The Principal Rules of Evidence in Criminal and Civil Trials and Their Legal Basis - Essay Example

Evidence This essay relates to the discussion of the principal rules of evidence in criminal and civil trials and their legal basis as well as the proposed reforms in this area.My essay will go on to criticise the application of the rules of evidence to unfairly obtained evidence and how it can be reformed in the light of judicial experiences and academic opinion. I have also compared similar approaches taken by other jurisdictions in the area of reform and compared those to British law. The first query here would be what is evidence Evidence is the term that pertains to the material or facts submitted to a legal tribunal for the resolution of disputed questions of fact and these rules were originally developed in England for use in jury trials.Since the English Legal system is indeed the envy of the world these rules have now permeated in different forms to legal systems around the world.The development of these rules can trace its development back to the 16th century when the earliest juries could not even be said to be neutral triers of fact based upon their immediate knowledge of the dispute before the court. The law of evidence recognises two principal burdens that is the legal and evidential burden.The legal burden will put the responsibility on the party to prove a fact in issue.Whether a party has discharged the legal burden is something the tribunal of fact will decide and is also known as the persuasive burden and the burden of proof.The evidential burden is the obligation on a party to adduce sufficient evidence to raise a fact in issue and this is something that the judge will decide.A party bearing legal burden can also sometimes be bearing the evidential burden.The standard of proof is the degree of persuasiveness with is required of the evidence as adduced by a party in order to discharge a burden borne by them.The presumption of innocence in criminal law denotes that, the prosecution will have to prove each element beyond reasonable doubt.The general rule is that the prosecution which brings proceedings against a defendant will bear the legal and evidential burden.As Lord Sankey said in the case of Woolmington v DPP 1935 AC 462 HL that "throughout the web of the English criminal law one golden thread is always to be seen and that is the duty of the prosecution to prove the prisoners guilt subject to what I have already said as to the defence of insanity and subject to any statutory exception..No matter what the charge or where the trial the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained." However where the defence bears the legal burden in relation to a fact in issue in a criminal trial the standard of proof is the balance of probabilities.(R v Carr-Briant 1943 KB 607).However where the prosecution or the defence bear the legal burden on an issue the evidential burden may be described as the obligation to adduce such evidence as would be sufficient to justify a possibility in a finding by the jury in their favour.According to the case of Batty v AG for Northern Ireland 1963 AC 386 HL where the defendant bears the evidential burden alone he must adduce such evidence as would if believed and left uncontradicted induce reasonable doubt in the mind of the jury .It should also be noted that the admissibility of certain types of evidence such as a confession alleged to have been obtained by oppression fall to be dealt with as preliminary matters in criminal proceedings.Generally the party seeking to have such evidence admitted will have the burden of proving that it is admissible in line with the standard imposed by the relevant rules of evidence.(R v Sartori(1961) Crim LR 397 R v Yacoob 1981). In criminal cases, the judge will be able to on discretion to order discovery but forbid the prosecution from releasing this evidence.Also important is to note that if there are any damaging errors in the admission of evidence they will be reviewable on appeal if an objection was made during the trial. Material introduced at the trial will ordinarily be restricted to things of great probative value; In civil cases the general rule is that the legal burden on any fact in issue is borne by the party asserting and not denying:He who asserts must prove not he who denies (Re H (Minors)Sexual Abuse:Standard of Proof 1996 AC 563 HL). In Miller V Minister of Pensions 1947 2 ALL ER 372 Denning J ascribed the standard of proof in civil cases as follows, "It the evidence is such that the tribunal can say "we think it more probable than not",the burden is discharged but if the probabilities are equal it is not." However it should be noted that in some instances even in civil cases the court will require the criminal burden of proof, that is in cases of Contempt of Court(Dean v Dean 1987 1 FLR 517 CA),where a person's livelihood is at stake, allegations of misconduct amounting to a criminal offence in disciplinary proceedings or where this is required by statute. Another principle of evidence law pertains to this area known as "presumptions" whereupon a proof of the preliminary fact the court must conclude the existence of the presumed fact unless sufficient evidence is found to the contrary .In civil proceedings the rebuttable presumptions may be evidential or persuasive.The Evidential presumption places only an evidential burden on the defendant but a persuasive presumption places a legal burden on the defendant.In Criminal proceedings the prosecution cannot rely on a presumption to prove facts which are central to the offence.(Dillon v R 1982 AC 484 PC) Now I would like to discuss the criticisms and reforms of some areas of evidence principles as the scarcity of space and the depth of the topic will not allow me to focus on everything at once. My line of argument explores whether the present state of the English law with its recent developments and the effect of the European Union Law provides the defendant in a criminal trial with adequate protection against procedural loopholes allowing the authorities and third parties to obtain evidence unfairly. Previously this area was dominated by the common law rules, following the rather inclusionary practice of admitting any kind of relevant evidence no matter where it was sourced from. The leading case in this area was R v Leatham 1where Crompton J famously remarked 'it matters not how you get it, if you steal it even, it would be admissible in evidence'.2 There were common law rules which allowed the judges to have the discretion to exclude evidence3 at a criminal trial, if this would jeopardise the position of the defendant.4.The standard of reasonableness to be exercised in this regard was that of the "Wednesbury" criteria.5 .Thus the position under common law was that illegally obtained evidence was admissible, given that it was credible, relevant and did not cause adverse inferences to be drawn against the accused.6 The PACE 1984 came into effect in January 1986 and brought changes to the common law position. The main section 78 7of PACE 1984 codified and consolidated the previous common law position.8 However the later body of case law that developed tended to discard the common law approach and develop an entirely new approach to the section, yet the court has not yet given an exhaustive set of guidelines for the section due to the different facts of each case.9Most of the early case law in this regard involved the exclusion of unfairly procured confessions although the position before the PACE 1984 had been very much the same.10 The position in the cases of real evidence was always that they would be decided against the defendant, mainly because there was little chance of any misconduct by the police authorities in the cases of real evidence.11However the court showed some caution in cases involving Alcohol and DNA tests as there was a likelihood of the rigging of such evidence.12In the very controversial case of R v Nathaniel13 the court excluded the evidence of a blood sample of rapist taken four years ago which was promised by the police to be destroyed given that he was not convicted. They tried to use the sample again to convict him four years later but the court excluded this evidence and Lord Taylor CJ made it clear for the court, 'To allow that blood sample to be used in evidence at a trial four years after the alleged offences when the sample had been retained in breach of statutory duty and in breach of the undertakings to the defendant must, in our view, have had an adverse effect on the fairness of the trial. It should not in our view have been admitted.' This case has been followed wherever evidence has been retained in breach of s 64 (3B) of PACE in later cases of rape, murder and theft. For example in the case of Regina v Weir14 the accused was being charged of brutal murder on the basis of very convincing DNA samples which were obtained in breach of s64 (3B) of PACE and thereby the conviction of the defendant was quashed.. Recently however, in the Attorney General's Reference No. 3 of 199915 the House of Lords expressed dissatisfaction with this judgement and regretted not having convicted the accused despite the heavy amount of evidence involved. The Court said that " It must be borne in mind that respect for the privacy of defendants is not the only value at stake. The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public.16" The courts were faced with the dilemma of including self incriminating evidence on behalf of the accused despite the reliability and genuineness of the evidence. This may seem like a good protection for the victims for having had unfairly deduced evidence against them but the House of Lords is correct to point out the unfairness this would bring to the witnesses and the victims. This approach is in line with the American and Canadian approach to unfairly obtained evidence.17Section 78 may have widened the discretion already present in the case of R v Sang ,but their general attitude still remains of reluctance to exclude reliable evidence against the accused. Even while using Section 78 the court will be very cautious and take all the circumstances into account which would mean, how and when the evidence was actually obtained and whether it would adversely impact upon the trial. 18. The only way this discretion can thus be invoked by the accused is if there is evidence or doubt of unfairness. What is unfair or fair in this regard has been a cause of considerable litigation. 19 Recent case law shows that in the light of the recent post PACE decisions, the concept of fair and unfair has become rather vague and it seems that the court does not have a consistent approach in this regard. Many academics have even tried to point towards a public policy oriented approach here. One writer Professor Richard Stone has argued that this term in its judicial context indicates fair play which is the main aim of the protection afforded by section 7820 The criticism that often emanates from this proposition is whether this would take the concept of fair play or procedural correctness too far and ultimately damage the ideals of justice.21All these procedural hurdles have at times been accused of letting the accused get away with a clean record and also delay and hinder justice. Academics like Choo (1989,. Zuckerman(1989), Ashworth(1977)and Hunter(1994) have all identified a threefold criteria which can justify protection for a defendant and it can be explained under the three broad principles of i.e. deterrence, reliability, and protection. As far as the notions of Deterrence are concerned the court is not prepared to advance a theory of "punishing" the police, but it has been made very clear that the court will exclude evidence obtained in deliberate breach of the procedure.22 Therefore the attitude of the judges in this regard as can be seen from the cases like R v Sang where it can be seen that they have been willing to exclude illegally obtained evidence, in the interests of fairness to the defendant. However research has shown that section 78 has indeed widened the scope of this discretion for the defendants, the question remains whether this should remain as an umbrella section for the criminals to escape using this as a loophole in the law.23 The concept of "Reliability" can be seen from the case of R v Sang where it was made very clear that under the common law it was fair to admit reliable but illegally obtained evidence. The third rationale as it is recalled was "Protection", where the judicial attitude can be seen as very much restrictive with the exception of cases involving the utmost bad faith on the part of the police. The Courts have pointed towards other means of redressal other than exclusion of evidence for the accused for example the Police Complaints Authority has the power under sections 83-104 of PACE to investigate complaints against police officers and fine or punish them with dismissal or cautions for misconduct. Also sections 90-104 allow for their criminal prosecution. There can also be a possible action in tort by the offender who had to face such procedural misconduct and damages will accordingly be paid out of the police fund under the provisions in the Police Act 1996 . An example of the above mentioned attitude is the House of Lords case of R v Khan24 which says that if the conduct of the police amounts to a breach of the procedural law or some other rules the accused may look to other provisions for redressal.In this case the accused appealed on the basis that the evidence obtained against him by police officers acting without a warrant, violated his right to privacy protected by Article 8 of the European Convention on Human Rights (ECHR). His appeal was not allowed and The House of Lords said that although evidence obtained in circumstances involving an apparent breach of Privacy under the Article 8 may invoke the protection under the section 78 power, the admission of such evidence would not affect Khan's right to fair trial under Article 6 at all because the national law provided him with a remedy to challenge the admissibility of such evidence. The court was following the ECJ decision of Schenk v Switzerland 25 and it is yet unseen how the Human Rights Act 1998 will treat this issue, even a decade after its inception into the common law. A more jurisprudential analysis of the attitude of the courts in this regard would suggest the utilitarian approach of the achieving the greater good for the society as put forward by Mc Kee (2000) who believes that the good of the society is based on trial judges or juries returning fair verdicts after looking at all the evidence available. Another area much affected by criticism is where there are confessions and real evidence obtained by duress or violence, are unfair to the public interest as well as the interest of the accused. In recognition of the inherent danger of an extorted confession to the ends if justice, confessions are regulated by 76 of PACE and it would seem that the rationale for excluding them would be to exclude evidence obtained with the compelled assistance of the accused.Confessions are defined by Section 82 PACE 1984 as including 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". With regard to protection section 76 PACE provides that, "In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section." The main barriers to admissibility of confessions in order to safeguard the interests of the accused are found in S 76(2) and include oppression and the courts own discretion in the exclusion of such confessions. The common law provides certain rules in this regard to protect the accused. For example the law requires; The confession to be based on the knowledge of facts known to the accused who makes it (R v Hubert 26). The confession made by one defendant to not to be taken as evidence against the co-defendant.(R v Rudd 271948 32 Cr App R 138 The confession will be excluded under section 76 where its voluntariness is in doubt.(Adjodha v The State28) The confession if obtained by oppression to be excluded and the meaning of oppression being "torture ,inhuman or degrading treatment".(S 76(8) and see R v Fulling 29where it was held by Lord Lane to be given its ordinary dictionary meaning.However it should be noted that Article 3 if the ECHR does not refer to the meaning of torture in itself and there is no comprehensive definition in PACE.The area of oppression has generated a vast amount of case law .For example in the case of R v Paris (1992) the defendant was protected by the court holding that the fact that he had a solicitor present did not make the interview any less oppressive because he was constantly shouted at and made a mockery of even when he denied the charges 300 times.Similiarly in R v Miller 1986 1 WLR 1191 Watkins LJ said that might be oppressive to put questions against the accused who was mentally ill to "skilfully and deliberately" induce a delusionary state within him. However it also has to be noted that just because a confession is excluded it does not mean that the facts discovered as a result of this confession are inadmissible. The court or the prosecution can use these facts without saying that these facts were a part of the interview under the provisions of s 76(2).However there is a relationship between s 76 and s 78 in that if the confession is labelled as improperly obtained under s 78 the court will not be to use those facts at all and the whole confession will have to be excluded.Therefore it would seem that the accused has sufficient protection against oppressive or unfairly procured confessions, although the effect of the Human Rights Act 1998 is still developing in this area.30 Conclusion There have been massive influences of recent legislation upon the basic principles of Evidence law particularly in the area of human rights and allegations of improperly adduced evidence. The whole judicial approach unlike its Canadian and American Counterparts stresses on the finding of truth, yet there is a chance of damaging the interests of the defendant and this is one area ( as discussed above) in the field of Evidence rules which needs to be refined. References 1. English Legal System: Gary Slapper,David Kelly(2006) 2. Ashworth - "Excluding Evidence as Protecting Rights"[1977] Crim LR 732 3. Andrew Choo and Susan Nash- "What's the matter with section 78" [1999] Crim LR 929 4. Ormerod and Birch-The Evolution of the Discretionary Exclusion of Evidence-[2004] Crim LR 767 5. Andrew Sanders - "Constructing the case for the prosecution" - Journal of Law and Society 14 1987 6. Ashworth-Should the police be allowed to use deceptive practices [1998] 114 LQR 108 7. Di Birch - "The PACE Hots Up" [1989] Crim LR 95 8. Article 6 and the Fairness of Trials-Andrew Ashworth [1999] Crim LR 261. 9. Covert Surveillance and the European Convention on Human Rights- Steve Uglow [1999] Crim LR 287 10. Simon McKay: Entrapment: competing views on the effect of the Human Rights Act on English criminal law (2002) No 6 Pages 764-774 11. David Ormerod: ECHR and the exclusion of evidence: trial remedies for Article 8 breaches [2003] Criminal Law Review 6 12. Birch, D- 'excluding evidence from entrapment: what is a fair cop' 1994 13. Carter P.B- Evidence obtained by use of covert listening device' 1997 113 LQR 468 Robertson, G- 'entrapment evidence: Manna from heaven or fruit of the poisoned tree' 1993 14. Self-incrimination and the European Court of Human Rights: Procedural issues in the enforcement of the right to silence,E.H.R.L.R. 2007, 5, 514-533 15. Rethinking the privilege against self-incrimination,O.J.L.S. 2007, 27(2), 209-232 16. The criminal jury in England and Scotland: the confidentiality principle and the investigation of impropriety,.:E. & P. 2006, 10(3), 180-211 17. Lost and destroyed evidence: the search for a principled approach to abuse of process,.:E. & P. 2005, 9(3), 158-182 Subject:Criminal evidence 18. ECHR and the exclusion of evidence: trial remedies for Article 8 breaches,Crim. L.R. 2003, Feb, 61-80 19. The protection of commercial trade secrets,.:E.I.P.R. 2003, 25(10), 462-471 20. Evidence law in England and Wales: the impact of the Human Rights Act 1998,.:E. & P. 2002/03, 7(1), 31-61 21. The Law Lords and human rights: the experience of the Privy Council in interpreting Bills of Rights,E.H.R.L.R. 2000, 2, 147-180 22. Hansard invitations and confessions in the criminal trial,E. & P. 2000, 4(3), 147-176 23. Remedies for violations of Convention rights under the Human Rights Act,E.H.R.L.R. 1998, 6, 691-711 24. Silence: Lord Taylor's legacy,.:E. & P. 1998, 2(3), 141-165 25. Civil asset recovery procedures: how equity deters fraud,.:Comp. Law. 1992, 13(3), 44-51 26. Recording witness statements,.:Crim. L.R. 1992, Mar, 160-172 27. The American exclusionary rule and defendants' changing rights,Crim. L.R. 1989, Feb, 117-128 28. Stone, Richard "Exclusion of Evidence under Section 78 of the Police and Criminal Evidence Act: Practice and Principles" (1995) 3 Web JCL1. 29. May, Richard, "Fair Play at Trial: An Interim Assessment of Section 78 of the Police and Criminal Evidence Act 1984" [1988] Crim L.R. 722 at 730. 30. Choo, Andrew "Improperly Obtained Evidence: a Reconsideration" (1989) 9 Legal Studies at 261. 31. Zuckerman, A.A, Principles of Criminal Evidence (Oxford: Clarendon, 1989) at 346. 32. Ashworth, Andrew "Excluding Evidence a Protecting Rights" [1977] Crim LR at 723. 33. Hunter, Mary, "Judicial Discretion: Section 78 in Practice" [1994] Crim LR 34. Robertson, Bernard, "The Looking-Glass World of Section 78" (1989) 139:6423 New Law Journal 1223 35. Robilliard J and McEwan J, Police Power and the Individual (1986) 247 36. Hirschel, "What Can We Learn From the English Approach to the Problem of Illegally Seized Evidence" (1984) 67 Judicature 424 at 432. 37. Robinson, Paul H, "Moral Credibility and Crime" The Atlantic Monthly, March 1995 at 72-78 38. McKee, Adam J., "Protecting Civil Liberties in Police Interviews: A Comparative Analysis of the United States, England and Wales" http://ocean.otr.usm.edu/-ajmckee/police_interviews.html (2 January 2000) 39. Lynch, Timothy, "Unreasonable Searches: Reassessing the Exclusionary Rule", (1998) The Champion, (December 1998) [http://www.criminaljustice.org] (18 December 1999). 40. Civil procedure rules 2005-2006 Read More