#10409 - Application To Dismiss S78 Abuse Of Process Sncta - BPC Criminal Litigation (formerly BPTC) 2024/2025

CONSIDERING EVIDENCE

APPLICATION TO DISMISS CHARGES ref: SGS 2

The application

• D may apply orally OR in writing to CC for charges to be dismissed

• CC only

• when can application be made?

  • after service of documents on which charges based but before arraignment

• the test

  • judge must dismiss charge (+ quash count in indictment) if evidence against D NOT sufficient for him to be properly convicted

Procedure

• must give written intention to apply if wish to make oral application

• written intention / written applications

  • not later than 14 days after service of documents containing evidence on which charges based

  • copy must be sent to pros and co-D

  • CC may extend on application in writing

• pros application for oral hearing

  • may apply to CC not later than 7 days after receive written application

  • pros serve any evidence in reply within 14 days

• if charge dismissed, further proceedings only by voluntary bill of indictment

• D cannot JR decision of CC not to dismiss

ABUSE OF PROCESS (outline only in mags' and CC)

The test

• abuse of process = something so unfair and wrong the court should not allow the prosecutor to proceed with what is in all other respects a regular proceedings

• = abuse of process if defence prove to balance of probs:

1. D cannot receive fair trial; OR

2. would be unfair for D to stand trial

• N.B. mags' only have jurisdiction to deal with (a) - if ID ground (b) must refer to CC / HC

Examples of abuse of process

1. lengthy delay which causes prejudice to the accused;

2. failure to honour an undertaking given to the accused;

3. failing to secure evidence or destroying evidence;

4. tactical manipulation or misuse of procedures in order to deprive the accused of some protection provided by the law, or taking unfair advantage of a technicality;

5. entrapment;

6. abuse of executive power

Procedure for making abuse of process applications

1. written notice to pros, co-D and court at least 14 days before trial

   • notice must

     • specify nature of application; AND

     • set out grounds upon which it is made

2. A's advocate must serve skel on court and other parties at least 5 working days before application due to be heard

3. prosecution advocate must serve responsive skel at least 2 working days before hearing

4. effect: proceedings stayed

EXCLUSION OF EVIDENCE

Common law discretion to exclude prejudicial evidence

• judge may exclude if prejudicial effect outweighs probative value

• application

  • only applies to pros evidence

  • applies before AND after evidence admitted

s78 PACE (see SGS 6 - confessions and illegally / improperly obtained evidence)

• the discretion

  • s78(1) - 'the court may refuse to allow evidence on which the prosecution propose to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it'.

• application

  • applies to pros evidence only

  • only applies before evidence adduced

• common types of evidence s78 used to exclude

  • confessions (see SGS 6 - confessions and illegally / improperly obtained evidence)

  • breaches of PACE codes of practice

    • must be significant and substantial to engage s78

    • NO requirement for bad faith, BUT police bad faith usually enough

  • ID evidence

  • evidence of illegal search

Procedure for objecting to evidence

1. defence tells pros of objection before pros opening, so pros doesn't mention evidence

2. when admissibility considered, jury withdraw judge considers matter alone

3. voir dire / trial within trial (NOT always)

   • hold if disputed preliminary facts i.e. those which must be established as a condition precedent to the admission of certain items of evidence

   • function: allow tribunal of law to decide point of law in absence of tribunal of fact

   • pros + defence can call Ws and evidence relevant to admissibility

   • when is a voir dire required?

     • CC - must hold if determining whether to exclude confession under s78

     • mags' - tribunal of fact + law same if need voir dire, consider whether different bench should hear substantive hearing

4. pros + defence make representations on admissibility

5. judge:

   1. announces findings on any factual issues on voir dire

   2. rules on whether disputed evidence admitted

6. jury return to court

   1. if evidence inadmissible, jury don’t find out

   2. if admissible, defence can XX on disputed evidence, but goes to weight NOT admissibility

SUBMISSION OF NO CASE TO ANSWER

The test (R v Galbraith)

1. limb 1: no evidence to prove an essential element in alleged offence

2. limb 2: the evidence is so weak because of its improbability, inconsistency or unreliability that no reasonable jury properly directed could safely convict

   1. Q = whether W lying - usually for jury unless inconsistencies so great any reasonable jury would conclude that W lying

   2. ID cases - succeeds if uncorroborated poor ID evidence

   3. confession cases - succeeds if pros case depends wholly on confession of mentally handicapped D AND confessions so unconvincing no reasonable jury would convict

   4. inferences from circumstantial evidence - Q is whether reasonable jury could draw inference pros requires

Effect

• successful - mags' return NG verdict OR judge directs jury to enter NG verdict

• unsuccessful - trial continues

Procedure on submission of no...