Law of Criminal Evidence - Case Study Example

Law of criminal Evidence Introduction: The Criminal Justice Bill of 2003 has introduced many of the reforms proposed in the White Paper d “Justice for All”, which based its suggestions on the need to bring more offenders to justice1. The development of DNA technology and cold case reviews have provided scope for discovery and review of evidence which was not previously available for analysis. According to a Home Office spokesperson, the main reason for mooting the proposals introduced into the Criminal Justice Bill of 2003 is to provide for the facility of re-examination of cases against persons accused, if new evidence was brought to light, since the public needs to have full confidence in the criminal justice system and its ability to deliver justice2. The Blair Government has blamed an out of date criminal justice system, with greedy trial lawyers, delays and inefficiency in the judiciary all contributing to the breakdown in justice. The new hearsay rules which allow for the admissibility of evidence, even in cases where the witness is unable to appear in Court or is afraid to do so3, are directed towards balancing the rights of defendants in crimes with the rights of the victims. The Police and Criminal Evidence Act of 19844 has also been amended by the Criminal Justice and Police Act of 20015, to permit law enforcement officials to retain DNA samples.6 Existing law 7 allowed for the admission of hearsay evidence in documentary form only in certain conditions, such as “if there is good reason for the original maker not to be able to give the evidence personally (for example through illness or death) or where records have been properly compiled by businesses.” But the implication is that such specific categories of evidence should be automatically included rather than judging whether they are admissible or not.8 Thus, those provisions do not contest the nature and validity of the hearsay evidence in such cases where the witness is unable to appear in court for some compelling reason. The Criminal Justice Act of 2003 rationalizes common law and enforces the above stated statutory provisions9 of the old law while also including other provisions. However, there are significant weakness that must be noted. Hearsay evidence does not constitute the best evidence, it may be biased or inaccurate, mistaken or manufactured and there is no cross examination facility available to examine the veracity of the evidence proffered by such witnesses. Direct oral evidence offers a significant advantage in that it can be tested in a court of law and is generally offered on oath, which is not the case with hearsay evidence. Moreover hearsay evidence is difficult to assess and may be difficult to challenge, therefore at best it can be permitted only in criminal proceedings where it may be just to permit admissibility of such evidence or where the evidence is significant and relevant. All these factors must be borne in mind while assessing the provisions of the Criminal Justice Act of 2003 that attempts to codify the complex rules of hearsay evidence that is offered in criminal proceedings. Salient provisions that constitute significant changes in the new bill on hearsay: The provisions on hearsay are contained in Chapter 2 , sections 17 to 129 of the Criminal Justice Bill10. The major provisions that constitute significant changes in the realm of hearsay is the fact that multiple oral hearsay will now be admissible in a criminal case, whereas only first hand hearsay was admissible earlier, and this strictly qualified as being permissible only in certain cases where a presence in court would be impossible, such as illness or death. However, the new rules allow for multiple oral hearsay and they have extended the grounds under which hearsay may be admitted as evidence, to also include the inability to attend the court in criminal cases on grounds of fear of retribution. Previous statements of witnesses have also been rendered admissible as evidence. Judges have been allowed a wide range of flexibility and discretion in applying hearsay evidence according to the circumstances of the individual case. This is in opposition to the old law where admission of hearsay evidence by the judges was the exception rather than the rule. In fact, in the case of N v HMA (505)11, the Lord Justice Clerk was of the opinion that the discretion which the Court had previously enjoyed to exclude heresay evidence in arriving at a determination on a trial had been removed under the new provisions on admissibility of heresay evidence. Old criminal law provisions on hearsay: Old law before the Criminal Justice Act of 2003 had allowed hearsay evidence only under specific conditions as detailed above. However, in general, the law contained a rule against hearsay, whereby admissibility of such potentially relevant evidence could be challenged on technical grounds, as was the case in Kearley12 where the prosecution was adversely affected by the refusal of the Court to permit admissibility of relevant hearsay evidence. In this case, the defendant was a drug dealer and whilst the police were present at his house, he received calls from several people who were enquiring about the availability of drugs. These callers could not be called as witnesses, however the request of the prosecution to adduce these calls as evidence against the defendant, was denied by the Court on the basis of in-admissibility of heresay evidence. In some cases the refusal of the Courts to permit admissibility of hearsay evidence on technical grounds has also impacted adversely upon the defense, as was the case in Sparks v R13 and Blastland.14 The major reasons for refusing to admit hearsay evidence were originally (a) jury illiteracy, which is of course no longer relevant (b) the question of reliability of such evidence, since there was no proper procedure to authenticate such evidence and (c) the need within an adversarial legal system to examine witnesses personally rather than through indirect means. The fact that hearsay evidence could not be tested through cross examination was deemed to be a significant factor that rendered hearsay evidence inferior to non-hearsay evidence that could be corroborated and verified in the Court, through cross examination of the witnesses in question. The question of how to determine whether direct oral evidence of witnesses would be admissible was laid out in the case of R v P.15 If for example, the oral evidence states “I know that….” and this knowledge is based upon the individual’s personal knowledge, it would be admissible under the guidelines for hearsay. However if the same individual states “I know that….” But this admission is based upon second hand knowledge that he has acquired from other sources, rather than as a result of his direct information or eye witness, then it would be categorized as inadmissible as evidence in a court of law since it is based upon supposition and speculation.16 However, it may be noted that under the new provisions of the Criminal justice Act that allows for admissibility of multiple oral evidence, which constitutes evidence gleaned from third party sources on the basis of second hand knowledge, such evidence would in fact, be admissible. While heresay evidence was generally considered inadmissible, the courts have also developed exceptions in certain cases under common law by statute, as was the case in DPP v Myers17 where the Court stated that no proper principles were being followed in regard to exceptions from the heresay rule and that such exceptions should become the subject of legislation. Criminal Justice Bill of 2003: provisions on heresay: The Criminal Justice Bill of 2003 codifies the law on the admissibility of heresay evidence and effectively supersedes previously existent common law statutes and provisions. The provisions of this Act have come into force since April 4, 2005 and in relation to the provisions on heresay spelt out in the Act, its classification as admissible evidence was spelt out in the case of R v Bradley18. In this context, the Court of Appeal clarified that the “criminal proceedings” as specified under section 141 of the new Act would in effect be equivalent to the meaning ascribed in sections 112(1), 134 (1) and 140, which relate to those criminal proceedings where strict rules of evidence will apply. This has therefore excluded the prerogative that existed before, for near-complete exclusion of heresay evidence on the basis that it was inadmissible under the law. In defining what will constitute heresay evidence that may be deemed to be admissible in a court of law, it has been clarified that statements that have been made in relation to a matter under adjudication, which may not necessarily have been a part of the oral proceedings and collection of evidence on the case, will also be allowed as evidence, on the basis of “implied assertions”19 This definition of heresay in effect, reverses the precedent laid out in the case of Kearley20, since implied assertion would be deemed to be relevant and applicable to a case in terms of evidentiary assessments. One of the significant aspects of the Criminal Justice Act of 2003 is Sections 116 and 117, which extends the circumstances in which evidence proffered by witnesses unable to be present in court can be received. Under Section 116, first hand hearsay evidence automatically qualifies for admission. While hearsay evidence was previously restricted to written documentation as specified under sections 25 and 26 of the earlier bill, the new Bill also allows for those statements that would constitute multiple hearsay or statements from third party sources, which was not permissible under old law that only permitted first hand hearsay under certain circumstances. Relevant documentation that may be admissible would even include company correspondence, hospital records or even messages or notes, as was the case in Rock.21 In this case, a note from the operator of a paging company stating that messages have been left for the customer was deemed to be admissible as heresay . It also allows the Court to admit evidence form witnesses who are unable to attend the court out of reasons of fear. The concept of “fear” has been given a wide definition under the new Bill and will include fear of death, injury to another person or even financial losses that may result through physical presence in court. Moreover there was also a provision in the old law that mandated the exercise of a general discretion to prevent adduction of first hand hearsay statements22 but the new law does not require that such general discretion be exercised to prevent adduction, rather judicial discretion has been attributed a wide range of flexibility in interpreting hearsay evidence and allowing for the credibility of witnesses. Gregory Durston states that although some safeguards have been implemented to prevent falsification of evidence, etc through imposing a need to identify the maker of such statements before the evidence can be admitted, nevertheless there is a great deal of uncertainty about exactly how the new laws on hearsay evidence are likely to function in preventing fabrication of evidence through admission of multiple hearsay and the excessive delays it is likely to cause in the trial process.23 However, it must be qualified that the admission of hearsay evidence is not based upon a blanket provision. Rather the goal of introducing the more flexible standards on admission of hearsay evidence is directed towards ensuring that the rights of the victims are also represented fairly and adequately. Section 114 of the Act identifies certain categories and conditions under which heresay evidence will be admitted, although these are more wide ranging that those that existed under the old law. For example, statutory provisions or the rule of law must render the evidence admissible. There must also be agreement from all the parties to the proceedings that the evidence is relevant and needs to be admitted for fair disposal of the case, and the Court needs to be satisfied that the introduction of such heresay evidence will be in the interests of fair adjudication of the case in question. As far as multiple hearsay is concerned, the Criminal Justice Bill of 2003 establishes that such evidence will be admissible only when all the parties concerned agree and the judge must use his discretion in the matter of making a choice about whether or not to permit such evidence to be introduced as part of the case records24. Moreover, the existing rule that states that statements given by third parties who are other than the accused, will still constitute inadmissible hearsay evidence.25 Another important qualification of the new Bill is in terms of previous statements that have been made by a witness. According to Section 119 of the Act, once a statement from a witness is admitted it immediately becomes a statement of truth and any subsequent statements that the witness made will also be admissible and relevant to the case in question if they establish inconsistency in the witness’ statements. This is in opposition to the earlier law, where earlier statements of a witness were called into question only as a means to certify the credibility of the witness. Thus, on the basis of the above, an overall assessment of the new rules on hearsay that have been included within the Criminal Justice Bill 2003 indicate that while the rules for admissibility for the evidence have been extended to capture a wider pool of available information, nevertheless certain restrictions and qualifications have also been spelt out. The Criminal Bar Association in its briefing on the Criminal Justice Bill of 2003 has expressed its concerns that in the admission of hearsay evidence, care must be taken to ensure that the admission of such evidence should not produce a conviction that is based purely on hearsay but must also be backed up by factual and corroborative proof provided through other sources.26 The impact of Article 6 of the Human Rights Act of 1998: The Human Rights Act of 1998 was introduced in order to ensure UK compliance with the general standards of human rights and freedoms that have been spelt out in the European Convention of Human Rights27. Article 6 of the Human Rights Act of 1998, which came into force in 2000 in the U.K, establishes the right of every individual to a fair trial, in order to ensure that an individual’s civil liberties are protected and that every person who is charged with a criminal offense in particular, shall be presumed innocent unless proved guilty according to law.28 Article 6(1) of the Human Rights Convention states: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”29 The expanded provisions for hearsay are intended to ensure compliance of national laws with Article 6 of the EHCR and Andrew Lothian their applicability in the context of recent cases dealing with the admission of hearsay evidence30. However, Treschel identifies the inherent possibility for miscarriages of justice, especially in criminal trials, when there are two conflicting perspectives (a) the human rights perspective which mandates that the rights of the individual in question to a fair trial be ensured and (b) the public prevailing opinion against the individual which may be propagated through the media or public opinion, even political motivation, that deems the individual to be guilty before he/she has actually been discovered to be so through due process of law.31 In the case of Re Fergus, there was a serious miscarriage of justice due to improper judicial procedure, presentation of evidence and improper disclosure of relevant information On November 29, 1991, a young boy named Fergus aged 13, was indicted on the count of assault and an intent to rob. He was identified in Court by a person who was four years older than him and who identified him as the person who had tried to rob him some weeks earlier. But the truth was that the boy was innocent in this case. Two years later, he appealed the conviction in Court32 and it was determined that a miscarriage of justice had taken place and that the boy had been wrongly convicted. The appeal established the fact that the case was not prepared adequately, the evidence collected was not comprehensive or conclusive and the boy was convicted on grounds that were not strong, substantial and free from error. Stockdale and Walker have highlighted several other cases such as the “Birmingham Six” and the Guildford Four where wrongful convictions have occurred through improper collection, presentation and analysis of evidence33. Such cases present support for the introduction of more latitude in determination and admission of evidence, however allowing hearsay evidence also undermines the credibility of the criminal justice process itself. By introducing the provisio that a case that has already been tried and decided by the Courts may be re-opened on the basis of new evidence, the criminal justice process itself becomes questionable. Conclusions: On the basis of the foregoing, it may be noted that the Criminal Justice Bill of 2003 has opened the way for a fresh examination of cases through the revised rules that have been implemented on hearsay evidence. Through the provisions of this act, many categories of hearsay that were hitherto considered inadmissible, such as those collected apart from the oral proceedings of the case have been deemed relevant. Moreover multiple hearsay is also admissible, as are documents, memo and even photos or other forms of secondary evidence. Provisions in regard to prior statements of witnesses, the exclusion of superfluous evidence34 and re-examination of closed cases on the basis of unsatisfactory or unconvincing evidence have all rendered this piece of legislation a significant overhauling of the criminal justice process. Some experts have expressed concerns about the validity of hearsay evidence in the trial process and the undermining of the criminal justice process itself and it remains to be seen whether the hearsay provisions of the Criminal Justice Act of 2003 will prove to be beneficial or harmful in the long term. Bibliography * Brief titled: Commons consideration of the Criminal Justice Bill: Bar Council briefing on the bill as amended in standing committee. The general council of the Bar and the Criminal Bar Association, dated March 2003. * Criminal Justice Bill of 2003. [Online] Available at: http://www.publications.parliament.uk/pa/ld200203/ldbills/069/2003069a.pdf * Criminal Justice Act of 2003, Chapter 44: Amendments of the Police and Criminal Evidence Act of 1984, chapter 2, para 116 [Online] Available at: http://www.hmso.gov.uk/acts/acts2003/20030044.htm * “Double Jeopardy law ushered out” (2005). BBC News. April 3. [Online] Available at: http://news.bbc.co.uk/1/hi/uk/4406129.stm * Durston, Gregory, 2005. The evidence of ‘unavailable’ witnesses under the Criminal justice Act 2003 Journal of Criminal Law, 69(3), pp 256-263. * DPP v Myers (1965) AC 1001 * European Convention of Human Rights and Fundamental Freedoms. [Online] Available at: http://www.pfc.org.uk/legal/echrtext.htm * Human Rights Act of 1998. [Online] Available at: http://www.opsi.gov.uk/acts/acts1998/80042--d.htm * Kearley (1992) 2 AC 228 * Lothian, Andrew, 2003. Muddying the waters on admissibility of hearsay evidence [Online] Available at: http://www.journalonline.co.uk/article/1000619.aspx * N v HMA (505) GWD 2003 * Procedure: hearsay: [Online] Available at: http://www.cps.gov.uk/legal/section13/chapter_l.html * R v Bradley (2005) EWCA Crim 20 * Rock (1994) Crim LR 843 * R v Turner (BJ) 61 Cr App R 67 CA * R v Fergus 98 Cr App R 313 * R v Blastland [1986] AC 41 * R v P (1999) Criminal law Review 401 * R (on the application of S) v Chief Constable to South Yorkshire (2002) EWCA Civ 1275 * Sparks v R [1964] AC 964 * Stockdale, R and Walker, C, 1993. ‘Forensic Evidence’ in Justice in Error (eds., Walker, C and Starmer, K), (London: Blackstone * Treschel, Stefan. Human Rights in criminal proceedings, Oxford University Press, 2005 * White Paper titled “Justice for All” presented by the Home Secretary David Blunkett to the House of Commons as an “end to end reform” (See Hansard, July 17, 2002 at col 287) Read More