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 Leathem, 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 Gwent 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 powers”.
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 Court 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 fides.