Criminal Litigation Process and Evidential Issues
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Published: Thu, 21 Dec 2017
This question raises issues of the criminal litigation process as well as evidential issues involved during the questioning of suspects and subsequent litigation. In the interests of proper case analysis, I have decided to deal with the parties in turn by considering the legal issues that arise in relation to each party’s case.
R v. Sir Joseph Priestley
Sir Joseph Priestley has been convicted of indecent exposure based on evidence given by Ms. Amanda Robert. The case has been heard in a Magistrates Court by a sole magistrate. Sir Joseph Priestley now wishes to appeal against the decision of the magistrate. In advising Sir Joseph Priestley, the first issue to be touched upon is the right of appeal in decisions rendered by the magistrates’ courts.
A decision of a magistrates’ court can be challenged in one of three ways: firstly, by an appeal to the Crown Court; secondly, by an appeal to the High Court by way of case stated by the magistrates for the high court’s opinion, or on application to the High Court for judicial review. In this case, Sir Joseph Priestley will be advised to proceed on the basis of an appeal to the High Court by way of case stated. Most appeals by way of case stated are aimed at overturning either a summary acquittal or conviction, as in the case of Sir Joseph Priestley, a conviction. Appeals by way of case stated is governed by the Magistrates’ Court Act 1980 and section 111(1) provides that any person who was a party to any proceeding before a magistrates’ court or is aggrieved by the conviction of the court may question the proceeding on the ground that it is wrong in law or in excess of the court’s jurisdiction.
Sir Joseph Priestley’s application will be made on the basis that District Judge Asquith’s decision is wrong in law. The basis for such a conclusion is premised on the substantial evidential issues arising during the course of the trial. In his summing up, the District Judge alluded to three issues which deserve our attention. The first is his statement regarding the veracity of Ms Robert as a truthful witness. DJ Asquith refers to the witness’s evidence as corroborated as a result of her fragrant appearance. Such a statement is not of itself improper but it gives cause for concern when the only corroboration of the witness’s account of events is her fragrant appearance. In this case, the appropriate method of corroboration might have been through other witnesses who saw the offence committed or through witnesses who know the accused or the victim and can testify as to their veracity for the truth. The issue here is simple – the victim’s evidence has not been tested and it is unsafe to convict Sir Joseph Priestley based on this untested evidence.
Secondly, as to the issue of Sir Joseph Priestley’s defence of mistaken identity, DJ Asquith suggests in his speech that the burden of proving this defence lies on the accused – that is clearly not the case. The general rule with regards to the burden of proof in criminal cases is that the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt. There is a statutory exception to the rule which is contained in section 101 of the Magistrates’ Court Act 1980 which basically surmises that in a summary trial where the defendant relies for a defence on any statutory exception, exemption, provision or qualification to the statutory offence charged, the burden of proving that exception is on the defendant. In this case, Sir Joseph Priestley’s defence is not an exception or provision forming part of the offence charged. It is simply a defence of mistaken identity to the offence charged and which forms part of the case that the prosecution has to prove. While Sir Joseph Priestley had the evidential burden of raising the defence, it was for the prosecution to disprove such a defence. It was clearly wrong for DJ Asquith to cast the burden of proving the mistaken identity on Sir Joseph Priestley and this clearly provides a basis upon which an appeal can be sought.
Thirdly, with respect to the Judge’s reference to Sir Joseph Priestley’s refusal to discuss the facts of the case during police interrogation, we must consider the effect of section 34 of the Criminal Justice and Public Order Act 1994 ( CJPOA) which deals with the defendant’s failure to mention facts when questioned or charged. In such a case where the defendant has been questioned and he has not responded to those questions, the tribunal of fact may draw such inferences as appear proper from the defendant’s refusal to mention those facts which he later seeks to rely on. However this present case must be distinguished from the classic section 34 cases such as R v Condron and R v Cowan because Sir Joseph Priestley clearly stated during interview that it was a case of mistaken identity. Assuming that it truly was a case of mistaken identity, then there would have been nothing further to discuss during interview and the judge would be wrong in drawing the inferences from Sir Joseph Priestley’s interview with the police.
Another point which must be discussed is the fact that despite alluding to the defence of mistaken identity during police interrogation, the police did not conduct further investigations to enquire whether anyone else on the train might have witnessed the crime. One would imagine that travelling from Buckinghamshire everyday to Neasden, Sir Joseph Priestley would have established a travel pattern which would yield the possibility of discovering regular travel companions who might know about Sir Joseph Priestley and whether he has ever engaged in such an act. The inability of the police to yield additional evidence to support the Ms Robert’s case seems to be particularly detrimental in proving the case against Sir Joseph Priestley. It would therefore seem that Sir Joseph Priestley has a good chance of overturning the conviction on appeal.
R v. Mr. Harry Collingwood and Mr. Fred Vaughan
The facts reveal that both Fred and Harry have been convicted of the crimes of murder and conspiracy to cause explosions. They now seek to appeal against their convictions. The issue raised here is whether the conviction is safe in the light of the evidential shortcomings displayed during the criminal litigation process. The general rule with respect to appeals from the crown court is encapsulated within section 2 of the Criminal Appeals Act 1995. This section states that a person convicted on indictment may appeal on the single ground that the conviction is unsafe. In the case of R v. Chalkley, the Court considered the definition of “unsafe” and suggested that it was more or less a subjective question of whether there still remained a lurking doubt in the minds of people which made them wonder whether an injustice has been done.
There are a number of issues which must be discussed in the light of the conclusion that the conviction appears to be unsafe. The first issue relates to the procedure followed during the interrogation of both Fred and Harry. The facts reveal that during questioning, both parties were denied access to a solicitor. The general rule with respect to rights of suspects to legal advice is contained within section 58 of the Police and Criminal Evidence Act 1984 (“PACE”). Section 58 provides that a person who is arrested and held in custody at a police station has a right, at his request, to consult privately with a solicitor at any time. Furthermore, Article 6(3) of the ECHR requires that consultation with a legal adviser must take place out of the hearing of a third party. Fred and Harry therefore ought to have been informed of their right to see a solicitor upon arriving at the police station, and they also had the right to consult with solicitors without the presence of Inspector Lewis or any other third party. The refusal of the right to consult with a solicitor is clearly grounds for the exclusion of the evidence obtained as a result of the denial of the accused’s right.
The second issue relates to the refusal by the police to allow both Fred and Harry inform a family member of their whereabouts. Under PACE, section 56(1) the suspect has the right to have a friend or family member informed of the arrest. However this right may be delayed in certain circumstances. One of such circumstances might be where the officer has reasonable grounds to believe that such friend or family member may interfere with the evidence connected with an offence, thus hampering the police investigation. It would therefore appear that in this case the police might have been justified in refusing both Fred and Harry the right to inform family members of their whereabouts.
The third issue here relates to the apparent physical threats made by Inspector Lewis to both Fred and Harry and the manner and condition under which the confessions were made. The threats and the manner of eliciting the confessions can be said to amount to oppression. Oppression is defined in section 76(8) of PACE as ‘torture, inhuman or degrading treatment, and the use or threat of violence. In 1968, Lord MacDermott commented to the Bentham Club that: “oppressive questioning is questioning which by its very nature excites hopes or fears or so affects the mind of the suspect that his will crumbles and he speaks when otherwise he would have remained silent.”
While PACE does not define any of the three concepts of torture, inhuman or degrading treatment, one can look to the decision of the European Court of Human Rights in The Greek Case where the commission defined inhuman treatment as such treatment as deliberately causing severe suffering, mental or physical and degrading treatment as treatment which grossly humiliates the individual before others or drives him to act against his will or conscience. Furthermore in the case if Republic of Ireland v. United Kingdom the court was concerned with certain techniques of interrogation used upon suspects in detention which included wall standing, hooding, deprivation of sleep, food and drink. In this case, the court held that the techniques amounted to inhuman treatment because they caused physical and mental suffering and also led to acute psychiatric disturbances during interrogation. Relying on the above decisions, it can be said that the station house treatment of both Fred and Harry amounted to inhuman treatment and the nature of the questioning was clearly oppressive.
In the light of this fact, the next logical question to be decided falls to be: Of what evidential value is the confession purported to have been signed by both Fred and Harry. Having determined that the confession was the product of oppressive questioning, we now turn to look at section 76 of PACE. Firstly as with all confessions made to the police, if the prosecution wishes to rely on it, they must satisfy the rule of admissibility that is in section 76(2). In this case, the Judge should have proceeded to hear issues as to the admissibility of the confession in a separate proceeding known as the voir dire, or the trial within the trial and then deciding as to whether or not the evidence ought to be allowed in. Failing to do this, the judge clearly breached the procedural rules relating to the admission of evidence and this clearly presents a ground for challenging the conviction.
The next issue concerns the joint trial of Fred and Harry, where both defendants rely on different defences. What exactly do I mean? Well we need to examine what section 76(1) of PACE states. It states that a confession made by an accused is admissible against him. This shows that it is only admissible against its maker and not against any other person including a co-accused who may be named in the confession. In this case, the learned judge has not used his discretion to order separate trials, give a limiting warning to the jury or sought to edit the confession so that it does not implicate Harry Collingwood, whose defence is that he was not present at the time of the bombings, but was in china on vacation. Once again, such flagrant disregard for criminal procedure by Mr. Justice Jeffreys lends credible support to the conclusion that the criminal procedural system was so flawed as to render the convictions unsafe.
The final issue to be touched upon relates to the unusual nature of the Judge’s summing up to the Jury. As it has been noted in Blackstone’s Criminal Practice 2008, errors resulting the judge’s summing up are clearly capable of rendering a conviction unsafe. It is therefore necessary to carefully dissect the summing up in this case to see where the judge erred.
The first issue to be raised with the summing up is that of the burden of proof. While the Judge makes mention of the fact that the burden of proof is on the prosecution, he fails to mention the standard to which the burden must be proven. Secondly, the Judge’s statements that the Jury ought to disregard Ms Lopez’s testimony without any proper basis for its dismissal is clearly erroneous in the light of the fact that the law clearly states that the judge has a general duty to remind the jury of the evidence, and as part of that duty. He has got to remind them of the defence case – Ms. Lopez’s alibi of Mr. Collingwood forms part of the defence case for Mr. Collingwood and the judge ought not to have made light of the fact that love is blind and can lead people to do silly things which clearly forms a bias against Ms. Lopez’s testimony.
Overall, the judge’s summing up was clearly biased and in favour of the Prosecution. The judge’s statement that the prosecution evidence is best corroborated by the jury’s knowledge of the world is clearly erroneous and devoid of proper reasoning or sound legal knowledge. Any corroboration that the jury might need ought to have been in the evidence presented, and not in any external factors such as their knowledge of the world.
In the case of Berrada, the judge referred to defence allegations which suggested that police had fabricated evidence as “really monstrous and wicked”. On Appeal, it was decidedly stated that in directing the jury, the judge has a duty to state matters impartially, clearly and logically and not inappropriately to inflate evidence to sarcastic and inappropriate comment. Similarly in R v. Marr, the judge’s dismissive attitude towards a large volume of character evidence had been held as grounds for having the conviction quashed. Although in the case of O’Donnell, it was held that the judge should be allowed some leeway in commenting upon the evidence and in the case of Canny, it was held that a conviction will be in danger only when the judge crosses the line into blatant unfairness and apparent pro-prosecution bias.
Applying the above cases to the present scenario, it is my opinion that the comments of the judge, during summing up, do clearly cross the line into blatant unfairness and prosecution bias as demonstrated in Canny. The judge could not be described as having been fair in his summing up, and if even allowed some lee way in commenting upon the summing up, his comments could not be described as harmless, but at best, were designed to perpetrate his politically minded agenda which showed a heavy disdain for political activists. However he failed to note that the bench is not the place to perpetrate such an agenda and that he has to remain neutral at all times during the course of the trial. The judge clearly did not achieve this level of fairness and as such the conviction of both Fred and Harry must be said to be unsafe and dangerous and warrants an immediate appeal.
1) Peter Murphy, Blackstone’s, Criminal Practice, 2007, Blackstone Press.
2) Roderick Munday, Evidence, 2005, Third edition, Oxford University Press
3) Ian Dennis, The Law of Evidence, 2003, Second Edition, Sweet & Maxwell.
4) Adrian Keane, The Modern Law of Evidence, 2005, Sixth Edition, Lexis Nexis
5) Peter Hungerford-Welch, Criminal Litigation & Sentencing, 2004, Sixth Edition, Routledge Cavendish.
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