Criminal (5)

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What is evidence?: Information that goes towards proving or disproving facts
What must the prosecution prove and to what standard for the purpose of an offence?: Both the actus reus and mens rea beyond reasonable dobut
What is the basic rule in terms of the admissibility of evidence?: All evidence, which is sufficiently relevant to the facts in issue, is admissible.
DPP v Kilbourne: Evidence is relevant if it is logically probative or disprobative of some matter which requires proof.
Evidence is relevant if it is logically probative or disprobative of some matter which requires proof.: DPP v Kilbourne
What must you distinguish from admissibility?: Weight - this is a question of fact for the jury or the mags to decide.
Is all relevant evidence admissible?: If an exclusionary rule applies, it does not matter how relevant the evidence in question may be, it will be inadmissible.
What are the principal exclusionary rules?: (1) Confessions (s. 76 PACE)
(2) General discretion (s. 78 PACE)
Where can the definition of confession be found?: s. 82(1) PACE
What is the starting point with confessions made by the accused under s. 76(1) PACE: They are admissible for the reason that the accused would be unlikely to have made it unless it was true. A confession is therefore presumed to be reliable.
If the defence raises the issue of the D's confession having been obtained by oppression, what happens?: The prosecution must prove beyond reasonable doubt that the confession was not obtained due to oppression or due to things said or done which render the confession unreliable
R v Fulling: (1) The term of "oppression" should be given its ordinary dictionary meaning; and
(2) in determining what amounted to oppression in a particular case, the court may have regard to the character and experience of the suspect.
Does oppression require impropriety on the part of the police?: Yes.
What behaviour on the part of the police has been found to amount to oppressive conduct?: Shouting at a suspect what they wanted him to say - R v Stephen Miller
R v Stephen Miller: Shouting at a suspect what the police want him/her to say amounted to oppressive conduct on the part of the police
What must there be between an act of oppression and confession to render the confession unreliable?: A causal link - the oppression must have caused the confession to be made.
Must there be impropriety on the part of the police in the context of an unreliable confession?: No, unlike confessions obtained under oppression.
A confession may be invalidated under s. 76(2)(b) where there is no suspicion of impropriety: R v Fulling
R v Delaney: Confession not recorded by police. This was held to be inadmissible because the court did not know what questions were put to the suspect.
Confession not recorded by police. This was held to be inadmissible because the court did not know what questions were put to the suspect.: R v Delaney
What is one difference between s. 76 (confessions) and s. 78 (unfair evidence)?: Under s.78 a judge has discretion to exclude evidence. S. 76 provides for an absolute requirement to exclude.
The fact that there has been a breach of the code does not of itself mean that evidence has to be rejected: - R v Delaney
- R v Delaney - breach of code: The fact that there has been a breach of the code does not of itself mean that evidence has to be rejected
R v Walsh: There have to be 'significant and substantial breaches' of PACE for s. 78 to be triggered
There have to be 'significant and substantial breaches' of PACE for s. 78 to be triggered: R v Walsh
Is opinion evidence admissible.: It is generally inadmissible.
In terms of identification evidence, what must you remember and state in the exam?: An honest witness can be a mistaken witness
What is the name of a parade of witnesses?: A VIPER (Video Identification Parade Electronic Recording).
What are the two preconditions before you should decide that identification is a live issue?: (a) D must dispute the identification evidence; and
(b) the ID evidence is wholly or substantially the only evidence implicating D
R v Turnbull: ADVOKATE
Run through ADVOKATE: A mount of time observed
D istance
V isibility
O bstruction
K nown or seen before
A ny reason to remember
T ime lapse
E rror or material discrepancy
Having considered the ADVOKATE factors, what could a judge conclude?: That the evidence is so weak that it would lead to an unsafe conviction. If this is the case, the judge will withdraw the case from the jury
What will a judge do if (s)he determines that the identification evidence is strong enough to be left to the jury or weak but supported by some other evidence?: Allow the trial to proceed but in summing up explain to the jury that they must decide whether D was the person seen by the witness.
In R v Turnbull, what guidelines for judges did the CA provide?: (1) the special need for caution before convicting the accused in reliance on the correctness of the identification, considering:
(a) mistaken witnesses can be convincing ones;
(b) examine the circumstances in which the ID by each witness came to be made; and
(c) specific weaknesses (ADVOKATE).
For the purpose of a good character, what is the name of the direction that the judge will give in summing up?: Vye direction, after the case R v Vye
What section governs bad character evidence?: s. 98 of the Criminal Justice Act 2003
For the purpose of bad character evidence, where can the definition of 'misconduct' be found?: S. 112 - the commission of an offence or other reprehensible conduct.
When is evidence of bad character admissible under the CJA 2003?: s. 101 CJA 2003 - The seven gateways
What two elements pertain to gateway D?: s. 103(1)(a) and (b)
For the purpose of s. 103(1)(a), how will the prosecution show 'propensity' to commit offences?: S. 103(2) allows evidence to be admitted of the D's previous convictions for:

- offences of the same description
- offences of the same category
Currently what are the two named categories of offences for the purpose of s. 103(2)(b) CJA 2003?: Offences under the Theft Act (namely robbery, deception and taking a vehicle without consent) and sexual offences against children.
R v Hanson - principle: For the purpose of showing propensity, convictions may be admitted where they are evidence of the D's propensity to commit offences of the kind for which he is charged.
For the purpose of showing propensity, convictions may be admitted where they are evidence of the D's propensity to commit offences of the kind for which he is charged.: R v Hanson
Guidelines - R v Hanson: (1) No minimum number of events are needed to show propensity (fewer the convictions the weaker the evidence)
(2) A single previous conviction will probably no show propensity
(3) 'Propensity' is not limited to categories or types of convictions, e.g. conviction for common assault for a D charged with threatening behaviour, potentially shows 'a propensity to commit violence'.
How does the CJA 2003 try to safeguard Ds?: S. 101(3) - prevents the court from admitting evidence under (1)(d) - (g) when the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit ti.
Must the prosecution serve notice on the D if they intend to adduce bad character evidence that has not been agreed with the defence? Need to learn auth.: Yes - S. 111(2)

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