The Key Function of Law of Evidence - Essay Example

Law of Evidence A Paper Submitted to In Partial Fulfilment Of the Requirements for the By of Student) (Date) Law of Evidence Introduction The constraints set out by the laws of evidence during trial procedures exist to a greater deal in an attempt to try to guarantee that only the individual at faults is convicted, and that the whole trial process is just1. Hence, the trial ought to be factual and be morally legitimate. However, cases under the Misuse of Drugs Act 1971 are rather complex, since the prosecutor has to establish exclusive actus reus and mens rea. Furthermore, the crown has to demonstrate that the accused actually had knowledge of what was inside a bag, the container or box and whether the defendant knowingly possessed and controlled the package itself. On the other hand, the defendant can easily claim that they did not have knowledge of what was inside the package, but that the package contained other things, something hard for the prosecutor to rebut. The aim of this paper is to advise Jim who is appealing against his conviction for supply heroin based on evidential issues arising from the judge’s summing up. Discussion Ever since the effecting of Human Rights Act 1998, criminal evidence has become the most significant development due to various disputes under Article 6 which entails the right to a just trial against the application of a legal weight on the defendant to establish one or more particulars in the issue2. The fact that Jim is seeking a declaration that section 28(3) (b) (i) to be declared contrary to Human Rights Act 1998 as it infringes on his right to a just trial under Article 6 of European Convention on Human Rights 1950, he is placing the court with a question on whether it has the jurisdiction to consider appeal and, if it did, whether section 28(3) (b) (i) the Act was unsuited with his right to a just trial3. To begin with, this instance is a legal burden instead of just an evidential burden since the judge has directed the jury in reference to what is acknowledged to be the decree. As such, the prosecution had to establish only that Jim had and knew that he had the box in his possession, and that the box contained heroin which is classified as a controlled drug. Therefore, in order to establish the defence under section 28(3) of the Act, Jim has to prove on the equilibrium of probabilities that he did not know that the box contained heroin4. The real apprehension is not if the defendant should disprove evidence but that the defendant may be convicted though a reasonable doubt subsists. In particular, the Misuse of Drugs Act 1971 does not have a clear characterization of possession, and in section 37(3) it elaborates that an item which an individual has in his or her possession to include anything subject to his or her control, and which is in the guardianship of another person. Therefore, unless the item is in that individual control though still under care of another person, it cannot be categorized to be in the accused in this case Jim possession5. This then leads to what the directions the jury was given by the trial judge, and it is evident that though it was essential for the prosecution to establish that Jim knew that the box was in his control, it was not essential for the prosecution to establish that Jim knew that the item inside the box was a controlled drug. For this reason, then there would be the likelihood of an infringement in terms of presumption of innocence. This became evident in R v Edwards,6 whereby the defence was identified to have so closely associated with the mens rea principle and moral guilt that it derogated from presupposition to reassignment of legal burden to the defendant. Although subsections (2) with (3) of Misuse of Drugs Act 1971 define specifically of the defendant proving something, then this does not necessarily mean that in order to ascertain a defence then the defendant must essentially offer evidence. Thus, the essential evidence might arise such as from any varied proclamations, or even from witnesses speaking to what the defendants was informed was in the box or to the defendant’s obvious surprise when the contents of the box were exposed and then established to be heroin. As stated by Lord Slynn in R v Lambert ,7section 5(3) of Misuse of Drugs Act 1971 states that a person shall not be found guilty of the offence if he or she neither discerned nor suspected nor had reason to suspect that the substance in question is a particular controlled drug. The Lord went on to assert that, since it is not obligatory for the prosecution to establish that the defendant knew that the substance was a controlled drug, then the defendant may then seek to establish one of the defences, as provided in section 5(4) or section 28 of the Act8. Based on that, it is crucial to consider the necessity of balancing the interests of Jim as an individual and the interest of society. This is because for a reverse burden of evidence to be satisfactory, there needs to be a convincing basis as to why it is just and rational, to disallow the accused the protection usually guaranteed to every person by the supposition of innocence. A sound foundation is to bear in mind that if the defendant is required to establish a fact on the balancing of likelihood so as to evade conviction, then this allows a conviction regardless of the fact-finding panel having a reasonable misgivings as to the culpability of the accused. Therefore, in case some contravention on the supposition of innocence is necessary, then it should not be superior to attaining its legitimate objective. This was the basis in R v Whyte9, whereby the outcome of a reverse-burden-of-proof was stated clearly that in the nonexistence of a convincing burden on the defendant then the public interest can be biased to a level which justifies insertion of a persuasive burden on the defendant. Furthermore, the graver the punishment will be issued from the conviction, the more convincing the reasons should be. In the case of Sheldrake v DPP; Attorney-General’s Reference, 10 Lord Bingham asserted that evidential burden should not be stated as a burden-of- proof, since it is a load of raising based on the evidence. As such, when a matter is appropriately brought to attention, it is the function of the prosecutor to establish past reasonable doubt that no basis of exoneration exist for the defendant. So does the level in which the burden on the defendant links to facts which if they are present are willingly provable by Jim as issues within his personal acquaintance, or to which he has ready admission. Notably, the degree and characteristic of factual matters needed to be substantiated by Jim as an accused including their significance relative to the issues needed to be substantiated by the prosecution, need to be considered. A distinction has to be identified between the definitional constituents of the offence and that of being in ownership of a controlled drug, in this case heroin and which is in opposition to section 5(3) of the Act. This is because there is a well-built public interest in eliminating the streets of controlled substances something which is within the knowledge of the accused. For instance, in the case of L v DPP, 11 the court concluded that section 139 of Criminal Justice Act 1988 did not conflict with Article 6 of the Human rights Act. Hence, the ruling identified that even though it is an offence to be found in the streets with a bladed instrument, the defendant has to prove that he or she had good reason and legalized authority to be in possession of that instrument. This illustrates that any imposition of legal-burden-of-proof on the accused is completely attuned with the presumption of innocence and that it is justified and balanced. However, necessitating the accused to disprove his or her knowledge carries a jeopardy that the jury can convict where it feels there is a doubt regarding the accused knowledge, especially when the jury is not certain on the equilibrium of probabilities that the accused version can be true. Hence, it is open for Jim to argue that merely an evidential presumption has been raised and which can be displaced by the elevation of a reasonable doubt as to guilt instead of a reverse-onus of convincing the jury as to culpability or innocence. Such an argument was brought out in R v DPP ex parte Kebilene, 12 whereby the House was considering inter-alia on whether section 16A of Prevention of Terrorism (Temporary Provisions) Act 1989 does indeed infringe on the standard of supposition of innocence, as enshrined in art 6(2) of European Convention on Human Rights. In that ruling Lords Cooke, Lord Hope and Lord Hobhouse affirmed that it was open to dispute that art. 6(2) should not to be considered as imposing a total ban on reverse-onus stipulation13. Thus, the extent and characteristic of the accurate issue required to be confirmed by the defendant, and their magnitude relative to the issues required to be substantiated by the prosecution, need to be considered. Furthermore, the degree to which the burden on the defendant links to facts which when they subsist are easily provable by the accused as matters within his or her own knowledge should be taken into account. For example, in R v Johnstone, 14 the accused was condemned for possessing bootleg recordings something that was in contravention of section 92 (1) (c) of Trade Marks Act 1994. This section states that an individual is guilty of an offence if he or she possesses or control in items or goods with a view to cause loss to another person with no approval of the proprietor. However, the House of Lords disagreed with the Court of Appeal that section 92(5) imposes barely an evidential burden on the accused and that for a reverse load of proof to be satisfactory there needs to be a convincing reason why it is just and rational to deny the defendant protection generally guaranteed to every person by the presupposition of innocence. This scenario is similar to R v Lambert, 15 whereby the majority in the House of Lords argued that imposition of a legal burden on the defendant to establish lack of awareness damaged the presumption of blamelessness to an impermissible degree. The House of Lords went on to insist that in defining justifiability, section 28(2) of Misuse of Drugs Act 1971 could be deliberated under section 3 comprising the Human Rights Act 1998, in order to compel only an evidential burden. Therefore, it is proof of the accused awareness as to the contents of the box in his possession that can vindicate him from being issued with an extensive custodial sentence upon conviction. Conclusion On the whole, the party possessing a legal burden has evidential burden and this burden of proof can be imposed on the defendant when no irrefutable supposition of guilt had been used. Furthermore, any presumption of law used against the defendant needs to be within rational limits, and in consideration of the significance of what is at stake, while maintaining the rights of the defendants. This is because the key function of law of evidence is to direct the fact-adducing procedures during the oral jury-trial. Therefore, in Jimmy case, the exact categorization of him being in possession of the box with heroin as an essential component should not influence the assessment of his presumption of innocence. Thus, by asking Jim to prove a fact on the equilibrium of probabilities so as to avoid conviction ultimately violates his presumption of innocence, since it allows a conviction regardless of a reasonable misgiving in the mind of the prosecutor of fact as to the guilt of Jim. Also, the unfairness is asserted by Jim to have come about from the reassignment of the onus, and it is open for Jim to seek to disprove the presupposition. Bibliography Buckles, Thomas, Laws of Evidence ( Thomson/Delmar Learning, 2nd edition, 2003). Hannibal, Martin and Lisa Mountford, The Law of Criminal and Civil Evidence:Principles and Practice (Longman, 1st edition, 2002). Iller, Martin, Civil Evidence:The Essential Guide (1st supp, 7th edn, Sweet & Maxwell, 2006). Keane, Adrian, The Modern Law of Evidence (Oxford University Press,3rd edition, 2008). Misuse of Drugs Act 1971 L v DPP [2002] 1 Cr App R 32 R v Edwards [1975] QB 27 (CA) R v Lambert [2001] 3 All ER 577 (HL) 13 R v Whyte (1988) 51 DLR (4th) 481, 493 R v DPP, ex parte Kebilene [2000] 2 (AC) 326 R v Johnstone [2003] UKHL 28, [2003] 1 WLR 1736 Read More

 

Read More