Free Custom «Law of Evidence» Essay Paper

The possibility of evidence being excluded because it was obtained by a ‘trick’

David’s case is a very complicated one. It needs an intellectual mind to professionally handle it. While it is generally acknowledged that it is the role of the police officer to carry out arrests and subsequent investigations, it has become apparent that many of them have conducted themselves unprofessionally. This is an ethical, but also contravenes the law which they should be enforcing. The collection of evidence should be objectively done in a manner which can help to unveil the truth without contravening the rights of the accused person or the victim of a particular alleged offence.

In the United Kingdom (UK), the validity of evidence is stipulated in the Police and Criminal Evidence Act (PACE) of 1984. This act was instituted by the parliament to clearly stipulate a legislative framework in the Whales and English police officers in combating crime. It also specifies the accepted codes of conduct by these officers. This implies that it can be applied in controlling the exercise of power of the police officers when discharging their duties. As a member of the common wealth group of nations, UK is committed to the rule of law. When determining any legal case, it is paramount to incorporate the police, prosecutor, attorneys, judges and magistrates. Each of these has an important role to play.

 

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On the other hand, the Serious Organized Crime and Police Act 2005 (c.15), argues that it is the responsibility of the police officers to investigate a crime. During this exercise, they gather both the tangible and intangible evidences which can be provided in the curt of law during the hearing process. However, some officers abuse this privilege. Instead of serving the involved parties with the respect they deserve, they decide to be so authoritative. For instance, they force them to disclose evidence. This is an infringement of their rights and a contravention of PACE which strives to balance the power between the general public and the police officers.  

Based on this background, I would like to advise David that the evidence he provided should be excluded during his trial. The circumstances under which it was provided were not favorable to him as a person who would appear before a judge. First, he was tricked and cheated that his co-accused had admitted that he also had knowledge of the alleged theft. This left him with no choice, but to admit the offence for a fear of dire consequences.  This is unlawful because it influenced his stance on the offence. At the same time, it was like an intimidation because he was not given an opportunity to act without any external pressure. Moreover, he was denied a chance to testify before his lawyer who would of course represent him during trials. The Criminal Justice Act of 1867 section 10(1) stipulates that admissions made by a defendant before the actual trial must be approved by his solicitor or counsel. However, this right was infringed during the interview process.

This case is similar to R v Warickshall; R v Voisin and R v Barker which were also argued in the same manner.  In the first case, Warickshall who was accused of possessing stolen property was intentionally induced by a police officer to make a confession. This compelled her lawyer to advocate for the exclusion of the evidence, a plea which was later accepted in the court of law.Similarly, R v Barker was argued in the same manner. After being charged with the theft of books of account, the defendant was coaxed by deception to provide evidence. The evidence was quashed paving way for fresh investigations.

The other case which can be used as a reference to prove the relevance of evidence in DPP v. Kilibourne. During the determination of this case, the presiding judge concluded that evidence is only relevant when it is logically probative regarding a matter which needs proof. In other words, a relevant evidence is the one which enables a given matter which requires a proof to be less or more probable.  Therefore, just like David’s case, such evidence can be corroborated because it can confirm another one. It is admissible and has the required relevance. These cases can be used to explain the role of evidence and its admissibility in a case. They are relevant to David’s case which involved the provision of evidence in an unlawful manner.

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I advice David that the evidence he provided is not admissible because it was not obtained in a right manner. He was not to give his own point of view regarding the theft of the radio in which he had been tricked into by the same police officer. Besides, he was asked leading questions which would automatically leave him with no option, but compel him to admit the alleged offence. It should be excluded from the court as part of the evidence to rely upon. Instead, fresh investigations should be conducted regarding this offense. Similarly, the defendant must be entitled to the services of a legal attorney. This should be availed at all times without any limitation. He should accompany him during important occasions such as interviews to ensure that they are conducted as per the law.

The law governing the admissibility of the confession

In UK, the admissibility of confession is stipulated in Criminal Justice Act 1967 Section 10(1). Only evidence which can be included as a proof in the court of law should be admitted either before or during the trial process. In this regard, the defendant has a legal right to choose to admit the provided facts in writing. However, this should only be formally done before the case is presented to the court for a full trial. However, the defendant also has a right to offer his submissions at the court of law. Since a formal admission is the most important thing which determines the authenticity of a case, the defendant has to be so careful on what kind of information to give. It is conclusive of the evidence before it marks the end of the evidences which can be given in a single case. After its provision, the defendant can not be allowed to disclose any other evidence. This means that David should be very careful on whatever he says. If he decides to admit the evidence, he should consistently stick to it during the whole trial process.

At the same time, David should understand that this section also stipulates that oral evidence may also be admitted in the court of law. Facts provided orally can be admitted during criminal proceedings. However, for an individual case like David’s it is important to note that his admissions can only be valid if they are duly signed by his defense counsel either before or during the actual hearing of the case. On the other hand, David should know that oral admissions made during the court proceedings must be noted down and signed. Otherwise, it will have no basis unless such a directive is given by the presiding judge. The situation may be different while dealing with a legal representative. In this case, the defendant will not be physically present and personally engaging in the process. Hence, just the ay his evidence is provided and argued for by the representative, it is the same representative who is entitled to make admissions on his behalf. 

On the other hand, an admission may be provided in the court of law. However, unlike the formal one, it can not be used as a conclusive proof of a case. This is because it does not meet the statutory requirements of the Criminal Justice Act 1967. It is just a statement made by the defendant which can adversely affect his case. They include statements made during the interview process y the police officers. PACE gives mandate to the police officers carrying out investigations to interview a defendant. The information gathered from them can be used as evidence in the case. However, admissions made during this stage can be used during the hearing of the case. However, as already mentioned, it is not a conclusive proof of an offence.

In this regard, I would like to advise David that he should be careful about his utterances. He should not be compelled to give a formal or informal admission. Doing this may be so dangerous for him because it can provide a strong proof for the alleged offence. Similarly, it can adversely affect his case. For instance, his admission during the interview was an informally done. Although he thought that he was submitting to the pressure, he was endangering himself because the submissions made could be presented to the case as part of the evidence against the alleged theft. He did not know that the police officer was tricking him. Hence, he readily accepted that he had collaborated with Paul to steal the radio even if he did not have any knowledge about the theft. I am strongly convinced that he was acting this way because of fear and lack of knowledge on  Sections 9 and 10 Criminal Justice Act 1967 which provide clear guidelines on admissions.

Those are the legal provisions which determine admissibility during the hearing of a case. The evidence given must be relevant and gathered in an appropriate manner. Otherwise, it can not be relied upon during the trial process. As already explained, even admissions made during the PACE interview process can be used to prove a case. This is what happened to David when he readily admitted to have had a prior knowledge about the alleged theft involving him and Paul. However, it may not be so effective because it was orally made without involving a counsel. This implies that it was supposed to be signed by a counsel although he was denied access to one.

Hence, I can advise David to be keen on the above clauses because they can assist him to know what to do in case of such an offence. As a suspect, he should have been informed that he was under arrest and that any utterances he made could be used in the court against him. The police officer who was carrying out the interview was also not serving justice to him. He as not objective on whatever he wanted to do. He did a very bad thing for tricking David to accept that he had in deed carried out a criminal activity. Unfortunately, the truth is that David as not aware of the theft. Neither had Paul confessed to have involved him in the alleged theft. This indicates that the officer was not operating within the laws.

Whether David’s previous convictions may be revealed at trial, and if so, for what purpose

The disclosure of previous convictions of a defendant has been a very controversial issue. This is because it has been inappropriately used in the past to adversely alter the strength of cases. However, the Criminal Procedure and Investigations Act 1996 are very categorical on this issue. It states that past prosecutions can be revealed during the trial process to help the presiding magistrate in understanding the defendant. I would like to advise David that his past conviction records can be revealed without him protesting. It is permitted by law. Although it appears as if it can influence the ruling, David should appreciate that it is only done as provided by law. If David has previous criminal convictions, the judge will take note of the charges, the sentence and the outcome of the case. Other things that will be noted include: the name of the previous court, judge and subsequent convictions. In the criminal record, other things that will be considered include the justice system that was involved and the fact whether the defendant was tried for other crimes in a court of lesser jurisdiction.

The Criminal justice Act 2003 Section 143 (2) (4) and (5) attests that the revelation of previous convictions can assist both parties in the following ways:

First, it can help in ascertaining the magnitude of the dangerousness of the defendant. The law is believed having a long hand. The only way to understand much about the legal history of the defendant is through going through police records to know the number of times he has been prosecuted, convicted or acquitted. In the David’s case, knowing that he had been severally convicted of theft may help the presiding judge to use both the primary and secondary evidence to prove the case. This can help him to weigh and reason out the best action to take in line with the law.

Besides, it can help in tracing the development of individual in his criminal career. Since one of the major roles of the judiciary is to promote justice in the society, it is paramount for the judge to unsure that the convicts are rehabilitated. However, the only way to know if a previously convicted person has reformed is through understanding his past records. In this regard, I would advise David the court would be in order to review his past records so as to know he trend of his criminal activities. It would assist the presiding judge to understand if he had transformed into a law abiding citizen. Therefore, he should accept this decision especially if the due process is not infringed.

Lastly, revelation of the past convictions can help in protecting the interest of the entire society. The act provides that this should be done in order to help the presiding judge to make a decision which will help in the protection of the general public from a dangerous criminal. Being in the wrong side of the law is unlawful and should be dealt with decisively. I would advise David to allow for the revelation of his past convictions because it would enable the involved teams to determine the effectiveness of the measures taken during those trials. He should liaise with his attorney and the counsel to ensure that this exercise is done in accordance with the law. Otherwise, he should file for an appeal in case of any detected violation of the relevant laws.

Contrarily, I would advise David that the law also forbid revelation of the past convictions. Before doing this, the prosecutor and the magistrate must prove beyond reasonable doubt that such revelations can help in determining the decision to be taken against the defendant. These parties are free to choose either to reveal or not to reveal such information. David is free to protest such a revelation if he feels that it can endanger him. Otherwise, if it is properly used, it can be of great benefit to him. However, it is recommended for him to actively involve his attorney during the whole process (Marshall, G., 2009). The revelation of past convictions might not be a breach of the law. In UK, it is considerably part of the due process even though it has become so contentious.

In conclusion, I would like to say that David’s case is so complicated. I really sympathize with him. The ordeal in which he has found himself is so common in the world today. Very many police officers are using all sorts of tricks to win the case. However, this is an infringement of the law. All the legal provisions guiding the investigation and trial processes should be adhered to. This is the only way through which justice can be served to public. However, the revelation of previous prosecutions is okay if done as per the law.