Problem Answer to Law of Evidence Question

Problem Answer to Law of licence QuestionIn this coursework I have paid particular attention on the younker umpire and nefarious tell profess 1999(YJCEA) , Criminal Justice bit 2003 , formula D of PACE 1984 Code of Pr promptice and slicknesss much(prenominal) as Turnbull 1977 , R v Hanson 2005 , R v Vye 1993 and other relevant cuttings in social club to solve this problem question based on iniquitous proceedings and interpret the statutes , the global rule and exceptions of hearsay severalize ,apply the effect laws and critically evaluate and analyses them.In this reachn set of features we take to discuss and apply the legal rules of induction in the context of criminal proceedings specifically watchman competence compellability, good separate badness grapheme, general rules of hearsay evidence and its exceptions with the proper application of youthfulness Justice and Criminal manifest Act 1999 ( YJCEA) and Criminal Justice Act 2003 and relevant cases , j ournals , articles .According to the facts doubting doubting Thomas is only 11 years old who saw two men putting electrical equipment into the belt of a white van. He along with Harry J unitys identified Adam King as iodin of the men they saw at a video credit procedure . this instant we need to focus on mainly whether Thomas is really competent to yield evidence and even if he can, what type of evidence he pull up stakes provide .As a tyke low 14 Thomas moldiness give unsworn evidence.1 In this essence the test for sworn testimony is set out in R v Hayes2 which is un obligatory in this scenario .However, in R v MacPherson3 the judicatory of Appeal held that a 5 years old child is competent in tolerant visualise .Moreover, the evidence of children on a lower floor 14 is to be granted unsworn and that a childs evidence must be resuscitate unless it appears to the act that the child is incapable of understanding questions put to him and unable to give answers which can b e understood.4The court must decide non whether he is competent on grounds of age but whether he is capable of prominent intelligible evidence .It is submitted that a normal 11 years old child would be .The detectes credibility and reliability are relevant to the weight to be given to his evidence and office well from the land of a submission of no case to answer but they are non relevant to competence 5 . In delivering the judgment of the Court of Appeal in R v Sed6 old LJ pointed out that partitioning 53 does not expressly provide for 100% comprehension and in this case the Court of Appeal was much influenced by the earlier decision in R v D .7Allowance should be made on the witnesss performance .In this fact it whitethorn vary fit in to the subject matter of the questions, on the length of time between the events referred to by the witness and the date of the unbelieving and on all strong feelings that those events may have caused 8 as to whether Thomas is really compe tent to give evidence or not .Moreover according to the statute there is no minimum age for childrens to give evidence.9In this fact, Thomass parents informed the CPS that Thomas is nervous about giving evidence in court .In relation with this there is a possibility to use of picky Measures comparable to use screens10, live inter-group communication 11 , video recorded evidence in chief 12 , evidence to be given in private 13 by the pursuance.In this case the court can interview the child witness14 and it could be a video interview if necessary 15 .It may be considered that Thomas might encounter supererogatory difficulty in testifying .Under variance 16 (1) (b) and percentage 16 (2) of the YJCEA 199916 may give evidence by means such as live video link or pre recording . In R ( On the application of D ) v Camberwell Green early days Court 17 the Divisional Court held that particular measures provisions , here involving children , were compatible with article 6 ( 3 ) ( a ) of European Convention of mankind Rights 18 which embodies the defendants near to examine or have examined witnesses against him .As person under 18 Thomas may also be eligible for special Measures Directions .Under section 21 ( 1 ) ( a ) of the youth Justice Act and Criminal usher Act 1999(YJCEA)19 as amended by the Coroners and Justice Act 2009 , the primary rule in requiring admission of a video interview as examination in chief and cross examination through a live link or video link 20at runnel , applies to all witnesses under 18 , regardless of the nature of the offence . However , under section 21 if the court determines that under the primary rule special measures would minimize the quality of the witnesss evidence because court can consider a screen which will be undefended for Thomas to elect to give oral evidence in chief or testify in the courtroom rather than using the live link or pre recorded police video 21.Under section 21 (4C) of YJCEA 1999 the court will consider some factors 22.Although Thomas is not in an age where he might be expected to be able to give live testimony as he is nervous in giving evidence in court according to the facts but he may be accompanied by an adult to provide support for example his mother who have no personal involvement in this case .Now we need to assess the admissibility of the identification evidence against George smith .It mainly deals with Code D of PACE 1984 Codes of Practice.23Breaches of Code D sometimes can result in the exclusion of identification evidence under s.78 (1) of PACE. Because failure to comply with the provision in CODE D can affect the reliability of the evidence and reliability is an grave consideration in the application of s.78(1).An important case on the consequences of non-compliance with the provisions of Code D is R vGorja (Ranjit)24.Moreover if Code D do not justify the exclusion of identification evidence, they may require appropriate warnings to be given to the contro l panel 25 .In order to avoid chimerical identification of a defendant by prosecution witnesses the Court of Appeal recommended a new approach by trial arbiters to deal with the problems of identification in Turnbull26.The precautions in this case only apply whenever the prosecution case depends wholly or substantially on the correctness of one or more identifications of the defendant, and the defence alleges that the identifying witnesses are mistaken and in this case the prosecution substantially depends on the correctness on the identification of George. According to Shand v The Queen27 the prosecution may argue that the Turnbull selection must be given where identification is based on recognition. Moreover, one witness Thomas already mistaken to identify George 28.But sometimes Turnbull is not required when a witness failed to distinguish the suspect 29 and Thomas failed to recognize George.30In R v Forbes31 it was held that the breach of Code D did not require the evidence to be excluded under section 78 of PACE. However , in this fact , Thomas failed to identify George32.Moreover , George denied that he was involved in burglary33.It could be argue that the identification procedure under Code D paragraph 3.12 is not necessary in this fact .In R v Turnbull34 ,the Court of Appeal (CA) put down guidelines for the treatment of the identification evidence where the case depends wholly or substantially on the correctness of the identifications. The guidelines make it clear that the judge should remind the jury of every weakness in the identification evidence and that the judge should withdraw the case from the jury unless there is every other evidence which will support the identification evidence and in this fact there is another witness named Harry who confirmed and acknowledge George35 .In this fact it is highly seeming that the prosecution will be able to argue that identification of evidence against George Smith is allowable.The next issues to be consider Adam Kings preliminary curses for assault, robbery and burglary . Evidence of a witnesss bad credit did not have to amount to proof of a lack of credibility on the part of the witness.36 This question is concern with rules relating to the admissibility of defendants bad character and also the fairness of the changes made by CJA 2003. In this regard the Law Commission reports on bad character in 2002.37 The common law recognized the way in which evidence of character could be relevant. It could make allegations against a defendant more in all probability be true but the trial should not be used to investigate the truth of a former allegation. 38Sec-101 of CJA 2003 states that in criminal proceedings evidence of defendants bad character is admissible if one of the factors from sub-section 101(1) (a)-101(1)(g) is fit 39.In this regard we need to consider the three fold test in R v Hanson40which is laid down by the Court of Appeal. In this case the propensity41 to commit the offence is relied on as the basis for admitting evidence of a defendants bad character.42 The prosecution now may argue that his previous convictions is relevant to an important matter in this trial43 .But previous convictions for offences of the same description or category does not automatically mean that they should be admitted44.Adam Kings bad character might be admissible by the courts as the defendant has a propensity to committee offences of this kind because a single previous conviction can be sufficient to establish propensity45 .Moreover in Isichei46where the defendants propensity47 to supply cocaine was relevant to the issue of identification.In this issue we need to discuss as to how should the judge direct the jury about George Smiths character .In this fact George Smith already denied that he have any involvement in the burglary and he dont even have any previous conviction .Similarly in R v Aziz48 the house of Lords held that a person with no previous convictions was generally to be treated as being of good character49 and in this fact it could argue that George have good character .Whenever a evidence of good character is given , its significance must be explained to the Jury .The Court of Appeal laid down two limbs in R v Vye50. In this fact it could easy argue that the judge will direct the jury based on the Vye direction about Georges character.However , there were some problems in Vye direction like if someone plead guilty in any other county then he is no longer of good character but in this fact it is already apparent that George dont have any previous conviction .Moreover ,in R v M (CP)51 it was held that once the judge decided that the defendant should be treated as a person of good character then the full Vye direction on good character should be given as it is a matter of law .The prima facie rule of practice is to deal with this by giving a qualified Vye direction rather than no direction at all.52 According to R v Doncaster53 i t can easily argue that if the defendant has no previous conviction but bad character evidence is given under the Criminal Justice Act 2003 then a modified direction should be given .From the above discussion it can easily argue that the judge in this scenario should direct the jury about George Smiths character with Vye direction because it is the prima facie rule or practice.54Now we need to discuss the issue as to whether the persecution will be permitted to show the written instruction55 of Harry who is pitiful to New Zealand .From this issue it is apparent that we need to consider the statement as hearsay evidence which is be as a statement made outside off the court with the purpose of showing that the statement is true.56But generally in criminal cases hearsay is inadmissible which is also affirmed by Lord Normand in Teper v R 57.Moreover in Myers v DPP58 it was held that a contemporaneous record made by workers in a motor car factory of cylinder block and chassis numbers was held to be inadmissible hearsay.In this fact , we need to focus if the prosecution made a written statement from Harry then whether it will be admissible59.In this scenario , Harry was outside of UK60 and in relating with these sort of issue the Law Commission introduced a just practicability test which require the party wishing to adduce the evidence to make reasonable efforts to bring the witness to court but the court will take into account some factors such as the seriousness of the case and the importance of the information contained in the statement.61Moreover , in R v Castillio and Others 62 it was held that it was not reasonably practicable for the witness to attend and important consideration was given to the evidence given by the witness.The prosecution also argue that it falls inside the exception of the general rule as the witness Harry moved outside of UK63 and it was beyond reasonable doubt64.From the above discussion it is highly likely that the prosecution will be able to adduce the written statement of Harry at the trial.Total discussion Count = 3208BibliographyPrimary sourcesText BookDennis .I.H , The Law of Evidence , tertiary chance variable ,Sweet Maxwell 2007Durston . G , Evidence Text Materials , 2nd Edition , Oxford University Press2011Allen , C , Practical Guide to Evidence , 4th Edition, Routledge . Cavendish 2008Choo , A.L-T , Evidence , 3rd Edition , Oxford University PressSpencer,J.R and Flin,R ,The Evidence of Children The Law and the psychological science (2nd edition, Blackstone , London 2003)H.Phil , Blackstones Statutes on Evidence ,12th Edition 2012Guidance for insecure or Intimidated Witness , including children (The Memorandum 2002)Spencer,J.R. and Flin , R , The Evidence of Children The Law and the Psychology (2nd edition), Blackstone , London 2003Emson, R. Evidence. (Basingstoke Palgrave Macmillan, 2010) fifth editionMunday, R. Evidence. (Oxford Oxford University Press 2011) sixth editionRoberts, P. and A. Zu ckerman Criminal evidence. (Oxford Oxford University Press, 2010) second editionTapper, C. surmount Tapper on evidence. (Oxford Oxford University Press, 2010) twelfth editionStatute youthfulness Justice and Criminal Evidence Act 1999 ( YJCEA)Criminal Justice Act 2003European Convention of Human Rightsthe Coroners and Justice Act 2009Code D of PACE 1984Journals The Law Commission report (2002)Ho, H.L. Similar facts in civil cases (2006) 26 Oxford Journal of lawful Studies 131.Munday, R. Case management, similar fact evidence in civil cases, and a dividedlaw of evidence (2006) 10 International Journal of Evidence and Proof 81103.Munday, R. What actually constitutes evidence of bad characterMunday, R. Single act propensity (2010) 74 The Journal of Criminal Law 127(reviews cases where the Crown has sought to adduce only single acts of misconduct, in order to ascertain how expansively or restrictively the courts interpret the bad character provisions).Redmayne, M. Criminal evidence Th e relevance of bad character (2002) 61 CLJ 684714.Code of Practice for the designation of Persons by Police Officers (Code D) of the Police and Criminal Evidence Act 1984 (PACE).Devlin Report Evidence of identification in criminal cases (1976)Roberts, A. Eyewitness identification evidence procedural developments and the ends of adjudicative accuracy (2008) 6(2) International Commentary on Evidence.Ormerod, D. and D. Birch The evolution of exclusionary discretion (2004) Crim LR 767.ArticleThe Law Commission ( demonstrate OF BAD CHARACTER IN sad PROCEEDINGS Report on a reference under section 3(1)(e) of the Law Commissions Act 1965 )EVIDENCE LAW CHARACTER AND CREDIBILITY (February 1997 Wellington, New Zealand )Bird.J , Plymouth Law and Criminal Justice Review (2014)Birch.D , A erupt Deal for Vulnerable Witnesses?2000 Crim L.R 223Creighton,P.Spouse Competence and Compellability1990 Crim LR 34Hoyano,L.C.H,Striking a Balance between the Rights of Defendants and Vulnerable Witnesses Will Special Measures Direction Contravene Guarantees of a Fair Trial?Hoyano,L.C.H,Coroners and Justice Act 2009 Special Measures Directions Take 2 Entrenching Unequal Access to Justice2010 Crim LR 345Durston,G ,Bad quotation Evidence and Non party Witnesses under the Criminal Justice Act 2003 (2004) 8 E P 233Goudkamp.J ,Bad Character Evidence and fell Behaviour (2008) E P 116Law Commission Consultation Paper ,Evidence in Criminal Proceedings Previous Misconduct of a Defendant(CP 141) (London , 1996)Law Commission Report No 273 (Cm 5257),Evidence of Bad Character in Criminal Proceedings (London , 2001)Mirfield,P , Character , Credibility and Untruthfulness(2008) 124 LQR 1Spencer,J.R ,Evidence of Bad Character (Hart , London,2010)Byron (1999) The Times, 10 March and Gayle 1999 2 Cr App R 130David Ormerods commentary in 2011 Crim LR 10, 793798Dennis, I. The right to confront witnesses meanings, myths andhuman rights 2010 Crim LR 4, 25574.Mirfield, P. Character and credibility 20 09 Crim LR 3, 13551Redmayne, M. Recognising propensity 2011 Crim LR 3, 17798Munday, R. Single act propensity 2010 J Crim L 74(2), 12744Law Commission No 245 , 1997 , para 8.39Roberts, P. and A. Zuckerman, Implied assertions and the logic of hearsayBirch, D. Interpreting the New Concept of Hearsay (2010) CLJ 72.Common LawsR v Hayes 1977 1 WLR 234R v MacPherson 2005 EWCA Crim 3605R v Sed2004 EWCA Crim 1294R v D 2002 2 Cr App R 36R v K 2006 EWCA Crim 472R v Powell 2006 EWCA Crim 3R ( On the application of D ) v Camberwell Green early days Court 2003 EWHC Admin 22R v Gorja (Ranjit) 2010 EWCA Crim 1939R v Forbes 2001 1 All ER 686Turnbull 1977 QB 224Shand v The Queen 1996 1 WLR 69, 72R v Nicholson 2000 1 Cr App R 182Thornton 1995 1 Cr App R 578 and Slater 1995 1 Cr App R 584R v Oscar 1991 Crim LR 778Limburne and Bleasdale 1994 Crim LR 118.R v Caldwell 1993 99 Cr App R 73R v Hanson 2005 1 WLR 3169Tully and woodland (2007) 171 JP 25R v McDonald 2007 EWCA Crim 1194.Isichei 2006 EWCA Crim 1 815R v Aziz 1996 AC 41R v Vye(1993) 97 Cr App R 134.Teper v R 1952 AC 480 at 486Myers v DPP 1965 AC1001R v Castillio and Others 1996 1 Cr App R 438R v Bray 1988 88 Cr App R 354R v Acton Justices ex p McMullen 1990 92 Cr App R 98Electronic Sourceswww.lexisnexis.co.ukwww.westlaw.co.ukwww.gov.co.ukwww.guardian.co.ukwww.homeoffice.gov.uk/publications/police/operational-policing/pace-codes/pace-code-d-2011www.officialdocumentsgov.uk/document/hc1011/hc08/0829/0829.pdf11 Section 56(1) (2) of the Youth Justice and Criminal Evidence Act 19992 1977 1 WLR 2343 2005 EWCA Crim 36054 Section 53 (3) of the Youth Justice and Criminal Evidence Act 19995 R v MacPherson 2005 EWCA Crim 3605 , 2006 1 Cr App R 306 2004 EWCA Crim 12947 2002 2 Cr App R 368 Paragraph 45 46 where there is a endangerment that a complainant may be incompetent , the judge will usually before the trial have seen a video recording of the complainants interview with the police and so will be in some position to make a decision a bout competence after hearing submissions from prosecution and defence under Youth Justice and Criminal Evidence Act 1999 , section 279 Section 53(1) 0f Youth Justice and Criminal Evidence Act 199910 Section 23 of Youth Justice and Criminal Evidence Act 1999 and R v Brown 2004 EWCA Crim 162011 Section 24 of Youth Justice and Criminal Evidence Act 199912 Section 27 of Youth Justice and Criminal Evidence Act 199913Section 25 of Youth Justice and Criminal Evidence Act 199914 Guidance for Vulnerable or Intimidated Witness , including children (The Memorandum 2002) and it is also available in www.cps.gov.uk15 Rv K 2006 EWCA Crim 472 , R v Powell 2006 EWCA Crim 316 Section 16 ( 1 ) ( b) of YJCEA 1999 states that if the court considers that the quality of evidence given by the witness is likely to be diminished by reason of any circumstances falling within section ( 2 ) like section 16 ( 2 ) ( a ) states that the witness suffers from mental disorder within the meaning of Mental Health Act 1983 .17 2003 EWHC Admin 2218 Article 6 (3) ( a ) of ECHR states that everyone charged with a criminal offence has the following minimum rights(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him19 Section 21 (1) ( a) of YJCEA 1999 states that a witness in criminal proceedings is a child witness if he is an eligible witness by reason of section 16 ( 1 ) ( a) of YJCEA states that whether or not he is an eligible witness by reason of any other provision of section 16 or 17 of YJCEA20 R v Camberwell Green Youth Court 2005 1 WLR 39321 R v Powell 2006 1 Cr App R 3122Under section 21 (4C) of YJCEA 1999 the court will consider some factors such as (a) the childs age and maturity date , (b) the childs ability to understand the consequence of giving evidence in a diametrical way , (c) the relationship between the witness and the accused , (d) the childs social and cultural priming coat and ethnic origins and (e) the nature and alleged cir