A Problem Answer to a Law of Evidence Question

Abstraction

In this coursework I have paid peculiar attending on the Youth Justice and Criminal Evidence Act 1999 ( YJCEA ) , Criminal Justice Act 2003, Code D of PACE 1984 Code of Practice and instances such as Turnbull [ 1977 ] , R v Hanson [ 2005 ] , R v Vye [ 1993 ] and other relevant instances in order to work out this job inquiry based on condemnable proceedings and construe the legislative acts, the general regulation and exclusions of hearsay grounds, use the instance Torahs and critically measure and analyses them.

In this given set of facts we need to discourse and use the legal regulations of grounds in the context of condemnable proceedings specifically witness competency & A ; compellability, good character & A ; bad character, general regulations of rumor grounds and its exclusions with the proper application of Youth Justice and Criminal Evidence Act 1999 ( YJCEA ) and Criminal Justice Act 2003 and relevant instances, diaries, articles.

  1. Harmonizing to the facts Thomas is merely 11 old ages old who saw two work forces seting electrical equipment into the boot of a white new wave. He along with Harry Jones identified Adam King as one of the work forces they saw at a picture designation process.Now we need to concentrate on chiefly whether Thomas is truly competent to give grounds and even if he can, what type of grounds he will supply.As a kid under 14 Thomas must give unsworn grounds. [ 1 ] In this kernel the trial for pledged testimony is set out inR V Hayes[ 2 ] which is unneeded in this scenario.However, inR V MacPherson[ 3 ] the Court of Appeal held that a 5 old ages old kid is competent in giving informant.Moreover, the grounds of kids under 14 is to be given unsworn and that a child’s grounds must be revived unless it appears to the tribunal that the kid is incapable of understanding inquiries put to him and unable to give replies which can be understood. [ 4 ] The tribunal must make up one’s mind non whether he is competent on evidences of age but whether he is capable of giving apprehensible grounds.It is submitted that a normal 11 old ages old kid would be.The informants credibleness and dependability are relevant to the weight to be given to his grounds and might good from the footing of a entry of no instance to reply but they are non relevant to competence [ 5 ] . In presenting the judgement of the Court of Appeal inR V Sed[ 6 ] Auld LJ pointed out that subdivision 53 does non expressly supply for 100 % comprehension and in this instance the Court of Appeal was much influenced by the earlier determination inR V D. [ 7 ] Allowance should be made on the witness’s public presentation.In this fact it may change harmonizing to the capable affair of the inquiries, on the length of clip between the events referred to by the informant and the day of the month of the inquiring and on any strong feelings that those events may hold caused [ 8 ] as to whether Thomas is truly competent to give grounds or non.Moreover harmonizing to the legislative act there is no minimal age for children’s to give grounds. [ 9 ]
  2. In this fact, Thomas’s parents informed the CPS that Thomas is nervous about giving grounds in tribunal.In relation with this there is a possibility to utilize of Particular Measures like to utilize screens [ 10 ] , unrecorded nexus [ 11 ] , picture recorded grounds in head [ 12 ] , grounds to be given in private [ 13 ] by the prosecution.In this instance the tribunal can interview the kid informant [ 14 ] and it could be a picture interview if necessary [ 15 ] .It may be considered that Thomas might meet particular trouble in attesting.Under subdivision 16 ( 1 ) ( B ) and subdivision 16 ( 2 ) of the YJCEA 1999 [ 16 ] may give grounds by agencies such as unrecorded picture nexus or pre – recording. InR ( On the application of D ) V Camberwell Green Youth Court[ 17 ] the Divisional Court held that particular steps commissariats, here affecting kids, were compatible with article 6 ( 3 ) ( a ) of European Convention of Human Rights [ 18 ] which embodies the defendant’s right ‘ to analyze or hold examined informants against him’ .As individual under 18 Thomas may besides be eligible for particular Measures Directions.Under subdivision 21 ( 1 ) ( a ) of the Youth Justice Act and Criminal Evidence Act 1999 ( YJCEA ) [ 19 ] as amended by the Coroners and Justice Act 2009, the primary regulation in necessitating admittance of a picture interview as scrutiny in head and cross scrutiny through a unrecorded nexus or picture link [ 20 ] at test, applies to all informants under 18, irrespective of the nature of the offense. However, under subdivision 21 if the tribunal determines that under the primary regulation particular steps would minimise the quality of the witness’s grounds so tribunal can see a screen which will be unfastened for Thomas to elect to give unwritten grounds in head or attest in the courtroom instead than utilizing the unrecorded nexus or pre recorded constabulary picture [ 21 ] .Under subdivision 21 ( 4C ) of YJCEA 1999 the tribunal will see some factors [ 22 ] .Although Thomas is non in an age where he might be expected to be able to give unrecorded testimony as he is nervous in giving grounds in tribunal harmonizing to the facts but he may be accompanied by an grownup to supply support for illustration his female parent who have no personal engagement in this instance.
  3. Now we need to measure the admissibility of the designation grounds against George Smith.It chiefly deals with Code D of PACE 1984 Codes of Practice. [ 23 ] Breaches of Code D sometimes can ensue in the exclusion of designation grounds under s.78 ( 1 ) of PACE. Because failure to follow with the proviso in CODE D can impact the dependability of the grounds and dependability is an of import consideration in the application of s.78 ( 1 ) .An of import instance on the effects of non-compliance with the commissariats of Code D isRoentgenVGorja ( Ranjit )[ 24 ] .Moreover if Code D do non warrant the exclusion of designation grounds, they may necessitate appropriate warnings to be given to the jury [ 25 ] .In order to avoid misguided designation of a suspect by prosecution informants the Court of Appeal recommended a new attack by test Judgess to cover with the jobs of designation inTurnbull[ 26 ] .The waies in this instance merely use whenever the prosecution instance depends ‘wholly or well ’on the rightness of one or more designations of the suspect, and the defense mechanism alleges that the identifying informants are mistaken and in this instance the prosecution well depends on the rightness on the designation of George. Harmonizing toShand v The Queen[ 27 ] the prosecution may reason that theTurnbullway must be given where designation is based on acknowledgment. Furthermore, one informant Thomas already mistaken to place George [ 28 ] .But sometimesTurnbullis non required when a informant failed to acknowledge the suspect [ 29 ] and Thomas failed to acknowledge George. [ 30 ] InR V Forbes[ 31 ] it was held that the breach of Code D did non necessitate the grounds to be excluded under subdivision 78 of PACE. However, in this fact, Thomas failed to place George [ 32 ] .Moreover, George denied that he was involved in burglary [ 33 ] .It could be argue that the designation process under Code D paragraph 3.12 is non necessary in this fact.InR V Turnbull[ 34 ] , the Court of Appeal ( CA ) laid down guidelines for the intervention of the designation grounds where the instance depends entirely or well on the rightness of the designations. The guidelines make it clear that the justice should remind the jury of any failing in the designation grounds and that the justice should retreat the instance from the jury unless there is any other grounds which will back up the designation grounds and in this fact there is another informant named Harry who confirmed and recognized George [ 35 ] .In this fact it is extremely likely that the prosecution will be able to reason that designation of grounds against George Smith is admissible.
  4. The following issues to be consider Adam King’s old strong beliefs for assault, robbery and burglary. Evidence of a witness’s bad character did non hold to amount to proof of a deficiency of credibleness on the portion of the informant. [ 36 ] This inquiry is concern with regulations associating to the admissibility of suspect ‘s bad character and besides the equity of the alterations made byCJA 2003. In this respect the Law Commission studies on bad character in 2002. [ 37 ] The common jurisprudence recognized the manner in which grounds of character could be relevant. It could do allegations against a suspect more likely be true but the test should non be used to look into the truth of a old allegation. [ 38 ]Sec-101 of CJA 2003provinces that in condemnable proceedings grounds of suspect ‘s bad character is admissible if one of the factors from sub-section101 ( 1 ) ( a ) -101 ( 1 ) ( g )is satisfied [ 39 ] .In this respect we need to see the three fold trial inR V Hanson[ 40 ] which is laid down by the Court of Appeal. In this instance the leaning [ 41 ] to perpetrate the offense is relied on as the footing for acknowledging grounds of a defendant’s bad character. [ 42 ] The prosecution now may reason that his old strong beliefs is relevant to an of import affair in this test [ 43 ] .But old strong beliefs for offenses of the same description or class does non automatically intend that they should be admitted [ 44 ] .Adam King’s bad character might be admissible by the tribunals as the suspect has a leaning to commission offenses of this sort because a individual old strong belief can be sufficient to set up leaning [ 45 ] .Moreover inIsichei[ 46 ] where the defendant’s leaning [ 47 ] to provide cocaine was relevant to the issue of designation.
  5. In this issue we need to discourse as to how should the justice direct the jury about George Smith’s character.In this fact George Smith already denied that he have any engagement in the burglary and he don’t even have any old strong belief.Similarly inR V Aziz[ 48 ] the house of Lords held that a individual with no old strong beliefs was by and large to be treated as being of good character [ 49 ] and in this fact it could reason that George have good character.Whenever a grounds of good character is given, its significance must be explained to the Jury.The Court of Appeal laid down two limbs inRoentgenVVye[ 50 ] . In this fact it could easy reason that the justice will direct the jury based on theVyeway about George’s character.However, there were some jobs inVyeway like if person plead guilty in any other county so he is no longer of good character but in this fact it is already evident that George don’t have any old strong belief.Moreover, inRoentgenVM ( CP )[ 51 ] it was held that one time the justice decided that the suspect should be treated as a individual of good character so the fullVyeway on good character should be given as it is a affair of jurisprudence.ThePrima facieregulation of pattern is to cover with this by giving a qualifiedVyeway instead than no way at all. [ 52 ] Harmonizing toRoentgenVDoncaster[ 53 ] it can easy reason that if the suspect has no old strong belief but bad character grounds is given under the Criminal Justice Act 2003 so a modified way should be given.From the above treatment it can easy reason that the justice in this scenario should direct the jury about George Smith’s character withVyeway because it is thePrima facieregulation or pattern. [ 54 ]
  6. Now we need to discourse the issue as to whether the persecution will be permitted to abduce the written statement [ 55 ] of Harry who is traveling to New Zealand.From this issue it is evident that we need to see the statement as rumor grounds which is defined as a statement made outside off the tribunal with the intent of demoing that the statement is true. [ 56 ] But by and large in condemnable instances hearsay is inadmissible which is besides affirmed by Lord Normand inTeper V R[ 57 ] .Moreover inMyers v DPP[ 58 ] it was held that a contemporary record made by workers in a motor auto mill of cylinder block and human body Numberss was held to be inadmissible hearsay.In this fact, we need to concentrate if the prosecution made a written statement from Harry so whether it will be admissible [ 59 ] .In this scenario, Harry was outside of UK [ 60 ] and in associating with these kind of issue the Law Commission introduced a ‘reasonable practicableness ‘ trial which require the party wishing to abduce the grounds to do sensible attempts to convey the informant to tribunal but the tribunal will take into history some factors such as the earnestness of the instance and the importance of the information contained in the statement. [ 61 ] Furthermore, inR V Castillio and Others[ 62 ] it was held that it was non moderately operable for the informant to go to and of import consideration was given to the grounds given by the witness.The prosecution besides argue that it falls within the exclusion of the general regulation as the informant Harry moved outside of UK [ 63 ] and it was beyond sensible uncertainty [ 64 ] .From the above treatment it is extremely likely that the prosecution will be able to abduce the written statement of Harry at the test.
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Bibliography:

Primary beginnings:

Text Book:

  • Dennis.I.H, The Law of Evidence,3rdEdition, Sweet & A ; Maxwell 2007
  • Durston. G, Evidence Text & A ; Materials, 2neodymiumEdition, Oxford University Press2011
  • Allen, C, Practical Guide to Evidence, 4ThursdayEdition, Routledge. Cavendish 2008
  • Choo, A.L-T, Evidence, 3rdEdition, Oxford University Press
  • Spencer, J.R and Flin, R, The Evidence of Children: The Law and the Psychology ( 2neodymiumedition, Blackstone, London 2003 )
  • H.Phil, Blackstone’s Statutes on Evidence,12ThursdayEdition 2012
  • Guidance for Vulnerable or Intimidated Witness, including kids ( “The Memorandum 2002 )
  • Spencer, J.R. and Flin, R, The Evidence of Children: The Law and the Psychology ( 2neodymiumedition ) , Blackstone, London 2003
  • Emson, R.Evidence. ( Basingstoke: Palgrave Macmillan, 2010 ) fifth edition
  • Munday, R. Evidence. ( Oxford: Oxford University Press 2011 ) 6th edition
  • Roberts, P. and A. ZuckermanCondemnable grounds.( Oxford: Oxford University Press, 2010 ) 2nd edition
  • Tapper, C. Cross & A ; Tapper on grounds. ( Oxford: Oxford University Press, 2010 ) twelfth edition

Legislative act:

  • Youth Justice and Criminal Evidence Act 1999 ( YJCEA )
  • Criminal Justice Act 2003
  • European Convention of Human Rights
  • the Coroners and Justice Act 2009
  • Code D of PACE 1984

Diaries:

  • The Law Commission study ( 2002 )
  • Ho, H.L. ‘Similar facts in civil cases’ ( 2006 ) 26Oxford Journal of Legal Surveies131.
  • Munday, R. ‘Case direction, similar fact grounds in civil instances, and a divided
  • jurisprudence of evidence’ ( 2006 ) 10International Journal of Evidence and Proof81–103.
  • Munday, R. ‘What really constitutes grounds of “bad character’’’
  • Munday, R. ‘Single act propensity’ ( 2010 ) 74 The Journal of Criminal Law 127 ( reappraisal instances where the Crown has sought to abduce merely individual Acts of the Apostless of misconduct, in order to determine how expansively or restrictively the tribunals interpret the bad character commissariats ) .
  • Redmayne, M. ‘Criminal grounds: The relevancy of bad character’ ( 2002 ) 61 CLJ 684–714.
  • Code of Practice for the Identification of Persons by Police Officers ( Code D ) of the Police and Criminal Evidence Act 1984 ( PACE ) .
  • Devlin Report: ‘Evidence of designation in condemnable cases’ ( 1976 )
  • Roberts, A. ‘Eyewitness designation grounds: procedural developments and the terminals of adjudicatory accuracy’ ( 2008 ) 6 ( 2 ) International Commentary on Evidence.
  • Ormerod, D. and D. Birch ‘The development of exclusionary discretion’ ( 2004 ) Crim LR 767.
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Article:

  • The Law Commission (Evidence OF BAD CHARACTER IN CRIMINAL PROCEEDINGS Report on a mention under subdivision 3 ( 1 ) ( vitamin E ) of the Law Commissions Act 1965 )
  • EVIDENCE LAW CHARACTER AND CREDIBILITY (February 1997Wellington, New Zealand )
  • Bird.J,Plymouth Law and Criminal Justice Review( 2014 )
  • Birch.D, ‘ A Better Deal for Vulnerable Witnesses? ’ [ 2000 ] Crim L.R 223
  • Creighton, P.’Spouse Competence and Compellability’ [ 1990 ] Crim LR 34
  • Hoyano, L.C.H, ’Striking a Balance between the Rights of Defendants and Vulnerable Witnesss: Will Special Measures Direction Contravene Guarantees of a Fair Trial? ’
  • Hoyano, L.C.H, ’Coroners and Justice Act 2009: Particular Measures Directions Take 2: Entrenching Unequal Access to Justice’ [ 2010 ] Crim LR 345
  • Durston, G, ’Bad Character Evidence and Non party Witnesses under the Criminal Justice Act 2003’ ( 2004 ) 8 E & A ; P 233
  • Goudkamp.J, ’Bad Character Evidence and Reprehensible Behaviour’ ( 2008 ) E & A ; P 116
  • Law Commission Consultation Paper, ’Evidence in Condemnable Proceedings: Previous Misconduct of a Defendant’ ( CP 141 ) ( London, 1996 )
  • Law Commission Report No 273 ( Cm 5257 ) , ’Evidence of Bad Character in Criminal Proceedings’ ( London, 2001 )
  • Mirfield, P, ’ Character, Credibility and Untruthfulness’ ( 2008 ) 124 LQR 1
  • Spencer, J.R, Evidence of Bad Character ( Hart, London,2010 )
  • Byron( 1999 )The Times,10 March andGayle[ 1999 ] 2 Cr App R 130
  • David Ormerod’s commentary in [ 2011 ]Crim LR10, 793–798
  • Dennis, I. ‘The right to face informants: significances, myths and
  • human rights’ [ 2010 ]Crim LR4, 255–74.
  • Mirfield, P. ‘Character and credibility’ [ 2009 ] Crim LR 3, 135–51
  • Redmayne, M. ‘Recognising propensity’ [ 2011 ]Crim LR3, 177–98
  • Munday, R. ‘Single act propensity’ [ 2010 ]J Crim L74 ( 2 ) , 127–44
  • Law Commission No 245, 1997, para 8.39
  • Roberts, P. and A. Zuckerman, ‘Implied averments and the logic of hearsay’
  • Birch, D. ‘Interpreting the New Concept of Hearsay’ ( 2010 )CLJ72.

Common Laws:

  • R 5 Hayes [ 1977 ] 1 WLR 234
  • R V MacPherson [ 2005 ] EWCA Crim 3605
  • R V Sed [ 2004 ] EWCA Crim 1294
  • R V D [ 2002 ] 2 Cr App R 36
  • R V K [ 2006 ] EWCA Crim 472
  • R V Powell [ 2006 ] EWCA Crim 3
  • R ( On the application of D ) V Camberwell Green Youth Court [ 2003 ] EWHC Admin 22
  • R V Gorja ( Ranjit ) [ 2010 ] EWCA Crim 1939
  • R V Forbes [ 2001 ] 1 All ER 686
  • Turnbull [ 1977 ] QB 224
  • Shand v The Queen [ 1996 ] 1 WLR 69, 72
  • R V Nicholson [ 2000 ] 1 Cr App R 182
  • Thornton[ 1995 ] 1 Cr App R 578 andWoodlouse[ 1995 ] 1 Cr App R 584
  • R V Oscar [ 1991 ] Crim LR 778
  • Limburne and Bleasdale [ 1994 ] Crim LR 118.
  • R V Caldwell [ 1993 ] 99 Cr App R 73
  • R V Hanson [ 2005 ] 1 WLR 3169
  • Tully and Wood ( 2007 ) 171 JP 25
  • R V McDonald [ 2007 ] EWCA Crim 1194.
  • Isichei [ 2006 ] EWCA Crim 1815
  • R V Aziz [ 1996 ] AC 41
  • R V Vye ( 1993 ) 97 Cr App R 134.
  • Teper V R [ 1952 ] AC 480 at 486
  • Myers v DPP [ 1965 ] AC1001
  • R V Castillio and Others [ 1996 ] 1 Cr App R 438
  • R V Bray [ 1988 ] 88 Cr App R 354
  • R v Acton Justices ex P McMullen 1990 92 Cr App R 98

Electronic Beginnings:

  • www.lexisnexis.co.uk
  • www.westlaw.co.uk
  • www.gov.co.uk
  • www.guardian.co.uk
  • www.homeoffice.gov.uk/publications/police/operational-policing/pace-codes/pace-code-d-2011
  • www.officialdocumentsgov.uk/document/hc1011/hc08/0829/0829.pdf

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