The Modern Law of Evidence - Case Study Example

161496   In order to be able to decide on the admissibility of Astrid’s confession it is necessary to examine the way in which the confession was obtained1. With Dr Green’s evidence it is necessary to examine the law in relation to expert medical evidence2 to see whether Dr Green is suitably qualified3 and also whether he is unbiased4. If he has been dealing with Astrid for her mental health problems he may well be allowed to adduce evidence from her medical records to show that she has been having treatment and also to be able to comment on her ability to form the intent to kill or commit grievous bodily harm5. Starting with the admissibility of the confession6 the first point to note is that the interview was not recorded and despite her repeated requests to have a lawyer present no such action was taken. Under the Police and Criminal Evidence Act 1984 the police have a duty under code C to deal with detained persons in a specified manner. At 1.4 of code C if an officer has a suspicion or is told in good faith that a person of any age might have a mental disorder7 or might be mentally vulnerable the officer is under a duty to treat that person as though they have such a condition if there is no clear evidence to dispel the suspicion8. With detained persons who might have a mental disorder the officer should ensure that an appropriate adult9 is present with that person when they are interviewed. Section 1G of Code C recognises a mental disorder as described by the Mental Health Act 1983 s1(2) which classifies those with such a disorder as ‘mental illness, arrested or incomplete development of the mind10, psychopathic disorder and any other disorder or disability of mind’. Section 3 of Code C gives the arrested person the right to consult with a solicitor privately11. This right can be exercised at any point in time from when the person attends at the police station either under arrest or voluntarily12. At the point of arrest the custody officer should ask the detained person if they would like legal advice and should ensure this is arranged if the person so requests. The denial of the detainees access to legal advice can only be carried out if the offence is a serious arrestable offence and the detained person has not yet been charged with the offence and an officer of the rank of superintendent or above has reasonable grounds for believing the exercise of that right will lead to the interference with or harm to evidence connected with the offence; or interference with or physical injury to other people; or could lead to the alerting of other people suspected of having committed such an offence but not yet arrested for it; or will hinder the recovery of property obtained as the result of such an offence13. Paragraph 6.6 of Code C of Pace 1984 goes on further to state that a detainee who wants legal advice may not be interviewed or continue to be interviewed until they have received such advice. With regard to the taping of the interview Code E of PACE states that interviews with suspects should be carried out openly with the master recording being sealed in the presence of the suspect14. A second copy will be used as a working copy and is usually recorded alongside the master copy in a twin deck system. The tape is sealed in the presence of the suspect to ensure the integrity of the interview. Any further copies of the tape will be taken from the working copy. There are two occasions when the interview might not be recorded. These are when it is clear from the outset that there will not be a prosecution or when it is impracticable because of equipment failure or the unavailability of a suitable interview room or the authorising officer considers the interview should not be delayed. Portable recording equipment can be used where the suspect refuses to go to an interview room to be interviewed. In these cases the suspect would be interviewed in their cell and the portable equipment would record the interview. An officer conducting an interview is under a duty to record the whole of the interview including the taking and reading back of any statement to the suspect15. Before conducting the interview the officer has to explain the proceedings and also offer the suspect the opportunity to seek legal advice. A suspect can refuse to have the interview audibly recorded but note of his objections must be made on the audio tape in order to comply with the code. Astrid might also be able to show a jury that she made her confession under duress after having been convinced by the information given to her by the police that they had proof that she was responsible for the killing16. In R v Kiszko (1978) 68 Cr App R 62 the police had told the suspect that they had conclusive proof that he was responsible for the murder of a little girl. The police were aware that Kiszko had a mental condition and they tricked him into making a confession by telling him they had proof of his guilt17. They told him that if he confessed he would be released and allowed to go home. Believing what he was told he confessed. This was at a time before PACE when interviews were not recorded and Kiszko’s confession was read to the jury who convicted him. Eighteen years later he was finally released from prison when it was discovered that the police had deliberately destroyed evidence that would have proved that Kiszko was incapable of having raped the girl before he murdered her. PACE was introduced in an attempt to stop such miscarriages of justice. It is obvious from the above that in this particular scenario the officers where in breach of PACE by note recording the interview on a tape and by also not allowing the suspect to speak to her solicitor18 or to have an appropriate adult present whilst the interview was being conducted19. In theses circumstances it is likely that the confession made by Astrid would be inadmissible20. To enter a plea of diminished responsibility21 the accused has to be indicted for murder no matter how clearly they appear to come within the terms of s2(1) of the Homicide Act 1957. In R v Cox [1968] 1 WLR 308 Winn LJ at p310 stated That there are cases where, on indictment for murder, it is perfectly proper, where the medical evidence is plainly to this effect, to treat the case as one of substantially diminished responsibility and accept, if it be tendered, a plea to manslaughter on that ground, and avoid a trial for murder22. This was not accepted in R v Vinagre (1979) 69 Cr App R 104 where it was stated that It was never intended that pleas should be accepted on flimsy grounds but only when there is clear evidence of mental imbalance. We do not consider in this case there was clear evidence of mental imbalance. There was clear evidence of killing by a jealous husband which, until modern times, no one would have thought was anything else but murder. It follows from the above that a plea of diminished responsibility should be reserved for determination by a jury. In the case of the Yorkshire Ripper the prosecution were prepared to accept the plea in the light of unanimous psychiatric reports that the accused was a paranoid schizophrenic. The judge rejected the plea stating that there should be a trial before a jury. The outcome of this was that Peter Sutcliffe was convicted of murder by the jury. The judge gave his reasoning for refusing to accept the plea of diminished responsibility in this case stating that however unanimous the medical witnesses may be about the abnormality of mind the question of whether the abnormality substantially impaired responsibility is not a medical question but one which should be left for a jury to decide. This has led to the general rule, that the prosecution should only accept a plea where there is clear and convincing evidence of diminished responsibility23. The Homicide Act 1957 s2(1) makes it clear that where a person kills or is party you the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind …as substantially impaired his mental responsibility for his acts or omissions in doing or being party to the killing. Section 2(2) makes it the responsibility of the defence to prove that the person charged in not liable for the murder on these grounds24. The burden of proof is only on the balance of probabilities rather than beyond reasonable doubt25. This burden is not classed as a breach of Article 6 of the ECHR so cannot be affected by the Human Rights Act 199826. The case of R v Byrne [1960] 2 QB 396 shows that this defence is much wider than the defect of reason that was established within the M’Naughten Rules. Lord Parker CJ defined the abnormality of the mind as A state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but the ability to exercise willpower to control physical acts in accordance with that rational judgment. In Byrne there was ample evidence that the accused who was a sexual psychopath found it difficult if not impossible to control his perverted sexual desires, which led him to mutilating the body of a woman after he had strangled her. It would seem to follow from the above that Astrid may well be able to rely on the evidence of Dr Green to show that she was suffering from a mental disorder and that at the time of the killing her abnormality of mind was such that she had no control over her actions27. Dr Green would have to show that the abnormality she was suffering from was such that she was unable to form a rational judgment of what is right and wrong. By proving this he could argue that she did not have the intent to do harm to the victim as she had no perception that the act she was about to do was wrong. The conclusion in the above is that Dr Green’s evidence should be admissible as evidence of the state of the mind of the accused at the time of the offence and that with regard to the confession this is inadmissible on three counts. Firstly the interview was not taped28, secondly Astrid was not allowed to see a solicitor29 despite asking for one and thirdly an appropriate adult should have been appointed due to her mental condition. Bibliography Allen, C, Practical Guide to Evidence, 2nd Ed, 2001, Cavendish Publishing Dennis, IH, The Law of Evidence, 3rd Ed, 2005, Sweet & Maxwell Elliott, C, & Quinn, F, Criminal Law, 3rd Ed, 2000, Pearson Education Keane, A, The Modern Law of Evidence, 6th Ed, 2005, Oxford University Press Murphy, P, Blackstone’s Criminal Practice, 2002, Oxford University Press Glazebrook, P R, Statutes on Criminal Law, 2001, Blackstone’s Huxley, P, & O’Connell, M, Statutes on Evidence, 5th Ed, Blackstone’s Murphy, P, Murphy on Evidence, 9th Ed, Oxford University Press Tadros, V and Tierney, S [2004] Presumption of innocence and the Human Rights Act 67 MLR 402  Ashworth, A and Blake, M The presumption of innocence in English law [1996] Crim LR 306 E Lewis, P, The HRA 1998: Shifting the Burden [2000] Crim LR 667 Roberts, P and Zuckerman, A, Criminal Evidence, 1st Ed, 2004, Oxford University Press Smith. J C, The presumption of innocence (1987) NILQ 223 B Zuckermans Criminal Evidence," International Commentary on Evidence: Vol. 2 : Iss. 2, Article 1. Table of Cases R v Byrne [1960] 2 QB 396 R v Cox [1968] 1 WLR 308 R v Dunbar [1958] 1 QB 1 R v Kiszko (1978) 68 Cr App R 62 R v Lambert, Ali and Jordan [2001] 2 WLR 211 CA R v Vinagre (1979) 69 Cr App R 104 R. (on the application of DPP) v Preston [2003] EWHC 729 R. v Abadom (Steven) [1983] 1 W.L.R. 126 [1983] 1 All E.R. 364 (1983) 76 Cr. App. R. 48 (1982) 79 L.S.G. 1412 (1983) 133 N.L.J. 132 (1982) 126 S.J. 562 R. v Antar (Kayed Kevin) [2004] EWCA Crim 2708 Times, November 4, 2004 R. v Aspinall (Paul James) [1999] 2 Cr. App. R. 115 (1999) 49 B.M.L.R. 82 (1999) 96(7) L.S.G. 35 Times, February 4, 1999 R. v Barry (Patrick Valentine) (1992) 95 Cr. App. R. 384 R. v Betts (Raymond Christopher) [2001] EWCA Crim 224 [2001] 2 Cr. App. R. 16 R. v Brown (John Lewis) [2006] EWCA Crim 141 R. v Chard (Peter John) (1972) 56 Cr. App. R. 268 R. v Clayton (Anthony Edwin) 2000 WL 664424 R. v Gilbert (Clemens Patrick) [2004] EWCA Crim 2413 R. v Howell (Gerald) [2003] EWCA Crim 1169 R. v J [2003] EWCA Crim 3309 R. v McQuade (Joseph) [2005] N.I. 331 R. v Morris (Peter Alexander) [2006] EWCA Crim 1589 R. v Norton (Robert Charles) [2002] EWCA Crim 2953 R. v Park (Randy Alyan) (1994) 99 Cr. App. R. 270 (1994) 158 J.P. 144 (1994) 158 L.G. Rev. 92 Times, July 30, 1993 R. v Robb (Robert McCheyne) (1991) 93 Cr. App. R. 161 (1991) 135 S.J. 312 Times, February 6, 1991 Independent, February 28, 1991 Guardian, February 13, 1991 Daily Telegraph, February 22, 1991 R. v Robson (Michael) [2006] EWCA Crim 2749 (2006) 150 S.J.L.B. 1531 R. v Shickle (Susan) [2005] EWCA Crim 1881 R. v Silverlock [1894] 2 Q.B. 766 R. v Staines (Paula) [2006] EWCA Crim 15 [2006] 2 Cr. App. R. (S.) 61 (2006) 150 S.J.L.B. 167 R. v Steel (Anthony) [2003] EWCA Crim 1640 (2003) 147 S.J.L.B. 751 R. v Williams (Mark Alexander) (1992) 156 J.P. 776 (1992) 156 J.P.N. 330 Times, February 6, 1992 Williams v Queen, The [2006] UKPC 21 2006 WL 1208994 Table of Statutes Homicide Act 1957 Mental Health Act 1983 Police and Criminal Evidence Act 1984 Read More