviewed either because the suspect had consumed drink or drugs, or because the suspect was suffering from some form of medical condition or ailment. The answers given by such a suspect in interview may be unreliable;
6. threatening a suspect, for example by telling them that they will be kept at the police station until they make a confession, so that the suspect thinks they have no option other than to confess if they want to get out of the police station

Question 27

Key link for confession to be excluded on the grounds of unreliability?

Answer 27

o For a confession to be excluded, there must be a causal link between the breach and the unreliability of the confession
o Common example: D argues unreliable because they were denied access to legal advice
 eg if D were allowed access to legal advice, would they have still made the confession → if denial meant they confessed when they wouldn’t have under legal advice, would be unreliable
 admissible generally if D fully knew his rights

Question 28

Can a co-defendant rely on a confession made by another defendant?

Answer 28

o s76A(1) PACE allows a defendant to adduce evidence that a co-defendant has made a confession where both defendants plead not guilty and are tried jointly
 except where D seeks to exclude on the basis of oppression or unreliability (if successful)
 In this context to deny exclusion the court need only be satisfied on BALANCE OF PROBABILITIES

Question 29

S78 grounds for challenging admissibility of a confession?

Answer 29

more general discretion to exclude prosecution evidence, including evidence of a confession made by D
o Can be relied on either when the defendant admits making a confession but claims that the confession is untrue, or when the defendant denies making the confession at all
* Requirement: the court considers that the admission of the confession would have such an adverse effect on the fairness of proceedings that it ought not to be admitted

Question 30

S78 when D accepts confession made?

Answer 30

• Where police breaches provisions of PACE, the breaches must be significant and substantial for s78 to apply
• Typically concerns denial of legal advice; almost always leads to exclusion under s78
  o hence degree of overlap between s78 and s76(2)(b)

Question 31

S78 Confessions D denies having made?

Answer 31

• EG a confession allegedly made by D when questioned by police in an interview ‘outside’ the police station would likely be excluded under s78 if police breached provisions of Code C by:
  1. failing to make an accurate record of the defendant’s comments (Code C, para 11.7(a)), as the police would not then be able to substantiate that such comments were in fact made by the defendant;
  2. failing to give the defendant an opportunity to view the record of his comments and to sign this record as being accurate, or to dispute the accuracy of the record (Code C, para 11.11), as the defendant would then be deprived of the opportunity to challenge the accuracy of the police record; or
  3. failing to put this admission or confession to the defendant at the start of his subsequent interview at the police station (Code C, para 11.4), as the whole point of putting the confession to the defendant at the start of the audibly recorded interview is to ensure that the defendant has the opportunity to confirm or deny ‘on the record’ what he is alleged to have said

Question 32

Crown Court challenging admissibility procedure?

Answer 32

• Admissibility determined by the trial judge in the absence of the jury at a voir dire (a trial within a trial)
  1. Both sides give evidence
  1. If confession was made by D in an interview at the police station, the interviewing officer will give evidence as to how the confession was obtained and D will give their version of events
  o If confession was made ‘outside’ the police station, the officer to whom the confession was allegedly made will give evidence, as will D
  2. Prosecuting and defence counsel then make submissions to the judge on whether or not the confession should be excluded in light of the evidence given
  3. Judge ruling
  1. If judge rules confession is inadmissible, the jury will hear nothing about the confession
  2. If judge rules confession is admissible, the interviewing officer will then give evidence of the confession when giving evidence to the jury
   NB. D would still be able to attack the credibility of the confession in the trial

Question 33

Mags court procedure for admissibility of confession?

Answer 33

• Normally sought when the interviewing officer gives evidence
• If D seeks to exclude only under s76(2), magistrates must hold a voir dire
• If D seeks to exclude under s76(2) and s78, both arguments should be dealt with at the same voir dire
• If D seeks to only rely on s78, there is no obligation to hold a voir dire – challenge to admissibility may be left to
  o the close of the prosecution case (if D’s solicitor wishes to make a submission of no case to answer), or
  o at the end of the trial when D’s solicitor makes their closing speech

Question 34

Evidence obtained as a result of an inadmissible confession?

Answer 34

o The fact that the court excludes evidence of a confession made by D will not affect the admissibility in evidence of any facts discovered as a result of the confession (s 76(4) although the CPS will not be able to tell the court that such facts were discovered as aresult of a confession made by the defendant

Question 35

What is bad character?

Answer 35

Bad character’ (s 98)= ‘evidence of, or a disposition towards, misconduct’, other than evidence connected with the offence for which the defendant has been charged.
o ‘Misconduct’ (s 112) = ‘the commission of an offence or other reprehensible behaviour’.
 covers more than just the existence of previous convictions.
o The alleged misconduct connected with the offence charged is not considered for bad character, so will be automatically admissible

Question 36

7 Gateways for bad character - first two

Answer 36

1. all parties to the proceedings agree to the evidence being admissible
2. the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it - ie to avoid adverse inferences

Question 37

Gateway 3: important explanatory evidence

Answer 37

 Only prosecution may adduce this evidence
 Important if:
1. without it, the magistrates or jury would find it impossible or difficult properly to understand the case; and
2. the value of the evidence for understanding the case as a whole is substantial (CJA 2003, s102) (‘substantial’ in this context is likely to mean more than merely trivial or marginal).

 Where the evidence is clearly understandable without evidence of bad character, it should not be admitted
 If this gateway is allowed, the court has no power to prevent the admission of evidence, BUT retain the discretionary power to exclude such evidence under s 78 PACE

Question 38

Gateway 4: it is relevant to an important matter in issue between the defendant and the prosecution - first important matters?

Answer 38

1. whether D has a propensity to commit offences of the kind with which he is charged (except where his having such propensity makes it no more likely that he is guilty of the offence); and
2. whether D has a propensity to be untruthful (except where it is not suggested that D’s case is untruthful in any respect) (s103(1) CJA 2003)
    ONLY prosecution may adduce evidence of D’s bad character under this gateway

Question 39

Propensity to commit offence of the kind charged - key requirement

Answer 39

 Requirement - CPS must satisfy the court that establishing such propensity makes it more likely that D committed the offence
 Permitted evidence (s103(2) CJA 2003)
 D has committed an offence of the same description as the one with which he is charged
 D has committed an offence of the same category as the one with which he is charged
 Exception - will not apply if the court is satisfied that it would be unjust for it to be applied (e.g., because of time that has passed since the previous offence)
 Offences of the same category:
 Sexual offences against children under 16 years of age
 Theft category:
 theft
 robbery
 burglary
 aggravated burglary
 taking a motor vehicle or conveyance without authority
 aggravated vehicle taking
 handling stolen goods
 going equipped for stealing
 making off without payment
 any attempt to commit any of the above substantive offences
 aiding, abetting, counselling, procuring or inciting the commission of any of the above offences
 Other offences - can be used if there are significant factual similarities between the offences

Question 40

If relevant to an important matter gateway used - what questions must be considered?

Answer 40

 If this gateway is sought by CPS, three questions need to be considered: (all need to be YES)
 Does D’s history of offending show a propensity to commit offences?
 If so, does that propensity make it more likely that D committed the current offence?
 If so, is it just to rely on convictions of the same description or category, having in mind the overriding principle that proceedings must be fair?
 Key points to note:
 Offences relied on by CPS can go beyond offences of the same description or category
 Fewer the number of previous convictions, less likely that propensity will be established

Question 41

Propensity to be untruthful factor?

Answer 41

 Requirement - CPS must show that it is suggested that D’s case is in some way untruthful
 Permitted evidence - previous convictions will not be admissible to show propensity to be untruthful unless:
1. the manner in which the previous offence was committed demonstrates that D has such a propensity (e.g., because they had made false representations); or
2. D pleaded not guilty to the earlier offence but was convicted following a trial at which D testified and was not believed
 Key distinction - need to show propensity to be UNTRUTHFUL, not dishonest
 i.e., relevant previous convictions would be for offences where D actively sought to deceive or mislead another person by making false representations (e.g., perjury, fraud by false representation)
 NOT offences like theft (where dishonesty forms part of the mens rea)

Question 42

When will evidence be excluded under relevance gateway?

Answer 42

 Evidence will be excluded IF court finds that admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it - three likely situations:
1. Where nature of D’s previous conviction is such that the jury are likely to convict a defendant on the basis of these convictions alone, rather than examining the other evidence placed before them, or where the evidence of the previous convictions is more prejudicial than probative
2. Where CPS seeks to adduce previous convictions to support a case which is otherwise weak
3. Where D’s previous convictions are ‘spent’, i.e., treated as never having been committed:

Question 43

Gateway 5 - it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant
Who can use it and for what?

Answer 43

• one D can use to admit evidence of another D’s bad character. CPS CANNOT use

 Can be used by D1 to show that D2 has:
1. a propensity to be untruthful (to undermine the credibility of their evidence) or
2. a propensity to commit the kind of offence with which they have both been charged (suggesting that it is D2 rather than D1 who committed the offence)

Question 44

Propensity to commit offences of the same kind - co-defenders?

Answer 44

 Can be used by D1 if they show that:
1. such convictions are relevant to an important matter in issue between D1 and D2 and
2. relevance of such convictions is more than merely marginal or trivial

Question 45

Propensity to be untruthful - co-defenders?

Answer 45

 Can be used only if the nature or conduct of D2’s defence is such as to undermine D1’s defence (which is why D1 would seek to strike his credibility down)
 Best evidence - most relevant would be to show:
 D2 has a propensity to commit offences which involve making false statements or representations, or
 convictions for any offence where D2 was convicted at trial after pleading not guilty and testifying but not being believed by the court

Question 46

Gateway 6: it is evidence to correct a false impression given by the defendant

Answer 46

 Who can use? - only CPS
 False impression - will be given by D ‘if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant’
 Requirements - the assertion must be:
1. made by D in the proceedings
2. made by D when being questioned under caution by the police before being charged, or on being charged
3. made by a witness called by D
4. made by any witness in cross-examination in response to a question asked by D that is intended to elicit it
5. made by any person out of court, and D adduces evidence of it in the proceedings

Question 47

Gateway 7: the defendant has made an attack on another person’s character

Answer 47

 Requirements for admissibility (or lack thereof)
 can be attack on CPS witness
 can be attack on a person who is dead
 can be attack on a person who CPS does not intend to call to give evidence
 attack need not take place at trial
 attack may be made when D is being questioned at police station
 attack may be made in defence statement
 Who can adduce? - only CPS
 Will constitute evidence attacking another person’s character if, it is evidence that the other person has
 committed an offence (whether different or same to the one D is charged with)
 behaved, or is disposed to behave, in a reprehensible way
 Evidence EXCLUDED if it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit

Question 48

Court’s powers to exclude D’s bad character?

Answer 48

• Can only be exercised in relation to gateway (d – propensity/untruthful) and (g- attack on another’s character)
• Evidence under (a), (b), (c), (e), (f) are automatically admissible if requirements for each gateway are satisfied
• HOWEVER - court retains discretionary power under s78 PACE to exclude evidence on which CPS proposes to rely if it would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted
• Stopping contaminated case - (s107 CJA 2003) Crown Court judges are allowed to:
  o direct the jury to acquit D or
  o order a retrial
  in circumstances where evidence of D’s bad character is ‘contaminated’
• ‘Contamination’ - may occur if witnesses have colluded in order to fabricate evidence of D’s bad character

Question 49

Procedure for admitting evidence of bad character?

Answer 49

• CPS must give notice of intention to adduce evidence to the court + other parties in the case
• Must use a prescribed form, with written record of the previous convictions that the party is seeking to adduce
• Court will impose time limits for parties to serve any notice or make any application to adduce bad character evidence at trial
• If D opposes the introduction of evidence of their bad character at trial, they must apply to court for such evidence to be excluded - must be sent to the court + other parties

Question 50

Bad character of persons other than D?

Answer 50

• Can only be admissible on limited grounds (s100(1) CJA 2003):
  
  1. if it is important explanatory evidence
  2. if it has substantial probative value in relation to a matter which:
     
     1. is a matter in issue in the proceedings, and
     2. is of substantial importance in the context of the case as a whole, or
  3. all parties agree to the evidence being admissible
• Common use - by defence when applying to adduce bad character evidence of the complainant
• Can be used by both defence and prosecution
• Applies to any witness giving evidence, or any other person other than D even if they are not a witness

Question 51

Important explanatory evidence?

Answer 51

• Important explanatory evidence:
  
  • Requirements - the evidence will only be ^ if:
    
    1. without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case; and
    2. its value for understanding the case as a whole is substantial (substantial = more than merely trivial or marginal)

Question 52

Substantial probative value in relation to an important matter in issue?

Answer 52

• Mostly arises where D seeks to adduce evidence of the previous convictions of a witness for the prosecution in order to support an allegation that either:
  1. the witness is lying or has fabricated evidence against D; or
  2. the witness themselves is either guilty of the offence with which D has been charged or has engaged in misconduct in connection with the alleged offence
• In assessing the probative value of evidence of another person’s convictions, the court must have regard to:
  1. the nature and number of the events, or other things, to which the evidence relates; and
  2. when those events or things are alleged to have happened or to have existed

Question 53

Credibility of a witness?

Answer 53

Previous convictions of a witness for the prosecution which may be used to suggest that the evidence given by the witness lacks credibility may be:
(a) convictions for offences where the witness has made a false statement or representation (such as perjury, fraud by false representation, or theft, where the witness has lied to
another person as part of the commission of the theft); or
(b) convictions where the witness has been found guilty of an offence to which they pleaded not guilty but were convicted following a trial at which their version of events was disbelieved.

whether convictions are persuasive as to creditworthiness depends on their nature, number and age, and it was not necessary for the conviction to demonstrate a propensity to untruthfulness.

Question 54

Misconduct in connection with the current offence or guilty of that offence

Answer 54

The other reason for a defendant wanting to raise the bad character of a person other than themselves is to use such evidence to suggest either that:
(a) the other person has committed some form of misconduct in connection with the current offence (for example, a defendant charged with assault may claim that they were acting merely in self-defence, and that they were in fact attacked by their alleged victim); or
(b) the other person is in fact guilty of the offence with which the defendant has been charged.

Although this ground applies equally to witnesses called either by the defence or by the prosecution, it is likely to be used most regularly by a defendant to suggest that a witness for prosecution either committed the offence with which the defendant is charged or is guilty of some other form of misconduct in connection with that offence.

Question 55

Misconduct in connection with the current offence

Answer 55

If it is alleged that evidence of another person’s misconduct has probative value because there is a similarity between that misconduct and alleged misconduct in connection with the current offence, the court will have regard to the nature and extent of the similarities and
dissimilarities between each of the alleged instances of misconduct (s 100(3)(c)

judge could admit evidence of previous convictions relied upon to show the propensity of a prosecution witness
to commit a particular type of offence if the defendant could show sufficient factual similarities between the earlier offence and the current incident.

Question 56

Guilty of committing current offence?

Answer 56

If it is alleged that evidence of another person’s misconduct has probative value because it is suggested that the person is responsible for having committed the offence with which the
defendant has been charged, the court will have regard to the extent to which the evidence shows or tends to show that the same person was responsible each time (s 100(3)(d)).

Question 57

Witnesses not giving evidence

Answer 57

Although the defendant will usually rely upon s 100(1)(b) in respect of a witness for the prosecution who has previous convictions, it may also be used in relation to persons who are not giving evidence in the case.

Question 58

Leave of the court?

Answer 58

Under s 100(4), leave of the court will also be required if a party wishes to adduce evidence of the bad character of a person other than the defendant under s 100(1)(b).

Section 100(1)(c) – all parties to the proceedings agree to the evidence being admissible

If all parties to the case are in agreement, evidence of the bad character of a person other than the defendant will always be admissible.

Question 59

s78 exclusion

Answer 59

• The power is discretionary:
  o Court is only likely to exercise its discretion to exclude prosecution evidence under s78 if there is something unreliable about the evidence which the police have obtained, which in turn means that it would be unfair to allow the CPS to rely on such evidence.
• BUT if the evidence is relevant to the charge faced by D, and there is nothing in the way in which it has been obtained which casts doubt on its reliability, the evidence is unlikely to be excluded under s 78, even if the police have breached the provisions of PACE 1984 and/or the Codes of Practice when obtaining it.
• Applications by Ds to exclude prosecution evidence under s78 should only be granted if the breaches are significant and substantial (R v Keenan)
• Examples of prosecution evidence that D may seek to persuade a court to exclude under s78 are:
  o evidence obtained following an illegal search
  o identification evidence
  o confession evidence
  o evidence obtained from the use of covert listening and surveillance devices and
  o evidence obtained in ‘undercover’ police operations

Question 60

Scope and application of s78 PACE and the right to a fair trial:

Answer 60

• Article 6 ECHR - anyone charged with a criminal offence is entitled to a ‘fair’ hearing
• Appellate court have held that the discretion given to a trial judge to exclude evidence under s 78 where the admission of that evidence would otherwise lead to unfairness, ensures that a defendant will receive a fair trial
• ECtHR has also said that the key question to be answered when determining whether the defendant’s rights under Article 6 have been breached is whether the proceedings as a whole were fair. The width of the discretion given to the trial judge by s 78 should ensure that proceedings are conducted in a manner which is fair to the defendant

Question 61

Evidence obtained as a result of entrapment and abuse of process:

Answer 61

• A preferred approach (rather than challenging admissibility under s78) is to invite the court to exercise its common law power to stop the case on the basis that it would represent an abuse of process to allow such a prosecution to continue.
• Guidelines for trial judges when deciding whether or not to stay proceedings for an abuse of process:
  1. The nature of investigation - the more intrusive the investigation, the harder the courts should scrutinise it
  2. The nature of the offence - certain offences can only be committed in a covert way such as drug trafficking and therefore police can only crack them covert way
  3. The nature of police involvement - e.g., how they behaved, how persistent they were in trying to persuade D to take part in the offence (e.g., did they behave like a ‘normal customer’ might and no more)
  4. D’s criminal record - usually this would not be relevant unless there was evidence of recent similar involvement
  5. The level and extent of supervision of the undercover officers.