The General Purpose of the Evidential Rules - Case Study Example

Introduction There are several evidential safeguards within the criminal justice system which are calculated to ensure fairness to the accused within the context of his or her right to a fair and impartial trial. The purpose of the criminal trial is to discover the actual facts or the truth about the criminal charges alleged. There are several statutory and case law provisions that dictate the facts of a case be established by relevant and probative evidence. This paper discusses the laws relating to the collection of evidence and the admissibility of that evidence at the criminal trial and the court’s power to exclude otherwise admissible evidence in the interest of a fair and impartial trial. The main areas of contention are the admission of allegedly improperly obtained evidence such as confession statements and evidence collected by virtue of searches, the admissibility of hearsay and similar fact evidence and bad character evidence. Discussion In general alleged breaches of the European Convention on Human Rights will permit a challenge of the exclusion of evidence under Section 78 of the Police and Criminal Evidence Act. Article 6 of the European Convention on Human Rights guarantees the defendant’s right to a fair trial.1 By virtue of the Human Rights Act 1988, the European Convention on Human Rights now form a part of the substantive law of the UK.2 Section 78 of the Police and Criminal Justice Act provides the trial judge with the inherent jurisdiction to refuse to admit evidence which might unfairly prejudice the accused person. That section specifically provides as follows: “In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."3 Professor Richard Stone maintains that Section 78 of the 1984 Act has given rise to a plethora of case law decisions to the extent that it is almost impossible to ascertain ‘any coherent pattern’ with any degree of certainty.4 Be that as it may, Stone concludes that the underlying theme is one of ‘fairness as fair play.’5 In interpreting the meaning and impact of Section 78 the judiciary remains loyal to the previous House of Lords’ policy statement in R v Sang [1980] AC 402 as enunciated by Lord Diplock as follows: "(1) A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value. (2) Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means."6 In the first case to which Section 78 applied, Watkins LJ expressed the belief that the implementation of this section was merely the statutory adaptation of a residual discretion that the trial judge already had at common law.7 However, the Court of Appeal stated in R v Samuel [1988] 2 All ER 135 that Section 78 was a ‘self-contained provision’ which was deserving of interpretation ‘within its own terms.8 According to Professor Stone there are three main recurring factors in the judicial application of section 78. They are bad faith, impropriety and ‘the effect of such impropriety on the outcome of the case.’9 An example of bad faith was demonstrated in the case of R v Mason [1987] 3 All ER 481. In this case the police exercised what amounted to bad faith when they told the suspect that they had found his fingerprints on a container of inflammable substance near the scene of an alleged arson, although this was not true the suspect confessed. At the trial the judge allowed the confession statement despite the impropriety used by the police in obtaining it. However on appeal, the Court of Appeal held that the deceit used by the police was ‘reprehensible’ and since the confession statement was the only evidence against the accused the conviction was unsafe and unsatisfactory and was therefore quashed.10 In R v Alladice [1988] Crim LR 608 the police refused to permit a suspect access to his solicitor during interrogations with the result that the suspect confessed. The court ruled that there was no evidence of bad faith on the part of the police however: "if the police had acted in bad faith, the Court would have had little difficulty in ruling any confession inadmissible under s 78".11 Professor Stone warns that not every trip employed by police will be automatically excluded by virtue of Section 78 of the Police and Criminal Evidence Act 1984. 12 For instance in the case of R v Christou [1992] 3 WLR 228 police deliberately set up a shop designed to sell jewelry and secretly recorded each of their transactions. The defendant was thereby recorded dealing in stolen property. The Court of Appeal ruled that the police had acted properly as they did not incite the offences and Section 78 would not arise.13 The House of Lords held in R v. Loosely (2001) that the law regarding the impropriety of entrapment is fairly settled and such conduct by police is not a subject for determination under Section 78 of the Police and Criminal Evidence Act 1984. Evidence obtained by virtue of entrapment should be challenged under the substantive law with respect to an application for a stay of the proceedings.14 Lord Nichols went on to say that when accessing whether or not evidence is obtained by virtue of bad faith the court must consider: “Ultimately the overall consideration is always whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into disrepute.”15 Police may act in good faith, but improperly and thereby compromise the admissibility of evidence obtained in these circumstances. Professor Stone submits that there are two main areas of impropriety on the part of the police acting in good faith that have frequently resulted in the exclusion of evidence under Section 78. They are: “…the failure to allow access to legal advice, and the failure to comply with the requirements of Code C as regards contemporaneous recording of interviews, or incriminating statements.”16 In determining whether or not to exclude evidence under the principle of fairness as enunciated in Section 78 the courts in an appropriate case will look at the alleged impropriety on the part of the police in the context of the Police and Criminal Evidence Act 1984 and its Codes of Practice. The court will then take note of: “…the extent to which the breaches were instrumental in obtaining the evidence, or whether the outcome of the case would have been any different if the evidence had been excluded.”17 By virtue of Section 76(2) of the Police and Criminal Evidence Act a defendant can challenge the admissibility of a confession statement on any of the grounds that it was obtained by oppressive means or by inducement.18 According to the ruling of the Court of Appeal in Regina v Fulling 1987 2 All E.R 65 a confession statement is unreliable and should be excluded in evidence at the trial if it was obtained in response to an inducement such as a promise to the accused person that he or she could avoid prosecution if a confession statement was made or if the confession statement was made as a result of hostile and aggressive interrogation techniques.19 A confession statement could also be excluded by virtue of the application of Section 76 if there was a failure on the part of the police to do any of the following: 1) Accurately record what was ultimately said at the interview; 2) Caution the accused person; 3) To permit or allow access to an adult in an appropriate case; and 4) To comply with the Code of Practice as contained in the Police and Criminal Evidence Act in relation to the accused person’s detention for example insufficient rest periods before conducting an interview.20 The rule against hearsay is yet another means of providing an evidential safeguard in respect of a defendant in criminal trials. Cross and Tapper define the rule as follows: “…any assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact or opinion asserted.”21 The Criminal Justice Act 2003 had codified the law relating to exceptions in respect of the admissibility of hearsay evidence. Section 114 permits the admission of hearsay evidence if it is provided for under the 2003 with particular emphasis on Section 118 which allows hearsay evidence in relation to confession statements, rules pertaining to public information and ‘reputation as to character.’22 Section 114 however goes on to set guidelines and safeguards against the admission of otherwise inadmissible hearsay evidence by providing that this evidence should only be admitted if the court is satisfied as follows: a) The proposed evidence has probative evidence b) There is other evidence capable of corroborating the hearsay evidence c) The circumstances justify admitting the hearsay evidence d) The person making the statement is reliable e) The evidence that the statement was made is reliable f) That oral evidence of the hearsay statement can be given and ‘if not, why it cannot’ g) The difficulty with challenging the hearsay statement can be overcome23 The breadth of case law provides evidentiary safeguards against the accused person with respect to the admissibility into evidence similar fact evidence. Similar fact evidence refers to evidence which tends to indicate that the accused person has conducted himself in a manner which is consistent with the conduct alleged in the ongoing criminal proceedings.24 Similar fact evidence is adduced with a view to establishing the defendant’s guilt. However, the current doctrine of similar fact evidence is developed and constructed around the principle enunciated in the early case of Makin v. Attorney General for New South Wales,1894 AC 57. Lord Hershel ruled that similar fact evidence would only be permitted if and only if it was both relevant and was probative of guilt.25 Professor Sir John Smith adequately describes the residual duty on the court when discerning whether or not to admit similar fact evidence. He said: the judge has to weigh the probative value of a series of allegations against the prejudicial effect … If he has to assume that they are true for the purpose of this exercise, they will always be admissible because if they are true, they are conclusive proof of the defendants guilt - the probative value then obviously outweighs the prejudicial effect. Yet if the witnesses have put their heads together to concoct false stories the evidence is obviously worthless"26 Evidence of bad character is provided for in Section 98 of the Criminal Justice Act 2003 and includes: “evidence of a person’s bad character are to evidence of, or of a disposition towards, misconduct on his part, other that evidence which- (a) has to do with the alleged facts of the offence with which the defendant is charged, or (b) is evidence of misconduct in connection with the investigation or prosecution of the that offence.”27 Section 99 abolishes the common law principles applicable to the admission of bad character evidence.28 Evidence of a defendant’s bad character is only admissible if the parties to the criminal proceedings actually consent to adduce the evidence, or it is relevant and will offer an explanation of a matter already in evidence, or the defendant introduces the evidence himself either directly or through cross-examination, or the defendant attacks the character of another person, the evidence is probative of a matter arising between the defendant and a co-defendant or the evidence is necessary to counter a false impression asserted by the defendant.29 It is important to note that Section 101(3) provides as follows: “ The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”30 For the purposes of Section 101(3) above, subsection 1(d) refers to the probative value of the proposed bad character evidence and subsection 1(g) refers to circumstances where a defendant attacks the character of another person.31 Conclusion The general purpose of the evidential rules discussed above is for the purpose of ensuring that criminal matters are not only resolved in fairness to the accused, but in fairness to both sides. The judge’s role in criminal proceedings is to ensure that the trial is conducted in a fair manner and that in the process all of the relevant evidence is presented in the interest of both sides. However, proceedings may lose its fairness if relevant evidence if allowed and it is such that the opposing party can not challenge it.32 The rules of evidence has as its primary purpose the preservation of the integrity of the criminal justice system. Bibliography Criminal Justice Act 2003 European Convention on Human Rights Human Rights Act 1988 Makin v. Attorney General for New South Wales,1894 AC 57 Police and Criminal Evidence Act 1984 Regina v Fulling 1987 2 All E.R 65 R v Alladice [1988] Crim LR 608 R v Mason [1987] 3 All ER 481 R v Christou [1992] 3 WLR 228 R v. Loosely (2001) http://www.publications.parliament.uk/pa/ld200102/ldjudgmt/jd011025/loose-1.htm viewed April 29, 2007 R v. Quinn [1995] 1 Cr App R 480 at 490F R v Sang [1980] AC 402 Smith, Professor Sir John. Commentary on Severance. Criminal Law Review, 1999 Stone, Richard Professor. Exclusion of Evidence under Section 78 of the Police and Criminal Evidence Act: Practice and Principles. [1995] 3 Web JCLI http://webjcli.ncl.ac.uk/articles3/stone3.html viewed April 29, 2007 Tapper, Collin.(2006) Cross and Tapper on Evidence. London, Sweet and Maxwell Tapper, Collin. The erosion of Boardman v DPP’, New Law Journal, August 11 1995, p. 1224 Read More