Evidence of Witness Statement

The evidence that the prosecution wants to adduce at trial is the police statement made by Bennie which shows that he had seen Avril dealing drugs many times. This evidence wants to be used by the prosecution to prove Avril’s involvement with the dealing of drugs as well as her involvement with the Black and reds local gang. Before the prosecution can adduce the evidence, there are a series of factors that needs to be considered and the first is relevance. What can be regarded as relevant is something that “applies to the matter in question; affording something to the purpose and something that is legally sufficient.”[1] Bennie’s evidence can be said to be relevant because it does apply to the matter in question which is Avril’s drugs offence.

The second factor the prosecution needs to consider before adducing Bennie’s evidence is the competence and compellability of Bennie. In the issue stated Bennie can be seen to be Avril’s husband which puts him under the category of a spouse. A spouse per Glover “is a person who is lawfully married to the accused at the time when he or she is called to give evidence.”[2] In the issue, it was seen that Bennie and Avril had recently separated. They are still legally married regardless of the separation factor. It was not stated that they were divorced or the marriage was annulled, therefore Bennie still falls under the category of a spouse. There is a general rule which can be found in s53(1) of the Youth Justice and Criminal Evidence Act (YJCEA) 1999 [3] that all witnesses are presumed to be competent[4]. In the application of this rule there is a presumption that Bennie is a competent witness for the prosecution.

In regards to compellability, a spouse is generally not compellable for the prosecution unless the exceptions that are set out in s80(3) of the Police and Criminal Evidence Act (PACE) 1984 [5] are met. Relating the exceptions listed out in s80(3) of PACE 1984[6] to the issue, the type of offence that Avril is being charged with are drugs offences and as such Bennie does not fall under any of the exceptions which make him a non-compellable witness to the prosecution. It has been established that Bennie is a non-compellable witness which means he is not legally obliged to give evidence but has the choice to do so. This shows that he can choose to testify in court, however the prosecution can admit Bennie’s police statement as evidence through a hearsay exception which can be found in the Criminal Justice Act (CJA) 2003. The case of R v L [2009] [7] can be used in regards to this issue. In this case the Witness who was a spouse could not be compelled to testify against her husband however a pre-trial statement which was a police statement was admitted as an exception to the hearsay rule[8].

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According to LT choo “hearsay evidence is an out of court statement that is being adduced in court as evidence of the matter stated in the statement.”[9] Hearsay evidence is generally inadmissible unless it falls under the exceptions in CJA 2003[10]. For the evidence to be admissible under the witness unavailability exception three conditions must be met which can be found in Section 116 (1)(a) – (1)(c) CJA 2003. It is important to note that S116(1)(c) shows that hearsay evidence can be admissible if it satisfies any of the five conditions stated in subsection 2[11]. One of the conditions that is shown in subsection (2)(e) of the CJA 2003 relates to fear of a witness. In relations to the issue, Bennie refuses to testify in court and leading up to his refusal it was seen that he had a bruising to his face. An assumption can be made that he is refusing to testify because of fear and as such the prosecution can adduce Bennie’s evidence under s116 as a hearsay exception provided all the conditions are satisfied.

Other than the hearsay exception, the part for Bennie could also make an application for a special measure direction (SMD). Bennie refuses to testify and has a bruising to the face. This brings about an assumption of fear which makes him a vulnerable witness and vulnerable witnesses can make applications for SMDs. There are three stages in which SMDs can be granted. The first stage is looking at the eligibility of the witness which can be found in s16 – 17 YJCEA 1999[12]. The second and third stage can be found in s19(2)(a) and (b) YJCEA 1999. Looking at Bennie he could be eligible for an SMD on the grounds of fear or distress about testifying[13] which falls under s17 YJCEA 1999[14]. If the courts are satisfied that Bennie meets all the stages, the application will be successful and Bennie will be able to testify through an SMD. SMDs that are available to Bennie are screening[15] which is stated in s23 YJCEA 1999 or video recorded evidence in chief[16] which is shown in s27(1) – (3) YJCEA 1999.

In conclusion, Bennie is a competent and a non-compellable witness and as such he has no legal obligation to testify in court. However, the prosecution can pass Bennie’s police statement through the hearsay exception of witness unavailability if he can satisfy all the conditions set out in the provision.

B.

The evidence that the prosecution wants to adduce are Avril’s two previous convictions for theft and two previous convictions for drugs offences involving possession of marijuana with intent to supply. The prosecution wishes to use this evidence to prove that Avril committed the drugs offences she is being charged with. The evidential issue that this raises is bad character evidence. Bad character is defined is s98 of the Criminal Justice Act (CJA) 2003. The key factors of the definition are “evidence of, or a disposition towards misconduct on his part, other than evidence which (a) has to do with the alleged facts of the offence charged (b) is evidence of misconduct in connection with the investigation or prosecution of that offence.”[17] In assessing the two previous convictions of theft for Avril the evidence has nothing to do with the alleged facts of the current offence that is being charged. The previous offence and the alleged facts are not so closely connected as defined in the case of R v Tirnaveanu [2007][18]. Also, it is not in relations to the investigation or prosecution of that particular offence[19] which is the drugs offences. This shows that her two previous convictions for theft is a bad character evidence which can be admitted through one of the gateways under s101(1)(a) – (g) CJA 2003 and expanded on in s102-106 CJA 2003. The first gateway that should always be used is gateway D which can be found under s103 CJA 2003. Gateway D is the relevance to ‘important issue between the defendant and the prosecution’[20]. “The prosecution’s evidence of a defendant’s bad character is admissible based on its relevance to an important matter in issue between the defendant and the prosecution”[21]. “An important matter means a matter of substantial importance in the context of the case as a whole”[22] as defined in s112 CJA 2003.

Section 103(1)(a) is in regards to propensity to commit the offences of the kind that the defendant is being charged with. In the application of this provision to Avril’s previous convictions for theft it could be said that she does have propensity for theft but the crime of her previous convictions are not relevant to the matter in issue because they fall under different categories of offences. A case that relates well to s103(1)(a) is Hanson (Gilmore) [2005] [23]. The defendant was charged with theft of goods from a shed, and he had three previous convictions for shoplifting which were admitted on grounds for showing propensity[24]; the offences were similar.

Section 103(1)(b) also does not apply to her previous convictions because the provision refers to the propensity to be untruthful which has no obvious similarity to her previous convictions. Therefore, the bad character evidence cannot be admitted through gateway D. If this cannot be admitted through gateway D then Gateway C can be looked at which is under s101(1)(c) CJA 2003. Gateway C is the “important explanatory evidence”[25]. This gateway “reflects the common-law rule which permits background or explanatory material where the account otherwise to be placed before the court would be incomplete and incomprehensible.”[26] This simply means in order for the jury to better understand the facts in issue the background evidence should be allowed. A case that refers to this is Phillips [2003] [27]. In Phillips[28], the evidence of the defendant’s previous threats to kill his wife when he was on trial for her murder were admissible as background evidence[29].

Referring to Avril, her previous convictions for theft cannot be allowed as background evidence to the drugs offences because they fall under different categories. Therefore, her previous convictions for theft is inadmissible under the gateway D and C.

It was seen that she also had two previous convictions involving possession of marijuana and intent to supply. Her two previous convictions for drugs offences was seen to be done in the year 2011 and 2014. Her previous convictions have nothing to do with the offence charged. Firstly, the evidence is relevant. The previous offence and the current offence is not so closely connected because there is quite a gap between the years of her previous offence and the current offence; no nexus in time. It is also not an evidence of misconduct relating to the investigation or the prosecution of the offence, therefore it is a bad character evidence. Going through gateway D her previous convictions involving drugs offences show propensity to commit the kind of offence charged.[30] The test for propensity was established in R v Hanson.[31]“Where the propensity to commit the offence is relied upon there are three questions to be considered. (i) Does the history of conviction(s) establish a propensity to commit offences of the kind charged? (ii) Does that propensity make it more likely that the defendant committed the offence charged? (iii) Is it unjust to rely on the conviction(s) of the same description or category; and, in any event, will the proceedings be unfair if they are admitted?”[32]

Relating this to Avril’s two previous convictions for possession of marijuana with intent to supply, her history of her past convictions does show a propensity to commit the kind of offence charged. This is because in 2011 she was convicted for drugs offences as well as in 2014 for the same crime. Avril being in possession of marijuana and intent to supply has a strong similar link to her drugs offence that she is currently being charged with. It can be said that her propensity makes it more likely that she did commit the offence charged because they all share similar features which means there is a strong MO link. Similar features such as the type of offence, the possession of illegal drugs and intent to supply. It will be just to rely on her previous convictions because it shows a high possibility of reoffending based on her propensity. Avril’s previous convictions meet all the Hanson criteria which means her previous convictions shows a propensity for her to commit the kind of offence charged therefore gateway D is applied.

In conclusion, Avril’s previous conviction for theft is bad character evidence but it could meet the threshold for gateway D and C which shows the evidence to be inadmissible. Nonetheless, her previous convictions for drugs offences met the criteria for gateway D which means it can be admitted as bad character evidence for the prosecution.

C.

The evidence is Avril’s confession and the prosecution wants to adduce this evidence to prove that she committed the drugs offence that she is being charged with. The evidence is relevant because it is in relations to the issue and the drugs offence charged. The evidential issue that this raises is the admissibility of confession. Section 82(1) of the Police and Criminal Evidence Act (PACE) 1984 gives definition to a confession. According to McAlhone and Stockdale “A statement is a confession if, whether oral or written or made by conduct (e.g by video re-enactment), it is at least in part, adverse to its maker’s interests.”[33] It is important to note that confessions are an out of court statement that the defendant made and the prosecution wants to admit it for its truth. This makes the evidence hearsay and as such it is generally inadmissible but there are exceptions to the hearsay rule which is contained in two provisions.

The statutory provisions that regulates the admissibility of confessions is s76 and s78 of PACE 1984. S76(1) of PACE lays out the admissibility of the confession made by the defendant as evidence against him/her. The key factors for admissibility under section 76(1) of PACE is (i) the confession should be relevant to any matter in issue and (ii) it is not excluded by the court in pursuance of s76.[34] The court have a discretion to exclude a confession if it falls under the provision of s76(2) of PACE and it is up to the prosecution to prove beyond a reasonable doubt that the confession does not fall under s76(2) of PACE[35].

S76(2)(a) refers to a confession being obtained by oppression. Section 76(8) of PACE explains what constitutes oppression but this is only a partial definition. In R v Fulling[36] oppression was given the oxford dictionary meaning; the oxford dictionary defines oppression as “prolonged cruel or unjust treatment or exercise of authority.”[37] While Lord Lane in the case of Fulling[38]gave a description of what s76(2)(b) covers. He believed that “the confession must be shown to be voluntary in the sense that it was not obtained by fear of prejudice or hope of advantage, excited or held out by a person in authority”[39] s76(2)(b) looks at the unreliability of a confession, hence looking at the circumstances of anything said and done on the occasion of confession that would make it unreliable; it also includes things not said and not done which could include omissions, breaches of PACE and associated Codes of Practice[40]. There needs to be a causal link between what was said and done in the circumstance and the confession.

Relating this to the issue, Avril made a confession which could be admissible under s76(1) of PACE 1984 because the confession is relevant to the matter in issue. The second factor is the no exclusion by the courts. S76(2)(a) does not apply to Avril’s case because it can be seen from the facts of the issue that her confession was not obtained by oppression; there was no exercise of authority or torture or inhuman and degrading treatment done to Avril. Since Avril’s confession does not fall under oppression s76(2)(b) can be used. The first fact of the issue was that P.C. Pumpkin forgot to issue the police caution before she was interviewed. The failure to give a police caution is a breach of code C under PACE 1984 as seen in Doolan [1988][41].

The second fact of the issue was Avril’s solicitor was not called because of the confusion in the change of police shifts. The right to a solicitor for the accused is found in s56 of PACE 1984[42]. Failure to provide access to a solicitor as required by this provision could lead a person of low IQ who knows little about the process to confess but this may have less effect upon a person who can cope with an interview situation and is aware of his legal rights[43] as seen in R v Alladice (1988)[44]. There is an assumption that Avril is aware of her legal rights because she has had past convictions of the similar offence, therefore her not having a solicitor has little effect on her confession.

The third fact of the issue was that Avril was not given any food and drink for 24 hours and became claustrophobic in the police cell and is also diabetic. Her confession is unreliable because she was not given ‘proper rest’[45] which can also include the provision of food and drink. A police misconduct is not required. In Walker [1998] [46]the police were unaware of the mental condition of the defendant[47]. The police were unaware of Avril’s claustrophobia as well as her diabetes so the police misconduct in regards to this cannot be relied upon. Nonetheless code C does require the police to attend to detained person if the need for attention is urgent.

Another provision that protects the accused from unfair proceedings and unfair evidence is s78 of PACE 1984[48]. This provision shows exclusion of unfair evidence by the court if it would have an adverse effect on the fairness of the proceedings[49]. A breach of PACE or the codes may lead to an exclusion, however the breach should be significant and substantial[50]. It will not be appropriate to exclude a confession based on a breach which is inconsequential, for example, failure to provide a solicitor[51]. It was clear that there was a breach of code when the police did not give Avril access to a solicitor but based on an assumption that Avril could handle an interview situation because she has had previous dealings with police interviews from her past convictions the breach may not be substantial enough for the court to exclude it.

In conclusion, Avril’s confession is unreliable under s76(2)(b) of PACE which can be excluded by the court. This shows that her confession cannot be admissible under s76 of PACE. Nevertheless, it can be admissible under s78 of PACE because her confession was not unfair evidence, therefore it is highly likely the courts will not exclude this, subsequently the prosecution may adduce the evidence through this provision.

BIBLIOGRAPHY

BOOKS

Andrew L-T Choo, Evidence (3rd edn, Oxford University press, 2012)

Christina McAlhone and Michael Stockdale, Nutshells, Evidence in a nutshell (3rd edn, Sweet and Maxwell Limited, 2002)

Richard Glover, Murphy on Evidence (14th edn, Oxford University Press, 2015)

CASES

Hanson (Gilmore) [2005] EWCA Crim 824

R v Alladice (1988) 87 Cr App R 380

R v Davis [2008] EWCA Crim 1156

R v Doolan [1988] Crim LR 747

R v Fulling [1987] 2 All ER 65

R v Hanson [2005] EWCA Crim 824

R v L [2009] 1 WLR 626, CA

R v Phillips [2003] EWCA Crim 1379

R v Tirnaveanu [2007] EWCA Crim 1239

R v Trussler [1988] Crim LR 446

R v Walker [1998] Crim LR 211

STATUTES

Criminal Justice Act 2003

Police and Criminal Evidence Act 1984

Youth Justice and Criminal Evidence Act 1999

WEBSITES

Oxforddictionary.com ‘Oppression’, https://en.oxforddictionaries.com/definition/oppression accessed 15 March, 2017

TheLawDictionary.org, ‘What is RELEVANT?’, http://thelawdictionary.org/relevant/ accessed 8 March 2017

[1] TheLawDictionary.org, ‘What is RELEVANT?’, http://thelawdictionary.org/relevant/ accessed 8 March 2017.

[2] Richard Glover, Murphy on Evidence (14th edn, Oxford University Press, 2015) p 590

[3] Youth Justice and Criminal Evidence Act 1999 s 53 (1)

[4] Youth Justice and Criminal Evidence Act 1999 s 53 (1)

[5] Police and Criminal Evidence Act (PACE) 1984 s80 (3)

[6] Police and Criminal Evidence Act (PACE) 1984 s80 (3)

[7] R v L [2009] 1 WLR 626, CA

[8] R v L [2009] 1 WLR 626, CA

[9] Andrew L-T Choo, Evidence (3rd edn, Oxford University press, 2012) p 277

[10] Criminal Justice Act 2003

[11] Criminal Justice Act 2003 s116 (2)

[12] Youth Justice and Criminal Evidence Act 1999 s16-s17

[13] Youth Justice and Criminal Evidence Act 1999 s17

[14] Youth Justice and Criminal Evidence Act 1999 s17

[15] Youth Justice and Criminal Evidence Act 1999 s23

[16] Youth Justice and Criminal Evidence Act 1999 s27(1)-(3)

[17] Criminal Justice Act 2003 s98

[18] R v Tirnaveanu [2007] EWCA Crim 1239

[19] Criminal Justice Act 2003 s98

[20] Andrew L-T Choo, Evidence (3rd edn, Oxford University press, 2012) p 258

[21] Andrew L-T Choo, Evidence (3rd edn, Oxford University press, 2012) p 258

[22] Criminal Justice Act 2003 s112

[23] Hanson (Gilmore) [2005] EWCA Crim 824

[24] Hanson (Gilmore) [2005] EWCA Crim 824

[25] Criminal Justice Act 2003 s102

[26] R v Davis [2008] EWCA Crim 1156

[27]R v Phillips [2003] EWCA Crim 1379

[28] R v Phillips [2003] EWCA Crim 1379

[29] R v Phillips [2003] EWCA Crim 1379

[30] Criminal Justice Act 2003 s103 (1) (a)

[31] R v Hanson [2005] EWCA Crim 824

[32] R v Hanson [2005] EWCA Crim 824

[33] Christina McAlhone and Michael Stockdale, Nutshells, Evidence in a nutshell (3rd edn, Sweet and Maxwell Limited, 2002) p 82

[34] Police and Criminal Evidence Act 1984 s76 (1)

[35] Police and Criminal Evidence Act 1984 s76 (2)

[36] R v Fulling [1987] 2 All ER 65

[37] Oxforddictionary.com ‘Oppression’, https://en.oxforddictionaries.com/definition/oppression accessed 15 March, 2017

[38] R v Fulling [1987] 2 All ER 65