Law Evidence, Ian Dennis Argument and the English Law - Case Study Example

Part One This research will begin with examining the THREE cases of obtaining evidence as confessions.,illegally, or improperly obtained evidence and silence as evidence put forth in Ian Dennis argument. The argument will be constructed in light of the laws that govern each individual case and conclude with the research. Improperly obtained evidence- The English Law in its fairness decides it is rational to exclude improperly obtained evidence so England's policy was to include the evidence regardless of the source or how it was obtained. The most frequently quoted authority was the 1861 decision of R v Leatham where Crompton J said it mattered not how you get it, if you steal it even it would be admissible in evidence (Osborn,1). Furthermore, the same article stated it was up to the judge to decide whether to exclude evidence in a criminal case in that it would be unfair to the accused(1). So the general view is that evidence obtained illegally was justifiable as long as it did not interfere with the accused rendering the trial unfair. So although Dennis states that we could include inadmissible evidence, it does not in essence be correct with the system in its fairness. However, Osborn argues that since the courts have been unwilling to set down guidelines as far as the interpretation of the section on improperly obtained evidence therefore we "are left to analyze the case law in order to predict in what circumstances the discretion may arise (1). Here the argument supports Dennis'claim that this form of retrieving evidence can never be lawful since we are left to decide the accused outcome based on the circumstances that are created. "Early cases where the court excluded evidence under section 78 invariably involved confessions, which arguably would have been excluded at common law in any event, on account of their inherent unreliability (Osborn,76). Evidence obtained in this fashion suggest quite evidently as Dennis stated they lack the moral functions even though it is evidence but we still have to uphold the law. In R v Nathaniel the accused had given a blood sample four years earlier when being investigated for two other rapes. The police had told him that the sample would be destroyed if he was found not guilty of those crimes. When due to an administrative error it was not, and was later used to convict him of a third unrelated rape, the Court of Appeal excluded the evidence."(Osborn,82) There is the universal issue of justice and fairness to both parties in the trial . English judges are not prompt to exclude real evidence which has been illegally obtained (Osborn, 78). There i s considerable favoritism that the courts have a right to every piece of evidence that could likewise tip the scales in favor.(78) The court decides whether they want to make the evidence legally feasible or dismiss it altogether. Their decision though fair in its essence lacks lacks the justice put forth by Ian Dennis for the outcome as to the verdict."Equating a criminal trial to a sporting match which has no correct outcome and only an actual one, demeans the court process and necessitates forsaking the central purpose of the trial-the just determination of guilt or innocence."(Osborn, 80) So in the bargain when you obtain a conviction it can never be legal because of the type of evidence involved. Andrew Choo gave us three possible reasons behind exclusion of illegally obtained evidence on the grounds of unfairness-deterrence, compensation and repute.(Osborn,97). So in the meantime these hinder reliability, protection (which includes compensation of the victim and broader considerations of judicial integrity.(97) This undoubtedly supports Ian Dennis' arguments that the legal system here cannot be expressed openly. Mary Hunter claims that a search of LEXIS reveals that between January 1986 and May 1992, there were 106 such cases, giving credence to the claim that PACE has widened the scope of the common law discretion. Judges excluded evidences predominantly in Confessions, on grounds which had nothing to do with fairness of the proceedings.(Osborn,105) So in essence Dennis claim that though the courts may be correct in their decisions they are not necessarily fair to the trial. "This is because English judges believe their primary role is to determine guilt or innocence of the accused and that they should not abrogate this in pursuit of broader public policy which conflict with their primary duty.(111) What Dennis in fact conveys to us is that in fulfilling a court's primary objective in order to establish the truth innocent until proven guilty, they do not want anything to hinder their primary objective. English law is different in the sense that the greater common good is placed above the rights of a particular individual.(Osborn,111) Many critics of this law have gone so far as to argue that a proclivity towards announcing a healthy principle, while at the same time, proceeding to disregard it under a camouflage of legal niceties.(116) Here most conclusively there is the lacking of moral authority that was put forward by Dennis in his argument. Silence as evidence , "the mistreatment of silent subjects to induce a confession was common and the refusal to answer questions was used as evidence against them. The right to silence was well established by case law including the 1972 Criminal Law Revision Committee. (Watner,1) In this format,criminals enjoyed more protection under the law than those that were innocent(1) Here again Ian Dennis argument argues true that although facts are stated they are sometimes misconstrued to get a conviction on the defendant. This silence can be viewed as the defendant failing to mention earlier in his silence but could be seen later as fabrication.(1) If and when the defendant waives the right to silence, he or she is subject to cross examination whose goal is to present the defendant in the worst possible light.(1) (1000 words) Part Two In the rape incident, Terry is charged with the rape of Hilda with whom he was having an affair. But Hilda does not immediately report the incident. She waits for about two weeks. Under the English law, Hilda is given immunity-this is a right she enjoys. On the personal front, her sister Joan is the one who encouraged Hilda to step forward and seek help from the police. In this case, she is a victim of a crime committed against her. "The 1972 Criminal Law Revision recommended that inferences should be drawn from silences, with changes that were introduced in1984, deriving from the Royal Commission on Criminal Procedure report of 1981. However, in the 1990s, the right to silence had been reduced considerably. The act allows for negative inferences "as seem proper" to be made if a defendant fails to mention a fact later on in defense that could have reasonably be given earlier, seen as evidence of later fabrication."(Wetner,1) The inferences a jury can draw from Terry's earlier silence or failure to mention crucial facts are given in the English Model Directions, derived from R.v.Cowan 1996),R.v.Brichall (1999) (1). Furthermore it is generally believed that the majority of convictions are derived from or substantially aided by, self incrimination.(1) Since Hilda did not step forward earlier, a lot of the evidence might not be there on her as far as checking for sexual assault or DNA of Terry. So at this point one must rely on factual evidence starting with questioning of Terry regarding his whereabouts. Although Terry at first denied seeing Hilda on that day, he later admitted to being in London at the time of the incident. Here though his lawyer could well argue that Terry might have been coerced into a confession due to his lying and his wife admitting that he was home on that particular day. Again, his wife Freda has the right to decide whether she wants to testify in the trial or not, and she decides not to testify leaving Terry with more leeway for his trial due to lack of sufficient evidence. There is also the issue of recovered memory as evidence-that because Hilda stepped forward later on , her actual account of the incident might not be as vividly recalled. Also if something as heinous as this occurs to us, psychologically speaking, we tend to block it out of our minds. We don't usually recall prominent details or features of the assailant. Since Hilda came forward voluntarily, her confession can be accounted as evidence. "The courts in England recognized two constitutional bases for the requirement that a confession be voluntary to be admitted into evidence:The Fifth Amendment right against self incrimination and the Due Process Clause of the Fourteenth Amendment."(Dickerson,1) Freda also had her rights protected under the Common Law Rule. The court adopted the common-law rule, the rationale was the unreliability of the confession's contents when induced by promise a threat of harm." Freda felt threatened by Terry's brothers whom she feared were violent and would come after her. Then in Bram v United States the court assimilated the common-law rule as a command of the Fifth amendment and the authorities had warned the suspect of his right to remain silent; Terry goes forward and makes a statement that he was out of town to which he later retracts his story. But such confessions are excluded from criminal trials on the ground of a violation of the Fifth Amendment's protection against self-incrimination. Another issue that needs to be examined is the credibility of Terry. Maybe he was out of town, could the scratches on his face mentioned by his wife appeared some other way' "The assumption is that the truth is likely to emerge from the open contest between the prosecution and the defence in presenting the evidence and opposing legal arguments with a judge acting as a neutral referee and as the arbiter of the law. To maintain fairness, there is a presumption of innocence and the burden of proof lies on the prosecution(Watner). Since Hilda came forward with her accusation, the burden of proof lies with the prosecution. So Terry under English law is presumed innocent until proven guilty of the charge that he is charged with. The author Wetner states that under the Sexual Offences Act 2003, which only was enforced on May 1 2004, rape under English law was redefined from "non-consensual vaginal or anal intercourse and is now defined as non-consensual penis penetration of the vagina, anus or mouth of another person. The changes also made rape punishable with a maximum sentence of life imprisonment. The statute also includes a new sexual crime, called "assault by penetration",which also has the same punishment as rape. This is a serious offense which could possibly carry a life sentence and so the legal issues need to be weighed accordingly to make sure justice is served in the best interests of everyone involved and otherwise. The law of evidence governs the use of testimony(e.g. Oral and written statements and other documentary material which is admissible in a court of law (Wetner). The confession made by Hilda that she was raped by Terry.. "In systems of proof based on the English common tradition, almost all evidence must by sponsored by a witness, who has sworn to tell the truth"(Wetner). Since there are no witnesses who have stepped forward other than Terry's wife who refused to testify, there is not much out there for Hilda in terms of key witnesses to her case. Freda's admission is deemed hearsay for "it is an out of court statement offered to prove the truth of the matter asserted"(Wetner,1). Also because of the fact that Hilda did not come forth with her story immediately there is no physical evidence such as checking for DNA or hospital admissions to detect use of physical force used by Terry. (1000 words) Part Three In light of the proposition put forth by McEvan that"not only should society at large regard the criminal trial as fair, the defendant must perceive it as fair also".(Jenny McEvan,"The Adversarial and Inquisitorial Models of Criminal Trial" in the Trial on Trial.Hart 2004 (page 69). This is only fair to say that we all have rights under the English Law as citizens, but this does not stop here just because one is in a criminal court. The defendant too has rights just as much as society has rights and want to see justice served. Drawing on my study of the English criminal evidence, under the Amendments, a defendant has certain rights. However, this was not always the case. In British courtrooms,"defendants were forbidden from testifying under oath in criminal cases. Those lacking religious beliefs were also excluded"(Allen,1).However, by the end of the century towards the twentieth century, numerous statutory reforms gradually eliminated these exclusionary rules about the competence of testimony. Criminal defendants were only now welcome to give evidence.(1) Allen provides us with incredible details about the statutes that went into force. One of the book's central goal is to debunk the conventional wisdom that credits Jeremy Bentham as intellectual godfather of this array of legislative changes (Allen,4). In Allen's books, he aims to replace the story of "one man and the legislation that his writings inspired"(7) with a more complex tale, one in which the leading roles are played by broader social transformations such as increasing secularism;and growing concern over the potential injustice caused by the exclusion of key witnesses or innocent defendants.(4) Here we clearly see the shift of the legislation where the focus shifts from society to being concerned over the defendants right to a fair trial. We see a tremendous surge of conscious rise in the English law where the law has inadvertantly taken a dramatic turn for the better of everyone involved. "Allen succeeds in showing that Bentham's ideas were not the exclusive, or even the most important, cause of the evidentiary reforms. Benthamite notions were not accepted in full by any of the reformers . Moreover, Bentham's criticisms were, at root, directed at all technical rules of evidence, all of which he saw as enriching "sinister interests" and giving power to "Judge & Co.(54). In fact, as Allen show, reforms generally occurred with the consent and approval of substantial portions of the legal establishment and the judiciary, not against their wishes. Allen suggests some deeper causes for reform entirely separate from Bentham and his ideas. And Allen identifies the growing commitment to notions of individual responsibility as spurring responsibility as spurring reform of the prohibition against defendants' testimony (Allen,173-175). So with the reformation that we see argued in Allen, we can see a shift in the interests of lawmakers which support McEvan's statement that the defendant also has to view the trial as fair. When applying concepts to the judicial system, it has to ensure that society and the defendants rights have not been violated. It applies equally in this to say that the victim also has just as much rights to perceive a fair and just trial and the appropriate laws have been enacted. The turn of the twentieth century has laws that support the theory put forward by McEvan about criminal trials and they do protect the rights of society, the greater good, the individual and defendant and victim in all cases. When we even examine the issues in the rape incident with Terry and Hilda, we find the defendant has rights that were not necessarily available the century before to a legal trial. "To protect the interest of those who are worst off, they would first make sure that everyone's basic rights -liberty of conscience, due process- were protected"(1). We would have a public outcry if the interest of society as well as the individual and the victim were not met. It would not just be morally wrong, it would be justifiably unfair. We have a moral obligation to make sure the legal system upholds these fundamental rights and values of the human person. If the defendant perceives the trial as unfair, the case could be tried again wasting the taxpayers time and money, not to mention costly legal fees and time. Hence, it would be in the best interest of everyone to make sure justice is served with regards to the defendant, society, the victim and everyone involved. We as a society cannot be biased by thinking that the person is a criminal and so justly eeds to be punished based on their confessions or their silence as evidence or for that matter whatever evidence is put forth legally; it is not right to perceive them at that point as any less human with lesser rights given their current situation. I believe the English laws today do take this fact into consideration. We also as a society need to feel that our system works both for the individual in question and also for the lawmakers that make these laws. Only then can we truly have a fair trial in the actual sense of the word. Drawing on my study of criminal law, there have been various amendments and laws passed under the English constitution. And these laws have come about due to people realizing that what worked in the earlier century may not be applicable today. However, in order for a trial to have a favorable outcome, it must have a favorable trial where all the characters in the trial and outside view it as fair. A point to be noted is that " contrary to popular belief, there is no right to appeal at any stage in UK court proceedings to the European Court of Justice. Any court in the UK may refer a particular point of law relating to European law to the ECJ for determination(Wikipedia). "It is not possible to appeal the decision of any court in England to the European Court of Human Rights. Although it is frequent to hear media references to an"appeal" being taken "to Europe", what actually takes place is rather different. Also in English law does not have sovereign law-making powers and the legal system administered through both civil and criminal courts remains unified (Wikipedia) This is an important fact in the judicial system, that although there are rights for the defendant and the victim including society, they cannot appeal if they want to. So in essence their rights have been restricted. But a lot of people do not understand this significant fact because many a time an issue goes to court that is complex and a decision may be handed down that is too harsh or unfair, and the defendant should have a right to contest or appeal the court's decision-after all, they too are human and can make mistakes or do we put them above the law' McEvan sees this as a need not so much as a want that society's obligations have to be met. The truth is we will always be battling these issues. So in answer to our study-do the current laws in the study of English criminal evidence support the rights of the defendant, society's interests and the victim' Yes , they do support these groups interests. "In 1998 the Human Rights Act makes it unlawful for a public authority to act in a way which is incompatible with a convention right, where a public authority is any person or body which exercises a public function, expressly including the courts but expressly excluding Parliament(Wikipedia). There have been many changes to the English law : in April 2006, the changes were made to the criminal procedure rules by the criminal procedure Amendment rules 2006 which included amended forms of application and order for a preparatory hearing and a notice to introduce hearsay evidence (Wikipedia). This makes the procedure much more efficient for those who are going to a criminal trial. So in tying all these arguments together that confessions, illegally obtained evidence other than confessions and silence as evidence have to have a strong conviction in order to be legitimate. Hilda had charged Terry with rape based on a version of delayed confession as evidence of Terry's crime, however, his admission is not admission that he did commit the offense. There are many cases of evidence that need to have been examined in order to come to a sound decision. And lastly our current laws in the English system do uphold the interests of both society, defendant and victim in question. Bibliography Allen, Christopher. The Law of Evidence in Victorian England. Dickerson, Charles.Charles Thompson Dickerson v United States.Cambridge Press University,1997. Osborn,Debra. Evidence in the United States, Canada, England and Australia,Murdoch,2000. Wetner, Carl. The Ultimate Protector of Individual Rights.Wikipedia,2006. Read More