Presumption of Innocence, Burden and Standard of Proof

The presumption of innocence is enshrined in Article 6 ECHR but

it is not recognised as an absolute since legislatures may reverse
the burden of proof within reasonble limits which take into
account the importance of what is at stake and of maintaining
the rights of the defendant.
o If character evidence is admitted then it may undermine
the presumption of evidence
Woolmington v DPP (1935) Throughout the web of English
criminal law one golden thred is always to be seen, that it is the
duty of the prosecution to prove the prisoners guiltNo matter
what the charge or where the trial, the principle that the
prosecution must prove the guilt of the prisoner is part of the
common law of England ad no attempt to whittle it down can be
entertained.

The Right to Silence

Step 1: Introduction
This question deals with issues relating to the right to silence. The right
to silence is an aspect of the privilege against self-incrimination
whereby a suspect who is being interrogated by a state official is not
forced to respond to questions. This principle is applied to protect the
individual from the power of the state.
Historically the common law provided that a refusal to give an
explanation in the face of official questioning could not be offered as
prosecution evidence, apart from the special circumstances outlined in
R v Parks [1976] 1 WLR 1251.
The biggest issue was the common law rules provided an incentive for
suspects to make ambush defences; to withhold information from the
police at the stage of investigation and then to take the prosecution by
surprise at a late stage by springing a defence based on the withheld
information.
Galligan (1988, p.70) quotes the former Metropolitan Police
Commissioner, Peter Imbert, saying the protection of silence had done
more to obscure the truth and facilitate crime than anything else in this
century.
Parliament effected a fundamental change in the law in sections 34, 36
and 37 of the Criminal Justice and Public Order Act 1994 (CJPOA).
These sections cover circumstances where a court may invite the
drawing of inferences from an accuseds silence.
The new provisions have generated considerable controversy and
unease that they are disproportionately eroding defendants rights.
(Spencer 2013, p. 112)
To allow an accuseds pre-trial silence to be used against him/her at
trial would indirectly place undue pressure on suspects, especially
vulnerable suspects, to speak. Also might result in the production of
unreliable evidence. Those who are innocent might in effect be
pressured into incriminating themselves.
Step 2: Can adverse inferences be drawn from Ds silence before pretrial (eg. at police station)? (s.34 CJPOA)

The purpose of s.34 is to encourage speedy disclosure of a genuine

defence and to permit adverse inferences to be drawn where a defence
has been fabricated later (R v Lowe [2003] EWCA Crim 3182 at 22).
Section 34 applies to when:
s.34(1)(a) allows an inference to be drawn when a suspect is silent
when questioned under caution prior to charge.
The police must provide a caution before they commence
questioning. Code of Practice C, paragraph 10.5 issued under the
Police and Criminal Evidence Act 1984 (PACE) requires a police
officer to caution the suspect, of the possible consequences of
his/her failure to mention relevant facts, before questioning him
once there are grounds to suspect him of an offence.
R v Park [1994] Crim LR 285 at the scene interviews are not
admissible. Court of Appeal did not apply s.78 PACE to exclude
that part of the evidence. even if the roadside conversation
should not be regarded as an interviewit was, as prosecuting
counsel said, only just an interview
s.34(1)(b) allows an inference to be drawn when a defendant is silent
once he has been charged with an offence or officially informed he
might be prosecuted.
***If questioned at authorized detention centre and not offered
opportunity to consult a solicitor before being questioned then no
adverse inference can be drawn (s.34(2A)).
Failure to Mention Facts Following Legal Advice:
Jury is allowed to draw adverse inferences based on advice to stay
silent given by a solicitor.
Howell [2003] EWCA Crim 1

Prosecution said to D even though your solicior advised you to remain

silent you could have still answered the polices questions. D says
what was the point of me havng a solitor there if I wasnt going to
take his advice.
Laws LJ suspects condition - ill health, mental disability, confusion,
intoxication, shock etc. or inability to recall events will must likley
justify silence

R v Beckles [2004] EWCA Crim 2766 jury operates two stage test

1. Did D have no story to give at the time, or no story that he was

prepared to have investigated? If the jury decide against D here, then
adverse inferences can be drawn. If they find in his favour, stage two
comes into play.

2. Was Ds reliance on legal advice reasonable in the circumstances,

assuming that he did have a story to give, and there is a question why
he did not give it at the time. If it was reasonable not to mention the
facts at the time then no adverse inferences can be drawn.

Pre-prepared Statements (Can circumvent s.34 as long as you dont

omit facts)
R v Knight [2004] 1 WLR 340

D was charged with indecent assault on a child. At the start of a police

interview his solicitor gave a written statement and D failed to answer
further questions. His evidence at trial was consitent with the content
of the statement.
Adverse inferences could NOT be drawn when a pre-trial written
statement was comprehensive and new matieral was not raised at
trial.
Court cautioned that pre-prepared statement does not give automatic
immunity, as you cannot add new facts to it or adverse inferences can
be drawn from that.

R v Beckles [2004] EWCA Crim 2766

When evidence has been given which is inconsistent with the contents
of a pre-prepared statement, the inferences that a jury can draw are
not limited to recent fabrication. This is because the courts have
recognised that such an inference would be of limited use when a preprepared statement is read out in interview. However, it is open for a
jury to consider whether the accused did not respond to the police
questions because his/her account would not stand up to questioning
or any other adverse inference that they deem appropriate.

Difficulties in Directing the Jury on s.34

R v Argent [1997] 2 CR App R Court of Appeal emphasized that
what inferences it would appear proper to draw from silence is
ultimately a question for the jury.
Bresa [2005] EWCA Crim 1414: It is a matter of some anxiety
that, even in the simplest and most straightforward of cases,
where a direction is to be given under s.34, it seems to require a
direction of such length and detail that it seems to promote the
adverse inference to a height it does not merit.
S.78 of PACE allows judge to exclude evidence being used to
show Ds failure to mention to facts (needs to be significant and
substantive breach in order to warrant exclusion)
o D claims that he mentioned a fact but it was not recorded
because the interview itself was not recorded or D didnt
sign the record of interview (Keenan [1990] 2QB)

o Decepton by police about meaning of caution or evidence

against the accused
o Unsafe to attach probative significane for silence of a
mentally ill/handicapped suspect
Step 3: Can adverse inferences be drawn from Ds failure/refusal to
account in the police station for object/substances/marks on D (eg.
blood on clothing)? (s.36 CJPOA)
s.36(1)
(a) a person is arrested by a constable, and there is
(i) on his person; or
(ii) in or on his clothing or footwear; or
(iii) otherwise in his possession; or
(iv) in any place in which he is at the time of his arrest,
any object, substance or mark, or there is any mark on any such object; and
(b) that or another constable investigating the case reasonably believes that
the presence of the object, substance or mark may be attributable to the
participation of the person arrested in the commission of an offence specified
by the constable; and
(c) the constable informs the person arrested that he so believes, and
requests him to account for the presence of the object, substance or mark;
and
(d) the person fails or refuses to do so
(2)(d) Where this subsection applies the court of jury, in determining whether
the accused is guilty of the offence charged, may draw such inferences from
the failure or refusal as appear proper.

Compton [2002] EWCA Crim 2835

D was questioned about various drug offences. Claimed large amount

of cash in safe was derived from legitimate antique business. However,
much of the cash had traces of herione on it. D explained this was
because he was as heroine user.
Court held this explaination did not account for the object for the
purpose of s.36. It should be left up to the jury to decide whether
adverse inferences should be drawn or not.

Step 4: Can adverse inferences be drawn from Ds failure/refusal to

account in the police station for his/her whereabouts? (s.37 CJPOA)
s.37
(1) Where

(a) a person arrested by a constable was found by him at a place at or

about the time the offence for which he was arrested is alleged to have
been committed; and
(b) that or another constable investigating the offence reasonably
believes that the presence of the person at that place and at that time
may be attributable to his participation in the commission of the
offence; and
(c) the constable informs the person that he so believes, and requests
him to account for that presence; and
(d) the person fails or refuses to do so
2(d) Where this subsection applies the court of jury, in determining whether
the accused is guilty of the offence charged, may draw such inferences from
the failure or refusal as appear proper.

Step 5: Can adverse inferences be drawn from Ds silence at trial?

(s.35 CJPOA)
S. 35
(1) At the trial of any person for an offence, subsections (2) and (3) below
apply unless
(a)the accuseds guilt is not in issue; or
(b)it appears to the court that the physical or mental condition of the
accused makes it undesirable for him to give evidence;
but subsection (2) below does not apply if, at the conclusion of the evidence
for the prosecution, his legal representative informs the court that the
accused will give evidence or, where he is unrepresented, the court
ascertains from him that he will give evidence.
(2)Where this subsection applies, the court shall, at the conclusion of the
evidence for the prosecution, satisfy itself (in the case of proceedings on
indictment with a jury, in the presence of the jury) that the accused is aware
that the stage has been reached at which evidence can be given for the
defence and that he can, if he wishes, give evidence and that, if he chooses
not to give evidence, or having been sworn, without good cause refuses to
answer any question, it will be permissible for the court or jury to draw such
inferences as appear proper from his failure to give evidence or his refusal,
without good cause, to answer any question.
(3)Where this subsection applies, the court or jury, in determining whether
the accused is guilty of the offence charged, may draw such inferences as
appear proper from the failure of the accused to give evidence or his refusal,
without good cause, to answer any question.

(4)This section does not render the accused compellable to give evidence on
his own behalf, and he shall accordingly not be guilty of contempt of court by
reason of a failure to do so.

Murray v UK [1996] 22 EHRR 29

D found in a house where a police informer was held captive and

interrogated on tape. D refused to answer police questions and did not
give evidence at trial.
Guilty of aiding and abeding. Trial judge drew adverse inferecens from
Ds failure to give explaination for his presence at any time. (This
might not be acceptable in a jury trial as reasons for decisions cannot
be scrutinized for fairness).
As long as silence did not constitute the sole or main evidence for
conviction implied rights on Article 6 did not prevent silence being
taken into account as evidence. (No infrigement of Article 6 ECHR as
prosecution had strong enough case that this was simply common
sense that you would draw that adverse inference.)
Breach of Article 6 in realtion to denial of access to solicitor as he was
denied for 48 hours.

Step 6: Human Rights Considerations

Article 6(1) ECHR guarnatees the right to a fair trial in the

determination of a criminal charge.
Article 6(2) ECHR states that everyone charged with a criminal offence
shall be presumed innocent until proven guilty
Article 6(3) sets out various minimum rights that come into play when
a person is charged with a criminal offence.
ECtHRs approach has been inconsistent

Condron [2001] 31 EHRR 1

The decision is related with right to silence.

A couple was accused of supplying heroin. They were arrested but at
the moment of questioning by police, they were intoxicated with
heroin. Their solicitor considered them not fit to answer questions and
advised them to do so.
The trial judge directed the juries under s.34 of CJPOA 1994 to draw
adverse inference on their refusal.
In the ECHR, the decision was ruled against the UK as the applicants
right of fair trial were denied. The decision in this case proved that the
ECHR clearly protects the rights of fair trial but the right to silence is
not obviously discussed in the judgement. Violation of Article 6.

Heaney and McGuinness v Ireland [2001] 33 EHRR 12

Anti-terrorist legislation which required D to tell police where he was on

a particular night before there was a bombing. D convicted for not
telling police where he was.
ECtHR said the essence of the right was destroyed because there was
a huge degree of self-compulsion to self-incriminate

Step 7: Conclusion
All powers to exclude evidence in the exercise of discretion are
preserved by section 38(6) of the CJPOA 1994. It is open to the trial
judge to exclude the evidence of silence although pursuant to sec
78(1) PACE 1984 or the common law discretion to exclude evidence to
ensure a fair trial. R v Argent [1997] 2 Cr App R 27 Court of Appeal
said proper course of judgement is ordinarily for a trial just to allow
evidence to be given and direct jury carefully concerning the drawing
of inferences.

Hearsay Evidence
Step 1: Introduction
Hearsay evidence is evidence of an out-of-court statement that is
being adduced in court as evidence of a matter stated in the
statement.
This type of evidence is perceived as unreliable and as such requires
[Hearsay evidence] is not the best evidence and it is not delivered on
oath. The truthfulness and accuracy of the person whose words are
spoken to by another witness cannot be tested by cross-examination,
and the light which his demeanour would throw on his testimony is
lost. (Lord Normand at 486 Teper v R [1952])
Hearsay evidence in criminal proceedings is governed by the Criminal
Justice Act 2003. The general rule on hearsay evidence is set out in
s.114(1) In criminal proceedings a statement not made in oral
evidence in the proceedings is admissible as evidence of any matter
stated. It is an exclusionary rule, unless it comes within a valid
exception under s.114(1)(a)-(d).
In R v Riat [2013] the Court of Appeal provided valuable guidance
concerning the approach that the domestic courts should adopt when
hearsay evidence is provided in criminal proceedings. The Court of
Appeal also considered whether the admission of hearsay evidence in
criminal proceedings would be compatible with the Ds Article 6 right
to a fair trial.
Step 2: Is the statement hearsay? (s.115)
s.115(2) and (3)

(2) A statement is any representation of fact or opinion made by a person by

whatever means; and it includes a representation made in a sketch, photo of
it or other pictorial form.
(3) A matter stated is one to which this Chapter applies if (and only if) the
purpose, or one of the purposes, of the person making the statement appears
to the court to have been: (a) to cause another person to believe the matter;
or (b) to cause another person to act or a machine to operate on the basis
that the matter is as stated.

R v Twist [2011]
1. What does the party relying on the evidence tying to prove?
2. Was the statement made in relation to what they wanted to prove?

Eg. Person writing statement down in diary and except no one else to
read it then it is not a matter stated because you are not trying to

convince anyone of anything. Must be making statement in order to

convince a person to believe you.

3. If both satisfied, is it express statement to another person (hearsay)

or is it an implication to that information (not hearsay)?

Eg. If telling friend that drugs I got last night were really good from the
guy next door. Saying that to make them believe the quality of drugs.
My express statement is about how good the drugs are. The implied
statement is that person is a drug dealer. Yes its on issue. Yes Ive said
it to another person. But, NO it is not express. Have not expressly said
that person is a drug dealer.

Step 3: Is the evidence admissible? Is there a specific statutory

justification (or gateway) permitting the admission of hearsay
evidence (s.116118)?
s.116 unavailable witness
s.116(1) three hurdles (need to pass all)
(1)(a) Had the witness been at court the evidence would have been
allowed
(1)(b) Cannot be anonymous and not present. Need to be identifiable.
(1)(c) any one (not all) of 5 conditions in s.116(2)
(2)(a) that the relevant person is dead;
(2)(b) that the relevant person is unfit to be a witness because
of his bodily or mental condition;

R v Setz-Dempsey (1994) - Issue concerning re-trial of someone where

main witnesses health was deteriorating. Should they have to give
evidence again or can their transcripts at the first trial be good
enough? First doctor said they were fit to give evidence. Judge
reviewed the video of the witness being cross examined and said that
was fine.
R (on the application of Meredith) v Harwich Justices [2006] - Although
courts liberal to medical profession. They still require evidence of a risk
of health. Doctor provided noted that said not in best interest to
provide evidence. Court said this does imply that the witness it not fit
but the court needs more than that.

(2)(c) that the relevant person is outside the United Kingdom

and it is not reasonably practicable to secure his attendance;

What efforts have the police made to secure the attendance of that
witness. Must do what is reasonable.

C [2006] - fraud case. Witness had decided not to come and give
evidence. Tried to rely on statements made earlier. Clearly hearsay.
Wanted to rely on statutory exception. What measures had the
prosecution taken? Hadnt done anything. Just asked and he said no.
Court of Appeal does not fall within the exception and will be
excluded for hearsay. (Particular because the witness was a central key
witness).

(2)(d) that the relevant person cannot be found although such

steps as it is reasonably practicable to take to find him have
been taken;

Has prosecution taken reasonble steps to try and track down the
witness?
Adams [2008] - witness unavailable. Potential admissibility of previous
transcripts. Couple of phone calls to the witnesses house which went
unanswered. When it is someone who is relatively local in the same
country more than a couple phone calls is required.

(2)(e) - that through fear the relevant person does not give (or
does not continue to give) oral evidence in the proceedings,
either at all or in connection with the subject matter of the
statement, and the court gives leave for the statement to be
given in evidence.

Begins to give evidence but then breaks down and refuses to give any
more evidence. Prosecution will want to use previous witness
statements.
S.116(3) - For the purposes of subsection (2)(e) fear is to be widely
construed and (for example) includes fear of the death or injury of
another person or of financial loss.
o Davis [2006] general idea of broad definition of fear and the
fact that if you are trying to rely on the fear exception you do
not have to demonstrate extensive evidence. Doesnt require
the person to come to court to show their fear. Enough to just
have a credible story as to why you are fearful.

s.116(5) A condition set out in any paragraph of subsection (2) which is

in fact satisfied is to be treated as not satisfied if it is shown that the
circumstances described in that paragraph are caused: (eg. if I say I
want to rely on witnesses evidence and he isnt there because he is
dead. But, I killed him.)
(a) by the person in support of whose case it is sought to give
the statement in evidence; or
(b) by a person acting on his behalf; in order to prevent the
relevant person giving oral evidence in the proceedings (whether
at all or in connection with the subject matter of the statement).

Rowley [2012] - Witness to a murder that made himself unavailable

and went into hiding. Witness received several threatening text
messages from the D. Although the witness evidence he had previous
giving was anti-defendant there were also remarks useful for the
defendant. Not allowed by court of first instance and also upheld by
Court of Appeal. Prosecution could but Defendant could not because he
caused the circumstances of that exception.

s.117 Business and other documents

(1)In criminal proceedings a statement contained in a document is admissible
as evidence of any matter stated if
(a)oral evidence given in the proceedings would be admissible as
evidence of that matter,
(b)the requirements of subsection (2) are satisfied, and
(c)the requirements of subsection (5) are satisfied, in a case where
subsection (4) requires them to be.
(2)The requirements of this subsection are satisfied if
(a)the document or the part containing the statement was created or
received by a person in the course of a trade, business, profession or
other occupation, or as the holder of a paid or unpaid office,
(b)the person who supplied the information contained in the statement
(the relevant person) had or may reasonably be supposed to have had
personal knowledge of the matters dealt with, and
(c)each person (if any) through whom the information was supplied
from the relevant person to the person mentioned in paragraph (a)
received the information in the course of a trade, business, profession
or other occupation, or as the holder of a paid or unpaid office.
(3)The persons mentioned in paragraphs (a) and (b) of subsection (2) may be
the same person.
(4)The additional requirements of subsection (5) must be satisfied if the
statement
(a)was prepared for the purposes of pending or contemplated criminal
proceedings, or for a criminal investigation, but
(b)was not obtained pursuant to a request under section 7 of the Crime
(International Co-operation) Act 2003 (c. 32) or an order under
paragraph 6 of Schedule 13 to the Criminal Justice Act 1988 (c. 33)
(which relate to overseas evidence).
(5)The requirements of this subsection are satisfied if
(a)any of the five conditions mentioned in section 116(2) is satisfied
(absence of relevant person etc), or
(b)the relevant person cannot reasonably be expected to have any
recollection of the matters dealt with in the statement (having regard
to the length of time since he supplied the information and all other
circumstances).

s.118: Common Law Exceptions

1. Public information s.118(1) - General document of public record
pretty hard to track down the author

2. Reputation as to character s.118(2) - Rarely applied old common

law exception give knowledge about persons reputation rather than
the actual person where court thinks this is beneficial it can be used
3. Reputation or family tradition s.118(3)
4. Res gestae s.118(4): any rule under which is criminal proceedings
a statement is admissible as evidence of any matter stated if
(a) the statement was made by a person so emotionally overpowered
by an event that the possibility of concoction or distortion can be
disregarded;

Eg. D who is caught red handed knife in hand what they say
immediately at the time they are caught. More likely to be true what
they say in that moment.
Bedingfield [1879] D slit the throat of the victim. Statement made by
victim when he was found look what Harry has done. Makes Harry
look guilty. This evidence was NOT allowed because it wasnt part of
the thing done it was after. Too far away from the event itself. (Old and
highly criticized for being narrow)
Rotten [1971] Privil Council. D was charged with murder and D was
the husband of the victim. Shot his wife but had only done so
accidently. Victim had called for emergency beforehand because she
was worried. Less likely that she was shot by accident. Could come
within exception. Doesnt have to be necessarily the particular event
itself but while victim is emotionally overwhelmed. (No hearsay under
the current law. Relying on implication. Implied statement. Wouldnt
come under exception anyway).
Andrews [1987] Dying man identifying his killers. House of Lords
made clear that this kind of circumstance would come within
exception. Court emphasises focus not on time period but was witness
still so emotionally overpowered that it made fabrication unlikely.
Harris [2002] although exception has grown it does not mean it is all
encompassing. Threats to kill. Statement of 8 year old girl who made
telephone call to police. At time of call it was found that the girl had
already spoken to her mother before she spoke to the police. Having
spoken to her mother there was too much risk for fabrication.
Use exception even where witness is potentially available to come to
court but for whatever reason the prosecution would like to use their
previous statements. Point of discretion for judge. Where possible a
witness should be required to come to court. However, will turn on
particular facts of the case.
AG Ref (No 1 of 2003) - GBH D was accused of throwing mother down
the stairs. People had heard mother shouting beforehand. While
shouting she named the D. Prosecution did not want to call the mother

herself. Court of first instance did NOT allow. Because she was an
available witness she should have been called. Court of Appeal: 1)
because it came within the exception it should have been allowed 2)
However, it should have then been excluded because it was UNFAIR to
allow that evidence to go to court when the witness could have come
to court.
Barnaby v DPP [2015] Offences against the person Witness victim
of long term abuse form her partner. In fear of providing evidence in
fear of retaliation in the future. Evidence that she called 999 to report
her bf was attacking her. Potentially an available witness but entirely
understandable why she didnt want to give evidence. Court
exception is triggered and therefore IS admissible despite being
hearsay. Shouldnt be excluded by any other means.

(b) the statement accompanied an act which can be properly

evaluated as evidence only if considered in conjunction with the
statement, or;

McCay [1990] Witness identification, identifying #8 and pointed to

#8. Time trial came around witness couldnt remember what they said.
Even though that was a statement it comes within this exception. In
order to understand the movement you also have to understand the
statements being made.
Limits:
o Lynch [2008] D and others in a school gang beat up victim.
Witnesses picked out D from a line-up. Police also asked what
did you see that person do and they explained the Ds role in the
attack. At trial witnesses couldnt remember. Could they use
statements? Court allowed evidence 1) statutory exceptions
because procedures in case had been followed 2) res gestaue in
line with McCay 3) general discretion. Court of Appeal: First two
grounds were found to have been wrong BUT found to be
allowed under discretion. (Statutory exceptions PACE does not
provide exceptions, just relates to procedure and res gestate
statements went much further ie. what did you see the D doing).

(c) the statement relates to a physical sensation or a mental state

(such as intention or emotion). [Potentially quite wide very difficult to
prove mental state within criminal law slightly more relaxed in
recognition of demonstrating mental state]. Can be defendant or
witness.

Gilfoyle [1996] - D charged with murdering wife. Claimed that it wasnt

murder because she committed suicide, which he provided a suicide
note. However, there was evidence available from one of wifes friends
who was told by wife that she was asked to help husband with research

of suicide notes. She was asked to write one. Court of Appeal: allowed
this going to prove her state of mind. THIS IS HOW EXCETION
SHOULD WORK.
Wainwright [1875] - Declaration from deceased saying he intended to
visit the premises. Evidence of his intention was not allowed.
Stretching too far.
Buckley [1893]- Police officer murdered. Tracking D who was up to no
good again. Evidence was allowed.

5. Confessions s.118(5) - An exception to hearsay confession needs

to be an exception to hearsay or that evidence would be excluded.
6. Admissions by agents s.118(6) - Confession but made by third
parties. Where witness confesses on Ds behalf but only where they
have express permission by the D to provide that confession.
7. Common enterprise s.118(7) - Groups of people (eg. gangs)
hearsay statements made by different parties within groups can be
used against other parties in the group
8. Expert evidence s.118(8) - Expert opinion come to court (eg.
DNA expert, although they are the person standing their giving the
evidence they are likely not the person actually doing the tests at the
lab). Repeating things that they were told by others outside the
courthouse. Within the testimony of an expert there will be all sorts of
hearsay statements but this allows this evidence to be allowed in
court.
All Parties Agree

Where statements are uncontested, this is quite common and certainly

more efficient for the court.
Eg. When disputing case with other side you arent disputing every
piece of evidence all the time. If you have no contested evidence when
you dont have to go through exceptions
More real world, rather than problem question.

Interests of Justice

(Law commission recommended new condition to be safety valve

occasional case that we didnt think about so evidence doesnt have to
be discluded)
David Ormerod This exception should be interpreted more broadly.
Better to think of broad terms of what is in the interest of justice.

Step 4: What material is there which can help to test or assess the
hearsay? (s.124)

Where the admission of hearsay evidence is justified under a hearsay

exception, the court should consider both the apparent reliability of
the evidence and the practicability of the jury testing and assessing
its reliability.
CJA 2003, s.124 Testing credibility of absent witness (must be
possible to test credibility of that witness even if they are not present)
o Possbile way to exclude hearsay even though it comes within an
excpetion.

Step 5: Is there a specific interests of justice test at the admissibility

stage? (s.116(4) interests of justice test)

S.116(4) - Leave may be given under subsection (2)(e) only if the court
considers that the statement ought to be admitted in the interests of
justice, having regard: (court must still consider the rights of the
defendants right to a fair trial). (a) to the statements consents; (b) to
any risk that its admission or exclusion will result in unfairness to any
party to the proceedings (and in particular to how difficult it will be to
challenge the statement if the relevant person does not give oral
evidence); (c) in appropriate cases, to the fact that a direction under
section 19 of the Youth Justice and Criminal Evidence Act 1999 (special
measures for the giving of evidence by fearful witnesses etc) could be
made in relation to the relevant person; and (d) to any other relevant
circumstances.
o Doherty [2007] matter of discretion for a court. Only interfere
if the ruling was wrong, perverse and unreasonable

Step 6: If there is no other justification or gateway, should the evidence

nevertheless be considered for admission on the grounds that
admission is, despite the difficulties, in the interests of justice (s 114(1)
(d)).

If no exceptions apply court has discretion to admitt but need to take

into account the followiong factors in s.114(2): [**any excpetions in
s.116 to 118 take priority]
o (a) how much probative value the statement has (assuming it to
be true) in relation to a matter in issue in the proceedings, or
how valuable it is for the understanding of other evidence in the
case;
o (b) what other evidence has been, or can be, given on the
matter or evidence mentioned in paragraph (a);
o (c) how important the matter or evidence mentioned in
paragraph (a) is in the context of the case as a whole;
o (d) the circumstances in which the statement was made;
o (e) how reliable the maker of the statement appears to be;
o (f) how reliable the evidence of the making of the statement
appears to be;

(g) whether oral evidence of the matter stated can be given and,
if not, why it cannot;
o (h) the amount of difficulty involved in challenging the
statement;
o (i) the extent to which that difficulty would be likely to prejudice
the party facing it.
ED [2010] - this exception should not be used when there is a much
clearly exception, especially in the statues.
Tindle [2011] - Backed up ED. On appeal Court of Appeal found
evidence was wrongly admitted under the interest of justice. They said
it should have been brought under s.116 instead.
Sadique and Hussain [2009] - Successful use. Victim of attempted
murder was paralyzed. Initial trial where witness gave evidence. At retrial witness refused to give evince. The first time it took too much out
of him so he didnt want to do it again. They applied under the Interest
of Justice s.114(2). In these circumstances it was allowed because the
victim was paralysed so you wouldnt get any body language anyway
and he was already crossed examined before.
Seton [2010] - D on trial for murder, part of defence accused another
party. Witness did not give evidence at trial. Witness phoned family
and professed innocence to family, recorded phone conversation.
Evidence was allowed because his presence would have gained
relatively anything in court. It was enough to use the recording.
Taylor [1006] - Appeal as court hadnt gone through every detail. No
requirement to explicitly consider every point a) to i). But, they
shouldnt be ignored. Have to demonstrate some engagement (doesnt
have to be them all, but needed evidence that you are at least using
one or two of the conditions).
o

Step 7: Even if prima facie admissible, ought the evidence to be ruled

inadmissible (s.78 of PACE and/or s.126 of CJA)?
s.126 CJA

If the evidence does fall under one of the expcetions general discretion
of judge to exclude. Eg. evidence sufficientyl useful that it wont waste
time (provide explicit case management rule to avoid clogging up court
time)

s.78 PACE

If the evidence does fall under one of the exceptions judge has
discretion to exclude remove evidence based on fairness eg. police
had done something wrong

Step 8: If the evidence is admitted, then should the case subsequently

be stopped under s.125 because evidence is unconvincing?

Prosecution will provide evidence first in a trial and if there only

evidence is hearsay evidence and if that evidence is deemed
unconvincing by the judge then they should direct an acquittal not
the same as no case to answer (hasnt been evidence on all points)
evidence HAS been provided as to each element of the crime but
judges that evidence to be unconvincing rather strictly applied)
Under s.1125 the judge must assess the reliability of the hearsay,
which involves considering the strengths and weaknesses of the
evidence, the tools available to the jury for testing it and its
importance to the case as a whole. May come into play at any time
after the close of the prosecution case, that the judge and counsel
must keep it under review throughout the trial and that, since s 125
requires an overall appraisal of the case, it will often be best to deal
with s 125 after all the evidence has been given.
Joyce [2005] - Judge should have directed acquittal. Case involved
statement of witness to a shooting, ID evidence. Witnesses werent
there and there statements were somewhat contradictory. Relatively
low threshold. Really needs to be unconvincing to be removed.

s.125 (1) If on a defendant's trial before a judge and jury for an offence the
court is satisfied at any time after the close of the case for the prosecution
that:
(a) the case against the defendant is based wholly or partly on a
statement not made in oral evidence in the proceedings; and
(b) the evidence provided by the statement is so unconvincing that,
considering its importance to the case against the defendant, his
conviction of the offence would be unsafe; the court must either direct
the jury to acquit the defendant of the offence or, if it considers that
there ought to be a retrial, discharge the jury.

Step 9: Multiple Hearsay Rule (s.121)

(1) A hearsay statement is not admissible to prove the fact that an
earlier hearsay statement was made unless
a) either of the statements is admissible under section 117, 119 or
120,
Important to note s116 and s118 are not here
b) all parties to the proceedings so agree, or
c) the court is satisfied that the value of the evidence in question,
taking into account how reliable the statements appear to be, is
so high that the interests of justice require the later statement to
be admissible for that purpose.
Mayher v DPP [2006] - Witness left note on a car that had been
damaged by someone else. Made a note of the licence plate. Original
note was lost but police had made copy of the licence plate. Discussed

potential for multiple hearsay. Was allowed because it was very

unlikely to have been fabricated.

Step 10: Human Rights and Hearsay

Issue of potential incompatibility after HRA hearsay is compatible with
Article 6. However, it will only avoid a breach if there are sufficient
safeguards in place in order to prioritise best evidence and allow for
effective challenge of evidence.
Right to a Fair Trial: Article 6(3): Everyone charged with a criminal offence
has the following minimum rights (d) to examine or have examined
witnesses against him and to obtain the attendance and examination of
witnesses on his behalf under the same conditions as witnesses against
him.
Sellick [2005] - Compatibility between English law and European rule.
Challenge credibility of witness even when they arent in court.
Kostovski-v-Netherlands (1989) - No requirement in that case that evidence
should be challenged live as long as there is some potential way to
challenged evidence behind the scene. Highlighted potential problem for
English law.
Luca-v-Italy (2003) - Where hearsay evidence is the sole and decisive
evidence and there is NO chance to challenge the witness in person or in
pre-trial then it will be breach of Article 6.
D [2003] - D was not given opportunity to challenge witness in rape case.
Witness was simply an elderly person who was suffering with alzheimer.
Court allowed recorded statement instead of coming into court. No
opportunity to challenge witness. Was not about sole and decisive but
about balance of fairness in the trial. Court dismissed argument.
Al-Khawaja and Tahery-v-United Kingdom [2009] - Indecent assault and
wounding with intent. Evidence in case came form two witnesses, one
was deceased and the other didnt testified through fear (s.116). Hearsay
statement was sole and decisive. This was breach of Article 6 found
against UK.
Horncastle [2010] - Supreme Court looked at Al-Khawaja case. Rejected ECHR
judgement. English law has much greater exclusions in place then most of
Europe. ECHR had misinterpreted English law and said they had paid
sufficient attention to detail to exclusionary rules in English law. Idea of
sole and decisive rule seems counter intuitive. Fact it is decisive seems
odd. How do we know if it is BOTH sole and decisive. That is more of a
jury question. Difficult to apply rule in adversarial system.
Al-Khawaja and Tahery-v-United Kingdom [2011] - Accepted several structural
and historical difference between adversarial. Didnt abandon sole and
decisive rule. Not a strict rule but seen as an important factor to take
into account.

PROBLEM QUESTION: Relevant to highlight the potential for this

to be breach of Article 6. Not automatic breach but something
court would take seriously. They would discuss if evidence was
sole and decisive
Ibrahim (2012) - Court of Appeal provide sum up of debate. sole and
decisive is not automatic exclusion but should be seen as important.
o

Confession Evidence
Step 1: Introduction
Section 76(1) of the Police and Criminal Evidence Act 1984 (PACE)
provides that a confession made by an accused person may be given
in evidence against him in so far as it is relevant to any matter in issue
in the proceedings and it not excluded by the court in pursuance of this
section.
The dangers of allowing confession evidence is that it might not be
authentic, eg. someone may tamper with defendants statement after
they sign it; the means by which the statement was collected might
not be legitimate, as see in Birmingham 6 where defendants were
beaten into providing evidence for convictions; and whether a
confession is reliable, confessions are made under odd circumstances
eg. vulnerable defendants or defendants that take credit for things
they havent done.
Step 2: Is the statement a confession?
Section 82(1) of PACE states a confession includes any statement
wholly or partly adverse to the person who made it, whether made to
a person in authority or not and whether made in words or otherwise.
This is a very broad definition. It therefore does not need to be a full
admission just anything adverse (anything that makes guilt more
likely).
A confession can be made orally, in writing or by conduct, as long as it
is made by the defendant. It does not matter who it is made to, as
seen in R v Henton [2008] the defendant made a confession to his cat
and it was recorded.
In R v Hasan [2005] at 58, the House of Lords took a literal
interpretation of s.76 stating that a statement that is wholly
exculpatory or neutral (eg. I was not there) is not a confession and
does not fall within the scope of s.76(1), even if it turns out to be a lie
later on. They also confirmed that s.76(1) and 82(1) are not
incompatible with Article 6 ECHR.
**Silence alone cannot be a confession. Possibility jury can draw
adverse inferences from silence. See notes on Right to Silence.
Step 3: Is the confession relevant to what the proceedings are about
(76(1) PACE)? Is it excluded through hearsay (ie. is it said by someone
else).

Likely yes to first question

If said by someone else use hearsay rules. See notes on Hearsay.

Step 4: Can the confession be excluded?

S.76(2) PACE provides that there are two grounds on which a

confession sought to be used at trial by the prosecution must be
excluded as evidence
Defence will raise the issue but then HARD legal burden the
prosecution needs to prove that it was NOT obtained in that way,
beyond a reasonable doubt, notwithstanding that it may be true
(looking at procedures the lead to the confession, even if the
statement is true)
(Reading s.76(4)(a) in conjunction with s.76(6)) The fact that a
confession if wholly or partly excluded pursuant to s.76(2) shall not
affect the admissibility in evidenceof any facts discovered.
Derivative evidence (from the confession) is admissible as a matter of
law. The prosecution is forbidden by s.76(5) from introducing evidence
that the fact which was discovered was discovered as a result of a
statement made by the accused; only the defence may introduce such
evidence if it wishes.

PACE s.76
(2) 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 in so far as the prosecution proves to the court beyond
reasonable doubt that the confession (notwithstanding that it may be
true) was not obtained as aforesaid.

s.76(2)(a) Oppression Test

A confession must be excluded from evidence if it is obtained by

opression of the person making it.
S.76(8) provides definition of opression includes torture, inhuman or
degrading treatment, and the use or threat of violence (whether
or not amounting to torture)
The Court of Appeal has suggested that opression suggests harsh
treatment of the confessor and therfore it is only in rare cases that the
prosecution would be unable to prove that a confession was not
obtained by oppression.

R v Fulling [1987] Court of Appeal D confessed after police told her

that her lover had been having an affair with another women and that
women was in the next cell. NOT oppression for providing information.
Oppression should be given its ordinary dictionary meaning. It will
also usually entail bad faith on the part of the interrogator.
R v Emmerson (1990) No opression when police officer raised his
voice and used bad lanaguage.
Paris (1992) - Verbal and physical abuse constitute opression.
Repeadely shouted what we wanted defendant to say even though he
denied it over 300 times.
R v Spens (1991) Particular characteristis of suspect will be taken into
account when decided whether questioning had been opressive.

s.76(2)(b) Reliability Test

R v Barry (1991) D confessed to fraud after promise of bail. D needed

to get out of police station to go to court to contest custody of children.
Confession was not allowed. Sets out test for when confession will be
unreliable:
o Must identify the things said or done by the police leading up
to the confession (any promises, threats, what had been said or
done that potentially has causal link).
Goldenberg (1988) D asked for an interview and then
confessed. D confessed because he hoped to get out on
bail as he was a heroin addict and needed more drugs.
Confession not allowed. Something internal is still
considered reliable.
R v Roberts [2011] Doesnt need to be said or done by
the police. In this case it was pressure to confess by a
boss. Confession not reliable.
o Having established what was said or done, in light of those
things would they make any confession unreliable?
Delaney (1988) defendant was convicted of indecent
assault and the only evidence against him was his
confession. He was 17, had been interviewed without a
solicitor and had a low IQ and educational difficulties.
Evidence from an educational psychologist showed that
the defendant was a vulnerable suspect. The nature of
questioning and the vulnerability to the suspect meant
that the risk of a false confession was too high. The issue
was not whether the confession was true but whether it
was obtained in reliable circumstances.
o Has the P proven that the things said or done was not the causal
link (jury needs to be convinced that there WAS NOT a causal
relationship)

Step 5: Was there a PACE Code violation? Doesnt automatically make

the confession void.

Code C Proper conduction of police interview

o Kirk [2000] Snatched bag from old lady. Police encouraged
suspect to confess but wasnt told lady fell and died and thus
confessed to homicide. Evidence was excluded as you need to
be informed of the charges against you as per 10:1 of PACE
(caution before questioning). Also protected under Article 5
ECHR - Right to liberty and security.
Code D Methods to identify person in investigation (eg. tattoes or
scars, footwear impressions, finger prints etc.)
Code E Not keeping proper records of interview audio recordings
for serious offences
Code F Not keeping proper records of interview requires video
recordings in come cases
S. 58 need to allow access to legal advice
o Some times that you can delay a solicitor coming not
necessarily confession will be automatically inadmissible
o Alladice (1988) - A man was arrested for armed robbery at a
post office, and asked to see a solicitor. He was well aware of his
legal rights on arrest, and wanted a solicitor only as an
independent witness. The police refused a solicitor, and Alladice
was subsequently convicted on evidence including his own
admissions. Dismissing his appeal, the Court of Appeal said
there had been a breach of s.58 in that the proper grounds for
refusal had not been established, but the presence of a solicitor
would have added nothing to the defendant's knowledge of his
rights and there was no reason for his admissions to have been
excluded.
o R v Samule (1988) Court of Appeal considered right to legal
advice was most important fundamnetal right to a citizen. Denial
of access to solicitor led to an exclusion under s. 78.
S. 77 When confession is the sole or substantial evidence in
prosecutions case and the confession was not made in the presense of
an indepent person court needs to warn jury to use special caution.
o Aspinall (1999) - D was arrested on heroin charges and told
police that he was schizophrenic and confirmed by doctors. Still
interviewed without solicitor and without independent person.
Court held this to be a breach as it was clearly a vulnerable
person.

Step 6: General discretion by court to exclude

S. 78(1) PACE 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 the proceedings that the court ought not to admit it.
o Absolam (1988) - A significant and substantial breach of the
rules will wigh heavily in favour of exclusion, but will not lead
automatically to exclusion. Usually not exclusion if defendant is
not considered to have been actually disadvantaged by the
breach.
o R v Mason (1988) section 78(1) is not to be used directly to
discipline the police.
S.83(3) Nothing in this Part of this Act shall prejudice any power of a
court to exclude evidence (whether by preventing questions from
being put or otherwise) at its discretion.
o Evidence capable of prejudicing a fair trial can be excluded by
the judge
o R v Sang [1980] general common law duty to ensure a fair trial

Step 7: Joint Trials and Confession

Where D1 and D2 are co-defendants the proseuction cannot rely on

D1s confession to convict D2 s.76A PACE.
Hayter [2005] If D1 confesses and implicates D2 the confession is
only evidence agaisnt D1 but if the jury are statisfied that D1 is guilty
they may use that finding of guilt as eviednce of the guilt of D2.

Improperly Obtained Evidence

Step 1: Introduction
This question deals with exclusion of evidence based on it being
improperly obtained.
There is no rule of law requiring the exclusion of evidence simply
because it has been improperly obtained. There is a judicial discretion
to exclude such prosecution evidence under both common law and
statue.
It is vital that the right person be convicted and the innocent acquitted
*Most common areas of exclusion: undercover police activity involving
traps or entrapment OR obtaining evidence by acting improperly or
unlawfully (ie. trespassing, breach or evasion or breaches of PACE
Codes of Practice).
Step 2: Is the evidence relevant?

Lord Fraser Fox v Chief Constable (1986) courts job is not to

discipline police for exceeding powers
Lord Lane R v Quinn (1990) function of judge is to protect fairness
of the proceedings. Becomes unfair when one side submits evidence
that cannot be properly challenged.

Step 3: Common Law Rule

Christie [1914] probative value needs to be greater than the

prejudical value (value to case has to be greater than the detriment to
your rights)
R v Sang (1980)
o S was charged with conspiracy to issue forged bank notes. He
sought to exclude evidence obtained, he claimed, due to the
activities of an agent provicateur while he was in prison.
o House of Lords: NO DEFENCE of entrapment in English law.
There was a common law discretion to exlcude relevant evience
(other than confession evidence or evidence obtained after the
commission of the offence) because it was improperly obtained.
o Existence of a discretion to exclude was left unclear

Step 4: Discretion to Exclude under s.78 PACE (exclude evidence which

would adversely affect fairness of the proceedings)
s.78 Exclusion of unfair evidence

(1)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 the proceedings that the court ought not to
admit it.
(2)Nothing in this section shall prejudice any rule of law requiring a court to
exclude evidence.
(3)This section shall not apply in the case of proceedings before a
magistrates court inquiring into an offence as examining justices.

S.78 main authority now used and states that the court may refuse to
allow evidence on which the prosecution seek to rely if it appears to
the court that having regard to all the circumstances including those in
which the evidence was obtained the admission of the evidence would
have such an adverse effect on the fairness of the proceedings that the
court ought not to admit it. S78 is not restricted to unlawfully obtained
evidence but any evidence on which the prosecution seek to rely. It has
been used most successfully to exclude confession evidence that has
been obtained in breach of safeguards of PACE Codes of Practise. Court
of Appeal will interfer with judges exercise of discretion only for
unreasonblness by the Wednesbury principle.
Fairness Test with no clear guidence.
Chalkley [1998] No discreatoin to exclude evidence unless its quality
might be effected based on the way it was obtained.
AG Reference No. 3 (2001) Prosecution used DNA from past cases that
D had been acquitted of. Under PACE sample has to be destryoned if
person is cleared. Where evidence is obtained unlwafully is so powerful
that refusing to admit it would afront justice it will be allowed.

Step 5: Entrapment

Pre-PACE R v Sang [1980] No substantive defence of entrapement

in English law
David Ormerod (2006) suggested covernt policing review. Was applied
in Moore and Burrows [2013].
o An initial reasonable suspicion of criminal activity. This provides
a legitimate trigger for the police operation. More particularly, it
is not for the police to engage in random virtue testing or to
entice people into committing crimes that otherwise they would
not have committed.
o A legitimate control mechanism in the form of proper
authorisation and supervision of the police operation.
o (The demonstrated necessity and proportionality of the means
employed to police particular types of offence.

o
o

The concepts of the unexceptional opportunity and causation.

The authentication of the evidence.

Williams v DPP [1993] Unlocked van full of cigarettes left in street.

Guilty as police had acted lawfully and no incitement.

Teixeira de Castro v Portugal [1998]

o Two plice officers who were undercover had instigated serious
crimes without following national Portuguese procedure.
o Violation of Article 6 as the officers had instigated and insighted
the offence and nothing to show it would have been commited
otherwise.

R v Looseley [2001] AND A-Gs Reference No. 3 [2001]

o Loosely - D identified as a drug dealer during surveillance
operation at a pub. During undercover operation police went into
pub and made it known that they were interested in buying
heroine. Given Looselys name but regulars in the pub.
Contacted him and asked if he could supply brown. Loosely
needed prompting to supply heroine. Gave it to police on 3
separate occasions. Found Guilty.
o AG Ref - Accused agreed to supply undercover police with
heroine after they supplied him with cigarettes and after they
had made repeated request for drugs (asked on 15 occasions).
Accused disclaimed any interest in drug dealing but would
supply drugs on a favour for a favour. Found not guilty.
o House of Lords said the proper approach is to ask did the police
do more than present the defendant with an unexceptional
opportunity to commit a crime. It would be unfair to offer
inducements and entice a person into actions he would not
normally have taken.
o The proper approach is stay of proceedings but evidence may
be excluded if trial has commenced.

Jones [2008] Police were investigating a pedophile and pretended to

be 12 year-old girl in text messages. Accused had left messages in
various locations around town, including his number and soliciting
young girls between 8-13 and said they were willing to pay them for
sex. Court of Appeal held polices conduct was perfectly legitimate.

Moon [2004] - D was drug addict with no previous history of dealing

drugs. Approached four separate occasions by undercover cop. Officer
eventually pressured D to acquire and selling heroine. Court of Appeal:
Police had caused D to commit offence rather than something the

person would have done anyway. Prosecution should have been

stayed.

Step 6: Judicial warning to jury on how much to rely on suspect witness

Makanjuola [1995]
o Whether, as a matter of discretion, a judge should give any
warning and if so its strength and terms must depend upon the
content and manner of the witnesss evidence, the
circumstances of the case and the issues raised. The judge will
often consider that no special warning is required at all. Where,
however, the witness has been shown to be unreliable, he or she
may consider it necessary to urge caution. In a more extreme
case, the judge may suggest that it may be wise to look for
some supporting material before acting on the impugned
witnesss evidence judges are not required to conform to any
formula and this court will be slow to interfere with the exercise
of discretion by a trial judge.
o Judge retains discretion of whether to give direction to jury but
should give warning to caution jury about the extent they should
rely on witness
Walker [1996] C alleged that mothers boyfriend had been having sex
with her for two years. C later retracted that statement but
subsequently retracted part of that retraction. Applied Makanjuloa. At
discretion of judge to determine in each individual case if a warning
should be given and how strongly that warning is. Court of Appeal only
interfer when judges decision is wholly unreasonble.
Dennis [2002] - D convicted of indecent assault committed on three
boys. Medical evidence given indicated that D suffered from medical
condition that probably rendered him incapable of engaging in sexual
activity described by one of the boys. No warnings was put to the jury.
Conviction quahsed. Warning should have been delivered.

Step 7: Cell confessions (admission made by one person to another

while in jail)

Pringle [2003] When a prisoner claims another prisoner confessed

that he was guilty for the crime he was being held in custody for it
raises an acute problem which will always call for special attention in
view of the danger that it may lead to a miscarriage of justice. The
indications that the evidence may be tainted by an improper motive
must be found in the evidence Where such indications are present,
the judge should draw the jurys attention to these indications and
their possible significance. He should then advise them to be cautious
before accepting the prisoners evidence.

Stone [2005] D convicted of murder and attempted murder.

Conviction rested substantially on cell confession made to drug addict
cellmate. there will generally be a need for the judge to point out to
the jury that such confessions are often easy to concoct and difficult to
prove and that experience has shown that prisoners may have many
motives to lie. If the prison informant has a significant criminal record
or a history of lying then usually the judge should point this out to the
jury and explain that it gives rise to a need for great care and why. The
trial judge will be best placed to decide the strength of such warning
and the necessary extent of the accompanying analysis. But not every
case requires such a warning If an alleged confession, for whatever
reasons, would not have been easy to invent, it would be absurd to
require the judge to tell the jury that confessions are often easy to
concoct.

Step 8: Substantial Delay

E [2012] Successfully brought charges of sexual abuse after alleged

activities happened 36 years ago.
o Percival (1998) - A developing concern with, and understanding
of, sexual abuse is reflected in a growing experience of cases
featuring delays that at one time would have been regarded as
intolerable. That experience and the underlying problem of
unreported abuse has encouraged experienced judges to be
more liberal in their concept of what is possible by way of a fair
trial in the face of delay.
Attorney Generals Reference No.1 [1992] - for the defendant to
establish on the balance of probabilities, he would suffer serious
prejudice to the extent that no fair trial could be held. Court must
weigh the trial process fairness and that relevant factual issues due to
that delay can be placed before the jury. Power to give appropriate
directions to the jury

Step 9: ECHR

Khan v UK (2001)
o Police planted a covert listening device to a property frequented
by a suspected drug dealer. There was no statutory authority for
their action. The evidence from recordings founded the
conviction.
o No breach of Article 8 but breach of Article 6. The admissibility
of evidence was primarily a matter for the domestic court and
this had properly applied the law. The question was whether the
proceedgins as a whole were fair.
o Demonstrates EctHR likely to find a breach of Article 8 if covert
surveillance is carried out outside of legislative provisions.

Undercover operation undertakin in Khan now authorised under

Pt III of the Police Act 1997.

Witnesses
Step 1: Introduction
Historically a central principle in English trials is that oral evidence
given under oath is the superior form of evidence. The reasoning is
that this evidence can be subject to cross-examination by the opposing
side.
Step 2: Trial Procedure and the Course of Testimony (Terminology)
Examination in Chief Questioning of a partys own witness under oath at
trial. Witnesses are introduced to a trial by their examination-in-chief, which
is when they answer questions asked by the lawyer representing the party
which called them to the stand.

Cross-Examination - After their examination-in-chief, the other partys

lawyer can question them too. Purpose is to undermine evidence of the

witness and weaken the oppositions case and to establish their own case.
Limitations as to what can be asked during cross-examination:
o No cross-examination on inadmissible evidence
o Rule of finality on collateral issues
o Cross-examination of witnesses by defendant (eg. criminal cases
not represented by solicitor but instead represent themselves. D
will deliver his own opening and closing speech and conduct own
examination in chief and cross-examination BUT this becomes
controversial in certain situations eg. C is a child or a vulnerable
or intimidated witness. UJCA 1998 regulated situations where D
is not allowed to cross-examine.
o Cross-examination as to sexual history of a complainant (s.41)

Non-Leading Questions - open-ended questions which do not suggest an

answer to the witness, but instead allow the witness to tell their story in their
own words

Refreshing Memory:
Out of Court allowed to use witness statement to refresh memory
In Court (mostly for police officer to use incident notebook)
Section 139, CJA 2003, provides that a witness may refresh his memory at
any stage from a document made or verified by him at an earlier time
providing that he:
- states in oral evidence that the document records his recollection of
the matter at that earlier time; and
- his recollection of the matter is likely to have been significantly
better at that time than it is at the time of his oral evidence.

Previous Consistent Statements (considered hearsay evidence)

R v Roberts [1942] - D charged with murder of young girl. At trial he

gave evidence that he shot her after his gun went off accidently. Made
previous consistent statement to father days after it happened. Trial
judge ruled that previous consistent statement made to his father was
inadmissible.
Exceptions:
o Statements rebutting allegations of fabrication, Memory
refreshing documents, Evidence of previous identification, No
recollection of events, Complaint by complainant, Res gestae
statements, Statements made on accusation

Unfavourable Witness - Witness does not say in his/her testimony what he

was expected to say during his examination of chief. Might say something
contradictory to their witness statement to the police. Might be honest
witness who has simply forgotten details of what happened or might be
honest but mistaken witness.

Hostile Witnesses - witness who, in the opinion of the judge, demonstrates

a hostile mind in examination-in-chief, who clearly intends not to tell the truth
to the court. Witness can only be declared a hostile witness with leave of trial
judge. Hostile witness isnt merely mistaken/forgettable but is a person who
deliberately choses to give evidence which contradicts original statement
because of fear or hostility or unwillingness to be involved in proceedings.

Re-Examination - used to clarify any ambiguities in the witnesss testimony

that may have arisen during cross-examination in order to repair any damage
done to the witnesss credibility in cross-examination. Not permitted to raise
new issues.

Step 3: Competence
The presumption in criminal trials is that all witnesses are competent.
Section 53(1) Youth Justice and Criminal Evidence Act 1999 (YJCEA)
reads: At every stage in criminal proceedings all persons are
(whatever their age) competent to give evidence.
Competence deals with the question of whether a witness may legally
give evidence in court. Section 53(3) YJCEA provides expectations to
the presumption that everyone in a criminal trial is competent.

s.53(3) A person is not competent to give evidence in criminal proceedings if

it appears to the court that he is not a person who is able to(a) understand questions put to him as a witness, and
(b) give answers to them which can be understood.

Section 54(2) provides that the burden of proving the witness is

competent is on the party calling the witness.

54(2) It is for the party calling the witness to satisfy the court that, on a
balance of probabilities, the witness is competent to give evidence in the
proceedings.
(4) Any proceedings held for the determination of the question shall
take place in the absence of the jury (if there is one).
(5) Expert evidence may be received on the question.

Child Witness

R v Wallwork [1958] (court didnt like idea of calling 5 years old

witness)
o Court of Appeal Lord Goddard: [t]he court deprecates the
calling of a child of this age as a witness. it seems to us to
be unfortunate that she was called and, with all respect to the
learned judge, I am surprised that he allowed her to be called.
The jury could not attach any value to the evidence of a child of
five; it is ridiculous to suppose that they could. There must be
corroborative evidence if a child of tender years and too young
to understand the nature of an oath is called, but in any
circumstances to call a little child of the age of five seems to us
to be most undesirable, and I hope it will not occur again.
Growing acceptance of acceptability of evidence of younger child
witnesses, partly as a result of special measures direction and partly
because of psychlogial research that suggests that the evidence of
infants is of considerable value and not necessarily inherently
unrelaible. It is recognized that there is a strong public interest in
allowing them to testify, particularly in child abuse cases, where they
may be the only witness available. (Durston pg. 361)
o R v Baker [2010] witness was 3 years old sexual abuse case
Allowance must be made for child witness in trial process
and no stigma of reliability attached to child witness
provided statutory criteria for competence is satisfied
then it is up to the jury to determine the credibility of the
witness.
Child must be competent, using legal test in S.53(3) YJCEA
o Powell [2006] - Section 53 makes clear that the age of a
witness does not determine whether he or she is competent to
give evidence. It cannot therefore be said that below a particular
age a witness is too young to give evidence. Rather, the test is
as set out in s.53(3) whether the witness is able (a) to
understand the questions put to him or her and (b) give answers
that can be understood. It is for the court to make a judgment
on this.
o R v MacPherson [2006] Forbes J there is no requirement in
the Act that the witness in question should be aware of his
status as a witness. Questions of credibility and reliability are

not relevant to competence. Those matters go to the weight of

the evidence and might be considered, if appropriate, at the end
of the prosecution case, by way of a submission of no case to
answer. (Witness could only communicate in baby language
with his mother. The witness would not ordinarily be competent
but as long as seen speaking to strangers.)

Mentally Ill Witness

A mentally ill witness is generally competent to give evidence under

the general presumption of competence within s.53(1) YJCEA. However,
where the witness is unable to understand questions put to him and to
give answers which can be understood, he will not be competent to
give evidence.
R v Sed [2004] - witness was an 81 years old rape victim who suffered
from Alzheimers disease. Her video-recorded evidence was admitted.
Auld LJ, at paragraph 46, stated it was for the judge to determine the
question of competence almost as a matter of feel. In effect the
section does not require total comprehension by the witness.

Step 4: Special Measures Designed to Ease the Burden on Witnesses

Professor Jenny McEwan describes special measures as, the

governments response to the problems which face vulnerable
witnesses in the intimidating courtrooms. [The YJCEA] recognises that
the stress, and in some cases, humiliation involved in giving evidence
may cause potential witnesses to refuse to participate. Meanwhile,
fears are growing that criminal defendants and their supporters are
increasingly ready to use fear to deter witnesses from testifying
against them.
Governement rational for special measaures is to protect vulnerable ad
intimidated witnesses; to maximse the evidence available in court and
to improve the quality of the witness testimoney.
Critisim: fears have been expressed that new means for receiving
evidence may undermine the oral and adversarial traditions of the
criminal trial or work unfairness for defendants. Di Birch and Roger
Leng (Blackstones Guide to the YJCEA) [Live witness is able to be
assessed by the jury]

S.19(1) YJCEA

Any party may make an application for a special measures direction or

the court may raise the issue.
The court must first determine whether the witness is eligible to
receive a special measures direction under either s.16 (vulnerable
witnesses) or s.17 (intimidated witnesses).
Where the witness is deemed to be eligible under either of these
sections, the court must then determine whether any of the special

measures would improve the quality of the evidence, and give a

direction providing for the appropriate measure to apply.

Vulnerable Witness defined by s.16 YJCEA as:

All child witnesses (under 18); and

Any witness whose quality of evidence is likely to be diminished
because they:
o are suffering from a mental disorder (as defined by the Mental
Health Act 1983);
o have a significant impairment of intelligence and social
functioning; or
o have a physical disability or are suffering from a physical
disorder

Intimidated Witness defined by s.17 YJCEA as:

s.17 - Witnesses eligible for assistance on grounds of fear or distress about

testifying.
(1)For the purposes of this Chapter a witness in criminal proceedings (other
than the accused) is eligible for assistance by virtue of this subsection if the
court is satisfied that the quality of evidence given by the witness is likely to
be diminished by reason of fear or distress on the part of the witness in
connection with testifying in the proceedings.
(2)In determining whether a witness falls within subsection (1) the court must
take into account, in particular
(a)the nature and alleged circumstances of the offence to which the
proceedings relate;
(b)the age of the witness;
(c)such of the following matters as appear to the court to be relevant,
namely
(i)the social and cultural background and ethnic origins of the
witness,
(ii)the domestic and employment circumstances of the witness,
and
(iii)any religious beliefs or political opinions of the witness;
(d)any behaviour towards the witness on the part of
(i)the accused,
(ii)members of the family or associates of the accused, or
(iii)any other person who is likely to be an accused or a witness
in the proceedings.
(3)In determining that question the court must in addition consider any views
expressed by the witness.
(4)Where the complainant in respect of a sexual offence is a witness in
proceedings relating to that offence (or to that offence and any other
offences), the witness is eligible for assistance in relation to those
proceedings by virtue of this subsection unless the witness has informed the
court of the witness wish not to be so eligible by virtue of this subsection.

S.17(1) - Those suffering from fear or distress in relation to testifying in

the case

S.17(2) Measures the court will take into consideration

S.17(4) Complainants in sexual offence are automatically falling into
this category unless they wish to opt out.

Special Measure Directions s.23-33 YJCEA 1999

S.23 Screens (Screen used to shield witness from D. Witness cannot

see D while they are giving evidence.)
S.24 Live Links (Use live television link to stream evidence into
courtroom.)
S.25 Giving Evidence in Private (Designed to exclude family members
and press.)
S.26 Removal of Wigs and Gowns
S.27-28 Video-Recorded Evidence
S.29 Intermediaries (Function: to communicate questions to witness.)
o R v Watts [2010] Allowed non-verbal witness with severe
communication needs to give evidence.
o R v FA [2015] Court gave approval for defence submitting
cross-examination questions to intermediary to amend in light of
comments.
S.30 Aid to Communication (Use aids to communicate as long as can
be independently verified and understoon by court.)

Step 5: Compellability
Compellability deals with the question of whether, as a matter of law,
witnesses can be obliged to give evidence when they do not wish to do
so refusal can be punished as contempt. A witness is compellable if
he is competent, and if he is permitted by law to be compelled by the
court to give evidence.
Defendant

Defendants cannot be compelled to testify in their defence under

s.1(1) CEA 1898 since this would breach the privilege against selfincrimination.
o Section 1(1) Criminal Evidence Act 1898: A person charged in
criminal proceedings shall not be called as witness in the
proceedings except upon his own application.
o Subject to s.101 Criminal Justice Act 2003 (admissibility of
evidence of defendants bad character), a person charged in
criminal proceedings who is called as a witness in the
proceedgins may be asked any question in cross-examination
notwithstanding that it would tend to criminate him as to any
offence with which he is charged in the proceedings.
HOWEVER, there is indirect pressure to do so under s.35 Criminal
Justice and Public Order Act (CJPOA) 1994. This allows court or jury to

draw such interefes as appear proper from the failure of the accused to
give evidence or his refusal, without good cause to answer any
question.
In R v Cowan (1996) the Court of Appeal held that the judge must
direct that:
o The burden of proof remains on the prosecution;
o The Defendant is entitled to remain silent;
o An inference from failure to testify alone cannot prove guilt;
o The jury must be satisfied that the prosecution have established
a case to asnwer before drawing inferences from silence; and
o If the jury conclude that the silence can only sensibly be
attributred to the defendants having no real answer, or one that
would stand up to cross-examination, they may then draw an
adverse inference.

Co-Defendant

Where the defendant is jointly tried with a co-defendant, the defendant

is competent to give evidence on behalf of a co-defendant (for
instance, a co-defendant might wish to call the defendant if they are
running compatible defences), but he is not compellable (because of
his privilege against self-incrimination).

Spouse of Civil Partner

- for the prosecution

A spouse or civil partner of a defendant is COMPETENT to give

evidence in criminal proceedings under s.53(1) YJCEA but cannot be
COMPELLED to give evidence on behalf of the prosecution.
o Rational is found in sanctity of marriage. Husband of wife is one
unit. Interest of state in preventing the breakdown of marriage.
If you do force a spouse there is a risk that they will come to
court and tell lies.
R v Pearce [2002] D had been living with a women for 19 years and
they had three children together. Court of Appeal refused to extend
exception to unmarried partner of D who he was living with. If the
concession were to be widened it is not easy to see where logically the
widening should end.
Exceptions: s.80(3) PACE

s.80(3) Police and Criminal Evidence Act (PACE)1984

In relation to the spouse or civil partner of a person charged in any

proceedings, an offence is a specified offence for the purposes of subsection
(2A) above if(a) it involves an assault on, or injury or threat of injury to, the spouse or civil
partner or a person who was at the material time under the age of 16;

(b) it is a sexual offence alleged to have been committed in respect of a

person who was at the material time under that age; or
(c) it consists of attempting or conspiring to commit, or of aiding, abetting,
counselling, procuring or inciting the commission of, an offence falling
within paragraph (a) or (b) above.

R v L [2008] D charged with various sexual offences including rape,

sexual activity with a family member and indecent assault. Many were
specimen accounts. Related to offences allegedly commited against
the V when she was under the age of 16. Court of Appeal No
obligation on police to warn the wife that she is not compellable for the
prosecution, especially because this might inhibit the investigation.
S.80 PACE does not bare the admission of a wintess statement where
the statement was voluntarily made. Doesnt have the same ffect of
wife coming to court to give evidence. Acknowledged there was a
parodox that hearsay statement in relation to evidence from the wife
which she does not wish can be admitted before the court. Would
depend on the facts of each individual case. Court satisfied there
would be no injustice in admitting hearsay statement. Convicted child
abuse takes precedent over marital status.

-for the defendant

A spouse or civil partner of a defendant is COMPETENT to give

evidence in criminal proceedings under s.53(1) YJCEA and can be
compelled to give evidence on behalf of the defendant, under s.80(2)
PACE.
o S.80(2): In any proceedings the spouse or civil partner of a
person charged in the proceedings shall, subject to subsection
(4) below, be compellable to give evidence on behalf of that
person.
Exception:
o If spouse or civil partner of the defendnat is also a co-defendant,
s.80(4) PACE provides that the spouse or civil partner is not
compellable, in accordance with the privilege against selfincrimination.

-former spouse or civil partner

Where the witness was formerly a spouse or civil partner of the

defendant but they have now divorced or the civil partnership is
dissolved, the former spouse or civil partner is treated as any ordinary
witness as if they have never been married or in a civil partnership.

Sexual History
**Try to avoid this topic on the exam, it is a minefield!
The extent to which evidence of a complainants sexual conduct on
other occasions is admissible in a rape trial is highly controversial. The
Heilborn Report (Home Office Report of the Advisory Group on the Law
of Rape (1975)) said that the admission of sexual history evidence was
humiliating for rape complainants and led to a significant number of
complainants either not reporting or withdrawing complaints of rape.
After this report the first restrictions on sexual history evidence were
imposed in s.2 of the Sexual Offences (Amendment) Act 1976. These
provisions were criticised for investing too must discretion in trial
judges in determining whether the defence should be permitted to
introduce evidence (Kibble [2000]).
New rape shield provisions were introduced in s.41 YJCEA 1999. This
section imposes a prima facie prohibition on the introduction of
evidence of any sexual behaviour of the complainant: in sexual offence
trial no evidence may be adduced, and no questions may be asked in
cross-examination, about the complainants sexual behaviour without
the leave of the court.
S.42(1)(c) defines sexual behaviour as any sexual behaviour or other

sexual experience, whether or not involving any accused or other person, but
excluding (except in section 41(3)(c)(i) and (5)(a)) anything alleged to have
taken place as part of the event which is the subject matter of the charge
against the accused.

Leave to introduce evidence of the complaints sexual behaviour may

be granted only if its refusal might have the result of rendering unsafe
a conclusion of the jury or (as the case may be) the court on any
relevant issue in the case (s.41(2)(b)).
Where the defence wishes to make use of s.41, they must apply in
writing during pre-trial, identifying the issue to which the sexual
behaviour is relevant and the exception to the general prohibition on
which they seek to rely on. Applications are heard in private and in the
absence of the complainant. After the court has reached its decision, it
must state it in open court (in the absence of the jury).
S.41(6) states that the evidence or question must relate to a specific
instance (or specific instances) of alleged sexual behaviour on the part
of the complainant, this rules out generalised allegations of
prostitution, promiscuity, etc.

Specific Situations Where Leave May be Granted to Defence

(GATEWAYS):
1. S.41(3)(a) The evidence or question relates to a relevant issue in
the case and that issue is not an issue of consent

Applies to situations where the defence is that the offence did not take
place or that the defendant reasonably believed a victim has
consented. This is allowed because issue of consent is whether the
complainant in fact consented to the conduct with which the accused is
charged and does not include belief of the accused that the complaint
so consented. Sexual Offences Act 2003 permits the defendnat to
escape liability only if his belief in consent was reasonble rather than
simply honest.
R v Martin [2004] - Defendant was seeking to adduce evidence of prior
sexual conduct with the complainant.51 The court held that while one
purpose may have been to impugn the credibility of the complainant, it
was not the main purpose. Instead, the evidence was being adduced to
support the defendants evidence.52 Furthermore, in order for the
sexual history evidence to be admissible under one of the four
exceptions,53 the evidence or cross-examination must relate to a
specific instance of alleged sexual behaviour on the part of the
complainant.
R v F [2005] - Court of Appeal followed Martin and allowed
photographic evidence of a sexual nature showing the couple happy.
This is because the evidence was relevant to the defence of false
allegations since the evidence was inconsistent with the complainants
allegations.

2. S.41(3)(b) The evidence or question relates to an issue of consent

and the relevant sexual behaviour is alleged to have taken place at or
about the same time as the event which is the subject matter of the
charge against the accused

Narrow window of time 24 hours before or after the alledged offence

R v A No. 2 [2002] Held gap of three weeks was too long to admit this
evidence.
R v Mukadi [2003] D had got in someones car earlier and exchanged
phone number several hours before. Court of Appeal Wrongly
excluded because it may have portrayed the claimants state of mind.

3. S.41(3)(c) The evidence or question relates to an issue of consent

and the relevant sexual behaviour is alleged to have beenso
similar to any [alleged] sexual behaviour of the complaint which
took place as part of the event which is the subject matter of the
charge against the accused, or to any other [alleded] sexual
behaviour of the complainant whichtook place at or about the same

time as that event, that the similarity cannot reasonably be explained

as a coincidence.

R v T [2004] D was accused of raping the complaintant in a park.

Court of Appeal held that defendant should have been allowed to bring
evidence about an incident three weeks earlier where they had
consensual sex at the same park and in the same positon.
-constrastR v Harris [2009] D was drinking and had sex with a homeless man.
Court of Appeal refused to allow defendant to question the
complainant about the fact that several years earlier she had admitted
to pcking up strangers while drunk and having sexual intercourse.
Court said it was not similar.

4. S.41(3)(d) The evidence or questionrelates to any evidence

adduced by the prosecution about any sexual behaviour of the
complainant; and.in the opinion of the court, would go no further
than is necessary to enable the evidence adduced by the prosecution
to be rebutted or explained by or on behalf of the accused (exception
will apply if the prosecution adduces sexual history evidence about the
complainants sexual behaviour and the defence seeks to rebut it)

R v Mitchell [2004] Judge had refused a defendant's application to

cross-examine a complainant as to her engagement as a prostitute two
days prior to an alleged rape.

Human Rights (S. 41 breaches Article 6 right to a fair trial)

R v A No. 2 [2001] Defendant convicted of rape. His defence was

consent or belief in consent since he had an earlier continuing and
consensual relationship with the complainant. Questioning of the
complainant on this was excluded at trial.
In order to avoid a declaration of incompatibility House of Lords opted
to stretch interpretation of s.41 on the grounds that parliamnet would
not have wished to deny accused a fair trial and that truly probative
material should be admitted at the discretion of the court. It was for
the trial judge to hear evidence of the precise circumstances of the
alleged rape and of the previous sexual behaviour involving the
complainant and the accused, in order to decide whether they were so
similar that the possibility of coincidence could be discounted.
Emson (2010 pg. 507) s.41(3)(c) has therefore been judicially
rewritten to represent the genreal common law position that the
accused may aduce any evidence which is relevant to his defence of
consent unless its probatice value is insufficiently hgh when weighed
against competeing considerations. The most important of which is the
protecting of the complainant from vexation and preventing the
accused from misleading the jury.

Kelly (2006) - Trial judges surveyed typically interpreted R v A (No 2) to

mean that they now had a very broad residual discretion in order to
ensure a fair trial under Article 6. The study found that basic
procedural rules such as the requirement to make applications in
writing in advance of trial were being routinely ignored by defence
counsel with cross-examination also taking place without any reference
to the 1999 Act, indicating entrenched resistance amongst both
lawyers and judges to the new statutory regime.

Character Evidence
Step 1: Introduction
Character has two aspects, good character and bad character. Good
character evidence may be evidence of lack of guilt (propensity) and of
trustworthiness as a witness (credit). Bad character evidence, if
admitted, may be evidence of either lack or guilt or credibility or both.
The Law Commission published two reports in which they identified the
dangers of too readily admitting the defendants bad character. The
jury might give it too much weight and thus fall into a reasoning
prejudice or they might fall into moral prejudice by not looking at
the evidence carefully since they had formed a prejudicial view of the
defendant on the basis of his record. The risk of too readily allowing
bad character evidence may lead to miscarriages of justice.
The Criminal Justice Act (CJA) 2003 provides legislation on bad
character evidence.
Step 2: What is bad character? (Applies to both defendants and
witnesses)

The provisions of the Act on bad character concern reprehensible

behaviour that does not have to do with the alleged facts of the
offence charged or was not commiited in connection with the
investigation or prosecution of the offence charged.

s. 98 Bad Character
References in this Chapter to evidence of a persons bad character are to
evidence of, or of a disposition (nature) towards, misconduct on his part,
other than evidence which
(a) has to do with the alleged facts of the offence with which the defendant is
charged, or
(b) is evidence of misconduct in connection with the investigation or
prosecution of that offence.
s.112 Interpretation
(1)In this Chapter
bad character is to be read in accordance with section 98;
criminal proceedings means criminal proceedings in relation to which
the strict rules of evidence apply;
defendant, in relation to criminal proceedings, means a person
charged with an offence in those proceedings; and co-defendant, in
relation to a defendant, means a person charged with an offence in the
same proceedings;
important matter means a matter of substantial importance in the
context of the case as a whole;

misconduct means the commission of an offence or other

reprehensible (wrong) behaviour;
o Renda [2005] as a matter of ordinary language, the word
reprehensible carries with it some element of culpability or
blameworthiness
o Osbourne [1007] Yelling was not evidence of reprehensible
behaviour. It is a moral judgement and will depend on the facts
of the case.
offence includes a service offence;
probative value, and relevant (in relation to an item of evidence),
are to be read in accordance with section 109;
prosecution evidence means evidence which is to be (or has been)
adduced by the prosecution, or which a witness is to be invited to give
(or has given) in cross-examination by the prosecution;
service offence has the same meaning as in the Armed Forces Act
2006;
written charge has the same meaning as in section 29 and also
includes an information.
(2)Where a defendant is charged with two or more offences in the same
criminal proceedings, this Chapter (except section 101(3)) has effect as if
each offence were charged in separate proceedings; and references to the
offence with which the defendant is charged are to be read accordingly.
(3)Nothing in this Chapter affects the exclusion of evidence
(a)under the rule in section 3 of the Criminal Procedure Act 1865 (c. 18)
against a party impeaching the credit of his own witness by general evidence
of bad character,
(b)under section 41 of the Youth Justice and Criminal Evidence Act 1999 (c.
23) (restriction on evidence or questions about complainants sexual history),
or
(c)on grounds other than the fact that it is evidence of a persons bad
character.

Step 2: Gateways for Allowing Bad Character Evidence of Defendant

s.101 Defendants Bad Character

(1)In criminal proceedings evidence of the defendants bad character is
admissible if, but only if
(a) all parties to the proceedings agree to the evidence being
admissible,
(b) the evidence is adduced by the defendant himself or is given in
answer to a question asked by him in cross-examination and intended
to elicit it,
(c) it is important explanatory evidence,
(d )it is relevant to an important matter in issue between the defendant
and the prosecution,
(e) it has substantial probative value in relation to an important matter
in issue between the defendant and a co-defendant,
(f) it is evidence to correct a false impression given by the defendant,
or
(g) the defendant has made an attack on another persons character.

(2)Sections 102 to 106 contain provision supplementing subsection (1).

(3)The court must not admit evidence under subsection (1)(d) or (g) if, on an
application by the defendant to exclude it, it appears to the court that the
admission of the evidence would have such an adverse effect on the fairness
of the proceedings that the court ought not to admit it.
(4)On an application to exclude evidence under subsection (3) the court must
have regard, in particular, to the length of time between the matters to which
that evidence relates and the matters which form the subject of the offence
charged.

Gateway A All parties agree to admit evidence (doesnt require leave

of court)

Hanson [2005] - Two defendants charged with attempted robbery. Both

agreed that previous offences were bound to be admitted because
they were blaming each other so they came to an agreement to admit
the evidence.

Gateway B Defendant gives evidence himself

Law Commission (Why person would want to introduce this evidence):

Law Commission: If D was in prison at time of evidence and thus giving
him an alibi then he would want to admit this. Or maybe tactical
decision. Or stop speculation of jury. Or if Ds case involves an attack
on another persons character then Ds character could be admitted
under G and to diffuse the situation he might decide he is better off
admitting the evidence himself rather than hearing it from the
prosecution.

Gateway C Important Explanatory Evidence

S.102 decribes important explanatory evidence

o (a) without it, the court or jury would find it impossible or
difficult properly to understand other evidence in the case; and
o (b) its value for understanding the case as a whole is
substantial.
o Law Commision (2001) suggested a third condition the
evidence carries no risk of prejudice to the defendant or
regardless of such a risk the interests of justice nevertheless
require the evidence to be admissible.
Chohan [2005] - Witness claimed to recognised the D as the man
running away from the scene of the robbery. She recognised him
because she regularly bought heroin from him. Difficult to evaluate her
evidence of recognition without knowing the context of how they knew
each other.

Gateway D Relevant to an important matter in issue between the

defendant and the prosecution **MOST IMPORTANT** (Previous
convictions)

S.103 defines what a matter in issue is

o S.112(1) important matter is a matter of substantial
importance in case as a whole
o substantial (CJA Explanatory Notes) = more than trivial or
marginal

S.103(1)(a) D has propensity (tendency) to commit similar offences

Gilmour [2005] Charged with theft since he was found to be in
possesion. Court of Appeal said right to include previous
convictions of shoplifting showed recent presistent propensity to
steal.
o Bullen [ 2008] - Charged with murder, pleaded guilty to
manslaughter since he hit the victim with a bottle during an
argument. Denied previous murder, didnt have specific intent to
cause GBH or kill. Court of Appeal held that they couldn't admit
his previous convictions for violence, because they weren't
relevant to having specific intent for murder since they lacked
any basic intent in those other crimes and none resulted in
serious injury.
o Weir [2005] - Previously cautioned for making an indecent photo
of a child. Was admitted as evidence as propensity in current
charge for sexual assault on a girl under 14. Even though he
wasnt convicted previously, still admissible. Propensity to
commit the offence charged can be shown not only by previous
convictions, but also by evidence of misconduct on the part of
the defendant on other occasions even if not convicted.
R v Hanson [2005] Test for admissibility (only if answer to each is yes
should the conviction be allowed into evidence)
o Does the defendants history of offending show a propensity to
commit offences?
o If so, does that propensity make it more likely that the defendant
committed the current offence?
o If so, is it just to rely on convictions of the same description or
category, having in mind the overriding principle that
proceedings must be fair. (If the defendant has a substantial
record, and prosecution wants to adduce evidence of the record
(all or most), CA said that approach should be whether the
record shows a tendency to do the thing he is accused of now.
Not necessary to look at each conviction in detail, look at it as a
whole.)
o

Would admitting the evidence have an adverse effect on the fairness of

proceedings? (Courts discretion to not admit)
o S. 101(3) The court must not admit evidence under subsection
(1)(d) or (g) if, on an application by the defendant to exclude it,
it appears to the court that the admission of the evidence would
have such an adverse effect on the fairness of the proceedings
that the court ought not to admit it.

Following provides explanation/definition:

S.103(2) Where subsection (1)(a) applies, a defendants propensity to
commit offences of the kind with which he is charged may (without
prejudice to any other way of doing so) be established by evidence
that he has been convicted of
(A) an offence of the same description as the one with which he
is charged, or
(B) an offence of the same category as the one with which he is
charged.
S.103(3) Subsection 103(2) does not apply in the case of a particular
defendant if the court is satisfied, by reason of the length of time since
the conviction or for any other reason, that it would be unjust for it to
apply in his case. (Judges discretion to not admit if too long of time).
S.103(4) For the purposes of subsection (2)
(A) two offences are of the same description as each other if the
statement of the offence in a written charge or indictment
would, in each case, be in the same terms; (The previous
conviction does not have to be described in identical terms.
What matters is whether the facts of the earlier conviction would
support the current charge in the same terms.)
(B) two offences are of the same category as each other if they
belong to the same category of offences prescribed for the
purposes of this section by an order made by the Secretary of
State. (If they belong to the same category of offences
prescribed by the Secretary of State eg. theft category
encompasses burglary, handling stolen goods and making
without payment.)
S.103(5) A category prescribed by an order under subsection (4)(b)
must consist of offences of the same type.

S.103(1)(b) D has propensity to be untruthful

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Hanson [2005] Not the same as propensity to be dishonest.

Should be omitted in very LIMITED circusmtances. Apply only
where telling lies was part of the earlier conviction.
R v Campbell [2008] - Even previous conviction for prudery will
not have sufficient probative worth to be admissible against a
defendant.

Mirfield 2008 By marginalizing s.103(1)(b) and placing the

focus squarely on s.103(a) the decision does seem to make
s.103(1)(b) something of a dead letter.

Gateway E has substantial probative value in relation to an important

matter in issue between the defendant and a co-defendant

Only a co-defendant can introduce evidence under this gateway.

If the evidence satisfies the threshold, court has no discretion to not
allow it R v Phillips [2012]
Hussain [2008] - two people charged with attempted robbery. Offence
took place at the workplace of the first defendant. Both defendants
said each were drug dealers, would be persuasive in getting each other
involved. Trial judge allowed D2 to introduce evidence that Supervisor
of the company had seen D1 engaged in other drug transactions
previously. Said that the evidence had probative value of an important
matter between them because they were running a cut throat defence.
Durston (2011 p.206) Balancing the rights of co-Ds is inherently
difficult. One accused persons interests are often protected at the
expense of anothers. The 2003 Act attempts to strike a balance by
permitting the adduction of evidence of a co-Ds earlier misconduct
where it is of substantial probative value to do so. Inevitably, however,
there will be appeals as to where this line is drawn in finely balanced
cases.

Gateway F Evidence to correct a false impression given by the

defendant

Only admissible if it goes no further than to correct a false impression.

But, if they only make a limited claim to good character, the
prosecutions rebuttal evidence is restricted to that limited claim.
Person can assert good character by means of use clothing/appearance
to convey an impression.
Eg. Defendant turns up in court in a soldier uniform, or priest collar,
this is trying to convey a sense of good character.
Renda [2005] Defendant charged with attempted robbery. Said he
served as a soldier in the armed forces but on the date of arrest he was
employed a security guard. These statements show he is trying to
show he is a good person.
Chable [ 2009] D was charged with blackmail. He demanded money
through threats of violence with a knife. When interviewed, he said he
was an honest plumber that earned an honest living and did not do
knives. When arrested, police searched his home and found a similar
knife under the pillow.
Somanathan [2005] D was a priest convicted of raping woman at
temple. His defence was that he always behaved properly towards

women and said there'd been no trouble at previous temple hed

worked at. To rebut these claims, prosecution brought two women
witnesses that gave evidence that hed made sexual advances towards
them and chairman at other temple gave claims about being dismissed
because he lied to board of trustees and inappropriate behaviour
towards women

Gateway G - Defendant has made an attack on another persons

character

Rationale is that if their defence is to attack someone elses character,

then its fair to bring up theirs.
Selvey [1970] Tit for tat argument. If D is seeking to cast discredit
on P, then P should be allowed to do likewise. If D is seeking to
persuade the jury that P behaved like a knave, then the jury should
know the character of the man who makes these accusations, so that it
may judge fairly between them instead of being in the dark as to one
of them.
Ball [2005] Police questioned man about a rape. Said victim was a
slag. This was an attack on the character of the complainant.
Chrysostomou [2010] Defendant accused a witness of being a
cocaine user. This was said to be an attack on the character of anther.

How do you prove bad character?

With a previous criminal record/convictions, cautions, fixed penalty

notices, or penalty notice for disorder
Olu [2010] Cautions are only given to defendants that admit their
guilt. If they accept the caution it is considered a confessionn and since
these are allowed as characated evidence so are caustions.
Hamer [2010] Fixed penalty notices and penalty notice for disorder
are different than cautions because when these are accepted they
havent confessed to the offence
Gang memberships (Elliott 2010), illegal firearms (Nicholas 2011) and
sexual offences against children (D, P and U 2011) this type of
evidence more likely to be included

Step 3: Non-Defendants Bad Character (Make sure evidence is

considered bad character under s.98 before using gateway)

Evidence of bad character of non-defendants is admissible only

through one of the three gateways in section 100 Criminal Justice Act
2003.
The difference between the second gateway for non-defendants under
s.100 (1) (b) of the Act and the gateway in s.101 (d) for defendants
(relevant to an important matter in issue between the defendant and
the prosecution) should be noted. The gateway for non-defendants sets
enhanced relevance test requiring substantial probative value in

relation to a matter which is both in issue and is substantial

importance in the context of the case as a whole.
''The purpose of the leave requirement in s.100 is to eliminate kite
flying and innuendo against the character of a witness in favour of a
concentration on real issues in the case'' LJ Treacy Muhedeen [2016] at
paragraph 21.
The judge has no residual discretion to exclude evidence of a nondefendant's bad character once it is admissible.
Choo (2010 pg.276) In criminal proceedings, the CJA 2003 now
provides a comprehensive statement of the law on evidence of bad
character. S.100 deals with evidence of the bad character of non-Ds,
while s.101 provides gateways for the admissibility of evidence of Ds
bad character. Of particular note is gateway (d), which replaces the
similar fact rule at common law with a principle whereby evidence of
a Ds bad character is prima facie admissible on the issue of guilt so
long as it is relevant. The rapidly growing body of case law from the
CoA on the new statutory provisions demonstrates the Courts desire to
take an approach supposedly based on common sense and on the
idea that the trial judge should have considerable leeway in
determining admissibility. It is arguable that such an approach may not
protect Ds sufficiently and that gateway (d), at least, should be the
subject of a thorough and authoritative consideration by the House of
Lords.

Gateways to Allow:
1. S.100(1)(a) - It is important explanatory evidence i.e. without it, the
court or jury would find it impossible or difficult properly to understand
other evidence in the case; and its value for understanding the case as
a whole is substantial (section 100(2) CJA 2003)
2. S.100(1)(b) - It has substantial probative value in relation to a
matter which is both in issue in the proceedings and is of substantial
importance in the context of the case as a whole. In assessing this
value the court must have regard to the following factors:

The nature and number of the events, or other things, to which the
evidence relates;
When those things or events are alleged to have happened or existed;
The nature and extent of the similarities and the dissimilarities
between each of the alleged instances of misconduct where the
evidence is evidence of a person's misconduct and it is suggested by
the evidence has probative value by reason of similarity between that
misconduct and other alleged misconduct;
The extent to which the evidence shows or tends to show that the
same person was responsible each time where the evidence is
evidence of a persons misconduct and it is suggested that that person

is also responsible for the misconduct charged and the identity of the
person responsible for the misconduct charged is disputed;
Any other factors the court considers

Brewster and Cromwell [2010]

Charged with kidnapping and theft. Defendant applied to crossexamine complainant about previous convictions for manslaughter,
possession of class A drugs, burglary, theft. Court of Appeal said that
should have been allowed as they were related to credibility and would
go the standing of that witness in the jurys eyes. They stressed that it
would be different if the other convictions were seen as old or stale.

R v Osbourne [2005]

Defendant charged with robbing the licensee of a pub. Trial judge

allowed to ask the licensee/witness about the management of the
premises of the pub about whether gave out free drinks which would
lead to money missing. This was relevant to the motive to say that
licensee had falsely been robbed. Trial judge said that asking about
drug taking and selling on the premises was not admissible because it
wasnt relevant to the charges at hand. Both decisions upheld by Court
of Appeal.

R v Yaxley-Lennon [2005]

Charged with assault. Evidence that the main defence witness had
previously received a caution for drug possession inadmissible. Was
received after the assault, no suggestion that the credibility of the
witness was affected by drug use

3. All parties to the proceedings agree to the evidence being

admissible. Prosecutors should only agree to admitting evidence of the
bad character of a prosecution witness when one or both of the other
gateways are satisfied or it is in the interests of justice to do so.
Step 4: Good Character Evidence of the Defendant

The strict rule is that only evidence of general reputation is admitted

but in practice the rule is often not observed and good character is
held to be synonymous with no criminal record.
o R v Rowton (1865) A teacher charged with indecently assulting
a pupil called a number of character witnesses to attest that he
had a good general reputation in the community. The
prosecutions evidence of a contrary individual opinion was not
admissible since evidence of character should be that of general
reputation, not issoated acts.

R v Redgrave (1982) Where a defendant charged with

importuning for immoral purposes was not permitted to produce
good character evidence that he had a loving herterosexual
relationship.
R v Vye (1993) - Set out general guidelines on the correct judicial
directions for good character. If the defendant does not testify but
makes an exculpatory statement to the police then a direction on
credibility should still be given. If he neither testifies nor makes an out
of court exculpatory statement then only the direction on propensity
should be given. A defendant with good character/no criminal record is
entitled to a good character direction even if tried with a defiant with a
record. Failure to give such a direction could lead to the conviction
being overturned.
S.1118(1) CJA 2003 preserves the common law rule whereby in
criminal proceedings evidence of a persons reputation is admissible
for the purpose of proving his good or bad character.
Can be brough up by; defendant can give evidence himself , witness
for defence can bring it up or cross-examination of prosecution
witness.
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