Criminal Law Scenario

There are many evidential issues raised in this scenario that could be considered points of appeal. It would appear from the evidence that is available that the defendants have a very good reason to appeal to the court of appeal. In the main they relate to incorrect behaviour by the police and the failure of the judge to warn the jury of these points. In summary these issues are:

• • Police searching without warrant - breach of s78 PACE - Judge should have considered admissibility of evidence
  • Breaches of CODE C whilst Jack was being questions - breach of s76 PACE - Judge should have considered admissibility of evidence
  • Jack being refused a solicitor breach of s76 & S58 PACE - Judge should have considered admissibility of evidence
  • Roberts Mental Illness - Breach of S77 PACE - Warning should have been given to Jury
  • Clint's Cell recorded confession - Breach of 78
  • Brad remaining silent - Judge should have given a warning as per s34 of the Criminal Justice and Public 1994
  • Mrs Smith's Identification Evidence - A Turnbull warning should have been given to the Jury

These issues will now be discussed in greater detail.

1. Searching without a warrant

There is an issue as to whether the documents discovered during the search at the house are admissible. The trial judge should have considered whether, in view of the circumstances in which the evidence was obtained, he should have exercised the discretion which he has under s78 of PACE to exclude evidence of what was found on the ground that is admission would so adversely affect the fairness of the proceedings that it ought not to be admitted. S78(1) indicates that it is possible that evidence can be excluded because of the way that it has been obtained. This is particularly the case where the police have acted in bad fair. In Matto v Wolverhampton Crown Court, the defendant was convicted of driving with excess alcohol. Police officers had requested a specimen of breath when they were on the defendant's property. This was unlawful and they knew it to be so. The specimen proved positive. The defendant was then arrested. At the police station, he provided another positive specimen. The appeal was allowed on the ground that because the police had acted in bad faith and oppressively, the Crown Court should have decided to exclude the evidence under s78 if it had directed itself properly. However, in cases where improperly obtained real evidence has been considered by the Crown Court in a s78 application, it is usually admitted before any impropriety in obtaining it is far less likely to have affected its reliability than evidence of an improperly obtained confession. Two features might have made an application to exclude slightly more likely to succeed in this case. It seems very likely that the police were acting in bad faith, and it is clear that their entry was unlawful. But the offence may be regarded as such a serious one that any discretion that should have been exercised may not have been exercised in the defendant's favour. Although it is still a point that was not dealt with properly by the judge and should therefore be considered on appeal.

2. Jack being Detained for 36 Hours with no Food

Jack made a confession to the police which falls within the definition of confessions contained within s82(1) of the Police and Criminal Evidence Act 1984. The question that should have been considered by the judge is whether or not it could be excluded by the judge under s76 because it has been improperly obtained by the police. Under S76 (2)(a), oppression includes, among other things, "inhuman or degrading treatment". In Fulling, Lord Lane CJ relied on a dictionary definition that included "exercise of authority or power in a burdensome, harsh or wrongful manner... the imposition of unreasonable or unjust burdens". He also emphasised the seriousness of the conduct needed to constitute oppression. Paris shows that violence is not an essential element. It is arguable that no allowing somebody food for 36 hours constitutes oppression as by paragraph 12.8 of Code C persons being questioned should have breaks from interviewing at recognised meal times and that short breaks for refreshment should have been provided to him. It is also useful to look at Article 3 of the ECHR which defines oppression as:

"Oppression includes torture, inhuman or degrading treatment, and the use of threat of violence (whether or not amounting to torture)"

It is important to note that section 76(2) (a) deliberately makes no reference to the truth or falsity of the confession. This is because the point is that oppression, let alone torture, is an unacceptable means of enforcing the criminal law even if it might sometimes by an efficient way of securing admissions. A state cannot maintain its liberal credential if its standard repertoire of investigative techniques includes the routine physical or psychological brutalization of criminal suspects. The current facts could mean that his confession is unreliable and that a warning should have been given to the jury. The judge erred in not making this clear to the jury

3. Jack Being Refused Permission to See a Solicitor

Code C stipulates that all suspects are entitled to legal representation and this is clear from s76(2)(b) of PACE. In R v Samuel Hodgson J stated that this was 'one of the most important and fundamental rights of a citizen'. Yet, no remedy is provided to suspects who are unlawfully denied access by the police, apart from police complaints procedures and exclusion. Under the disciplinary principle, evidence could be excluded simply to punish the police for wrongfully denying access and, it was hoped, to secure greater future compliance with the law. The disciplinary principle in fact formed the basis of only one reported access to solicitor decision and was expressly disapproved by the House of Lords in R v Sang. Reliability was the dominant principle. Under s58 of PACE, delay in obtaining the suspect legal advise is only permissible for limited reasons where someone has been arrested for a serious arrestable offence and where the authorisation of an office of at least the rank of superintendent has been obtained. The offence is almost a serious arrestable offence. However we do not know the rank of the police officer that told Jack he could not have legal advice. Even if the delay in obtaining legal advice was authorised by an office of appropriate rank, it is most unlikely that the s58(8) condition applied. Section 58(8)(c)does indeed authorise delay where the exercise of the right will hinder the recovery of any property obtained as a result of the offence. However in the case of Samuel the Court of Appeal stated that the right of access to legal advice was one of the most important and fundamental rights of a citizen. The court also said that where the police try to justify denial of access to a solicitor, that person detained or the actual solicitor involved. The officer has to believe, inadvertent or unwitting conduct apart, that if allowed to consult with Jack, the solicitor would commit a criminal offence. There is no evidence whatsoever to supper such a belief. Provided that causation can be shown, there is no reason why an argument based on the denial of a solicitor would have succeeded and therefore this is a point that Jack may be able to appeal.

4. Robert's Confession in light of his mental Illness

PACE Code C makes extensive provisions for vulnerable detainees, who should normally be accompanied during interview by an appropriate adult. Section 77 (1) provides that: "Without prejudice to the general duty of the court at a trial on indictment to direct the jury on any matter on which it appears to the court appropriate to do so, where at such trial- the case against accused depends wholly or substantially on a confession by him; and the court is satisfied -

• • (a) that he is mentally handicapped;
  • (b) and that the confession was not made in the presence of an independent person,

the court shall warn the jury that there is a special need for caution before convicting the accused in reliance on the confession, and shall explain that the need arises because of the circumstances mentioned in paragraph (a) and (b) above. The factors which the trial judge ought specifically to mention, in an appropriate case, include the role that an independent adult might have played, had one been present in protecting the accused's interest.

5. Clint's Cell recorded Evidence

Clint may be able to argue that his confession was obtained unfairly and that a warning should have been given by the judge in respect of this evidence. However in cases where cell confessions have been tape recorded, and where convictions have resulted, there have been a number of unsuccessful appeals. The Court of Appeal has held that in the absence of evidence of trickery, the interests of justice require that the evidence be admitted. In Ali recordings of conversations between the accused and his family were made in an interview room where the police planted a microphone without informing the accused. The trial judge held the evidence to be admissible. The Court of Appeal ruled that the only question was whether the trial judge correctly exercised his discretion under section 78 of the Police and Criminal Evidence Act 1984 (PACE). In Bailey & Smith, police secretly tape-recorded the suspect's discussions with each other in a police cell. The Court of Appeal upheld the trial judge's ruling that there had been no breach of Code C.8.1 (more than one person not to be detained in a cell), and that the suspect's right to silence was not undermined. However, the Court emphasised that such methods should only be employed "in grave cases", and that nothing should be done to render unreliable any confession. Generally, the Court of Appeal have sanctioned the admission of tape recorded cell confession evidence. Confronted with the recorded evidence, therefore, the Court of Appeal has concluded that the interests of the suspect are fully protected by the existence of the Trial Judge's discretion to exclude under section 78 of the Police and Criminal Evidence Act 1984.

6. Brad being Silent

The Judge took the incorrect approach in relation to Brad's silence at the Police Station. If the Judge wanted the jury to consider inferences from Brad's silence then he should of made a direction to the jury under s34 of the Criminal Justice and Public Order Act 1994 in respect of Brad's silence at the police station. If he was not offered legal advice (a point which we cannot be sure of) before being questioned then no inferences from silence can be drawn. The direction that a judge has to give in the ordinary case where the prosecution relies on the inference is complex enough. In one recent case the court referred to the area of law as "a notorious minefield", making it highly desirable that the judge should discuss any proposed direction with counsel so as to reduce the risk of mistakes In the instant case Rix L.J. teases out no less than eight matters which should be dealt with in a "well-crafted and careful" direction on s.34. If he was offered legal advice, and he relied at trial on a fact or facts that he did not mention to the police, it is possible that a direction should have been given. If a s34 direction was to be given then the judge would have to follow the guidelines based on Gill and Petkar and Farquhar that is to say, he must identify the fact on which Brad relies and which was not mentioned on questioning. The judge should have directed the jury that it is for them to decide whether in the circumstances the fact on which Brad relied and which was not mentioned on questioning. He should have directed the jury that it is for them to decided whether in the circumstances, that fact was something that Brad could reasonably have been expected to mention. He should have told them that if they think it was, they were not obliged to draw any inferences, but that they may do so. Furthermore, he should have told the jury that a suspected person is not bound to answer police questions, that if an inference is drawn they should not convict wholly or mainly on the strength of it, and that they must be satisfied that there is a case to answer before they could have drawn any adverse inferences from silence. Finally, he should have told the jury that they can draw an adverse inference only if they were sure that Brad was because he had no answers, or none that would stand up to investigation. As to what the outcome would be if this conviction was found to be unsound is a question that remains unanswered. As Rees and Birch point out "the omission of a warning which does no more than point out the obvious risk of self-serving testimony can hardly be a good reason for quashing a conviction when, as Rix L.J. says, it is "inconceivable" that the jury did not understand the situation perfectly well for themselves."

7. Mrs Smith's Identification Evidence

There is a query here as to whether or not the judge should have provided a informal warning in relation to Mrs Smith's evidence and its reliability when summing up to the jury. The reason for this is that she is fairly elderly and her evidence suggests that she "might" have seen them entering the shop. Mrs Smiths observations would not and should not have been allowed to assist the prosecutions case as the actions of the gentlemen entering the shop is as consistent with them doing their shopping as it is with them having committed the criminal acts of which they have been charged. The facts do not reveal anything of the circumstances in which the formal identification of the suspects was carried out following the evidence by Mrs Smith. Evidence of pre-trial identification is admissible by virtue of S120 (1, (4) and (5) of the Criminal Justice Act 2003 provided the codes of practice are followed. Procedures for the pre trial identification of suspects are laid down by Code D of the Codes of Practice issued pursuant to s66 of PACE. By s67(11) of the Act, if any provision of a Code appears to the court to be relevant to any question arising in the proceedings, it shall be taken into account in determining that question. The court is not obliged to exclude the evidence where there has been breach of a Code; the Court of Appeal in Grannell stated that it is necessary to establish whether the breach has caused unfairness. In relation to this identification witness the judge should have directed the jury in accordance with the principles set out in Turnbull. That case requires a judge to do three things when the prosecution case depends wholly or substantially (as it does here) on the correctness of one of more identification, and the defendant alleges that the identifying witnesses are mistaken. The judge should have warned the jury of the special need for caution before convicting the accused in reliance on identification evidence. He must tell the jury the reason why such a warning is needed. The judge must then direct the jury to examine closely the circumstances in which each identification came to be made. Having warned the jury in accordance with these guidelines, the judge should go on to direct the jury to consider if the identification evidence is supported by any other evidence. At this stage he should identify what is, and what is not, capable of providing such support. It was said in Turnbull that where the quality of the identification is good, the jury can safely be left to asses it, even without any supporting evidence, subject to an adequate warning. But where the quality is poor, the judge should withdraw the case from the jury at the end of the prosecution case in the absence of any supporting evidence.

Bibliography

Legislation

• • Police and Criminal Evidence Act 1984
  • Criminal Justice and Public Order Act 1994

Cases

• • Allen [1977] Crim LR 431)
  • B [2003] EWCA Crim 3080
  • Bailey & Smith (1993) 97 Cr.App.R 365
  • Fox [1985] 1 WLR 1126
  • Fulling [1987] QB 426
  • Gill [2001] 1 Cr App R 160
  • Grannell (1990) 90 Cr App R 149
  • Matto v Wolverhampton Crown Court [1987] RTR 337
  • Paris (1993) 87 Cr App R 104
  • Petkar and Farquhar [2003] EWCA Crim 266
  • Turnbull [1977] QB 224

Journal Articles

• • Laursen A, (2000) "Israel's Supreme Court and International Human Rights Law: The Judgement on "Moderate Physical Pressure", 69 Nordic Journal of International Law 413
  • Rees T & Birch D, (2004) "Summing Up: Silence of a Defendant at Interview- Direction Under the Criminal Justice and Public Order Act", Criminal Law Review Feb 157-159

Books

• • Dennis I, (2002) "The Law of Evidence", Sweet and Maxwell: London
  • Keir S, (2001) "Criminal Justice, Police Powers and Human Rights", London, Blackstone Press
  • Keane A, (2005) "The Modern Law of Evidence", Oxford University Press; Oxford
  • Osin P, (2001) "PACE Explained" , London, HMSO
  • Roberts P & Zuckerman A, (2004) " Criminal Evidence", Oxford University Press
  • Tapper C, (2003) "Cross and Tapper on Evidence" Oxford University Press