Unit 4 - Principles and Procedures to Admit and Exclude Evidence 2 (Hearsay, bad character, etc) Flashcards
A boy, aged 14, has been charged with robbery. The boy does not suffer from any recognised medical condition but his mental age has been assessed as that of a 9-year-old and he is distressed at the prospect of having to testify at trial.
If the boy does not testify, will it be appropriate for an adverse inference to be drawn from his silence at trial?
A) Yes, because an adverse inference will always be drawn if a defendant refuses to testify at trial.
B) Yes, because distress about testifying is not in itself a sufficient reason and will not by itself prevent the drawing of an adverse inference.
C) No, because an adverse inference cannot be drawn against a juvenile with a mental age of a 9-year-old.
D) No, because it appears that the mental condition of the boy makes it undesirable for him to give evidence.
E) Yes, because the court will require the boy to testify to put forward his defence if he is to be acquitted.
CORRECT ANSWER B - because distress about testifying will not be sufficient to engage s 35(1)(b). This exception provides a statutory exception to the drawing of such an adverse inference where ‘it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence’.
So Option A is wrong because an adverse inference will not always be drawn where an accused does not testify – option C is wrong because the mental age alone would not be
a sufficient reason (see R v Friend (1997)). Although option D does correctly state the above statutory exception, on these facts, the boy does not appear to have a medical condition that would make it undesirable for him to testify (contrast that with R v Friend (No 2) (2004) where evidence then came to light that the defendant also suffered from ADHD, which was found to be such a medical condition). Option E is wrong because a defendant has a right to remain silent at trial and cannot be convicted on his silence alone. Moreover, the boy does not necessarily need to testify in order to be acquitted.
A man has been arrested on suspicion of burglary, it being alleged that he stole some computer equipment from premises he broke into. When interviewed, the man confesses
to the offence and also tells the police where the stolen items can be found. These are recovered by the police and the man’s fingerprints are found on them. The interview was however, conducted unlawfully and the defence will argue at trial that the confession ought to be excluded on the basis that it was obtained in circumstances rendering it unreliable.
Assuming the man’s confession is excluded at trial, which of the following best describes whether the prosecution will be allowed to adduce evidence of the finding of the stolen items?
A) The finding of the items is still relevant and admissible as the exclusion of the confession will not affect the admissibility of this evidence.
B) The finding of these items will still be admissible because the confession was not excluded as a result of oppression.
C) Any evidence resulting from an inadmissible confession will not be admitted at trial.
D) It will always be more prejudicial than probative to allow such evidence to be admitted.
E) The finding of the items will be admissible unless it would have such an adverse effect on the fairness of the proceedings that the court ought not admit it.
CORRECT ANSWER A - best describes the operation of s 76(4) PACE 1984 about the admissibility of relevant facts discovered as a result of an inadmissible confession. Not only is the finding of the stolen items relevant, but more importantly, the man’s fingerprints found on the stolen items link him to the burglary.
Option B is wrong because s 76(4) operates regardless of whether the confession is excluded under s 76(2)(a) or (b). Option C is also wrong. Although such evidence coming from an inadmissible confession may not be admitted, this will by no means always be the case. Option D is wrong because although evidence will generally be excluded under the court’s common law power (more prejudicial than probative) it will not ‘always’ be the case. Option E is not the best description because this only sets out the test under s 78 PACE, which is not the only test to apply when determining the admissibility of evidence.
A man has been charged with murder. A key prosecution witness has subsequently died, and the prosecution want to adduce her witness statement in the absence of the deceased witness.
What will the prosecution need to establish for the witness statement to be admitted?
A) That she had first-hand knowledge of the matters contained in her witness statement and all reasonable steps have been taken to secure her attendance.
B) That she had first- or second-hand knowledge of the matter contained in her witness statement and she is identified to the court’s satisfaction.
C) That she has died and so it is not reasonably practicable to secure her attendance and she is identified to the court’s satisfaction.
D) That she had first-hand knowledge of the matters contained in her witness statement and is identified to the court’s satisfaction.
E) That she has died, and she had first-hand knowledge of the matters contained in her witness statement and is identified to the court’s satisfaction.
CORRECT ANSWER E - as it identifies the three key requirements needed to adduce such hearsay evidence. Namely, that the witness had first-hand knowledge of the matters contained in her witness statement, she is identified to the court’s satisfaction and the relevant prescribed reason under s 116(2) is satisfied. Here (a), that the relevant person is dead.
Option A is wrong because it only refers to one of these requirements and then goes on to mention part of another prescribed reason under s 116(2)(d). Option B is wrong because
s 116 only allows first-hand hearsay to be admitted. Option C is wrong because although it does refer to two of the above requirements, it also refers to part of another prescribed reason under s 116(2)(c). Option D is not the best answer because it fails to mention the relevant prescribed reason, namely that the witness is dead.
TRUE OR FALSE:
A statement for the purposes of the hearsay rule is any representation of fact made by a person orally or contained in a document
FALSE - A ‘statement’ is defined in s 115(2) CJA 2003 as ‘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’.
So the above description of a hearsay statement was incomplete. It does not just cover representations of fact, but also of opinion. Whilst many hearsay statements are made orally or contained in a document, a hearsay statement is wider as it also includes a ‘representation made in a sketch, photofit or other pictorial form’
A man is fatally stabbed outside a public house. Before he dies, and shortly after the stabbing, he tells a member of the public who comes to his assistance the name of the person who attacked and stabbed him. The prosecution intend to call the member of the public to give evidence at the trial of the named defendant in order to prove that the defendant was the person who attacked and stabbed the victim. The defendant disputes this.
Which TWO exceptions to the hearsay rule are likely to be the best exceptions the prosecution will rely on to adduce the evidence of what the victim said to this prosecution witness?
A) Where the witness in unavailable to give oral testimony.
B) As a previous inconsistent statement by a witness.
C) As a previous consistent statement by a witness.
D) As a statement from a witness which is not in dispute
E) Under the res gestae principle.
CORRECT ANSWERS A & E - the two best exceptions the prosecution will seek to rely on to adduce this out of court statement made by the deceased victim. Note therefore that a party seeking to adduce hearsay evidence at trial may rely on one or more of the exceptions to the hearsay rule.
Option A is available because the victim’s statement amounts to first-hand hearsay, assuming the victim can be identified to the court’s satisfaction and the relevant prescribed reason is that the victim (the maker of the statement) is dead (see s.116(2)(a) CJA 2003). To be admissible under s. 116, the statement may be either an oral or a written statement. Here the statement is an oral one.
The common law res gestae exception referred to in option E should also be available, because the court is likely to find that the statement was made spontaneously and that the possibility of concoction or distortion can be disregarded. In the leading case of R v Andrews [l987] A.C. 281 Lord Ackner set out the following criteria (the ‘Ackner criteria’) for the admission of such evidence:
The primary question which the judge had to ask himself in such a case was: can the possibility of concoction or distortion be disregarded?
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.
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.
Quite apart from the time factor there might be special features in a case which related to the possibility of distortion.
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.
Options B and C are not relevant as there is nothing to suggest the victim’s statement, naming his attacker, is either a previous consistent or inconsistent statement (see ss120 and 121 CJA 2003). Option D is wrong because we are told the defendant disputes he is the person who attacked and stabbed the victim
A man is wounded during a fight outside a football stadium. A woman, who was selling match programmes near to the scene of the incident, was approached by a man who pointed out the defendant as being the aggressor. The man then left without giving his details. When the police attend, the woman told the police what she had been told by the other man and pointed out the defendant. The defendant was then arrested and ultimately charged with wounding the victim. The woman provided the police with a witness statement including the details of what she was told by the other man. Prior to trial the woman is seriously injured in a car accident and is unable to attend court to give evidence at trial. The police take all steps that are reasonably practicable to find the man who witnessed the incident, but he cannot be found.
Will the woman’s witness statement be admissible under the exception to the hearsay rule where a witness is unavailable to attend court?
A) Yes, because the woman satisfies a prescribed reason, as she is unfit to be a witness because of her bodily condition.
B) No, because the woman has not died as a result of the accident and so the relevant prescribed reason is not satisfied.
C) Yes, because the woman is unfit to attend court because of her bodily condition, but she must first be identified to the court’s satisfaction.
D) No, because the woman’s witness statement contains multiple hearsay which is not admissible under this statutory exception.
E) Yes, because the man who told the woman the defendant was the aggressor cannot be found, although such steps as it is reasonably practicable to take to find him have been taken.
CORRECT ANSWER D - Although the woman satisfies the condition in s 116(2)(b), ‘the relevant person is unfit to be a witness because of her bodily…condition’, what the man told her, claiming the defendant was the aggressor is hearsay evidence. Any evidence given in the woman’s witness statement would therefore represent multiple hearsay. Multiple hearsay is not admissible under the absent witness provisions in s.116.
For this reason options A and C are wrong, even though the woman does satisfy one of the relevant prescribed reasons.
Option B is wrong because the death of the witness is only one of five prescribed reasons, not the only one
Option E is wrong, because although this is a prescribed reason it does not apply to the woman.
A man has been charged with an offence of assault, resulting from an incident that took place in a restaurant. The man intends to plead not guilty, claiming that he was acting in self-defence. The man has an independent witness who is able to support his defence. The witness is from Portugal and was visiting the UK on holiday and in the restaurant at the time of the incident and personally witnessed what happened. The witness has now returned to Portugal but provided the man’s solicitor with a signed and dated witness statement several months ago. At the time the statement was taken the witness told the man’s solicitor that she was not prepared to return to give evidence in person. The man’s solicitor applies for the witness statement to be admitted at trial in her absence, but has not obtained any up to date evidence that she is still not prepared to return to the UK on the date of the trial.
Is this witness statement likely to be admissible at trial in the absence of the witness?
A) Yes, because it is not reasonably practicable to secure her attendance at trial and oral evidence given by her of what she saw would have been admissible at trial.
B) Yes, because it is not reasonably practicable to secure her attendance at trial, her witness statement is automatically admissible.
C) Yes, because the witness is outside the UK and all such steps as it is reasonably practicable to take to find her have been taken.
D) No, because the defence will need to prove that it is still not reasonably practicable to secure the attendance of the witness beyond a reasonable doubt.
E) No, because the defence have not provided up to date evidence at the time of trial that it was still not reasonably practicable to secure the attendance of the witness.
CORRECT ANSWER E - According to R v Mattey, R v Queeley [1995] Crim LR 308 which is a case very similar to the present one, the Court of Appeal held that although the defence need only satisfy this prescribed reason on the balance of probabilities (so option D is wrong) there was no up to date evidence that the witness was still unwilling to travel at the date of the trial.
Option A correctly describes the relevant prescribed reason (s.116(2)(c)) but is not the best answer because it fails to explain the need for up to date evidence that it is still not reasonably practicable to secure her attendance at trial.
Option B is wrong because admissibility under the absent witness exceptions will always be at the trial judge’s discretion.
Option C is wrong because it mixes the tests under ss(2)(c) and (d).
TRUE OR FALSE:
Where a witness is in fear of testifying, their witness statement may be admitted in their absence but only if the court gives leave. This will only be given if the court considers that the statement ought to be admitted in the interests of justice having regard to the contents, to any risk of unfairness and the fact that a special measures direction could be made.
TRUE - The relevant prescribed reason referred to in the statement is s.116(2)(e) CJA 2003 which provides an exception to the hearsay rule where through fear the relevant person does not give oral evidence in the proceedings. However, this is the only prescribed reason where the court is also required to give its leave and such leave is based on an interests of justice test set out in s.116(4) and mentioned in the above statement.
A security guard witnesses a robbery take place at the premises where he works. As part of his job description, he completes an incident log detailing what he observed in which the defendant is implicated. Before the security guard is able to provide the police with a witness statement he dies in an unrelated accident.
Which ONE of the following best describes whether the contents of the security log will be admissible at the defendant’s trial?
A) The contents of the security log will be admissible at trial as it is a business document and the security guard created it in the course of his occupation and had personal knowledge of the matters dealt with.
B) The contents of the security log will not be admissible at trial because it was made in contemplation of criminal proceedings and so requires an accompanying witness statement.
C) The contents of the security log will be admissible at trial as it is a business document made in contemplation of criminal proceedings and the relevant prescribed reason is satisfied as the maker of the document is now dead.
D) The contents of the security log will not be admissible at trial as this amounts to hearsay evidence and there is no exception to the hearsay rule in these circumstances.
E) The contents of the security log will be automatically admissible at trial as it is a business document which satisfies all the relevant prescribed reasons.
CORRECT ANSWER C - Pure business documents are usually automatically admissible as an exception to the hearsay rule (s.117(2) CJA 2003) but where they are made in contemplation of criminal proceedings, which is the case here, the document must also satisfy a prescribed reason. Here the relevant one is that the maker of the document is now dead (s.117(5)).
Option A is not the best answer because although it accurately describes the normal rule for admissibility of a pure business document, it fails to deal with the additional requirements where a document is made in contemplation of criminal proceedings.
Option B is wrong, because there is no need for the business document to be accompanied with a witness statement.
Option D is wrong because there is a hearsay exception for the admissibility of this type of business document.
Option E is wrong because the document is not a pure business document and so will not be automatically admissible
TRUE OR FALSE:
A trial court has a wide discretion to admit hearsay evidence that would not otherwise be admissible if it is in the interests of justice to do so. This provision allows a court to admit hearsay evidence which is cogent and reliable. Before such a discretion can be exercised the court must first reach a specific conclusion in relation to all the statutory factors set out in s.114(2) CJA 2003
FALSE - The first part of the statement accurately summarises the fourth exception to the hearsay rule provided by s.114(1)(d) CJA 2003 and is often referred to as the ‘interests of justice’ exception.
However, the statement is false because according to the Court of Appeal in R v Taylor [2006] EWCA Crim 260, whilst the trial judge is required to exercise their judgment in the light of the factors in s 114(2) there is no need for the judge to reach a specific conclusion in relation to all the factors
A man has been charged with murder, it being alleged that he shot his victim dead in a drive-by killing. An unknown woman gave the police at the scene of the shooting a piece of paper on which she claimed to have recorded the registration number of the vehicle involved. The accused is the registered keeper of the vehicle in question. The unknown woman did not provide her details and she also indicated to the police that she did not want to get involved. There is no other evidence available to link this vehicle to the killing.
Are the contents of the note from this woman likely to be admissible under the interests of justice exception to the hearsay rule?
A) Yes, because it would be in the interests of justice of justice to allow this evidence to be admitted as it links the accused to the killing.
B) No, because it would not be in the interests of justice to admit this type of anonymous hearsay as it would wrongly circumvent the absent witness provisions.
C) Yes, because it has strong probative value in relation to a matter in issue in the proceedings, namely the identity of the vehicle involved.
D) No, because none of the prescribed reasons are satisfied in relation to the circumstances where a witness is unavailable to attend court.
E) Yes, because it will be in the interests of justice to admit this evidence as there is no other evidence available to link the accused to the killing.
CORRECT ANSWER B - Whilst this decision will always be ultimately a question for the trial judge to determine, s.114(2) sets out a list of factors the trial judge is required to take into account. In assessing these factors, the trial judge will need to have regard to the defendant’s right to a fair trial enshrined in Article 6 of the ECHR and the focus is likely to be on the potential reliability of this piece of evidence. It will not usually be in the interests of justice to allow anonymous witness evidence to be admitted under the interests of justice exception as this will be seen to wrongly circumvent the absent witness provisions contained in s.116. For example, it would not be possible to test the reliability of the making of the statement or indeed the reliability of the maker of the statement in these circumstances. It would also be very difficult for the defence to challenge this witness without knowing who she is and exactly what she observed and from where and for how long. It would therefore be likely to cause the accused prejudice and deny him a fair trial.
Option A is wrong because simply linking the accused to the killing would not be the overriding test here.
Option C is wrong because it is difficult to determine just how probative this anonymous witness hearsay evidence is.
Option D is not the best answer. Whilst it is correct to say that none of the prescribed reasons set out in s.116(2) are satisfied, this answer makes no reference to the interests of justice test set out in s.114(2).
Option E is wrong because the interests of justice test is not satisfied simply because there is no other evidence available to link the accused to the killing
Which ONE of the following will not require a party wanting to adduce hearsay evidence at trial to serve notice on the other party of their intention to do so?
A) A business or other document which has not been created in contemplation of criminal proceedings.
B) A statement to be admitted where it is in the interests of justice to do so.
C) A witness statement where the witness is unavailable to attend court.
D) A statement that contains multiple hearsay.
E) A business or other document which has been prepared for use in criminal proceedings.
CORRECT ANSWER A - Part 20 of the CrimPR deals with the requirement to serve notice of a party’s intention to rely on hearsay evidence. These rules do not, however, apply in all cases when a party wishes to rely on hearsay evidence at trial. The rules in Part 20 only apply to cases where:
it is in the interests of justice for the hearsay evidence to be admissible (so option B is wrong);
the witness is unavailable to attend court (so option C is wrong);
the evidence is multiple hearsay (so option D is wrong); and
either party wants to rely on a business or other document under s 117 and that document was prepared for use in criminal proceedings (so option E is wrong).
In all other cases there is no such requirement. This means for hearsay contained in a pure business document or for evidence of a confession there is no such requirement to serve notice in advance.
A man owns and runs a care home and has access to his residents’ bank and credit cards. The man’s care home business experiences some cash flow difficulties and so he draws out some money from a bank by using a number of the residents’ bank cards without their knowledge or permission. The man does not intend his residents to suffer financially as he repays the money into their accounts once the cash flow problems ease.
Which of the TWO following statements describes the man’s potential liability for an offence of fraud?
A) The man is liable for an offence of fraud by making a false representation to the bank he draws the cash from.
B) The man is liable for an offence of fraud by failing to disclose that the cash cards do not belong to him.
C) The man is liable for an offence of fraud by abuse of his position of trust with the residents.
D) The man is not liable for an offence of fraud as none of the residents suffer any financial loss from his actions.
E) The man is not liable for an offence of fraud because the man does not intend any of the residents to suffer financial loss as a result of his actions.
CORRECT ANSWERS A & C - It is not unusual for a defendant to be criminally liable for different offences under the Fraud Act 2006, particularly as ss 2 to 4 describe three ways in which the offence of fraud may be satisfied. In this case the man is most likely to be charged with an offence of fraud on the basis that he abused his position of trust he owed to his residents.
However, when he draws cash out with his residents’ bank cards he is impliedly representing that the cards either belong to him or that he has authority to use the cards, and such a representation is false. The man is also in abuse of his position of trust with the residents because he occupies a position in which he is expected to safeguard, or not to act against, the financial interests of his residents.
Fraud can also be committed by failing to disclose information, but the defendant is unlikely to be under a legal duty to disclose this information in these circumstances, so option B is wrong.
Options D and E are wrong as suffering a financial loss is not a requirement for the offence of fraud, and the necessary intent includes more than just intending the victim to suffer a financial loss. Rather the defendant must:
dishonestly make a false representation and intend,by making the representation, either to make a gain for themself or another, or to cause loss to another or to expose another to a risk of loss (s.2 fraud by a false representation); or
dishonestly abuse a position of trust and intend, by means of the abuse of that position to make a gain for themself or another, or to cause loss to another or to expose another to a risk of loss (s.4 fraud by abuse of trust).
Which of the following statements best describes how the court is likely to deal with this evidence at Riley’s trial?
A) The evidence was obtained by oppression and the court will not allow it to be given in evidence.
B) The evidence was obtained by entrapment and so the case is likely to be stopped as the defence will argue that a prosecution in these circumstances amounts to an abuse of process.
C) The evidence obtained would have such an adverse effect on the fairness of the proceedings that the court will not admit it.
D) The evidence will be excluded as it was obtained in circumstances existing at the time to render it unreliable.
E) There is no defence known as entrapment and the evidence is not likely to be excluded as it is still highly relevant.
CORRECT ANSWER B - n the combined appeal of R v Looseley; A.G’s Reference (No 3 of 2000) the AG’s reference case was very similar to the type of entrapment that took place here. The House of Lords found that the police had incited the accused to commit the offence that he would otherwise have not committed and that the trial judge had been right to stay the proceedings as an abuse of process. Lord Nicholls stated that every court has an inherent, common law power and duty to prevent an abuse of process. Entrapment was an instance where such misuse of power could occur and that it was not acceptable for the state to lure individuals into committing unlawful acts and then prosecute them for doing so.
Options A and D are wrong because these tests under s.76(2) PACE only apply to the admissibility of confession evidence, rather than the type of evidence here.
Option C is not the best answer, because although the court does have a discretion to exclude such evidence under s.78 PACE, according to Lord Nicholls the abuse of process argument is the better approach to take.
Option E is not the best answer because although it is correct to say there is no defence known as entrapment and the evidence is not likely to be excluded as it is still highly relevant, the abuse of process argument is still likely to succeed where Riley has been incited to commit an offence he would not likely have committed but for the entrapment
