Law in Relation to the Identification Procedure - Essay Example

Law in Relation to the Identification Procedure Answer BOTH parts: (a) The Ripoff Bank in Bristol town centre is robbed on 7 January by a man whose face is completely hidden, except for his eyes, by a balaclava. The bank robber says clearly and quickly: “This is a hold-up. Put the money in your till in this bag.” The bank teller, Alan, complies. Alan later tells the police that the robber is short and has bulging eyes. On 8 January, the police officer in charge of the investigation tells his officers to bring in for questioning all of the “usual suspects’, being all known persons residing in the area who have a criminal record for robbery. Amongst the suspects is Barry, who has a bad stutter. The custody officer informs Barry of his right to see a solicitor but he initially refuses saying, “I’ve done nothing wrong. Why would I need a Brief?” At a police identification parade, Alan picks out Barry on the basis of his “bulging eyes”. Alan does not ask to have the persons in the line-up speak. Barry is 5 feet 5 inches tall. All of the other persons in the line-up are 5 feet 9 inches or taller. Later, at a police interview, Barry refuses to answer any questions and repeatedly states: “This is a fit up – you can’t prove anything”. Frustrated with Barry’s stubborn refusal to admit his involvement, the police decide to plant a listening device connected to a tape recorder in Barry’s cell in the custody suite, and put an undercover police officer, Colin, in the same cell as Barry. Colin asks what Barry’s in for. Barry replies, “Robbery. They’ll never prove it though if I keep my mouth shut. They’ve already messed up the identification parade.” Barry is charged with robbery. Advise Barry. b) Dean is charged with the rape of Eleanor. Both are students at the same University. Dean’s defence is consent. The alleged rape took place in Dean’s room in a hall of residence to which he had invited Eleanor after a party. Prior to the alleged rape Dean and Eleanor had been friends but not lovers. Eleanor alleges that Dean had invited her to sleep on the floor of his room, to save her from walking home in the dark. She claims that at 3.00 a.m. she awoke to find Dean molesting her. She says she tried to push him away but he hit her and carried out the alleged offence. She says that she waited until he had fallen asleep and then escaped. She first complained of the rape to her friend, Flora, six hours later. Flora had come into Eleanor’s room saying: “Where were you last night? Gareth was looking for you. He says he’s going to finish with you if you’ve been out with other men.” Gareth is Eleanor’s boyfriend. She then described the alleged rape to Flora, who says she observed her tear-stained face on which there was slight bruising. Dean tells you that Eleanor is a renowned liar and promiscuous, that it was she who had led him on, and that she sustained bruising when she had fallen against a door. He says that Helen, whose room adjoins his, saw Eleanor kissing him good-bye after the alleged rape. However, he fears that Helen, who is a close friend of Eleanor’s, will not be able to bring herself to testify against Eleanor at trial. Dean also tells you that Ian, another student, told him that three months ago Eleanor had been making sexual advances to Ian in Ian’s room when Gareth had burst in. She had broken down in tears saying that Ian had made an indecent proposition. Advise Dean. In order to advise Barry it is necessary to consider the law in relation to the identification procedure, the use of the listening equipment in the cells, and the planting of the police officer in the same cell as the defendant. This will require discussion in relation to the standard of proof required to bring charges as well as discussing where the burden of proof lies. It will also be necessary to consider whether the confession made in the cell can be used, as it was covertly obtained. In determining the legality of Barry’s treatment it will be necessary to consider the Police and Criminal Evidence Act 1984 to assess whether admissions made to Colin can be used in court. This will involve analyzing the use of witness and oral testimony in court, and assessing whether Barry’s right to silence has been breached by the insertion of the camera in his cell and the placing of the undercover officer in there. In relation to the identification process it will be necessary to discuss how this should have been conducted. Since Alan could only see the height and the eyes of the person involved in the robbery it could be argued that all those in the line-up should be made to speak, as Alan might be able to recognize the voice of the accused. With reference to case law and statute it should be possible, after considering all of the above, to be able to advise Barry as to the legality of the charge against him. D an identification parade has to include at least 8 people (in addition to the suspect) who, so far as possible, resemble the suspect in age, height, general appearance and position in life1. In the situation with Barry it could be argued that the identification parade failed to meet this criteria as all the other persons in the parade where significantly taller than Barry. If the court agree that the identification parade was improperly conducted then under s78 of PACE this evidence can be excluded from the trial2. In R v Gall (1989)3 it was held that the identification parade had been compromised by the actions of the investigating officer. In this case, the defendant argued that the investigating officer should have been excluded from the identification procedure, as they would have had an opportunity to talk to the victim prior to the parade. The appeal by the defendant was allowed, and the evidence in relation to the identification of the defendant was not allowed to be evoked at trial. Similarly, the ID of the suspect in R v Gaynor [1988]4 was disallowed. In this case, the police had hoped to rely on the identification of the defendant in the dock on the grounds that it was impracticable to conduct a parade as insufficient volunteers of a similar description could be obtained. The court held that the defendant had a right to insist on a parade being conducted, and the identification in court should therefore be excluded under s78. With regard to the admission made in the cells, it is necessary to consider the manner in which the confession was obtained5. Under Code E of PACE interviews must be carried out openly and must be taped. The master recording of the interview has to be sealed in the presence of the suspect6. Unrecorded interviews might occur if the recording equipment is not working properly or if there is no interview room available and a senior officer authorizes the interview. Officers conducting such interviews have a duty to record the whole interview and to explain the process to the suspect, offering them the opportunity to have legal representation7. Any confessions made by a suspect must be considered in light of the circumstances and conditions in which the confession was made. Confessions are only admissible if they satisfy the requirements of s76, s76a and s77 of PACE. Under s76 confessions can be excluded if the suspect can demonstrate that the confession was made under oppression8. A claim of oppression was rejected in R v Pham [2009]9 in which the defendant claimed that he admitted to conspiracy to produce cannabis as he had been led to believe that he would be regarded as a suspect in the murder if he did not admit to this. The defendant in R v Mushtaq [2005] 10 challenged the direction given by the judge to the jury in relation to his confession. In this case, the judge told the jury ‘if…you are sure that it is true, you may rely upon it, even if it was, or may have been, made as a result of oppression or other improper circumstances.’ The appeal was dismissed, but the courts were reminded of the need to adhere to s76(2) of PACE with regard to any allegation of oppression. The conviction was deemed to be safe on the basis that the judge had earlier stated to the jury that they had to be certain that the admission had been freely and voluntarily given. The courts have, however, allowed admissions to be adduced even when the defendant was not being formally interviewed as happened in HM Advocate v Mowat 200111. A similar decision was reached in R v Bhambra [2008]12 in which the defendant averred that a breach of s76 of PACE had occurred. S76 states that ‘following a decision to arrest a suspect he must not be interviewed about the relevant offence except at a police station or other authorised place of detention.’ It was accepted that the police had been wrong to question the suspect in this manner, however, the admission was admissible as the accused had not been pressurized into making the confession. In determining whether the confession made in the cell can be admissible it is necessary to consider how the courts have viewed the use of electronic listening devices13. In R v Bailey and Smith (1993)14 the police were allowed to adduce evidence gleaned from taping the conversation in the cell of the defendants. Similarly, in R v Stewart (1970)15 incriminating comments made in a police cell were deemed to be admissible. Using these as authorities it could be argued that the admission in the cells would be admissible at court, however, if the court determine that the police have acted unfairly, as was the case in R v H (1987)16 the confession could be excluded from the trial. In general, the burden of proof is the responsibility of the prosecution as expounded by Viscount Sankey in Woolmington v DPP17 where he stated that ‘Throughout the web of the English criminal law one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner’s guilt.’ Occasionally this burden can be reversed18, thus requiring the accused to prove their innocence. A reversed burden can create unfairness in the criminal justice system as the defendant lacks the resources available to the prosecution for testing evidential findings19. A reversed burden is also likely to offend against Art 6 (2) of the Human Rights Act 1988 which states ‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.’ The standard of proof is that of beyond reasonable doubt. In the above, the main issues are the identification of the accused and the confession made in the cell. It is likely that the identification would not be satisfied beyond reasonable doubt as the parade was clearly biased towards the accused. This could have been resolved by getting each of the participants in the line-up to speak. As Barry has an obvious stutter Alan should have easily been able to identify the speech of the accused if he had been given the opportunity to do so. The confession is also in doubt as it was improperly obtained, however, as no pressure was put on Barry to make the admission the court might conclude that the admission is admissible. From the above, Barry should be advised that the identification parade is likely to be inadmissible, as the way in which this was conducted was a clear breach of Code D of PACE. There is also a possibility that the admission in the cell might be regarded as inadmissible under s78 of PACE, due to the use of the covert camera and the undercover officer. If the police can persuade the court that this was not a breach of PACE, with regard to the unrecorded interview, then the court might allow the evidence recorded on the camera, as well as the evidence from the officer. When considering the advice to Dean it is necessary to examine the law in relation to evidence of bad character, hearsay evidence and opinion evidence. It is also necessary to consider evidence of first disclosure, as Flora would be able to comment on the demeanour of Eleanor when she told her about the rape. Dean could challenge this on the basis that Flora is a close friend of Eleanor, however, the evidence of the bruising noticed by Flora might be significant on such an allegation. In order to successfully challenge the allegation of rape Dean would have to rely on evoking evidence of bad character against Eleanor. The assertion that Eleanor has made similar allegations of sexual assault against another student could only be adduced if Ian is prepared to give evidence relating to the allegations, otherwise his comments would be regarded as hearsay. The use of hearsay evidence is governed by s114 of the Criminal Justice Act 2003. In general terms hearsay evidence will be excluded as the defendant would be denied the right to question witnesses, which would amount to a breach of Article 6 (3) (d) of the European Convention on Human Rights S1(2) of the Civil Evidence Act 1995 defines hearsay evidence as ‘…a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated; Lord Havers in R v Sharp (1988)20 stated that ‘an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted.’ Hearsay evidence is generally regarded as an ‘utterance’ which has been made in a manner which ‘deliberately conveys the impression that it is made with the object of saying something that is true21.’ There are exceptions when hearsay evidence can be adduced, for example if the person who made the statement has died before being able to give evidence22. In order for the statement of a dead witness to be admissible under s23 of the Criminal Justice Act 1988 the statement must be in documentary format, it must have been made by a person and direct oral evidence of the content of the statement must be admissible. Adducing evidence of bad character of a witness is governed by s100 of the CJA 2003. Under this section evidence can be adduced if it contains important explanatory evidence or has substantial probative value in relation to a matter23… in issue in the proceedings. Alternatively such evidence can be adduced if all parties to the proceedings agree to the evidence being admissible. Evidence adduced under the probative value criteria will give rise to the court considering the nature and number of events …to which the evidence relates and when those events…are alleged to have happened24. Where misconduct has been averred the court will expect to see similarities in the behavior of the accused and the present allegation25. If Dean can persuade the court to allow hearsay evidence in relation to the previous allegation made by Eleanor against Ian then the jury might determine that Eleanor has lied about the rape to avoid Gareth ending their relationship. However, it is more likely that the court will insist on Ian giving evidence against Eleanor as this would give her the opportunity to defend herself against the assertion that she has made such an allegation previously. If Helen cannot be persuaded to give a statement in relation to seeing Eleanor kiss Dean goodbye then Dean would not be able to rely on this in support of his defence of consent. In general, opinion evidence will be rejected by the court, unless the person expressing the opinion has personal experience in relation to the conduct of that individual. In this case, Dean would have to produce witnesses to demonstrate that Eleanor has lied on several other occasions. Evidence of her promiscuity would not be relevant, as this would not necessarily lead to the conclusion that she consented to intercourse with Dean. From the above Dean should be advised that it is unlikely that he would be able to adduce evidence of the bad character of the victim. If Dean could persuade Ian to give evidence about the allegation Eleanor made against him previously, it is likely that the court would allow Dean to rely on this to prove that Eleanor has made similar allegations previously. Without Ian’s assistance this could not be adduced as it would be regarded as hearsay evidence. Allegations that Eleanor has lied before will not be able to be relied upon, unless someone can give direct evidence of her lies. If Helen refuses to give evidence in relation to the kiss, then Dean would have difficulty proving this assertion, which could lead to the court believing Eleanor over Dean. 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