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See imported Quizlet slide deck. ULAW Chapter is hopelessly ill worded.
What is a ‘hearsay statement’ as defined under CJA 2003?
‘A statement, not made in oral evidence, that is relied on as evidence of a matter in it’ (i.e. out of court statement).
‘Statement’ = Representation of fact or opinion. Includes sketch, photofit.
For a statement to be hearsay it must be made with a purpose(s) in mind.
What are these purposes?
Cause another to believe the matter;
Cause another (or machine) to act on the basis that the matter is as stated.
If statement is not made with this purpose in mind then it is not hearsay.
S. 115, CJA 2003
How does R v Knight illustrate that the hearsay evidence be made with a ‘purpose’ in mind?
D convicted SA against minor. Contest evidence.
Aunty read teen’s diary. Detailed SA. Gave oral evidence of it.
Held - Not hearsay. Girl did not intend others to read it. Fell outside s. 115, CJA 2003.
What are common examples of hearsay evidence?
Witness repeating at trial what another told them.
Statement from witness read at trial rather than attending.
Police officer repeating D’s confession at trial.
Business document introduced as evidence.
Can you distinguish between first-hand and multiple hearsay?
Yes.
First-hand = Person repeats statement they themselves heard.
Multiple = Person repeats statement / evidence that heard from >1 person (i.e. A told B who told C; C now retells story).
Hearsay evidence is admissible if it falls within 1 of 4 categories under s. 114, CJA 2003.
What are these categories?
(A). Statutory provision makes it admissible
(B). Rule of law preserved by s. 118 makes it admissible
(C). All parties agree to it being admissible
(D). Court is satisfied it is in interests of justice.
What are the main two statutory provisions where hearsay evidence is admissible?
Witness is unavailable (s. 116, CJA 2003).
Business and other documents (s. 117, CJA 2003).
Hearsay evidence will be admissible if a witness is unable to attend court.
What are the requirements and conditions before it is admissible?
Must be first-hand hearsay.
Person who made statement is ID’d to court’s satisfaction; and
Any of 5 conditions below are met.
Relevant person (RP) is dead.
RP unfit to be a witness (bodily / mental condition).
Outside the UK. Not reasonably practicable to attend.
RP cannot be found. Taken AFAiP steps.
RP through fear does not give evidence.
NOTE - For (5) it requires court’s leave to do so. Not automatic right.
Be in interests of justice, mindful risk of unfairness.
What are the conditions that must be satisfied before business and other documents are admissible as hearsay evidence?
S. 117, CJA 2003
Oral evidence given in proceedings would be evidence of matter; and
Doc created or received by person in course of trade, business, profession or other occupation, or holder paid / unpaid office.
RP who supplied information within statement had or may reasonably supposed to have had, personal knowledge of matters; and
Each person through whom information supplied from RP to person in (1) received information in course of trade, profession or other occupation etc.
Result? Makes ‘first-hand’ and ‘multiple’ hearsay admissible.
Ahmed deposits £1000 in a safe at the betting shop where he works. He tells Shona, one of his colleagues. Shona passes this information to Gavin, the owner of the shop, who records the deposit in a ledger.
Is this admissible hearsay?
Yes.
Entry in ledger is multiple hearsay. But valid under s. 117, CJA 2003.
Entry is statement in course of business by Gary.
Person who supplied information had personal knowledge (Ahmed).
Person whom information was passed had received information in course of business.
If a business document was prepared for use in criminal proceedings -are there additional requirements under s. 117(5), CJA 2003?
Yes. It must…
(A). Meet any of 5 conditions within s. 116(2). See above card; OR
(B). Cannot reasonably expect RP to have recollection of matters in statement.
Burglary occurs at a shop. Charlie (owner) prepares list of all items taken for business insurance policy. Two-years later police arrest burglar. CPS seek to use list to prove stolen items. Charlie able to attend trial, but cannot recall items on list.
Is this admissible hearsay?
Yes under s. 117, CJA 2003.
First-hand hearsay. List is statement within a document.
Created in course of business. Charlie had personal knowledge of this. Compiled for use in criminal proceedings so must meet s. 117(5) requirements.
2-years elapsed so cannot reasonably be expected to recall.
What are the two exceptions to hearsay that are preserved from a common law exception?
S. 118(1), CJA 2003
Evidence of confession; and
Evidence admitted as part res gestae.
Is there an exception to allow a confession as hearsay evidence?
S. 76(1), PACE 1984
Yes.
Confession by D will be admissible.
Example - Confess in interview; transcript then read at trial. Admissible despite being hearsay.
What is the res gestae exception to hearsay?
S. 118(1), CJA 2003
Statement made at time of event.
So vivid + spontaneous so possibility of fabrication disregarded.
Example - Person A is victim of attack; related to Person B immediately what happened. Person B can give hearsay evidence.
How is R v Andrews an example of res gestae?
Fatally stabbed man. ID’d two attackers before death.
Admissible.
What are the ‘Ackner Guidelines’ for determining if res gestae evidence is admissible?
Can possibility of fabrication be disregarded?
Assess circumstances to see if event so unusual as to render victim’s statement instinctive (i.e. no reflection time).
Statement must be spontaneous; closely associated with event and still in victim’s mind.
Regard to other ‘special factors’.
Regard to fallibility of human recollection. Affects weight attached to evidence and not admissibility? Matter for jury.
The court can admit hearsay evidence where it is in the ‘interest of justice’.
What factors does the court have regard to when deciding this?
S. 114, CJA 2003.
(A). Probative value of statement in relation to issue. Or value towards understanding evidence.
(B). Other evidence that has been given on matter in (A).
(C). How important matter in (A). is to case as a whole.
(D). Circumstaces in whcih statement made.
(E). How reliable maker of statement appears.
(F). How reliable the evidence of making of statement appears.
(G). Whether oral evidence on matter can be given. If not; why not?
(H). Amount of difficulty challenging statement; and
(I). Extent to which difficulty would likely prejudice party facing it.
What does R v Taylor state about the factors listed under s. 114 for the ‘interest of justice’ exception?
NO requirement reach specific conclusion under all the factors.
How did the court apply s. 114(1)(d), CJA 2003 in Maher v DPP?
D crashed car into X; left scene without leaving contact details.
3rd party witnessed this. Left note of D’s car reg.
X’s partner got note; phoned police and they made log. Note lost.
Held - Admissible. Substantial and reliable. Satisfied s. 114(1)(d).
How did the court apply s. 114(1)(d), CJA 2003 in R v Z?
Appeal against SA offences.
Prosecution have 3rd party witness claim raped at same time as victim.
Refused to testify. Did not want to relive moment.
Held - Did not satisfy S. 114, CJA 2003.
Refusal did not come within s. 116 exception (i.e. witness unavailable).
S. 114 could apply. But not within ‘interests of justice’.
Why? Evidence did not form part of actual incident.
Admittance would be prejudicial; difficult to challenge.
Part 20 of the CrimPR dictates how a party may seek to rely on hearsay evidence at trial or challenge its admissibility.
What cases of hearsay evidence do they apply to?
(A). Interests of justice to admit;
(B). Witness unavailable to attend court;
(C). Evidence is multiple hearsay; or
(D). Prosecution or defence rely on s. 117 for admission of written witness statement.
NOTE - D made confession upon arrest; Part 20 does not apply where CPS seek rely on PC recounting details.
If Part 20 of the CrimPR applies then what is the procedure that must be followed?
Adduce or oppose hearsay evidence?
Must give written notice to other party (CrimPR, r 20.2).
NOTE - If hearsay evidence does not fall within above categories (A-D) then no requirement serve written notice.
Example - No requirement for Prosecution to serve written notice rely upon confession.
What is the definition of a ‘confession’ under s. 82, PACE 1984?
Anything said by D that is an admission of offence element or detrimental to their case.
Can be words or otherwise.
PC arrives at pub where an assault has taken place. Leaves the premises and stops Michael who matches the description. PC asks him if he was at the pub. Michael confirms this and states ‘I only hit him in self-defence’.
Is this a confession?
Yes.
Statement of words ‘partly adverse’ to case.
Admits to being at pub + hitting someone.
Does not need to be full confession.
Steve is charged with theft. He denies this when interviewed at station. Later confesses to friend Jim. Jim provides this to CPS via written statement. Jim later gives oral evidence at trial.
Is this admissible?
Yes.
Jim’s repetition at court will be hearsay evidence.
But saved by s. 76(1), CJA 2003.
What is a ‘mixed statement’ for the purposes of confession under s. 76(1), CJA 2003? Are they admissible too?
Confession also includes statement favourable to D.
All of the statement is admissible.
Example - Connor charged with rape. Admits in interview - ‘I had sex but she consented’. Makes confession, but makes favourable detail. Wholly admissible.
Is a confession made by a defendant admissible in evidence against a co-defendant?
Yes.
Any evidence implicating a co-defendant is admissible.
Includes confessions.
Extends to pre-trial confessions too.
Co-defendant will be prosecution witness at D’s trial.
NOTE - If co-defendant challenges admissibility of confession then reliant party must prove on balance of probabilities it is admissible.
How may a defendant challenge the admissibility of a confession?
They made the confession. But should not be admitted in evidence; or
Did not make confession. Person claiming otherwise is mistaken or fabricating this.
Where the D accepts they made the confession - how may they challenge this under s. 76(2), PACE 1984?
(A). Obtained via oppression; or
(B). Anything said or done in circumstances which renders confession unreliable. Unless Prosecution proves BRD that confession was not obtained that way.
Where a D challenges a confession under s. 76, PACE 1984 - what must the Prosecution prove to rebut this?
Prove BRD confession not obtained by oppression or circumstances rendering it unreliable.
Court cannot admit it unless Prosecution rebuts it.
Even if judge thinks confession is true.
What amounts to ‘oppression’ under s. 76, PACE 1984?
Torture, inhuman, degrading treatment, use / threat of violence.
Extreme hectoring or bullying other than physical violence.
What amounts to circumstances which render the confession ‘unreliable’ under s. 76, PACE 1984?
Commonly used.
Typically breach Code C, PACE 1984.
Deny refreshments, rest periods. Induced to answer questions to obtain this.
Inducement to confess (e.g. lesser sentence, leave quickly, bail).
Misrepresent Prosecution case. Stronger than it is.
Inappropriate questioning (i.e. badgering).
Suspect not in fit state (i.e. intoxicated).
Threaten suspect.
True or False: If a person is denied legal advice (s. 58, PACE 1984) and subsequently makes a confession. This is automatically inadmissible under s. 76, PACE 1984.
False.
Commonly used to argue confession inadmissible because circumstances ‘unreliable’.
BUT - Must prove causal link between breach and unreliability of confession.
Had D been allowed legal advice; would not have made confession.
How does R v Alladice illustrate the causal link requirement between a confession and the denial of legal advice under s. 76, PACE 1984 admissibility of confessions?
D denied access to legal advice. Knew rights; police caution.
Court denied application to state confession inadmissible.
No link between denial legal advice and confession. Aware of rights; would have confessed regardless.
Can a co-defendant rely on a confession made by another defendant?
(Do so where co-defendant’s confession does not implicate them)
Yes.
Can do so where both plead not guilty + tried jointly.
S. 76A(1), PACE 1984
Can a co-defendant rely on a confession made by another defendant if that confession was made due to oppression / circumstances rendering it unreliable?
No.
Must be excluded.
Court satisfied itself on BOP.
Tom and John charged common assault. Both plead not guilty. Tom confessed to crime in interview. John wants to adduce evidence of confession to show Tom did it.
Can he do this? What if Tom argues he confessed because of oppression / circumstances rendering it unreliable?
Yes - S. 76A(1), PACE 1984.
May be excluded if court satisfied on BOP that confession result of oppression / circumstances.
True or False: S. 76, PACE 1984 is the only provision for the court to exclude confession evidence.
False.
S. 76, PACE 1984 used where D accepts they made confession.
S. 78 PACE 1984 = General discretion to exclude.
Breach must be ‘significant and substantial’ (i.e. denied legal advice).
Do so if ‘adverse effect on fairness of proceedings’.
Examples - D made confession; argues it’s untrue.
OR denies making confession altogether.
How did R v Canale illustrate the application of s. 78, PACE 1984 to excluding confessions which the defendant denies making?
Police argue D made admissions. D denied this.
Interviewing Officer failed take notes (Code C).
D could not comment on accuracy.
Held - Confession excluded. Adverse effect on fairness.
What are significant statements? How do they relate to the procedure around confessions?
Statement made outside formal interview capable of use against suspect (i.e. direct admission guilt).
Example - Upon arrest, en route to station, booked into custody.
‘Confession’ for statutory purposes (s. 82(1), PACE 1984).
Must put before suspect at start interview (para 11.4, Code C).
Fight breaks out amongst youths. Sam is arrested by PC Dick. Sam makes admission of guilt. Only learns of its inclusion after being charged and upon receipt of IDPC.
Is this challengeable?
Yes.
S. 78, PACE 1984.
Failure to put this to him in interview.
What is the procedure for challenging admissibility of confession evidence at Crown Court?
Voir Dire hearing (jury absent).
Hear from defence, prosecution interviewing officer.
Admissible? Officer gives evidence confession.
Defence can still undermine confession credibility.
What is the procedure for challenging admissibility of confession evidence at Magistrates’ Court?
Voir dire if seek exclude under s. 76, PACE 1984.
Voir dire if seek exclude under s. 76, 78 PACE 1984.
No requirement for voir dire if challenge under s. 78, PACE 1984. Do so at close prosecution case or D’s closing argument.
If a confession is excluded under s. 76, PACE 1984 - does this mean that evidence obtained as a result of the confession if inadmissible?
No.
BUT - CPS unable tell court obtained via confession.
Still useful because may obtain ‘bloody knife’. Still valid.
Character evidence comprises the issue of ‘bad character’.
What is the statutory definition of ‘bad character’?
S. 98, CJA 2003
‘Evidence of, or a disposition towards, misconduct’ other than evidence connected with D’s charged offence.
‘Bad character’ definition is as follows - ‘Evidence of, or a disposition towards, misconduct’ other than evidence connected with D’s charged offence.
What is the statutory definition of the highlighted word?
S. 112, CJA 2003
‘Commission of an offence or other reprehensible behaviour’.
More than just previous convictions.
Sean is charged with the murder of Frank. CPS alleges Sean fabricated Frank’s will then murdered him to take assets.
Does this fall within the ambit of s. 98, CJA 2003 as evidence of bad character and therefore need to pass a test of admissibility?
No.
Alleged misconduct connected to the offence then is admissible.
No requirement pass ‘bad character’ test in CJA 2003.
What are the 7-gateways to admitting bad character evidence?
S. 101, CJA 2003
All parties agree to it;
Evidence adduced by D or asked in cross-examination;
Important explanatory evidence;
Relevant to matter in dispute between D and PR;
Substantial probative value to issue between D and co-D;
Evidence to correct false impression by D; or
D made attack on another’s character.
True or False: Bad character evidence alone is not sufficient to prove guilt.
True.
PR must substantiate case with other evidence.
Gateway (c) - Important explanatory evidence
Who can use this? On what grounds can it be used?
PR only.
Without it jury / magistrates find it impossible / difficult understand case; and
Value for understanding case as a whole is substantial (not trivial).
Able to understand without it? Not admissible (R v Davis [2008])
How did R v Campbell illustrate the use of Gateway (c) - explanatory evidence?
D convicted kidnapping + murder 15yo niece.
PR argue D infatuated with niece sexually.
Adduce bad character via evidence online porn use teens.
What issues are covered under Gateway (d) - relevant to important matter in issue between D and PR?
Most commonly used.
Question if D has propensity to commit offences of kind which he’s charged; and
Question if D has propensity to be untruthful
S. 103, CJA 2003
‘…propensity to commit an offence of the kind charged’
What link(s) must the PR establish between previous offences and the current charged offence for admissibility?
S. 103, CJA 2003
Offence of same description as the one charged (i.e. GBH and now GBH again(; or
Offence of same category as one charged (only two: theft and sexual offences).
Does not apply if passage of time render unjust (s. 103(3), CJA 2003).
Where an earlier offence is not of same description or category - can it still be admissible under gateway (d)?
[R v Brima]
Yes.
Identify significant factual similarities.
Previous convictions assault + robbery. Used knife.
Admissible. Propensity for violence using knife.
What are the Court’s guidelines for the CPS seeking to adduce evidence of D’s previous convictions under gateway (d)?
[R v Hanson]
Does D’s history of offending show propensity commit offences?
If so, does propensity make it more likely D committed current offence?
If so, is it just to rely on convictions (same desc. / category) having in mind overriding principle of fairness?
Only if YES to (1)-(3) then admit.
Fewer convictions; less likely propensity established.
How does R v Bennabou illustrate the application fo the R v Hanson guidelines for admission of previous convictions under gateway (d)?
Rape conviction; 8 years ago; different circumstances.
Held - Inadmissible. Highly prejudicial. Adverse effect fairness proceedings.
‘…propensity to be untruthful’
When will a D’s previous convictions be admissible under this point in gateway (d)?
Manner of previous offence demonstrate propensity (i.e. false representations - fraud, perjury); or
D pleaded not guilty. Testified + not believed. Convicted.
What is the nature of the court’s power to exclude evidence under s. 101(3), CJA 2003 as it applies to gateway (d)?
Exclude if have ‘…such an adverse effect on the fairness of proceedings that court ought not to admit it’.
Similar to s. 78, PACE 1984.
BUT - Court must exclude if satisfied. Do not have discretion as under s. 78, PACE 1984.
When are the courts most likely to use s. 101(3), CJA 2003 exclusion powers for gateway (d)?
Jury likely to convict on basis previous convictions alone (R v Bennabou).
Case is already weak;
Previous convictions are ‘spent’ (see table)
Who does gateway (e) - substantial probative value in relation to an important matter in issue between the D and co-D?
What ‘propensities’ may be shown via previous convictions?
Applies to D and co-D only.
Cannot be use by PR.
Propensity to be untruthful; or
Propensity commit kind of offence both been charged with.
In sum - Show other guy did; undermine his case.
How did R v Edwards apply gateway (e) in relation to a D and co-D propensity commit kind of offence?
Two Ds. Jointly charged GBH. Enter not guilty pleas.
Claim not involved. Did not seek to blame other.
D1 made application disclose D2’s violent convictions.
Held - Admissible. Why? Substantial probative value between Ds. ID who was responsible.
When will the ‘propensity to be untruthful’ aspect of gateway (e) be used by a defendant?
‘Cut-throat’ defence. Two or more Ds charged same offence.
Each D blames the other.
Adduce evidence of other’s past undermine credibility.
Examples - fraud, perjury, convictions where testimony not believed.
What is the effect of a defendant satisfying the test under gateway (e)?
Court has no power of discretion. Must admit evidence.
Who may use gateway (f) - it is evidence to correct a false impression given by the D?
Prosecution.
Adduce convictions if D gives false / misleadings impression (express / implied) to court.
Under what circumstances may a D give a false impression for the purposes of gateway (f)?
Made by D in proceedings (i.e. witness box)
Made by D when questioned under caution
Made by witness called by D
Made by witness in cross-examination
Made by person out of court and D adduces evidence in proceedings (s. 105, CJA 2003).
Court must admit it satisfied under CJA 2003.
But retain discretionary power under s. 78, PACE 1984 to exclude.
Philip is on trial for common assault. Several previous convictions for same offence. Allegations put to him at police interview he denied this stating he was a ‘good Christian and I go to church every Sunday’.
What can the prosecution do here?
CPS can seek to admit previous convictions to correct false impression.
Gateway (g) - D has made an attack on another’s character.
What constitutes an attack on another’s character?
Attack on PR witness, someone dead etc.
Can take place at trial, questioned, defence statement etc.
Only PR can use this gateway.
How does R v Ball illustrate the use of gateway (g) - attack on another’s character?
D charged with rape. Denied event occurred.
Said complainant was a ‘slag’.
Held - Admissible. Satisfied gateway (g). Attack on another’s character.
How does R v Williams illustrate the use of gateway (g) - attack on another’s character?
D charged sexual offences.
Alleged openly ‘officers set him up’ (i.e. conspiracy).
Held - Satisfy gateway (g). Admit previous offence indecent assault.
NOTE - Would not have been if D suggest accounts were untrue. But went further and made attack.
Can the court exclude evidence admitted under gateway (g)?
Yes.
Application by D. Argue admission have adverse effect on fairness proceedings.
S. 101(3), CJA 2003
Eddie charged with assault causing GBH. Pushed John to the ground in pub resulting in gash to cheek. Stated in interview ‘John is a troublemaker and bully. Will say anything to get me into trouble’.
Eddie has previous convictions for sexual offences. Including SA and gross indecency with children.
Can these offences be admitted?
Yes.
Admissible under gateway (g) because attack on character.
But court probably exclude via s. 101(3), CJA 2003.
Prejudicial effect outweigh probative value.
Recap: Under what gateways does the court have the ability to exclude bad character evidence?
Must admit if test requirements satisfied: (a), (b), (c), (e) and (f).
Can exclude: (d) and (g).
NOTE - Can use s. 78, PACE 1984 if admission cause adverse effect on fairness of proceedings (discretionary power).
What does the s. 107, CJA 2003 power regarding ‘contaminated cases’ allow for?
Crown Court (not MC) can direct jury acquittal or retrial if witnesses collude fabricate evidence D’s bad character.
Flow chart of admissibility of evidence through ‘gateways’
What is the procedure to be followed when admitting evidence of bad character?
CPS notice of intent via prescribed form. Given to court / other parties.
Time limits apply under CrimPR, r 21.4.
If D opposes; must apply to court for exclusion. Send to court / other parties.
Under what grounds may bad character evidence of another person other than the D be granted?
S. 100, CJA 2003
Important explanatory evidence;
Substantial probative value:
Matter in issue in proceedings; and
Substantial important in context of case as a whole
Parties agree to admissibility.
ALSO - Require leave of court to adduce this.
Not an automatic entitlement.
S. 100, CJA 2003 and ‘…bad character evidence of another person other than the D’.
What is the meaning of ‘important explanatory evidence’ under this ground?
Evidence is explanatory if:
Court / jury find it impossible or difficult to understand evidence; and
Value for understanding case as a whole is substantial.
Substantial = More than trivial / marginal.
Dean charged assaulting partner Mary. Grabbed her while putting baby son Ben to bed. Mary has previous conviction for assaulting Ben due to his incessant crying. Dean grabbed her because thought she would do this again.
What is this an example of? What might Dean do to help his case?
Adduce previous convictions under s. 100, CJA 2003.
Bad character of someone other than D.
Why? Because comes under ground of ‘important explanatory evidence’.
S. 100, CJA 2003 and ‘…bad character evidence of another person other than the D’.
When might the ground of ‘…substantial probative value in relation to an important matter in issue…’ be used?
Support allegation:
Witness is lying / fabricate evidence; or
Witness guilty of offence or engaged misconduct in connection alleged offence.
Court assesses: Nature / number events; when those events occurred.
S. 100, CJA 2003 and ‘…bad character evidence of another person other than the D’.
When might the ground of ‘…substantial probative value in relation to an important matter in issue…’ be used?
