The Purpose of the Law of Criminal Evidence
The law of criminal evidence provide a body of rules which prescribe the ways in which evidence is presented in a criminal trial. The rules also regulate how the prosecution puts its case to the court. Rules of evidence are also there to ensure that the accused has a fair trial.
Facts in issue: These are identified by looking at the actus reus and mens rea of the crimes of which the defendant is charged. For instance in the case of theft, the actus reus is appropriating property belonging to another. The mens rea is acting dishonestly with the intention to deprive. It is of course the prosecution's duty to prove the defendant's guilt beyond reasonable doubt and in order to do so each element of the actus rea and mens rea must be proved. When discussing issues of evidence there are three core concepts, relevance, admissibility and weight.
Relevance: What is relevant is normally common sense and where there is a dispute between the parties, this should be settled by the judge.
Admissibility: Evidence will be admissible unless specifically excluded under a mandatory rule of exclusion or if the court exercises its discretion to ensure the defendant enjoys a fair trial. The manner in which evidence has been obtained will directly impact its admissibility and this is particularly true of confession or identification evidence. Where there is a question of admissibility it would be for a judge to decide and admitting disputed evidence could be a ground for appeal against conviction
Weight: Where the evidence is relevant and admissible the judge must still decide what weight to give it. The weight to attach to a particular piece of evidence is a matter for the jury or magistrates. In relation to identification evidence in particular the judge has a duty to warn the jury about the dangers of relying on some types of identification evidence. In the event that the judge does not give the appropriate warning and the defendant is convicted this may give sufficient grounds for an appeal.
Assessing the Evidence: The CPS lawyer's role is to assess the evidence that the police have gathered and decide whether it is sufficient for a conviction. Through pre trial disclosure the defence solicitor will know the case against the client and can then assess it against the rules of relevance, admissibility and weight. Where evidence is disputed this is usually ironed out in a procedure known as a voir dire- a trial within a trial. The judge will hear evidence from both prosecution and defence about the how the evidence was obtained, apply the relevant law and then decide whether or not to admit the evidence. If the judge decides that the evidence must be excluded the jury would never be told of its existence.
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Types of Evidence:
- Oral Testimony: This is evidence given about facts that the witness has personal knowledge of and generally considered to be the most persuasive.
- Opinion Evidence: The rule is that witness should give evidence about facts therefore evidence based on opinion will be inadmissible. The exception to this is expert evidence where a matter goes beyond the normal competence of the court. A lay witness can only state their opinion in the course of describing facts of what was witnessed. For instance, He appeared drunk.
- Documentary Evidence: This may be presented to the court in the form of photographs, maps, plans and expert reports.
- Real Evidence: This is an object produced before the court for instance a knife in a murder trial. CCTV footage is also considered real evidence and the judge and jury are entitled to draw inferences from the evidence.
- Direct and circumstantial evidence: Direct evidence need only be accepted or rejected but circumstantial evidence requires the jury to draw an inference from the evidence. Y was running away from Z and had blood stains on his clothing would be circumstantial as the jury would have to draw an inference from the blood stained clothing.
- Clarifying the evidential issues: The defence needs to put forward a theory clearly explaining why the case needs to be resolved in their favour. For example if the prosecution case is based on one of mistaken identity the defence theory should be centred on refuting this by producing alibi evidence.
This is the art of communication by putting forward concise and coherent argument. The following are important points to bear in mind.
- Eye contact: Maintaining eye contact shows you are confident about your presentation and it is a good way of engaging the listener
- Posture: Straight back and shoulders again show confidence and will affect your ability to project your voice.
- Voice: Good breathing will help you project your voice and it would be good to take into account the acoustics of the courtroom
- Pace: your pace must be suitable, not too quick or slow. Clarity is the key.
- Pause: This can be used for dramatic effect especially after making a point.
- Distracting mannerisms: These include fiddling with eyes or hair and detract from the message you are trying to deliver so try to avoid doing this.
- Structure: This will help you devise unnecessary repetition. The most simplest structure of course is to have a beginning middle and an end. Try to avoid reading out huge chunks for statute or case law. Make it brief and concise.
- Brevity: Court time is precious and judges will expect you to make your submissions succinct. It is important therefore to avoid unnecessary repetition.
- Persona: Appear confident; look confident even if you do not feel it. Dressing smartly would inspire you with confidence and creates the right impression. If you are interesting personality you are more likely to engage your audience.
- Etiquette: Familiarise yourself with how to address the court. You would address a crown court judge as, ‘Your Honour'. A district judge would be referred to as, ‘Sir' or ‘Madam' or lay magistrates as, ‘Your Worships'. Solicitors would refer to each other as, ‘my friend for the prosecution/ defence' and barristers would say, ‘my learned friend'.
- Language: Words are powerful tools of communication. Try and use strong adjectives to make your point.
Investigation and Charge
Stop and search before arrest: This is governed by s1 of PACE and code A. A person may be stopped and searched in a public place or a place to which the public has access where the officer reasonably suspects the person is in possession of stolen articles or prohibited articles.
Searching the suspect after arrest: This can happen with the suspects consent or under s32 of PACE where the officer has
- Reasonable grounds to believe that the suspect may present a danger to himself or others
- Concealed anything on him he might use to escape from custody
- Concealed evidence on him which might be related to an offence
Search of premises after arrest: The police may search the suspect's premises either with:
- The suspect's consent
- A warrant in connection with an indictable offence s8 PACE 1984
- Authority to search the premises at which the suspect was arrested s32 PACE 1984
- Authority to search premises owned/controlled by the suspect s18 PACE 1984
- Preserved powers of entry for instance under the Misuse of Drugs Act 1971
Police Officer Arrest without a warrant: Where the police officer has reasonable grounds for suspecting that the person is about to, is committing or has committed an offence and it is necessary to arrest the individual for any of the following reasons listed in s24 (5) :
- To ascertain the name of the suspect where there is reasonable grounds for doubting that the name given by the suspect is their real name
- To enable the person's address to be ascertained
- To prevent the suspect causing physical injury to himself or another, suffering physical injury, causing loss or damage to property, committing an offence against public decency or causing unlawful obstruction of the highway.
- To protect a child or vulnerable person form the suspect
- Allow the prompt an effective investigation of the offence or conduct of the suspect
- To prevent the suspect absconding
A lawful arrest according to s28 PACE must include the following:
- A legal ground for arrest s24 PACE 1984
- Reasonable grounds for believing that an offence has been committed
- The police must caution the suspect as follows:
"You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence"
- The suspect must be informed of the reason for his arrest
- The suspect should be taken to a designated police station as soon as possible