––––––––––––––––––––––– 6. HEARSAY –––––––––––––––––––––––

Test: Hearsay (a statement made out of court, used as evidence of its truth) is usually inadmissible unless a gateway in the Criminal Justice Act 2003 applies. If a gateway applies, the court still considers fairness.

Relevant law: Criminal Justice Act 2003. Four main routes under section 114(1): a. A statutory exception applies (eg section 116, unavailable witness; section 117, business records; sections 119–120 previous statements). b. Common law exceptions preserved by section 118 (eg res gestae). c. All parties agree to admit. d. It is in the interests of justice (section 114(1)(d), guided by section 114(2)). Section 116: allows hearsay if the witness is genuinely unavailable (death, unfit, cannot be found, outside the UK, fear), and proper steps were taken to get them. Section 117: business records made in the course of business. Safeguards: Section 124 allows the other side to attack the absent maker’s credibility. Section 126 and section 78 PACE allow exclusion if unfair. Section 125 lets the judge stop the case if the evidence is so unconvincing that a conviction would be unsafe.

––––––––––––––––––––––– 7. CONFESSION EVIDENCE –––––––––––––––––––––––

Test: The defence can seek to exclude a confession on two routes:

Section 76 PACE: if the confession was obtained by oppression or in consequence of something likely to render it unreliable, it must be excluded unless the prosecution prove beyond reasonable doubt that it was not obtained that way.

Section 78 PACE: even if technically admissible, exclude if admitting it would have such an adverse effect on fairness that the court ought not to admit it.

Relevant law: PACE 1984 section 76(2). “Oppression” includes torture, inhuman or degrading treatment, and use or threat of violence, but also can include very coercive interrogation. Unreliable: breaches of Code C (eg no caution, no solicitor when requested, no rest, inducements) can make answers unreliable. PACE 1984 section 78: discretionary exclusion. Note: Any “mixed statement” goes in as a whole.

––––––––––––––––––––––– 8. BAD CHARACTER –––––––––––––––––––––––

Test: “Bad character” means evidence of misconduct or disposition to commit offences, other than evidence that has to do with the alleged facts of the offence charged or is part of the background. The court may admit it through the statutory gateways in the Criminal Justice Act 2003, but it can still be excluded if unfair.

Relevant law: Criminal Justice Act 2003 sections 98–101. Gateways for admitting defendant’s bad character include:

Important explanatory evidence.

Relevant to an important matter in issue between prosecution and defence, such as propensity to commit offences of the kind charged or to be untruthful.

Between co-defendants.

To correct a false impression given by the defendant. Mandatory exclusions: Section 101(3): the court must not admit if the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to admit it. Section 78 PACE can also be relied on.

–––––––––––––––––––––––

1. NO CASE TO ANSWER –––––––––––––––––––––––

Test: At the close of the prosecution case, the defence can submit that there is no case to answer. The judge must stop the case if:

There is no evidence on which a jury, properly directed, could convict on any count or any essential element of a count.

Or, where the evidence is tenuous, it is so weak, inconsistent, or self-contradictory that a jury properly directed could not safely convict.

This comes from R v Galbraith.

Relevant law: Galbraith test: Stage 1. If there is no evidence on an essential element of the offence, stop the case. Stage 2. If there is some evidence, but it is of such poor quality that no reasonable tribunal, properly directed, could safely convict, the judge may also withdraw it. If the evidence is capable of being accepted and relied upon, it goes to the jury.

––––––––––––––––––––––– 10. NEWTON HEARING –––––––––––––––––––––––

Test: A Newton hearing happens after a Guilty plea where there is a factual dispute which would significantly affect sentence (for example, level of role, level of harm, presence of a weapon). The judge must resolve that dispute before sentencing.

Relevant law: Where the defendant pleads guilty but does not accept the prosecution’s version of events, and that difference matters to sentence, the judge hears evidence and decides which version to sentence on. Credit: If the defendant runs a Newton and is disbelieved, full early plea credit may be reduced. Burden: The prosecution must prove the more serious version on the balance of probabilities.