#13605 - Evidence - Advanced Criminal Litigation

Advanced Criminal Litigation

Law of Evidence

Hearsay:

• Statement not made in oral evidence relied on as evidence of a matter stated within it s121(2)

• Statement = any representation of fact or opinion made by any person s115(2)

• s115(3) Purpose of the person making the statement appears to court to have been to (a) make another person believe the statement

• Hearsay generally no, but will be allowed if D’s right sufficiently protected.

• CrimPR 34 Must serve other side with notice of intention to rely on hearsay which is multiple hearsay, absent witness and interests of justice

  • 28 days Mags, 14 days Crown after D pleads NG (CrimPR 34.2(3))

  • If D opposes, send notice of this within 14 days after service of notice. (CrimPR 34.2(2)(C))

• Multiple hearsay = hearsay statement used to prove another hearsay statement s121. Admissible if business document, in/consistent statement or interest of justice

• Application to exclude hearsay evidence

Exceptions:

Admissible if under Act s114(1)(a)

• Res Gestae s118(1)

  • So close in time and space so considered part of the event

• Confessions (s76(1) PACE)

  • Statement wholly or partially adverse to the person who made it whether made to a person in authority or not or whether in words or not (s82(1) PACE)

  • Only admissible against the maker for truth of its contents s76(1)

  • Exclusion of:

    • Obtained by oppression s76(2)(a)

      • s76(8) oppression = torture, inhuman or degrading treatment, use of threats of violence.

      • R v Fulling [1987] oppression = exercise of power or authority in a burdensome, harsh, wrongful manner, unjust or cruel treatment

      • R v Davison [1998] unlawful detention, unlawful refusal of legal advice, questioning about offence not arrested for.

• Obtained in circumstances making it unreliable s76(2)(b)

• Breach of PACE

• R v Trussler (18 hour detention, no rest)

• R v Alladice no legal advice but knew the law and his rights

• Adverse impact on fairness s78

• Only where breach of PACE or Codes are both significant and substantial R v Walsh (1989)

• If D denies making the confession. Failure to make accurate record (Code C 11.7) failure to allow D to review his comments (Code C 11.11) failure to put confession made outside police station to D at start of interview (Code C 11.4) R v Canale [1990]

• Pre trial confession of a co-defendant usually only admissible against the maker, not the other co-defendant, there are exceptions though R v Y [2008]

• Where 2 co-defendants pleading NG 1 can adduce a confession of the other s76A(1), R v Johnson [2007]

• Exclude s76A(2) balance of probabilities it was not obtained through oppression, unreliable circumstances

• s114(1)(d) Interest of justice

  • (2) considerations

1. Probative value

2. Other evidence on the matter

3. Importance in context of the case

4. Circumstances in which made

5. Reliability of maker

6. Reliability of statement

7. Can oral evidence be given?

8. Difficulty in challenging

9. Prejudicial impacts

• s116 Unavailable witness

Must be first hand hearsay, NOT inadmissible, show court maker exists and is not made up

• Dead

• Unfit (mental/physical condition)

• Untraceable and all reasonable steps taken

• Outside of UK and not practicable to bring back

• Fear (but limited s116(4))

  • Risk of unfairness as no XX

  • Reliability

• s117 business documents

  • s117(2) Created/received by a person in the course of business

  • Person supplying it has personal knowledge

  • Each person receiving thereafter in the course of business

  • Not admissible if reliability in doubt s117(7)

Documents fine if produced by a machine not a person s115(2). Must be shown that the machine was working correctly though s129(1)

Experts report admissible in evidence whether or not the expert attends to give evidence in person. Where however the expert is not called to give evidence the report will only be admissible with courts leave s30 CJA 2003

Court will consider: reasons expert cannot attend and risk of unfairness to the accused s30(3)

Challenges:

s126 (1) CJA 2003 Discretionary power to exclude statement on the grounds that case for excluding substantially outweighs the case for admitting it

s78 PACE adverse impact on fairness of proceedings.

s124, admit evidence which would have been admissible if the W gave oral evidence relevant to credibility.

Bad Character: Procedure for admitting

s98 CJA 2003 evidence of misconduct

s112(1) matter of substantial important in the context of the case as a whole (Commission of an offence or other reprehensible behaviour)

s101(1)(d) important matter between the prosecution and defence

R v Hanson:

1. Does D’s history show a propensity to commit offences?

2. Does propensity make it more likely that D committed this current offence?

3. Is it just to rely on this conviction?

s103(1)(a) Propensity to commit offences of the kind which with he is charged

• s103(2) Offence of same description or category

• s103(4)(a) same description = same indictment

• s103(4)(b) same category, usually theft offences

• Significant factual similarities

s103(1)(b) Propensity to be untruthful

R v Hanson: Evidence admissible to show propensity to be untruthful if:

1. Previous offence for untruthfulness (i.e. false representation)

2. Pleased NG, given evidence and then found G. Jury disbelieve

R v Campbell: Shouldn’t adduce propensity to be untruthful simply because a previous NG plea and then found G.

s101(1)(g) Can adduce where D attacked the character of another

• s101(3) MUST NOT admit evidence where it would have such an adverse impact so as to effect the fairness of proceedings.

  • Spent conviction The Rehabilitation of Offenders Act 1974

  • Similar to s78 however mandatory not discretionary

• Bad character warning to jury

• Only 1 offence will not show propensity (Hanson)

Challenges:

s101(3) adverse effect on fairness

s103(3) length of time since conviction

s101(1)(e) substantial probative value in relation to an important issue between D and co D

• Substantial = more than merely trivial or marginal

• s104 evidence is relevant to propensity to be untruthful is undermines Co D defence thereby making D more credible (cut throat)

• Application CrimPR 35.4(4)(b)

• Serve as soon as reasonably practicable no more than 14 days after prosecution disclosure (28 days in Mags)

• Serve on court and other party

No judicial discretion to disallow

s100(1) bad character of a non-defendant

Admissible if:

1. Important explanatory evidence

2. Substantial probative value in relation to:

   1. Matter in issue

   2. Context of the case as a whole

3. All parties agree

(b) is most commonly used to adduce the previous conviction of a witness to show that the witness is lying, he is himself guilty of an offence, or attack his credibility because he has a propensity to be untruthful. R v Weir and others [2005]

Credibility:

• Convictions where false statements or dishonesty R v Stephenson [2006]

• Conviction where found guilty after having pleaded NG and given evidence

• s100(4) Leave of the court will be required CrimPR 35.3

Good Character:

Usual to ask police officer dealing with interview to confirm good character

May also call witnesses of his good character

Vye direction:

Direction to the jury of D’s good character and what they can take from that.

Always that good character means less propensity to commit the crime

If given evidence shows no propensity to be untruthful

Lack of Vye direction gives rise to appeal R v Barrington Payton [2006]

Special Measures:

Youth Justice and Criminal Evidence Act 1999

ss 16 & 17

• Under 18

• Mental/Physical disorder likely to impact evidence delivered

• Fear or stress (automatically includes victims of sexual assault and weapons offences)

• Complaints of sexual assault (automatic)

• Witnesses to specified gun and knife crimes (YJCEA 1999 Sch 1A)

• Screens s23

• Evidence by live link s24

• Evidence in private s25

• Removal of gig and gowns s26

• Video Recorded evidence s27, s28

• Examination through an intermediary s29

Obligatory special measures warning to jury s32

CrimPR 29.3 Procedure for application

14 days after NG plea Crown, 28 days in Mags written application

Any witness (not D) can give evidence through live link if in the interests of efficient or effective administration of justice s51 CJA 2003

Video-recording account of eye-witness given whilst events still fresh in the witnesses memory to amount to evidence in chief. Indictable only offences s137 CJA 2003

Previous sexual relationship

s41(1) YJ&CEA 1999

no evidence or XX about sexual behaviour of complainant without leave of the court

(2) leave will be granted if not to would otherwise render any conviction unsafe

(3)(a) not an issue of consent

s42(1)(b) issue of consent D’s belief that V was consenting

R v A: Blanket refusal to not admit is a breach of ECHR

Notice to adduce within 28 days of prosecution disclosure CrimPR 36.1

Previous consistent statements

s120, admissible if:

(4)(a) one of 3 conditions apply; and

(4)(b) W...