Criminal Evidence Law Essays

Criminal Evidence Law Essay

John and his brother Paul have been charged with murdering the pharmacist, mark, at the pharmacy where they worked. It is alleged that they were both stealing the day's takings when mark disturbed them. John hit him on the head with a hammer and then Paul joined in hitting him on the head with a small cosh. Dave, who also works at the pharmacy, was initially arrested and questioned but later released without charged. The bothers have admitted stealing the money but deny that they intended to kill Mark. To be guilty of murder a person must intent to kill or cause serious bodily harm to a person. John says that he had hoped that the first blow would knock mark unconscious for a short time while he stole the takings. Paul says he thought that hitting Mark would just 'daze' him and no more. John does not intent to say that he has a defence of insanity or of diminished responsibility because he does not suffer from any medical abnormality.

Nevertheless, John wanted to call a psychiatrist to give evidence at his trial.

The psychiatrist will say that she does not believe John ever thought of physically injuring Mark and that John ' found it difficult to separate reality from fantasy' Paul has extremely low IQ(55) and is described as being 'mentally defective'. He also wants to call psychiatrist, Franz, to give evidence that it is unlikely that Paul would appreciate the significance of what he was doing. Franz wants to rely on some academic journal articles to support his finding.

(a) Explain how the burden of proof will apply to this scenario

As this is a criminal trial there is a higher burden of proof, i.e. beyond a reasonable doubt because this is a criminal trial as set in the case of Woolmington v DPP. This burden does not shift except when presumptions arise, such as diminished responsibility or the insanity defence. Also it is the decision whether the burden of proof has been discharges is either up to the jury in murder cases. In a murder trial it is not the defendant's role to prove his defence it is the prosecution's role to prove the defendant's guilty which is the basic precept of innocent until proven guilty. In every murder case the evidential proof is borne by the prosecution; however this may change to the defence when presumptions arise. This means that the prosecution must establish and prove the pram facie case. Article 6(2) plays a very important role in the evidential burdens, ever since the HRA was enacted and it has been shown that changing the onus to the defendant does not breach this rule as the prima facie case has been proven.

There are two types of burdens that have to be discharged which are the legal burden and the evidential burden of the individual's guilt. In the case of murder it has to be shown that there is mens rea and actus reus. The Davis Case surrounding provocation illustrates the need for both aspects before this defence can be used otherwise it is impossible for there to be a case of murder, which then can be commuted to manslaughter. In Davis it was concluded that this section constituted a new test and the words were to be given their ordinary meaning. However it does not say what amounts to provocation and what the effect of a successful plea is. This plea can only be applicable to the charge of murder and not attempted murder. If there is no intent then it is not a defence because it is not a case of murder; but has been successful in the case of an accessory to murder.

(b) Would it make any difference as to who has the burden of proof if John changes his mind when his case came to trial and decides to plead diminished responsibility or alternatively, insanity?

There are exceptions to who shoulders the burden of proof under certain defenses, i.e. the plea of insanity and diminished responsibility under the Homicide Act 1957, s. 2. This is where the facts of the murder has been shown or the individual has confessed to the murder; however there has been loss of mental control or diminished mental control at the time of the murder that the sentence would be commuted to manslaughter. At this point is the defendant's job to prove that they are insane under the M'Naughten rules or prove diminished responsibility under the Homicide Act 1957.

Diminished responsibility under the Homicide Act is defined as:

If he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or reduced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being the party to the killing.

Therefore the defence must prove this scenario on the balance of probabilities. The interesting factor about diminished responsibility and the Homicide Act is that it does not require medical evidence to prove the defence, yet the reality of a jury accepting the defence without some medically documented proof is minimal. In addition if the defence produces sufficient evidence of diminished responsibility that the court views as clear and unequivocal then it can accept the plea without referring to the jury. Yet the flipside of not requiring medical evidence has resulted in the courts not having to accept the evidence produced and dismissing it.

There are possible human rights problems with this change in burdens because does it fall in line with the presumption of innocence, can it only be used if the guilt of the defendant is obvious. How about cases where the individual may be innocent but also suffering from a mental condition could the defence of diminished responsibility or insanity not be used to commute the sentence to manslaughter or would this presume the defendant guilty? Under Article 6 the presumption of innocence is imperative to the whole pre-trial process and a system of fair and just trials, because if one had to prove they were not guilty beyond a reasonable doubt then the consequences are too high., but as already mentioned the ECHR case of Salabiaku v France has resulted in the scenario where this burden of proof change is not too onerous as it is a lesser burden of proof and the prosecution still has to prove the prima facie case, i.e. if the defence is to prove diminished responsibilities it on the balance of probability; however if it is up to the prosecution it is still beyond a reasonable doubt.

(a) Can the defendants call their expert psychiatrist witnesses to give evidence for them?

The UK has traditionally protected the right to cross-examination and the use of expert witnesses as they collaborate the condition of John. Therefore in the UK's adversarial system it is essential that these expert witnesses be called as long as their credentials are satisfied and they are not suspect. Therefore as the the accused individual must have the right to question the witnesses, i.e., through the accused's legal representation, the accused has the right to use their own witnesses as this is themost effective manner to face and combat the prosecutions witnesses. In most cases the accused has the right to face the witness; however the judge has the discretion to screen witnesses. This will happen in cases where there is fear of reprisals to the witness or if the witness is a child. The types of trials where the identity of all or some witnesses may be screened and their identity protected are; serious assault; blackmail; and terrorist offences:

In principle, all evidence must be adduced in the presence of the accused at a public hearing with a view to adversarial argument, but this does not mean that a statement of a witness must always be made in court and in public if it is to be admitted in evidence.

There are some limitations in respect to the calling of medical/expert witnesses which was initiated in PACE section 81 where the defence or may be prosecution must give advance notice of any expert witness to be called. In addition the Crown Court (Advance Notice of Expert Evidence) Rules 1987 were enacted to fully enable section 81. These rules ensure that the defence must give the prosecution the expert report in order for the prosecution to deal with and provide any contrary evidence to the prosecution. The reasoning behind this enactment is to ensure that the defence can not use the ambush defence that the Allen Case illustrates; whereby a train came off the rails due to the driver's influence under alcohol, but the defence brought a witness at the last moment without the prosecution's prior knowledge which revealed that the driver may have a condition to pass out at any time. Therefore the driver was acquitted as the prosecution did not have time to provide a rebuttal. This means that this case must show that there will be expert witnesses in advance in line with these rules. In the defence of diminished responsibility medical expert witnesses will invariably be allowed because the court/jury will not have sufficient knowledge of the mental abnormality without making an informed decision.

(b) Some of what happened was caught on a security video in the pharmacy. However, the quality of the recording was not very good and the prosecution wants to call a police officer, who has watched the recordings over a long period, to give evidence as to their contents. Can the prosecution call the police officer as an expert witness?

As the UK is an adversarial system the police can call on a police officer as an expert witness if this is the specialty of the officer or the officer has undergone special training in this area; however this may be as little as 6 months. However the police officer may be allowed as a matter of course as they are trained in surveillance techniques. It may be that if the police officer has had no experience then it would have to be regarded as opinion evidence, as the individual is not an expert. Opinion evidence is based on personal belief/knowledge which would be the case of a rookie. This would be admissible under the Criminal Evidence Act 1972 section 3(2). This is routinely admitted evidence from lay persons and not police officers; therefore to use a police officer without the appropriately needed experience lessens the importance of the evidence therefore using an appropriately experienced officer is in the interests of the investigation and the prosecution.

If the police officer is sufficiently experienced they would be classed as an expert witness as there is no exhaustive list of issues that an expert witness can be called, which would include surveillance and information gathering from video recordings. The admissibility depends on two factors which are; it must go beyond the normal competence of the court and important for reaching an understanding of the issue and reaching a decision on the facts. This is highly likely in this case as the video recording is distorted and expert evidence is important to clearing the situation and portraying the actual facts to the jury. The court must be satisfied with the witnesses' status as an expert and in the Silverlock Case it resulted in the precedent that there does not need to be in a completed course or qualifications; rather there needs to be experience in the area.

(c) John and Paul are found 'not guilty' at their trial and want to ensure that the finger print evidence and intimate samples (blood) for DNA analysis that the police took from them on arrest are destroyed. Discuss whether these must be destroyed.

Under the ECHR and the HRA one may argue they should be destroyed as they are private property and essential to the integrity of the individual, i.e. privacy; however this is not the reality because DNA and Finger Print samples are loaded on a database in case similar crimes are committed and these can be run against the most likely suspects. Unfortunately this is a case where prevention of crime under a national legal system outweighs the right to privacy therefore there is no positive duty to destroy the evidence that was lawfully collected:

The powers awarded to police under PACE were further expanded by the Criminal Justice Act 2003, which allows DNA samples to be taken from any individual arrested for a recordable offence and detained in a police station. These samples may be retained irrespective of whether the person is cleared of the offence, or not prosecuted, providing that they are used for the purposes of prevention and detection of crime; the investigation of an offence; or the conduct of a prosecution.

This is the same argument used for surveillance and bugging by the police, which has been allowed under the ECHR. Klass v Germany is the key case on legislation allowing persons to be subject to surveillance through bugging telephones, homes, opening of post and private correspondence, as well as following persons and taking photographs and video surveillance of their everyday lives under the mere suspicion of terrorist/criminal activity. This right should not be a general right of police and security officers and as the case of Klass concluded, but should be sufficiently limited to circumstances that are in the interest of a democratic society and the security and safety of the state:

The Court has therefore to accept that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional conditions, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime.

Therefore as long as these aims are properly represented in the aims of the security forces and the legislation and all appropriate requirements of the statute is followed then there would be no breach of Article 8; however if the legislation was used disproportionately then there would be a breach and as UK case law has revealed the retaining of DNA and fingerprint evidence as proportionate under Article 8:

The extension of police powers as described above has not been without controversy. The provisions under PACE relating to the retention of suspects who are not subsequently prosecuted or who are acquitted have been the subject of legal challenge. In the case of R v Chief Constable of South Yorkshire ex parte S and Marper, where an appeal was brought on the basis of the fact that retention of DNA samples under these circumstances was a breach of Articles 8 and 14 of the European Convention on Human Rights, the Court of Appeal ruled that the breach of Article 8 was proportionate and justifiable and found no breach of Article 14.

Criminal:

Gane C H W & Stoddart C N, Casebook on Scottish , (3rd edition W Green 2000)
Jefferson, (Fifth Edition, Longman, 2001)
Jones T H & Christie M A, Criminal Law, (2nd edition W Green 1996)
McCall Smith R AA & Sheldon D, Scots , (2nd edition Butterworths 1997)

Evidence:

Allen, 2004, Practical Guide to Evidence 2nd edition Cavendish
Slapper & Kelly, 2003, The English Legal; System 6th edition Cavendish

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