Critically discuss the hearsay rule and the exceptions to it
The origins of the hearsay rule can be traced to the trial of Sir Walter Raleigh in 1603, who was found guilty of high treason on the basis of testimony that someone had overheard someone else say they heard Raleigh would slit the King's throat. The disgrace of this trial and its wrongful conviction led English jurists to develop a hard and fast rule against hearsay evidence, with hearsay defined as the words of a stranger to parties; that is, the words of someone to which neither the State nor the defendant are privy. Not being privy to the person who spoke the original words means that an 'out-of-court' statement is being repeated in court by a person who overheard another person outside of court make a statement, and indeed, this is the common law definition of hearsay.1 'Critically discuss the hearsay rule and the exceptions to it, in light of the requirements of justice.' Definition . Section 114 The Criminal Justice Act 2003 (CJA 2003) defines hearsay evidence as any 'statement not made in oral evidence in the proceedings.' Reliance on a statement made otherwise than while giving evidence to prove the truth of a fact asserted remains hearsay. 2. The general rule is that such a statement is inadmissible as evidence of the truth of the facts stated. 1 3. The rule applies: o to both examination in chief and cross-examination; o whether the statement was made by
Various issues regarding the law of evidence (Based on a fictional case)
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
The common law rule against hearsay evidence had a deserved reputation for being technical and difficult. To what extent has the new statutory schemes rectified this? Discuss.
Table of Statutes Criminal Justice Act 2003 ... 3, 4, 5, 6, 8, 10, 11, 12, 13, 14 s. 114(1)...4 s. 114 (1) (a) ...4 s. 114 (1) (b)... 4 s. 114 (1) (c) ... 4 s. 114 (1) (d) ... 4, 9 S.114 (2) ... 9 s.115 (3) ...8, 10 s.116 ...11 s.116 (2) ...11 S.116 (2)(e) ... 11 s.118 ...4, 6 s.120 (2) ...12 s.120 (5) ...13 s. 120(7) ...13 s. 120 (8) ... 13 s. 126 ... 14 s. 144 ... 4 Police and Criminal Evidence Act 1984 - s. 82(1) ...8 Table of Cases Acton Justices, ex parte McMullen [1998] 1 Cr. App.R.14, DC ...11 Al-Khawaja and Tahery v UK [2009] ECHR 110 ... 14 Belmarsh Magistrates' Court, ex parte Gilligan (1990) 92 Cr.App.R. 98 ...11 R v Athwal [2009] EWCA Crim 789 ... 12 R v Beckfold [1991] Crim.L.R. 833... 8 R v Birks [2003] EWCA Crim 3091, [2003] Crim LR 401 ... 12 R v Halpin [1975] 1 QB 907 ...7 R v Kavallieratos [2006] EWCA Crim 2819 ...9 R v Kearley [1992] 2 AC 228 ...10 R v Moghal (1977) 65 Cr. App. R 56 ... 5 R v Osborne [1905] 1 KB 551, 561... 12 Ratten v R [1972] AC 378 ...4 Sealey v Trinidad and Tobago [2002] UKPC 52 ...13 Sturla v Freccia (1880) 5 App Cas 623... 7 Introduction At common law, the general rule was that hearsay was inadmissible in evidence despite the many exceptions to the rule which exist. The hearsay rule is classically defined as "an assertion other than one made by a person while giving oral
Impact of Art 6(2) of the European Convention on Human Rights on the burden of proof in criminal trial
Introduction The presumption of innocence is the fundamental rule is criminal cases. Which means the defendant is presumed to be innocent until proven guilty. So, prosecution is required to prove all the elements of the offence beyond reasonable doubt. This principle was laid down Woolmington v DPP [1935][1] and affirmed in Art6(2) of the European Convention on Human Right. The significance of Woolmington was profound in two ways. First, it changed the previous law by rejecting Foster’s doctrine of the presumption of malice[2]. Secondly, its reference to the duty of the prosecution to prove the accused’s guilt, and holding that the prosecution also had the burden of disproving any common law defences that the accused had specifically raised.[3]However it is doubtful how far it has had either effect, even after the Human Right Act 1998. Exception of the presumption (a)Insanity In Woolmington v DPP, Lord Sankey LC expressly excluded the defence of insanity from the scope of the rule ---- prosecution to proof defendant’s guilt. It also rested on the authority of M’Naughton’s[4] Case, clearly placed the burden of proof of insanity on the accused[5] because ‘every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction…’[6] However, it should be noted, in H v
The Redundancy of the Similar Fact Exclusionary Rule
LAW 306 Law of Evidence and Civil Procedure Research Assignment (AY 2010/2011 Term 1) Legal Reform: The "Redundancy" of the Similar Fact Exclusionary Rule Group 2 Student Identification Number: S 8701210G Number of words:3000 I. Introduction Generally, it is common sense that past actions or character is probative as to future conduct existence or the state of mind of a person in question. However, the conventions suitable for everyday decision-making may not be sufficiently rigorous for the criminal process. Here, the rule on similar fact evidence concerns the admissibility of evidence regarding a previous conviction of the accused or of his past conduct on an occasion other than that cited in the present offence charged. Nonetheless, as applied within the frame work of the Evidence Act1 (EA), there have been significant criticisms regarding the continued relevance of the similar fact evidence rule. Consequently, there have been calls to do away with the exclusionary rule. This paper will look at the various arguments as to the redundancy of the similar fact evidence rule. We will then consider whether abolishment is the best way to address the issue by analysing the underlying considerations of the rule. As the preferable alternative, we will then propose some reforms so as to better adapt the rule within our existing criminal justice system. This will be
Burden of Proof. 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) of the Convention?
It's ridiculous to say that just because parliament does not expressly state the reversal of burden that it would not be compliant with the presumption of innocence. I think that there is nothing wrong with reversal of burdens despite, whether it has been expressly stated by parliament, provided of course it is justified with fair, just and reasonable reasons. Another reason to support my opinion is simply based on the fact that that it is established that The European Court Of Human Rights held that the convention rights are not absolute rules, it is merely a guideline. So in other words reversal of burdens isn't automatically seen as an encroachment of the presumption of innocence just because it is not expressly stated by parliament. The presumption of innocence in Art.6(2) of the European Court of Human Rights states that everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law. The presumption is the foundation of the fundamental rule of criminal law that the onus lies on the prosecution to prove the defendant's guilt of the offence charged beyond reasonable doubt.1 The problem which then arises is that prima facie a reverse onus is inconsistent with the presumption. Unless the presumption can be expressly reversed it would seem to require the prosecution to prove any and all matters comprising the guilt of the defendant.
Surveillance Evidence. This paper will attempt to assess the current law and its merits and conclude with some effective reform recommendations to how the law might be improved in this area
Surveillance & The Law Explaining to what extent is it accurate to state that evidence obtained from the interception of telephone calls is inadmissible in legal proceedings in the UK, critically evaluate the merits of the current legal position in this respect and make recommendations for how it might be improved. ________________ Generally it is accepted that the evidence obtained from the interception of telephone calls is inadmissible as evidence in criminal proceedings in the UK. There are however, a few exceptions to this rule and this paper is going to assess in which circumstances it is admissible. There is an overwhelming amount of controversy over this issue as many believe the use of intercept material as evidence would be more beneficial to our legal system and the conviction rates in our country.[1] However it is also widely recognised that ‘the tasks of recognising and regulating the impetus towards state surveillance in the information age is extremely challenging,’[2] particularly in relation to the vast amount of technological advances made over the past decade, it has proved difficult to keep up to date with change. This paper will attempt to assess the current law and its merits and conclude with some effective reform recommendations to how the law might be improved in this area, i.e., how RIPA (Regulation of Investigatory Powers Act 2000) may be
The provisions in sections 34-38 of the Criminal Justice and Public Order Act 1994 create more problems than they solve
The provisions in sections 34-38 of the Criminal Justice and Public Order Act 1994 create more problems than they solve The provisions in sections 34-38 of the Criminal Justice and Public Order Act 1994 create more problems than they solve Introduction In English law, people suspected of ?rimin?l offences may remain silent as a protection ?g?inst self-incrimination. Following a prolonged debate, the right to sil?n?? was modified under Section 34 of the ?rimin?l Justice and Public Order Act 1994 (England and Wales) so that, in some circumstances, ??urts can now draw adv?rs? inf?r?n??s if suspects do not answer questions put to them by the ??li??. Why the right to sil?n?? caused so much controversy The major argument advanced by those in favour of abolishing the right to sil?n?? is that it lacks a rational foundation in the context of a ?rimin?l justice system whose purpose should be to discover the truth. It is asserted that the untrammeled existence of a right to sil?n?? can only help the guilty and hinder the innocent. Bentham's famous aphorism is summoned in aid: `Innocence claims the right of speaking, as guilt invokes the privilege of sil?n??.' Thus it is contended by abolitionists that ??li?? should be able to require people to explain a scenario, suggestive of their having committed a crime, based upon information already provided to ??li?? and raising in the
Burden of Proof
Harold set up a business without obtaining a licence as required by statute. He insured his business premises under a policy covering loss or damage except where caused by arson. Shortly afterwards, the premises are burnt to the ground. Harold is now suing the insurers. They deny liability to pay on the ground that they are not satisfied the fire started accidentally. Further, Harold is being prosecuted by the local authority for carrying on his business without a licence. Explain the different burdens of proof that can be recognised and consider the application of these rules in relation to both the civil action brought by Harold and the prosecution by the local authority. The aim of this assignment is to explain the different burdens of proof that can be recognised and consider the application of these rules in relation to both the civil action brought by Harold and the prosecution by the local authority. When an issue of fact has to be proved in a court of law, it first necessary to consider the burdens borne by the parties and so, in order to do this one needs to establish what are the different burdens of proof that can be recognised1. The general meaning of the phrase 'burden of proof'2 is "...the obligation to prove"3. However the burden of proof can then be divided into two different principles known as the legal burden and the evidential burden. The legal burden
When psychologists act as expert witnesses a number of issues are raised surrounding the admissibility of their evidence - Discuss these issues with reference to eyewitness testimony and domestic violence.
When psychologists act as expert witnesses a number of issues are raised surrounding the admissibility of their evidence. Discuss these issues with reference to eyewitness testimony and domestic violence, then make suggestions as to how these issues might be resolved. In order to prosecute alleged offences, evidence such as testimony from eyewitness, fingerprint, hair, DNA, etc. which should provided in court accurately. These evidences are only allowed in legal proceedings when they are considered to be relevant (i.e. determined on the basis of the logically which is probative value of the evidence) and admissible which is legally receivable irrespective of whether or not it is logically probative. Therefore, evidence may be highly relevant but be inadmissible for legal reasons. In case where eyewitness testimony is the sole or main evidence against an accused, then the reliability of the testimony is very important. In order to prevent a possible miscarriage of justice, the defence may call an expert witness in an attempt to warn jurors of the dangers of relying too heavily on eyewitness testimony. It is because eyewitnesses can only testify about what they have observed or what they know as fact. On the other hand, the expert witnesses may express opinion for what they possess special knowledge about a topic, or knowledge that the juror does not have. In past, the