Evidence Flashcards

Question

Must all breaches of PACE result in exclusion of evidence under s.78?

Answer 1

No. Breaches must usually be “significant and substantial” (not minor) and unfairness must outweigh the value of the evidence.

Answer 2

s.78 focuses on fairness where PACE procedures weren’t followed. Common law exclusion applies more broadly: when the probative value is outweighed by prejudicial effect.

Answer 3

Police eavesdropping: lawful under PACE, but snippets of conversation may mislead → probative value outweighed by prejudice.

Answer 4

(1) Application for dismissal, (2) Submission of no case to answer, (3) Exclude under s.78 PACE, (4) Exclude confessions under s.76 PACE, (5) Exclude under common law (s.82(3) PACE), (6) Abuse of process applications.

Answer 5

(1) Relevance: has to be relevant to be admissible, (2) Exclusionary discretion (s.78 or common law) - if should not be admitted if unfair, (3) Inclusionary rule, where can't be admitted under (2) / by nature is inadmissible per se, may still be admitted if inclusionary rule applies, and no statutory restriction on inclusionary rule in this context

Answer 6

Pre-trial, only in Crown Court, after evidence is served but before arraignment. (So application for dismissal is before evidence starts being given by P since pre-trial, while submission of no case to answer is at half-time - after P has given all of its evidence.) * It's the same test for both ! (Galbraith) -- which is whether P's evidence taken at its highest would be sufficient for a properly directed jury to convict.

Answer 7

Whether the evidence against D would be sufficient for a properly directed jury to convict (same as the Galbraith test). -- this is the procedural rules for how and when application can be made. Controlling authority is the Galbraith test, broken down into two limbs: Judge should stop the case if: (1) No evidence D committed the crime, or (2) Prosecution evidence, even taken at its highest, could not lead a jury to properly convict. ## Footnote Examples of two limbs: * Limb 1: Witness admits D is not the offender → case stopped. * Limb 2: Evidence is vague, contradictory, or inherently weak → may stop case if conviction could not be properly founded.

Answer 8

A defence application at the close of the prosecution’s case (the “half-time” stage), arguing there is insufficient evidence for conviction. Use galbraith test here. (this can be made in CC or Ms.) AKA half-time submission.

Answer 9

Heard in the absence of the jury; if successful → judge directs “not guilty”; if unsuccessful → jury is not told the application was made.

Answer 10

No — they both apply only to exclude prosecution evidence.

Answer 11

To stay proceedings entirely where continuing would be fundamentally unfair or damage the integrity of the justice system. Examples: * Defendant tricked/coerced into offending * Prosecuted despite promise not to be * Police undermine justice (e.g., destroy defence evidence) * Prosecution misuses court process to deny legal protections * Delay by prosecution: deliberate tactical delay or excessive/unconscionable delay causing prejudice ## Footnote NOTE - for D to prove on balance of probabilities !

Answer 12

(1) D cannot have a fair trial, or (2) Continuing the trial would undermine justice / public confidence (e.g. prosecutorial misconduct, trickery, destroyed evidence). Burden here is on D to prove on balance of probabilities. ## Footnote In MC - only ground 1 is possible. In CC - both grounds are possible.

Answer 13

No. If successful, proceedings are stayed permanently, but this is not equivalent to an acquittal (though no conviction results).

Answer 14

Because wide statutory powers (s.76 and s.78 PACE) usually cover exclusion situations.

Answer 15

Application for Dismissal: pre-trial, Crown Court only, stops case before arraignment. No Case to Answer: mid-trial, any court, stops case after prosecution closes.

Answer 16

No – the key test is whether admitting it would make the trial unfair.

Answer 17

Bad faith in breaching PACE/Codes makes exclusion more likely.

Answer 18

A trial within a trial (without the jury) to resolve factual disputes relevant to a s.78 application. The normal burden of proof applies - P must prove their version beyond reasonable doubt. ## Footnote (if finds no unfairness despite breach of Pace - evidence can still be admitted.)

Answer 19

Before the disputed evidence is adduced – ideally at pre-trial or trial start.

Answer 20

The Court of Appeal will only interfere if the decision was perverse (i.e. no reasonable judge could have reached it).

Answer 21

Any statement wholly or partly adverse to the maker, whether to a person in authority or not, and whether made in words or otherwise. So includes these types of statements: - Unequivocal confessions of guilt (“I did it”) - Mixed statements (partly inculpatory/exculpatory - eg: maybe) - Nods, signs, or gestures (not just words).

Answer 22

No — e.g. “It wasn’t me” is not a confession.

Answer 23

: A confession is admissible unless excluded under s.76.

Answer 24

(a) Obtained by oppression, or (b) Obtained by anything said/done likely to render the confession unreliable. (cannot here be something internally that D thought, has to be an external thing - so not just because might be beneficial to confess to get bail, but police said something for eg.)

Answer 25

Torture, inhuman or degrading treatment, or use/threat of violence. Caselaw: “Exercise of authority or power in a burdensome, harsh, or wrongful manner” – must involve impropriety by the interrogator.

Answer 26

Prosecution must prove beyond reasonable doubt that the confession was not obtained by oppression or unreliably. Does not arise whenever there is confession tho - first defence needs to make representation to court that should be excluded based on s76 - then burden on prosecution to prove beyond reasonable doubt that it was NOT obtained in such a way.

Answer 27

Yes — exclusion is about method of obtaining it, not truth.

Answer 28

Was anything said or done likely, in the circumstances, to render any confession unreliable? Approach (according to caselaw): 1. Identify the thing said/done. 2. Ask if it was likely to render confession unreliable (objective test). 3. Ask if prosecution proved beyond reasonable doubt that confession not obtained as a result. SO: Court considers a hypothetical question: was a confession in those circumstances likely to be unreliable? The issue isn’t whether the actual confession was false, but whether the circumstances were likely to produce an unreliable confession.

Answer 29

Promises of release/bail for confession Threats to arrest family if suspect doesn’t “cooperate” Interviewing juveniles/vulnerable suspects without an appropriate adult Denial of legal advice.

Answer 30

A confession that “cannot be relied upon as being the truth”

Answer 31

Yes — under s.76(3), the court can require the prosecution to prove admissibility. (So either defence can challenge confession, OR court can request prosecution to require to prove beyond reasonable doubt that confession was not acquired by means of oppression, or something making it unreliable.)

Answer 32

Yes: under s.76(4), facts discovered as a result remain admissible, and speech/writing may be used to show how the accused expresses himself. SO: exclusion of a confession under s.76 does NOT bar “fruits of the poisoned tree”... So facts discovered remain admissible, but prosecution CANNOT link discovery to defendant’s words (eg: can't tell you what D said but found body because of it - would be a loophole otherwise, so cannot do this!) ## Footnote Example : confession excluded but police used spelling of “Justin” as evidence of how the accused wrote.

Answer 33

s.76 = applies only to confessions, mandatory exclusion if oppression/unreliability. s.78 = applies to all prosecution evidence, discretionary exclusion if admission would make trial unfair, broader application. Also includes ECHR Art 6 concerns ## Footnote Eg: A suspect was denied legal advice for hours before questioning, but it cannot be shown this was “likely to render” the confession unreliable. Still, s.78 could exclude it as overall unfair.

Answer 34

Deprivation of sleep: A suspect confessed after being kept awake for 18 hours without rest. The lack of sleep was likely to render the confession unreliable. Failure to caution: A suspect confessed during an interview but had not been cautioned (or reminded of their earlier caution). The failure to caution made the confession unreliable. Denial of legal advice: A 19-year-old pregnant suspect of limited intelligence was refused access to a solicitor, questioned while distressed, and confessed. Even though she later repeated her confession with a solicitor present, the earlier breach tainted both confessions as unreliable.

Answer 35

Yes — it’s common practice to run both: s.76 for unreliability/oppression, and s.78 as a fairness safeguard.

Answer 36

A suspect allegedly confessed in a charge room about having a weapon in his car. Police failed to record the conversation properly, didn’t let the suspect review or sign the notes, and didn’t put it to him in a later interview. On appeal, the conviction was quashed because these were “significant and substantial” breaches of Code C, creating unfairness.

Answer 37

They protect suspects from police pressure or “verballing” (words being invented/misrecorded), while also protecting police from false claims of fabrication.

Answer 38

Make a timed, signed record of the confession, ask the suspect to read and confirm/correct it, and put the confession to the suspect at the start of the formal interview.

Answer 39

1) Oppression s76 2) Unreliability s76 3) Unfairness - adverse to proceedings (s78) For oppression and unreliability need to show causal link between it and the confession. Burden of proof is on prosecution once defence has raised it as an issue (prosecution need to show beyond reasonable doubt) For oppression and unreliability (s76): if prosecution fails, court MUST exclude it. For unfairness (s78): court's general discretionary power for exclusion of evidence (so not confession specific.)

Answer 40

Standard to which prosecution is put to proof is always '`so you are sure of guilt`' -- modern version of saying 'beyond reasonable doubt'.

Answer 41

1. Legal burden: what we mean when saying burden to prove element of the case. Usually prosecution holds this (unless specific defence where places it on D -- eg insanity, diminished responsibility.) It is a **question of fact** as to whether this has been displaced !! (so for jury in CC) 2. Evidential burden: burden to raise evidence, **question of law** -- judge has to decide whether sufficient evidence has been raised to be able to be proved by jury later... So about whether can be put to jury at all ! ## Footnote NB: when legal burden on defence, standard is balance of possibilities (so lower than what is placed on P.)

Answer 42

If simply challenges Pr, saying is wrong - this does not create any burden on D. So relatively rare for burden to be placed on D - just for specific defences (eg insanity.) ## Footnote Watch out !! Sometimes evidential burden is transferred over to D, but legal burden kept on Pr.

Answer 43

Normally, whoever bears the legal burden also bears the evidential burden (must “pass the judge”). Exceptionally, they can separate — main example: `self-defence`: * Defence: has evidential burden → must raise *some* evidence of self-defence to put it before the jury. * Prosecution: still has has legal burden → must then prove beyond reasonable doubt that the force was unlawful, i.e. *not* in self-defence. ## Footnote So D can't bring up self-defence to jury before first passing by judge.

Answer 44

P’s legal & evidential burden for all elements: * D * Date * Dishonesty * Appropriation * Property belonging to another * Intention to permanently deprive D can challenge P’s case (e.g. ID, dishonesty, intent) but has no burden. Judge only checks sufficiency of P’s evidence. ✅ Defence merely disputes facts — no burden.

Answer 45

* P failed to adduce evidence that D was a trespasser. * Without evidence, judge must intervene → “no case to answer.” * D has no obligation to prove anything (e.g. consent to enter). ❌ Issue withdrawn from jury → case dismissed.

Answer 46

* Defence legal & evidential burden. * Must prove on **balance of probabilities** that D suffered from a disease of the mind. * P still proves actus reus and mens rea unless insanity succeeds. * If insanity proven → D not guilty by reason of insanity (malice no longer arises). ## Footnote NOTE - both burdens also on D for diminished responsibility in murder cases !

Answer 47

* D has only evidential burden – must raise some evidence of acting in self-defence. * Once raised, P must disprove self-defence beyond reasonable doubt. ✅ Judge checks D has raised enough →if yes, issue goes to jury.

Answer 48

* Duress: D raises some evidence; P must disprove beyond reasonable doubt. * Alibi: D raises evidence; P must disprove alibi so jury are sure.

Answer 49

The `Turnbull ` Guidelines ! Purpose: * To ensure identification evidence before a jury is as reliable as possible. * To guide judges on (1) what to say to the jury when the case depends on disputed ID evidence, and (2) when to withdraw a case to avoid unsafe conviction.

Answer 50

When ID is live issue - so when the case against D depends **wholly or substantially** on disputed visual identification. * Also applies to recognition cases: mistaken recognition is common, so Turnbull applies even where the witness claims to recognise D. ## Footnote NB: applies to both crown court and magistrates court (in latter, rather than jury being directed, magistrates guided by legal advisor to consider Turnbull guidelines)

Answer 51

If D admits presence at the scene but disputes their role, ie: ID isn’t the live issue (though the judge must always consider this).

Answer 52

That there is a special need for caution before convicting on ID evidence -- mistaken witnesses can still be convincing ones ! Warning needs to include following **3 elements**: 1. Explain why caution is needed (mistaken witnesses can seem sure). 2. Tell jury to examine circumstances of the identification. 3. Remind jury of specific weaknesses in the ID evidence.

Answer 53

* Scientific evidence (e.g. DNA, footwear, facial mapping, phone data) * Multiple identifications (if good quality) * D’s admissible bad character / previous convictions * D’s silence on interview (if adverse inference allowed) * D’s admissions at scene / interview / in evidence

Answer 54

Identify it for the jury and clarify if certain evidence only *appears* to support ID but does not in fact do so.

Answer 55

1. What is the quality of the identification? 2. Is there other evidence supporting it?

Answer 56

If ID evidence is **poor** and **unsupported**, the case should be withdrawn and D acquitted. (However, can still pass to jury if (1) is weak, but has supporting evidence, or (2) has no supporting evidence but is strong ID.) ## Footnote For assessing strength of ID have your ADVOKATE factors ! NOTE - this name is actually what you use in your submissions

Answer 57

A – **A**mount of time under observation D – **D**istance from suspect V – **V**isibility conditions K – **K**nown or seen before? A – **A**ny reason to remember D? T – **T**ime lapse between sighting & ID procedure E – **E**rror/discrepancy between first description and D’s appearance

Answer 58

Jury can safely assess it, provided **adequate Turnbull warning** is given

Answer 59

Judge must consider if there’s other supporting evidence. * If none → withdraw case. * If some support → leave to jury, but with strong caution.

Answer 60

* Witness identifies D for the first time in court. * Undesirable because is highly prejudicial — D is the only person in the dock, so have risk of witness assuming D must be guilty. Judge **CAN** however allow it exceptionally: eg in alleged recognition cases where judge decides wouldn't be unfair.

Answer 61

When **BOTH**: 1. D disputes being the person identified, and 2. The ID evidence is wholly or substantially the only evidence implicating D. ## Footnote Example: D denies being at the scene and there’s no other evidence → ID is live issue. D admits being there but denies role → ID not live issue.

Answer 62

❌ No. For identifications to be mutually supportive, **each must be of sufficient quality** to be safely left to the jury. If **all are poor**, the case should be withdrawn. (So multiple poor = they are just multiple weak IDs, and not stronger together.)

Answer 63

1️⃣ Advance notification 2️⃣ Timing 3️⃣ Voir dire 4️⃣ Submissions

Answer 64

* Defence statement must include any legal points (including admissibility). * Crown Court: Judge at PTPH/FCMH orders defence to serve skeleton argument (with time limits) → prosecution to respond → sets hearing date. * Magistrates’ court: Defence skeleton due 10 business days before trial, prosecution response 5 business days later (from ‘Preparation for Effective Trial’ form, not CPR).

Answer 65

Crown Court: * Pre-trial hearing (esp. if confession crucial to case or affects how prosecution opens). * Or just before opening to jury (in absence of jury). * Or during trial if no need to decide earlier. Magistrates’ court: * Any s.76 application = preliminary issue (dealt with before trial evidence).

Answer 66

Crown Court: Required if application under s.76 (or both s.76 and s.78) and evidence is disputed. Magistrates’ court: * s.76 or both s.76 & s.78 → magistrates hear evidence as preliminary issue. * s.78 only → magistrates have discretion to wait and decide later during trial.

Answer 67

If disputed, a voir dire is needed. If agreed, legal arguments proceed on agreed basis (no need to call evidence).

Answer 68

* If confession excluded → prosecution cannot refer to it; may have to offer no evidence → not guilty verdict. * If admitted → prosecution may use it; but defence may still challenge its reliability before the jury.

Answer 69

Magistrates’ court: * Defence skeleton: at least 10 business days pre-trial; then prosecution reply 5 days later. * s.76 = preliminary issue; s.78 = discretionary timing. * Magistrates can hear evidence themselves and must disregard excluded evidence. Crown Court: * Defence & prosecution skeletons ordered at PTPH/ (or Further Case Management Hearing) with deadlines. * Application made pre-trial, just before jury, or during trial. * Voir dire required if under s.76 or both s.76 & s.78 with disputed facts (held without jury).

Answer 70

The parties can make submissions on the reliability of the evidence, and the legal advisor will remind the court of the Turnbull Guidelines. The court must give both due weight, and can exclude the evidence if it is of sufficiently poor quality.

Answer 71

Evidence of, or of a disposition towards, misconduct on a person’s part, other than evidence which— (a) has to do with the alleged facts of the offence charged, or (b) is misconduct connected with the investigation or prosecution of that offence. ## Footnote Note !! Must still be relevant.

Answer 72

The commission of an offence or other reprehensible behaviour. * Reprehensible = Behaviour showing some degree of moral blameworthiness. * Morally lax conduct (e.g. having an affair) is not necessarily reprehensible, but **gang membership** is. Other egs of reprehensible behaviour udner code: - drinking to excess, - taking illegal drugs - racism - bullying - disciplinary actions at work - parent who has had child taken into care

Answer 73

* Previous UK convictions * Previous foreign convictions (if domestic equivalent exists - eg blasphemy unlikely to count) * Cautions * Acquittals (where prosecution claims defendant was guilty) * Agreed facts showing reprehensible behaviour * Witness evidence of a reputation for reprehensible behaviour

Answer 74

Yes—prosecution may assert that the defendant did commit the acquitted offence, as long as they do not seek punishment for it (so not infringing the double jeopardy rule.) * Eg: In a rape case where defence was consent, evidence of four prior rape allegations (three acquittals where consent had also been advanced as defence) was admissible to show a propensity to rape and then use consent as defence. Jury could assess credibility of previous complainants despite prior verdicts. ## Footnote However, this also means that previous convictions create a rebuttable presumption that the defendant committed the offence → defendant may adduce evidence showing wrongful conviction.

Answer 75

Evidence of misconduct which: (a) has to do with the alleged facts of the offence charged, or (b) is connected with the investigation or prosecution of that offence. Egs: * Defendant lying in interview (connected to investigation) * Proving previous disqualification in driving while disqualified cases * Jury tampering or witness intimidation ## Footnote So no need to go through admissibility gateway for above examples !

Answer 76

No, motive evidence is generally treated as having to do with the alleged facts of the offence (so admissible without having to go through a gateway.)

Answer 77

* s.100(1): Non-defendant bad character * s.101(1): Defendant bad character ## Footnote Bad character application is required to be made, when evidence must pass through one of above statutory gateways.

Answer 78

It can be used for any relevant purpose in the trial.

Answer 79

**A–G:** A – Agreement B – Blurts it out C – Context D – Done it before E – “E did it” F – False impression G – Gets at the witness ## Footnote Trick to remember - 101 Defendants (like 101 dalmations - and its for bad character evidence, so bad dogs !!) ABCDEFGateway Also note s101(3) fairness test - which applies to gateways d and g only !), where even if evidence falls within one of gateways, should not be admitted if would have adverse effect on fairness of proceedings.

Answer 80

When all parties agree to its admissibility. ❌ Court leave is not required * Agreement need not be formal - tacit agreement is sufficient. ## Footnote Could be used in negotiation between D and P for example.

Answer 81

The defendant may adduce their own bad character evidence. ❌ Court leave not required ! Reasons might want to do this: * To be open about old convictions → modified good character direction * To show no convictions of the type currently charged * To establish a defence (e.g. imprisonment at time of alleged offence) * To show police bias against them

Answer 82

Important explanatory evidence = Defined in s.102 CJA 2003: (a) Without it, the jury would find it difficult to understand other evidence; and (b) Its value for understanding the case as a whole is substantial. ✅ Court leave - required !! * Eg: Explaining the background or relationship between parties (e.g. past abuse).

Answer 83

Evidence relevant to an important matter in issue between the defendant and the prosecution. * important matter = a matter of substantial importance in the context of the case as a whole. What this can mean is elaborated on in s103 -- which includes whether D has (1) `propensity to commit offences of kind charged`, or (2) `propensity to be untruthful` * For propensity to commit offence of kind charged, this can either be **(i)** offence of same description (so this is exactly same offence, and note GBH and ABH is NOT the same, have to be exact same section offence), and **(ii**) offence of same category - here only category we have for SQE purposes is theft category (including theft, robbery, burglary - here only if element of theft is involved!, handling stolen goods, vehicle-taking, making off without payment, going equipped for stealing, attempts/encouragement to commit any of above, etc.) * Also note Hanson questions for admitting bad character to show propensity ! And also Hanson broadened the scope of category of offences, so could potentially argue for category of 'violent offences' for example (not as strict as in statutory categories.) * Then propensity to be untruthful - about telling lies ! ✅ Court leave required ! ## Footnote Note safeguards here : - fairness test (if adverse effect on unfairness of proceedings should not be admitted) - for gateways d and g only !! - unjust to rely on past conviction due to time elapsed or another reason : only for this gateway

Answer 84

1. Does D’s history establish a propensity to commit offences of the kind charged? 2. Does that propensity make it more likely D committed the offence charged? 3. Is it unjust to rely on conviction of same description or category, and in any event would proceedings be unfair if evidence were admitted? ALso note that Hanson established following principles when trying to establish a propensity: * No minimum number of previous convictions needed (tho more will make it stronger obv) * Normally single conviction not sufficient **unless** shows a distinctive pattern. * The weaker the rest of the case, the less likely bad character should be admitted. * Propensity can be shown by conduct before or after the alleged offence (for after, example of racist assault, and continued racist behaviour after charged etc.) ## Footnote These help establish propensity !!

Answer 85

* Where D pleaded not guilty and gave evidence the jury must have disbelieved, or * Where the offence involved deceit, e.g. fraud by false representation. ## Footnote Note: dishonesty is not same as untruthfulness ! A dishonest act (e.g. burglary, theft) doesn’t necessarily show general untruthfulness. But fraud and perjury are untruthful offences inherently.

Answer 86

Gateway (d) is not just about propensity — it covers any important matter in issue between the defendant and prosecution. Examples include: * Identity – linking the defendant to the alleged offence. * Especially where prior offences show a distinctive pattern or “signature” mode of offending (pre-2003: “striking similarity” / similar fact evidence). Example: a burglar with a unique method or habit that matches both past and current offences.

Answer 87

Each offence is treated as a separate proceeding — a gateway is needed to use evidence from one count as evidence on another. The gateway usually used here is - s.101(1)(d). * Example: Two sexual assault charges on different victims — evidence from one may show propensity relevant to the other.

Answer 88

Who decides if evidence is *capable* of showing propensity? * The judge. Who decides whether the evidence *actually* does show it? * The jury.

Answer 89

Important Matter in Issue Between Co-Defendants * Evidence admissible here where it has substantial probative value in relation to an important matter in issue between co-defendants. * Propensity to be untruthful - here only admissible if one defendant’s defence undermines the other’s (so eg: D1 attacks D2 in their defence, so D2 can bring in evidence showing propensity of D1 to be untruthful) ✅ Court leave required. ## Footnote Note here that fairness test and s78 PACE does not apply - because these are only for Prosecution evidence, and here its by a co-defendant !!

Answer 90

Admissible under this gateway where it is necessary to correct a false or misleading impression given by the defendant. **s105 defines** when D is responsible for a false impression, and this includes where: * Their statements in interview or evidence * Their witnesses’ statements * Cross-examination questions * Conduct (appearance, dress, etc.) Note: P can only go so far as to correct the false impression. ✅ Court leave is required! Example? D says, “I’ve never acted dishonestly” → prosecution can show prior dishonesty convictions. ## Footnote Note here could also technically be used where its P themselves who introduces the evidence - for eg using interview where D lies, and then goes about giving evidence to correct the impression given by D in interview.

Answer 91

Attack on another's character Admissible here when D attacks another person's character (where living or dead, witness or not.) Attack here counts as: * D adduces evidence attacking another’s character, * Asks questions to elicit such evidence, or * Makes accusations during interview or charge. Evidence here that could count is: Alleging that the person: (a) committed an offence, or (b) behaved (or is disposed to behave) reprehensibly. ✅ Court leave is required! ## Footnote Fairness test here applies.

Answer 92

* Its weight is for them to decide. * They must not convict just because D has prior convictions. * Propensity alone is not proof of guilt. * The evidence must be assessed with all the evidence in the case. * If misconduct without conviction is relied on, they must be sure it is true before using it.

Answer 93

Evidence of a non-defendant’s bad character is admissible only if it falls under one of three gateways: 1. **Important explanatory evidence** (s.100(1)(a)) 2. **Substantial probative value in relation to a matter in issue of substantial importance** (s.100(1)(b)) 3. **Agreement of all parties** (s.100(1)(c)) ## Footnote Leave of the court is required unless all parties agree (s.100(4)). Evidence can be adduced by any party.

Answer 94

Defined in s.100(2), same as s.102 for defendant: * Without it, the court/jury would find it impossible or difficult to understand other evidence. * Its value for understanding the case as a whole is substantial. Usually used to explain context or relationships between people in the case.

Answer 95

Evidence has substantial probative value if it impacts the jury’s assessment of a witness or the case. Courts must have regard to following factors: * Nature, number, and timing of the misconduct * Similarities/dissimilarities to the alleged misconduct * Whether it helps show the non-defendant committed the offence if identity is disputed * Propensity can be a matter in issue (e.g., to show someone else committed the offence, not D) Court leave is required. Recent and relevant misconduct usually weighs more. ## Footnote Basically like propensity from 101 - so trying here to say witness has propensity for being untruthful, or someone else etc.

Answer 96

* s.78 PACE 1984 – Discretion to exclude any prosecution evidence if admission would adversely affect fairness. Does not apply to one defendant adducing evidence against another. * s.101(3) CJA 2003 – Mandatory exclusion for evidence under s.101(1)(d) or (g) if admission would unfairly affect proceedings. Stronger than s.78 wording ('must' vs 'may'). * s.101(1)(d) & s.103(3) – Court may exclude evidence of previous offences of same description/type if unjust (e.g., long ago). * s.107 CJA 2003 – Court can stop the case if admitted bad character evidence is contaminated and conviction would be unsafe. * s.110 CJA 2003 – Court must give reasons in open court for rulings on bad character.

Answer 97

s.73: Convictions/acquittals proven by certificate from the court where it occurred, plus proof the person named is the same. s.74: Once proved, person is taken to have committed the offence unless they prove otherwise on balance of probabilities. s.75: Documents (charge sheet, indictment, information) admissible as evidence of facts underlying the conviction.

Answer 98

Defendant bad character (s.101 gateways): * Magistrates’ court: ≤20 business days after plea * Crown Court: ≤10 business days after plea Co-defendant evidence: * As soon as reasonably practicable, ≤10 business days after prosecutor discloses material Non-defendant bad character: * As soon as reasonably practicable, ≤10 business days after prosecutor discloses material Response time: * ≤10 business days after service of notice/application ## Footnote These strict time limits are only for formal written notices / application ... (check which ones need this specifically.)

Answer 99

Prosecution/Co-defendant: * Facts of misconduct relied on * How facts will be proved if disputed (certificate, other evidence) * Why evidence is admissible Response: * Which facts are disputed or admitted * Why evidence is not admissible * Why it would be unfair to admit * Any other objection

Answer 100

* Can determine application/notice with or without a hearing * Decision must be announced in public (jury must be absent) * Discretion to shorten/extend time limits or allow alternative form * Extensions can be granted even after original time limit ## Footnote Practice note: * Written notices/applications are typically used for s.101(1)(c) “important explanatory evidence” and s.101(1)(d) “important matter in issue” gateways * Evidence through other s.101 gateways often arises “on the hoof” during trial due to something said or done

Answer 101

A statement made out of court that is presented in evidence as proof of its contents. Is generally inadmissible !! Meaning it is an exclusionary rule (even if relevant.) ## Footnote Is excluded based on idea that the maker of the out-of-court statement cannot be cross-examined, so the reliability of the evidence cannot be tested. * Eg: A says that B said “D killed V.” Only A is in court; B cannot be cross-examined, so the reliability of B’s statement can’t be tested.

Answer 102

1. Does the evidence fall within the definition of hearsay evidence? if yes - is prima facie inadmissible... 2. If yes is hearsay, does it fall within one of the exceptions to the exclusionary rule? (Might be admissible based on such a rule.) ## Footnote NOTE: ask each separately, in order !! Don't tackle both at same time or will get very confused.

Answer 103

aThe ECHR Article 6 right to a fair trial may be engaged. UK Supreme Court and ECHR said this: * The UK statutory framework (CJA 2003) is sufficient to ensure fairness if properly applied. * The court must ensure a fair trial is still possible and that there’s good reason for the witness’s absence. * A fair trial is harder if hearsay is the sole or decisive evidence against the accused.

Answer 104

1. Whether there is good reason to admit the evidence (CJA 2003). 2. Whether the evidence is reliable. 3. Whether counterbalancing measures (like jury directions) have been applied.

Answer 105

(a) A statutory provision makes it admissible. (b) A rule of common law preserved by s.118 makes it admissible. (c) All parties agree it’s admissible. (d) It’s in the interests of justice to admit it. | (so these are exceptions to general exclusionary rule.) ## Footnote Statement = Any representation of fact or opinion made by a person, by any means (including pictures, sketches, or photofits). Matter stated = Something made with the purpose of causing another person to believe it or act upon it as true.

Answer 106

1. Identify what relevant fact it is sought to prove. 2. Ask if there is a statement of that matter in the communication. 3. If yes, was the purpose to make someone believe or act upon it as true? Yes → Hearsay. No → Not hearsay. In R v Twist, text messages asking for drugs was NOT hearsay because: they contained no statement that the defendant was a dealer, nor was it the sender’s purpose to make the recipient believe that. So was admissible. ## Footnote Statement = Any representation of fact or opinion made by a person, by any means (including pictures, sketches, or photofits). Matter stated = Something made with the purpose of causing another person to believe it or act upon it as true.

Answer 107

Private diary entries (no intention for others to believe). CCTV footage (no human maker). Questions (no “matter stated”).

Answer 108

Out-of-court words admitted not for their truth, but to show that they were spoken or to prove another relevant fact (e.g. state of mind). Eg: A threat (“If you don’t do what I say, I’ll harm you”) is used to show the threat was made, not that harm would actually occur. Eg caselaw: A 999 call by the deceased was admitted to show she was distressed — proving state of mind, not truth of contents.

Answer 109

1. To show the effect of words on the listener (e.g. why D stayed silent). 2. To show legally significant words (e.g. offer of prostitution = proof of brothel). 3. To show falsehoods (e.g. false alibi to show guilt).

Answer 110

A statement made out of court, that the person who made it intended another to believe, subsequently tendered in evidence, as proof of the matter stated

Answer 111

To exclude unfair prosecution evidence, even if otherwise admissible.

Answer 112

1. Witness is unavailable 2. Business doc (although court here has discretion to not allow if unreliable) 3. Interests of justice to admit it Also have: 4. Previous inconsistent statements (in some situations) 5. Previous consistent statements (in some situations) PLUS : we always have our s78 rule !

Answer 113

Admission of a statement by an identified person if: (i) their oral evidence would have been admissible, and (ii) one of five unavailability conditions applies: * The person is dead. * The person is unfit to be a witness (*here means inability to give evidence, NOT about attending court, can include trauma from sexual assault, not just medical conditions*.) * The person is outside the UK and cannot reasonably attend (*here fulfilled where not reasonably practicable to secure attendance including by video link, cost can be factor here balanced against importance of evidence*.) * The person cannot be found despite reasonable efforts (*here need to show reasonable steps were taken to locate them*) * The person does not give evidence through fear, and the court gives leave (*fear here can be widely construed, includes fear of death, injury and financial loss to self or others - for this one court must also consider interests of justice !!* ) ## Footnote Note here for such an unavailable witness - requires identification of the witness (to court's satisfaction) !! So anonymous hearsay is not allowed ! ALso this exception cannot be used to make otherwise inadmissible evidence admissible - like bad character.

Answer 114

Fear is widely construed — includes fear of death, injury, or financial loss (to self or others). Must ALSO consider whether admission is in the interests of justice, considering: * Statement’s contents, * Risk of unfairness, * Possibility of using special measures (YJCEA 1999 s.19), * Other relevant circumstances. Standard of proof here to show witness does not testify due to fear (for P to show): criminal standard, meaning beyond reasonable doubt. Note also : if intimidation by D can be proved or highly probably, CANNOT complain that their fair trial rights were infringed by absence of cross-examination. Also caselaw is conflicted as to whether should call witnesses in to test whether fear is genuine: * Earlier caselaw said not appropriate * Later caselaw said should def call in to check ## Footnote Also note - no requirement that fear was caused by defendant !! (If used by D - would be balance of probabilities.) Court needs to grant **leave** before this evidence can come in !! Must also consider whether special measures should be put into place (eg screen, video link, etc.)

Answer 115

When oral evidence of the matter would be admissible and the following requirements are satisfied: * The document was created or received in the course of a trade, business, profession, or occupation. * The person supplying the information had (or could reasonably be supposed to have) personal knowledge of the matters. * Each person through whom the information passed did so in the course of business. NOTE : have extra requirements for docs that were prepared pending or contempating criminal proceedings (such as witness statements, or police notebook entries during investigations), only admissible if also: * One of the unavailability of witness conditions is met, OR * The maker cannot reasonably recall the matters stated (e.g., due to time elapsed). ## Footnote So this is pretty wide definition for business docs, extends to include some docs that would normally not be considered as business docs, such as: * medical records * police notebook entries or written statements made in course of duty

Answer 116

Courts can: Exclude business documents if their reliability is doubtful based on: (a) Contents, (b) Source, (c) Circumstances of supply or receipt, (d) Circumstances of document creation or receipt.

Answer 117

Allows admission of hearsay where court is satisified that it is in interests of justice to do so. Factors to be considered here: (a) Probative value of the statement. (b) Availability of other evidence on the same issue. (c) Importance of the matter in the overall case. (d) Circumstances of the statement. (e) Reliability of the maker. (f) Reliability of evidence of making the statement. (g) Whether oral evidence could be given and why not. (h) Difficulty in challenging the statement. (i) Likely prejudice caused by that difficulty. ## Footnote HOWEVER ! note that this exception should NOT be used to get around other statutory provisions: * Eg: A witness unwilling to attend court due to trauma from sexual assault — this reason falls outside s.116 (unavailable witness), so interests of justice exception cannot be used to admit their statement. Also, cannot be used to fix failures by party seeking to admit evidence.

Answer 118

* When the witness admits making them, or * It is proved they made them. They are admissible as substantive evidence, not merely to discredit.

Answer 119

* To rebut an allegation of recent fabrication (s.120(2)); or * As recent complaint evidence in sexual offence cases (s.120(4)). They are admissible as evidence of the truth of their contents.

Answer 120

* public information * Reputation * Res gestae * Confessions * Common enterprise * Body of expertise ## Footnote Note confessions still need to meet definition of confession (wholly or partly adverse to maker... so if spouse saying husband said it - not a confession, since not adverse to her, just adverse to husband.)

Answer 121

* Published works of a public nature (e.g., dictionaries, maps); * Public documents (e.g., registers, court records, treaties); * Statements of personal age or birthplace (even if learned from others).

Answer 122

Admission of evidence of reputation as to character — to prove a person’s character — preserved by s.118.

Answer 123

When the statement was made either: 1. Under the stress of an event (so concoction/distortion unlikely); 2. Accompanying an act needing context; OR 3. Describing a physical or mental state. Leading case: R v Andrews [1978] AC 281 — the statement must be an instinctive reaction to a startling event, made while the mind was still dominated by it. ## Footnote In practice, used often in domestic violence cases : statements in 999 calls or immediate statements to police (often recorded on body-worn cameras) are typically admissible as res gestae if spontaneous and reliable.

Answer 124

Statements made by one party in furtherance of a joint criminal enterprise are admissible against all participants.

Answer 125

An expert witness may rely on the accumulated learning or literature of their field — even if they did not personally create it.

Answer 126

Only if: a) Either statement is admissible under business doc exception or previous statements - either inconsistent or consistent - of a witness, b) All parties agree; or c) The court finds the value of the evidence so high that the interests of justice require admission. Note: Multiple hearsay CANNOT come in via unavailable witness exception OR any preserved common law exceptions.

Answer 127

The opposing party may adduce any evidence that could have been used in cross-examination, and even matters that would otherwise be final. ALSO: if the case depends wholly or partly on hearsay that is so unconvincing it would make conviction unsafe, the judge must: * Stop the case; or * Direct the jury to acquit. Judge also has discretion to exclude it if there is danger of undue waste of time, which substantially outweighs the value of the evidence.

Answer 128

Notice required for hearsay under: * interests of justice; * unavailable witness * document prepared for criminal proceedings * multiple hearsay (so no notice required for common law exceptions, business docs which are not prepared for criminal proceedings, and previous statements). `Notice should:` a) Identify the evidence; b) Set out facts making it admissible; c) Explain how disputed facts will be proved; and d) Explain why it’s admissible. Attach the evidence if not already served.

Answer 129

* Prosecution: within 20 business days after a not-guilty plea in the magistrates’ court, or 10 business days in the Crown Court. * Defence: as soon as reasonably practicable.

Answer 130

Serve an application within 10 business days after service of the notice or evidence, explaining: a) Which facts are disputed; b) Why it’s inadmissible; and c) Any other objection.

Answer 131

* It was not given on oath; * It was not tested in cross-examination; * They must treat it with care and assess its reliability. Where appropriate, the judge should highlight weaknesses or risks of relying on it.

Answer 132

✅ Admitted if: * unavailable witness * business document * common law exceptions * previous consistent or inconsistent statements * interests of justice 🚫 Excluded or limited if: * Unreliable business document; * Unconvincing evidence; * Superfluous or waste of time; * Unfair under s.78 PACE. ## Footnote (Note interests of justice is kind of like catch all, last resort, need to go through all the rest before using that.)

Answer 133

Fear only !! (Not a big difference because still making application to court for the other ones, this is just the specific wording unique to the fear exception.)

Evidence Flashcards

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