Law of Evidence Regarding the Application of Electronic Monitoring Equipment - Case Study Example

Law of evidence coursework The misuse of Drugs Act 1971 s.6 provides that it is an offence to cultivate any plants of the genus cannabis.S.8 (2) of the Act provides that it is an offence for the accused to prove that he neither knew of nor suspected nor had any reason to suspect the existence of some fact alleged by the prosecution and which it is necessary for the prosecution to prove to secure a conviction. The police enter Tom’s house whilst he is out, bug his telephone and install a camera having received a tip off that he is growing cannabis plants in his kitchen. After acquiring some evidence the police go to his house, do not identify themselves but call in plain clothes saying ‘’we ,ve heard you ‘ve got plants for sale’’. Tom replied that he had some to sell for a friend. The officers are shown in and identifying the plants informs Tom in respect of the offence. Tom states that he thought the plants his friend had left him to sell were ordinary house plants. Question: Identify the issues in the case. In respect to each issue advise Tom who has the burden of proof and the standard of proof required Introduction In the above scenario, it will be necessary to examine the law in relation to the use of electronic monitoring equipment. This will involve an examination of case law in order to determine whether the use of such equipment would be permitted in this particular situation, as well as the legality of the officers entering his house when he was out. It will also be necessary to discuss whether the methods used by the undercover officers could be regarded as entrapment, given that the officers posed as potential customers in order to get Tom to admit to selling cannabis plants. Since Tom has averred that he did not know that the plants were cannabis, and that they belonged to a friend, it will be necessary to discuss on whom the burden of proof would be placed to prove or disprove this assertion. This can be achieved through analysis of the Drugs Act 1971 as well as previous case law in this area. From this it should be possible to advise Tom in relation to the burden and standard of proof required by himself and the prosecution, in order to prove or disprove the offence. Listening devices In certain situations, the courts have allowed evidence to be adduced where such evidence has been obtained through the use of listening devices or other surveillance equipment. One such case is that of R v Ulcay [2008]1 in which the police officers placed a device in the vehicle of the defendant with the intention of using this to record conversations occurring between the defendant and other suspected conspirators. The messages recorded revealed plans for the illegal immigration of illegal entrants. Even though the police had covertly recorded these conversations, the court still ruled that the evidence should be admissible. One of the major challenges made by defendants with regard to evidence obtained in this manner is that the methods used amount to an invasion of the private life of the defendant. This was the challenge made by the defence counsel in R v Adams [2008]2, however, the court disagreed and ruled the evidence to be admissible. This led to the defendant pleading guilty for which he received a reduced sentence3. Evidence was also allowed to be adduced from a listening device in R v Manders [2007]4, in which the devices were used to prove that the defendant was involved in drug dealing5. Attempts to challenge the use of such devices under Article 8 of the Human Rights Act 1988 have been defeated repeatedly, with the Government accepting that there are certain occasions when such usage will be justified. The power to carry out surveillance of this kind is given under the Regulation of Investigatory Powers Act 2000 s32. In order to be able to rely on this Act the police have to show that the surveillance is either in the interests of national security6, will prevent or detect a serious crime7 or is in the interests of the economic well-being of the UK8. Using s5 of the Intelligence Services Act 1984 a warrant can be issued for devices to be installed in the suspects property. The police need to prove that the information that will be obtained through the use of such devices will be of substantial value in the detection of a crime. The police will also need to demonstrate that there is no other reasonable way of obtaining this information. The police might also be able to rely on s93 of the Police Act 1977 to gain permission to install the equipment9. Evidence that has been obtained using such devices where the proper authority has not been obtained can be excluded under s78 of the Police and Criminal Evidence Act 1984. Authority to use undercover officers to monitor the activities of suspects is given under RIPA 2000 s29. However, if the defendant can prove that he was induced into committing the crime by the undercover officers, it is likely that the evidence will be inadmissible. In R v Sang10, the defendant challenged the charges against him on the grounds that he would not have committed the offence if the officers hadn’t induced him to commit the offence. The was rejected by Lord Diplock stating Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after the commission of the offence, a trial judge has no discretion to refuse to admit relevant admissible evidence of the offence on the ground that it was obtained by improper or unfair means11. The court is not concerned with how it was obtained12. It is no ground for the exercise of discretion to exclude that the evidence was obtained as the result of the activities of an agent provocateur. However, if the defence can prove that evidence was unfairly obtained, an objection can be raised under s78 PACE. This was used in R v Smurthwaite13 resulting in the court concluded that there might be some circumstances where evidence gleaned from an agent provocateur should be excluded14. Similarly in R v Looseley15 Lord Nicholls allowed the defendant to rely on s78 stating ‘it is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment16’. In this case, the police induced the defendant to supply drugs to them, in order to prove that he was involved in drug dealing17. When determining the burden of proof it is important to note the comments made by Viscount Sankey in Woolmington v DPP18, in which he said ‘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.’ However, there are occasions when the burden of proof will be reversed19, which would then have the effect of placing the burden on the defendant to prove their innocence, rather than the prosecution prove their guilt. Such a reversed burden can be seen as unfair as the defendant would not have access to the resources to test evidential findings20. The reverse burden is commonly used in situations where the defendant is better placed to prove their innocence. This is likely to occur in cases where the defendant has had an accident and been charged with driving whilst over the prescribed limit and they are relying on the defence that they had a drink after the accident, not before. This was the defence used in R v Drummond21, where the defendant left the scene and went home. Before the officers attended at his address, the defendant alleged that he had consumed alcohol once he arrived home. Since the police could not prove or disprove this assertion, the onus was placed on the defendant to prove his assertion. Similarly in Sheldrake v DPP22 the accused was put to proof that he could not have driven the vehicle due to his intoxication. As he could not do this, the conviction was upheld. This reverse burden of proof has been used on several occasions23. Defence counsels have argued that this reversed burden offends against Article 6(2) of the Human Rights Act 198824. Where the reversed burden does breach Art 6 defendants are entitled to ask the European Court of Human Rights to intervene25. Although this option is available, very few complainants succeed in there action, which seems to suggest that there is no absolute prohibition on the use of the reverse burden under Article 626. The courts have even allowed the reverse burden to be used when the usage of it will interfere with the presumption of innocence of the accused. In R v Lambert [2001]27 the accused sought to rely on s28 of the Misuse of Drugs Act 1971 to infer that he had no reason to suspect that the package he was carrying contained illegal drugs. It was decided by the court that as he was relying on the statute to prove his innocence the burden of proof should be placed on the defendant to prove that he did not know what was in the package28. If a defendant relies on an exception, exemption, proviso or excuse to prove his innocence, the standard of proof required is on the balance of probabilities29 (Birch, 1988). Generally speaking, the burden of proof on an accused will only be an evidential burden. In order to prove their innocence defendant’s can use evidence from prosecution witnesses or defence witnesses30. An evidential burden only requires the accused to be able to point to some evidence making the issue in question a live issue31. From all of the above it would appear that the use evidence obtained from the listening devices would be admissible, so long as the permission to use the equipment was properly authorised. However, Tom could argue that there has been a breach of his rights to privacy. In relation to the undercover officers, Tom might be able to argue that he would not have offered the plants to the officers if they had not induced him to sell the plants to them. If the courts accept that this amounts to inducement, the charges against him might be regarded as inadmissible. As Tom is asserting that he was not aware that the plants he had in his possession were cannabis plants, the burden of proving this will be placed on him. The burden will be on the balance of probabilities, as was the case in Lambert above. If Tom is unable to prove this, then he would be likely to be found guilty of knowingly allowing drugs to be cultivated in his property. In proving the guilt of Tom, the prosecution would have to prove beyond reasonable doubt that he is guilty of the offences charged. If the evidence has been obtained with the requisite authority, then the evidence gleaned from the listening devices will be able to be adduced in court. Bibliography Allen, C, (2001), Practical Guide to Evidence, 2nd Ed, Cavendish Publishing Ashworth, A and Blake, M The presumption of innocence in English law [1996] Crim LR 306 E Elliott, C, & Quinn, F, (2000), Criminal Law, 3rd Ed, Pearson Education Glazebrook, P R, (2001), Statutes on Criminal Law, Blackstone’s Huxley, P, & O’Connell, M, Statutes on Evidence, 5th Ed, Blackstone’s Jones, T H, (1995), Insanity, Automatism and the Burden of Proof on the Accused 111 LQR 475 Legislating the Criminal Code: Corruption, Law Commission Report 145 (1997) Lewis, P, The HRA 1998: Shifting the Burden [2000] Crim LR 667 Murphy, P, (2002), Blackstone’s Criminal Practice, Oxford University Press Smith. J C, (1987), The presumption of innocence NILQ 223 B Stephen, Sir JF, A Digest of the Law of Evidence, 12th Ed, 1936, Art 147 Tadros, V and Tierney, S [2004] Presumption of innocence and the Human Rights Act 67 MLR 402  Read More