Law Essays Admissible Criminal Evidence

Law Essays Admissible iniquitous EvidenceAdmissible Criminal EvidenceIt matters non how you approach it if you steal it even, it would be provideable in certify per Justice Crompton in R v Leatham 1861 DiscussWhen considering the above statement it is necessary to examine commandment with regard to the admissibility of evidence. The starting point is to look at section 78 of the Police and Criminal Evidence Act 1984 which allows the court discretion to suspend any(prenominal) evidence they deem to gather in been unfairly obtained. There perplex been several cases where the issue of lawlessly obtained material has been considered. This paper proposes to examine the cases where adjudicate have two exercised their discretion and excluded the evidence as well as the times when much(prenominal) evidence has been allowed.Within this framework consideration will be given over of the factors that adjudicate have taken into account when deciding whether or non to exclude suc h evidence. This will involve looking at policy issues in social intercourse to the use of illegally obtained evidence in order to reach a conclusion as to whether in general terms the courts will opt to overwhelm or exclude such evidence.In reaching a conclusiveness as to the uniformity of the application of this discretion consideration will be given to whether changes that have occurred with regard to the rights of the suspect under the Criminal Justice and Public Order Act 1994 have impacted on the admissibility of such evidence.Although there have been many changes in the law with regard to the use of evidence that has been illegally obtained many thinks still use the case of R v interpret 1980 as a yardstick by which to measure whether evidence such be excluded. In this case Lord Diplock commented that(1) A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicious effect outweighs its probative value. (2) cede with regard to admissions and defenses and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means.(at p 437)In this case the court following the comments made by Lord Diplock cerebrate that the judge would have no power to exclude the evidence on the basis that it had been obtained through the use of an agent provocateur. In many ways the decision whether or not to exclude illegally obtained evidence seems to centre on fairness. Sang re of imports as an authority of the rules on the exclusion of evidence as was demonstrated in the case of R v Nadir 1993 where Lord Taylor CJ said that if a judgeconsiders evidence the Crown wish to lead would have an adverse effect on the fairness of the trial, he sens exclude it under s 78 of the Police and Criminal Evidence Act 1984.He to a fault has a general discretion to excl ude evidence which was preserved by s.82(3) of the 1984 Act which would allow the judge to exclude evidence he considers more prejuridic than probative.In the later case of R v Khan 1994 4 All ER 426, Lord Taylor seemed to change his opinion of the use of Sang as an authority stating thatSince, on any view, the discretion conferred on the judge by s 78 is at least as wide as that determine in R v Sang it is only necessary to consider the question of the exercise of discretion under s 78 which is what the judge did.In general terms although the judge has the discretion to be able to rule the evidence as inadmissible it is more common for the courts to allow the evidence to be adduced.Many judges are of the opinion that the effect of s78 does not make very much difference to the cases brought before the court as most judges seem to decide in favour of inclusion rather then exclusion of such evidence as was the case of R v mason 1987 and in the subsequent case of R v Samuel 1988. Ma son was later quashed on appeal when it was discovered that the only real evidence against the defendant was the confession and that this had been obtained by telling the defendant that his fingerprints had been strand in glass near the scene, which was totally untrue. This decision was reached on the basis of interpretation of s78 where it was considered that there was unspeakable religious belief and impropriety on the part of the police.A similar decision was reached in the case of Matto v DPP 1987where the officers persuaded the defendant to undergo a breath exam scorn the fact that they were conducting the test under circumstances in which they were not entitled to do so. The conviction was quashed with the judge stating that the bad reliance of the officers in carrying out the test when they knew they were not entitled to had tainted the case as a whole. This case was distinguished from the case of Fox v Gwent 1986 as in this case the officers were not aware that they w ere acting outside of there powers.A further case where the court have ruled that the police were not acting in bad faith was the case of R v Alladice 1988 in which the defendant confessed and the confession was allowed to be admitted to the court despite the fact that the police had wrongly refused to allow the defendant access to a canvasser. From all of the above it would seem that the court will only regard the police as acting in bad faith if there is induce evidence that the police deliberately deceived the defendant.There are of course exceptions where the action of the officers was questionable and the courts have still deemed the evidence to be admissible as was the case in R v Christou 1992. In this case undercover police officers set up a shop were they were supposedly merchandising jewellery. All transactions in the shop were secretly recorded which led to the arrest of the defendant for dealing with stolen goods and making incriminating statements. The judge held that the police had not incited the offences and there had been no unfairness in their conduct.In the case of R v Smurthwaite and Gill 1994 the officers posed as contract killers and recorded conversations with the defendants who were attempting to hire the work of a contract killer to murder their spouses. The court regarded the officers as agent provocateurs but held that the officers had not incited the defendants to kill their spouses and therefore the evidence was admissible. In this case the judge utter thatthe fact that the evidence has been obtained by entrapment, or by an agent provocateur, or by a trick, does not of itself require the judge to exclude it. If, however, he considers that in all the circumstances the obtaining of the evidence in that way would have the adverse effect described in the statute, then he will exclude it.In some instances evidence that has been obtained through impropriety has been excluded. Impropriety can occur were there has been a breach of crim inal law or a breach of rate. This was held to be the case in R v Khan 1994 where surveillance devices had been placed on the premises of the suspect. It was argued that the placing of the equipment on the premises amounted to trespass by the police. The court however allowed the evidence to be admitted and the defendant was convicted.In cases where impropriety is alleged most of these cases centre on the admissibility of confessions or incriminating statements. The reliability and admissibility of confessions is governed by s76 of PACE. The most common impropriety is the denial of access to legal representation. The failure to contemporaneously record interviews has also been a problem in the past.One such case where the defendant was denied access to a solicitor was R v Samuel 1988in which the defendant was arrested for burglary and after having been charged with one offence of burglary was denied access to a solicitor during which time he was interviewed again and confessed to a robbery. At the appeal the court held that the denial of the right to consult with a solicitor was a breach of s58 of PACE and of the Code of Practice on Detention and Questioning. As the judge had failed to exclude the confession at the original hearing the conviction for robbery was ordered to be quashed. The appeal court give tongue to that even if the confession was reliable the breach of s58 rendered the confession as unfair.Within the criminal justice system the gaining of evidence illegally is classed as one of the exclusionary rules where evidence is suppressed or defendants rights are violated. Bentham (1827) argued that if youexclude evidence you exclude justice He further argued that the solvent to the problem was not to deprive the jurors of the evidence but to instruct them about the dangers presented by the evidence and allow the venire to decide for themselves whether to believe the evidence presented to them. Bentham stated that it was rather a contradiction for the court to declare their confidence in the decision of the jury whilst at the same time withholding evidence from that jury for fear of them reaching the wrong conclusion. Bentham stated thatIf there be one business that belongs to a jury more particularly than another, it is, one should think, the judging of the opportunity of evidence if they are not fit to be trusted with this, not even with the benefit of the judges assistance and advice, what is it they are fit to be trusted with? Better trust them with nothing at all, and do without them altogether Bentham felt that exclusionary rules areinsults offered by the author of each rule to the understanding of those whose work force are expected to be tied by it.He stated that relevant evidence should only be excluded when there was a risk of an wide verdict without the use of the evidence. He went on to advocatethe abolition of all formal rules and a return to a natural system of free make, establish on everyday experience and common-sense reasoning.In the case of R v Kearley 1992 the House of Lords held that the evidence of telephone calls and visitors to the defendants house where they were asking for drugs was irrelevant or inadmissible as hearsay evidence. The primary evidence in this case came from two witnesses who had given evidence stating that the defendants were act in the sale of heroin. In this case the persons that came to the house or telephoned dealt with the police who were occupying the house at the time.The evidence of those that had rang or had come to the house could only be used as hearsay evidence as there was no way of getting the persons to give direct evidence to the court. Initially the defendant was found guilty but this was overturned on appeal on the grounds that the judge should have directed the jury of the inferences that could be drawn from the evidence. The court stated that the defendants could not be found guilty on the basis of their association with the people who h ad rang or called at the house.As with criminal law evidence can also be excluded in civil law cases under Civil Procedure Rules 32.1, though such exclusion is rare as the burden of proof in civil cases is significantly less then for criminal trials.Choo (1989) argued that there are three possible rationales for the exclusion of evidence, these being compensation, deterrence and repute. Choo (1993) stated that judicial legitimacy was the most satisfactory basis for the exclusion of evidence. Ashworth (1977) disagreed with this stating that exclusion was on the basis of discipline, reliability and protection. Hunter (1994) agreed with this stating that discipline is similar to deterrence.One of the main reasons for excluding evidence is on the basis of reliability. Where the reliability of the evidence is in question the courts will frequently opt to exclude the evidence from the proceedings. Bentham (1827) suggests that there is no direct for total exclusion and that so long as a c aution is issued with the presentation of the evidence the jury should be entitled to hear that evidence.Choo (1989) believes that allowing the evidence to be disclosed to the jury when such evidence could be unreliable is an infringement of the rights of the defendant. Choo states that such evidence should be excluded if it admission would have such an adverse require on the fairness of the proceedings that the court ought not to admit it.From the above it can be concluded that the rules regarding the use of illegally obtained evidence are not uniformly applied. In some instances the court will exclude such evidence from the jury whilst in other cases the evidence will be admitted. It is clear from s78 that evidence that has been illegally obtained can still be submitted to the court if it can be proven to be reliable or if an unfair result would be achieved if the evidence where not presented to the court. The courts seem to place emphasis on the notion of fairness as fair play. This is applicable both in deciding whether to allow the evidence to be heard or whether the evidence should be withheld from the jury.BIBLIOGRAPHYAllen, C, Practical Guide to Evidence, 2nd Ed, 2001, Cavendish PublishingAshworth, A (1977) Excluding Evidence as Protecting Rights 1977 Criminal Law Review 723Ashworth, A and Blake, M The presumption of innocence in English law 1996 Crim LR 306 EBentham, J, Rationale of discriminative Evidence 15-16 (1827), LondonChoo, A Mellors, M, Undercover Police Operations and What the Suspect Said (or Didnt Say), 1995 2 Web JCLIChoo, A (1989) Improperly obtained evidence a reconsideration 9 good Studies 261Choo, A (1993) Abuse of Process and Judicial Stays of Proceedings (Oxford Clarendon entreat)Elliott, C, Quinn, F, Criminal Law, 3rd Ed, 2000, Pearson EducationGlazebrook, P R, Statutes on Criminal Law, 2001, BlackstonesHunter, M (1994) Judicial Discretion Section 78 in Practice 1994 Criminal Law Review 558Huxley, P, OConnell, M, Statutes on Evidence, 5th Ed, BlackstonesMurphy, P, Blackstones Criminal Practice, 2002, Oxford University PressSmith. J C, The presumption of innocence (1987) NILQ 223 BStephen, Sir JF, A Digest of the Law of Evidence, 12th Ed, 1936, Art 147