Law of Evidence: The Case of Charging Under Section 53 of the Sexual Offences Act 2003 - Essay Example

Law of evidence Tom (T) is charged with controlling a prostitute for gain under section 53 of the Sexual Offences Act 2003. Section 53 states: (1) A person commits an offence if- a) He intentionally controls any of the activities of another person relating to that person's prostitution in any part of the world, and b) He does so for or in the expectation of gain for himself or a third person. The prosecution will try to prove that Tom was indeed controlling a prostitute for gain and he would assault her if they did not comply with his demands. The prosecution will prove this by presenting several pieces of evidence that include: 1. Patience (P) videotaped testimony 2. Alana’s (A) testimony 3. PC Story’s testimony 4. Fifteen boxes of condoms and the stash of money amounting to 5000 5. A laptop computer used for advertising the prostitute 6. Tom’s previous conviction in 2011 for burglary 1. The prosecution is at task to prove T’s intent to illegally control P as a prostitute under section 53 of the Sexual Offences Act 2003.1 However, the prosecution’s task becomes difficult after P disappears and is not available to testify directly in court, an opportunity that the defense is willing to utilize in building their case against the case. After getting hold of P, the police interview her for testimony on T’s dealings and during the process, her interview is recorded. In the interview P provides very important evidence that could help the prosecution to prove T’s guilt, because P admits to be the direct victim of T’s illegal dealings. However, her disappearance on the day of trial leaves the prosecution in a difficult situation since the defense will object on this piece of evidence adducing that there is no possibility for cross-examination. Although P is not available to testify in court, her recorded testimony cannot be dismissed under the defense’s argument. The recording is admissible as evidence in court under special measures for intimidated witnesses as defined by section 17 YJCEA.2 Victims or complainants of sexual offences are automatically defined under section 17 (4). P’s fear for her life and decision to run away automatically puts her under special measures and the judge can be consulted under If under ss. 17, for special measures direction by judge. These are compliant with Art 6 – House of Lords (Hale) in Camberwell Green Youth Court [2005] UKHL 4.3 In this case, the videotaped evidence can be brought forward as the chief evidence under R v K [2006] EWCA Crim 472 s. 27.4 In this case, the defense cannot utilize their statement on the unavailability of the witness for cross-examination, since the witness is already protected by the special measures provision for intimidated witnesses. Admissibility of P’s recording is allowed in court based on direct testimony. Every video testimony must be relevant to the facts of the case. The court must ensure the video testimony of P is of unquestionable authenticity that there is not any distortion of information. The court analyses the chain of custody of the recorded video and circumstances under which she undertook the recording. If there was forcefully or under duress when giving the statement then the video cannot be allowed in a court of law. If the chain of custody cannot be established in court due to inadequate documentation then the court can throw out the evidence. The court in analyzing chain of custody must establish who recorded the message, who had access to it and if under any circumstances was the original statements distorted. 2. A’s testimony could also turn out to be very important for the prosecution as it could provide direct evidence to incriminate T. However, because of her fear to testify this may be a major drawback to the case. In this case, the prosecution should approach the judge and request for special measures under section 17 YCJEA.5 A in this case falls under intimidated witnesses same to P and her testimony could be potentially affected by the presence of T in the courtroom. Following the police’s lead that several men were spotted at the house for a sexual offense crime, the prosecution can also approach the judge for special measures. This can either allow A to testify in private or use a live video link in testifying so that T’s presence in court does not intimidate her. When the court rules that A’s evidence must be produced to distinguish facts in court she might be asked to testify before a court of law without having the suspect and any other people in court. A court has the legal right to summon a witness to give evidence in a court of law if their evidence is crucial to a case and the case cannot move forward without their testimonies. For purposes of protection against intimidation, the court can carry out a person interrogation where the witness fears no intimidation. In addition, the court may provide protection for the witness during the trial to avoid intimidation from the suspect. 3. PC story also provides key witness claims that will be useful in deciding T’s fate in court. Under section 1146 hearsay evidence is defined as statements not made in oral evidence in criminal proceedings. This evidence is only admissible in court only if they full certain conditions. Section 114 (1) (d)7 states that in order to admit hearsay evidence in court it should be in the interest of Justice. In the sense that, it must be established that in order to admit hearsay in court such evidence should be of interest to the force of justice; thus holding the charged person responsible for the accused crimes. Additionally, such evidence should create unfairness on the part of the defendant whereby for instances the defendant cannot manage to challenge the hearsay evidence. This was illustrated in the case of Sparks v R8 and R v Blastland9. Secondly, under section 11610 the witness should not be able to attend in court. The testimony of a witness can be read in court if it has been established that such witnesses will not manage to attend the court proceedings. However, in order for such evidence to be admissible the maker of the statements should be cleared identified to the satisfaction of the court. The Act further indicates that the absent individual making such statements and must follow under the five categories11. They are that the person must be dead, unfit to give any evidence in court due to a mental condition or mental harm. Such individuals should be outside the United Kingdom and it would be impracticable to secure their attendance in court. The individuals to give evidence cannot be found and it has been established that reasonable steps have been taken to find them. Lastly, the giver of the hearsay information must be afraid to testify or continue to testify. Thirdly, the evidence is in the form of a document as provided under Section 117 and lastly, the evidence comprises multiple hearsays under section 121.12 In the case of Luca v Italy13, European Court of Human rights, it was held that proceedings that a conviction is decisively or solely based upon the evidence of witnesses which the accused is not given the opportunity to examine in is a breach of Article 6 of the Convention which the right to a fair hearing. In the case of R v Arnold14, the Court of Appeal indicated that allowing the hearsay rule would allow some of the expectations, thus, giving the prosecution the license to intimidate witnesses. Therefore, although there are some exceptions that have been provided the court does not allow the prosecutors to be prevented from testing their cases. A test is applied in order to correctly interpret the law in relation to the admissibility of hearsay evidence. First, it is important to establish the purpose for which the evidence is sought to be admitted. This is because in case the prosecution relies on the evidence as being the truth of the information contained in the statement then it said to be hearsay because in case the witness who gives the evidence box does not have any direct knowledge of the evidence contained in the statement. In this case direct knowledge denotes the reception of evidence through the use of witness own senses. In the case of Sam Salfilamo v, R 15the Court of Appeal held that “The last ground of the appeal was one of law and related to some hearsay evidence given by three of the witnesses. There undoubtedly was some hearsay evidence given, though some of the complaints from hearsay were in fact original evidence given not to prove the truth of what another had said, but to show why the witness had acted in the way he did.” In the case of Frank Norman Hiki v R16 Davis CJ stated that in order for a sketch plan or hearsay evidence to be admissible in court the individual seeking to produce that evidence in court must have all the direct data enclosed in the plan. 4. The fifteen boxes of condoms and the stash of money amounting to 5000 dollars forms part of real evidence. Real evidence is also known as physical evidence. Any material object that plays an actual role in a case of litigation that can prove a fact in issue due to its physical characteristics is admissible in court. Admissibility of such real evidence must require authentication and prove of relevance to a court of law. Materials submitted in court, as real evidence must in the same condition as it was on the relevant date. Authentication can be carried out through statements from witnesses or by use of circumstantial evidence that is known as chain of custody. Purpose of physical evidence is to link the materials adduced in court to the person charged with the offence with the scene of crime. Such physical evidence of boxes of condoms and stash of money must be preserved and tested using methods that ensure they maintain their evidence to all parties involved. If such evidence is spoiled then its considered spoilated, it is not admissible, and it compromises legal positions of parties. In the case of R v. Osbourne & Virtue17 Lawton LJ in making his judgment made the following observations in relation to what is evident. “In police experience evidence means information which can be placed before the court and it means that not only to the police office, but the general public, as is clearly shown by one of the meanings given to the word evidence. The law defines evidence as the information given in a legal investigation to establish fact or point in question.” Therefore, the prosecution has to present evidence that is relevant and that can be seen by the public. In the case of R v. Apilleca18 Lawton J in delivering the judgment of the court indicated that “A basic principle of the law of evidence is that evidence that is relevant should be admitted, unless there is a rule of law which states that it should not be.” Another case that explained admissibility of evidence in court was the case of R v. Funderburk19 Henry J stated “One starts with the obvious proposition that in a trial relevant evidence should be admitted and irrelevant evidence excluded. “Relevant" means relevant according to the ordinary common law rules of evidence and relevant to the case as it is being put as was held in the case of Viola20.” In his opinion relevance can be said to be the a matter of degree in each case, where the question in reality is whether or not evidence is or is not sufficiently relevant. The materials boxes found with condoms can be admissible in court due to their physical characteristics that match in the case. The issue here is about prostitution and the condoms form part of the characteristics of physical evidence that would be admissible to the facts of the case. Physical evidence to be admissible in court it must link the evidence to the person charged and the materials presented in court must have some characteristics of the crime. For purposes of authentication, A can testify whether the boxes of condoms and the stash of money was part of the business this will prove authenticity of the materials used as real evidence in a court of law. 5. Physical evidence on the other hand can be introduced in court as an exhibit to a witness statement or as a separate item on its own21. Physical evidence comes in different forms and it may be in the form of written statements, maps, certificates, sound and video recording, and machinery among others. To admit this form of evidence in court the correct rules and procedures should be follows, although in some cases, some evidence just speak for themselves while others have to elaborate or be adduced by a witness before they become receivable as evidence in court22. Computer evidence is said to be reliable only in instances where the computer is held or presumed to be working properly23. In this case, the computer was being used to create advertisements and when the police confiscated it, the computer was working properly; hence, admissible as physical evidence. This is provided for under section 60 of the Youth Justice and Criminal Evidence Act 1999.24 When police seize evidence from a computer related case, they must collect all physical evidence including the computer, notepads or any documentation. Computer related evidence is always considered as hearsay in a court of law. This is because magnetic charge of the disk or the value of the memory that represents the data is actual and original evidence.25 In the case of Rusenberg v, Collins26 the court of law held the computer output is always used in the course of business and it was admitted. It therefore depends with the circumstances of a case. Computer evidence is considered heresy since there is no firsthand proof of its accuracy, reliability, and trustworthy. Hearsay evidence is not admissible in court but there are certain exceptions to its admissibility as laid out in Rule 803 of the Evidence Act where if it is for business records then it can be allowed as evidence in court. From the facts of the case, it is clear that the computer was being used to look for business online and this amount to work and business. The materials of the computer in it are admissible in a court of law under Rule 803 since it was being used for business. This rule was supported by the case of Resenburg as discussed above. Technological devices have electronic evidence that reveal all sorts of information where there may by e-mail communications money laundering schemes or criminal profits. Such technological devices like laptops may store pornographic videos. The court must check whether the investigators had a legal right to seize and search the laptops computer that was incriminating. The Fourth Amendment limits the capability of investigators to search for evidence .In the case of United States v Chan27 that restricts law enforcements from investigating a personal computer without probable cause. This is an issue where the court will analyze critically to check whether the laptop taken from the suspect house, due procedure was followed in checking whether the investigators seized the evidence with probable cause. This ensures that investigators obtain a search warrant that is based on probable cause to avoid suppression under the exclusionary rule. From the facts of the case, the police had obtained a legal warrant to search the house and therefore evidence adduced from the police since they are responsible for chain of custody is admissible before the court of law. The court has the discretion to put the weight it wishes on each type of evidence that is presented before it or to each witness. This was illustrated in the case of In Samuel Dalu v R28 Palmer J indicated “It is trite law that matter on weight of evidence are matters for the magistrate as the judge of both fact and law to decide upon. The question on the weight of evidence is not determined by arbitrary rules, but by logic, experience and common sense.” Birch J stated in the case of R v Madhub Chunder29 “for weighing evidence and drawing inferences from it, there can be no cannon. Each case presents its own peculiarities and each common sense and shrewdness must be brought to bear upon the facts elicited.” The court held the same in the case of DDP v Hesrter30. Therefore, even though evidence can be admissible in court the fact of its weight has to be established in order to determine its significance in the case.31 In the case of T, the laptop, the money and the condoms were of great importance to the courts because they established that he was using his house at east London not as beauty parlour, but for prostitution. 6. The issue of character evidence was also evident in the case study where the record of T’s previous conviction was introduced in the court in order to show that he was guilty of the crimes that he had been accused of committing. However, general character evidence is inadmissible in court, although it can be admitted in cases where the accused person has made an attack on another person’s character32. For example, in this case study T was attacking PC Story’s character when he took the stand and indicated that PC Story was out to revenge because in the previous case where he was accused of burglary he was acquitted. Conversely, in order to affect justice and sentencing on the accused person character evidence may be used. In criminal proceedings, the good character of the accused person is admissible in court to show that the accused person did not commit the offense as was held in the case of Aziz33. However, according to the case of Rowton, 34 it was held that the evidence in chief of an accused person’s good character can only be general and should not involve specific acts. Section 9935 defines bad character as the evidence of or a disposition towards misconduct. This section further eliminates all common law, regulations, and rules regarding the admissibility of bad character in relation to the accused person or the witness36. The Act further states that the only time bad character is admissible in court is in instances where it falls under the provisions of the statute. Section 101(f) & (g) of the Act provides that the evidence of bad character on the part of the defendants may be admissible in case the evidence is to correct a false impression given by the defendant37. In this case, the accused person gave an impression that PC Story was out for revenge and adducing his previous convictions would establish that T was a person of bad character. Section 101 (g) provides that in instances where the defendant has attacked another person’s character the Bad character evidence can be adduced in court.38 However, the court has a duty to discharge the jury or order an acquittal where it is proven that the evidence admitted in court under section 101 par. (c) To (g) is contaminated, thus leading to any unsafe convictions. In this case, evidence is contaminated in instances where false and misleading issues have been raised while trying to scrutinize the character of the accused person39. It has been held that admitting bad character on the defendant’s case does not lead to an unfair trial. This was held in the case of X v Denmark Yearbook40, the Strasbourg commission indicated that since various members of the states provide disclosure of previous convictions during the criminal proceedings the court is not prepared to hold such procedures in violation of any provisions provided for under Article 6. Additionally, the provisions do not cause any effect when it comes to reversing the burden of proof because they make evidence admissible against a defendant who had previously been held inadmissible41. Therefore, to that extent it makes the prosecution of Justice easier for the prosecution when it comes to discharging the burden of proof on the defendant’s guilt. Although this is not the same case, it comes to requiring the defendant to prove his or her innocence.42 Prosecutors cannot use evidence of prior conviction to prove guilt of a defendant, however sometimes they can use them to identify and question truthfulness of a defendant’s testimony. Courts weigh the value of the evidence of prior convictions to help determine credibility or possible prejudice. Courts consider before taking into prior conviction of evidence the type of crime or whether the crime indicates truthfulness of the defendant and the length of imprisonment .Credibility is considered whether it is central to the case in court. Therefore, about the case the prosecution can only use T’s prior conviction to consider his credibility in denying claims and when giving statements in court. References Allen, C. J. W. (2001). Practical guide to evidence. London: Cavendish. Aziz (1995) 3 All Er 149 Buckles, T. (2003). Laws of evidence. Clifton Park, NY: Delmar Learning. Choo, A. L.-T. (2012). Evidence. Oxford, U.K: Oxford University Press. Criminal Justice Act of 2003 DDP v Hesrter [1972] 3 AllER 440 Dennis, I. H. (2010). The law of evidence. London: Sweet & Maxwell. Frank Norman Hiki v R (Unrep. Criminal Appeal Case No. 9 of 1979) Glover, R., & Murphy, P. (2013). Murphy on evidence. Oxford: Oxford University Press. House of Lords (Hale) in Camberwell Green Youth Court [2005] UKHL 4 Keane, A., & McKeown, P. (2014). The modern law of evidence. Oxford: Oxford University Press. Luca v Italy ECHR (2003) 26 E.H.R.R 46 R v Arnold( 2004) 6 Archbold News, CAP R v Blastland (1986) ACC 41 R v Cowan [1996] QB 373 R v Madhub Chunder (1874) 21 WRCr 13 R v. Apilleca (1986) 82 CrApp R 295 (1986) CrimLR 28 R v. Funderburk (1990) 90 CrAppR 466 CrimLR 405] R v K [2006] EWCA Crim 472. 27 R v. Osbourne & Virtue (1973) 1QB 678 Roberts, P., & Zuckerman, A. A. S. (2010). Criminal evidence. Oxford: Oxford University Press. Rosenberg v. Collins, 624 F.2d 659 Rowton (1861-73) All ER Rep 549 Sam Salfilamo v R (Unrep. Criminal Appeal No. 10 of 1994) Samuel Dalu v R (Unrep. Criminal Case No. 43 of 1992) Sparks v R (1963) UKPC Spencer, M., & Spencer, J. (2013). Evidence: Law revision and study guide. Oxford: Oxford University Press. United States v. Chan, 830 F. Supp. 531, 535 (N.D. Cal. 1993 Viola (1982) 75 CrAppR 125, 3 AllER 73,76 77 Walton, D. N. (2006). Character evidence: An abductive theory. Dordrecht: Springer. X v Denmark Yearbook (1965) Vol 8 p. 370 Youth Justice and Criminal Evidence Act 1999. Read More