Oral Presentation Principle of Evidence - Case Study Example

Questions: Elizabeth and Fiona are both jointly charged with burglary. They both deny the charges. Elizabeth has limited understanding of English. The police question both of them separately at the police station. Elizabeth is questioned for four hours without a break. For the first two hours, the interviewer is DS Hutton who shouts and threatens her, until he finishes his shift and is replaced by another officer. Elizabeth finally admits that she did take part in the burglary and she was assisted by Fiona. Elizabeth makes these admissions before the arrival of the solicitor. Fiona, who has a mental age of 12, is also questioned before the arrival of her solicitor and she admits after 2 hours of questioning that she did assist Elizabeth, but she only did so because she finds her intimidating. Elizabeth and Fiona have previous convictions for burglary and theft and are anxious that these should not be revealed to the jury. Elizabeth informs you that she was at home with her partner James at the time of the alleged offence and has therefore been wrongfully charged. Elizabeth instructs you that James is willing to give evidence on her behalf. Fiona claims that she did inform the interviewing officer of her wish to have her solicitor present before she was interviewed, the officer she claims offered to deal with her leniently if she admitted to her participation in the offence. Are the confessions obtained by the police from Elizabeth and Fiona in the interview admissible as evidence in the offence charged against them Is James qualified to give testimonial evidence in behalf of Elizabeth And will the previous conviction of Elizabeth and Fiona for burglary and theft admissible as evidence against them in this case Answer: The current laws of the United Kingdom admit confession as a form of testimonial evidence in an offence charged against a defendant. However, in order to be admissible, a confession is subject to certain conditions or requirements. Confession that was obtained through oppression or violation of the defendant's (human) rights is excluded or inadmissible as evidence in the offence charged against him. To understand the admissibility of the confessions and to answer other relevant issues in this case, it is first essential to analyze history, definition and the conditions for a confession to be admissible as evidence in criminal cases. Historical Perspectives on the Issues Relating to Confessions Most of the decisions in criminal cases at the United Kingdom were based on common law. Under this law, evidence even if improperly obtained is admissible as long as it is relevant to an issue of a case. "A trial judge has no discretion to refuse the acceptance of relevant evidences on the ground that it was improperly obtained or obtained through unfair means" (R v Sang, 1979, UKHL 3). However, with the passage of time, new codes were passed in the United Kingdom that limited or modified the use of common law in deciding cases. Important of these laws are the Police and Criminal Evidence Act 1984, herein referred to as PACE 1984, and the Criminal Justice Act 2003 that will be the primary bases of the arguments to be laid down in this presentation. The Police and Criminal Evidence Act of 1984 (PACE) (1984 c. 60) is an Act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, as well as providing codes of practice for the exercise of this powers" On the other hand, the Criminal Justice Act of 2003 provides guidelines on the admissibility in criminal proceedings of various evidences. The passage of these laws gave a new requirement for evidence to be admissible in criminal cases, that is, competency. In general, evidence is admissible in court proceedings if it is competent and relevant. Evidence is competent if it is not excluded by any rule of law, and it is relevant if it has a logical connection in the facts in issue. Evidence obtained violating these requirements is inadmissible in court proceedings and violators may be held criminally liable. First Argument - Confessions obtained by the police from Elizabeth and Fiona in the interview are not admissible as evidence in the offence charged against them. Section 82 of PACE 1984 defined confession as: "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. In order to be admitted as an evidence, it must be relevant to a matter in issue and must not be excluded by the code or any rule of law." Murphy gives another definition of confession as "an adverse admission relevant to the issue of guilt in a criminal in a criminal case". Confession is a form of testimonial evidence. In general, evidence is admissible in court proceedings if it is competent and relevant. Evidence is competent if it is not excluded by any rule of law, and it is relevant if it has a logical connection in the facts in issue. PACE 1984, Section 76 (1) provides that a confession made by the accused may be given in evidence against him in any proceedings so far as it is "relevant and not is not excluded" by the court in pursuance to this section. A confession is excluded as evidence in court proceedings if it was obtained with oppression. Section 78 (8) of PACE 1984 defined oppression as including "torture, inhuman or degrading treatment and the use of treat and violence." "Substantial and Significant" Breach of Defendant's Rights PACE 1984 Code C acknowledges the following rights of a defendant held for interview as patterned under Article 8 of Human Rights 1998. Interview is the "questioning of a person regarding their involvement or suspected involvement which under paragraph 10.1, must be carried out under caution" (par. 11.1). These rights which are not limited to the following: Entitlement to free legal advice or solicitor (par. 11.2), that is before and after the interview or before a confession is obtained; Right to remain silent (par. 11.4); Right against the use of oppression in obtaining answers or eliciting statements by the interviewer (par. 11.5); Right to breaks as in meal time, or short refreshment breaks for every two hours (par. 12.8); The right to have interpreters at public expense for those who do not understand or have a little understanding of English (par. 13); and The right to have a record of all interview proceedings. Under PACE 78, Section 78, a breach of defendant's rights under Article 8 Human Rights Act 1998 will not necessarily result in the exclusion of the evidence obtained through the breach. However, in R v Keenan [1920] 2 Q.B. 54 provides that "the test for unlawfully evidence is whether the breach was significant and substantial." The case of R v Mason [1987[ 3 all ER 481; (1988) 1 WLR 139 became the basis of the legal dictum that the Courts are inclined to exclude evidence obtained unfairly by some deceit or trick played on the suspect which induces the suspect to confess or reveal incriminating evidence. There is a clear showing in the question that the police employed trick and treat in the interview that is why they were able to obtain the confession. Such act amounted to oppression as defined by Section 78 (8) of PACE 1984. Secondly, there where violations of the defendants' rights as provided under Code C of PACE 1984, particularly their rights to have a counsel or solicitor prior to interview, the right to have an interpreter for Elizabeth, and the right to have an adult for Fiona. Being the facts in the question and based from the aforementioned provisions of the law, therefore, the confessions are not admissible as evidence against Elizabeth and Fiona in the offence charged against them because they were obtained through oppression and in violation of their rights. The inadmissibility of confession obtained through oppression is supported by this provision of PACE 1984 in Section 76: "Evidence tendered by the prosecution must not be admitted if it was obtained by oppression of the person who made it; or 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 the accused in consequence thereof." Second Argument - The confession obtained from Elizabeth is not admissible against her co-defendant. Fiona is 27 years of age but has a mental age of 12 that made her "mentally handicapped" and unfit to plead. In the law of England and Wales, fitness to plead is defined as the capacity of a defendant in criminal proceedings to comprehend the course of those proceedings. The legal fitness to plead is based on R v Pritchard. Under this case, "an accused is unfit to plead if he is unable to: comprehend the course of the proceedings on the trial, so as to make a proper defense; or know that he might challenge any jurors to whom he may object; comprehend the evidence; or give proper instructions to his legal representatives." If the issue is raised by the prosecution, the prosecution must prove beyond reasonable doubt that the defendant is unfit to plead (Robertson, 1968, 1 WLR 1767). If the issue was raised by the defence, it only be proved on the balance of probabilities (Podolo, 1960, 1 QB 325). Under the PACE 1984, a person with such mental disorder is termed as mentally vulnerable. "Mentally vulnerable' applies to any detainee who, because of their mental state or capacity, may not understand the significance of what is said, of questions, or of their replies. 'Mental disorder' is defined in the Mental Health Act of 1983, section 1 (2) as 'mental illness, arrested or incomplete development of the mind, psychopathic disorder and any other disorder or disability of mind'. When the custody officer has any doubt about the mental state or capacity of a detainee, that detainee should be treated as mentally vulnerable and an appropriate adult called." (par.1G) PACE 1984 Code C, par.11.15, provides for the right of a mentally vulnerable person in interview, which may not be limited to the following: "A juvenile or a person who is mentally disordered or otherwise mentally vulnerable must not be interviewed regarding their involvement or suspected involvement in a criminal offense or offenses, or asked to provide or sign a written statement under caution or record of interview, in the absence of the appropriate adult ().' (par.11.15) PACE 1984 Code C, par. 1.7, provides that in the case of a person who is mentally retarded or mentally vulnerable, an "adult" is: a relative, guardian, or other person responsible for their care and custody; someone experienced in dealing with mentally disordered or mentally vulnerable people but who is not a police officer or employed by the police; or failing these, some other responsible adult aged 18 or over who is not a police officer or employed by the police." In the question, Fiona admitted after two hours of questioning that she assisted Elizabeth in the offence charged against them, but in the absence of a solicitor prior to interview even after she asked for it. Also the police employed trickery in obtaining the confession by offering to deal with Fiona leniently if she admitted to her participation in the case. Thus, these facts show that there were breaches committed by the police in obtaining the confession that linked Elizabeth to the offense charged, particularly PACE 1984 Code C, par.11.15, which provides that a mentally vulnerable person should not be interviewed without an adult. PACE 1984 CODE C, par. 11C, recognizes the significance of this right of a mentally vulnerable person in an interview: "Although juveniles or people who are mentally disordered or otherwise mentally vulnerable are often capable of providing reliable evidence, they may without knowing or wishing to do so, be particularly prone in certain circumstances to provide information that may be unreliable." Since there was again a substantial and significant breach of the laws in relation to the acquiring of confession from Fiona who is a mentally vulnerable, her confession is inadmissible as evidence against her co-defendant Elizabeth. Third Argument - James is qualified to give testimonial evidence in behalf of Elizabeth. Marital privilege rule is a right granted to legally married persons to refuse to testify on matters or communication that took place between the spouses during the validity of the marriage. It originated at common law in England and was made formal in the English Amendment Act of 1853. It does not only give the right to refuse to testify but also allows a witness spouse to choose whether to testify. The most important requirement for this right to apply is that the communication where the witness spouse is testifying into must be made during a legal marriage. It cannot be utilized by common law partners or those who merely live together. Since in this case, Elizabeth and James were not legally married, the right will not apply so James can choose to testify in behalf of Elizabeth. Fourth Argument - The previous conviction of Elizabeth and Fiona for burglary and theft is not admissible as evidence they committed the offence charged against them. Section 98 of the Criminal Justice Act 2003 referred to bad character evidence as: "Evidence of, or disposition towards misconduct; other than evidence which has to do with the alleged facts of the offence with which the defendant is charged, or is evidence of misconduct in connection with the prosecution of that offence." Section 103 of the same act provides for the admissibility of previous convictions in support of propensity to commit like offenses and untruthfulness. However, section 101 of the Criminal Justice Act 2003 provides that bad character can be adduced by the prosecution if it will pass through any on the seven gateways and will not have any effect on the fairness of the trial. The seven gateways are: all parties to the proceedings agree to the evidence being admissible, the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross - examination and intended to elicit it, it is important explanatory evidence, it is relevant to an important matter in issue between the defendant and the prosecution, it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant, it is evidence to correct a false impression given by the defendant, or the defendant has made an attack on another person's character." The general rule is that bad character evidence is admissible only to prove the character of the defendant and may be excluded on the grounds of unfairness. On the other hand, previous conviction of the same offence as defendant is charged is only an evidence of bad character, not evidence that he committed the same crime that he is charged. In convicting or acquitting a defendant, the judge relies on the facts presented in the case and not on the record of previous convictions of the defendant. Therefore, the previous convictions of the defendants are inadmissible as evidence to prove that they commit the offence charged. Summation of Issues Involved The confessions obtained from Elizabeth and Fiona are inadmissible in the offence charged against them based generally on two grounds: 1) they were obtained through oppression, and 2) they were obtained with significant and substantial breach of the existing laws. The bases of the arguments in particular are the provisions of the Police and Criminal Evidence Act 1984 and the Criminal Justice Act 2003 that provide the rights of defendants and the public in general. In passing, one of the purposes of these laws is to prevent the abuses that might be committed by the law enforcers in gathering evidences against a defendant so that the fairness of each trial will be maintained. SKELETON OF ARGUMENTS IN BEHALF THE DEFENDANTS 1. This is a skeleton argument on behalf of the defendants for the hearing on ____________. 2. The defendants were jointly charged with burglary on ___ and is asking for permission to exclude as evidence their confessions (referred to in the case as Exhibits 1 and 2), and the record of her previous conviction of burglary and theft (referred to in this case as Exhibits 3and 4). The defendants' application raises important issues regarding the admissibility of the evidences in accordance with the requirements of the Police and Criminal Evidence Act 1984, the Criminal Justice Act 2003, and the right to fair trial under Article 8 of the European Convention on Human Rights. 3. The defendants stand jointly charged with the offence of burglary and denies the charges. 4. Elizabeth has a limited understanding of English. However, during the interview, she was not given an interpreter. She was questioned for four hours without break, without a solicitor or access to legal advice, and subjected to intimidating and degrading conduct by DS Hutton. On the other hand, Fiona has a mental age of twelve and was not accompanied by an adult in the interview. She was questioned for two hours without break, without a solicitor or access to legal advice, and subjected to intimidating, degrading, and trickery questioning. 5. The relevant laws regulating the detention, treatment and questioning of persons by police officers in the UK is enshrined in the Police and Criminal Evidence Act 1984 (PACE) and the PACE Code of Practice C (Code C). 6. The right of the defendants under PACE and the Codes to legal advice, an interpreter, an adult, and rest breaks, were persistently breached thereby satisfying grounds for exclusion of confession evidence under section 78 of PACE. 7. For these reasons, the defendants respectfully ask the court for permission to exclude theb evidences. Submission Presentation 1. This is an application on behalf of Elizabeth and Fiona, defendants in the proceedings. Application is for the exclusion of the following evidences: 1) Confession statements of Elizabeth and Fiona ("Exhibits 1 and 2"); 2) Exclusion of Elizabeth's statements in relation to Fiona's culpability for the offence; 3) Exclusion of Fiona's statements in relation to Elizabeth's culpability for the offence; 4) Exclusion of evidence of the defendant's previous convictions ("Exhibits 3 and 4") 2. Submissions on behalf of Elizabeth Elizabeth makes her application on various grounds, which are helpfully outlined in the skeleton argument filed in her behalf. Firstly, the skeleton refers to the fact that Elizabeth has limited understanding of English, therefore, an interpreter in the interviewing room should have accompanied her. Additionally, the skeleton refers to the fact that Elizabeth was questioned continuously for four hours without a break, without a solicitor, and in an intimidating and degrading manner, which clearly created a significant risk of any subsequent answers given by her being unreliable. As such it is submitted that the confession evidence in Exhibit 1 is entirely prejudicial to a fair trail and without true probative value. 3. Submissions on behalf of Fiona Fiona makes her application on various grounds, which are helpfully outlined in the skeleton argument filed in her behalf. Firstly, the skeleton refers to the fact that Fiona is mentally vulnerable, therefore, an adult in the interviewing room should have accompanied her. Additionally, the skeleton refers to the fact that Fiona was questioned continuously for two hours without a break, without a solicitor, and in an intimidating and degrading manner, and with trickery which clearly created a significant risk of any subsequent answers given by her being unreliable. As such it is submitted that the confession evidence in Exhibit 1 is entirely prejudicial to a fair trail and without true probative value. 4. The relevant laws 1) The relevant law regulating the detention, treatment and questioning of persons by police officers in the UK is enshrined in the Police and Criminal Evidence Act 1984 (PACE) and the PACE Code of Practice C (Code C). 2) The right of the defendants under PACE and the Codes to an interpreter, adult companion, and legal advice were persistently breached thereby satisfying grounds for exclusion of confession evidence under section 78 of PACE and PACE 1984 Code C, par.11.15. 3) The statement of Elizabeth in relation to Fiona's guilt is not admissible under section 76A of PACE and section 128 of the Criminal Justice Act 2003. 4) The statement of Fiona in relation to Elizabeth's guilt is not admissible under section 76A of PACE and section 128 of the Criminal Justice Act 2003. BIBLOGRAPHY 1. "Criminal Justice Act 2003". OPSI:Office of the Public Sector Information (Online). Date Accessed: 28 Dec 2008 2. "Police and Criminal Evidence Act 1984 (c. 60)". OPSI:Office of the Public Sector Information (Online). Retrieved from: The UK Statute Law Database. Retrieved on: 28 Dec 2008 3. "Police and Criminal Evidence Act 1984 Code C". Date Accessed: 24 Dec 2008 4. Peter Murphy (2007). Murphy on Evidence. 10th Edition Oxford University Press Read More