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Law of Evidence - Dissertation Sample

16 Mar 2017Dissertation Samples

Bill Cates 38 years old is charged with burglary of Daniel Edwards premises wherein he stole a valuable statuette. Bill has previous conviction for theft. Some of these convictions are for the theft of valuable works of art from private dwellings

Pc Foley arrests Bill in a wine bar in Kensington at 11 pm. He is cautioned and replies,"My solicitor has always told me to remain silent, so that is what i shall do." He remains silent. Later at the police station bill is informed of his right to a solicitor. He is also told that he will not be further interviewed until the morning, and will probably therefore not need to speak to him until then. John says he will contact his solicitor in the morning. He gets no sleep that night, because there is a drunken man in the cell next door who sings all night.

the next morning after Bill has requested his solicitor by name, the custody sergeant tells Bill that he has spoken to the solicitor that morning on another matter. He says that it will probably take at least six hours for Bill's solicitor to arrive, given the nature of the other matter that the solicitor is dealing with. Bill gives permission to be interviewed at 8 am without the solicitor present.

in his interview, he is asked to admit to the crime 20 times. Bill denies the offence on each occasion. In total he has five such interviews, all lasting one and half hour each. At the last interview he says, "All right, have it your way i want to go home. I adore fine art i did it.

A neighbour of Daniel's Helen Inman said that she saw a young man fitting Bill's general description enter the premises through the French doors at the back of the house. She says he broke the glass in the door, turned the latch and entered. Her bathroom window overlooks the back of Daniel Edwards property. The statement was given to Pc Gunner, who wrote it down immediately. at his trial Bill is arguing that he crime was not committed by him.

Helen Inman was invited to Kensington Police station to pick out the man she saw in an identity parade, two days after the burglary. She hesitated at Bill Cates but picked out a man who looked younger than Bill Cates.

Consider the admissibility of the following evidence:

a. Bill Cate's previous convictions 

b. Bill's silence upon arrest 
c. Bill's confession 
d. Pc Gunner's note of what Helen Inman said 
e. Helen Inman's identity evidence

1. Bill Cate’s Previous Convictions

It can be suggested that as Bill Cate’s has a previous conviction for burglary of fine art from a private dwelling he is more likely to be guilty of a further burglary of fine art from a private dwelling.  On this premise it can be argued that the features of he current allegations resemble features of the earlier offence and therefore the likelihood that Bill committed this offence is increased.   It is likely that a Judge in Bill Cate’s trial would find that the earlier incident was relevant to the current charge.  This is because the previous conviction would fall within the meaning of misconduct in s112(1) of the Criminal Justice Act 2003 as evidence of bad character within s98.  The admissibility of this evidence is governed by Part 11, Chapter 1 of the Act. 

There appears to be two routes for this evidence to become admissible.  The first is that the evidence may be admissible under s101 (1)(c) on the basis that it is important explanatory evidence as defined by s102.   This means that the court would not find it possible or would find it extremely difficult to understand other evidence in the case without the admission of this evidence and that its value for understanding the case as a whole is substantial. It is difficult to see how this evidence could be used in this category and we should therefore consider the second route for admission for the evidence.

The second route for admission is based on s101 (d) of the Criminal Justice Act 2003.  The argument here is that the evidence of the earlier conviction is relevant to an important matter in issue between the defendant and the prosecution.  In this particular example this would be the fact that Bill Cates had previously stolen fine art and from a private residence.  The prosecution could seek to demonstrate that Bill had a disposition, or propensity towards a certain type of behaviour. 

Under s101 (1)(d) there is no requirement that the probative value of the bad character evidence should be substantial.  By s101 (3), the court must not admit evidence under sub s(1)(d) if, on an application by the defendant to exclude it , it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.  Furthermore, S103(3) indicate that proof of propensity to commit offences of the kind with which the defendant is charged by reference to a previous conviction is not permissible if the court is satisfied “by reason of the length of time since the conviction or for any other reason” that it would be unfair to prove the conviction.”  In support of this notion it would appear that the common law discretion to exclude prosecution evidence has survived the Criminal Justice Act 2003 . 

The Law Commission’s recommendations have been integrated into sections 107 and 109 of the Criminal Justice Act 2003.  Section107 stipulates that whether evidence of the accused’s bad character has been admitted into the trial without the accused’s agreement, under section 101 (1) paragraphs (C)- (g), and the court is satisfied at any time after the close of the prosecution’s case that (i) that evidence is contaminated such that (ii) a conviction would be unsafe, “the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury”. Either way, proceedings will not be allowed to continue if it emerges during the court of the trial that material evidence of bad character has been contaminated.  Section 107(5) defines “contamination” broadly to include innocent confabulation as well as deliberate concoction or conspiracy. 

Further counts charged in the indictment and lesser included charges must also be abandoned if convictions of those offences would be unsafe as well, in light of the discovery of contamination.  Section 98 of the Criminal Justice act defines bad character evidence as 'evidence of, or of a disposition towards, misconduct on his [a defendant's] part'. Misconduct is defined in s. 112 as the commission of an offence or 'other reprehensible behaviour'. Section 98 clearly encompasses both aspects of character evidence that are currently adduced under similar fact principles  and it is suggested that it will include evidence of a 'disposition' towards misconduct, such as the possession of paedophile literature where a paedophile offence is currently charged

It is likely that the court will have to consider the common law test developed in DPP v P.   This test demonstrated that probative value should be weighed against the prejudicial effect of such evidence to see whether or not it was fair to admit such evidence. In DPP v P  Lord Mackay discarded the prerequisite that allegations, in order to be admissible, should be ‘strikingly similar’. In doing so he incorrectly claimed that this condition applied only to cases where identification was at issue . The risk therefore is that the jury will give the evidence far more weight then perhaps is deserved; indeed they will treat this evidence as all other evidence is treated by them.

The safeguard therefore is of little value and the danger of prejudice will be inherent irrespective of its existence. The Case of R v H  was concerned with the issue of similar fact evidence, in particular similar fact evidence in relation to the mutually supportive testimony of two or more witnesses in the same trial, as opposed to evidence of alleged misconduct on unrelated previous occasions.   The law that had developed following Boardman had suggested that when such incidences occurred that a voir dire should be held to consider whether or not there was material evidence that there had been contamination or concoction.  R v H  moved away from this standard to a more Jury based determination of the evidence.

On this basis it is likely that the evidence of Bill’s previous conviction would be excluded. However to cite Auld ’s view  “. . . it is a poor prosecution case that needs to rely on a man's previous convictions in order to convict him”, it is likely that the former will apply. It is, however, clear that the 2003 Act abandons the historic approach to 'tendency' evidence set out in cases such as Makin v Attorney-General for New South Wales However it would be suggested that more evidence was needed before this decision was reached, such as the circumstances surrounding the previous conviction, how did he pled etc.  On the limited information that it is available it would seem that this evidence could not be admitted.

2. Bill’s Silence on Arrest

A direction can be made to the jury under s34 of the Criminal Justice and Public Order Act 1994 in respect of his silence at the police station.  If however he was not offered legal advise immediately and the police had arranged to start questioning him then (both of which are not entirely clear from the facts) then no inferences from silence can be made .   If he was offered legal advice straightaway, which seems unlikely from the limited information that we have, and he then relies at trial on facts that he did not mention to the police, it is possible that a direction would be given.   Facts that might be caught by this are the fact that he denied at first his involvement in the burglary.  The defence could argue that the truth of these facts was the central issue in his trial  and that accordingly a s34 direction should not be given, although following a recent court of appeal decision the law in this area is uncertain .

If the judge should decide to give a s34 direction then there are certain procedures that must be followed.   The judge must identify the fact on which Bill relies and which was not mentioned on questioning.  He must direct the jury that it is for them to decide whether in the circumstances, that fact was something that Bill could reasonably have been expected to mention.  He should tell them that if they think it was, they are not obliged to draw any inferences, but that they may do so.  Further, he must tell the jury that a suspected person is not bound to answer police questions, that if an inference is drawn they should not convict wholly or mainly on the strength of it, and that they must be satisfied that there is a case to answer before they can draw any adverse inferences from silence.  Finally, he should tell the jury that they can draw an adverse inference only if they are sure that Bill was silent because he had no answers, or none that would stand up to investigation.

3. Bill’s Confession

The statement that Bill has made to the police is partly adverse to him and will therefore fall within a confession obtained under s82 (1) of the Police and Criminal Evidence Act

The matter that is to be considered here is whether or not the confession by Bill is likely to be excluded under either s76 or s78 of the Police and Criminal Evidence Act.  To assess whether or not this is the case Code C will need to be considered and whether or not there has been any breach of this code.

The first issue that raises concern is that Bill was told that his solicitor was unavailable and was not advised of an alternative and this meant that he was interviewed without a solicitor present.    It is important first to ask whether or not the police would have been entitled to delay the interviewing until Bill’s solicitor was available.  As Bill had already been detained with a serious arrest able offence, and if an officer of the rank of superintendent or above had reasonable grounds for believing that the exercise of this right to legal advice would, amongst other things hinder the solving of the crime, then it may be that the police were entitled to interview him without his solicitor being present.

Whether or not the offence in question is a serious arrestable offence is governed by s116 and Schedule 5 of the Police and Criminal Evidence Act. None of the offences that are listed in Schedule 5 are appropriate, and the question will therefore turn on whether the commission of the offence has led to any of the consequences that are specified in s116(6), or is likely to lead to any of those consequences.  The appropriate consequence appears to be at s116 (6) (e): substantial financial gain to any person.  On the basis that the theft of the valuable statuette is likely to lead to such a gain, it was serious arrestable offence.

It would seem however that the police were not justified in refusing Bill access to a solicitor.  This is because Annex B of Code C, paragraph 4 provides that authority to delay a detainee’s right to consult privately with a solicitor may be given only if the authorising officer has reasonable grounds to believe that the solicitor whom the detainee wants to consult will inadvertently or otherwise, pass on a message from the detainee or act in some other way that will have any of he consequences referred to in s58(8).  If this is the case, the detainee must be allowed to choose another solicitor, which of course Bill was not given the opportunity to do.   As Note B3 says, a decision to delay access to a specific solicitor is likely to be a rare occurrence and therefore Bill’s request could have been met by allowing him access to the duty solicitor.

The next question that must be addressed is even if delay had not been justified, Bill suffered prejudice as a result.   Bill’s persistent denial of the offence suggests that this may have been the case. Bill did however agree to being interviewed without his solicitor of choice being present. In the case of Alladice , the appellant admitted that he could cope with being interviewed and said that he was aware of his legal rights.  He had requested legal advice because he wanted a check on the conduct of the police during the interview.  The Court of Appeal held that his confession made in the absence of a solicitor was admissible, but the decision in that case was based on the findings that the police had made an honest mistake about the appellants entitlement to legal advice, and that the interview has been properly conducted.  It is not clear on the facts given whether the police acted innocently or not so therefore it is not clear whether or not the confession is admissible.  

Despite the inconclusive evidence on whether or not the admission is admissible as evidence there are some other issues of the confession that raise concerns. In particular the fact that Bill was unable to sleep the night before being interviewed and the fact that he, as far as we are aware was interviewed continuously for a period of 7.5 hours with no meal breaks.

S76(8) of PACE deals with situations such as were no meal breaks are given, it deals with oppression.  Oppression includes  “inhuman or degrading treatment.”  In Fulling  Lord Lane CJ relied on a dictionary definition that included the “exercise of authority or power in a burdensome, harsh or wrongful manner… the imposition of unreasonable or unjust burdens.”  He also emphasised the seriousness of the conduct needed to constitute oppression.  Although there was no violence involved in this case, the case of Paris  suggests that this is not an essential element of oppression.  It is argued that it is oppressive to interview someone constantly for such a long period and ask them to confess at least 20 times. 

The police would have been aware that by paragraph 12.6 of Code C persons being questions should have breaks from interviewing at recognised meal times and that short breaks for refreshments should be provided at intervals of approximately two hours.  This is a qualified right but only in very exceptional circumstances and none of those exceptions apply here and therefore on that basis it is likely that this continual questioning and lack of breaks is likely to affect the admissibility of the confession evidence.

Bill did not have any sleep the night before he made his confession and this may have some bearing on its reliability.  Under s76(2)(b) of the Police and Criminal Evidence Act the court may have regard to the truth or falsity of a contested confession if this can be shown to have a bearing on the reliability of confessions in general.  The fact that Bill did not have any sleep the night before may have some bearing on the reliability of the confession that he did make.  This is determined on a case by case basis and together with the other difficulties with the confession evidence that have been highlighted may make this unreliable evidence and therefore it is likely that in all the circumstances the confession of Bill is inadmissible as evidence.

If for any reason the confession is not excluded as evidence, then its evidential status will have to be considered.  It is evidence only against its maker .

4. PC Gunner’s Note of What Helen Inman Said

S115 (2) of the Criminal Justice Act 2003 defines a statement for hearsay purposes and this note would fall into that category and this recollection will be affected by the rule against hearsay.  Evidence contained in PC Gunner’s note can be admitted in principle under s76(1) of the Police and Criminal Evidence Act but it can be admitted as long as it is not evidence of the fact which it is to prove.

In relation to this evidence if it is admissible, the judge will have to direct the jury in accordance with the principles set out in Turnball.   This requires a judge to do three things when the prosecution case depends wholly or substantially on the correctness of one or more identifications, and the defendant alleges that the identifying witnesses are mistaken.  The judge must warn the jury of the special need for caution before convicting the accused in reliance on identification evidence.  He must tell the jury the reason why such a warning is needed.  Some reference should be made to the possibility that a mistaken witness can be a convincing one, and a number of such witnesses can all be mistaken. 

In Pattinson and Exley,  the Court of Appeal allowed appeals and criticised a direction on identification evidence for failing to make adequate reference to the risk of miscarriages of justice resulting from mistaken identification evidence.  The judge must also direct the jury to examine closely the circumstances in which each identification came to be made. Having warned the jury in accordance with these guidelines, the judge should go on to direct the jury to consider if the identification evidence is supported by any other evidence.  At this stage he should identify what is, and what is not, capable of providing such support. 

It was held in Pattinson ad Exley that it is not essential in every case for the judge to summarise for the jury all the weaknesses in identification evidence. If he does chose to summarise that evidence, he should point to strengths as well as weaknesses.  It was said in Turnball that where the quality of the evidence is good, the jury can safely be left to assess it, even without any supporting evidence, subject to an adequate warning.  But where the quality is poor, the judge should withdraw the case from the jury at the end of the prosecution case in the absence of supporting evidence.  There is no supporting evidence here as we will see the identification parade did not lead to a positive identification of Bill.

5. Helen Inman’s Identity Evidence

The procedure for the pre-trial identification of suspects is contained within Code D of the Codes of Practice pursuant to s66 of Pace.  By s 67(11) of the Act, if any provision of a Code appears to be relevant to any question arising in the proceedings, it shall be taken into account in determining the question.  The court is not obliged to exclude the evidence if there has been a breach of a Code; the Court of Appeal in Grannell  stated that it is necessary to establish whether the breach has caused unfairness.

Code D, paragraph 3.2 sets out the circumstances in which an identification procedure must be held.  It provides that where a witness has identified a suspect prior to a formal identification procedures and the suspect disputes the accuracy of the identification, a procedure shall be held unless it is not practicable or it would serve no useful purpose in proving or disproving whether the suspect was involved in committing the offence.  An example, given in the Code, is a situation whether the suspect is already well know to the identifying witness.  In Forbes  the House of Lords held that under a previous version of Code D an identification parade was mandatory where identification was in dispute, save in the circumstances mentioned in the Code or in a case of pure recognition of someone well known to the witness.  A prior identification, however complete, did not mean that a parade could be refused.

Although Bill was not identified the rules on the admissibility of such evidence will still apply.   This is because they could potentially convict the person from the identification parade.  In relation to this evidence if it is admissible, the judge will have to direct the jury in accordance with the principles set out in Turnball.   This requires a judge to do three things when the prosecution case depends wholly or substantially on the correctness of one or more identifications, and the defendant alleges that the identifying witnesses are mistaken.  The judge must warn the jury of the special need for caution before convicting the accused in reliance on identification evidence.  He must tell the jury the reason why such a warning is needed.  Some reference should be made to the possibility that a mistaken witness can be a convincing one, and a number of such witnesses can all be mistaken. 

In Pattinson and Exley,  the Court of Appeal allowed appeals and criticised a direction on identification evidence for failing to make adequate reference to the risk of miscarriages of justice resulting from mistaken identification evidence.  The judge must also direct the jury to examine closely the circumstances in which each identification came to be made. Having warned the jury in accordance with these guidelines, the judge should go on to direct the jury to consider if the identification evidence is supported by any other evidence.  At this stage he should identify what is, and what is not, capable of providing such support. 

It was held in Pattinson ad Exley that it is not essential in every case for the judge to summarise for the jury all the weaknesses in identification evidence. If he does chose to summarise that evidence, he should point to strengths as well as weaknesses.  It was said in Turnball that where the quality of the evidence is good, the jury can safely be left to assess it, even without any supporting evidence, subject to an adequate warning.  But where the quality is poor, the judge should withdraw the case from the jury at the end of the prosecution case in the absence of supporting evidence.  There is no supporting evidence here as we will see the identification parade did not lead to a positive identification of Bill.

Bibliography

  • Tapper C, “The Erosion of Boardman v DPP”, New Law Journal August 11 1995
  • Keane A, (2004) The Modern Law of Evidence, Sixth Edition, Butterworths
  • Roberts P & Zuckerman A, (2004), Criminal Evidence, Oxford University Press
  • Tapper C, (2004) Cross and Tapper on Evidence, Tenth Edition , Butterworths

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