Changes in the Law of Evidence Over Time

Law of Evidence in Criminal Law

The law of evidence embraces issues of obtaining evidence before trial, adducing evidence at trial, and applying and assessing evidence in the proof or disproof of an individual’s litigation. Procedures of evidence have evolved over the last three hundred years to forbid the use of particular evidence in court. The alternative was a method of ‘free proof,’ as promoted by Jeremy Bentham, in which all obtainable ‘evidence’ is supplied in court. Consequently the law of evidence is principally about the exclusion of particular kinds of evidence from the trial procedure. At the focus of the principles of evidence are common sense grounds of fairness and justice that have evolved over generations of practice.

The Law of Evidence has been shaped to assist the adversarial system in which it functions. The rules suppose that the parties have responsibility for establishing the evidence to be offered to the court. If the adversarial system were to go the underlying principle for many of the rules would cease to exist. In the last few decades there has been substantial restructuring of the Law of Evidence and the pressure for reform is progressing. The trend is towards superior admissibility; of restricting the extent and function of the various exclusionary rules with the goal of producing a logical body of rules and principles to benefit the court to ascertain the truth about the facts in contest. Indeed, this essay demonstrates that the admissibility of prosecution evidence has become increasingly flexible and less technical and that this is entirely justifiable. Unfortunately the limited space in this essay precludes intensive examination of all the relevant issues however this essay will explain the most recent developments.

Although an older authority, one of the chief examples in reference to the leniency in the admission of evidence is effectively demonstrated in the case of R v Khan.^[1] Lord Nolan said Khan had arrived from Pakistan at Manchester airport on the same flight as his cousin Nawab. Nawab was found to be in possession of heroin when stopped and searched. Following an interview, Nawab was later arrested and charged. However, no drugs were found on Khan, he made no confessions on interview and was subsequently released without charge. Shortly Khan was in Sheffield, with a man known as Bashforth. The police, being aware of this, installed a listening device outside. Neither Khan nor Bashforth were conscious of its existence. The police acquired a tape recording of a discussion, in which Khan made declarations which constituted an admission that he was an accomplice to the importation of drugs by Nawab. Khan was consequently arrested and jointly charged with Nawab. It was confesssed that Khan had been in attendance at the address and that it was his voice on the tape recording.

It was acknowledged on behalf of the Crown that the accessory of the listening device had concerned a civil trespass and had caused some destruction to the property.

The judge acknowledged the evidence and Khan pleaded guilty to being intentionally involved in the deceitful evasion of the veto on the importation of heroin. His guilty claim was presented simply on the basis of the judge’s ruling, and that he had the discretion to challenge that ruling. The Court of Appeal dismissed his appeal.

The subject provoked two concerns: (1) was the evidence admissible at all, and (2), if admissible, it should nonetheless have been expelled by the judge in the application of his discretion under common law or S.78 PACE 1984. It was important that no legal framework, regulating the installation and exploit by the police of covert listening devices. Police had authorised surveillance on the basis that there was worthy basis to believe Bashforth was dealing in heroin, nevertheless that conformist means of surveillance were doubtful to supply proof that he was doing so.

Khan said that the evidence was improper in theory and should not be acknowledged. Private discussions on private property of a class which could not be listened in on except by way of listening devices should be inviolate apart from where interference upon them was authorised by law. The process accepted in the immediate case should not be established as a process of attaining evidence, the more so in a case where it concerned trespass and, at any rate questionably, criminal damage to property. Counsel for Khan pointed out that Interception of Communications Act 1985, section 9 specifically forbade the use in evidence of data acquired by the interception of communications. Before 1984 there had been an analogous constraint on the application of material from surveillance devices.

In the luminosity of R v Sang, the contention that the evidence of the taped conversation was inadmissible could only be continued if two completely new rules were devised:^[2] The original would be that Khan took enjoyment in a right of privacy with regard to the taped conversation. Also, that evidence of the conversation attained in breach of that right was inadmissible.

There was no such right of privacy in English law, and even if there were, evidence acquired dishonestly or even unlawfully remained admissible, subject to the judge’s power to prohibit it at his discretion. Addressing the question of whether the judge should nonetheless have excluded it in the implementation of his common law discretion or his section 78 powers, his Lordship said the only pertinent constituent of the common law discretion was that element which authorised the judge ‘to exclude evidence if it is necessary in order to secure a fair trial for the accused.’^[3] It was needless to deliberate the common law position distinct from that under section 78.

Counsel for Khan’s proposals on that matter were founded directly on the terms of article 8 of the European Convention, read with section 78 of the 1984 Act. The case introduced for the first time the uncertainty whether a criminal court, in bearing in mind its power under section 78 was obliged to have respect to the European Convention and the jurisprudence of the European Court of Human Rights, and if so whether an infringement of the Convention was to be considered per se as a basis for prohibiting otherwise admissible evidence. If the conditions in which the evidence was acquired constituted a clear invasion of Khan’s rights of privacy under article 8, that was for that reason something to which the court must have consideration. That dispute had resulted from the principle that the duty of the court under section 78 to have respect to the conditions in which the evidence was obtained essentially included a responsibility to have consideration to the actuality that the evidence was seemingly acquired in situations which amounted to a breach of article 8. As a consequence Khan was at liberty to quote article 13 of the Convention which offered that there should be an operative remedy before a national authority for everyone whose rights under the Convention were dishonoured.

In R v Secretary of State for the Home Department, Ex parte Brind Lord Bridge had recognized that the United Kingdom was compelled to secure the rights promised by the Convention, together with the right under article 13.^[4] However the remedy which article 13 compelled, according to the submissions need not go so far as to prohibit evidence obtained in breach of article 8. It was adequate if the national law provided a successful way of reviewing the admissibility of evidence in the considerations of the provisions of article 8. Section 78 provided for just such a review. The values mirrored in the Convention could barely be unrelated to the exercise of the section 78 power because they personified so many of the recognizable values of English law and impression of justice. In particular, they declared the right of an individual to a fair trial.

It was significant that Khan made no grievance of a contravention of his right under article 6.1 to fair trial. The European Court of Human Rights in Schenk v Switzerland had discarded a protest under article 6 brought by a defendant against whom an unlawfully acquired recording of a telephone conversation had been employed in evidence.^[5] Under English law, there was on the whole nothing unlawful about a contravention of privacy. Khan’s case rested entirely upon the requirement of statutory agreement for the specific breach of privacy which transpired in the immediate case and the supposed resulting infringement of article 8. Lord Nolan was content that in those conditions Khan could no more be successful upon the second matter than on the first. He was ready to recognize that if evidence had been acquired in conditions concerning an obvious breach of article 8, or, for that reason an obvious breach of the law of a foreign country, that was an issue which might be applicable to the exercise of the section 78 strength. The reality that the manners in doubt represented a breach of the Convention or of a foreign law, could plainly be of no greater implication per se than if it represented a breach of English law. Upon the truth of the immediate case his Lordship deliberated that the judge was completely permitted to hold that the conditions in which the pertinent evidence was attained, even if they comprised a breach of article 8, were not such as to necessitate the exclusion of the evidence.

It would be a curious indication on our law if a man who had confessed his contribution in the illegal importation of a large quantity of heroin should have his conviction dismissed on the basis that his privacy had been invaded. The solitary reason of the case coming to the House of Lords was the lack of a statutory system regulating the exercise of surveillance procedures by the police. The deficiency of such a method seemed surprising, the more so in consideration of the statutory framework which had administered the application of such procedures by the Security Service since 1989, and the interception of interactions by the police as well as by other organizations since 1985.

In a criminal trial, evidence as to the conditions of tape recorded conversations attained by means of an electronic listening device connected by the police to a private house without the wisdom of the owners or occupiers was admissible against the defendant. The stipulations of the European Convention on Human Rights and Fundamental Freedoms could be pertinent to the use of the responsibility at common law or under S.78 PACE1984 to prohibit otherwise admissible evidence on the foundation of unfairness. However on the evidence, that discretion had been properly exercised to acknowledge the taped evidence.

The House of Lords found it needless to deliberate whether and if so to what degree English law provided a right of privacy. The House dismissed an appeal from the Court of Appeal,^[6] which had dismissed an appeal by Khan against conviction after pleading guilty at Crown Court, to being intentionally involved in the deceitful evasion of a prohibition on the importation of Class A controlled drugs. At Common Law the courts have a wide-ranging diplomacy to prohibit pertinent evidence with the intention of ensuring a fair trial. S.78 PACE Act 1984 is an additional (statutory) discretion. In this way, the prosecution was able to take advantage of the flexibility of prosecution evidence and thus found it admissible.

This essay will now look at more recent developments pertaining to the admissibility of evidence in view of the Criminal Justice Act 2003 (hereinafter CJA 2003). The CJA intitiates a new statutory scheme and a revolutionary new procedure in owing to the admissibility of bad character evidence relating to non-defendants and defendants. The Law Commission’s Report No 273 and the Review of the Criminal Courts of England and Wales commenced by Lord Justice Auld illuminated difficulties with the previous law and suggested modification. There were a number of difficulties with the previous law, such as witnesses were often open to gratuitous and humiliating exposure of irrelevant misconduct and the defendant did not lose his ‘shield’ where he did not testify. In view of the Law Commission’s Report and the Auld Review and the Government’s endeavour to rebalance the criminal justice system in value of victims and witnesses, the 2003 Act was followed.

The CJA 2003 will control the admissibility of character witnesses, as well as that of the prosecutor and of the accused. The admissibility of evidence of good character will still be determined by the common law, however. Under CJA 2003, ss. 98 and 112(1) evidence of a person’s bad character is identified as misconduct, that is to say the commission of an offence or other reprehensible conduct. Earlier convictions may be adduced under s. 101(1)(e) as it is arguable they have ‘substantial probative value in relation to an important matter in issue between the defendant and a co-defendant.’ Section 104 increases what is intended by a ‘matter in issue between the defendant and co-defendant.’ It offers that:

1. 1. Evidence which is relevant to the question whether the defendant had a propensity to be untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant’s defence.
   2. Only evidence (a) which is to be (or has been) adduced by the co-defendant, or (b) which a witness is to be invited to give (or has given) in cross-examination by the co-defendant, is admissible under section 101(1)(e)

Cross had implied the inconsistent levels of significance the statute necessitates corresponding to admissibility of bad character.^[7] He directs that under s. 101(1), evidence of bad character of non-defendants should have ‘substantive probative value’ and be of ‘substantial importance in the context of the case as a whole.’ Where bad character of the defendant is adduced by a co-defendant the evidence must have ‘substantial probative value’ (s. 101(1)(e). On the other hand, there is no requirement for evidence of the defendant’s bad character adduced by the prosecution. Cross deduces, ‘the result is thus that a co-defendant might be denied the use in his defence of evidence of his co- accused’s bad character which the prosecution could use freely, if it so chose, to help prove that co-accused’s guilt.’

On an equal theme of flexibility, Roberts and Zuckerman point out that in relation to ‘similar fact evidence (hereinafter SFA),’ that ‘even after sections 99 and 101-103 of the CJA have abolished the common law SFE rule and replaced it with a new statutory framework of admissibility it would not be surprising of lawyers and judges continue to make reference to ‘similar facts’ in certain types of cases.’^[8] It is probable for that reason that the common law cases will still be referred to. The investigation set out in DPP v P is substituted by s. 101(1)(d);^[9] evidence of previous misconduct is admissible if ‘relevant to an important matter in issue between the defendant and the prosecution.’ This dwindling test of application is improved by s. 101(3) and (4) which give discretion to prohibit such evidence in terms of similar to s. 78 PACE. Roberts and Zuckerman recommend that ‘the net effect may well be to place DPP v P on a statutory footing.’ Additionally s. 103 strengthens what is intended by a ‘matter in issue between the defendant and the prosecution,’ making it apparent that it comprises propensity evidence and that this maybe acknowledged if it is applicable either to an subject in the case or to the credibility of the accused. The section endeavours to state what is intended by offences of the ‘same description,’ or the ‘same category’ as referred to in s. 103(2). Section 103(4) reads:

1. 1. two offences are the sae description as each other if the other statement of the offence in a written charge or indictment would, in each case, be in the same terms.
   2. Two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State.’

The recent statute also permits the admissibility of the defendant’s misconduct evidence if ‘it is important explanatory evidence (section 101(1)). This incorporates what under the common law was understood as ‘background evidence.’ This section is not covered by the exclusionary direction set out in s. 101(3) and (4). The common law requirements on probable collusion of witnesses, set out in the leading case of R v H are included for the most part in sections 107 and 109 CJA 2003.^[10] Section 110 necessitates the trial judges to affirm his motives, in open court but in the nonexistence of the jury, when resolving the admissibility of bad character evidence. This stipulation is therefore meant at enhancing procedural fairness instead of directing the jury.

Dr Birch states that ‘when hearsay provisions of the CJA 2003 are brought into force … they will bring about little more than a rationalisation and modernisation of the existing system.’^[11] The meaning of hearsay is established in s. 114 that is ‘a statement not made in oral evidence proceedings.’ This is exemplified by s. 115 which provides that:

3. 3. A statement is any representation of fact of opinion made by a person by whatever means; and it includes a representation made in sketch, photofit or other pictorial form.
   4. A matter stated in one to which this chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been (a) to cause another person to believe the matter, or (b) to cause another person to act or a machine to operate on the basis that the matter is stated.

In conclusion then, it suffices to say that the quotation in the question can be read as true. The case law and recent statute law identified does some to have relaxed the law in relation to admissibility of the prosecution in criminal trials.

Bibliography

Dingwall, G,S. and Davenport, A “The Evolution of Criminal Justice Policy in the UK.” in Fennell et al (eds) Criminal Justice in Europe : A Comparative Study (Oxford : Clarendon 1995)

Other references used, as per footnotes

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Footnotes

^[1] Rv Khan (Sultan) [1996] ICHRL 46

^[2] [1980] AC 402

^[3] Scott v The Queen; Barnes v The Queen [1989] AC 1242, 1256 per Lord Griffiths

^[4] [1991] 1 AC 696, 747

^[5] [1988] 13 EHRR 242

^[6] The Times June 1, 1994; [1995] QB 27

^[7] Cross & Tapper on Evidence, 10^th edn (London: Lexis Nexis 2004), 428

^[8] Roberts and Zuckerman, Criminal Evidence (Oxford: OUP) 2004, 515

^[9] [1991] 2 AC 447

^[10] [1995] 2 AC 596

^[11] Birch, Criminal Justice Act 2003, Crim LR 556, 557 2004