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
Probative value
Other evidence on the matter
Importance in context of the case
Circumstances in which made
Reliability of maker
Reliability of statement
Can oral evidence be given?
Difficulty in challenging
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:
Does D’s history show a propensity to commit offences?
Does propensity make it more likely that D committed this current offence?
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:
Previous offence for untruthfulness (i.e. false representation)
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...
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