Law of Evidence - Justins Confession - Coursework Example

The factual scenario raises complex issues in evidence law, which will impact the Prosecution in terms admissibility and the case it puts forward. Firstly, I shall consider the admissibility of Justin’s confession and the status of his confession in implicating Simon as co-defendant. I shall then consider whether Prosecution can admit evidence of Simon’s previous convictions for theft as character evidence along with the weight to be attached to Stephanie’s witness statement. With regard to whether the prosecution can rely on PC Dixon, it will be necessary to consider the hearsay rule. I shall then evaluate the law relating to evidence identification and whether adverse inferences can be drawn from Simon’s silence during the interviewing process. 1) Justin’s confession With regard to Justin’s confession it is necessary to evaluate the interviewing process. Firstly, the relevant law regulating the detention, treatment and questioning of persons by police officers in the UK is enshrined in the Police and Criminal Evidence Act 1984 (PACE) and Code of Practice C (Code C). With regard to the confessions evidence of Justin, Section 82 (1) of the PACE states that a confession is “any statement wholly or partly adverse to the person who made it” regardless of whether it was made to a person in authority and whether made in words or conduct. There is no issue in the current case that Justin’s statement constitutes confession evidence within the section 82 definition. The first issue that arises is whether the information obtained regarding confessions is admissible. When considering admissibility of evidence in criminal trials, the relevant test under Section 78 of PACE is whether to include such evidence would so adversely affect the proceedings that it ought not to be admitted. Under the common law, the general rule regarding admissibility is set out in the case of R v Leathem1, which provides that the manner of obtaining evidence does not exclude admissibility per se. The test of admissibility is whether the evidence is relevant. Lord Fraser asserted in the case of Fox v Chief of Gwent2 that “the duty of the court is to decide whether the appellant has committed the offence with which he is charged and not to discipline the police for exceeding their powers3”. However, whilst there is there is no rule of exclusion per se, it is nevertheless open to the court as an exercise of discretion to exclude improperly obtained evidence if its admission would be unfair under Section 78 of PACE. Section 78 is drafted in broad terms and permits application in a variety of scenarios. The essential issue for the court to determine under section 78 is the “circumstances in which the evidence was obtained”. It is implied in section 78 (1) of PACE that it is possible for the manner in which evidence was obtained to result in its exclusion. This is further supported by the decision in Matto v Wolverhampton Crown Court4 where police acted in bad faith by using the test results of earlier involuntary provision of breath samples to the police who had been acting mala fides5. Furthermore, breaches of the PACE accompanying Codes of Practice can also require the section 78 discretion to be used in the event that such breaches are significant and substantial6. Firstly, under section 58 of PACE and paragraph 11.2 of Code C, immediately prior to the commencement of any interview at a police station, the interviewing officer must remind the suspect of his entitlement to free legal advice. Whilst the offence of robbery is a serious arrestable offence and section 116 of PACE permits delay of access to legal advice up to 36 hours, the reasons for delay may not hold up in court. Moreover, in order to rely on section 116 of PACE, the police have to prove that they reasonably feared one of the contingencies referred to in section 58 (8) of PACE would arise. However, it does not appear on the basis of the facts provided that the contingencies listed in section 58(8) of PACE were applicable in order to justify the delay of legal advice Justin. Whilst it is accepted that a wrongful delay in obtaining legal advice will not render automatic exclusion of the confession under section 78 of PACE, in the case of R v Alladice7, the Court of Appeal stressed that influential factors in excluding evidence under section 78 of PACE were whether or not the police acted in bad faith and whether the presence of a solicitor would have made a difference to the defendant, which is clearly relevant to the defendant’s position. Additionally, the interviewing officer did not follow the PACE Codes of Practice, Code C in denying access to legal advice to Justin. This may therefore be materially and unfairly prejudicial to Justine. Furthermore, the restriction and delay in providing legal access upon request is in breach of Code C section 6.5 and reflects adversely on the fairness of the proceedings, due to its material contribution in that Justin may not have made the confessions had a solicitor been present. Moreover, Julian has learning difficulties and an IQ of 68, therefore comes within the definition of being a “mentally vulnerable person” under PACE and Codes of Practice. 11.15 of Code C expressly provides that any person who is mentally disordered or mentally vulnerable “must not be interviewed regarding their involvement or suspected involvement in a criminal offence or offences, or asked to provide or sign a written statement under caution or record of interview, in the absence of the appropriate adult”. The failure to ensure that Justin was accompanied by an appropriate adult is not only in breach of Code C, but further points to bad faith, which will be taken into account by the courts and leans in favour of exclusion of the confession under section 78 of PACE. Additionally or alternatively, section 76(2) of PACE provides that “if in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented that to the court that the confession was or may have been obtained: a) by oppression of the person who made it; or b) in consequence of anything said or done, which was likely, in the circumstances existing at the time, to render unreliable any confession which might have been made by him in consequence thereof” The confession will be excluded. For exclusion on grounds on section 76 (2) (b), there is no need for police impropriety, however bad faith can constitute sufficient grounds. In the case of R v Walsh8 it was held that bad faith might make a substantial or significant a breach which might not otherwise do. In the case of R v Alladice9, the Court of Appeal provided guidance on bad faith and stated that “if police have acted in bad faith, the court will have little difficulty in ruling a confession inadmissible under section 78”. With regard to exclusion on grounds of oppression, if accepted by the judge as a possibility, the burden of proof is on the prosecution to prove beyond reasonable doubt that it has not been so obtained. Under section 76 (2) (a) if the prosecution are unable to establish beyond reasonable doubt that the confession was not made as a result of oppression, the confession will be inadmissible even if there is plenty of other evidence in the case confirming reliability. Section 76(8) of PACE defines oppression including “torture, inhumane, or degrading treatment, and the use or threat of violence (whether or not amounting to torture)”. It possible that Julian’s interrogation as a vulnerable adult will come within the definition of “oppression” within the section 76(8) definition. In the case of R v Fulling10, the Court of Appeal accepted the Shorter Oxford dictionary definition of oppression as the “exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc or the imposition of unreasonable or unjust burdens11”. Section 76 further requires that a causal link must be established between threats and the confession and confirm the threat and the illness operated in his mind at the time of the confession. Moreover, one’s own mental state may be part of the circumstances under section 76 (2)(b). This was further evidenced in the case of R v McGovern12, where it was held that the physical condition and vulnerability of defendant with low intelligence were part of the background against which the submission had to be considered. Moreover, in the case of R v Everett13it was suggested that certain people’s psychological makeup makes it difficult for them to resist the pressure of interrogation. With regard to the current scenario, Justin’s confession could potentially be excluded under section 76 on grounds of the lack of legal advice and presence of an appropriate adult. . Additionally, section 77 of PACE provides that if the prosecution against a mentally handicapped or mentally vulnerable person relies substantially on a confession that was not made in the presence of an independent person, the court shall warn the jury of the special need for caution before convicting on the basis of such evidence. Therefore, even if the confession is admitted in evidence, the jury will have to given a section 77 direction in relation to Justin’s confession evidence. Alternatively, it is submitted that Justin’s confession evidence could be excluded on grounds his statements they were made in response to “something said”, which was likely in the circumstances existing at the time to render unreliable any confession that might have made as a consequence. In the case of R v Goldberg14, it was stated that “the something said or done” limb of the test was not satisfied by the conduct of the maker of the confession. Therefore confession of a heroin addict who confessed to get drugs could not be excluded under section 76(2) (b). The sections use of the expression “in consequence of” demonstrated that there had to be causal link between what was said or done and the subsequent confession Additionally, in order for section 76(2)(b) to become active, the conduct must have been likely to render the confession unreliable in that a causal link must be established between anything said or done by the inspector and the possibility of an unreliable confession by Justin. With regard to Justin, the custody officers were in breach of Code C for failing to provide an appropriate adult during the interviewing process and therefore it is submitted that it is highly likely that Justin would not have made the confession had he been interviewed in the presence of an appropriate adult. Alternatively the manner in which the confession is obtained can infringe the fundamental right to silence and privilege against self incrimination under Article 6 of the European Convention on Human Rights, which is implemented in the UK via the Human Rights Act 1998 (HRA). Moreover, the impact of the HRA could potentially lead to a stay of proceedings. For example, in the case of R v Latif,15it was indicated that where admissibility of confession evidence is at issue, an alternative may be for a judicial stay of proceedings on grounds of abuse of process. 2) Justin’s statement regarding Simon’s guilt. With regard to Justin’s confession regarding Simon’s guilt, this may not legally be admitted as evidence. Under the common law, it is well established from the case of R v Gunewardene16 that an extra-judicial confession cannot be admissible against the co-accused of its maker. Moreover, section 128 of the Criminal Justice Act 2003 inserted a new section 76A in the Police and Criminal Evidence Act 1984. Under this provision, a co-defendant’s confession is not admissible under section 76A of the PACE. This was further applied in the case of R v Finch17 3) The admissibility of Simon’s previous convictions for theft; With regard to evidence of previous convictions, which is referred to as “similar fact evidence18”, the standard principles of law on admissibility have now been reversed by the Criminal Justice Act 2003 (the Act). Under the Act bad character is defined under section 112 as a “disposition towards misconduct”. Additionally, section 103(2) of the Act permits evidence of previous convictions of the same description, however, section 103(2) expressly refers to admissibility of evidence of a previous conviction, therefore it is questionable whether the details of a previous confidential employment relationship can be admitted. Furthermore, section 101(3) of the Act permits challenge to the admissibility of such evidence if “on the 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”. In the current scenario, the adverse pre-trial publicity will clearly impinge Simon’s right to a fair trial and may even result in a finding of contempt of court against the relevant media bodies under the Contempt of Court Act 1981. Moreover, the defence is intended to make an application for stay of proceedings, which is very rarely granted in practice. In the case of R v Reade (1993), Mr Justice Garland argued that a degree of prejudice caused by local press is often temporary, however if the prejudice is continuing and reaches national level, then this completely undermines the right to a fair trial. On this basis, it is probably unlikely that the defence will succeed in a stay of proceedings, however the adverse pre-trial publicity will point towards a strong case for excluding the evidence of previous conviction. 4) Status of Stephanie’s Witness statement, corroboration and PC Dixon; As a general principle in the law of evidence, opinion evidence is not admissible and a witness may only testify evidence in relation to facts that they actually perceive as opposed to inferences drawn from those perceptions19. The underlying rationale behind this exclusion is the argument that permitting witness opinion would result in determinations of factual issues, which thereby undermines the role and function of the jury as an independent arm of the criminal justice system. In a criminal trial, the drawing of inferences is solely the role of the jury or relevant appropriate tribunal of fact presiding over the case20. As such, whilst Stephanie’s witness statement will only be admissible in relation the facts as she perceived and the jury must be given a direction regarding the drawing of inferences from her statement.   With regard to the issue of corroboration, in the case of R v Spencer21 the common law has never required corroboration of witness evidence. However, where a witness statement is uncorroborated a judge will have discretion to advise the jury to exercise caution when interpreting a witness statement22. However, the main problem for the prosecution is that Stephanie cannot remember the registration number she originally took down and did not attend video identification. The only other person is PC Dixon who took Stephanie’s report, however the problem with submitting a statement of PC Dixon regarding Stephanie’s report is the hearsay rule23. Section 1(2)(a) of the Civil Evidence Act 1995 defines hearsay as follows: “Hearsay means a statement made otherwise than by a person while giving oral evidence in proceedings, which is tendered as evidence of matters stated”. The general rule is that Hearsay evidence is excluded at criminal trial, however under section 116 of the Criminal Justice Act 2003, hearsay evidence will be automatically admissible if the maker of the statement is not available on grounds of being outside the UK and it is not reasonably practicable to fetch them. In the current scenario, Stephanie is in China and therefore it is highly likely that the hearsay evidence of PC Dixon will be admissible under section 116 of the Criminal Justice Act 2003. 5) Security Guard Identification Evidence With regard to the identification evidence of the security guard, he was only able to give a name of man as ST before he died and there was no formal identification parade. The Court of Appeal in R v Turnbull24 highlighted that no conviction should be made on identification evidence alone and that the jury should be warned of special need for caution before convicting in reliance on identification evidence. Accordingly, whilst the security guard’s testimony will be admissible, there will need to be a specific direction to the jury regarding caution and this will be insufficient for a conviction per se. 6) Simon’s Silence and Adverse Inferences The right to silence is entrenched in criminal law and further bolstered by the HRA25. However, the Criminal Justice and Public Order Act 1994 (CJPOA) permits a court to “draw such inferences as appear proper” from the defendant’s silence including the following cases: failure to mention a fact when questioned, which the defendant might reasonably have been expected to mention, and which is used in his defence (section 34 CJPOA); Failure to account for being in a particular place at a given time (Section 37). With regard to Simon he remained silent on the advice of his legal representative, nevertheless the fact that he denies being the robbery, failed to mention that he had an alibi clearly falls within the definition of “failing to mention a fact” which he could reasonably have been expected to mention and is now being used in his defence. As such, adverse inferences will be permitted to be drawn under the CJPOA. However, the parameters of the adverse inference provisions remain slightly uncertain and in R v Cowan26, the Court of Appeal stated that the CJPOA provisions intended to change the law and that whilst adverse inferences could be drawn from silence, the jury had to be directed that silence itself was not an admission of guilt and that there may be other valid reasons for silence27. Nevertheless, there is undeniably a judicial discretion and in the case of R v Argent28, the Court of Appeal held that inferences could only be drawn if there had been a refusal to mention facts that could reasonably be expected and that what was reasonable was a question of fact in each case. The issue of adverse inferences raises potential conflict with the Article 6 right to a fair trial. For example, in the case of Murray v United Kingdom 199629, the EC ruled that drawing adverse inferences from silence during questioning, combined with withholding access to legal advice, could amount to breach of Article 6. This has resulted in amendments to the provisions as a result of the Youth and Criminal Evidence Act 1999 to prevent adverse inferences being drawn before the defendant receives legal advice. Moreover, in the case of Condron v UK30 it was held that notwithstanding the decision in Murray, drawing adverse inferences from silence could be in breach of Article 6 and the jury could only draw inferences if the defendant relied on the right to silencer and subsequently attempted to give evidence in defence. However, the Condron case asserted that the adverse inferences are not sufficient for a conviction per se and the prosecution must establish a case to answer. In summary, it is highly likely that the confession evidence of Justin will be inadmissible on grounds of section 76 and/or 78 of PACE as regards Justin’s liability. Moreover, the rules regarding co-defendants will preclude the admissibility of Justin’s statement against Simon. The statement of Stephanie will be admissible and it is highly likely that PC Dixon’s hearsay evidence will be admissible on the exclusions to the hearsay rule under section 116 of the Criminal Justice Act 2003. With regard to the security guard’s evidence, will admissible there will have to be a direction to the jury that this evidence is insufficient to convict the defendant in accordance with the Turnbull directions. With regard to evidence of Simon’s previous conviction, whilst theoretically admissible under the CJPOA, it is highly likely that this will not be admissible on grounds of the “adverse prejudice to proceedings” exception due to the adverse pre-trial publicity. The evidence regarding the employer investigation of Simon will not be admissible. The fact that Simon relied on the right to silence and is now attempting to rely on an alibi in his defence, means that adverse inferences will be able to be drawn from his silence during questioning. However, this again will be insufficient per se for a conviction and the prosecution must establish a case to answer. BIBLIOGRAPHY Michael Allen (2007) Textbook on Criminal Law, 9th Edition Oxford University Press. Jerome Hall (2005) Principles of Criminal Law, The Lawbook Exchange Limited. Adrian Keane (2005). The Modern Law of Evidence. 6th Edition Oxford University Press Peter Murphy (2007). Murphy on Evidence. 10th Edition Oxford University Press. D. Ormerod, (2005). Criminal Law (11th edition). Oxford: Oxford University Press. A, Reed., B, Fitzpatrick., and Peter Seago (2006). Criminal Law. 3rd Revised Edition Sweet & Maxwell. Criminal Justice Act 1988 Police and Criminal Evidence Act 1984 and Codes of Practice Criminal Justice and Public Order Act 1994 Civil Evidence Act 1995 Criminal Justice Act 2003 Human Rights Act 1998. All UK legislation available online at www.opsi.gov.uk and www.statutelaw.gov.uk     Read More