Criminal Evidence Full Notes PDF

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Warning: TT: undefined function: 32 Warning: TT: undefined function: 32 Warning: TT: undefined function: 32 Warning: TT: undefined function: 32 Aims of the Law of EvidenceEnable the courts to make a factual determination; they have to decide what happened, what can/can't be proved and then reach a v...

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Aims of the Law and The Pre-Trial 15 January 2018

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Aims of the Law of Evidence

• Enable the courts to make a factual determination; they have to decide what happened, what can/can't be proved and then reach a verdict based on the facts on which they find it to be. • Rectitude of Decision making (Jeremy Bentham) ○ Rationalist model (Twining) ○ Maximum admissibility, minimum exclusion Because law of evidence is about allowing factual - the main aim should be getting the right answer and making the right decision and it followed from this that the amount of evidence should be maximised which leads to minimum exclusion • Law of evidence should protect State Interests ○ Public interest immunity (informants and secrets) rule of law which allows piece of information to be excluded at trial in the interest of the state or in public interest and the most important category is the need to protect the identities of informants. Good example where Bentham's starting point comes up against a tension; between getting the right answer and the protection of informants.

Theorising the Tensions between the aims of the Criminal Justice Process - Packer • Herbert Packer the Limits of the Criminal Sanction (1968) Due Process v Crime Control

Due process “For Packer the foundations of a Due Process system exare: (i) a value statement that the interests in protecting the citizen from unjust punishment and general diminution in civil liberty outweigh the community interest in effectively apprehending and punishing criminals; and (ii) a recognition of the fallibility of human institutions (i.e. the police and the courts) and a corresponding need for checks, safeguards and reviewing procedures.”

McConville et al The Case for the Prosecution (1991), pp 4-5 Values & Beliefs of Due Process • Nobody should be convicted without an appropriate impartial process (Constitutional statement) • Values - Citizens rights • Values - Avoidance of miscarriages of justice ○ we shouldn’t punish someone if they don’t deserve it • A scepticism about human institutions (both motives and fallibility) e.g. some say courts can get it wrong, lawyers can make errors, jurors can be biased. If you are worried about the actors and you may say let's build a due process system with checks, safeguards and appeals.

• The interests of effective adversarial justice ○ We have an adversarial system; where one side is put against the other. The two parties prosecution(state) and defence have control over the cases, evidence and argument they put before the court. ○ For adversarial to work both sides must be in position to put their case. ○ h l f Professional Privilege; itl is complicated but in simple form it protects from disclosure anything a defendant in criminal proceedings says to his or her lawyer taking advise about possible criminal proceedings. ○ The effect of this is of course, some evidence may be lost - if you make a confession e.g. I've just murdered something, that person can give evidence of this in court this won't apply if you make similar confession to your lawyer. This is because if the defendant is to be effective in adversarial process good at fighting their corner and for there to be a fair contest between two sides which are equally resourced, D must be able to take legal advice, and the only way they can do this in confidence is if they have been ensured that whatever they tell their lawyer will not be disclosed in court.

Features of System of a Due Process • Legal advice and representation, facilities to prepare care • Disclosure of evidence and other material ○ Fits into notion of adversarial - important any defence argument is fully explored and heard and we must disclose any evidence to defendant. • Right to call witnesses and present evidence • Right to cross examine witnesses and challenge evidence • Right to appeal and further appeals

• Avoiding Harm to Citizens ○ Sexual History evidence in rape

Features of the System of Crime Control • Maximisation of investigatory powers • Requires participation of suspects e.g. tell police

Crime Control “The principal value statement underlying this model is that the interests of the citizen are best protected by repressing crime and rooting out offenders by any efficient means. The emphasis is upon confidence in the abilities of the police to detect offenders and to release any innocent people who wrongly fall under suspicion…. The rest of the process, including the court stage can operate on administrative rather than judicial principles. Whereas Due Process is likened to an obstacle course, Packer compared the Crime Control model to a conveyor belt.”

McConville et al The Case for the Prosecution (1991), pp 4-5.

Values and Beliefs of Crime Control • Efficiency in controlling crime • That society has a crime problem • Primary value - public security • Beliefs - integrity of the system • Trust in the police and the courts

Formulising the Pre-Trial - A History • Traditionally the investigative w before 1984. • No power in law to interview fo before 1984 the police effective uncertainty in the law that then police had no right to arrest som them to be interviewed thus the that people were arrested at all them with their enquires. ○ Typically they would be p those 'helping' and puttin not allowing them to leav • The police had power to charge interrogate • Police exploited legal uncertaint enquiries" ○ Fiction in order to give the opportunity to investigate suspect to court. • Police controlled prosecutions ( DPP in serious cases) • Prosecution duty to disclose its summary cases)

Confait Case and the Royal Commissio • Landmark case that exposed the construct evidence in pre-trial p • Exposed dangers of false confes safeguards in interrogation • Exposed the need for safeguard • Exposed possibility of conviction evidence.

As a result of Confait case, governmen Royal Commission on Criminal Proced Phillips) • They held that the Criminal Justi be "Fair, Open, Workable, Efficie • They recognised the defendant's the need for efficiency.

Following this the PACE Act 1984 was • The Police and Criminal Evidenc important as it regulates search detention, questioning, identific etc.

h AC by:i Codes lf ( hi i sublimated of hPractise periodically - depending on the the government and home offic ○ Detention and questionin ○ Identification Procedures

Prosecution of Offences Act 1985 Following PACE, this act created Crow Service (headed by DPP - independen → This took away from the police t the decision to prosecute and ho conduct on criminal proceeding → The CPS; professionalise eviden have an advisory role - so police during investigations, but becau have the power of deciding and prosecution, effectively the pro protecting evidence is in hands the police. → They are responsible for prosecu police chargers.

Royal Commission on Criminal Justice 1993 This was set up following number of c involved: Plaintiffs Miscarriages of Jus ○ Judith Ward (1993)

tfor i lreluctant d ih tf t t witness. ○ Police have duty to release suspects after the time period - 36 hours. ○ If we want the police to abide by the law, there must be some sanction if they break the law e g

Lecture Notes Page 1

password to files • Maximises investigative discretion e.g. instead of giving police lots of rules to follow, we tell them it's up to them • Minimal safeguards and reviews - because these reduce efficiency • Maximise admissible evidence - don’t exclude

An important result of this Royal Com Criminal Appeal Act 1995 • Created Criminal Cases Review C • This body has to investigate mis after the appeal has run its cour • References to Court of Appeal meaning they can go back and s to be reopened

suspects after the time period - 36 hours. ○ If we want the police to abide by the law, there must be some sanction if they break the law e.g. civil action beyond the lawful period - it is argued the sanction which would have the most impact is any evidence obtained during the illegal part of detainment should be excluded. We accept this argument saying it's okay to use law of evidence to discipline the police and bring home the necessity and requirement of abiding by the law. ○ Linked to this, is law of evidence should have protection of the rights of suspects. The suspect as a citizen has a right not to be held in custody beyond 36 hours unless the courts have authorised it.. Breach of suspects rights. Vindicate any breach of those rights where it has occurred. • Excluding evidence to Disciple the Police • Excluding evidence to protect rights ○ Ashworth (1977)

• Protect the integrity of the criminal justice system by excluding evidence. ○ Criminal justice system is a system which enforces the law and the criminal law is a law which requires all of us as citizens not to do certain prescribes acts. The criminal law has moral content - It requires us to act in a way of rights and morals. Although we have enforcement mechanisms for the law e.g. prisons, police - it wouldn’t work if all of us started breaking the criminal law. Criminal law justice system only works if only a small proportion of people breaks the law and the majority of us abiding by the rules because we see it as being neutrally advantageous for us. Therefore it wouldn’t work unless we as citizens generally agree with it and see the logic of it and respect the criminal law and justice system that backs it up. ○ Respect for it is key to its effectiveness. ○ One argument is maintaining the appearance of integrity is vital if it is to work and this gives us the rationale to exclude some evidence, to show that it has some sort of internal integrity. What this has shown and how this impacts law of evidence is that there is conflict between some of these aims Bentham says we want to get right answer, well the other possible aims looked at might suggest some evidence may need to be excluded to maintain integrity or other reasons.

giving police lots of rules to follow, we tell them it s up to them • Minimal safeguards and reviews - because these reduce efficiency • Maximise admissible evidence - don’t exclude because of civil liberty concerns - as Bentham says we must maximise evidence.

When we talk about evidence and argue what the law should be - we must bear in mind the existing tension between due process and crime control. Investigative stage: often called the Pre-Trial • There is traditional dichotomy - split between investigation and the trial. • In the past the investigated process was largely unregulated. • The Trial (takes place in court) - Subject to strict rules of evidence and procedure since mind 19th century. Pre-trial was unregulated and trial very carefully regulated in public subject to appeal if things went wrong. This is interesting because this notion of pretrial and trial hasn’t necessarily survived into the modern thinking

Fair Trail Rights Guaranteed by Art 6 (3) European Convention on Human Rights (implemented by Human Rights Act 1998 - Minimum rights: a. To be informed promptly of the nature and cause of the accusation against him; b. Adequate time and facilities for the preparation of his defence; c. To defend himself in person or through legal assistance of his own choosing and to be given it free when the interests of justice so require; d. To examine or have examined witnesses against him or to obtain the attendance and examination of witnesses on his behalf; this clearly does apply to court proceeding in court of trial e. To have the free assistance of an interpreter- this applies in the court room but this is to be affected, the D is going to need interpreter in police investigation and perhaps when house is being searched. What notion of "Trial" is implicit in Art 6(3)? De Weer v Belgium (1979-80) • "Trial starts" when D is informed he is a suspect • Trial includes any procedures which "Substantially effect" the outcome. • Fair trial rights in modern thinking's apply to searches and arrests police interviews identification procedures etc

Dichotomy between investigation and trial- the jurisprudence dealing with art 6 has accepted for a long time that fair trial rights apply not to just formal proceeding in courts but also to investigate stage that proceeds it

• This body has to investigate mis after the appeal has run its cour • References to Court of Appeal meaning they can go back and s to be reopened.

Pre-Trail Disclosure Rules Formerly prosecution disclosed its Cas

Criminal Procedure and Investigation • Created MUTUAL disclosure pro • Prosecution duty to review "unu • Duty to disclose material which prosecution or assists defence ( • Defence under duty to disclose (s.5)

Lecture Notes Page 2

Criminal Evidence - Part 2 16 January 2018

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Conceptualising Evidence The Sherlock Holmes Theory • Evidence that is 'just there'; pre- exists the investigation and trial. • Therefore because evidence pre-exists it can be found; Purpose of investigation is to "find" evidence. • This in turn, suggests that the investigator is neutral and doesn’t have any impact on what the evidence is • Evidence must therefore have an objective existence. The Case/Evidence Construction Theory • An alternate to the conception of what evidence is, is that the evidence is constructed and not found. • A "case" is a construction. This is basically saying that you should understand evidence is constructed and that’s vital to understand evidence and the proper role of law In relation to evidence. "Case (or evidence) construction has no pejorative overtones. Case construction does not necessarily imply that the case is unmeritorious or against the interests of the suspect or defendant."

McConville, Sanders & Leng The Case for the Prosecution (1991) 21.

Integration Process Back Then • There was no recording of interview in those days so there is no way of knowing what was actually said as no lawyers or parents were present. In those days the police would write statement's on behalf of the suspect and invite them to sign in, so ultimate words would be those of police officer albeit words which may be acknowledge but suspects signature. After admitting, they said they were subjected to threats of violence and being pushed around by the police. When the case got to court they were convicted of manslaughter and arson and their confessions were supported by pathologists evidence to court which gave estimated time of death, consistent with the stories that had been drawn out by police from the boys of when the killing occurred. Four years later, conviction were squashed and campaigns fought on their behalf. It turned out that although at the trial the pathologist had given time of death that fitted with stories extracted from three boys, the path had originally given a diff time of death what then happened was police got confession from boys and confession didn’t fit The boys all had an alibi for the time of death the pathologist gave.

Murder of Maxwell Confait • Body of Maxwell found in house fire in Catford. 1972 • Maxwell had been strangled.

Path agreed to change estimate time of death was then altered to fit into story the boys had given and by time it got to trial the evidence seemed to fit together.

• No rectal temperature taken (time of death). • Arrested: Colin Lattimore (18, mental age 8), Ronnie Leighton (15), Ahmet Salih (14) • Suspects for starting a recent small fire [Logic?] • Interviews - no adults, no lawyers. • Accusations of violence and threats. • CL and AS admitted starting fire. CL confessed to murder, AS admitted watching murder. • CASE SOLVED? – but all 3 boys had alibis for Pathologist’s estimated time of death. • In court - Pathologist changed opinion of time of death to be consistent with confessions. • CONVICTIONS for Manslaughter and Arson • CONVICIONS QUASHED Lattimore and others v R (1976) 62 Cr App R 53

Analysis of the Murder of Maxwell Confait; First of all looking at facts of case, coincidence of house fire and man strangled. • You would start for working hypothesis that he was strangled first and then by setting fire to place it would look like he died by the fire. Fire to cover up a murder. Normal practise when police find a dead body in

The Confait case? What do we learn; • When the appeal court discovered that the pathologist had changed his view, this changed the conviction as a whole thus it was held that the case must be squashed As one judge said the evidence was like: two drunken men supporting each other, neither man can stand on their own. Each piece of evidence on its own was flawed - because no one ever knew what the police actually said and even if they had admitted, we don’t know how they said those things and what extent they were subject to threats or violence or no way of checking how those confessions were created, or factors could be unreliable. The pathologist evidence was not passed on object fact but rather intellectual process and scientific evidence wasn’t really scientific at all just evidence to comply with what the boys said. Very important case • Which lead to Police and Criminal Evidence Act 1984 and Royal Commission on Criminal Procedure 1981

Constructed Evidence - Expert Evidence • What we learn from this case is that C evidence/ process, we get something we regulate the process we don’t kno the evidence is • Spotlight on how suspects are treated pertaining a confession from them. In were minors.

Code of Practise under the Criminal Procedu Investigations Act 1996 (Disclosure) Requires information supplied, and commu expert, to be retained and disclose by the p the defence. ○ Disclosure is very important; w are not interested in getting co their own sake, what we want i answer and to do that we need defence that is fully resourced resources need information. ○ Under the influence on Confait report which is produced to the produced as final report if there communication proceeding or e they must be disclosed to the d problem in Confait was all the c final version of pathologist view ask for the process by which ex the final view to be disclosed; t earlier version is written is very

In case like Confait if you know there has b of information, you are going to have basi the credibility of evidence.

• R v Dlugosz (2013) ○ Expert evidence is admissible o sufficiently reliable scientific ba evidence to be admitted. ○ Very important juries can often by having an expert giving evide says we don’t hear it unless exp describe their finds and the scie making those findings ○ Criminal Procedure Rules, Part

Constructed Evidence - Confessions (or Sile • Police and Criminal Evidence Act 198 Code of Practise C - Detention and Int ○ Bar on informal interviews ○ Audio or video recording ○ Cautions ○ Legal Advice and Solicitor prese ○ Welfare rules - rest, refreshmen assistance.

i i of the i bodyt - which i tis good t k tway of t reading seeing time of death. • The cooler the body the longer it is since the person died. But this procedure was not undertaken in this case, so evidence

Lecture Notes Page 3

of time of death would always be speculative. The reason why these three were arrested is because couple of days before they came to notice of police for starting fire on some waste ground, so common element here was starting a fire - but this was weak indicator.

Lecture Notes Page 4

Identification Evidence 16 January 2018

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Identification - what does it mean? • A person or thing involved in one incident (crime) is the same person or thing seen or involved in a second incident. In a criminal trial, the normal issue of identification is whether or not the person who committed the alleged crime, is the same person appearing as the accused at trial. Not a Category of Evidence All sorts of evidence can be relevant to Identifi...