Immigration Law Essay

D was arrested by customs officers at the airport for smuggling drugs. He told the customers officers that A, B and C had agreed to buy drugs from him and that he was to contact A when he had passed through customs. He agreed to give evidence against A, B and C if he was charged with a lesser offence. Under the supervision of customs officers D telephoned A and agreed to meet him at the airport hotel and a conversation between D and A at the hotel was covertly recorded in which D offered to sell A 5 kilos of cocaine. A was arrested by the customs officers and later questioned under caution after consulting with his solicitor. A informed the officers that his solicitor had advised him that it would not be reasonable to expect him to answer any questions until he saw a written copy of D's statement. When B was arrested and questioned he said he had never met A, C or D. He now admits that he knows A but says he was in panic because customs seemed to have such a strong case against A and he wanted to distance himself from A. When C was arrested and questioned the customs officer told him that since he was an illegal immigrant he could be deported and that it was in his interests to cooperate. C then made a full confession. At the trial D pleaded guilty to a lesser offence and was called as a witness against A, B and C who all plead not guilty to a conspiracy to import illegal drugs. As trial judge deal with the following submissions:

1. Submission by A That the Proceedings Should be Stayed

Dealing first with the testimony of D it can be shown that an inculpatory statement made by one accused about another outside court and not in the presence of the co-accused, will not be evidence against the co-accused (because of the rule against hearsay) and will be admissible only to the extent that it also implicates the person who makes the statement. The judge has no discretion to exclude relevant evidence on which a defendant proposes to rely, and a co-defendant will have to make do with a warning to the jury in the summing up that what is said outside court by one defendant is not evidence against another.

In relation to the covert recording this is dealt with in S78(1) of PACE. Evidence which might ordinarily be reliable may be rendered unreliable by the way in which it has been obtained and s78(1) has been used to exclude it where this has been so. It has been said that the provisions of Code C that are designed to ensure that interviews are fully recorded and the suspect given an opportunity to check the record should be strictly followed, and that courts should not be slow to exclude evidence following substantial breaches.

Where evidence, as it has been here, is obtained by entrapment, admissibility does in part depend on reliability. Lord Taylor CJ set out some factors which a judge must take into account. These include whether there was an unassailable record of what had occurred and whether it was strongly corroborated. Other factors are not relevant to reliability, but to the degree of impropriety involved in obtaining the evidence in question. It is therefore suggested that evidence can be excluded under s78 (1) if, although reliable, has been obtained in a way that showed contempt for what can broadly be referred to as process values. In other words, as Ian Dennis has argued, apparently reliable evidence may need to be excluded if it carries significant risks of impairing the moral authority of the verdict

However in the decision of the Court of Appeal in Chalkley and Jeffries the court said that the reference to the circumstances in which the evidence was obtained in s78(1) was not intended to widen the common law rule stated by Lord Diplock in Sang that save in the case of admissions and confessions and generally as to evidence obtained after the commission of the offence, there is no discretion to exclude evidence unless its quality is or might have been affected by the way in which it was obtained, however this has since been held to not necessarily be the case.

The House of Lords have also accepted that a breach of a defendant's right to privacy under Article 8 of the European Convention of Human Rights can occur where evidence is improperly obtained.

For these reasons it is submitted that the testimony of D and the covert recording should be excluded although for the reasons above the testimony of D could be evidence in his own case.

2. A Submission by the Prosecution that the Lie told by B was Evidence of his Guilt

The supporting generalisation would be that a person who has lied about knowing A C D is more likely to lie that someone who did not lie about knowing these people. The admissibility of this as evidence (if considered relevant) will be governed by Part 11, Chapter 1 of the Criminal Justice Act 2003 if, but only if, it amounts to evidence of bad character within s98. If this is not the case then it will not be admitted.

Misconduct is defined in s112 (1) as the commission of an offence or other reprehensible behaviour. According to the Explanatory Notes accompanying the Criminal Justice Act 2003, the definition is intended to be a broad one. If the judge accepts the arguments for the relevance of the evidence, it seems to follow that the evidence is of a disposition towards misconduct, although perhaps not very strong evidence.

If we assume that this is relevant and amounts to evidence of bad character then will this evidence be admissible under the Criminal Justice Act 2003 ? There are two possible lines of argument. The first is that the evidence is admissible under s101 (1)(C on the basis that it has an important explanatory function. By s102, evidence is important explanatory evidence if without it the court or jury would find it impossible or difficult to understand properly other evidence in the case, and its value for understanding the case as a whole is substantial.

The second argument is that the evidence of the discoveries is admissible under s101(1)(d) of the Act, on the basis that it is relevant to an important matter in issue between the defendant and the prosecution. Under s101(1)(d) there is no requirement that the probative value of such evidence should be substantial. However by s 101 (3) the court must not admit evidence under s101 (1)(d) if, on the application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

On the basis of s101(1)(d) it would seem that the evidence of the lie can be admitted, however not as evidence of B's guilt but as being relevant to an important matter in issue between the defendant and the prosecution.

3. Submission by C that his Confession Should be Excluded

The general rule is that:

In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section

There are limited circumstances in which a confession may be inadmissible one if this is in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof. This requires the judge to consider whether or not the conditions under which the confession was obtained are, in general, conducive to unreliability rather than whether the actual confession is unreliable.

Familiar indicia of unreliability are threats, promises and inducements. In one case a threat to charge a suspects family members if he failed to co-operate; and in another case where a promise of immediate release, reduced charges or a lighter sentence in exchange for a confession was made these were held to be inadmissible. Code C of PACE also deals with this issue directly where such confessions are held to be inadmissible. Although each case will turn on its own facts and the application of s78 is not an apt field for hard case law and well founded distinctions between cases

However the courts in previous cases have insisted that there must be a casual connection between the circumstance conducive to unreliability and something said or done by a person other than the accused. Generally the courts have taken formalistic interpretations of the section and have demonstrated continued reluctance to undertake a more active and systematic screening of the threshold reliability of confession evidence.

Evidence which might ordinarily be reliable may be rendered unreliable by the way in which it has been obtained and s78(1) has been used to exclude it where this has been so. It has been said that the provisions of Code C that are designed to ensure that interviews are fully recorded and the suspect given an opportunity to check the record should be strictly followed, and that courts should not be slow to exclude evidence following substantial breaches.

Where evidence, as it has been here, is obtained by entrapment, admissibility does in part depend on reliability. Lord Taylor CJ set out some factors which a judge must take into account. These include whether there was an unassailable record of what had occurred and whether it was strongly corroborated. Other factors are not relevant to reliability, but to the degree of impropriety involved in obtaining the evidence in question. It is therefore suggested that evidence can be excluded under s78 (1) if, although reliable, has been obtained in a way that showed contempt for what can broadly be referred to as process values. In other words, as Ian Dennis has argued, apparently reliable evidence may need to be excluded if it carries significant risks of impairing the moral authority of the verdict

It can therefore be concluded that the confession of C may be inadmissible and as a trial judge it may have to be recommended that this evidence be excluded.

4. Submission by The Prosecution That The Jury Should be Invited to Draw Adverse Inferences.

A's failure to answer police questions fully is governed by S 34 of the Criminal Justice and Public Order Act 1994. The failure of an accused in such circumstances to mention any facts relied on later in his defence, it was a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention, will allow the jury in determining whether the accused is guilty of the offence charged to draw such inferences as appear proper. It is important to know whether or not A was offered a solicitor. Sub section (2A) of s34 provides that where the accused was at an authorised place of detention at the time of his failure to mention any fact relied on in his defence , no inferences may be drawn unless he was allowed an opportunity to consult a solicitor before being questioned.

If it is an appropriate case for a s34 direction, the judge should follow the guidelines set out in Gill. He must identify the fact on which A relies and which was not mentioned in questioning. He must direct the jury that it is for them to decide whether in the circumstances, that fact was something that A could reasonably have been expected to mention. He should tell them that if they think it was, they are not obliged to draw any inferences but that they may do so. Further, he must tell the jury that a suspected person is not bound to answer police questions, that an inference from silence cannot on its own prove guilt, and that the jury must be satisfied that there is a case to answer before they can draw any adverse inferences from silence. Finally, he should tell the jury that they can draw an adverse inference only if they are sure that A was silent because he had no answers, or none that would stand up to investigation.

5. A Submission by A B C That The Judge Should Warn the Jury

The question of whether the judge should give a warning arises because there is a personal interest in A making the statement, in so far as he will receive a lesser offence. Dealing with the testimony of A it can be shown that an inculpatory statement made by one accused about another outside court and not in the presence of the co-accused, will not be evidence against the co-accused (because of the rule against hearsay) and will be admissible only to the extent that it also implicates the person who makes the statement. The judge has no discretion to exclude relevant evidence on which a defendant proposes to rely, and a co-defendant will have to make do with a warning to the jury in the summing up that what is said outside court by one defendant is not evidence against another. However in the case of Blake v Tye this issue was challenged. In the case of Gray and Others this matter was also discussed Dixon CJ said that the reason for admitting the evidence of the acts or words of one defendant in a joint enterprise against the others was that the agreement to commit the crime was considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. But from the nature of the case, it could seldom happen that anything said by one of the defendants which was no more than a narrative or account of events that had already taken place cold be admissible against his companions in the common enterprise, though it might be admissible as a confession against the speaker. Dixon CJ said the question of admissibility would relation to directions, instructions or arrangements, or to utterances accompanying acts. However it has been said that an account of events narrated by one of the parties to another while the common enterprise was continuing, in order to bring that other up to date, might be regarded as in furtherance of the enterprise, and so admissible against all the parties referred to in it.

Therefore it is concluded that it unlikely that this will be admissible evidence but if it is then there most certainly must be a warning given to the jury.

Bibliography

Cases

  • R v Chalkley and Jeffries (1988) 2 Cr App r79
  • R v Gunewardene [1951] 2 KB 600
  • R v Jelen and Katz (1990) Cr App Rep 456
  • R v Kennan (1990)
  • R v Philllips (1988) 86 Cr App R 18 CA ;
  • R v Roberts 1997 1 Cr App Rep 217 ;
  • R v Sang [1980] AC 402

Legislation

  • Criminal Justice Act 2003
  • PACE 1984
  • Journal Articles
  • Dennis I H, (1989) Reconstructing the Law of Criminal Evidence, Current Legal Problems 21 pp 35-44