{"id":1285,"date":"2018-02-02T08:40:47","date_gmt":"2018-02-02T08:40:47","guid":{"rendered":""},"modified":"2019-07-09T12:44:44","modified_gmt":"2019-07-09T12:44:44","slug":"law-customs-drugs-immigrant","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/general-law\/law-customs-drugs-immigrant.php","title":{"rendered":"Criminal Evidence Essays"},"content":{"rendered":"

Immigration Law Essay<\/strong><\/p>\n

D was
\narrested by customs officers at the airport for smuggling drugs. He told the
\ncustomers officers that A, B and C had agreed to buy drugs from him and that he
\nwas to contact A when he had passed through customs. He agreed to give evidence
\nagainst A, B and C if he was charged with a lesser offence. Under the
\nsupervision of customs officers D telephoned A and agreed to meet him at the
\nairport hotel and a conversation between D and A at the hotel was covertly
\nrecorded in which D offered to sell A 5 kilos of cocaine. A was arrested by the
\ncustoms officers and later questioned under caution after consulting with his
\nsolicitor. A informed the officers that his solicitor had advised him that it
\nwould not be reasonable to expect him to answer any questions until he saw a
\nwritten copy of D’s statement. When B was arrested and questioned he said he
\nhad never met A, C or D. He now admits that he knows A but says he was in panic
\nbecause customs seemed to have such a strong case against A and he wanted to
\ndistance himself from A. When C was arrested and questioned the customs officer
\ntold him that since he was an illegal immigrant he could be deported and that
\nit was in his interests to cooperate. C then made a full confession. At the
\ntrial D pleaded guilty to a lesser offence and was called as a witness against
\nA, B and C who all plead not guilty to a conspiracy to import illegal drugs. As
\ntrial judge deal with the following submissions:<\/strong><\/p>\n

1. Submission
\nby A That the Proceedings Should be Stayed<\/h3>\n

Dealing first
\nwith the testimony of D it can be shown that an inculpatory statement made by
\none accused about another outside court and not in the presence of the
\nco-accused, will not be evidence against the co-accused (because of the rule
\nagainst hearsay) and will be admissible only to the extent that it also
\nimplicates the person who makes the statement.
\nThe judge has no discretion to exclude relevant evidence on which a defendant
\nproposes to rely,
\nand a co-defendant will have to make do with a warning to the jury in the summing
\nup that what is said outside court by one defendant is not evidence against
\nanother.<\/p>\n

In relation to
\nthe covert recording this is dealt with in S78(1) of PACE. Evidence
\nwhich might ordinarily be reliable may be rendered unreliable by the way in which
\nit has been obtained and s78(1) has been used to exclude it where this
\nhas been so. It has been said that the provisions of Code C that are
\ndesigned to ensure that interviews are fully recorded and the suspect given an
\nopportunity to check the record should be strictly followed, and that courts
\nshould not be slow to exclude evidence following substantial breaches.<\/p>\n

Where evidence,
\nas it has been here, is obtained by entrapment, admissibility does in part
\ndepend on reliability. Lord Taylor CJ
\nset out some factors which a judge must take into account. These include
\nwhether there was an unassailable record of what had occurred and whether it
\nwas strongly corroborated. Other factors are not relevant to reliability, but
\nto the degree of impropriety involved in obtaining the evidence in question.
\nIt is therefore suggested that evidence can be excluded under s78 (1) if,
\nalthough reliable, has been obtained in a way that showed contempt for what can
\nbroadly be referred to as process values. In other words, as Ian Dennis has
\nargued, apparently reliable evidence may need to be excluded if it carries
\nsignificant risks of impairing the moral authority of the verdict<\/p>\n

However in the
\ndecision of the Court of Appeal in Chalkley and Jeffries
\nthe court said that the reference to the circumstances in which the evidence
\nwas obtained in s78(1) was not intended to widen the common law rule stated by
\nLord Diplock in Sang
\nthat save in the case of admissions and confessions and generally as to
\nevidence obtained after the commission of the offence, there is no discretion
\nto exclude evidence unless its quality is or might have been affected by the
\nway in which it was obtained, however this has since been held to not
\nnecessarily be the case.<\/p>\n

The House of
\nLords have also accepted that a breach of a defendant’s right to privacy under
\nArticle 8 of the European Convention of Human Rights can occur where evidence
\nis improperly obtained.<\/p>\n

For these
\nreasons it is submitted that the testimony of D and the covert recording should
\nbe excluded although for the reasons above the testimony of D could be evidence
\nin his own case.<\/p>\n

2. A
\nSubmission by the Prosecution that the Lie told by B was Evidence of his Guilt<\/h3>\n

The supporting
\ngeneralisation would be that a person who has lied about knowing A C D is more
\nlikely to lie that someone who did not lie about knowing these people. The
\nadmissibility of this as evidence (if considered relevant) will be governed by
\nPart 11, Chapter 1 of the Criminal Justice Act 2003 if, but only if, it
\namounts to evidence of bad character within s98. If this is not the case then
\nit will not be admitted.<\/p>\n

Misconduct is
\ndefined in s112 (1) as the commission of an offence or other
\nreprehensible behaviour. According to the Explanatory Notes accompanying the Criminal
\nJustice Act 2003, the definition is intended to be a broad one. If the
\njudge accepts the arguments for the relevance of the evidence, it seems to
\nfollow that the evidence is of a disposition towards misconduct, although
\nperhaps not very strong evidence.<\/p>\n

If we assume
\nthat this is relevant and amounts to evidence of bad character then will this
\nevidence be admissible under the Criminal Justice Act 2003 ? There are
\ntwo possible lines of argument. The first is that the evidence is admissible
\nunder s101 (1)(C on the basis that it has an important explanatory
\nfunction. By s102, evidence is important explanatory evidence if
\nwithout it the court or jury would find it impossible or difficult to
\nunderstand properly other evidence in the case, and its value for understanding
\nthe case as a whole is substantial.<\/p>\n

The second
\nargument is that the evidence of the discoveries is admissible under s101(1)(d)
\nof the Act, on the basis that it is relevant to an important matter in issue
\nbetween the defendant and the prosecution. Under s101(1)(d) there is no
\nrequirement that the probative value of such evidence should be substantial.
\nHowever by s 101 (3) the court must not admit evidence under s101
\n(1)(d) if, on the application by the defendant to exclude it, it appears to
\nthe court that the admission of the evidence would have such an adverse effect
\non the fairness of the proceedings that the court ought not to admit it.<\/p>\n

On the basis of s101(1)(d)
\nit would seem that the evidence of the lie can be admitted, however not as
\nevidence of B’s guilt but as being relevant to an important matter in issue
\nbetween the defendant and the prosecution.<\/p>\n

3. Submission
\nby C that his Confession Should be Excluded<\/h3>\n

The general rule
\nis that:<\/p>\n

In any
\nproceedings a confession made by an accused person may be given in evidence
\nagainst him in so far as it is relevant to any matter in issue in the
\nproceedings and is not excluded by the court in pursuance of this section<\/p>\n

There are limited
\ncircumstances in which a confession may be inadmissible one if this is in
\nconsequence of anything said or done which was likely, in the circumstances
\nexisting at the time, to render unreliable any confession which might be made
\nby him in consequence thereof.
\nThis requires the judge to consider whether or not the conditions under which the
\nconfession was obtained are, in general, conducive to unreliability rather than
\nwhether the actual confession is unreliable.<\/p>\n

Familiar indicia
\nof unreliability are threats, promises and inducements. In one case a threat
\nto charge a suspects family members if he failed to co-operate; and in another
\ncase where a promise of immediate release, reduced charges or a lighter
\nsentence in exchange for a confession was made these were held to be
\ninadmissible.
\nCode C of PACE also deals with this issue directly where such
\nconfessions are held to be inadmissible. Although each case will turn on its
\nown facts and the application of s78 is not an apt field for hard case
\nlaw and well founded distinctions between cases<\/p>\n

However the
\ncourts in previous cases have insisted that there must be a casual connection
\nbetween the circumstance conducive to unreliability and something said or
\ndone by a person other than the accused. Generally the courts have taken
\nformalistic interpretations of the section and have demonstrated continued
\nreluctance to undertake a more active and systematic screening of the threshold
\nreliability of confession evidence.<\/p>\n

Evidence which
\nmight ordinarily be reliable may be rendered unreliable by the way in which it
\nhas been obtained and s78(1) has been used to exclude it where this has
\nbeen so. It has been said that the provisions of Code C that are
\ndesigned to ensure that interviews are fully recorded and the suspect given an
\nopportunity to check the record should be strictly followed, and that courts
\nshould not be slow to exclude evidence following substantial breaches.<\/p>\n

Where evidence,
\nas it has been here, is obtained by entrapment, admissibility does in part
\ndepend on reliability. Lord Taylor CJ
\nset out some factors which a judge must take into account. These include
\nwhether there was an unassailable record of what had occurred and whether it
\nwas strongly corroborated. Other factors are not relevant to reliability, but
\nto the degree of impropriety involved in obtaining the evidence in question.
\nIt is therefore suggested that evidence can be excluded under s78 (1) if,
\nalthough reliable, has been obtained in a way that showed contempt for what can
\nbroadly be referred to as process values. In other words, as Ian Dennis has
\nargued, apparently reliable evidence may need to be excluded if it carries
\nsignificant risks of impairing the moral authority of the verdict<\/p>\n

It can therefore
\nbe concluded that the confession of C may be inadmissible and as a trial judge
\nit may have to be recommended that this evidence be excluded.<\/p>\n

4. Submission
\nby The Prosecution That The Jury Should be Invited to Draw Adverse Inferences.<\/h3>\n

A’s failure to
\nanswer police questions fully is governed by S 34 of the Criminal Justice and
\nPublic Order Act 1994. The failure of an accused in such circumstances to
\nmention any facts relied on later in his defence, it was a fact which in the
\ncircumstances existing at the time the accused could reasonably have been
\nexpected to mention, will allow the jury in determining whether the accused is
\nguilty of the offence charged to draw such inferences as appear proper. It is
\nimportant to know whether or not A was offered a solicitor. Sub section (2A)
\nof s34 provides that where the accused was at an authorised place of detention
\nat the time of his failure to mention any fact relied on in his defence , no
\ninferences may be drawn unless he was allowed an opportunity to consult a
\nsolicitor before being questioned.<\/p>\n

If it is an
\nappropriate case for a s34 direction, the judge should follow the guidelines
\nset out in Gill.
\nHe must identify the fact on which A relies and which was not mentioned in
\nquestioning. He must direct the jury that it is for them to decide whether in
\nthe circumstances, that fact was something that A could reasonably have been
\nexpected to mention. He should tell them that if they think it was, they are
\nnot obliged to draw any inferences but that they may do so. Further, he must
\ntell the jury that a suspected person is not bound to answer police questions,
\nthat an inference from silence cannot on its own prove guilt, and that the jury
\nmust be satisfied that there is a case to answer before they can draw any
\nadverse inferences from silence. Finally, he should tell the jury that they
\ncan draw an adverse inference only if they are sure that A was silent because
\nhe had no answers, or none that would stand up to investigation.<\/p>\n

5. A
\nSubmission by A B C That The Judge Should Warn the Jury<\/h3>\n

The question of
\nwhether the judge should give a warning arises because there is a personal
\ninterest in A making the statement, in so far as he will receive a lesser
\noffence. Dealing with the testimony of A it can be shown that an inculpatory
\nstatement made by one accused about another outside court and not in the
\npresence of the co-accused, will not be evidence against the co-accused
\n(because of the rule against hearsay) and will be admissible only to the
\nextent that it also implicates the person who makes the statement.
\nThe judge has no discretion to exclude relevant evidence on which a defendant
\nproposes to rely,
\nand a co-defendant will have to make do with a warning to the jury in the
\nsumming up that what is said outside court by one defendant is not evidence
\nagainst another. However in the case of Blake v Tye
\nthis issue was challenged. In the case of Gray and Others
\nthis matter was also discussed Dixon CJ said that the reason for admitting the
\nevidence of the acts or words of one defendant in a joint enterprise against
\nthe others was that the agreement to commit the crime was considered as
\nimplying an authority to each to act or speak in furtherance of the common
\npurpose on behalf of the others. But from the nature of the case, it could
\nseldom happen that anything said by one of the defendants which was no more
\nthan a narrative or account of events that had already taken place cold be
\nadmissible against his companions in the common enterprise, though it might be
\nadmissible as a confession against the speaker. Dixon CJ said the question of
\nadmissibility would relation to directions, instructions or arrangements, or to
\nutterances accompanying acts.
\nHowever it has been said that an account of events narrated by one of the
\nparties to another while the common enterprise was continuing, in order to
\nbring that other up to date, might be regarded as in furtherance of the
\nenterprise, and so admissible against all the parties referred to in it.<\/p>\n

Therefore it is
\nconcluded that it unlikely that this will be admissible evidence but if it is
\nthen there most certainly must be a warning given to the jury.<\/p>\n

Bibliography<\/h3>\n

Cases <\/strong><\/p>\n

    \n
  • R v Chalkley and Jeffries (1988) 2 Cr App r79<\/li>\n
  • R v Gunewardene
    \n[1951] 2 KB 600<\/li>\n
  • R v Jelen and
    \nKatz (1990) Cr App Rep 456<\/li>\n
  • R v Kennan
    \n(1990)<\/li>\n
  • R v Philllips
    \n(1988) 86 Cr App R 18 CA ;<\/li>\n
  • R v Roberts 1997
    \n1 Cr App Rep 217 ;<\/li>\n
  • R v Sang [1980] AC 402<\/li>\n<\/ul>\n

    Legislation<\/strong><\/p>\n

      \n
    • Criminal Justice
      \nAct 2003<\/li>\n
    • PACE 1984<\/li>\n
    • Journal
      \nArticles<\/li>\n
    • Dennis I H,
      \n(1989) Reconstructing the Law of Criminal Evidence, Current Legal Problems 21
      \npp 35-44<\/li>\n<\/ul>\n","protected":false},"excerpt":{"rendered":"

      Criminal Evidence Essays – Use Our Free Law Essays To Help You With Your Law Course<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[27],"tags":[85],"class_list":["post-1285","post","type-post","status-publish","format-standard","hentry","category-free-law-essaysgeneral-law","tag-uk-law"],"yoast_head":"\nCriminal Evidence Essays | LawTeacher.net<\/title>\n<meta name=\"description\" content=\"Criminal Evidence Essays - Use Our Free Law Essays To Help You With Your Law Course\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.lawteacher.net\/free-law-essays\/general-law\/law-customs-drugs-immigrant.php\" \/>\n<meta property=\"og:locale\" content=\"en_GB\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Criminal Evidence Essays\" \/>\n<meta property=\"og:description\" content=\"Criminal Evidence Essays - 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