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Advising on evidential issues surrounding the Terrorism Act 2000.
Tommy is friends with James and Bill, who are members of an action group called 'Down with Capitalism'. He speaks to them often as they are old school-friends and they often meet up for drinks in town or at each other's houses for meals.
James and Bill, as part of their campaign for 'Down with Capitalism', break into the National Bank of Britannia and place a bomb which detonates an hour later. James and Bill are caught and face conviction for terrorism related offences. After investigation, the police discover Tommy's links with James and Bill and believe he is connected directly with 'Down with Capitalism'.
The police have covertly been carrying out surveillance at James' house as they are aware of 'Down with Capitalism' and the group's agenda. They have a recording from a bugging device which the police believe to be Tommy's voice actively discussing the group's future plans.
PC Michelin, who is leading the investigation, calls in Joyce, a phoneticist, who compares the telephone conversation with recordings of Tommy's voice. Joyce concludes that the recordings are of the same person. Savill has developed a system of comparing voices by meticulous listening to recordings of the suspect and the recordings of the event itself. His article on the technique in the journal, International and Comparative Phonetics, was criticised by other phoneticists for its overly subjective approach and its lack of methodological rigour. The technique has not become generally accepted in the field of phonetics.
When arrested, Tommy is taken to the police station where he is placed in the cells prior to interview. Whilst in the cells, PC Goodyear constantly tells him that he might as well admit that he was involved with 'Down with Capitalism' because they will get him to confess anyway. He tells Tommy that if he confesses, they would release him on bail but if he doesn't confess they will apply for him to be remanded in custody pending the case going to court. Tommy is a single parent with two very young children. During interview, the officers are very aggressive and shout and scream in Tommy's face in an attempt to get him to confess. He later says in his third interview that he is a member of 'Down with Capitalism' as he is desperate to get home to his children.
The police charge him with being a member of a terrorist group contrary to s.11(1) of the Terrorism Act 2000.
Advise Tommy regarding the evidential issues that may arise
Tommy's case raises a number of evidential issues. I will begin by setting out the general rules of admissibility of evidence, and then look at the powers to exclude evidence. Following that I will consider each of the issues in turn.
In general, any fact is admissible as evidence provided that it is of probative value, in other words if it is relevant then it may be admitted. By contrast opinions are not usually admissible in evidence. There are some statutory exceptions to both of these. In particular there are limits on the admissibility of evidence1 and experts will usually be able to give evidence of their opinions in matters relating to their expertise. Each of these issues will all be explored below.
Evidence is relevant if 'it is logically probative or disprobative of some matter which requires proof2.' Evidence will be called as a trial by the party who rely on it, and as in a criminal trial it is for the prosecution to prove matters they will call the evidence against Tommy. There are restrictions on the evidence that the prosecution can call, in particular for this essay those set out in the Police and Criminal Evidence Act 1984 ('PACE').
There are two major restrictions on the evidence that the prosecution can call, set out within PACE. Section 76 limits the use of confession evidence and section 78 provides a more general power to exclude prosecution evidence.
A confession made by a suspect is generally admissible as evidence against them3, and will often be considered as very strong evidence. After all, why would a person admit something if they hadn't done it? However, if the defendant says that the confession was only made because he was the victim of oppression or because the circumstances made it unreliable then the position changes. Once the defendant raises this allegation then the evidence cannot be given in court unless the prosecution prove, beyond reasonable doubt, that this was not the case4. Significantly, the act that the confession may be true does not affect the decision whether or not the confession was obtained by oppression. This is a mandatory rule. Unless the prosecution prove that there was no oppression or factors making it unreliable the evidence of the confession cannot be given in evidence.
As can be seen section 76 relate only to confessions. If it is alleged in court that the confession was obtained by oppression all the circumstances which make it unreliable then the prosecution must prove beyond reasonable doubt that this is not the case before they can rely on it. Unless they can do that, the confession will not be given in court.
As well as the specific power relating to confessions there is also a wider power to exclude evidence that can apply to any aspect of prosecution evidence5. In contrast to section 76 this power is a discretionary power. The court may exclude any evidence if it would be unfair to admit it. This is a discretionary power. It will be for the judge to try the case to decide whether the evidence can be admitted or not. Even if the judge decides that the rules have been broken in obtaining the evidence he may still allow it to be given. In deciding whether or not to admit the evidence the judge is entitled to consider all of the circumstances around the matter, including how the evidence was obtained6.
Turning now to the specific evidential issues the first piece of evidence against Tommy relates to the covert surveillance at James' house. On the face of it, this is a potential breach of James' and Tommy's rights7 to privacy and family life and the House of Lords held that covert surveillance was a breach of this right8. This would be a factor for the court to consider when deciding whether or not to exclude any evidence obtained by the booking. However, this is a qualified rather than an absolute right, which means that the court may conclude that the interference with the right was necessary in the circumstances of the investigation. One factor that the court would want to know in assessing whether the bugging evidence could be admitted was whether the surveillance was properly authorised under the Regulation of Investigatory Powers Act 19999.
If the court decides that the evidence of bugging is admissible then the next issue the prosecution would face would be to prove that it was Tommy who was talking. Here they are relying on expert evidence from Joyce and from Savill. (In this answer it is assumed that Savill is a prosecution expert, although that is not made explicitly clear.) In general, opinion evidence is not admissible in court10. Experts, however, have long been able to give opinions related to their matters of expertise. If their area of knowledge is something that can be gained only by 'a course of special study or experience11' then they are entitled to give their opinions on matters within their expertise.
Voice recognition evidence is admissible in court but the judge would need to give the jury a very strong warning to be cautious before accepting it12. There is scientific evidence about the dangers involved in voice recognition cases13 and so it needs to be emphasised to the jury that they should only accept the evidence if they are really sure that it was accurate.
The court will need to determine whether either Joyce or Savill can properly be classed as being an expert. The test for this was originally set out in a South African case but has now been adopted in British cases as well14. In this case it was held that whether or not someone is an expert can be assessed by asking two questions. First the court has to be satisfied that it is an area where expert evidence can be given, in other words that it is something that a lay person would not be able to form an accurate view about and also that there is a 'body of knowledge or experience15' that the expert has access to or contributes to. The second question is whether the witness has sufficient experience or knowledge to be treated as an expert.
In the case of Joyce, she is described as being a phoneticist. No information is given about her qualifications or experience, and it is submitted that without more she could not simply be accepted as being an expert and her evidence of comparing the recordings should not be admitted. She does not satisfy the second question set out above. In the case of Savill he has developed a system for comparing voice recordings. He has published work on it, and that should carry some weight with the court. However, the evidence provided suggests that his techniques have been the subject of some criticism and the court may feel that it is not therefore 'accepted as a reliable body of knowledge.' Accordingly, therefore the court may exercise its discretion under section 78 of PACE to exclude the evidence.
The next issue to consider for Tommy is his admission that he is a member of 'Down with Capitalism.' This would be treated as being a confession as it is a statement 'adverse to his interest'.16 As Tommy's statement is a confession he could apply to have it excluded under section 76 of PACE. There are a number of factors here which offend against section 76, and so his confession should be excluded.
First there is the statement of PC Goodyear telling Tommy that he might as well admit things because they will get him to confess. Saying this once would be inappropriate and saying it repeatedly is much more so. This was likely on its own to render the subsequent confession unreliable.
The second thing to note is that PC Goodyear tells Tommy that he will get bail if he confesses that he will be remanded if he does not. This breaches the codes of practice issued under PACE which govern, amongst other things, the way that people are treated whilst they are being detained by the police. This specifically prohibits the police telling the suspect that if he behaves in a particular way a particular outcome will result17.
The third factor which will make the confession unreliable is the behaviour of the police during the interview. Their behaviour in shouting and screaming at Tommy is the sort of behaviour that the court will not tolerate18. Given that this could easily be classed as oppressive behaviour the prosecution would have to prove that the confession was not obtained by oppression. In the circumstances of this case they would not be able to do that. Taking all three factors into account the court must exclude Tommy's confession from evidence.
In summary, therefore, the bugging evidence against Tommy could be admitted in court. However, without more the evidence of the experts will probably not be admissible, and Tommy's confession in interview will not be admissible. Whilst the prosecution could show that Tommy was a friend of other members of 'Down With Capitalism' they would have no admissible evidence to show that he was involved in any of their criminal activities.
1Police and Criminal Evidence Act 1984 s76 and s78.
2DPP v Kilbourne  AC 729 at p756.
3Police and Criminal Evidence Act 1984 s76(1).
4Police and Criminal Evidence Act 1984 s76(2).
5Police and Criminal Evidence Act 1984 s78.
6Police and Criminal Evidence Act 1984 s78(1).
7European Convention on Human Rights and Fundamental Freedoms 1950, Article 8.
8Khan v U.K.  Crim.L.R. 684.
9PG and JA v United Kingdom  Crim LR 308.
10Hodge M Malek, Phipson on Evidence, 18th Edition (Sweet and Maxwell 2013).
11Folkes v Chadd (1782) 3 Doug. 157.
12R. v R (David Anthony)  Crim LR 183 CA (Crim Div).
13Bull and Clifford, 'Earwitness Testimony' in Heaton-Armstrong, Shepherd and Wolchover (eds), Analysing Witness Testimony (1999 OUP).
14R v Boynthon (1984) 38 SASR 45.
15R v Boynthon (1984) 38 SASR 45.
16Police and Criminal Evidence Act 1984 s82.
17Police and Criminal Evidence Act 1984 Code C Paragraph 11.5.
18R v Paris, Abdullahi and Miller (1992) 97 Cr App R 99.