Evidence Is The Basis of Justice - Dissertation Example

?Evidence is the basis of justice: to exclude evidence is to exclude justice’ Introduction This paper examines the English law of evidence within thecontext of Jeremy Bentham’s quote “to exclude evidence is to exclude justice”. His idea is that by excluding evidence adverse to the defendant/accused under some pretext or other, justice should not be denied to the plaintiff/complainant. Reverse can also be the case. Bentham lays down certain principles as a standard of reference or as a guide for practice. They are: 1) By excluding a lesser evil, a greater evil should not be produced. 2) For the sake of lesser good, greater good should not be sacrificed. 3) For obtaining any good, no preponderant evil should be produced in the process and 4) by excluding any evil, preponderant good should not be lost.1 Now, within the above context, the following pages will examine the treatment of criminal evidence in judicial trials under English law. Common law. In common law, the rule is that admissible evidence should be excluded if its probative value is more than offset by its illegitimately prejudicial effect. Probative value refers to the correct assessment of the significance evidence in relation to law and facts. Prejudicial effect is incorrect assessment of significance of evidence in relation to erroneous application of law to the facts. Thus, probative value and prejudicial effect are commensurable prone to continuum of risk of error2. Further, an “accused’s right to a fair trial is absolute, essential and primary” (Mathias n.d., 2). In Maxwell v DPP3, the House of Lords observed the exclusion of propensity evidence as ‘one of the most deeply rooted and jealously guarded principles of our criminal law’. 4 Forty years later, in DPP v Boardman 5 , House of Lords described the exclusion of propensity evidence as ‘pitted battlefield’6, obviously referring to trajectory of treatment of exclusionary rule and admission of propensity evidence in some exceptional cases 7 Recently in 2006, the High Court made a strict application of the exclusionary rule in Phillips v The Queen .8 This case involved the independent allegations of six teenage girls that the defendant known to each of them socially had raped or indecently assaulted them in like situations for over two years. The defendant denied the allegations in some cases and asserted that it was with consent in some others. Since credibility of the complainants was in issue, judge allowed to tie all the cases together with cross-admissibility so as to justify admissibility of propensity evidence under exceptional circumstance, resulting in conviction of the defendant in respect of allegations of five out of the six complainants. Although the appeal court confirmed the decision, the High Court quashed the convictions holding that evidence should be excluded. However, retrials were ordered. This, an Australian case, was pursued further only by two of the complainants. One of them resulted in a hung jury with the complainant abandoning any further trial. The other ended in conviction for rape. Meanwhile, another complainant made a charge that the defendant while on bail awaiting retrial, raped her twice for which the defendant pleaded guilty. Thus, the cases ended with conviction of the defendant for six and a half years of imprisonment and three years and three months non-parole.9 The current U.K. law in this connection is that common law exclusionary rule has been abolished with the enactment of Criminal Justice Act 2003 in part 11, Chapter 1.10. However, propensity evidence is relevant for only admission and it is for the trial judge to exclude it or not depending on whether it would be unjust or its likely to have adverse effect on the fairness of the proceedings as per section 78 of Police and Criminal Evidence Act 1984 (PCE) 11 and s101 of Criminal Justice Act 200312. PCE actually provides for exclusion of unfair evidence. Part 11 of the Criminal Evidence Act 2003 deals with evidence of bad character which the common law had provided for exclusion with exceptions. The Criminal Justice Act 2003 makes a distinction between non-defendants and defendants in relation to admissibility of evidence of bad character. Non-defendants are protected for the first time by this Act unless the evidence of bad character satisfies the probative value test. In the case of defendants, the Act has an inclusionary approach to the bad character of the defendant rather than an exclusionary approach. Although a defendant’s bad character evidence is not subject to probative value in other words enhanced value test, it is admissible if relevant to the issue, but the court has discretion to exclude. As such, the prosecution must do research at the earliest opportunity about the defendants’ past misconduct i.e bad character. Non-defendants are better protected than previously by this Act. 13 Two exceptions to bad character definition as per section 98 of the Criminal Justice Act are: evidence of bad character in the alleged offence, the defendant is charged with (section 98(a) and evidence of misconduct by the defendant during the course of investigation or prosecution of the offence, the defendant is charged with (Section 98b). Since these two exceptions were not available earlier, evidence which satisfied the res gestae principle was admissible as also an evidence of assault committed during the course of commission of the offence. This meant that evidence related to the alleged facts of the evidence was admissible earlier. Similarly, evidence of misconduct during the course of investigation or prosecution such as evidence running away to avoid arrest as it might imply admission of guilt, evidence of threatening the witnesses, absconding during the course of current proceedings and breach of bail conditions by the defendant. Therefore, the key test for admissibility of evidence in the face of the two exceptions is relevance. It is admissible as relevant if the evidence points to an issue of the case and serves to prove one of the elements of the offence.14 The Criminal Justice Act 2003 makes bad character evidence of defendant admissible under seven circumstances: 1) Where all the parties including the defendant agree to admission of his bad character evidence as per s 101a. 2) When the defendant himself adduces or when confirms his bad character in cross-examination (s101b). There can be situations where bad character evidence may be irrelevant when the defendant claims to have been in jail at the time of alleged offence. He might feel better to admit his bad character rather than allowing jury to speculate on it. There is statutory discretion to exclude evidence in such circumstances. The defendant is entitled to lead evidence of his bad character regardless of the co-defendant’s consent or otherwise. However, evidence under this section is inadmissible if the defendant had no intention to elicit the evidence or if, in the cross-examination, he had admitted to his bad character due to a carelessly framed question. 4) If it happens to be an important explanatory evidence, section 101 (c) makes it admissible. Explanatory evidence has been defined in section 102 as the one without which the court or jury cannot fully understand another evidence in the case. Hence, it is admissible however minor or trivial if it can assist the court to understand the case. For example, evidence of violence by A on a previous occasion, evidence that A convinced his girl friend B to have an abortion and evidence that A had knowledge of the effect of his violence on B who had a stroke as a result, all can serve to be an important explanatory evidence regarding the relationship between A and B. 15 R v Underwood 16 is relevant to this situation. In yet another case R v Dolan17, defendant faced charge of murdering his infant son by shaking him for which prosecution brought in a previous evidence of the defendant’s violence towards inanimate objects. This was held to be inadmissible since even without it, bad character evidence was comprehensible. The conviction was quashed by the appeal court since the evidence as an explanatory one should not have been admitted. 5) If the evidence is relevant to an issue between the defendant and prosecution, it is admissible by section 101 (1) (d). This replaces the common law rule that prosecution could not adduce evidence of a bad character of the defendant by showing his previous criminal acts other than those charged or by showing that he had the propensity to commit crime of similar kind. It is now made admissible because probative value of such evidence outweighs its prejudicial effect.18 The subsection 101 (1) (d) disregards the test established in DPP v P19. As such, if evidence is relevant to an issue, it passes the threshold of admissibility regardless of its insignificant probative value. Section 101 read with section 103 which provides that matter in issue is relevant if the defendant has propensity to commit crimes similar to the one he is charged with except when it is clear that such a propensity is not likely to make him guilty of the offence he is charged with. Section 103 also provides an issue to be relevant if the defendant has propensity to be untruthful except where there is no suggestion that defendant is untruthful in any respect.20 6) Similarly, section 101 (1) (d) enables bad character evidence of a defendant to be admitted if it has substantial probative value in respect of an important issue between the defendant and co-defendant. If this condition is satisfied, there is no power for the court to exclude it. 7) Also section 101 (1) (f) provides for treatment of the defendant’s act of creating a false impression to the court as an evidence of bad character and therefore becomes admissible. 21 Under section 101 (1) (g), if the defendant makes an attack on another person’s character under certain circumstances, it becomes admissible as an evidence of bad character. Earlier at common law, such an attack was not considered as an evidence of bad character. 22 Hearsay evidence Criminal Justice Act 2003 has made changes to the law regarding admissibility of hearsay evidence. Under common law, only an oral statement of a witness made during court proceedings about the facts as they represent them, was admissible as evidence. This means that witnesses must give oral evidence in the court from their first-hand knowledge and were not allowed to repeat what others told them. Written records are not admissible as evidence of the matters contained therein unless witnesses give oral evidence. Written evidence cannot serve to replace oral evidence by personal appearance in the witness box. Out-of court-statements previously made by the witnesses are not to be considered as evidence of the matters contained in it. Sections 114 and 115 replace the common law rule 23. Hearsay evidence is admissible in criminal cases only if it is beyond reasonable doubt. As said earlier, the Criminal Justice Act 2003 replaced the common law rule against hearsay evidence and exceptions under common law subject to certain items that have been expressly preserved. The Act has brought in a new code permitting hearsay evidence reflecting certain exceptions originally existed in common law. However, they have not been literally reproduced. Section 114 (1) to (3) deals with admissibly of the out-of court-statement ( not in the witness box) of the person with first-hand knowledge for the purpose of using the facts contained in it as evidence. For example, where B has been charged with robbery of a jewellery shop, if prosecution witness A testifies that B told A that A was outside the jewellers at particular time of a particular day so as to prove that B was outside the jewellers at the relevant time, it is admissible although it is an out-of-court-statement subject to the following. It is admissible under a statutory provision; It is admissible under what has been retained in common law by the Criminal Justice Act Part 11.; If the parties agree to let the evidence in; and if the court gives leave admit the statement. The last one contemplated by section 114 (1) (d) should be in the interests of justice to admit the evidence. When the court so decides, it should consider the degree of relevance as a proof of the matter in issue, circumstances under which it was made, the extent to which it elicits evidence not available otherwise, the credit worthiness of the witness giving the statement, reasons for inability to get oral evidence, the extent to which the opposite party can challenge the statement and the possibility of unfairness. 24 Section 115 permits certain kind of statements which are inadmissible due to the effect of decision in R v Kearly 25 which said that implied assertions are subject to hearsay rule and therefore not admissible. Section 115 (3) permits statement of the person made with the purpose of making the hearer to believe that what has been stated is true or to act believing that the statement is true.26 Or enable “a machine to operate on the basis that matter is as stated”.27. Thus section 115 changes the common law rule that implied assertions are inadmissible. Similarly, negative hearsay evidence is made inadmissible by the Act. That is “where the assertion relates to a failure to record an event (some times called ‘negative hearsay’, it will not be covered by the provisions, if it was not the purpose of the person who failed to record the event to cause any one to believe that it did not occur”28 Section 115 (2) retains the common law rule that statement made by non-human falls outside the scope hearsay rule. Thus, tapes, films, photographs which are the direct evidence of the commission of the offence and documents generated by machines under automatic process of recording a process or event or perform calculations are not to be treated as hearsay and therefore not inadmissible.29 Certain items of admissibility under common law preserved by the Act in respect of out of court statement are 1) public information contained in “published works, public documents, court records, treaties, Crown grants, pardons, and commissions, and evidence relating to a person’s age or date of birth”. 2) Reputation as to character whether good or bad. 3) reputation or family tradition, 4) res gestae, 5) confessions, 6) admissions by agents 7) common enterprise and 8) expert evidence.30 Confession evidence Section 128 of Criminal Justice Act 2003 has introduced a new section 76 Ato PACE. While the existing law is that a confession obtained from the defendant in breach of the provisions of PACE is not admissible as evidence, a co-defendant can use the confession evidence to undermine another co-defendant’s evidence or in order to strengthen his or her own case. Again the co-defendant’s evidence cannot be used by the prosecutor if it is in breach of PACE by oppression and it is inadmissible as not reliable. While the prosecutor is not allowed to use confession obtained by oppression, the co-defendant need only to convince the court that confession was not obtained in breach of PACE, based on the balance of probabilities. 31 “The rule is maintained that the exclusion of a confession does not affect the admissibility of facts discovered as a result of that confession”32 Section 78 of PACE renders any prosecution evidence of confession excluding a solicitor, inadmissible if the court feels that it would have an adverse effect on the fairness of the proceedings as it is effect of wrongful denial of access to legal advice.. In R v Mason33, the police led the solicitor of the defendant to have an impression that his client’s case was stronger.. Since the solicitor’s legal advice was based on the words of the police, it was found that police effectively denied the defendant legal advice. The court of appeal held that the subsequent confession of the defendant should have been excluded. In Cullen v Chief Constable of the RUC34, it was held that denial of legal advice could not be held to have caused loss or injury liable for damages. Though this is a Northern Ireland case, a parallel can be drawn from s 58 of PACE which confers right of access to advice of a solicitor. In the above case, it was held that remedy could be sought through judicial review. It is felt that judicial review can provide an adequate remedy as the “court would effectively be limited to granting a declaration that police had acted unlawfully”35. Hence, the position should be that obtaining an incriminating evidence by the police from the accused by denying access to a solicitor should be ruled as inadmissible under s 78 of PACE. However, this would not help Cullen in the present case as “he pleaded guilty to the charge and so the question of exclusion of evidence did not arise”.36 Silence of the defendant/accused Right to silence of the defendant formerly had two rights. One, the right against self-incrimination and the right not to have adverse inference to be drawn from his silence. Closely examined, the following emerge. An accused has no legal obligation to help police in their inquiries as held in Rice v Connolly.37 An accused need not give advance notice of an evidence he proposes to adduce for his defence. An adverse inference cannot be drawn from the fact that an accused remained silent as held in R v Leckey38, or refused to answer questions as held in R v Gilbert 39 or failed to reveal his defence as held in R v Lewis 40 , all in spite of having been cautioned by the police. An accused cannot be compelled to be a witness. Failure of an accused to testify cannot be adversely inferred by the prosecution.41 Generally, silence amounts to acceptance by common reasoning. Hence, evidence against an accused is enhanced in probative value if he fails to explain the conduct proved or alleged against him. These negative aspects are the species of retrospectant evidence. Belated explanation becomes suspect for two reasons. Delay ‘may have been due to the fact that it had to be contrived’ and it may have affected the investigation. However, since people react to situations differently, caution must be had in drawing inference from the silence. The party who was silent might have been confused or taken by surprise or considered the allegation not worthy of an answer. He might have intended to conceal matters before the court regarding himself or others that he might have considered as irrelevant. In fact, he might have wished to speak after taking a legal advice.42 Originally under common law, an accused was an incompetent witness to give evidence on his own behalf. But other witnesses might have explained or it might have been given out of court. If denial had been expected, then silence had to be regarded as a demeanour signifying acceptance of the charge. When parties are not in equal position, such an inference is less eligible especially during the police interrogation.43 Conclusion It has been seen that in all the situations of bad character evidence i.e similar fact evidence, confession, hearsay evidence and silence on the part of the defendant, exclusion of adverse evidence in favour of the accused is accorded only under exceptional circumstances where court feels that it would result in unfairness of the proceedings. The human rights legislation gives a balancing act should admission of such evidences result in unfairness. Jeremy Bentham’s concept of exclusion of evidence as exclusion of justice seems to have prompted the recent changes in the legislations abolishing the common law rules. Bibliography Statutes Criminal Justice Act 2003 C 44 The National Archives, Available at < http://www.legislation.gov.uk/ukpga/2003/44/introduction> accessed 27 May 2011 Police and Criminal Evidence Act 1984 Chapter 60 Books Cross Rupert, Sir and Tapper Collin (2007) Cross and Tapper on evidence, London Oxford University Press 11 ed revised Gibson Bryan and Watkins Michael (2004) Criminal Justice Act 2003; a guide to the new procedures and sentencing, Winchester, Waterside Press. Hunger Ford-Welch Peter, (2004) Criminal litigation and sentencing, 6 th ed, London Routledge, Kean Adrian (2008) The Modern Law of Evidence, 7 ed, London: Oxford University Press Website sources Bad Character Evidence, Principle, The Crown Prosecution Service , Available at < http://www.cps.gov.uk/legal/a_to_c/bad_character_evidence/#a01 > accessed 26 May 2011 Bad Character Evidence, The seven circumstances where evidence of a defendants bad character is admissible , The Crown Prosecution Service accessed 27 May 2011. Bentham, Jeremy. Chapter XIX: Exclusion of Evidence.-General Considerations. The Works of Jeremy Bentham , vol.6 [1843]. edited by John Bowring. The Online Library of Liberty, 1843. Available at accesed 25 May 2011. Criminal Justice Act 2003. Explanatory Notes Summary and Background. Part 11 Evidence. Available at accessed 27 May 2011 Hamer David (2002) Probative but still prejudicial? Rethinking exclusion of propensity evidence in sexual offence cases. Jury Research and Practice Conference, 11 December 2002 p 1 Mathias, Don. (n.d) Observations on S 8 of Evidence Act 2006 (New Zealand). Cases Cullen v Chief Constable of RUC [2003] UKHL 39; [2004] 2 All ER 237 in Hunger Ford-Welch Peter, (2004) Criminal litigation and sentencing, 6 th ed, London Routledge DPP v P [1991] 2 AC 447 DPP v Boardman [1975] AC 421,445 (Lord Hailsham) Mathias, Don. ( n.d) Observations on S 8 of Evidence Act 2006 (New Zealand). Maxwell v DPP. AC 309, 317 (Lord Sankey) (1935). Mathias, Don. ( n.d) Observations on S 8 of Evidence Act 2006 (New Zealand). Phillips v The Queen (2006) 225 CLR 303 Mathias, Don. ( n.d) Observations on S 8 of Evidence Act 2006 (New Zealand). R v Dolan [2003] 1 Cr App R 281 in Bad Character Evidence, The seven circumstances where evidence of a defendants bad character is admissible, The Crown Prosecution Service accessed 27 May 2011. R v Gilbert [1977] 66 Cr App R 237, CA.in Kean Adrian (2008) The Modern Law of Evidence, 7 ed, London: Oxford University Press R v Kearly [1992] two AC 228 in Gibson Bryan and Watkins Michael (2004) Criminal Justice Act 2003; a guide to the new procedures and sentencing, Winchester, Waterside Press. R v Lecky [1944] KB 80 in Kean Adrian (2008) The Modern Law of Evidence, 7 Ed, London: Oxford University Press R v Lewis [1973] 57 Cr App R 860 in Kean Adrian (2008) The Modern Law of Evidence, 7 Ed, London: Oxford University Press R v Mason [1988] 1 WLR 139; [1987] 3 All ER 481 in Hunger Ford-Welch Peter, (2004) Criminal litigation and sentencing, 6 th ed, London Routledge R v Underwood [1999] Crim LR 227 in Bad Character Evidence, The seven circumstances where evidence of a defendants bad character is admissible, The Crown Prosecution Service accessed 27 May 2011. Rice v Connolly [1966] two QB 414 in Kean Adrian (2008) The Modern Law of Evidence, 7 ed, London: Oxford University Press Read More