1
Q
Methods of evidence other than live evidence
i.e ways of ‘proving a fact’
A
- agreeing WS as true by consent of the parties
- agreeing any fact between the parties
- judge/ jury take judicial notice of the fact
2
Q
What is proving a fact?
A
other than calling live evidence
3
Q
What happens when a WS is agreed as true by consent of the parties?
A
- written form
- read out and carries same weight as if delivered in person
- must be no challenge (if disputed then witness must be called orally)
4
Q
How is fact agreed between the parties?
A
writing, both parties (lawyers) agree and sign
5
Q
What is judicial notice?
What can jurors not do?
A
judge or jury permitted to take judicial notice of a fact on enquiry i.e look up the answer
e.g well known fact
Jurors cannot do own research
6
Q
What can jurors not take judicial notice on?
A
personal matters that they happen to know but are not generally known
if they have personal knowledge they should let the court know!
7
Q
What is real evidence?
A
Objects/ things brought to court for inspection
can be in documents that are exhibited by W who can vouch
8
Q
What is direct evidence?
What is circumstantial evidence?
A
Direct - from a witness’ direct experience
Circumstantial - facts are inferred from something else known
9
Q
What is ‘a view’?
A
Juries visit scene of the crime or leave court to view an object
observations = evidence in the case
10
Q
Evidence must be ……. to be admissible
A
Relevant
does it prove or disprove a fact in issue?
irrelevant = inadmissible
11
Q
Who determines the degree of weight on evidence at trial?
A
Jury
judge may intervene if VERY poor quality evidence
12
Q
What is a strong reason for D to prefer trial in CC?
A
Tribunals of fact and law and separate
jury will never hear of the evidence if the judge has already ruled inadmissible in a previous application hearing
13
Q
What can the judge not do?
A
strike out a criminal offence or decide if a defence is made out
only direct jury the legal test cannot be satisfied on the facts = jury bound to conclude not acting in SD
ultimate decision of if defence made out is a fact for the jury
14
Q
What is ‘sure of guilt’?
A
Modern way of saying beyond reasonable doubt
15
Q
What is the evidential burden?
A
matter for judge - has evidence been presented on an issue or fact before the jury that could prove that issue or fact?
basically can you get passed the judge?!
16
Q
When is the burden placed on the defence?
A
Active case e.g insanity or DR
17
Q
When can self defence be put before a jury?
A
Defence puts forward some evidence
if judge is satisfied = prosecution must then disprove self defence
18
Q
Burden of proof on defence when raising an active defence?
A
balance of probabilities (over 50%/ more than likely?)
DR - evidential and legal burden
SD - only evidential burden
19
Q
Who must disprove duress? to what degree?
A
Prosecution
beyond reasonable doubt
20
Q
Who must disprove an alibi?
A
The prosecution
21
Q
What is the legal burden?
What is evidential burden?
A
Prove an element of the case to a prescribed standard
Raise evidence which passes the judge
22
Q
What is an application for dismissal?
A
Pre-trial application to have the charges dismissed
23
Q
When can an application for dismissal be made?
A
- after send from mags to CC
- after served with evidence
- before D is arraigned (prea)
24
Q
Who hears an application for dismissal?
What if D wants to make an oral app?
A
CC judge
D must give written notice of intention
25
What is the test for dismissing a charge?
appears the evidence would not be sufficient for D to b properly convicted i.e
**Gablraith**:
- no evidence the crime was committed by D
- prosecution evidence, taken at its highest is such that no properly directed jury could properly convict
MUST LOOK AT WHOLE EVIDENCE not just in isolation
26
What cannot happen with applications to dismiss?
Cannot be subject to judicial review !!
27
What is submission of no case to answer?
Where?
After prosecution submitted evidence D can submit no case to answer on all or or some or one of charges
mags or CC
28
What is the test for no case to answer?
**Galbraith:**
1. no evidence that the crime has been committed by D
2. some evidence but it is weak / inconsistent
a. judge must decide if the evidence taken at its highest, could a properly directed jury convict? no = stop case
b. where evidence depends on witness reliability... or matters for a jury & evidence that a jury could find D guilty = continue case
29
Who hears an application of no case to answer?
What happens if successful or unsuccessful?
CC - judge ONLY
successful = jury informed and instructed to give NG verdict
unsuccessful = jury not informed
30
Who decides issues of credibility (witness)?
what usually happens?
jury / magistrates (matter of fact)
not normally result in a case being stopped on a submission of no case to answer
31
What can happen after submission of no case to answer?
court may acquit on the ground evidence is insufficient to properly convict BUT
prosecutor must have opportunity to make representations
*courts do not need to give reasons for rejecting!!*
32
When can an application for abuse of process be made?
unfairness/ impropriety SO fundamental
1. impossible for accused to receive a fair hearing (trial process)
2. unfair to try/ put someone away and a stay is necessary to protect integrity of justice system = **last resort remedy**
a proportionate alternative?
33
What happens if the first limb of the abuse of process test is met?
i.e cannot receive a fair trial
stay of proceedings = stopped
34
What happens if the second limb of the abuse of process test is met?
Court will only stay proceedings if in all circumstances a trial will offend justice and proprietary / undermine public confidence
35
Examples of when is an abuse of process application used?
- D tricked or coerced into committing an offence would not have committed
- prosecuted despite a promise from prosecution that will not be
- police have acted in a way e.g destroyed evi
- prosecution has manipulated/ misused process of court = deprived D of protection by law e.g right to legal rep
- delays by prosecution e.g inefficiency/ no reason for delay causing prejudice to D
36
What the remedy for an application for abuse of process?
i.e what is the application for?
to **stay** proceedings = case cannot proceed
37
What is the burden of proof for abuse of process?
balance of probabilities
Defendant
38
Which courts deal with abuse of process?
Crown (usually)
can be mags only if D is unable to have a fair trial
39
What happens if D wants to make an application in mags court on the ground of integrity of justice system? (abuse of process)
Cannot - must apply to divisional court for JR
40
What is the common law power to exclude evi?
What evidence does it apply to?
Court's discretion to exclude if it is necessary to secure a fair trial
only prosecution evidence can be excluded
s82 PACE *(rarely used in practice)*
41
What happens if there will be unfairness from a piece of evi introduced by co -D?
D can apply to be tried separately
42
What is s78?
What does it apply to?
in all the circumstances, the admission of evidence would have such an adverse effect on proceedings it ought not to be admitted - *has there been bad faith from the police?*
ONLY EVI THE PROSECUTION SEEKS TO RELY (so cannot be used to dismiss evi brought in by D)
43
Common scenarios s78 is relied upon?
evi obtained unlawfully, improperly or unfairly
e.g breach of ECHR or PACE/ Code of Practice
- right to legal adv improperly denied
- waiver of right to legal advice was not voluntary, informed or unequivocal
- failure to caution
- no appropriate adult (minor/vulnerable)
- ID procedures not followed
44
What is s76?
exclude confessions which the prosecution will seek to rely (often used alongside s78)
45
What codes are likely to be relied upon under s78?
A - stop & search
B - entry, search & seizure
**C - detention, treatment & questioning non-terrorist subjects e.g right to free solicitor/ someone informed/ questioned at police station**
D - identification
E - audio recordings of interviews
F - visual recordings with sound
G - arrest
H - terrorist suspects
46
What must a breach of s78 be to exclude evi?
significant and substantial
(regard to the case and conduct of the police **on the whole**)
Q - what is the effect? unfair on proceedings?
47
When can a s78 application be made?
When **should** it be made?
- before trail (pre-trial hearing)
- commencement of trial
- just prior to prosecution seeking to admit evidence
SHOULD be made before that evidence is presented
48
When is it more appropriate to deal with a s78 application at a pre-trial hearing/ before commencement?
If evi were excluded the prosecutions case would collapse
usually before jury sworn in CC
49
When should a s78 be included in defence statement?
point of law is clear from case papers or ID
50
Who addresses court first in s78 application?
Defence
51
What is a trial on the voir dire?
If the facts surrounding the exclusion of evidence are disputed the judge will need to make a decision on this before deciding the law (i.e s 78)
trial within a trial
no jury
52
When should a disputed confession be deal with in mags?
If it forms the main evidence against D, it should be dealt with early enough to allow D to know if it will form part of the case i.e **preliminary issue**
therefore can submit no case to answer if excluded
53
What happens when an application is under both s76 and s78?
Voir dire should be held as a preliminary issue
54
What is a confession?
examples?
Any statement wholly or partly adverse to the person who made it, whether made to an authority or not
can be words or otherwise
- unequivocal confessions
- mixed statements
- gesture
55
Grounds under s76?
a) oppression
b) anything said or done which is likely to make a confession unreliable
must be represented to court by D
56
What can the court do under s76?
Even if the defence do not raise s76 - can require prosecution to prove the confession was not due to oppression/ unreliability
BOP on prosecution beyond reasonable doubt
57
What is oppression?
- torture
- inhuman degrading treatment
- threat of violence
can consider the character of the accused - oppression is subjective to them!
58
What happens if prosecution cannot prove BRD a confession was not obtained without oppression?
must be excluded
59
What happens if prosecution can prove BRD a confession was obtained without oppression?
defence can still try to discredit at trial - obtained by oppression - therefore unreliable
for jury to decide
60
What is the approach for s76 unreliability cases?
1. identify the thing said or done e.g a promise / threat / failure = **usually breach Code C**
2. is this ^ likely to render **any** confession unreliable? (objective = not just that specific confession)
3. has prosecution proved BRD that confession was not obtained this way? (Q of fact for the **judge**)
61
What does unreliable mean?
examples?
Is it likely untrue?
- deprivation of sleep
- failure to caution
- denied access to legal advice
62
What happens to **other fact evidence** discovered as a result of a confession which is excluded under s76?
facts discovered - can still be relied upon in evi
**but cannot say to jury this has been obtained by something said by D i.e the confession**
63
What happens to **speech, writing or expressions** discovered as a result of a confession which is excluded under s76?
can still be relied upon e.g to show how the suspect spelt
64
How can confession evidence be excluded?
s76 **or** s78 (can us both together)
s78 is broader = more protection if s76 fails
e.g if there is a breach of article 6 ECHR
65
What will usually be excluded as evidence?
significant and substantial breaches of the 'verballing' provisions of Code C
- record of interview
- suspect opportunity to read record of interview
- sign if D agrees correct
- make clear any parts D disagrees with
66
What should happen if a suspect confesses at interview outside a police station?
- record of confession made. an signed by D at the time
- suspect asked to read and sign it is correct or how it is inaccurate
- put to D again at commencement of interview (to confirm or deny)
67
What factor will the court consider when deciding whether to exclude evidence?
a breach in bad faith by the police
68
When should the defence give notice of a possible s76 or s78 application? (confession)
next steps?
Defence statement
nb - mandatory in CC
at PTPH or further hearing the court will set time limits for exchange of skeletons in support/ opposition (CC)
69
When must a defence skeleton argument in support be filed in mags? (exclusion of evi application)
response?
10 business days **before trial**
prosecution response 5 business days after
in the Mags Preparation for Effective Trial Form
70
What should happen if the prosecution is on notice the defence are challenging admissibility of evi? i. from defence statement
prosecution should not adduce that evidence before the court or refer in opening speech
71
When is an application under s76 or s76 & s78 dealt with in mags?
preliminary issue i.e before trial
CC hear evidence from both sides to resolve matter before trail
72
When is an application under s78 dealt with in mags?
mags can hear all evidence in usual way and decide on admissibility at a later stage !!!
this is acc so bad wtf
73
What happens if a judge fails to resolve dispute facts in a voir dire?
Ruling on evi likely quashed
would be impossible for judge to determine prosecution have discharged BOP BRD
74
when is a voir dire necessary?
CC - application made under s76 or s76 & 78 and the **evidence/ facts are in dispute**
(mags = still voir dire but same DJ/ lay mags)
e.g if the prosecution admit the breaches DID occur - i.e the facts - no need for voir dire can decide in open court
75
General rule on hearsay?
hearsay is inadmissible
*subject to exceptions*
why - cannot be tested by cross examination in open court = risk of unfairness to D and therefore breach of **art 6**
76
Under s114 of CJA 20003 when is hearsay evidence admissible?
- any other part of CJA apply
- common law (rule of law s118) apply
- all parties agree
- court satisfied it is in interests of justice
77
What is s115 CJA - hearsay?
only hearsay if it is adduced to prove the truth of something the maker intended to assert i.e a particular fact
78
What is the test to determine hearsay?
1. Identify the **fact** it seeks to prove
2. Is there a **statement about that fact** in the communication?
3. Is one of the purposes of the maker that the recipient (or any other person) **believe or act upon it as true**
yes = hearsay
79
Examples that are not hearsay?
- private diary
- CCTV (because must be made by a person)
- questions
*example - text messages asking for drugs = not hearsay because no statement*
- to show an effect of words e.g revealing solicitors advice to show why answered no comment
- legally significant words e.g do they show a definition is met?
- falsehoods e.g saying it is not true
ALL of the above = admissible in evidence
80
What is original evidence?
Is it admissible?
Showing that words were spoken rather than that they were true
yes
e.g threats
nb - can be used to show state of mind of maker
81
Definition of hearsay
statement made out of court
person who made intended another to believe it
adduced as evi of the matter stated (i.e the issue in dispute)
82
Exceptions to hearsay in the CJA 2003:
- witness unavailable (s116)
- business document (unless reliability is doubtful
- interests of justice s114(d)
83
What are the requirements of s116 CJA? (witness is unavailable)
- maker must be identified
- does not allow evi that would not be admissible as live evi e.g bad character
84
examples of witness being unavailable? s116
- **unfit** (physical/ mental ability to give evi - can be trauma but must be medically certified)
- **outside UK & not reasonably practicable to secure attendance / witness cannot be found** (normal steps should be taken, consider cost, video link applies)
- **fear** (police cannot say their statement will be read if the are too afraid to attend!!) must be a causative link between fear & not giving statement (does not need to be fear caused by D)
- **intimidation** (where proved by court or v likely to happen D cannot argue art 6 has been infringed for no cross-examination)
**NB - cannot be just unwilling to attend**
85
what documents are covered by the business document exception?
medical records
statements written by police in course of duty
86
when are documents prepared for purpose of proceedings admissible?
- s116 applies e.g unfit/ cannot be found
- person cannot reasonably be expected to recall matters in the statement (length of time)
nb - generally all WS/ entries in police notebooks
87
When can hearsay be excluded under the court's discretion?
reliability is doubtful in view of:
- its contents;
- the source of the info
- the way/ circumstances the info was supplied or received
- the way/ circumstances the doc was created or received
88
What is considered to decide if evidence should be admitted under the IoJ test? s114
- probative value in relation to a matter in proceedings / how valuable to understanding other evidence in the case
- what other evi has been or can be given
- how imp the matter or evidence is in the context of the case as a whole
- circumstances the statement was made
- how reliable the maker appears
- how reliable the evidence of making the statement is
- can oral evi be given? if not, why not?
- how difficult would it be to challenge?
- the extent which the difficulty would prejudice D
CANNOT BE USED AS A FALL BACK PROVISION
89
What are the common law exceptions to the rule on hearsay?
- public information (i.e published docs)
- evidence of reputation
- res gestae (no possibility of concoction due to emotional state - instinctive reaction) - domestic violence cases 999 calls!
- confessions
- statements to further a criminal enterprise
- body of expertise
90
What are the statutory exceptions to hearsay?
previous statements
- previous **inconsistent** statements a witness admits to making or is proved to have made
- previous **consistent** statements e.g to rebut a suggestion of fabrication
91
When is multiple hearsay admissible?
- admissible under court discretion or previous statements
- all parties agree
- value is so high that it is in IoJ
92
When is **multiple** hearsay NEVER ALLOWED?
- s116 e.g unfit, fear, intimidation
- any of the common law exceptions e.g res gestae, confessions, pubic info, body of expertise
93
What happens to credibility of the statement maker in hearsay?
can be challenged by putting in evidence that would have been used in cross-exam
94
When can a judge stop a case? (hearsay)
options to judge?
the case depends wholly/ partly
evi is so unconvincing
conviction would be unsafe
judge - discharge jury, order retrial, direct acquittal
95
What can a judge do if evidence would result in a waste of time?
"superfluous hearsay"
exclude - can apply to evi from prosecution or D
96
What must the jury be told about hearsay?
not given in oath and not tested in cross-examination
risk of relying
if court has concerns on a particular hearsay - the jury's attention should drawn on the limitations
97
When does a party need to serve a notice of intention to rely on hearsay?
- s114 (IoJ)
- s116 (witness unavailable)
- s117 (doc prepared in contemplation)
- s121 (multiple hearsay)
98
When must notice to rely on hearsay contain?
- identify hearsay
- set out the facts that makes hearsay admissible
- explain how this will be proved if disputed
- why evi is admissible
evidence must be attached if not already given
99
When must prosecution/ defence serve notice of intention to rely on hearsay?
20 BD after NG plea in mags
10 BD after NG plea in CC
defence must serve as soon as reasonably practicable
100
What happens if a party objects to hearsay?
serve application on court and every other party as soon as reasonable practicable & in any event no more than 10 days after any of the following....
- service of notice
- service of evidence (if no notice is required)
- D pleads NG
whatever happens LAST
101
what must an application to oppose hearsay include?
- what facts are disputed
- why it is not admissible
- any other objection
102
When should a Turnbull direction be given?
When the case **wholly or substantially** on correct visual ID
i.e where there is dispute over a witness ID after a formal ID procedure
103
What is a Turnbull direction?
caution to the jury for conviction in reliance on a ID verification when the case depends on:
- correctness of the identification of the accused
- the defence alleges it is mistaken
104
What should be included in an ID verification direction to the jury?
3 parts
1. instruct jury that **mistaken witnesses** can still be convincing
2. direct to **examine circumstances** the ID was made by each witness
3. remind of any **specific weaknesses** in ID evi
105
What else should a tral judge direct the jury when giving TD direction?
i.e what is not included in the 3 parts
is there any other evidence to support the identification being correct?
should direct the jury what evidence is AND what evidence is not
106
Examples of evidence which is supporting the identification?
- scientific evi e.g footwear/ telephone
- (sufficient) multiple identification by different witnesses
- bad character / prev convictions
- silence at interview - adverse inf
- admissions
107
When should a judge stop the case? (ID evi)
ID evi is poor and unsupported (by one of the examples)
- quality?
- supporting evi?
108
How does a judge assess quality of witness evi?
- lighting
- distance
- length of time witness saw
- witness themselves .g eyesight
109
How does a judge direct a jury to examine the **circumstances** of the ID evidence?
- how long witness saw the suspect & how long they saw their face
- distance between witness and suspect
- lighting
- interferences - physical obstruction? what was going on at the time?
- witness seen D before? how many times?
- length of time between observation and ID procedure
- significant difference between description and the defendant?
110
Acronym for assessing ID evi strength and weaknesses?
A - amount of time observed
D - distance
V - visibility
O - obstruction
K - known or seen before?
A - any reason to remember?
T - time lapse
E - error or discrepancy in description
111
What should a judge do if the quality of ID evidence is poor AND there is no other supporting evidence?
withdraw case from jury and direct an acquittal
112
What should a judge do if ID evidence is poor and there is some supporting evidence?
Can leave the jury to assess ID with the other evi
113
Who can permit a dock identification?
Trial judge has discretion
consider **prejudice** to the fairness of Ds trial
e.g in a case of recognition (where witness already knows suspect)
114
What is ID as a live issue?
1. D disputed ID evidence
2. ID evi is wholly/ substantially the only evidence implicating them
example - D disputes ever being at the scene the witness alleges to have seen them
115
What is bad character evi?
Evidence of misconduct **other** than evidence to do with the facts of this offence
OR
evidence of misconduct in an investigation or prosecution **other** than that offence
so basically cannot be to do with **this** case
116
Examples of bad character evi?
- prev convictions in UK
- prev convictions in foreign court of offences recognised in UK
- cautions
- acquittals where prosecutions contends that D was in fact guilty (can produce evidence from these trials!)
- agreed facts that amount to reprehensible behaviour (improper/ objectionable)
- witness evidence of reprehensible behaviour
117
When is evidence **not** bad character?
misconduct:
(a) relates to the alleged facts of the current offence, or
(b) is connected to the investigation or prosecution of the current offence e.g lying in interview / witness or jury tampering
^ do not need to rely on a gateway and is normal evidence admissible in court
118
What are the gateways for bad character evidence of the **defendant**?
s101 CJA 2003:
a = Agreement (no application needed)
b = Evi adducted by D
c = Imp explanatory evi
d = Imp matter in issue between D and prosecution
e = Imp matter in issue between D and and co-D
f = False impression
g = Attack on another's character
119
examples when D may adduce own bad character evi? (gateway b)
**nb - no permission of the court needed**
- come clean about an old conviction (to look better now)
- show never been convicted of an offence like this
- put forward defence e.g in prison at the time / committing another offence
- show why police may be bias towards their guilt
120
When is evidence important explanatory evidence?
When is it used? What is required?
(gateway c)
1. without it, court/ jury find it impossible / difficult to understand **other evi**
2. substantial value to understand **case as a whole**
used to show evidence of past misconduct by D relevant to the case
LEAVE OF COURT REQUIRED
121
what is an important matter in issue between D and prosecution?
when is it used?
(gateway d)
substantial importance in the context of the **case as a whole**
does previous conviction or misconduct fall within the **same category of offence**? = propensity !!
- sexual offences
- theft offences
LEAVE OF THE COURT REQUIRED
122
What is propensity to commit an offence?
gateway d - imp matter between D and pros = **propensity gateway**
*R V Hanson*
- does history establish propensity to commit same **kind**?
- does propensity make it **more likely** D committed that offence?
- offences are same description/ category - **unjust to rely**?
- would proceedings be **unfair** if evidence admitted?
123
Minimum number of previous convictions to establish propensity?
NONE
but the fewer = weaker evi of propensity
*single may show propensity towards behaviour*
124
When is it **likely unjust** to admit bad character evi?
no or little other evi against D
nb - safeguard to propensity
125
When else may prosecution seek to use gateway d? (imp matter in issue D and pros)
To support prosecutions case on identification
e.g submit bad character evidence to show it is the person a witness identified
distinctive modus operandi = a unique method/ operation (HOW they commit crimes)
126
When will D have propensity to be untruthful?
(gateway d) s103(1)(b)
- **D plead NG to previous offence** and D gave evi at trial the jury did not believe
OR
- the way the offence was committed was untruthful e.g fraud by false rep
NOT THE SAME AS DISHONESTY e.g theft offences
127
What happens with bad character evi if D is charged with multiple offences?
(gateway d)
Gateways apply to each separate offence to allow cross-admissibility
e.g evi from a witness given for one charge - must use gateway d to use as evi to prove propensity to commit another of the charges
128
Who decides if evi under gateway d shows propensity?
judge - decides if evi is **capable** of showing propensity
jury - decide if it **actually** shows propensity
LEAVE OF COURT IS REQUIRED
129
what is s101(3)?
when is it used?
ensures that previous convictions can only be relied upon after being properly proved
used when prosecution trying to show propensity
130
What is an imp matter in issue between D and co D?
what is required?
(gateway e)
substantial probative value to a matter between D and co D
LEAVE OF THE COURT REQUIRED
131
What does not apply to gateway e?
imp matter in issue D and co D
- fairness test does not apply (exclude if adverse effect on fairness of proceedings)
- s78 PACE (because it is not prosecution evi)
132
What is gateway f?
when can it apply?
correct false impression given by D e.g a false statement in interview
D can rely when prosecution produces evi which creates a false impression
LEAVE OF COURT REQUIRED
133
What can gateway g be used for?
(attack on another person's character)
admit evidence of DISHONESTY or anything to show D's poor character
why? - *the jury need to decide how likely D's attack on another person is to be true and their character*
LEAVE OF COURT IS REQUIRED
134
What gateways does the fairness test apply to? s101(3)
When does it apply?
(d) — Important explanatory evidence matter between D and pros
(g) — Where the defendant has attacked another’s character
**ONLY prosecution adduced evidence and ONLY BAD CHARACTER EVIDENCE**
judge **must** consider excluding if it would make the trial unfair
135
What should a jury be warned for bad character evi?
- **weight given** to the evi is a matter for them
- not place too much **reliance** (cannot bolster a weak case or prejudice jury against D)
- should not **conclude** guilt/ truthful on **previous convictions**
- **propensity is not enough** to show guilt
136
What should jury be directed if previous conduct that **did not result in conviction** is relied upon as propensity AND is disputed?
should not rely unless sure it is true
137
Who can adduce bad character evidence against non-defendant? s100
What is required?
any party
leave of the court unless all parties agree
138
When can non-defendant bad character evidence be introduced?
s100(1)(a) - imp explanatory evidence (without it could not understand other evi or substantial value to understand case as a whole
s100(1)(b) - substantial probative value in relation to a **matter in issue** and substantially important to the case as a whole
s100(1)(c) - agree between parties = no leave required
matter in issue = credibility or disputed fact
139
What does substantial mean for s100? (bad character evi - non-d)
evidence must be capable of having impact for way the jury assess evidence of a witness or case as a whole
misconduct:
- nature
- number
- how long ago previous offences were
140
When does s78 PACE NOT apply?
when does it apply?
when one defendant seeks to adduce bad character evi against another
**prosecution evi ONLY**
141
Which bad character safeguard is better to use for the defence?
fairness test s101(3) - because the judge MUST exclude
s78 = may exclude only
142
what can a judge do if bad character evidence is 'too old?
which gateway?
gateway d (propensity gateway)
can refuse to admit the previous conviction
can also refuse if admitting it would be unfair e.g minor or unsafe
143
What happens if bad character evidence is contaminated?
e.g external influence / info like social media
any time after close of case for prosecution
would make conviction unsafe
discretion to stop the case
s107
144
what is s110 CJA?
court must give reasons in open court for any ruling on bad character
145
What is s73 PACE?
D has been convicted or acquitted in the past (UK or EU)
must prove with **cert of conviction** from court where took place
*must be with evidence that it is that person*
146
what are s74 and s75 PACE?
s74 - if proved a person committed an offence in UK or EU then they have; unless **proved** otherwise = *discharged by convicted person proving on balance of prob*
s75 - documents about conviction can be submitted e.g charge sheet
147
What must a party do if they want to adduce bad character evi?
Non-D evidence = make an application (evidence about another)
Defendant evidence = give notice (evidence about D)
148
When does the prosecution need to serve notice of defendant bad character evi?
When does the defence need to respond?
mags - 20 BD after D pleads NG
CC - 10 BD after D pleads not guilty
response = 10 BD after notice of service
149
When does co-D need to serve notice of defendant bad character evi?
As soon as RP and not more than 10 days after prosecution discloses evi on which their notice is based
response = 10 BD after notice of service
150
What must be in a notice of defendant bad character evi?
- facts of misconduct
- explain how they will prove the facts (evidence) if they are disputed
- explain why evi is admissible e.g gateway
151
what should be in a response to a notice of defendant bad character evi?
- if any facts of misconduct are disputed
- if any facts of misconduct are admitted
- why evi not admissible (safeguards)
- why it would be unfair to admit (fairness test)
- any other objection
152
When must notice be served of non-defendant bad character?
mags & CC - as soon as RP or not more than 10 BD after prosecution discloses material on which application is based (if applicant is prosecution)
response - 10 BD after service
nb contents of notice and response are the same
153
How can the judge decide on bad character ruling?
public or private hearing
decision must be given at public hearing (can be in absence of jury)
154
When can extensions to time limits be granted for bad character evi?
*judge has discretion over time limits and notice*
can be granted extension after time limit has expired
155
In practice when are **notices** usually served for bad character evi?
prosecution proposes to adduce evi through gateways c or d
*others are likely to be done orally as a result of something said or done in the trial*
156
What do s101(1)(d) and s103(3) do together?
bad character evi:
previous offences (to show propensity) may be excluded by length of time since conviction i.e very old
OR
for any other reason it would be unjust to admit the evidence e.g minor, trivial, or very different, controversial or unsafe
Criminal Practice SQE2
flashcards
Decks in class (22)
# Cards
-
Intro (courts/trial)22
-
Professional conduct16
-
Syllabus offences9
-
Detention23
-
Suspect's rights16
-
Interviews10
-
Role of solicitor at police station17
-
Inferences10
-
Identification22
-
Commencing proceedings12
-
Bail49
-
First Hearings44
-
Disclosure38
-
Pre-trial matters26
-
Evidence156
-
Witnesses32
-
Summary trial13
-
Crown Court trial26
-
Sentencing39
-
Types of sentence37
-
Appeals64
-
Youths55
