evidence continued

Question 1

Improperly obtained evidence

Answer 1

• Ensuring that all the evidence displayed within court is obtained in an appropriate manner is of upmost importance

Question 2

Historical approach

Answer 2

• There was absolutely no barrier or existence of common law which prevented the use of improperly obtained evidence
• While many judges refused to allow evidence which was clearly existing as a result of improper methods, the statute was not there to back them up

Question 3

Impact of HRA 1998

Answer 3

• The use of HRA began to change this, and statutory evidence began to make sweeping changes to the regulation of evidence
• There have also been increasing research into the use of improperly obtained evidence and why we should be excluding this form of evidence

Question 4

1. Morally unfair

Answer 4

• While the law does not tend to deal in issues of morals, it is unfair to make sure of evidence gained this way
• Even if the evidence is highly relevaent and cogent, the methods in which it was gathered would impact upon this
• Ad Duff et al (2007) established, a court cannot condemn the accused while condoning inappropriate actions of the police

Question 5

2. Duty of the court

Answer 5

• It is within the remit of the court to restore to any victims of police wrongdoing to the position they would have been at had the evidence not been collected
• Aka: a case should only go ahead if the remaining evidence is sufficiently strong as to stand up without the improperly obtained things

Question 6

3. Fair trial= appropriate verdict

Answer 6

• The fairness of the process impacts upon the accuracy of the verdict
• Truth and justice are intimately connected and these cannot be separated
• Ensuring that evidence is appropriate means making sure that the verdict can be as correct as possible

Question 7

4. Integrity

Answer 7

• The integrity of the CJS hangs on it’s own ability to remain pure and untouched by instances of illegality
• All improperly obtained evidence should be excluded
• This makes sense as trust would be significantly diminished in courts if there was evidence such as this regularly include
• There would be widespread concern if criminals could walk free if technicalities aren’t followed

Question 8

Does this matter?

Answer 8

• There is an argument that the behaviour of those whose job it is to engage with the collation of evidence are of no concern to the judges, as along as there is no impact on the reliability of the evidence

Question 9

Current climate

Answer 9

• Within the UK there is no defence of entrapment, and there is no rule that evidence which has not been obtained in accordance with the law cannot be used in court
• The courts do not see it as their function to decide to police the police or CPS

Question 10

Crompton J [1861]

Answer 10

• ‘It matters not how you get it, if you steal it even, it would be admissible in evidence’

Question 11

Post 1861 view

Answer 11

• Modern practise does follow this guidance, although as is the way with common law, exceptions have evolved
• Confessions obtained through oppression or in circumstances likely to make them unreliable are not permitted
• Evidence cannot be used if the party seeking to use it, obtained them through trickery or deception

Question 12

Jeffery v Black [1978]

Answer 12

• Arrested on suspicion of stolen sandwich from pub (genuinely)
• Police then searched his accommodation without warrant and found cannabis
• The court held this was properly admitted
• The court’s role is to evaluate the relevance of the evidence and not how it was obtained

Question 13

What did Jeffery demonstrate

Answer 13

• The willingness of the courts to use the common law discretion (of trickery or unfair practise) was towards the accused was rare
• It was even rarer for the eventual failure of that discretion to result in successful appeal

Question 14

R v Sang [1978]

Answer 14

• Leading case on the issue
• Counterfeiter of notes arranged to meet someone interested in buying who was actually an undercover police officer
• Failed to persuade the judge to disallow the evidence, he pled guilty and then appealed

Question 15

Appeal basis

Answer 15

• The appeal was on the fact that the offence was actually instigated by an agent provocateur
• Appeal rejected by CoA and HoL (pre SC)
• Their lordships accepted that a judge in a criminal trial has a general discretion to refuse to admit evidence where its probable prejudicial effect outweighed the probative value as to make admission unfair

Question 16

Lord Diplock [1978]

Answer 16

• “Save with regard to admissions and confessions and generally with regard to evidence obtained after the commission of the offence, the judge has no discretion to admit relevant admissible evidence on the ground it was obtained in improper or unfair means…The court is not concerned with how the evidence was obtained.”

Question 17

So.. what?

Answer 17

• The scope of limitation is according to Diplock, very limited and is not there to reprimand the police
• Only in times where the actions clearly breach items defined by the law should a judge exclude evidence
• Following Diplock’s speech, his surrounding judges were less restrictive and preferred an attitude of judicial discretion which was unlimited
• However, all agreed there was no defence of entrapment…and that’s about as clear as it got

Question 18

Developing entrapment: R v Looseley (A-G’s Ref, No3 of 2000)

Answer 18

• Leading case on entrapment
• D was a known heroin dealer and claimed he had been lured into supplying drugs to a police officer
• D took some persuading from officers to get heroin and supplied it, but defended that he had nothing to do with heroin normally and only agreed to supply as a favour
• HoL acknowledged the lack of entrapment in English Law but also stated that proceeding should be stayed where the actions of the police were ‘so improper that they bought the administration of justice into disrepute.’

Question 19

Did the police do no more than present the D with an unexceptional opp to commit a crime?

Answer 19

• There are four factors which need to be taken into consideration in deciding whether conduct is ‘seriously improper’

Question 20

1. Nature of the offence

Answer 20

• The use of proactive techniques is obviously required and the secrecy and difficulty of detection are obviously required and of relevant considerations

Question 21

2. Reason for the particular operation

Answer 21

• Police must act in good faith and not as a malicious vendetta against an individual
• Reasonable grounds for suspicion is one way in which good faith may be established, but may be centred on a place

Question 22

3. Nature and extend of police participation in crime

Answer 22

• The more forceful or persisten the police involvement, the more readily a court may decide they overstepped the boundary
• Regard must be had to the persons vulnerability

Question 23

4. D’s criminal record

Answer 23

• Only relevant if linked to factors surrounding reasonable suspicion

Question 24

Principle

Answer 24

• It is acceptable to provide an unexceptional opp to commit a crime and if that person then did so freely, there is no abuse of process or exclusion of evidence
• However, if a person committed an offence that they would not have ordinarily committed following inducement, this undermines the good faith

Question 25

R v Palmer [2014]

Answer 25

• Considered multiple entrapment cases
• Police conducted covert operation, posing as dishonest pawnshop making arrests for stolen property
• Questions raise concerning propensity to commit crimes
• Was this an abuse of process?

Question 26

Held

Answer 26

• Applicants were not vulnerable or enticed by officers conduct
• Their only vulnerability was their greed and there was nothing exceptional about the opportunity presented to them

Question 27

How do we deal with entrapment

Answer 27

• Each case turns on it’s own facts but if the D commits an offence that they would not have committed ordinarily, then the proceedings out to be stayed

Question 28

Admissibility of evidence

Answer 28

• We’ve discussed the use of improperly obtained evidence – but what about the relevancy of it?
• We lay down exclusionary rules, designed in theory to ensure that only the best and most reliable evidence is used

Question 29

Relevancy

Answer 29

• A really important concept, and the judges decision can be quite artificial
• While the following are the rules, be prepared to accept them under the guise of ‘court life doesn’t always reflect real life’

Question 30

Hearsay

Answer 30

• Witnesses must confine their knowledge to what they know and what they experienced
• Hearsay is evidence adduced to prove facts which the witness has no first hand knowledge of
• It may be admissible in criminal cases but is subject to four circumstances, and many exceptions under CJA 2003

Question 31

Opinion evidence

Answer 31

• Witnesses must remain truthful to facts, and leave inferences to the court
• Obvious subject to exceptions, most notably expert evidence
• E.G: witness can say ‘they appeared to be drinking’ but would be beyond them to deduce they were incapable or unfit to drive
• Generally inadmissible, but exceptions and rules apply

Question 32

Evidence of bad character

Answer 32

• A D’s bad behaviour or criminal record can be made available and public and used as evidence
• Can be highly relevant and make an exceptionally strong case among other evidence
• However, it is far less likely to allow evidence if bad character concerning witness or victim anymore

Question 33

Evidence of sexual history/ experience

Answer 33

• Largely not admissible for the defence, although prosecution can disclose if appropriate
• Only in exceptional circs can defence cross examine V about their sexual behaviour other the one being discussed in the court