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

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Faculty of Law                29/09/2009


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 DPP it was confirmed that the standard of proof in criminal cases is beyond reasonable doubt, in R v Summers 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 Kray 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 West 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. In R v Taylor the judge described media coverage as “unremitting, extensive, sensational, inaccurate and misleading.” What was published had strong sexual connotations which implied the accused had the motive. A retrial was ordered. During R v Maccann Many high profile figures such as lord Denning aggressively criticised the right to silence on TV stating that no man who had nothing to hide would stay silent. In light of this the convictions were quashed. In R v Reade the police officers accused of the corruption which caused the Birmingham 6 miscarriage were granted a stay of trial because it caused so much anger and controversy that the general public will never forget about it. In the words of Justice Garland “there is literally nowhere to go”. These cases show that only special reasons such as publishing materiel that some people will not question such as the importance of a persons alleged sexual behaviour or the extreme hate that the Birmingham 6 case generated will suffice and there is no reason to believe that reports of local crime seen in this case will be anywhere near enough and even if it is the court held in R v Stone that when publicity is local moving a trial to a different area is possible.

S.82(1) PACE describes a confession as 'any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise'. Justin has admitted that he was involved but claims ignorance but because a confession only needs to be partially adverse what he has said is still a confession. Under S.76 PACE any confession which may have been made in consequence of anything said or done which was likely, in the circumstances existing at the time to render it unreliable is not admissible unless the prosecution can prove beyond all reasonable doubt that it was not obtained aforesaid. S.76a PACEextends this to the confessions of co-accused except that the prosecution need only disprove it on the balance of probabilities. R v Kenny shows that unreliable means the likelihood of it being inaccurate is important and weather its actually accurate or not is irrelevant. Because the defence are going to call Mr. Bruce to give evidence that Justin has an extremely low IQ and various mental handicaps this section is going to be a problem. I cannot say for certain if the confession will be inadmissible or not because there is no direct case law on individual cases indeed in R v Wahab the court pointed out that there are so many variables that each case must be taken on a case by case basis. R v Moss and R v Bailey are two cases where a mentally handicapped person was interviewed without a solicitor, in one case the conviction was held inadmissible for that reason in the other giving the jury a warning about the reliability of the confession was held to be enough. Given just how low Justin’s IQ is and just how many difficulties he has I think the confession is most likely to be inadmissible due to the absence of a solicitor and the fact that the police encouraged him to do without one by saying it would take some time to get one. Under S.77 PACE the court has to warn the jury about the reliability of a confession of a mentally handicapped person if it amounts to substantial evidence and no solicitor was present. The confession is the most damaging evidence in the case therefore even if the evidence is admitted this warning will have to be given severely affecting its credibility. Since an expert is giving evidence of Justin’s problems and they are so numerous it is extremely unlikely that it will be possible to rebut it to ether standard of proof needed to use it against ether defendant.

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Under S.114(1) CJA a statement not made in oral evidence in the proceedings is not admissible of a matter stated unless an exception applies. This is commonly known as hearsay evidence. Sir Rupert Cross defined hearsay as “an assertion other than one made by a person while giving oral evidence in the proceedings regarding any matter stated”. The House of Lords has clearly approved of this definition in R v Sharp. Also Patel v Comptroller of customs shows us that the rule applies to documents and not just oral comments made out of court. S.115(3) CJA defines a matter stated as one ...

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