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103 Cards in this Set
- Front
- Back
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When can evidence of bad character be admissible? |
If it falls within a specific statutory gateway what is bad character |
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What is bad character? |
It is evidence of, or of a disposition towards, misconduct on his part other than evidence which has to do with the alleged facts of the offence that defendant is charged or evidence of misconduct in connection with the investigation or prosecution of that offence |
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What does misconduct mean? |
Commission of an offence or other reprehensible behaviour |
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What type of presumption does proof of conviction create? |
Rebuttable presumption that the person convicted committed the offence Where it is relied on, the value of evidence depends on the proof of the circumstances of the offence |
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When is behaviour reprehensible? |
Conduct is not necessarily reprehensible simply because it is morally lax e.g sexual relationship with 16 year old or adultery It is fact specific decision and reprehensible behaviour should be distinguished from what is irritating, inconvenient or upsetting to another |
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When evidence of misconduct has to do with the alleged facts, does this fall under the statutory gateway? |
No, it will be admissible. Temporal connection may be one factor Or where the evidence is reasonably relied upon for motive It should a fact of direct relevance rather than only having to do with the actual reus of the offence |
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Are previous allegations as to the evidence of bad character relevant? |
Mere fact that an allegation has been made, without supporting evidence will not normally be relevant either to the guilt or credibility of the accused as a witness Where it is relevant, it can be admitted where the purpose is not to show bad character |
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What is statutory gateway s101(1)(a)? |
Evidence of bad character may be admissible by general consensus of the parties Note that where there are multiple defendants, the gateway clearly requires that the consent of all must be secured |
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What is the statutory gateway under s101(1)(b)? |
Accused can elect to give evidence of their own bad character Perhaps to argue that they have never been convicted of a previously similar offence or if it has been low level offending or where they have previously pleaded guilty Case of Hunter allows a modified good character direction |
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What is the statutory gateway under s101(1)(c)? |
Important explanatory evidence The value for understanding the case as a whole should be substantial |
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What is the statutory gateway under s101(1)(d)? |
Admissible evidence that is merely ‘relevant’ to an important issue between the accused and the prosecution Also has the function of admitting evidence to show the untruthfulness of an accused person |
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What is the statutory gateway under s101(1)(e)? |
Permits a co accused to adduce evidence of the accused’s bad character where it has substantial value in relation to an important issue between them |
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What is the exclusionary power held by the court under s101(3)? |
Court can ensure that an accused is not prejudiced by revelations of evidence under s101(1)(d) or (g) by excluding evidence where it appears to the court that it would have an adverse effect on the fairness of the proceedings Not exercisable by the court on it’s own motion, but on application by the defence |
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What should the court be careful of when admitting evidence under gateway 101(c)? |
Where evidence tendered is also evidence of propensity, should be cautious- it is only where the evidence truly adds something beyond mere propensity that may assist the jury to resolve one or more of the issues of the case or is distinct from interesting background or context that it should be admitting evidence as background or explanatory evidence |
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Where explanatory evidence is admitted, what may be the fairest way of dealing with it? |
May be fairest to present it in the form of an agreed statement of facts, for the avoidance of prejudice and to prevent the distraction of the jury |
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What are the steps to be followed by a trial judge in determining the use which may be made of evidence of propensity consisting of convictions under s101(1)(d)? |
Does the history of conviction(s) establish a propensity to commit offences of the kind charged? If so, does the propensity make it more likely that the defendant committed the crime charged? Where the convictions are for offences of the same category or description is it unjust to rely upon them? Where the propensity is proved by other means, is it unfair to admit the evidence? |
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How can propensity be demonstrated? |
Can be demonstrated by one previous event if sufficiently privatise I.e where the behaviour is strikingly similar Although a single conviction for rape will not be inevitably admissible where the conviction was old and circumstances dissimilar Or shoplifting will be of little value for indicating a propensity towards street robbery Although where the privatise value of a range of convictions is properly evaluated by the judge, there is no reason why they cannot be tendered for their cumulative effect (eg drugs related offences including trafficking and false passports) |
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What pathway does gang membership or affiliation frequently fall under and why? |
S101(1)(d) in order to link the accused to the commission of a specific offence |
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How do the bad character provisions apply to an accused facing multiple charges in the same proceedings? |
Apply as if each was charged in separate proceedings - a gateway is required to facilitate cross admissibility between charges in the same proceedings in exactly the same way as where only one offence is charged |
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What is the only type of evidence admissible under s101(1)(e)? |
defence evidence |
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Who must have given the false impression under s101(1)(f)? |
The accused about themself |
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What type of evidence is permitted under s101(1)(f)? |
Prosecution evidence only |
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What May an accused do in order to stop admission of bad character evidence in rebuttal of false impression? |
They may withdraw or dissociate themself from an assertion If the accused choose not to do so, the rebuttal evidence is admissible ‘only if it goes no further than is necessary to correct the false impression’ |
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What is the statutory gateway under s101(1)(g)? |
Permits the prosecution to adduce evidence of bad character to counter an attack on another person An accused may apply to exclude evidence the admission of which under s101(1)(g) would have an unfair effect on the fairness of the proceedings |
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How May an ‘attack’ be evidenced under s101(1)(g)? |
May be made in an out of court statement, including an interview in which the accused casts an imputation |
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What are the key stages regarding weight of character evidence and judicial direction? |
1. The judge determines admissibility under the relevant statutory gateways 2. Where it is raised, the judge also determines any question of exclusion in respect of prosecution evidence e.g under s101(3) or s78 PACE 3. Once evidence of bad character is admitted, questions of weight are for the jury, subject to the judge’s power to stop the case where the evidence is contaminated and the judge’s direction as to the use to which the evidence may be put 4. The direction on the evidence is of paramount importance. If the ground of the trial has shifted since the evidence was admitted, it may be necessary to tell the jury that it is of little weight |
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What should a proper direction include in a direction on bad character? |
1. Give the jury a clear warning against the dangers of placing undue reliance on previous convictions 2. Stress that evidence of bad character cannot be used to bolster a weak case or to prejudice a jury against the D 3. Emphasise that the jury should not infer guilt from the existence of convictions |
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Mnemonic for bad character admissibility gateways |
A = agreement B = Blurts it out C = Context D = Done it before E = E did it F = False Impression G = Gets at the witness |
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What is the purpose and scope of s100? |
It covers the introduction of evidence of bad character of persons other then the accused. Only admissible in restricted circumstances, and except where all parties agree to the evidence being admissible, the leave of the court is required |
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What are the four important features of the test for admissibility under s100? |
1. Test of substantial probative value is not the same as the test under gateway (d) where the test is simply one of relevance. It is the same as the test that appears in gateway (e) where evidence is tendered by one co-caused against another. 2. If the conditions of s100 are met, there is no residual statutory discretion whereby the judge can refuse to admit the evidence 3. Except where the parties agree to admit the evidence, the leave of the court is always required 4. Rulings by the judge in the absence of agreement between the parties require the exercise of judgment, rather than of discretion Note that there is no discretion to exclude evidence under s100 on grounds of fairness |
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What is s100(2)(a)? |
Important explanatory evidence and must have substantial value |
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What is s100(2)(a)? |
Important explanatory evidence and must have substantial value |
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What will the judge consider with determining the meaning of substantial under s100(1)(b)? |
Must consider 1. Whether the issue to which the evidence goes is of substantial importance in the context of the case as a whole, and 2. Whether the evidence had substantial probative value in relation to a matter in issue in the proceedings. |
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What is s100(2)(a)? |
Important explanatory evidence and must have substantial value |
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What will the judge consider with determining the meaning of substantial under s100(1)(b)? |
Must consider 1. Whether the issue to which the evidence goes is of substantial importance in the context of the case as a whole, and 2. Whether the evidence had substantial probative value in relation to a matter in issue in the proceedings. |
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What are the factors to be taken into account in assessing the probative value under s100(3)? |
Nature and number of the events the evidence relates When those events of things are alleged to have happened or existed Where the evidence is evidence of a person’s misconduct, and it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct, the nature and extent of the similarities and dissimilarities between each of the alleged instances of misconduct Where the evidence is evidence of a person’s misconduct, it is suggested that that person is also responsible for the misconduct charges, and the identity of the person responsible for the misconduct charged is disputed, the extent to which the evidence shows or tends to show that the same person was responsible each time |
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When can substantial probative value in relation to issues other than credibility be established? |
May be established where e.g an accused is charged with an offence of violence and claims self defence and there is a previous instance of violence by the complainant towards the accused using a weapon |
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When can substantial probative value in relation to credibility be established? |
Substantial Probative Value in Relation to Credibility • Leading case of Brewster - CA considered that the evidence of bad character that might qualify as being of substantial probative value in relation to credit was of two types: evidence that is relevant directly, as providing a reason for doubting the truth of the evidence of the witness in the particular case, and evidence which is relevant not only directly, as providing a general reason for suggesting that the witness was a person not to be trusted. •Appropriate test was to ask whether the evidence was 'reasonably capable of assisting a fair minded jury to reach a view whether the witness's evidence is, or is not, worthy of belief.' |
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What do the rules regarding notice requirements apply to? |
Part 21 rules are applied to all parties wishing to adduce evidence of bad character and also to an accused’s application to exclude bad character evidence |
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What is the typical form of of application to exclude bad character evidence? |
Proper course would be to make a written application or at least undertake promptly to make such an application, and for the judge to rule on the point. Accused May waive the entitlement to notice, and the court has power to allow notices to be given in a different form or at a different time, where to do so in the interests of justice. |
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What is the typical form of of application to exclude bad character evidence? |
Proper course would be to make a written application or at least undertake promptly to make such an application, and for the judge to rule on the point. Accused May waive the entitlement to notice, and the court has power to allow notices to be given in a different form or at a different time, where to do so in the interests of justice. |
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What should the court consider where the rules have not been complied with? |
The court should consider whether to vary the notice requirements. Power is unfettered, and is not limited to exceptional cases, through the court must bear in mind the importance of its case management duties. Where the power is not exercised, the evidence will be excluded, though this should be regarded as a device to prevent unfairness rather than a disciplinary sanction. But there will be cases where the power can properly be deployed to prevent substantial unfairness that cannot be cured by an adjournment |
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What should be included in an application or notice? |
Must set out the facts of the misconduct on which that party relies Explain how that party will prove those facts (whether by certificate of conviction, other official record, or other evidence), if another party disputes them, and Explain why the evidence is admissible |
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What are the rules regarding an application to introduce evidence of a non-defendant’s bad character? |
Party must serve an application do so on the court officer and each other party. Applicant must serve application as soon as reasonably practicable and in any event not more than 10 business days after the prosecution discloses material on which the application is based A party who objects to the introduction of the evidence must- serve notice on the court officer and each other party not more than 10 business days after service of the application and In the notice explain as applicable - which if any facts of the misconduct set out in the application that party disputes - what if any facts of the misconduct that party admits instead - why the evidence is not admissible and - any other objection tk the application
Court May determine an application at a hearing in public or private or without a hearing and the parties other than the applicant are present or has had at least 10 business days in which tk serve notice of objection |
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What are the rules regarding a party wants to introduce evidence of a defendant’s bad character? |
Prosecutor or codefendant must serve notice on the court officer and each other party Prosecutor must serve any such notice not more than 20 business days after the D pleads not guilty in a magistrates court or 10 business days after the D pleads not guilty in the Crown Court A co defendant who wants to introduce such evidence must serve the notice as soon as reasonably practicable and in any event not more than 10 business days after the prosecutor disclosed material on which the notice is based Party who objects must apply to court to determine objection and serve the application on the court officer and each other party not more than 10 business days after service of the optics and in the application explain - which if any facts of the misconduct set out in the notice that party disputes -what if any facts of the misconduct that party admits instead - why the evidence is not admissible - why it would be unfair to admit the evidence, and - any other objection to the notice Court May determine such an application at private and public hearing or without one and must the determine the application unless the party who served the notice is present kr has had reasonable opportunity to respond; May adjourn the application and May discharge or vary a determination |
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What is the court’s power to vary requirements under this Part? |
The court may-(a) shorten or extend (even after it has expired) a time limit under this Part; (b) allow an application or notice to be in a different form to one set out in the Practice Direction, or to be given orally; and (c) dispense with a requirement for notice to introduce evidence of a defendant's bad character. 2. A party who wants an extension of time must- (A) apply when serving the application or notice for which it is needed; and B) explain the delay. |
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Who does a right to a good character direction solely apply to? |
Accused Held to be unfair to give similar to prosecution witness |
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When may evidence of the good character of the person be admitted ? |
Only when it is directly relevant to an issue |
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What is the rule following Hunter? |
True rule is that only D’s with absolute good character, or who are deemed to be of effective good character are entitled to any judicial directions on the matter |
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What is absolute good character? |
If the accused has no previous convictions and no other reprehensible conduct is alleged, admitted or proven |
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What is absolute good character? |
If the accused has no previous convictions and no other reprehensible conduct is alleged, admitted or proven |
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What is effective good character? |
Where the defence lay claim to effective food character, the matter is one of law which a judgment is required - it is not sufficient to ask the jury whether they consider the accused to be of good character |
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What is the point at which an accused ceases to be entitled to a good character direction? |
Dependant on the discretion of the court Cautions cannot simply be ignored when calculating effective good character An accused cannot conceal a finding of guilt by a foreign court where its findings are not regarded as ‘convictions’ until confirmed on appeal |
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What is the standard form of a good direction form? |
Makes reference to credibility and to propensity. |
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What is legal advice privilege? |
Communications between client and legal adviser made for the dominant purpose of enabling the client to obtain or the adviser to give legal advice about any matter, whether or not litigation was contemplated at the time. |
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What is legal advice privilege? |
Communications between client and legal adviser made for the dominant purpose of enabling the client to obtain or the adviser to give legal advice about any matter, whether or not litigation was contemplated at the time. |
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What is litigation privilege? |
Communications between client or legal adviser and third parties, the sole or dominant purpose of which was to enable the legal adviser to advise or act in relation to litigation that was pending or in the contemplation of the client. |
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What is legal advice privilege? |
Communications between client and legal adviser made for the dominant purpose of enabling the client to obtain or the adviser to give legal advice about any matter, whether or not litigation was contemplated at the time. |
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What is litigation privilege? |
Communications between client or legal adviser and third parties, the sole or dominant purpose of which was to enable the legal adviser to advise or act in relation to litigation that was pending or in the contemplation of the client. |
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Who bears the evidential burden for establishing that a document or communication is privileged? |
Lies with the party claiming privilege The question of privilege is for the court and the court must carefully consider the evidence |
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What does legal advice privilege cover for a corporate client? |
Communications with those officers or employees expressly designated to act as the client and not documents prepared by other employees or ex employees. Communications will remain privileged if sent or given by Board of Directors directly, instead of designated officers or employees as the Board is the manifestation of the corporate client |
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What are the main principles relating to the scope of litigation privilege? |
Has to be in reasonable contemplation. Once engaged, it covers communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with the conduct of the litigation, provided it is for the sole or dominant purpose of the conduct of the litigation. Conducting the litigation includes deciding whether to litigate and also whether to settle the dispute giving rise to the litigation Documents in which such information or advice cannot be disentangled or which would otherwise reveal such information or advice are covered by the privilege Privilege only applies in the case of litigation that is adversarial, not investigate or inquisitorial |
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What types of document are covered by legal privilege? |
Covers documents created by a party for the purpose of instructing the lawyer and obtaining advice in the conduct of the litigation but not the documents obtained by a party or the party’s advisors that were not created for that purpose Privilege will also attach where a solicitor has copied it assembled a selection of third party documents for the purposes of litigation if it’s production will betray the trend of the advice given to the client |
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How is a confession defined under s82 PACE? |
Confession includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or Joy and whether made in words otherwise |
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How does the general rule in s76 PACE relate to confessions? |
Confession made by an accused person is admissible insofar as it is relevant to any issue in the proceedings and is not excluded on the grounds of oppression or in consequence of anything said or done conducive to unreliability |
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Does s78 apply to a retracted plea of guilty? |
No, it can be relied upon by a co defendant and the discretionary power of exclusion under s78 does not apply |
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Does s78 apply to a retracted plea of guilty? |
No, it can be relied upon by a co defendant and the discretionary power of exclusion under s78 does not apply |
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Does plea in mitigation count as a confession? |
No |
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What form can a confession take? |
Can be oral or written. A thumbs up or nod of acceptance May be regarded as a statement in sign language Re enactment if murder has been considered a confession Conduct which is not intended to convey guilt, but which may be interpreted as doing so, is not a statement and not a confession |
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Does the prosecution have to prove admissibility of a confession? |
Prosecution do not have to prove the admissibility of a confession upon which they rely unless either a) the defence represents that it is inadmissible under s76(2) or b) the court of its own motive requires proof of admissibility under s76 If in either case, the prosecution cannot prove admissibility beyond reasonable doubt, the confession must be excluded notwithstanding that it may be true |
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Does the prosecution have to prove admissibility of a confession? |
Prosecution do not have to prove the admissibility of a confession upon which they rely unless either a) the defence represents that it is inadmissible under s76(2) or b) the court of its own motive requires proof of admissibility under s76 If in either case, the prosecution cannot prove admissibility beyond reasonable doubt, the confession must be excluded notwithstanding that it may be true |
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What is s76? |
If in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained- a) by oppression of the person who made it; or b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, The court shall not allow the confession to be given in evidence against him except insofar as the prosecution proves to the court beyond reasonable doubt that the confession was not obtained as aforesaid |
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What is oppression as defined under s76? |
Oppression includes torture, inhuman or degrading treatment, and the use or threat of violence. Note: exclusion for oppression is likely to be reserved for those rare cases where an accused has been subjected to misconduct of a deliberate and serious nature, and where the court is anxious to mark its disquiet at the methods employed |
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What is the relevance of character and attributes of the accused to determining oppression? |
Common law has held that the nature of oppression varies according to the character and attributes of the accused I.e perhaps harsher treatment for professional criminals in interrogation |
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Is s76 looking for an external or internal influence resulting in the confession? |
External, something has to have influenced the accused to make the confession, it cannot just be from the appellant themselves I.e it cannot just be something said or done by the appellant himself and on his state of mind Note that a self induced incapacity is clearly relevant to issue of discretionary exclusion under s78 |
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What is s78? |
In any proceedings the court may refuse to allow evidence on which the prosecution proposes 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 proceedings that the court ought not to admit it |
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Is the s78 exclusion interferes with often by the CA? |
No, Ca will not interfere with the exercise of a trial judge’s discretion to admit evidence under s78 unless satisfied that the decision was perverse. |
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What is the question regarding s78 and PACE codes of practice? |
Whether the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought no to admit it There needs to be a causal link between breach and admission. |
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What are the key questions to be asked regarding the breach of right to legal advice? |
Whether there existed compelling reasons for the restriction of access and whether viewing the proceedings as a whole, the trial was fair The extent to which compelling reasons were lacking would weigh heavily on the balance of favour of finding a violation of the ECHR art 6 but their absence was not by itself sufficient to amount to such a violation |
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What are some examples of where breach of interview procedures has resulted in the exclusion of evidence under s78? |
Cautioning - where D was questioned without caution while injured in hospital where he was already objectively considered a suspect Breach of right to have an appropriate adult present at interview is likely to trigger exclusion Where accused does not know why they have been arrested Failure or an interrogator to appreciate that questioning a suspect amounts to an interview has proved an important one for exclusion e.g failure to caution, record and offer legal advice prior to impromptu questioning by custody officer |
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What are some examples of where breach of interview procedures has resulted in the exclusion of evidence under s78? |
Cautioning - where D was questioned without caution while injured in hospital where he was already objectively considered a suspect Breach of right to have an appropriate adult present at interview is likely to trigger exclusion Where accused does not know why they have been arrested Failure or an interrogator to appreciate that questioning a suspect amounts to an interview has proved an important one for exclusion e.g failure to caution, record and offer legal advice prior to impromptu questioning by custody officer |
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What are some examples of breaches of PACe not triggering exclusion? |
Where breach is just a technicality Alternatively, a breach may be more than technical, but in the particular circumstances the case has no unfairness resulting from admitting the evidence e.g the failure of a police officer to caution another officer could not have been unfair to admit incriminating evidence |
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What is the treatment of bad faith under s78? |
Not the function of the court to discipline the police under s78 But presence of bad faith where police have breached Act or Code is a factor making it more likely that evidence will be excluded Although even acting in good faith can amount to a breach |
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Will the fact that a confession is wholly or partly excluded affect the admissibility of other facts discovered as a result of the confession or where the confession is relevant as showing that the accused speaks, writes or expresses himself in a certain way? |
No it does not affect the admissibility of that evidence |
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What is the general rule of admissibility regarding evidence obtained unlawfully, improperly or unfairly? |
Test to be applied is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. Court May exercise it’s lower in appropriate circumstances to stay proceedings where it has been obtained illegally. Otherwise if not stayed, it will be admissible as a matter of law. |
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What is the general rule of admissibility regarding evidence obtained unlawfully, improperly or unfairly? |
Test to be applied is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. Court May exercise it’s lower in appropriate circumstances to stay proceedings where it has been obtained illegally. Otherwise if not stayed, it will be admissible as a matter of law. |
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What are the ways in which evidence is obtained unlawfully and admissible? |
Theft Unlawful search of persons Unlawful search of premises Use of agent provocateurs Eavesdropping Invasion of privacy |
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What is the most important discretionary power to exclude otherwise admissible prosecution evidence? |
PACe s78
Although note that applications should be made before the evidence is adduced |
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What other statutory provisions provide protections additional to s78? |
CJA s101(3) confers a discretion to exclude otherwise admissible evidence of bad character of the accused CJA s127 confers a discretion to exclude otherwise admissible hearsay statements, whether adduced by the prosecution or defence |
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When may the common law power on exclusion of unreliable confession or exclusion of confession evidence come into play? |
Preserved power under s82 but limited scope compared to wider s78 But it will cover the situation where a judge becomes aware, after a confession has been admitted in evidence, of circumstances suggesting that it should never have been as s76 or s78 cannot apply here |
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What are some of the matters that may be decided by a voir dire in a trial of indictment? |
Competence of a witness Admissibility of a confession or some other variety of admissible hearsay e.g statement made by someone who does not give evidence through fear Admissibility of a recording Admissibility of a statement contained in a document produced by a computer Admissibility of a plea of guilty against an accused who subsequently changed plea to not guilty |
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What does the common law power to exclude evidence seek to do? |
To exclude evidence where the prejudicial effect of the evidence outweighs the probative value |
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If the accused denies having made the confession, can s76(2)(b) unreliability be applied? |
No because there is no issue taken on unreliability. Instead can use s78. |
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If the accused denies having made the confession, can s76(2)(b) unreliability be applied? |
No because there is no issue taken on unreliability. Instead can use s78. |
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When does s76 require the magistrates to conduct a voir dire? |
Before the close of prosecution case |
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Is the question of whether a witness is a hostile witness a matter for voir dire or a jury? |
Jury |
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Is the compellability of a witness a matter for a voir dire? |
No |
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Is misconduct in connection with the investigation or prosecution of the offence excluded from the definition of bad character? |
Yes |
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Can subsequent offences be admissible following conviction? |
Yes, provided they the propensity is one that might be expected to continue e.g racially aggravated offences |
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should a Lucas direction be given where the defendant denies the lie? |
Yes, but the jury must be satisfied beyond reasonable doubt that the lie was told before they can use it to support guilt |
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When should a s78 application be decided by magistrates? |
It may be decided at any time provided no unfairness is caused to either side |
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When should a s78 application be decided by magistrates? |
It may be decided at any time provided no unfairness is caused to either side |
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Can the court compel a law firm to disclose documents relating to advice about purchase of the property which is subject of the fraud charge? |
If a client applies to a legal adviser for advice intended to facilitate the commission of a crime and the legal adviser is ignorant of their advice, the communication between them is not subject to legal privilege |
