Chapter 3 Multiple Choice Questions

. What is the meaning of the term 'Tribunal of Law'?

It is the formal and correct title for a First-tier Tribunal following the reforms instituted after the Leggett Review.

It is the original title for the Employment Tribunal and also pre-dates the title 'Industrial Tribunal'.

It is the name given to courts when they are closed hearings under the closed material procedure.

It is the general name given to the decision-maker on matters of law in the course of a trial.

. What is the meaning of the term 'Tribunal of Fact'?

It is a general term for the jury in a Crown Court trial.

It is the other name given to the voir dire, the hearing where matters of law are determined in the absence of the jury.

It is the alternative name for a 'Newton Hearing', where there is a hearing to determine facts, e.g. where the accused admits causing serious harm but denies kicking the victim in the head

It is the first stage in District and General Courts-Martial proceedings.

. For what reason/s is the jury asked to retire in a Crown Court trial while there is legal argument regarding the admissibility of evidence? Please select all that apply.

The trial may be prejudiced if the jury is exposed to secondary evidence adduced in support of evidence, the admissibility of which, is in dispute.

All questions of the relevance and admissibility of evidence fall to be decided by the judge, whereas the province of the jury is the factual question of the weight of the evidence in the case.

The hearing in the jury's absence is called avoir dire and, exceptionally, involves the trial judge alone coming to a factual decision on the accused's guilt in very specific circumstances, e.g. strict liability offences.

Some trials are concerned with matters of fact that are of particular sensitivity, e.g. serious sexual offences. Accordingly, as a matter of public policy, the judge can decide that the jury should not hear some evidence that they will find particularly upsetting.

. In what circumstances will a defence submission of 'no case to answer' fail in a criminal trial?

A proper foundation has been laid, so that a properly directed jury must go on to convict the accused.

A proper foundation has been laid for a properly directed jury to be capable of convicting the accused.

A proper foundation has been laid for a properly directed jury to be capable of convicting the accused and a reasonable bystander, considering these circumstances, would be bound to reach the same conclusion.

A proper foundation has been laid for a properly directed jury to be capable of convicting the accused and, where a case depends, wholly or substantially, on circumstantial evidence the only possible inference is that of guilt.

. There are two parts to the Galbraith test for determining whether there is 'no case to answer'. In relation to the second limb of the test, it is correct to say that 'taking the prosecution case at its highest does not mean picking out the plums and leaving the duff behind'.

True

False

. 'At common law there was a general inclusionary discretion'.

True

False

. In what circumstances may evidence may be excluded under s. 78 of the Police and Criminal Evidence Act 1984?

The evidence has been obtained by 'oppression', which should be given its ordinary meaning, e.g. a police officer has threatened the accused with violence.

The evidence obtained has been rendered unreliable as a consequence of something said or done, e.g. the accused has been promised bail.

The judge is of the opinion that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the prosecution or defence evidence ought torosecution or defencercumstances, including the circumstances in which it was obtained, be excluded because its admission would have such an adverse effect on the fairness of the proceedings.

The judge is of the opinion that, having regard to all the circumstances (including those relating to how the evidence was obtained) the prosecution evidence should be excluded because its admission would have an adverse effect on the fairness of the proceedings.

. 'Following enactment of the Police and Criminal Evidence Act 1984, the common law discretionary power to exclude evidence has been conclusively revoked and replaced by the power under s. 78 to exclude evidence that will have an adverse effect on the fairness of the proceedings'.

True

False

. What did the House of Lords hold in Sang [1980] AC 402? Please select all that apply.

The judge has a general discretion to exclude admissible prosecution evidence on the ground that its prejudicial nature might result in the accused being denied a fair trial.

With the exception of admissions, confessions and other evidence obtained from the accused after commission of the offence (e.g. documentary evidence) the judge has no discretion to exclude evidence obtained by improper or unfair means.

In general terms, the court is concerned with the relevance of evidence, even where it has been obtained by unfair or improper means, and not with the source of that evidence.

Evidence may be excluded where the judge is of the opinion that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the prosecution evidence ought torosecution or defencercumstances, including the circumstances in which it was obtained, be excluded because its admission would have such an adverse effect on the fairness of the proceedings. This principle later formed the basis for s. 78 of the Police and Criminal Evidence Act 1984.

. What is the legal position where evidence has been obtained in breach of the Police and Criminal Evidence Act 1984 Codes of Practice?

The evidence will not be admissible. The 2017 Code of Practice C states expressly in para 1.0 that: 'The powers and procedures in this Code must be used fairly and responsibly, with respect for the people to whom they apply and without unlawful discrimination'. Accordingly, it is now incorrect to suggest that compliance is in some way 'optional'.

The test is not the seriousness or otherwise of the breach (although this is relevant) but whether the admission of the evidence produced thereby would have an unacceptably unfair effect on the proceedings (Police and Criminal Evidence Act 1984, s. 78).

Where there is a serious breach of the Codes, this will be a factor that shall, as a matter of law, 'tip the scales' in favour of exclusion of evidence. This is called 'the tipping-point' principle (Apicella (1986) 82 Cr App R 295) and leads to a rebuttable presumption in favour of exclusion of any evidence so obtained.

The evidence shall, as a result, be rendered unreliable 'as a consequence of something said or done'. Here the failure of the police to follow the Code. Therefore, any evidence obtained shall be inadmissible.

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