The Question of Imtiazs Silence - Essay Example

Law of Criminal Evidence Question What are the potential legal consequences of Imtiaz making no comments in his police interview? Answer: There is often an argument in legal circles to count on silence of accused as a sign of guilt because he is supposed to provide reasons and defense arguments for every question raised during pre-trail investigation. In our question we will deal with the same issue. Is there any reason other than guilt for Imtiaz to keep his silence during pre-trail period? There might be a number of reasons to keep silence during pre-trail period besides guilt. Some of these may be as follow: 1- a negative and distrustful attitude toward police; 2- protection of other people or facts not directly involving in the crime; 3- advice of solicitor to keep his silence; 4- allegation is vague and not clear; 5- accused is shocked and confused; or 6- Communication barriers are forcing accused to keep his silence, etc. Consequences of silence: Now here comes the question of Imtiaz’s silence and its legal consequences. Imtiaz has a legal right to keep silent under law. This right is based on the Latin maxim nemo tenetur se ipsum accusare (no man is bound to accuse himself’). This principle is found, explicitly or by convention, in many of the worlds legal systems including England and wales. (Murphy, P Murphy) Criminal justice and Public Order,1994, section 38, provides that no conviction shall be based wholly on silence of the accused. Furthermore, though not explicitly found in Europpean Convention of Human Rights, (Dennis, I H ,2002) still in the rulings of Europan Court of Human Right, right ot keep silence is maintained. ( Murray v. UK. 1996) It is therefore, found that Imtiaz’s silence during pre-trial period is based on his legal right and will not esteblish any offence against him. For this purpose, the prosecution can not equate his silence to his confession in a court of law. In order to esteblish any guilt, prosecution shall have to maintain his case beyond admission during custody and the case should be suported by the evidence. Question 2: What would be the legal consequences if Imtiaz had given the reason for solicitor’s advice to make ‘no comments’ in his police interview? Answer: To keep silence in pre-trail inquiry by police is an esteblished right of the accused. He may maintain his position even when there is no advice by his solisitor or his solicitor advices against silence. It is found in this case that the accused Imtiaz had kept silence on advice of his solisitor and he also mentioned the same in his statement. However, he did not mention any reason for the same. Now, would there be a change in situation and legal consequences on the ground that accused had given any reason for solicitor’s advice? To be very simple, it must be seen in view of accused’s right. Accused is not bound by the advice of his solicitor as in the case of co-accused, Shannan, who refused to have a solicitor altogather and gave her statement. Solicitor is supposed to guide you as per law and no advice against the law of the land is expected from a legal counsel. In this case, too, the advice by Imtiaz’s solicitor is based on a legal provision and in accordance with the rights of the accused. Reason for solicitor advice does not creat any material difference as the advice was based on a right which accused has by virtue of a legal provision. Therefore, there would be no change of status or no implication as to the legal consequences, if accused had given any reason for solicitor’s advice. Question 3: Comment on identification evidence relating to Imtiaz and Shnnon- should it be excluded from evidence? Answer: Identification evidence is normally relied in case of identification of an accused by a witness in which he or she recognizes the acuused on basis of his or her memory of that particular incident. On the one hand it helps the pprosecution to identify the accused and on the other hand ensures the veracity of the witness. Normally these identifications are based on some visible identification mark like birth marks, height, look or some special gait, however, the reliability on such identification is absed on the conviction of the witness, especiallty when he or she has to distinguish the culprit among a number of alike people durimg such identification. Identification eveidenc of Imtiaz and Shannon in this case is not conducted in proper way. It was more or less an identification of a person from the whole gathering whereas the procedures provides a set method to conduct an identification to judge the veracity of witness. As not being conducted as per law, it should be excluded from the evidence and should not be relied upon in trails. Question 4. Should the prosecution have been permitted to call Jaspreet? Answer: Facts of the case narrete that Imtiaz and Shnnon are accused of pushing Alice and to rob her. Shannon was arrested by security officials after a chase and Imtiaz is arrested on identification by Shannon. During pre-trial ionterview, Imtiaz kept silence on the advice of his solicitor and Shannon had admitted the crime, but in trials both had pleaded non guilty. Onus of proof lies on prosecution in all criminal cases. In this case, Prosecution is on comparatively weak footings as no direct evidence is available to esteblish guilt of the accuseds and prosecution has to rely on circunstantial evidences like arrest of Shannon and still image from CCTV camera which is again not showing faces of culprits. Once both have pleaded non guilty, these eveidences have gone down the drain. Now the reliance of the prosecution is mainly based on still images captured by CCTV camera which are not clear and the prosecution prays to have an assistance from Jaspreet, an expert to match physical shape to help the prosecution. The permission in this case is the sole discretion of the judge as no direct evidence is produced and any expert opinion is only admissible as corroborating evidence to support main evidence and cannot be relied as the sole evidence to punish anybody. The permoission is refused by the judge in this case rightly, because otherwise the still images are insufficiant proof and can only indicate the presence of a woman alongwitha a man pushing a girl from behind. It concludes that no close or direct view is available with the prosecution. All other indirect and circumstaintial eveidences had been quashed as those were based on guilty plea of Shannon in pre-trails, and any admission before police does not esteblish any criminal liability on part of accused unless the same statement is given in court. (Dennis, I H, 2002) Therefore, in absence of any direct evidence to support an unclaer still image, to call on an expert like Jasreet would not esteblish guilt of Imtiaz and Shannon. Prosecution is rightly refused in this instance. Question 5: Will Shannon’s interview with the University securitiy officers affect the admisibility of her admission in her later police interview? Answer: Any assertion or confession made in police custody has no legal effect unless the same is reiterated before a court of law.(McKinney v The Queen ,1991& Murphy, P) These are termed as ‘evidence of a kind that may be unreliable’.( Evidence Act 1995) In light of above quoted laws, where any admission made in custody of police is not reliable and no conviction can be made simply on the ground of confession in police custody, admission at any other place can not be relied upon. At best those can be placed at corroborting evidences but could not become a sole reson to convict anybody. In the light of above, any adimmision made by Shannon before security officers of university or even before the police does not create a criminbal liability against the accused. Court cannot award punishment on this sole ground which is only an oral assertion. Even if such admission is in writing, court should have to call the accused to admitt his or her guilt while breifing him or her the consequences of such an admission.. Under the before mentioned facts, the admisssion by an accused to university officer or to the police during custody does not affect the admissibility in any later stage. There is an interesting point to note in this regard though; under conventional common law practice the admission before a police officer was considered admissioble in the court of law and it is only after the European Convention of Human Rights that English law looked to ignore such admission. (Dennis, I H, 2002) Work Cited Criminal justice and Public Order,1994, Section 38 Dennis, I H, 2002, the Law of evidence 3rd Ed, pp 55-59 The Evidence Act 1995, section165(1)(f) Murray v. UK, , (1996) 22 EHRR 29, at para. [45] (ECtHR 1973). McKinney v The Queen (1991) 171 CLR 468 Murphy, P Murphy on Evidence 11th Ed, pp 344 Read More