#16088 - Considering Evidence - BPC Criminal Litigation (formerly BPTC) 2024/2025

Considering Evidence

Excluding Evidence or seeking to stop a case

• Often necessary to make or respond to a legal application to exclude evidence.

• Sometimes, depending on importance of the evidence, a successful application can result in the case coming to an end.

• And there are methods of applying to stop a case where:

  • it could be unfair or legally improper for it to continue;

  • where there is insufficient evidence in support of charges.

• Principal ways of excluding evidence and/or seeking to bring prosecution case to an end:

1. Applications for dismissal (cases sent to Crown Court; pre-trial; after evidence served; before arraigned)

   1. For cases sent to Crown Court

   2. Pre-trial application made after evidence is served, and before arraignment

   3. Must be made within 28 days of being served with Prosecution eivdence

   4. Test: the evidence against the applicant would not be sufficient for him to be properly convicted’.

2. Submissions of no case to answer (at close of prosecution case)

   1. Only available during trial at close of prosecution case

   2. Galbraith test:

      1. (a) (first limb) there is no evidence that the crime has been committed by D

      2. or (b) (second limb) where the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it.

3. Abuse of process applications

   1. An application to stay the indictment where either:

      1. (1) D cannot have a fair trial or

      2. (2) continuing prosecution offends the court’s sense of justice and propriety OR would undermine public confidence in criminal justice system and bring it into disrepute.

   2. [only first limb in magistrates court]

4. Applications to exclude evidence under s78 PACE

   1. Main provision for excluding evidence, can be used only for prosecution evidence

   2. (1) in any proceedings the court may refuse to allow prosecution evidence if it appears to the court that, having regard to all the circumstances, including 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’

5. Applications to exclude confessions under s76 PACE

   1. Often using in conjunction with s78

6. Applications to exclude evidence under preserved common law provisions (s82(3) PACE)

   1. Largely suspended by 78, rarely used

   2. (a) discretion to exclude any admissible evidence which is likely to have a prejudicial effects which outweighs its probative value.

      1. This includes the discretion to exclude evidence if it is necessary in order to secure a fair trial for the accused.

(a) Applications to dismiss (of offences sent for Crown Court to trial)

• = a pre-trial application to have charges against D dismissed, for cases sent to Crown Court.

• Such an application be made:

  • (1) only after a D is sent by m’ court for trial to Crown Court;

  • (2) only after the D has been served with the evidence relating to the offence;

  • (3) only before he is arraigned (i.e. the offence is put to him and he pleads guilty or not guilty).

• Must be within 28 days of D being served with evidence.

• Power to make application –Sch 3 CDA 1998

• Procedure in CrimPR 9.16:

  • Accused apply in writing within 28 days after service of prosecution evidence;

  • Must be served on prosecution & any co-accused.

  • Application must:

  • explain why prosecution evidence would not be sufficient for D to be properly convicted;

  • ask for a hearing, if accused wants one, and if so;

  • identify any witnesses accused wants to call

  • Identify any material accused thinks will be needed to determine the application.

  • If prosecution wishes to oppose application, must service notice to that effect within 14 days of accused’s notice, explaining: grounds of opposition, why is a hearing is needed (if wanted), any witnesses, any relevant material.

• Application is made to a Crown Court judge

• Can apply orally or in writing to the crown Court:

  • IF D wishes to make an oral application: he must give written notice of that intention.

• Court may determine the application at: a hearing (in public or private) OR without a hearing.

• The TEST for dismissing the charge, Sch 3 para 2(2) CDA: “The judge shall dismiss a charge (and accordingly quash any count relating to it in any indictment)…if it appears to him that the evidence against the applicant would not be sufficient for him to be properly convicted’.

• [[R v Thompson & Hanson]] This amounts to the : this is essentially same test as Galbraith test or ‘no case to answer’: i.e. that judge should stop case if:

  • (a) (first limb) there is no evidence that the crime has been committed by D

  • or (b) (second limb) where the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it.

• R (Inland Revenue Commissioners) v Crown Court at Kingston, Div Court: a judge considering an application to dismiss must take into account the whole of the evidence, and not view matters in isolation from the context or other evidence;

  • Judge is not bound to assume that a jury would make every possible inference capable of being drawn against the accused;

  • but, where the prosecution seeks inferences to be drawn from the evidence the judge should assess whether such inferences could properly be drawn by the jury.

  • [[NB, R (Snelgrove) v Woolwich Crown Court: the court in Kingston should not have entertained the application of JR, but it is submitted that the Div Court’s ruling about the test to be applied nonetheless remains valid]].

(b) Submissions of No Case to Answer

• only available: during a trial & after prosecution has presented all its evidence:

• D can submit, at close of prosecution evidence, that there is no case to answer to any one or all of the charges faced by D.

• Application can be made in m’ court and Crown Court

• [D22.52]: Procedure in Crim PR (for m’ court AND Crown Court, both in PR):

  • At conclusion of prosecution case, on the D’s application OR on court’s own initiative, the court:

    1. may acquit on ground that prosecution evidence is insufficient for any reasonable court properly to convict;

    2. Prosecution must be given chance to make representations (unless the application is dismissed without need to hear such representations).

  • So test is ‘no reasonable court could properly convict’: note that the decision depends not on whether the justices [in m court] would at that stage convict or acquit; but on whether the evidence is such that a reasonable tribunal might convict.

  • [[this test is taken from Galbraith, no material difference]]

• NO REASONS required for rejecting submission: There is no obligation in m’ court OR Crown Court for reasons to be given when rejecting a submission of no case to answer.

• R v Galbraith, Lord Lane CJ, following principles [NB, Galbraith refers to ‘jury’, but the principles also apply to summary trial in m’ court]]

1. (first limb) If there is no evidence that the alleged crime has been committed there is no difficulty, judge will stop the case.

2. (second limb) Difficulty arises where is some evidence, but is of a tenuous character, eg because of inherent weakness or vagueness, or because is inconsistent with other evidence.

   1. Where judge comes to conclusion that the prosecution evidence, when taken at its highest, is such a jury properly directed could not properly convict upon it -- > it is his duty, upon a submission being made, to stop the case (i.e. judge MUST then stop the case).

   2. Where, however, the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to conclusion that D is guilty the judge should allow the matter to be tried by the jury.

• Application under first limb Galbraith:

  • Where no evidence, will be no difficulty.

  • Eg where a witness accepts that the person who committed the offence is not the person in the dock.

  • Assuming there is no other prosecution evidence available there is no evidence that D committed the offence, case will be stopped.

• Second limb Galbraith: where some evidence, but its integrity is questionable; judge/magistrates will have to consider whether that evidence, taken at its highest, is such a conviction can be properly founded on it.

  • Eg, where witness has given inherently weak/ vague/ contradictory evidence;

  • or where credibility of witness is open to question.

• Issue of Credibility of prosecution witnesses (generally, where the submissions relates to credibility of a witness, should not grant application of no case to answer, is a matter for tribunal of fact) [D22.53] to what extent this is a consideration when considering submission of no case to answer?

  • On the whole, under Galbraith test, questions of credibility should generally be left for the jury/tribunal of fact.

  • In general, issues of credibility are matters for the tribunal of fact (jury/magistrates) to weight up in reaching a verdict, and will not normally result in a case being stopped.

  • Barking & Dagenham Justices, ex p DPP, Div Court: questions of credibility should not normally be taken into account by justices considering a submission of no case, except in the clearest of cases.

  • In m’ court, some justices may take the pragmatic view that it would be inappropriate for them to go through the motions of hearing defence evidence if they have already formed the view that the prosecution evidence is so unconvincing that they will not be able to convict on it in any...