Oral Presentation: Principle of Evidence - Essay Example

s Presentation This is an application on behalf of Elizabeth and Fiona, defendants in the proceedings. The application is for the exclusion of the following evidence: 1) Confession statements of Elizabeth and Fiona (“Exhibits 1 and 2”); 2) Exclusion of the Elizabeth’s statements in relation to Fiona’s culpability for the offence; and 3) Exclusion of evidence of the defendants’ previous convictions (“Exhibits 3 and 4”). Elizabeth and Fiona stand accused of burglary and I shall address the exclusion of evidence in relation to each defendant respectively. 2. Submissions on behalf of Elizabeth. Elizabeth makes her application on various grounds, which are helpfully outlined in the skeleton argument filed on her behalf. Firstly, the skeleton refers to the fact that Elizabeth had a limited understanding of English and therefore she should have been accompanied by an interpreter in the interviewing room. Additionally, the skeleton refers to the fact that Elizabeth was questioned continuously for four hours without any break for food or drink, which clearly created a significant risk of any subsequent answers given by her being unreliable. As such, it is submitted that the confession evidence in Exhibit 1 is entirely prejudicial to a fair trial and without true probative value. It is further submitted by the Defence that there are other elements of the evidence in Exhibit 1 subject to the implications of being unfairly prejudicial to a fair trial and being without true probative value. Firstly, the officer interviewing Elizabeth was DS Hutton. The skeleton points out that during questioning, DS Hutton shouted and threatened Elizabeth, who was extremely intimidated. Therefore it is submitted by the Defence that any subsequent confession evidence in Exhibit 1 is entirely prejudicial to a fair trial and again, without true probative value. With regard to Exhibit 3, it is submitted that the defendant was at home with her fiancé James at the time the offence was committed and was not therefore at the place where alleged offence took place. In accordance with the rules of disclosure, the defence has submitted an alibi statement of the defendant’s fiancé to the Prosecution. Accordingly, it is submitted on behalf of the defendant that evidence of the defendant’s previous convictions should not be admitted on the basis that it will have an unfair prejudice on the trial on grounds that admission of such evidence may lead the jury to reach the same conclusion of the confession evidence in Exhibit 1 and therefore Exhibit 3 causes unfair prejudice to the Defence. It is further submitted on behalf of the defendant that the admission of Exhibits 1 and 3 will prejudice the defendant’s fundamental right to a fair trial and the right against self-incrimination. 3. Submissions on behalf of Fiona Fiona makes her application on various grounds, which are helpfully outlined in the skeleton argument filed on her behalf. Firstly, the skeleton refers to the fact that Elizabeth implicated Fiona as being responsible for the burglary, however it is submitted on behalf of the defence that to include this evidence will result in unfair prejudice and should not be given probative value. It is further submitted that by law, Elizabeth’s statements regarding Fiona’s alleged involvement in the offence are not permitted. Additionally, Fiona has been categorised to have a mental age of 12 and was interviewed without the presence of an appropriate adult. Furthermore, Fiona was prevented and delayed from having access to an independent legal advisor. Accordingly, it is submitted on behalf of the defendant that the manner in which the confession was obtained clearly renders Exhibit 2 unfairly prejudicial and without true probative value and should therefore be excluded. Furthermore, Fiona was told by the interviewing police officer that she would be treated leniently if she confessed therefore any subsequent confession was clearly caused as a result of the officer’s inducement. It is further submitted on behalf of the defendant that the confession evidence in Exhibit 2 is entirely prejudicial to the defendant and without true probative value. With regard to Exhibit 4, it is submitted that evidence pertaining to the defendant’s previous convictions should not be admitted on the basis that they will have an unfair prejudice at trial on grounds that admission of such evidence may lead the jury to reach the same conclusion of the confession evidence in Exhibit 2. Therefore, it is submitted that Exhibit 4 should not be admitted. It is further submitted that the admission of Exhibits 2 and 4 will prejudice the defendant’s right to a fair trial and the right against self incrimination. 4. In conclusion, the submissions of the defendants can be summarised as follows: Exhibit 1 is unsuitable for admission to the jury as evidence against Elizabeth as it was obtained in circumstances which render the substance of confession unfairly prejudicial to the defendant and unreliable. Moreover, Elizabeth’s poor command of English and absence of an interpreter further questions the validity of her confession. Similarly, Exhibit 2 is unsuitable for admission to the jury as evidence against Fiona as it was obtained in circumstances where she was induced to make confession and without the presence of an appropriate adult. Elizabeth’s statement in Exhibit 1 purporting to implicate Fiona for commission of the offence should not be admitted on grounds of unfair prejudice and legal prohibition on the admission of co-accused statements against the other. Additionally, the evidence of both defendants’ previous convictions for similar offences in Exhibits 3 and 4 will be unfairly prejudicial to the right to a fair trial and the right against self-incrimination and therefore ought not to be admitted. With regard to Elizabeth, this is further supported by the alibi statement of Elizabeth’s fiancé James adduced by the Defence in respect of Elizabeth’s exact location at the time of the offence. Those are the submissions by the Defendants Elizabeth and Fiona in relation to this application to exclude evidence. 5. The relevant law I need now to refer to the relevant law. Firstly, the relevant law regulating the detention, treatment and questioning of persons by police officers in the UK is enshrined in the Police and Criminal Evidence Act 1984 (PACE) and Code of Practice C (Code C). With regard to the confessions evidence in Exhibits 1 and 2, Section 82 (1) of the PACE states that a confession is “any statement wholly or partly adverse to the person who made it” regardless of whether it was made to a person in authority and whether made in words or conduct. There is no issue in the current case that the defendant’s statements constitute confession evidence within the section 82 definition. The first issue that arises is whether the information obtained regarding confessions is admissible. When considering admissibility of evidence in criminal trials, the relevant test under Section 78 of PACE is whether to include such evidence would so adversely affect the proceedings that it ought not to be admitted. Under the common law, the general rule regarding admissibility is set out in the case of R v Leathem1, which provides that the manner of obtaining evidence does not exclude admissibility per se. The test of admissibility is whether the evidence is relevant. Lord Fraser asserted in the case of Fox v Chief of Gwent2 that “the duty of the court is to decide whether the appellant has committed the offence with which he is charged and not to discipline the police for exceeding their powers3”. However, whilst there is there is no rule of exclusion per se, it is nevertheless open to the court as an exercise of discretion to exclude improperly obtained evidence if its admission would be unfair under Section 78 of PACE. Section 78 is drafted in broad terms and permits application in a variety of scenarios. It is submitted by the Defence that the essential issue for the court to determine under section 78 is the “circumstances in which the evidence was obtained”. It is implied in section 78 (1) of PACE that it is possible for the manner in which evidence was obtained to result in its exclusion. This is further supported by the decision in Matto v Wolverhampton Crown Court4 where police acted in bad faith by using the test results of earlier involuntary provision of breath samples to the police who had been acting mala fides. Furthermore, breaches of the PACE accompanying Codes of Practice can also require the section 78 discretion to be used in the event that such breaches are significant and substantial5. Firstly, under section 58 of PACE and paragraph 11.2 of Code C, immediately prior to the commencement of any interview at a police station, the interviewing officer must remind the suspect of his entitlement to free legal advice. Whilst the offence of burglary is a serious arrestable offence and section 116 of PACE permits delay of access to legal advice up to 36 hours, it is questionable whether the defendants were even made aware of their rights to legal advice in the current scenario. Moreover, in order to rely on section 116 of PACE, the police have to prove that they reasonably feared one of the contingencies referred to in section 58 (8) of PACE would arise. However, it does not appear on the basis of the facts provided that the contingencies listed in section 58(8) of PACE were applicable to justify the delay of legal advice to the defendants. Whilst it is accepted that a wrongful delay in obtaining legal advice will not render automatic exclusion of the confession under section 78 of PACE, in the case of R v Alladice6, the Court of Appeal stressed that influential factors in excluding evidence under section 78 of PACE were whether or not the police acted in bad faith and whether the presence of a solicitor would have made a difference to the defendant, which is clearly relevant to the defendant’s position. Additionally, the failure to provide any food or water and a break to the defendants during questioning means the inspector did not follow the PACE Codes of Practice. Code C specifically requires that detainees be given rest breaks and Code 12. 8 clearly provide that “breaks from interviewing should be made at recognised meal times or at other times to take account of when an interviewee last had a meal. Short refreshment breaks shall be provided at approximately two hour intervals”. The only exceptions to this are in the event that there is a: “- Risk of harm to people; - Serious loss of or damage to property; - Otherwise prejudice the outcome of the investigation.” It is submitted that these circumstances were not applicable in the current scenario and the breach of the Code C was material and unfairly prejudicial to the defendants. Furthermore, the restriction and delay in providing legal access upon request is in breach of Code C section 6.5 and reflects adversely on the fairness of the proceedings, due to its material contribution in that Elizabeth and Fiona may not have made the confessions had a solicitor been present. Moreover, Code C, section 13.1 provides that “Chief Officers are responsible for making sure that appropriate arrangements are in place for the provision of suitably qualified interpreters for people who do no understand English”. Code 3.12 further asserts that “if there is doubt about their ability to understand English, and the custody officer cannot establish communication, the custody officer must…call an interpreter”. However, in the current scenario the custody officer responsible was clearly in breach of Code C in failing to provide Elizabeth with the assistance of an interpreter. Moreover, Elizabeth’s inability to properly understand English renders her a vulnerable suspect under 11.18 of Code C, which further provides that “a person who has difficulty understanding English” may not be interviewed if an interpreter is not present. It is evident that the custody officer did not take sufficient measures for the exclusion of an interpreter to be permitted under the exceptions in 11.1 of Code C. Accordingly this clearly questions the circumstances under which Elizabeth’s confession was obtained and should be considered in exercising the discretion under section 78. Similarly, Fiona had a mental age of 12 and comes within the definition of being a “mentally vulnerable person” under PACE and Codes of Practice. 11.15 of Code C expressly provides that any person who is mentally disordered or mentally vulnerable “must not be interviewed regarding their involvement or suspected involvement in a criminal offence or offences, or asked to provide or sign a written statement under caution or record of interview, in the absence of the appropriate adult”. The failure to ensure that Fiona was accompanied by an appropriate adult is not only in breach of Code C, but further points to bad faith, which should be taken into account in exercising the discretion to exclude Fiona’s confession under section 78 of PACE. Additionally or alternatively, section 76(2) of PACE provides that “if in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented that to the court that the confession was or may have been obtained: a) by oppression of the person who made it; or b) in consequence of anything said or done, which was likely, in the circumstances existing at the time, to render unreliable any confession which might have been made by him in consequence thereof”. For exclusion on grounds on section 76 (2) (b), there is no need for police impropriety, however bad faith can constitute sufficient grounds. In the case of R v Walsh7 it was held that bad faith might make a substantial or significant a breach which might not otherwise do. In the case of R v Alladice8, the Court of Appeal provided guidance on bad faith and stated that “if police have acted in bad faith, the court will have little difficulty in ruling a confession inadmissible under section 78”. With regard to exclusion on grounds of oppression, if accepted by the judge as a possibility, the burden of proof is on the prosecution to prove beyond reasonable doubt that it has not been so obtained. Under section 76 (2) (a) if the prosecution are unable to establish beyond reasonable doubt that the confession was not made as a result of oppression, the confession will be inadmissible even if there is plenty of other evidence in the case confirming reliability. Section 76(8) of PACE defines oppression including “torture, inhumane, or degrading treatment, and the use or threat of violence (whether or not amounting to torture)”. It is submitted on behalf of the defence that DS Hutton’s conduct during Elizabeth’s interview could was degrading and could be interpreted as a threat of violence and thereby constitutes “oppression” within the section 76(8) definition. In the case of R v Fulling9, the Court of Appeal accepted the Shorter Oxford dictionary definition of oppression as the “exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc or the imposition of unreasonable or unjust burdens10”. The court further added that it would be hard to envisage any circumstances in which oppression would not entail some impropriety on the part of the interrogator. On this basis, it is submitted that this further supports the submission that DS Hutton’s conduct constituted oppression for the purpose of Section 76(2) in applying inappropriate pressure on Elizabeth. Section 76 further requires that a causal link must be established between threats and the confession and confirm the threat and the illness operated in his mind at the time of the confession. Moreover, one’s own mental state may be part of the circumstances under section 76 (2)(b). This was further evidenced in the case of R v McGovern11, where it was held that the physical condition and vulnerability of defendant with low intelligence were part of the background against which the submission had to be considered. Moreover, in the case of R v Everett12it was suggested that certain people have a psychological makeup which makes it difficult for them to resist the pressure of interrogation. With regard to the current scenario, Elizabeth didn’t understand English, felt intimidated and was deprived of access to legal advice. She was further deprived of food and drink and subjected to threatening behaviour and shouting from DS Hutton. As such, it is submitted that DS Hutton’s conduct clearly constitutes oppressive behaviour, which caused Elizabeth to make her confession and should therefore be excluded under section 76. Additionally, Fiona has a mental age of 12 and section 77 of PACE provides that if the prosecution against a mentally handicapped person relies substantially on a confession that was not made in the presence of an independent person, the court shall warn the jury of the special need for caution before convicting on the basis of such evidence. It is therefore submitted that the jury must be given the section 77 direction in relation to Fiona’s confession evidence. Alternatively, it is submitted that Fiona’s confession evidence be excluded on grounds that they were made in response to “something said”, which was likely in the circumstances existing at the time to render unreliable any confession that might have made as a consequence. In the case of R v Goldberg13, it was stated that “the something said or done” limb of the test was not satisfied by the conduct of the maker of the confession. Therefore confession of a heroin addict who confessed to get drugs could not be excluded under section 76(2) (b). The sections use of the expression “in consequence of” demonstrated that there had to be causal link between what was said or done and the subsequent confession Additionally, in order for section 76(2)(b) to become active, the conduct must have been likely to render the confession unreliable in that a causal link must be established between anything said or done by the inspector and the possibility of an unreliable confession by Elizabeth and Fiona. With regard to Fiona, this is satisfied by the encouragement and influencing of a false confession of a vulnerable suspect. DS Hutton guaranteed that Fiona would be treated leniently if she confessed; which arguably constitutes an inducement. With regard to inducements in the case of R v Mason14, the police had no direct evidence to connect suspect to the crime and told him and his solicitor that they had found the fingerprints at the scene. As a result of being told this, the defendant confessed to the crime and Court of Appeal held that this was deceitful and therefore impacted fairness of trial and therefore quashed. Furthermore, with regard to the defendants, the custody officers were in breach of Code C for failing to provide an appropriate adult during the interviewing process and therefore it is submitted that it is highly likely that Fiona would not have made the confession had she been interviewed in the presence of an appropriate adult. Alternatively the manner in which the confession is obtained can infringe the fundamental right to silence and privilege against self incrimination under Article 6 of the European Convention on Human Rights, which is implemented in the UK via the Human Rights Act 1998. Additionally, with regard to Elizabeth’s confession regarding Fiona’s guilt, it is submitted that this legally cannot be admitted as evidence. Under the common law, it is well established from the case of R v Gunewardene15 that an extra-judicial confession cannot be admissible against the co-accused of its maker. Moreover, section 128 of the Criminal Justice Act 2003 inserted a new section 76A in the Police and Criminal Evidence Act 1984. Under this provision, a co-defendant’s confession is not admissible under section 76A of the PACE. This was further applied in the case of R v Finch16 With regard to evidence of previous convictions, which is referred to as “similar fact evidence17”, it is acknowledged that the standard principles of law on admissibility have now been reversed by the Criminal Justice Act 2003 (the Act). Under the Act bad character is defined under section 112 as a “disposition towards misconduct”. However, whilst the Act widens the powers of bad character evidence, it is submitted that it does not automatically permit admissibility of evidence demonstrating a disposition towards committing offence18. Additionally, whilst section 103(2) of the Act permits evidence of previous convictions of the same description, section 101(3) permits challenge to the admissibility of such evidence if it would have an adverse impact on the fairness of the trial. It is submitted that to admit such evidence would clearly prejudice that defendants at the outset of the proceedings and further denies the defendants their right against self incrimination and the right to a fair trial. 1. This is a skeleton argument on behalf of the Defendant for the hearing listed on [ ] 2008. 2. The defendants were charged with burglary on [date] 2008 and are asking for permission to exclude evidence of their evidence of confession (Exhibits 1 and 2) and evidence relating to their previous convictions for similar offences (Exhibits 3 and 4). The defendants’ application raises important issues regarding admissibility of evidence in accordance with the requirements of the Police and Criminal Evidence Act 1984 and the right to a fair trial under Article of the European Convention on Human Rights. 3. The defendants stand jointly charged with the offence of burglary and deny the charges. 4. During questioning, Elizabeth was not given rest breaks or access to legal advice, she had a limited understanding of English and was not accompanied by an interpreter. Elizabeth was also subjected to intimidating and degrading conduct by DS Hutton. 5. Fiona had a mental age of 12 and was not accompanied by an appropriate adult. She was also denied access to legal advice and was induced to make a confession. 6. The relevant law regulating the detention, treatment and questioning of persons by police officers in the UK is enshrined in the Police and Criminal Evidence Act 1984 (PACE) and Code of Practice C (Code C). 7. The right under PACE and the Codes to legal advice, rest breaks, an interpreter and the presence of an appropriate adult were breached. 8. The persistent breaches of the Codes of Practice on the treatment of suspects in detention and questioning constitute a substantial breach and display bad faith, thereby satisfying grounds for exclusion of confession evidence under section 78 of PACE. 9. The interviewing officer’s treatment of the defendants satisfy the grounds for exclusion of confession evidence under section 76 of PACE. 10. The Defendant’s confession should be addressed with special caution on grounds that the defendant is a vulnerable suspect under section 77 of PACE. 11. The statement of Elizabeth in relation to the Fiona’s guilt is not admissible under section 76A of PACE and section 128 of the Criminal Justice Act 2003. 12. The Defendants submit that it would be unfairly prejudicial to the trial and should not therefore be included at trial. 13. For these reasons, the defendant respectfully asks the court for permission to exclude the evidence. . Bibliography Michael Allen (2007) Textbook on Criminal Law, 9th Edition Oxford University Press. Jerome Hall (2005) Principles of Criminal Law, The Lawbook Exchange Limited. Adrian Keane (2005). The Modern Law of Evidence. 6th Edition Oxford University Press N. Lane (1992) The Encyclopaedia of Forensic Science Headline London. G.R. Lewis (1840). Illustrations of Phrenology. Volume 1 July 6 Peter Murphy (2007). Murphy on Evidence. 10th Edition Oxford University Press. D. Ormerod, (2005). Criminal Law (11th edition). Oxford: Oxford University Press. A, Reed., B, Fitzpatrick., and Peter Seago (2006). Criminal Law. 3rd Revised Edition Sweet & Maxwell. P. Roberts., & A. Zuckerman (2004) Criminal Evidence (Clarendon Law). Oxford University Press. Criminal Justice Act 1988 Police and Criminal Evidence Act 1984 and Codes of Practice Criminal Justice Act 2003 Human Rights Act 1998. All UK legislation available online at www.opsi.gov.uk and www.statutelaw.gov.uk     Read More