Chapter 16 Multiple Choice Questions

. 'The rule that judgments of courts of competent jurisdiction are public records and presumed to be faithfully made and recorded was abrogated by the Civil Evidence Act 1968 and placed, at last, on a rational footing'.

True

False

. What is a judgment in rem?

A judgment in rem may be defined as one which has the effect of declaring the status of a person or thing for all legal purposes and hence as against all the world.

A judgment in rem may be defined as one which has the effect of establishing the rights and obligations, in respect of the subject-matter of the proceedings, of the parties and their privies.

A judgment in rem may be defined as one which is made at 'half-time' in proceedings in a criminal court, at which point the judge may decide that there is not a prima facie case and dismiss the charges against the accused.

A judgment in rem may be defined as one that is made at a pre-trial hearing, either in a civil or a criminal court, and the judge determines that the claim or prosecution is without any foundation and so is, respectively, either 'struck out' or 'discontinued'.

. What is the rule derived from Hollington v Hewthorn [1943] KB 587?

That a previous judgmentin rem is inadmissible as evidence of the facts on which it is based, but that a judgment in personam is admissible.

That a previous judgment is admissible as evidence of the facts on which it is based, except as between the parties to that litigation.

That a previous judgment is admissible as evidence of the facts on which it is based. There is an irrebuttable presumption to that effect, except as between the parties to that litigation.

That a previous judgment is not admissible as evidence of the facts on which it is based, except as between the parties to that litigation.

. What is the position, under s. 11 of the Civil Evidence Act 1968, in relation to the admissibility of a criminal conviction before any court in the United Kingdom?

That conviction shall be admissible in evidence, where relevant, for the purpose of proving that he committed the offence and he shall be presumed conclusively to have committed the offence.

That conviction shall be admissible in evidence, where relevant, for the purpose of proving that he committed the offence and he shall be taken to have committed the offence, unless sufficient evidence is raised to the contrary.

That conviction shall be admissible in evidence, where relevant, for the purpose of proving that he committed the offence and he shall be taken to have committed the offence, unless the contrary is proved on the balance of probabilities.

That conviction shall be admissible in evidence, where relevant, for the purpose of proving that he committed the offence and he shall be taken to have committed the offence, unless decisive fresh evidence is adduced to disprove the conviction.

. What is the position, under s. 13 of the Civil Evidence Act 1968, in relation to actions for libel or slander, where the issue of whether the claimant did or did not commit a criminal offence is relevant to an issue arising in the civil case?

Proof that, at the time when the issue falls to be determined, he stands convicted of the offence, shall be conclusive evidence that he committed the offence and admissible in evidence.

Proof that, at the time when the issue falls to be determined, he stands convicted of the offence, shall be admissible in evidence, unless sufficient evidence is raised to the contrary.

Proof that, at the time when the issue falls to be determined, he stands convicted of the offence, shall be admissible in evidence, unless sufficient evidence is raised to the contrary, unless the contrary is proved on the balance of probabilities.

Proof that, at the time when the issue falls to be determined, he stands convicted of the offence, shall be admissible in evidence, unless sufficient evidence is raised to the contrary, unless 'condign and compelling fresh evidence' is adduced to disprove the conviction.

. John and Derk were charged jointly with a number of offences of fraud arising from a 'debt advisory' business. Derk pleaded guilty and the prosecution wants to adduce his previous convictions in evidence at John's trial. How can this be achieved?

The fact of the convictions may be adduced in evidence by virtue of s. 74 of the Police and Criminal Evidence Act 1984. This is evidence both that the co-accused committed the said offence/s and that the accused participated in the offence.

The fact of the convictions may be adduced in evidence by virtue of s. 74 of the Police and Criminal Evidence Act 1984. However, this is not evidence that the accused participated in the offence. It is only evidence that the co-accused committed the said offence/s.

The fact of the convictions may be adduced in evidence by virtue of s. 74 of the Police and Criminal Evidence Act 1984. This is evidence that the co-accused committed the said offence/s and leads to the 'irrebuttable presumption' that the defendant also participated in the offence, i.e. proof of the co-accused's conviction points automatically to the defendant's guilt.

The fact of the convictions may be adduced in evidence by virtue of s. 74 of the Police and Criminal Evidence Act 1984. This is evidence that the co-accused committed the said offence/s and leads to the 'rebuttable presumption' that the defendant also participated in the offence, i.e. the conviction points to the defendant's guilt, unless the contrary can be proved.

. Whether evidence that the person committed the offence is admissible, by virtue of s. 74 of the Police and Criminal Evidence Act 1984, will usually depend on whether this evidence is, first, also admissible under the Criminal Justice Act 2003 bad character provisions.

True

False

. What is usually stated to be the purpose of s. 74(1) of the Police and Criminal Evidence Act 1984?

It is restricted to the proof of convictions of others that amount to an essential ingredient or necessary 'condition precedent' to the offence with which the accused is charged.

It is restricted to the proof of convictions of others where, following a voir dire, the trial judge decides that there is 'no other viable alternative' open to the party seeking to establish the relevant issue in the case.

It is to permit evidence of the conviction of an offence to be adduced only in circumstances where there is no other evidence available to establish the relevant issue. Reliance upon it frequently described as a 'counsel of despair'.

It is to permit evidence of the conviction of an offence to be adduced in order to prove the underlying facts in issue in any relevant case. The word 'issue' is apt to cover not only an issue that is an essential ingredient, but also less fundamental issues.

. The fact of the conviction of one co-accused is admissible in evidence against another co-accused in the same proceedings, by virtue of s. 74 of the Police and Criminal Evidence Act 1984.

True

False

. A party who contests the correctness of a conviction shall only ever bear an evidential burden to establish that there was no previous conviction.

True

False

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