CILEx L6 Criminal Law & Procedure Advanced 2 — Questions and Answers
Question 1: What is the test for excluding evidence under s.78 PACE 1984?
- The court may exclude prosecution evidence if, having regard to all the circumstances including how the evidence was obtained, admission would have such an adverse effect on the fairness of proceedings that it ought not to be admitted (Correct answer)
- Evidence obtained in breach of any rule must be excluded
- The court has no discretion to exclude relevant evidence
- The test is whether the evidence is more prejudicial than probative
Correct answer: The court may exclude prosecution evidence if, having regard to all the circumstances including how the evidence was obtained, admission would have such an adverse effect on the fairness of proceedings that it ought not to be admitted
S.78 PACE 1984 gives the court a discretion to exclude evidence on which the prosecution proposes to rely if it appears that, having regard to all the circumstances (including how it was obtained), admission would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.
Question 2: What are the 'sentencing purposes' under the Sentencing Act 2020?
- Punishment, reduction of crime (deterrence and rehabilitation), protection of the public, and making reparation — courts must have regard to these purposes when sentencing adult offenders (Correct answer)
- Punishment and deterrence only
- Rehabilitation and reparation only
- The primary purpose is always public protection
Correct answer: Punishment, reduction of crime (deterrence and rehabilitation), protection of the public, and making reparation — courts must have regard to these purposes when sentencing adult offenders
The Sentencing Act 2020 (formerly s.142 CJA 2003) requires courts sentencing adults to have regard to: (1) punishment, (2) reduction of crime (including deterrence and reform and rehabilitation of offenders), (3) protection of the public, and (4) making of reparation.
Question 3: What is the significance of the Sentencing Council guidelines for Crown Court sentencing?
- Courts must follow the guidelines unless it is contrary to the interests of justice to do so — they must give reasons for any departure (Correct answer)
- Guidelines are advisory and courts may ignore them
- Guidelines apply only to magistrates' courts
- Courts must always impose the sentence specified in the relevant guideline
Correct answer: Courts must follow the guidelines unless it is contrary to the interests of justice to do so — they must give reasons for any departure
Under s.59 Sentencing Act 2020 (formerly s.172 CJA 2003), courts must follow Sentencing Council guidelines unless it is contrary to the interests of justice to do so. If departing from a guideline, the court must state its reasons.
Question 4: What are 'bad character' provisions under the Criminal Justice Act 2003?
- Evidence of bad character (misconduct on a previous occasion or in connection with the current offence) may be admitted through one of the seven gateways in s.101 CJA 2003 (Correct answer)
- Any previous conviction can automatically be put before a jury
- Bad character evidence is generally excluded
- Defendants' bad character can never be used in evidence
Correct answer: Evidence of bad character (misconduct on a previous occasion or in connection with the current offence) may be admitted through one of the seven gateways in s.101 CJA 2003
S.101 CJA 2003 provides seven gateways through which evidence of a defendant's bad character may be admitted, including: agreement of all parties, evidence adduced by the defendant, important explanatory evidence, relevant to an important matter in issue, and to correct a false impression.
Question 5: What is the 'hearsay' rule in criminal proceedings and what are the main statutory exceptions?
- Hearsay (an out-of-court statement adduced to prove the truth of its contents) is generally inadmissible but may be admitted under CJA 2003 ss.114-136, including for documentary records, unavailable witnesses, interests of justice, and by agreement (Correct answer)
- All out-of-court statements are inadmissible
- Hearsay is always admissible in criminal proceedings
- The hearsay rule was abolished by the Criminal Justice Act 2003
Correct answer: Hearsay (an out-of-court statement adduced to prove the truth of its contents) is generally inadmissible but may be admitted under CJA 2003 ss.114-136, including for documentary records, unavailable witnesses, interests of justice, and by agreement
Under the CJA 2003, hearsay (a statement not made in oral evidence adduced to prove the matter stated) is admissible only through the statutory gateways: (1) by agreement, (2) under common law preserved exceptions, (3) statements in documents, (4) where the maker is unavailable, and (5) the interests of justice gateway (s.114(1)(d)).
Question 6: What is a 'Newton hearing' in criminal procedure?
- A hearing to resolve factual issues relevant to sentencing where the defendant has pleaded guilty but disputes aspects of the prosecution's version of facts (Correct answer)
- A hearing to determine whether a defendant is fit to plead
- A hearing at which the judge alone decides guilt
- A preliminary hearing to consider bail applications
Correct answer: A hearing to resolve factual issues relevant to sentencing where the defendant has pleaded guilty but disputes aspects of the prosecution's version of facts
A Newton hearing (from R v Newton [1982]) is a hearing to resolve disputes of fact for sentencing purposes after a guilty plea. The judge must resolve the factual dispute — either by hearing evidence or by giving the defendant the benefit of the doubt on disputed facts.
CILEx L6 Criminal Law & Procedure Advanced 2
What is the test for excluding evidence under s.78 PACE 1984?