• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month
Page
  1. 1
    1
  2. 2
    2
  3. 3
    3
  4. 4
    4
  5. 5
    5
  6. 6
    6
  7. 7
    7
  8. 8
    8
  9. 9
    9
  10. 10
    10
  11. 11
    11
  12. 12
    12
  13. 13
    13

Various issues regarding the law of evidence (Based on a fictional case)

Extracts from this document...

Introduction

Various issues regarding the law of evidence (Based on a fictional case) Sam Coppock - 2009 A number of evidential issues arise from this situation. The most obvious one is the burden of proof since the reason for going to court is to prove an issue which is in dispute between the defence and the prosecution. In addition there are a number of specific legal issues which arise in this case. Much of the evidence will be hearsay evidence, Justin's confession is important in this case but he has severe mental difficulties, The identification evidence available is particularly good, the effects of adverse pre trial publicity and the how evidence of previous bad character can be used are also issues. In Wolmington v DPP1 it was confirmed that the standard of proof in criminal cases is beyond reasonable doubt, in R v Summers2 this was described as the Jury being satisfied so that they are sure of the defendant guilt. This is important because the prosecutions job is to get a conviction so to do this they must make the jury sure that the defendants are guilty. R v Kray3 is an example of a high profile case where media coverage was not accepted as a reason to stay proceedings. Lord Justice Lawton commented that "The drama of the trial almost always has the effect of excluding from recollection that which went before". In effect he is saying that the jury is always going to be exposed to influences other than what is put before them in court and so we have to trust the jury to be able to ignore these. Indeed in R v West4 it was observed that it would be absurd if every murder case where the press had reported on it could not be tried. From this we get the picture that the judiciary does not take lightly to staying a trial for public policy and practicality reasons and so given the local and comparatively minor nature of the publicity in the current case a claim by the defence on this ground is unlikely to succeed. ...read more.

Middle

The owner would have had the personal knowledge required and the clerk who received it would have been doing it as his occupation therefore the requirements of S.117 are met and so this is admissible. Under S.34(1)-(2) of CJPOA34 if between being cautioned and being charged an accused fails to mention during questioning something which he later uses in his defence and it would have been reasonable for him to mention it at the time the jury may draw an adverse inference which appears proper. Under S.58(2) of YJCE35 this section only applies if the accused has been given the opportunity to consult a solicitor. In this case Simon has failed to mention that he had an alibi which he has evidence to back up and he did have a solicitor present who advised him to stay silent. There is no rule for determining the reasonableness of not mentioning a fact so this has been left to the opinions of judges when summing up and juries when coming to a verdict this is clearly illustrated in R v Webber36. In R v Hoare37 the court held that if a solicitor advises a client to remain silent an adverse inference cannot be drawn if this was the reason for silence and it was reasonable to stay silent in light of all the circumstances. This is well established in English law and can be observed in cases such as R v Howell, R v Argent and Condron v UK.38 Some cases have suggested that a solicitors advise to stay silent will always prevent an adverse inference from being drawn such as R v Betts39 however in this case Kay LJ went on to say "That conclusion does not give licence to a guilty person to shield behind his solicitor" as a result this case was interpreted as actually supporting the former doctrine in Hoare as so is definitely not the current state of the law. ...read more.

Conclusion

party this should not harm the case much because the defence have little that needs to be cross examined because the only thing she said which implicated the defendants is the number plate everything else she said is just evidence that the event did happen and there can be no doubt that it happened. The dead guard identified his attacker as S.T however these initials alone do not guarantee that he was identifying Simon Timms and even if they did the guard only got a brief glimpse of his face and was vague about how well he knew him. The police report shows that the bike used belongs to the brothers this is a reliable piece of evidence however it does not prove that the accused were the ones using it at the time and the story about forgetting to report the theft to the police could be true for all anyone knows. Finally Simon claims to have an alibi and since the witness to this is the dead mans grandchild this is likely to be seen as very reliable despite the fact that he did not mention it quickly. Issues regarding pre trial publicity and bad character evidence are not likely to be accepted in this case. In conclusion there is nothing to stop the prosecution proceeding. However the evidence is all circumstantial and although there are multiple coincidences there are not many of them and there is a alibi therefore they have little chance of getting a conviction. The guards identification combined with the inadmissible confession would form a stronger case against Simon therefore I recommend having separate trials so that they are no longer co-accused. This will mean Justin's confession will be usable against Simon and Justin will be compellable to testify against him providing he can understand the questions and give understandable answers in spite of his difficulties. The verdict will still be doubtful due to the reliability of Justin's evidence but this option is more likely to be successful. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree Law of Evidence section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree Law of Evidence essays

  1. Evidence: Burden of proof

    Only as a measure of last resort will I make a declaration of incompatibility. In deciding this I will consider whether the statutory provisions in question have a legitimate aim, whether there is a social need to make such provisions and whether the provision in question is genuine and proportionate to that need.

  2. The common law rule against hearsay evidence had a deserved reputation for being technical ...

    It is therefore disputable whether 'declarations of intention' which are being used to prove that the intention was carried out are included within the common law's understanding of res gestae.[20] (a) Remediation of common law defects of res gestate by the statutory framework The intention of the enactment of CJA was to nail down the common law rules.

  1. The impact of HRA 1998 on burden of proof and confession

    "is not regarded as imposing an absolute prohibition on reverse-onus clauses...the question will be whether the presumption is within reasonable limits."16 However, in R v Lambert17, majority of the House of Lords considered that placing the persuasive burden on the accused was disproportionate and unjustified and would violate with Article 6(2).

  2. Analysis of Fingerprint Evidence using Digital Imaging Techniques.

    change the values and so improve the quality of the final images. Different types of digital filters can be used to enhance the fingerprints, however one of the most simplest and most common ones is the Kernel Mask. This mask has a two dimensional array of numbers that can be

  1. How reliable is Eyewitness Testimony?

    Doob & Kirshenbaum (1973) reported the case of Ron Shatford. Following a robbery the witness described the robber as 'neatly dressed and good-looking'. Shatford was arrested a placed in a line-up with eleven unattractive men. He was then convicted of the robbery.

  2. Critically discuss the hearsay rule and the exceptions to it

    Under section 114(1), evidence amounting to hearsay will be admitted by the court (subject to its general discretion to exclude evidence - see para 48 below) if: a. there are statutory provisions allowing it to be 3 ; b.

  1. It is time the rule against hearsay evidence in criminal proceedings was abolished and ...

    In Myers v DDP 9, Myers was charged with giving stolen vehicles new identities and selling them. The prosecution wished to admit as evidence microfilms of manufactures records which unidentified workmen had inscribed engine block numbers on. No one at any point cast any doubt on the authenticity of the

  2. Burden of Proof. The courts constantly battle with the simple question of: in what ...

    And why is there much debate whether in civil cases that amount to a crime the standard still remains on a balance of probabilities? The courts constantly battle with the simple question of: in what circumstances is a reverse onus in a criminal case compatible with the presumption of innocence under Art.6(2)

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work