The Presumption of Innocence in English Law - Essay Example

In answering the above there needs to be a discussion on competence and compellability as well as the usage of similar fact evidence, hearsay evidence and the admissibility of any confession. Within the realms of competence and compellability there will need to be an examination of the rules regarding the age of the victim. Competence of witnesses One of the first observations that need to be made when considering the competence of a witness is the rules under the Youth Justice and Criminal Evidence Act 1999. Under this Act there is a requirement that all evidence must either be given on oath or by affirmation. Where the witness is under the age of 14 s55 of the Act removes the requirement for the oath or affirmation. Where it is necessary for the evidence to be given on oath the manner in which the oath is administered must conform to the requirements of s1 of the Oaths Act 1978. In circumstances where the witness objects to the oath or is physically incapable of taking the oath can affirm or swear in the manner prescribed by any other religion1. The courts will accept such affirmations so long as the courts are of the opinion that the manner used is binding on the conscience of the individual2. There are very few people who would be regarded in law as unable to testify. In general terms the inability to testify is applicable in the case of child witnesses. For a child to testify the court has to be satisfied that the child understands the significance and the nature of the oath. Compellability of witness The courts generally hold the view that if the witness is competent they will be compellable. Willes J in Ex P Fernandez3 commented that Every person in the kingdom except the sovereign may be called upon and is bound to give evidence to the best of his knowledge upon any questions of fact material and relevant to an issue tried in the Queen’s courts, unless he can shew some exception in his favour. Before the introduction of the Evidence Amendment Act 1863 s1 spouses were regarded as incompetent to give evidence in civil cases4. The effect of the 1863 Act made them competent and compellable. A defendant cannot be compelled to give evidence in court, but a refusal to give evidence can lead to the court drawing adverse inferences from the refusal. Defendants cannot be compelled to give evidence in court; however, those who opt not to testify can have adverse inferences drawn from their refusal. Under the Criminal Evidence Act 1898 both the judge and counsel used to be allowed to comment on a defendant’s refusal to testify, although the judge also had a duty to warn the jury that they are not entitled to infer guilt on the basis of the silence of the defendant at trial5. With the introduction of the Criminal Justice and Public Order Act 1994 s35(3) such adverse inferences can be drawn by the jury where the defendant refuses to testify. Such inferences can only be drawn if the defendant has pleaded not guilty, is mentally and physically fit to testify and understands the risks associated with choosing to remain silent. The courts have repeatedly held that placing the evidential burden on the defendant is compatible with Art 6(2) of the Human Rights Act 1998 as it does not breach the presumption of innocence6. Children as witnesses S53(3) of the Youth Justice and Criminal Evidence Act 1999 regards someone as being incompetent if in the opinion of the court they cannot answer the questions asked of them in a way that those at the trial can understand. An assessment of the competence of a child witness to testify is achieved through the balance of probabilities test7. Child witnesses can under certain circumstances be required to swear an oath. When deciding whether the oath should be taken the court will consider the provision under s55(2) of the Act which states that the child must be 14 or over and must have a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath. The courts will allow unsworn evidence if the child is not able to take the oath as stipulated above8. Similar Fact Evidence In law there is a presumption of innocence in that defendants are presumed to be innocent until the prosecution can prove their guilt. Similar fact evidence is now more widely used since the introduction of the Criminal Justice Act 2003. The similar fact principle was first formulated in the case of Makin v. Attorney General for New South Wales, 18949 where Lord Herschell outlined the exceptional circumstances when similar fact evidence should be admitted. In this case he stated that in order for such evidence to be adduced the evidence should be relevant and probative. In this case the defendants who were husband and wife were accused of murdering a baby they had been fostering. At trial evidence was adduced of other murders they had supposedly committed. The judge felt that the improbability of an innocent explanation being available for the other 12 bodies that had been found meant that the court was right to allow this evidence to be adduced. A similar decision was reached in R v Smith, 191510 where the defendant was accused of one murder but evidence relating to three other women whom he had been married to but who had died in similar circumstances was allowed to be adduced. In the more recent case of R v PK [2008]11 the court allowed the evidence of complaints many years ago to be adduced. The defendants attempted to argue that this was unfair as no complaint had been made before. The defendants tried to argue that those complaining of historic abuse were colluding with the others in order to assist in getting a conviction. The appeal was dismissed upholding the right of the judge to adduce such evidence where it demonstrated that such evidence was of a probative nature and showed a propensity to commit similar crimes. Similar fact evidence was also allowed to be raised in the case of R v O [2006]12 in which the prosecution relied on evidence of a complaint made by the stepdaughter of the accused whilst she was living at a friend’s house. The victim also made a further complaint to her older brother 4 months later which was also allowed to be adduced at court as evidence of ongoing abuse. In a report published by the Home Affairs Committee in October 2002 entitled The Conduct of Investigations into Past Cases of Abuse in Children’s Homes it was recommended that there should be a reform of the law on similar fact evidence. The recommendations were that similar fact evidence should be viewed in terms of ‘striking similarities13’. S100 defines the times when evidence on the bad character of a non-defendant can be adduced. Such evidence can be adduced if it contains important explanatory evidence or has substantial probative value in relation to a matter14… in issue in the proceedings. Alternatively such evidence can be adduced if all parties to the proceedings agree to the evidence being admissible. When adducing evidence under the probative value criteria the court will take into consideration the nature and number of events …to which the evidence relates and when those events…are alleged to have happened15. If the evidence to be adduced is in relation to misconduct there must be a similarity between the previous misconduct and the present allegation16. When deciding on the admissibility of bad character evidence against the defendant the court can adduce such evidence if all parties agree…the evidence is adduced by the defendant himself…it is important explanatory evidence...is relevant to an important matter in issue between the defendant and the prosecution17… has substantial probative value18… is evidence given to correct a false impression given by the defendant or the defendant has made an attack on another person’s character. When using bad character evidence it is the duty of the judge to direct the jury as to how the evidence of bad character should be viewed and the relevance they should make of the evidence19. Under the Criminal Justice Act 2003 s100 bad character evidence of a non defendant is only admissible if (a) it is important explanatory evidence, (b) it has substantial probative value in relation to a matter which— (i) is a matter in issue in the proceedings, and (ii) is of substantial importance in the context of the case as a whole, or (c) all parties to the proceedings agree to the evidence being admissible In the case of R v Edwards (2005)20 Rose LJ gave guidance on what should be contained in the summing up of a case where evidence of bad character has been adduced. In this case Rose stated that summing up must contain i) a clear warning to the jury against placing undue reliance on previous convictions, which cannot, by themselves, prove guilt21; and (ii) an explanation as to why the jury has heard the evidence and the ways in which it is relevant22 to and may help their decision, bearing in mind that relevance will depend primarily, though not always exclusively, on the gateway in section 101(1) of the Criminal Justice Act 2003, through which the evidence has been admitted. Having decided on which ones can be disclosed to the jury the judge has a responsibility to give the jury guidance on the relevance of the evidence as well as the inferences they are entitled to draw from the previous convictions. Hearsay evidence Hearsay evidence has been defined under the Civil Evidence Act 1995 s1(2) as (2) In this Act— (a) “hearsay” means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated; Lord Havers in R v Sharp (1988)23 described hearsay evidence as ‘an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted.’ Hearsay evidence can be excluded from a hearing if the person who made the initial statement is unavailable or refusing to attend court to give evidence orally. A ‘statement’ or ‘assertion’ is generally defined by the courts as an ‘utterance’ which has been made in a manner which ‘deliberately conveys the impression that it is made with the object of saying something that is true24.’ The hearsay rule applies equally to the production of written words as well as spoken words. Hearsay evidence can be adduced if the person who originally made the statement has died before being able to give evidence25. In order for the statement of a dead witness to be admissible under s23 of the Criminal Justice Act 1988 the statement must be in documentary format, it must have been made by a person and direct oral evidence of the content of the statement must be admissible. Admissibility of the confession When deciding whether the confession made by the accused is admissible there needs to be an examination of the conditions under which the confession was given. Under s76 of the Police and Criminal Evidence Act 1984 confessions are allowed to be adduced in court so long as such a confession is relevant to the matter at hand. Confessions that are alleged to have been obtained through oppression would not be admissible in court26. In the particular scenario above it could be asserted by the defence that the confession made to Jake in front of Angela was obtained by oppression as Jake was holding a knife against the accused when he confessed to touching Jake’s sister. This would mean that the court would be likely to order that the confession was inadmissible as it was obtained under duress or threat. PACE 1984 excludes the use of confessions were such admissions were made whilst the accused was not being formally interviewed. The comments made by the accused whilst sat in the police car could therefore not be used as a confession. The officers might however be able to adduce the comments made by the accused if the officers made a note of the comments in their police notebooks at the time the accused uttered the words. The notebooks could not be used to prove that he had confessed but could be used as a contemporaneous record of the demeanour of the accused when he was arrested. Conclusion From the above it can be concluded that Samantha would be able to give sworn evidence of the attack against her as she is over the age of 14. All the other child witnesses are under 14 but are likely to be allowed to give unsworn evidence. Under the ruling for similar fact evidence the historical abuse reported by Samantha and Sally is likely to be admissible as it shows a propensity on the part of the accused to commit the same offence in similar circumstances on all his victims. The evidence of Angela can be admitted as hearsay evidence as she has since died in a car accident. Unfortunately her evidence confirms the confession of the accused to the attacks, but this confession is likely to be declared as inadmissible as it was obtained under threat. The off the record confession made by the accused is also likely to be ruled as inadmissible although the court might allow the officers notebooks to be admitted as exhibits if they had made a contemporaneous record of the accused’s comments in their notebooks. Bibliography Allen, C, Practical Guide to Evidence, 2nd Ed, 2001, Cavendish Publishing Ashworth, A and Blake, M The presumption of innocence in English law [1996] Crim LR 306 E Criminal Justice Bill, House of Lords Briefing, Part 11 Chapter 1, Evidence of Bad Character, June 2003 Elliott, C, & Quinn, F, Criminal Law, 3rd Ed, 2000, Pearson Education Glazebrook, P R, Statutes on Criminal Law, 2001, Blackstone’s Huxley, P, & O’Connell, M, Statutes on Evidence, 5th Ed, Blackstone’s Law Com No 273, Evidence of Bad Character in Criminal Proceedings: A summary, 9 October 2001 Murphy, P, Blackstone’s Criminal Practice, 2002, Oxford University Press Stephen, Sir JF, A Digest of the Law of Evidence, 12th Ed, 1936, Art 147 The erosion of Boardman v DPP’, New Law Journal, August 11 1995, p. 1224 Table of Cases Chandrasekera v R [1937] AC 220. Ex P Fernandez (1861) 10 CBNS 3 Makin v. Attorney General for New South Wales,1894 (AC 57, 65). R v Kemble [1990] 1 WLR 1111 R v O [2006] EWCA Crim 556; [2006] 2 Cr. App. R. 27; [2006] Crim. L.R. 918 R v PK [2008] EWCA Crim 434 R v Sharp (1988) 86 CR App R 274 R v Smith, 1915, (11 Cr App R, 229), R v Wickham (1971) 55 Cr App R 199 Table of Statutes Criminal Justice Act 1988 Criminal Justice Act 2003 Evidence Act 1851 Oaths Act 1978 PACE 1984 Youth Justice and Criminal Evidence Act 1999 Read More