Presumption of Bail (s.4 BA)
Applies all the time inc. where sentencing in mag after summary trial, during 3.1 BAIL
adj e.g. for PSR: apart from: Remand - in custody/bail Offences with PARTICULAR
appealing conviction/sentence CHARACTERISTICS
when Mag convict & commit for sentence to CC.
bop - D GROUNDS FOR OBJECTING BAIL
If D INDICATES G plea in EWO before Mag at 1st hearing (e.g. in allocation)
DOMESTIC VIOLENCE
& is then to be committed to CC - IF D was on bail before pbv - bail likely to
be granted (unless reasons otherwise below).
D charged w/ offence against family (associated
person)
GROUNDS WITH SERIOUS
CORE GROUNDS (C3) IMPRISONABLE OFFENCE:
OFFENCES
D NEED NOT be granted bail if there at SGFB that
TECHNICAL GROUNDS (Grounds in addition to C3)
SUBSTANTIAL GROUNDS FOR this would lead to D to engage in conduct likely to
BELIEVING (SGFB): lead physical/mental injury to associated person.
Court NEED NOT grant bail where:
A. PRE-CON FOR SERIOUS OFFENCE Likely to (more lenient than C3 (D Would).
SGFB (Low, some possibility):
FTS IF D: NON IMPRISONABLE/NRPCS
CFO D ALREADY serving time in Only where D is arrested for FTS/Breach of bail
CUSTODY for another 1. Charged with MURDER, AT MURDER, under s.7
IWW
offence RAPE, SERIOUS SEXUAL OFFENCE; AND
2. Has PRE-CON for any of the above ABUSE OF CLASS A DRUGS
HOWEVER - wont apply if no real
prospect of custodial sentence D only given bail if EXCEPTIONAL Where D:
(NRPCS). D was ON BAIL (for another offence) at CIRCUMSTANCES justify. 1. Has Class A in body; AND
time of offence/breach of bail: 2. Offence relates to Class A drugs/caused
Core Grounds with MINOR offences B. MURDER or motivated by Ds dependency.
1. For indictable offence without more
2. For summary imprisonable offence - (if pre-con for serious offence - see above) Bail may only be granted where NO
Can ALWAYS rely on C3 for
IF SGFB that D will CFO SIGNIFICANT RISK that would lead to CFO
INDICTABLE.
D ONLY given bail where NO SIGNIFICANT (reverses presumption of CFO Core 3
IMPRISONABLE summary only RISK of D causing an offence LIKELY to lead
BOTH SUBJECT TO NRPCS Ground.
(incl Criminal damage <5k) to physical/mental injury (reverses
presumption)
P CANNOT object Bail on C3 at first D should be kept in custody FOR OWN Summary of grounds available for:
hearing UNLESS: PROTECTION (e.g sex offences against ONLY CC can grant bail. MG MUST commit
1.D granted bail for relevant children) to CC in custody.
Imprisonable Non-imprisonable
offence & breaches OR
2.IF D convicted for FTS on ANY C. OFFENCES WITH LIFE IMPRISONMENT
Summary Only Summary Only
previous offence.
Insufficient time/details If D was either: CFO/FTS/IWW IF
CFO/FTS/IWW IF EITHER:
EITHER:
NON IMPRISONABLE SUMMARY to make proper evaluation (only 1. Already on bail when offence committed
justifies short period in custody). - THIS 1. Previous conv for FTS
P can only rely on C3 if: and/or 1. Previous conv for
DOES NOT APPLY TO NON- 2. FTS for current offence having previously
or breach of bail re
FTS OR
IMPRISONABLE OFFENCES. been granted bail current offence; AND
1.D has already been convicted 2. Breach of bail re
2. CONVICTED in current
in CURRENT proceedings current offence
APPLY TO ALL (indict & summary only) Bail ONLY granted where NO SIGNIFICANT proceedings
(later stage) OR D is under 18 offences EXCEPT (4) - DOES NOT apply RISK that bail would lead to either:
(doesn't need to have been D's own protection
with non-imprisonable offences. 1. CFO OR D's own protection
convicted); AND 2. FTS
Insufficient time/info
D already in cusotdy
2.then breaches/fails to show D already in custody
DV
for relevant offence or has This changes the standard of proof for the DV
pre con for FTS. first two Core 3.
, XIC 13.1 The Rules Relating To The Examination Of Witnesses
Content of Q - Only RELEVANT evidence where no exclusionary rule
XX
Form of Q - Non-Leading Q EXCEPT:
Formal introductory matters RE - X P - D, D- Co-D
Facts not disputed Objectives
Allowed at judges discretion in interest of justice Elicit evidence supporting case of opposing party W
Confined to Undermine accuracy of W evidence
Hostile W
NEW matters Impeach W's credibility
Leading Q - Significantly reduced in weight
which arose
Content
HOSTILE W during XX
Admissible evidence re either
With leave of judge - put previous inconsistent (oral/written) statements to Even where P a. Fact in issue (NOT limited to facts mentioned in EIC) OR
W to prove truth. - IF proved WS was made by W - Can be XX did not b. Collateral matters of Ws credibility (e.g. lack of independence, s 100
Ask leading Q originally XIC W CJA, Non-bad character.
(only tendered Re (a) > If opposing counsel fails to PUT CASE - i.e. elements of
Counsel - to make app for leave as soon as hostility apparent - IN PRESENCE offence/defence - they are taken to have tacitly accepted the issue - CANNOT
to D for XX) - P invite a jury to disbelieve during closing speech.
of jury. Judges discretion.
entitled to RE-X
Not enough for W to just be unfavourable (i.e. give adverse evidence) -
MUST be HOSTILE (e.g. refuse to answer Q) W. Re (b) > Once W gives consistent answer on issue re credibility - NO MORE
Qs/evidence should be put to contradict this - up to jury to believe.
Counsel should call another W to contradict unfavourable W and cannot
Collateral matter re credibility must have a connection to the issues so as
attack W1 credibility - then matter for jury who to believe.
to be relevant/admissible
Court has power to ask Q (D) Previous Consistent Statement
HOWEVER - where evidence goes to something other than credibility -
CAN still be basis for further questioning.
Common law rule: NOT admissible as
PREVIOUS (WITNESS) STATEMENTS evidence (inc. evidence of reliability of
Form
W)
Leading
Judge can limit robust questions where done unnecessarily, oppressively or
Exceptions:
(A) S9: Can be improperly. Can also limit the time for Q:
read in full - Entitled/obliged to impose re repetitious questioning
Statement made as an immediate
agreed content Not the duty of counsel to put every point of a case to W - focus on
reaction to crime being committed
important
Statement made by D immediately
Entitlement to fair trial (right to xx) is not inconsistent with judicial control
(B) Memory Refresh on accusation by police in.c mixed
over the use of court rime - CA only interfere when clear that time limit
statements. - ONLY evidence of
resulted in unfairness.
(C) Previous reaction, not evidence of
1. Previous statement which
Inconsistent FACTS/truth of its content.
2. Offers significantly better recollection D can XX W - EXCEPT
Statement 'Recent COMPLAINTS' by V of
1. V - sexual offence
relevant offence - the quicker
Make oral app to judge during XIC/judge's own 2. Other 'Protected W' with specified offences; OR
Where W admits someone complains - more truth to
initiation. 3. General discretion on court where:
previously made an allegation
inconsistent W accused of lying about/recent
W MUST have either MADE statement or MUST a. Quality of evidence given by W would be diminished AND consider
statement - the fabrication of fact (rather than lying
have verified the content of document made by Views expressed by W
statement IS throughout) - can rely on previous
someone else (e.g. police) Nature of Qs likely to be asked
ADMISSIBLE as consistent statement to rebut the
Both during XIC & Re-X Ds behaviour
evidence of a matter alleged fabrication & prove what
Can memory refresh from ANY document in Relationship between D & W
stated if it relates to was said was true
which recollection recorded; inc. police note of
evidence W could b. NOT contrary to Interest of Justice
what W said. Judge should direct jury that previous
give orally (s119 Court MUST invite D to appoint counsel or appoint on his behalf a legal
W can review ws any point pre-entering box but statement NOT made by independent
CJA) rep to XX on Ds behalf.
cannot be compared with other W statement/no source - but by person that is now a W.
Should warn jury not to make inferences from D being prevented from
discussion between W pre-evidence - Could lead Failure to direct is NOT grounds for an
conducting XX
to judge to refuse to leave evidence to jury. appeal.
Same rules re previous CONSISTENT & INCONSISTENT statements.
, Does its 14.1 HEARSAY IS IT HEARSAY?
evidential value Out of court statement adduced for the truth of its content
depend on the ‘STATEMENT’: s115(2):
statement being ‘Any representation of fact or opinion
true? - YES? - made by a person by whatever means; Out of Court statement? Not made by a
Hearsay problem and it includes a representation in a (s115) person
arises. sketch, photofit or other pictorial form.’ or
physical quality
General Rule: 'Communications made by machines
relevant
Hearsay = e.g. CCTV - NOT HEARSAY (so they
INADMISSIBLE as are subject to normal rules of
admissibility - MUST be human input
evidence of any
REAL
Can include statement by conduct, Made by a person?
matter stated -
statement in other proceedings,
s114 - IF BUT
IMPLIED statements.
ONLY IF -
Questions generally NOT hearsay as
subject to ORIGINAL EVIDENCE: not relied on for truth of its content; but rather just to
not a statement.
exceptions shown
that content existed in fact (words spoken) – i.e.
below: Not intended that
intended at time of
someone believes/acts Threats alleged to form the basis of his defence of duress – don’t need to
making that someone believe the truth of the threats, just that they were made
Evidence may be as though believes Woodhouse v Hall [1980]: related to offence of D managing a brothel. CPS
believes/acts as though
hearsay for one sought to admit a statement by someone at the brothel offering sexual
purpose but not believes services for money. The CPS did not need to rely on the TRUTH of this
statement (i.e. whether the services would actually be given); the offer was
for another enough.
Repetition of a fact Where P trying to admit evidence of D LYING, unlikely to be hearsay. Want to
show D said something (which other evidence reveals is not true); D has not
already
know/common Relied on at court for some ORIGINAL made a statement of the matter sought to be proved by P (i.e. D didn’t try to
prove to people that he was lying).
Police officer’s account of what saw on the CCTV, so long as just an account
understanding by Relied on at court for truth other reason (rather than personal opinions).
the recipient is of contents (s114) e.g. shows a lie, shows state Admitting evidence of D giving no comment in interview.
Lydon – existence of some writing found at the scene of the crime (‘Sean
NOT a statement of mind rules’). Not relied on for truth of content (i.e. that Sean does rule) but simply
intending them to to show writing with D’s name was found at scene in fact.
believe something.
s.114(1) : In criminal proceedings a statement not made in oral
Conversational ‘MATTER STATED’: s115(3): evidence in the proceedings is admissible as evidence of any
Hearsay
settings will often ‘A matter stated is one to which the chapter
fall down here.
matter stated if, but only if…
applies if (and only if) the purpose, or one
Statements in a of the purposes, of the person making the
diary DO NOT statement appears to the court to have 1. Any provision of this chapter of any other statutory provision
been… makes it admissible (e.g. ss.116, 117, 119, 120, 127)
INTEND to cause
1. To cause another person to believe the
another to believe 2. Any rule of law preserved by s. 118 makes it admissible,
only admissible matter, or
if only meant for 2. To cause another person to act or a
3. All the parties agree to it being admissible, or
through gateways
private/personal machine to operate on the basis that 4. The court is satisfied that it is in the interests of justice for it to
ss114(1)(a)-(d)
use. the matter is as stated.’ be admissible.
Applies all the time inc. where sentencing in mag after summary trial, during 3.1 BAIL
adj e.g. for PSR: apart from: Remand - in custody/bail Offences with PARTICULAR
appealing conviction/sentence CHARACTERISTICS
when Mag convict & commit for sentence to CC.
bop - D GROUNDS FOR OBJECTING BAIL
If D INDICATES G plea in EWO before Mag at 1st hearing (e.g. in allocation)
DOMESTIC VIOLENCE
& is then to be committed to CC - IF D was on bail before pbv - bail likely to
be granted (unless reasons otherwise below).
D charged w/ offence against family (associated
person)
GROUNDS WITH SERIOUS
CORE GROUNDS (C3) IMPRISONABLE OFFENCE:
OFFENCES
D NEED NOT be granted bail if there at SGFB that
TECHNICAL GROUNDS (Grounds in addition to C3)
SUBSTANTIAL GROUNDS FOR this would lead to D to engage in conduct likely to
BELIEVING (SGFB): lead physical/mental injury to associated person.
Court NEED NOT grant bail where:
A. PRE-CON FOR SERIOUS OFFENCE Likely to (more lenient than C3 (D Would).
SGFB (Low, some possibility):
FTS IF D: NON IMPRISONABLE/NRPCS
CFO D ALREADY serving time in Only where D is arrested for FTS/Breach of bail
CUSTODY for another 1. Charged with MURDER, AT MURDER, under s.7
IWW
offence RAPE, SERIOUS SEXUAL OFFENCE; AND
2. Has PRE-CON for any of the above ABUSE OF CLASS A DRUGS
HOWEVER - wont apply if no real
prospect of custodial sentence D only given bail if EXCEPTIONAL Where D:
(NRPCS). D was ON BAIL (for another offence) at CIRCUMSTANCES justify. 1. Has Class A in body; AND
time of offence/breach of bail: 2. Offence relates to Class A drugs/caused
Core Grounds with MINOR offences B. MURDER or motivated by Ds dependency.
1. For indictable offence without more
2. For summary imprisonable offence - (if pre-con for serious offence - see above) Bail may only be granted where NO
Can ALWAYS rely on C3 for
IF SGFB that D will CFO SIGNIFICANT RISK that would lead to CFO
INDICTABLE.
D ONLY given bail where NO SIGNIFICANT (reverses presumption of CFO Core 3
IMPRISONABLE summary only RISK of D causing an offence LIKELY to lead
BOTH SUBJECT TO NRPCS Ground.
(incl Criminal damage <5k) to physical/mental injury (reverses
presumption)
P CANNOT object Bail on C3 at first D should be kept in custody FOR OWN Summary of grounds available for:
hearing UNLESS: PROTECTION (e.g sex offences against ONLY CC can grant bail. MG MUST commit
1.D granted bail for relevant children) to CC in custody.
Imprisonable Non-imprisonable
offence & breaches OR
2.IF D convicted for FTS on ANY C. OFFENCES WITH LIFE IMPRISONMENT
Summary Only Summary Only
previous offence.
Insufficient time/details If D was either: CFO/FTS/IWW IF
CFO/FTS/IWW IF EITHER:
EITHER:
NON IMPRISONABLE SUMMARY to make proper evaluation (only 1. Already on bail when offence committed
justifies short period in custody). - THIS 1. Previous conv for FTS
P can only rely on C3 if: and/or 1. Previous conv for
DOES NOT APPLY TO NON- 2. FTS for current offence having previously
or breach of bail re
FTS OR
IMPRISONABLE OFFENCES. been granted bail current offence; AND
1.D has already been convicted 2. Breach of bail re
2. CONVICTED in current
in CURRENT proceedings current offence
APPLY TO ALL (indict & summary only) Bail ONLY granted where NO SIGNIFICANT proceedings
(later stage) OR D is under 18 offences EXCEPT (4) - DOES NOT apply RISK that bail would lead to either:
(doesn't need to have been D's own protection
with non-imprisonable offences. 1. CFO OR D's own protection
convicted); AND 2. FTS
Insufficient time/info
D already in cusotdy
2.then breaches/fails to show D already in custody
DV
for relevant offence or has This changes the standard of proof for the DV
pre con for FTS. first two Core 3.
, XIC 13.1 The Rules Relating To The Examination Of Witnesses
Content of Q - Only RELEVANT evidence where no exclusionary rule
XX
Form of Q - Non-Leading Q EXCEPT:
Formal introductory matters RE - X P - D, D- Co-D
Facts not disputed Objectives
Allowed at judges discretion in interest of justice Elicit evidence supporting case of opposing party W
Confined to Undermine accuracy of W evidence
Hostile W
NEW matters Impeach W's credibility
Leading Q - Significantly reduced in weight
which arose
Content
HOSTILE W during XX
Admissible evidence re either
With leave of judge - put previous inconsistent (oral/written) statements to Even where P a. Fact in issue (NOT limited to facts mentioned in EIC) OR
W to prove truth. - IF proved WS was made by W - Can be XX did not b. Collateral matters of Ws credibility (e.g. lack of independence, s 100
Ask leading Q originally XIC W CJA, Non-bad character.
(only tendered Re (a) > If opposing counsel fails to PUT CASE - i.e. elements of
Counsel - to make app for leave as soon as hostility apparent - IN PRESENCE offence/defence - they are taken to have tacitly accepted the issue - CANNOT
to D for XX) - P invite a jury to disbelieve during closing speech.
of jury. Judges discretion.
entitled to RE-X
Not enough for W to just be unfavourable (i.e. give adverse evidence) -
MUST be HOSTILE (e.g. refuse to answer Q) W. Re (b) > Once W gives consistent answer on issue re credibility - NO MORE
Qs/evidence should be put to contradict this - up to jury to believe.
Counsel should call another W to contradict unfavourable W and cannot
Collateral matter re credibility must have a connection to the issues so as
attack W1 credibility - then matter for jury who to believe.
to be relevant/admissible
Court has power to ask Q (D) Previous Consistent Statement
HOWEVER - where evidence goes to something other than credibility -
CAN still be basis for further questioning.
Common law rule: NOT admissible as
PREVIOUS (WITNESS) STATEMENTS evidence (inc. evidence of reliability of
Form
W)
Leading
Judge can limit robust questions where done unnecessarily, oppressively or
Exceptions:
(A) S9: Can be improperly. Can also limit the time for Q:
read in full - Entitled/obliged to impose re repetitious questioning
Statement made as an immediate
agreed content Not the duty of counsel to put every point of a case to W - focus on
reaction to crime being committed
important
Statement made by D immediately
Entitlement to fair trial (right to xx) is not inconsistent with judicial control
(B) Memory Refresh on accusation by police in.c mixed
over the use of court rime - CA only interfere when clear that time limit
statements. - ONLY evidence of
resulted in unfairness.
(C) Previous reaction, not evidence of
1. Previous statement which
Inconsistent FACTS/truth of its content.
2. Offers significantly better recollection D can XX W - EXCEPT
Statement 'Recent COMPLAINTS' by V of
1. V - sexual offence
relevant offence - the quicker
Make oral app to judge during XIC/judge's own 2. Other 'Protected W' with specified offences; OR
Where W admits someone complains - more truth to
initiation. 3. General discretion on court where:
previously made an allegation
inconsistent W accused of lying about/recent
W MUST have either MADE statement or MUST a. Quality of evidence given by W would be diminished AND consider
statement - the fabrication of fact (rather than lying
have verified the content of document made by Views expressed by W
statement IS throughout) - can rely on previous
someone else (e.g. police) Nature of Qs likely to be asked
ADMISSIBLE as consistent statement to rebut the
Both during XIC & Re-X Ds behaviour
evidence of a matter alleged fabrication & prove what
Can memory refresh from ANY document in Relationship between D & W
stated if it relates to was said was true
which recollection recorded; inc. police note of
evidence W could b. NOT contrary to Interest of Justice
what W said. Judge should direct jury that previous
give orally (s119 Court MUST invite D to appoint counsel or appoint on his behalf a legal
W can review ws any point pre-entering box but statement NOT made by independent
CJA) rep to XX on Ds behalf.
cannot be compared with other W statement/no source - but by person that is now a W.
Should warn jury not to make inferences from D being prevented from
discussion between W pre-evidence - Could lead Failure to direct is NOT grounds for an
conducting XX
to judge to refuse to leave evidence to jury. appeal.
Same rules re previous CONSISTENT & INCONSISTENT statements.
, Does its 14.1 HEARSAY IS IT HEARSAY?
evidential value Out of court statement adduced for the truth of its content
depend on the ‘STATEMENT’: s115(2):
statement being ‘Any representation of fact or opinion
true? - YES? - made by a person by whatever means; Out of Court statement? Not made by a
Hearsay problem and it includes a representation in a (s115) person
arises. sketch, photofit or other pictorial form.’ or
physical quality
General Rule: 'Communications made by machines
relevant
Hearsay = e.g. CCTV - NOT HEARSAY (so they
INADMISSIBLE as are subject to normal rules of
admissibility - MUST be human input
evidence of any
REAL
Can include statement by conduct, Made by a person?
matter stated -
statement in other proceedings,
s114 - IF BUT
IMPLIED statements.
ONLY IF -
Questions generally NOT hearsay as
subject to ORIGINAL EVIDENCE: not relied on for truth of its content; but rather just to
not a statement.
exceptions shown
that content existed in fact (words spoken) – i.e.
below: Not intended that
intended at time of
someone believes/acts Threats alleged to form the basis of his defence of duress – don’t need to
making that someone believe the truth of the threats, just that they were made
Evidence may be as though believes Woodhouse v Hall [1980]: related to offence of D managing a brothel. CPS
believes/acts as though
hearsay for one sought to admit a statement by someone at the brothel offering sexual
purpose but not believes services for money. The CPS did not need to rely on the TRUTH of this
statement (i.e. whether the services would actually be given); the offer was
for another enough.
Repetition of a fact Where P trying to admit evidence of D LYING, unlikely to be hearsay. Want to
show D said something (which other evidence reveals is not true); D has not
already
know/common Relied on at court for some ORIGINAL made a statement of the matter sought to be proved by P (i.e. D didn’t try to
prove to people that he was lying).
Police officer’s account of what saw on the CCTV, so long as just an account
understanding by Relied on at court for truth other reason (rather than personal opinions).
the recipient is of contents (s114) e.g. shows a lie, shows state Admitting evidence of D giving no comment in interview.
Lydon – existence of some writing found at the scene of the crime (‘Sean
NOT a statement of mind rules’). Not relied on for truth of content (i.e. that Sean does rule) but simply
intending them to to show writing with D’s name was found at scene in fact.
believe something.
s.114(1) : In criminal proceedings a statement not made in oral
Conversational ‘MATTER STATED’: s115(3): evidence in the proceedings is admissible as evidence of any
Hearsay
settings will often ‘A matter stated is one to which the chapter
fall down here.
matter stated if, but only if…
applies if (and only if) the purpose, or one
Statements in a of the purposes, of the person making the
diary DO NOT statement appears to the court to have 1. Any provision of this chapter of any other statutory provision
been… makes it admissible (e.g. ss.116, 117, 119, 120, 127)
INTEND to cause
1. To cause another person to believe the
another to believe 2. Any rule of law preserved by s. 118 makes it admissible,
only admissible matter, or
if only meant for 2. To cause another person to act or a
3. All the parties agree to it being admissible, or
through gateways
private/personal machine to operate on the basis that 4. The court is satisfied that it is in the interests of justice for it to
ss114(1)(a)-(d)
use. the matter is as stated.’ be admissible.
