The Law of Evidence - Essay Example

?Law of Evidence The possibility of evidence being excluded since it was gained by a trick. David has been charged for handling stolen goods. The police obtained the confession of David by putting him into a trick. There is a huge possibility of the evidence being excluded since it was obtained by the trick of the police. In order to proceed further, it is pertinent to define the meaning of trick and understand whether that meaning falls into the conundrum of facts of the case. “A cunning or skilful act or scheme intended to deceive or outwit someone. Intended or used to deceive or mystify, or to create an illusion.”1 To trick someone into something is to make the other person believe that he is showing him the true face of the situation, but, on the other hand he is infact putting him through a fake image of illusion and therefore cheating him to deceive him according to his whims and fancies. By taking a look at Section 76 of the PACE Act it would be helpful for David to understand the law of confessions: “If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained— (a) by oppression of the person who made it; or (b)in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.2 In the case of R v Mason3, the word “trick” was inducted into the meaning of Section 76(2) of the PACE Act thus und relining the fact that a confession obtained by such illegal means which includes confession induced through the means of trick is liable to be excluded as a confession. It was considered with the help of the above mentioned case, whether or not deception had been perpetrated on the person that was accused and whether or not the same circumstance was considered on a direct basis. According to the Scottish courts, the principle of fairness helps the accused as the departure from the strict procedure has been adopted by design with a view to securing the admission of evidence obtained by an unfair trick. As per the findings of Lord Cooper, "I can find nothing to suggest that any departure from the strict procedure was deliberately adopted ... in the present instance the irregularity ought to be ‘excused’.”150 The Privy Council, in its opinion delivered on an appeal from Kenya, mentioned, as a ground for excluding relevant evidence that it had been obtained by a "trick." 1:;1 Kingsmill Moore ]., admitting evidence of this kind in an Irish case, said: "I can find no evidence of deliberate treachery, imposition [or]deceit." 152 As a ground for rejecting evidence, the Supreme Court of Canada has pointed out: "Admittedly, the statement by the accused was procured by trickery, duress and improper inducements." Therefore, in the first instance, according to the precedents laid down by the Courts worldwide as well as the law in the PACE Act, it has been clearly stated that any evidence produced by putting the individual under a trick is negligible and liable to be excluded under the law. Thus David may be supported with the help of the same. 2. The Law governing the admissibility of the confession Section 82(1) of the PACE Act defines the law governing the admissibility of confession. The Section is as follows: “confession”, includes 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”.4 According to the facts of the case, it is a clear cut proposition that David was oppressed into confessing that he knew about the stolen nature of the car radio. The Court should look at this situation from a holistic point of view and not from the point of view of the police only. Underlining the important facts it is crucial to understand that David did not know about the stolen nature of the product. “David obtained a car radio from a friend, Paul. He did not know where the radio came from.” From the above statement, we can infer that David was not aware of the stolen nature of the product, and therefore is not liable under the law to be prosecuted. “Prosecutors should also note that where the admissibility of confession evidence is challenged under section 76 of PACE, the prosecution must establish beyond reasonable doubt that the confession was not in fact made as a result of oppression, nor in circumstances which were likely to have made it unreliable.”5 Section 76 clearly lays down the path for admissibility of confessions and says that any confession derived from unfair means shall not be held to be liable in the Court of law. “Prior to PACE, confessions were restricted to admissions that had been made to ‘persons in authority’ (by which was meant someone who was in a position to a?ect the course of a prosecution). It now makes no di?erence to whom a confession has been made. Same ruled of admissibility apply.”6 Therefore, understanding the law, it may be ascertained that any statement made by the defendant in the case which pertains to the meaning of the facts of the case and has a relevance to the facts can be attributed to a confession in evidence and is therefore liable to be presented before the Court of law. In the present situation, however, David may be helped by understanding that a confession derived from unfair means is liable to be excluded. Since his confession was derived by unfair means, it is liable to be excluded. 3. The Procedure for determining admissibility at trial This is the most important aspect of the case. The procedure for procuring evidence at trial determines the admissibility of evidence and if the entire procedure is not followed strictly then the prosecution is weakened. Let us look at Section 58 of the PACE Act to understand the procedure of obtaining evidence. The law is as follows: Access to legal advice.7 (1)A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time. (2)Subject to subsection (3) below, a request under subsection (1) above and the time at which it was made shall be recorded in the custody record. (3)Such a request need not be recorded in the custody record of a person who makes it at a time while he is at a court after being charged with an offence. It is mentioned under Section 58 that a person has a right to consult a legal advisor at the time of the arrest. However, looking at the facts of the case the police officer did not allow David to call his lawyer. The confession was made in the absence of his lawyer and at that time he made the confession to get away with the entire situation. He was not aware that such “confession” would actually land him in trouble with the police, nor was his intention to be in this position in the first place. It is advised to David that his right of having a counsel under Section 58 of the PACE Act was violated which means that the first step of procedure was not followed by the Police. This shall result in a weak case for the prosecution as during the trial is such facts are proven then the confession made by David would not be admissible in the court of law. Let us now look at Section 60 of the PACE Act which talks about the recording of evidence as a matter of importance. Section 60 is as follows: It shall be the duty of the Secretary of the Sate: “(a)to issue a code of practice in connection with the tape-recording of interviews of persons suspected of the commission of criminal offences which are held by police officers at police stations; and (b) to make an order requiring the tape-recording of interviews of persons suspected of the commission of criminal offences, or of such descriptions of criminal offences as may be specified in the order, which are so held, in accordance with the code as it has effect for the time being.8 It is clear from the facts of the case that there was no video or audio recording of the confession given by David. The question now which arises is whether the confession given by David can be attributed to evidence in the court of law when the procedure of the admissibility of the same has not been met? The answer to this question is in negative. As Lord Steyn, pointed out in Mitchell v R;9 “The decision on the admissibility of a confession after a voire dire is the sole responsibility of the judge. There is no logical reason why the jury should know about the decision of the judge. It is irrelevant to the consideration by the jury of the issues whether the confession was made and, if so, whether it is true. In modern English practice the judge’s decision after a voire dire is never revealed to the jury.” The admissibility during the trial has a lot to do with following the correct procedure for producing evidence. In the present case, the evidence cannot be admitted in the Court of law due to the following reasons: (a) Evidence obtained through unfair means: The accused in this case was tricked to confess the crime. In reality, it is disputed whether he knew about the stolen nature of car radio, since the defence can take the benefit of the doubt and claim that since he was not aware about the stolen nature of the goods, and the fact that the police lied to him about Paul telling the police that the accused had the knowledge of the nature of car radios, which has been established under the facts of the case, it is clear that David was tricked and deceived by such acts of the Police and was coerced to some extent by admitting the guilt which he never committed. (b) The accused was not allowed to bring his counsel with him at the time of admitting the guilt. The accused was denied by the police to involve his lawyer at the time of ascertaining the confession, and this clearly violates Section 58 of the PACE Act which makes it mandatory for he police to allow the accused to bring his lawyer if he has asked for it or if required under the circumstances of the case. Under the current circumstance of the case the accused had pleased before the police to let him have his lawyer so that he can then have a clear understanding of the case, but due to the dishonest nature of the police he was not allowed to do so, and therefore there has been a breach in the procedure for obtaining evidence. (c) Section 60 of the PACE Act claims that there should be recording of the evidence given before the police so as to have a documental proof of the same with respect to its admissibility. It is pertinent in the court of law when a confession is admitted that it has followed all the rituals of the procedural aspect of the law, and any loophole in the procedural aspect would amount to the non-admissibility of the evidence. Understanding from the above facts, it is clear that Section 76(2) was violated while admitting the confession of the accused. Therefore the judge should exclude the confession made by accused. Along with this, Section 58 and Section 60 of the PACE Act which are ever so fundamental in carrying out the procedure for admissibility of evidence, were not followed by the police at the time when the confession was made by the accused, and therefore due to a lack of correct procedure not being followed by the prosecution the evidence cannot be admitted in the court of law. 4. Whether or not David’s previous convictions may be revealed at trial, and if so for what purpose? David’s previous convictions may be revealed at the trial for strengthening the case for the prosecution. The role of character plays an important role in the trial of proceedings. Character may be defined as the combination or collectiveness of qualities that may be impressed either by nature or by habit of an individual which set him apart from other people or help to distinguish him among a crowd of people. Characteristics usually refer to the mental and moral aspects of a person and may also refer to the repute that a person has which has been given to him by the members of his community. The two stage test by Lord Denning was popularized in the case of Mood Music publishing Company v. De Wolfe Ltd.10, in order to determine the admissibility of evidence by the following means; The following questions were to be ascertained before admitting the evidence i) Whether the evidence provided was relevant with the Fact in Issue? ii) Whether such evidence should be admissible or not? This test was revisited in case of O’Brien v Chief Constable of the South Wales Police11. In practical application of this test the risk of prejudice is likely to be far more acute than in the vast majority of cases where the matter is presided over by a professional judge, who is experienced in ‘putting aside irrational prejudice’. Underlining from the above mentioned cases, it can be ascertained that character plays a very important role in determining the quality of evidence and whether the confession made by such party can be admitted in the court of law. According to the facts of this case, David was charged form stolen goods and has been prosecuted for theft. However, every case is different in its own way and has its own set of circumstances and procedure to be followed. It would be against the law of natural justice to go with the previous convictions of David and make judgment about his character of a thief and then prosecute him on the basis of such judgments without going into the merits of the present case. It is pertinent for the jury that they shall evaluate each case on its own merits and should be independent of the character of the individual who has been accused in the case even though he may have been convicted of the same crime before by the same court. Inferring from such philosophy it has been ascertained that David shall be given a free and fair trial and the judge should not look up to his character, make a biased judgment and then convict him on the basis of such biased judgment. The judge should go into the merits of the case and declare the result depending on the basis of the arguments presented by the Prosecution and Defence. Bibliography & References What Evidence is About, retrieved 26 April 2012, . Confessions, Unfairly Obtained Evidence and Breaches of PACE, The Crown Prince Prosecution Service, retrieved 26 April 2012, . Witness Admissibility, UK Government Enforcement Guide, retrieved 26 April 2012, . S. 76 Police and Criminal Evidence Act 1984, retrieved 26 April 2012, . Confessions; PACE, retrieved 26 April 2012, . Admissible Evidence, retrieved 26 April 2012, . Read More