Evidence: The admissibility of improperly obtained evidence

(Abstract taken from my own dissertation)

The admissibility of improperly obtained evidence

It is well established that the courts have the power to throw cases out of court based on some infraction. Whether a police officer denied the suspect the right to legal advice,[1] or failed to note his name and station on arrest,[2] the courts may use such reasoning to justify acquittal. Whilst in principle it is arguably a fine moral standard to ensure misconduct is punished, one must question whether the UK has the correct approach or whether more could be done to ensure justice is achieved on a range of levels. Sanders and Young state that ‘excluding reliable evidence at trial – or worse, halting the trial altogether – so that a guilty person walks free, punishes the innocent public along with the guilty police.’[3] This essay submits that our system has a worrying view of what ‘justice’ is and if we are going to start achieving it, changes must be made.

The provision under which the exclusion of improperly obtained evidence is made possible is found in the Police and Criminal Evidence Act 1984 (PACE) s.78. The section is based upon the supposed ‘adverse effects on the fairness of the proceedings’[4] if evidence is admitted which gives the prosecution an unfair advantage, or of which the opposition have little or no chance at responding to. Although this relatively new provision under PACE appears to empower the judiciary with abundant discretion, Watkins LJ in Mason pointed out that the section actually ‘does no more than to restate the power which judges had at common law before the 1984 Act was passed’.[5]  Issues of admissibility are thus potentially rooted in historical thought, which perhaps explains the system’s reluctance to reform. Nonetheless, there is certainly evidence of some change over the years, given that the historical common law ‘was at the crime control end of the spectrum’ whilst PACE demonstrates clear movement towards due process.[6]

All the same, the issues are as confused now as they have always been. Indeed in R v Sang [1980][7] ‘all the members of the Lords...were prepared to recognise that there should be the possibility of excluding evidence on the basis of unfairness, but did not present any uniform view as to what circumstances might justify this’.[8] It is probably fair to submit, given the ever-widening scope of s.78, that there is still a vital lack of clarity as to what may or may not be excluded. The new provision must, however, be extolled for the extensive scope inherent within it. The term ‘improper evidence’ may be applied in respect of ‘illegal search; identification evidence; suspects being wrongly denied access to solicitors; confessions; alibi notices; breaches of PACE codes.’[9] This means that whilst there may still be some confusion as to when evidence will be excluded, the circumstances under which such a debate might arise will undoubtedly fall within the provision.

It is not entirely apparent whether s.78 is rooted in due process or crime control rationale. Judicial discretion here, similarly, is neither prima facie advantageous nor detrimental to the defendant’s case as it tends to produce anomalous results; this is perhaps a flaw in its own right. The plethora of case law that has arisen in this area gives very little guidance as to what the outcome of any given trial may be. The notion of precedents has been partially, if not entirely, abandoned.

One of the most recent examples of rights going above and beyond their original purpose is that of Abu Qatada and the Courts’ decision to retain him in the UK. The saga has been described as ‘a very expensive and very embarrassing headache for the British Government’[10] as the suspected terrorist from Jordan has been detained in the UK for the past 7 years, for fears that deporting him to his native country would result in a criminal trial where evidence obtained by torture – which is not permitted under the European Convention on Human Rights[11] - is used to convict him. Taking such a due process stand has also highlighted the fundamental quandary in attempting to find the ‘correct’ outcome - assuming that one exists. As one human rights blog states: ‘On the one hand, we have national security. On the other, due process and the rule of law. All three are vital components of the public interest, and often they conflict.’[12]

There are a plethora of issues which arise in the on-going Abu Qatada debate, which will not be discussed here as the basis for this discussion is predominantly centred on exclusion of evidence, linking to the wider issue of whether criminals have too many human rights. However, it is important to note that making such deeply due process-rooted decisions regarding evidence exclusion means that not only in this case are public funds being spent on maintaining an immigrant and giving him a luxurious lifestyle[13] – it has been estimated that when calculating the legal aid, jail fees, government bill, security, housing and benefits, Abu Qatada will cost the UK approximately £6million in 2013[14] - but the suspected terrorist is not being prosecuted in this country either. Theresa May has voiced her concerns and told the Commons that the Government will continue to do everything it can to get rid of Abu Qatada;[15] the problem is finding a law that will permit such action, in a country which is notoriously due process.

However, exclusion of evidence dilemmas do not always arise in such high profile cases. Take for example, Attorney General’s Reference (No.3 of 1999)[16] in which the defendant was acquitted after DNA evidence, proving his guilt, was deemed inadmissible. The saliva sample taken on suspicion of burglary months earlier – of which he was later acquitted – was not destroyed in accordance with legislative provisions requiring destruction of samples.[17] When swabs were taken some 9 months later from a rape victim, which matched the defendant’s DNA profile, he was arrested and a hair sample was taken, proving further evidence of his guilt. It is worth noting that although the suspect was acquitted, the House of Lords disapproved of the result; this perhaps demonstrates the need for acquittals to be challenged. This will be discussed in the double jeopardy section below.

So why are we so hell-bent on excluding evidence which is known to be reliable? How can we be so blasé about acquitting a known-rapist? The issue remains unclear, although it is thought to be rooted in the moral, or not-so-moral standards, we are endorsing when we permit the state to benefit from misconduct. Sanders and Young point out the fundamental impasse: ‘What discredits the criminal justice system more: ignoring apparently reliable evidence and allowing the apparently guilty to go free, or using illegally obtained evidence and, by doing so, condoning illegal police behaviour which may not be subject to any other sanction?’[18]

The writers also highlight the crime control view that ‘legal niceties should not obstruct the search for the truth’[19] – with which this essay is inclined to agree. The issue of admissible or inadmissible evidence is ripe for reform. Although adjudicators now lean towards an arguably more attractive ‘reliability’ stance, if judicial discretion is indeed the way forward, there is a need for clearer guidelines and more consistent precedents; otherwise the justice system becomes a shambles of incomprehensible decisions, supposedly founded on little more than simply good sense.

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[1] Samuel [1988] 2 All E.R. 135

[2] Osman v Southwalk Crown Court [The Times 28 Sept 1999]

[3] Andrew Sanders & Richard Young, Criminal Justice (4^th edn, OUP 2010) 700

[4] Police and Criminal Evidence Act 1984, s.78(1)

[5] Diane Birch & David Ormerod, ‘The evolution of the discretionary exclusion of evidence’ [2004] Crim LR 774

[6] Andrew Sanders & Richard Young, Criminal Justice (4th edn, OUP 2010) 701-2

[7] [1980] AC 402

[8] Richard Stone, Civil Liberties & Human Rights (8^th edn, OUP 2010) 168

[9] Diane Birch & David Ormerod, ‘The evolution of the discretionary exclusion of evidence’ [2004] Crim LR 774-5

[10] Online constitutional law blog: Tom Hickman, ‘The Return of Abu Qatada (to the streets of London)’ (2012) - http://ukconstitutionallaw.org/2012/11/14/tom-hickman-the-return-of-abu-qatada-to-the-streets-of-london/

[11] European Convention on Human Rights, Article 3

[12] Online human rights blog: Adam Wagner, ‘Abu Qatada: in the public interest’ (2012) - http://ukhumanrightsblog.com/2012/11/16/abu-qatada-in-the-public-interest/

[13] For example, the £400,000 house in Wembley, as reported by Tom Peck, ‘Abu Qatada is moved to secret address after protesters target his home’ (2012) The Independent

[14] Online article: Richard Moriarty & Luke Heighton, ‘Abu Qatada will cost UK taxpayers £6m this year’ (2013) The Sun - http://www.thesun.co.uk/sol/homepage/news/4765055/Abu-Qatada-will-cost-UK-taxpayers-6m-this-year.html

[15] Online article: unknown author, ‘Abu Qatada wins appeal against deportation’ (2012) BBC News - http://www.bbc.co.uk/news/uk-20295754

[16] [2001] 2 A.C. 91

[17] Police and Criminal Evidence Act 1984, s.64(1)

[18] Andrew Sanders & Richard Young, Criminal Justice (4th edn, OUP 2010) 700

[19] Andrew Sanders & Richard Young, Criminal Justice (4th edn, OUP 2010) 700

Herbert Packer's Models of Criminal Justice - Crime Control vs Due Process

(Abstract taken from my own dissertation)

Packer’s models of criminal justice

It has been said that any given justice system will generally adopt one of ‘two conflicting value systems that [compete] for priority in the operation of the criminal process.’[1] Of course, these two systems are the Crime Control and Due Process models mentioned above; and whilst it is true to say that they stand for inherently different values and most people are inclined one way or the other, Packer has said that ‘anyone who supported one model to the complete exclusion of the other ‘would be rightly viewed as a fanatic’.[2]

The Crime Control model (CC) has been described as a conveyor belt by Sanders and Young. This is perhaps due to the nature of the system which moves quickly, knocking off various suspects one by one. Abolishing crime is CC’s primary concern, whilst human rights exist as a secondary or even tertiary consideration – this is one of its major criticisms, given that the Human Rights Act 1998 is now a fundamental part of our legal system.

Despite heavy critique, the model must be praised for its ability to address levels of crime with speed and efficiency; it has also been suggested that without such a harsh system, a ‘general disregard for the criminal law would develop and citizens would live in constant fear’.[3]

However, whilst some CC arguments are plausible, the inconsistency in practice cannot be justified so easily as the lack of thorough investigation puts innocent people at risk of conviction. Additionally, achieving such efficiency with resistance to challenge suggests methods such as interrogation may be freely endorsed; it is a worrying thought that we might be prioritising conviction rates above human autonomy.

It could be argued that ‘criminal justice agencies have been put under considerable performance pressure to reduce crime, to bring offenders to justice and to deal with juvenile offenders’,[4] but critics would submit that this goes little way to providing a defence as what we ‘save’ in monetary terms, we have to make up for in other ways – and this is usually at the expense of human dignity.

The Due Process model (DP) on the other hand, could be described as the antonym of crime control. It is based on procedure and sensitivity to each case – placing as much importance on the process as the end result. Sanders and Young have said that its aim is as much about protecting the factually innocent as convicting the factually guilty, which automatically denotes far fewer convictions.

The willingness of DP to sacrifice crime statistics in the name of preventing demoralising and oppressive behaviour is perhaps founded on the belief that we must teach by example and are failing to educate offenders when we too become law-breakers. “To seek to condemn and deter these people for their supposedly free-will decision to breach the criminal law smacks of cruel hypocrisy, particularly when there is a failure to provide for the individualised and humane rehabilitation of offenders.” [5]

There is a dire need to improve confidence in the criminal justice system[6], and those in favour of due process would submit that respect for individual rights is a step in the right direction. The Government in 2004 said that ‘improving the way that we treat the public, particularly victims and witnesses, is essential to enhancing levels of confidence.’[7] Nevertheless, without improved statistics the due process model will fail to be competent enough on its own, and this is perhaps where our crime control anomalies arise.

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[1] Andrew Sanders and Richard Young, Criminal Justice (4^th edn OUP 2010) 21

[2] Andrew Sanders and Richard Young, Criminal Justice (4^th edn OUP 2010) 24

[3] Andrew Sanders and Richard Young, Criminal Justice (4^th edn OUP 2010) 22

[4] Daniel Gilling, Crime Control and Due Process in Confidence-Building Strategies, A Governmentality Perspective [2010] BJC

[5] Andrew Sanders and Richard Young, Criminal Justice (4^th edn OUP 2010) 23-4

[6] Daniel Gilling, Crime Control and Due Process in Confidence-Building Strategies, A Governmentality Perspective [2010] BJC

[7] HM Government, Cutting Crime, Delivering Justice: A Strategic Plan for Criminal Justice 2004-08, (2004)

Equity and Trusts: Resulting Trusts (Basic notes)

The term ‘resulting’ comes from the Latin word ‘resalire’, meaning ‘to jump back’. 

The trust operates to ‘jump back’ interest in property to a donor who transferred it to another person who is now deemed a resulting trustee of property in his hands.

Resulting trusts respond to the absence of any intention on his part to pass the beneficial interest to the recipient. Additionally, where a trust has been used properly for its purpose but a surplus fund remains, it will be held on resulting trust.

Equitable maxim that ‘equity abhors a beneficial vacuum’ – where a person transferred property to another without identifying who was to enjoy the beneficial interest in such property, the beneficial interest would result back to the person transferring the property.

CASE LAW:

In Vandervell v IRC (no1) Lord Reid said the ‘beneficial interest must belong to or be held for somebody; so if it was not to belong to the donee or be held in trust by him for somebody, it must remain with the donor.’

Westdeutsche case: two instances in which a resulting trust arises:

1) A makes a voluntary payment to B, or pays for the purchase of property which is vested in either B alone or in their joint names. There is a presumption that A did not intend to make a gift to B – but this is only a presumption, and is easily rebutted where the A’s intention demonstrates that it was intended to be a gift.

2) A transfers property to B on express trust but fails to exhaust the entire beneficial interest.

Air Jamaica v Charlton [1999] – LJ Millett: a resulting trust ‘arises whether or not the transferor intended to retain a beneficial interest – he almost always does not – since it responds to any absence of intention on his part to pass a beneficial interest to the recipient.’

Re Sick [1973] – Megarry LJ: ‘a resulting trust is essentially a property concept; any property that a man does not effectually dispose of remains his own.

There are a plethora of circumstances in which a resulting trust might arise, although in all cases, the presumption in equity is that is that the transferor or the person providing the purchase money does not intend to confer absolute ownership on the transferee; rather the presumption is that he intends to retain the beneficial ownership.

Justifications for resulting trusts – 1) to reverse an unjust enrichment; 2) to give effect to the true intention of the settlor.

Automatic and presumed resulting trusts - Megarry J in Vandervell (no2) said that a resulting trust was one of two main types: 1) Automatic – arise automatically in circumstances where an express trust failed for some reason, e.g. failure to comply with a formality or being contrary to perpetuity rules; or 2) Presumed – arise on the basis of the presumed intentions of the person transferring property to another; most typically where a person transfers or purchases property in the name of another.

EXAMPLES WHERE A RESULTING TRUST ARISES

1. A settlor attempts to create a trust by appointing a trustee and transferring the £1000 to him. The settlor explains to the trustee that he will inform him later as to who the beneficiary of the trust is. The settlor fails to inform the trustee as to whom the £1000 was to benefit and a few weeks later dies.

2. A settlor creates a trust by transferring £20,000 on trust to his trustee for the medical costs of his old aunt so long as she is in hospital. The aunt recovers and is discharged from hospital. The trustee, however, has £12,000 of trust money which was not used for the aunt’s medical costs.

3. At the beginning of their studies, 50 law students form a club which organises seminars and talks on equity. The club also organised a number of trips. Membership to the club could only be taken on payment of a fee. The club also received some money from the parents of the students by way of voluntary donations and one legacy of £1000. The students are now coming to graduation and wish to end the club. There are 30 members remaining and the club has £1,200 in a bank.

4. You secure employment with a firm. The employer provides you with the opportunity to join a private pension payable on your retirement. The scheme requires that you pay a sum of money from your wage every month into the scheme. The employer also agrees to pay a certain sum each year into the scheme so as to make sure that it provides sufficient cover when the employees retire. Your employer has informed you that the business will be closed and the employees will receive their benefits from the scheme as explained in the scheme should the business cease trading. After payment of the agreed benefits, the pension scheme has a surplus of £200,000.

5. Michael transfers his house voluntarily in the name of his brother in fear that his new business may fail and his house may be at risk from the claims of creditors. The business, however, is a success and he wishes his brother to re-convey the house to him. The brother refuses to do so. Michael commences proceedings in court to recover the house on the ground that the only reason he transferred the house to his brother was to hide it from the creditors.

6. V and D are an unmarried couple, and have decided to purchase a house to live in. The legal title is taken in the name of V despite the fact that D contributed £30,000 to the initial deposit price. 

Succession: Key cases for s.9 Wills Act formalities

Kell v Chamer – a will may be written in any language or code - jewellery codes

Barnes – a will may be written on any material - egg shell

Murray – a will may be written on any material – cigarette packet

Hindmarsh v Charlton – signature: name or mark intended to represent name

In the Goods of Kieran – 2 letter signature was sufficient

Re Cook – “your loving mother” was sufficient

In the Goods of Flinn – thumb print signature was sufficient

Wood v Smith – may sign anywhere on the will

In the Goods of Mann – unsigned will contained in signed envelope was sufficient

In the Estate of Bean – unsigned will and unsigned envelope: name, address, date had been stated but was still insuffient

Smith v Smith – witness need not know the document is a will

Re Collings – witness must stay present until signature is complete

Brown v Skirrow – witnesses must be mentally and physically present

Casson v Dade – it was enough that the testator could have seen the witness sign, even if he did not actually see it

Couser v Couser – the judge questioned why no one asked if testator had looked to see the witness sign

Wilson v Beddard – 14 yr old witness was sufficient

Corbett v Newey – will doesn’t need to be dated

Banks v Goodfellow – T must understand 1) effect, 2) extent, 3) nature of will

Parker v Felgate – 1) capacity when drafting will, 2) will prepared as directed, 3) remembers instructions and believe they were followed, 4) no suspicious circumstances

In the Estate of Bohrmann – only need to exclude the part of the will affected by incapacity

Hall v Hall – Undue Influence – testator may be “lead but not driven”

Vaccianna v Herod – Forgery – civil standard of proof

Family Law: Surrogacy

Family: Surrogacy

-       Criminal offences: Surrogacy Arrangements Act 1985 s.2(1) – no person shall on a commercial basis take part in surrogacy negotiations, offer or agree to negotiate, or compile any information with a view to using it in negotiations.

To constitute an offence the arrangement must be made before the gestational mother becomes pregnant.

NB: the gestational and commissioning mother are not liable for the offence, only third parties making the arrangements.

It is also an offence to pay money that constitutes a reward or profit to the gestational mother under a surrogacy arrangement. Payment can cover expenses. Any payments can be authorised under s.30(7) HFEA 1990.

-       Enforcing a surrogacy arrangement: s.1A Surrogacy Arrangements Act 1985 says that no arrangement is enforceable.

Without this provision a surrogacy contract might be thought to be enforced in the same way as another contract.

In Briody v St Helens and Knowsley HA the court referred to the surrogacy arrangement as an ‘unenforceable and unlawful contract’.

-       What happens when the baby is born?

Option 1: Commissioning parents take no legal steps. Gestational mother (surrogate) would be the mother, and the biological father would be the father. If the legal status of the child’s parentage ever came to court, it’s likely that they’d order to maintain the status quo. In Re H a mother gave birth but did not want to care for the child. She handed the baby over to her friends, a lesbian couple –one had a history of mental illness whilst the other had a criminal conviction. The matter was brought before the court 9 months later, by which time the couple had bonded with the child. The court said that unless there was significant danger of harm, they would have to confirm present arrangements.

Option 2: Commissioning parents could apply for a parental order.

Option 3: Commissioning couple could apply for a residence order. Leave to make the application will be required unless the commissioning husband is the genetic father of the child. The courts’ paramount consideration will be the welfare of the child. Generally, unless the gestational mother opposes the application, it will be granted. Re P was an exceptional case where the surrogate mother had lied to the father and told him that she miscarried. He later found out the truth and applied for a residence order with his wife. Evidence of the surrogate mother’s psychological state meant that the child was better off with the commissioning parents, even though the child had bonded with the surrogate mother for 18 months.

Option 4: Commissioning parents may also apply for an adoption order where a parental order is not available. NB: the Adoption Act 1976 clearly forbids any ‘payment or reward’ in private adoption placements.

Option 5: Local authority may wish to investigate in order to decide whether to use any of its powers; e.g. care order.

-       Where gestational mother refuses to hand the child over – the commissioning parents could apply for a residence order. However, by the time the matter reaches the court it may well be that the child will have bonded with the gestational mother. This, in conjunction with the natural parent presumption, is likely to mean that the court will not grant the order and the child will stay with the gestational mother.

-       Confusing approach – the law’s response to surrogacy is ambiguous. Surrogacy itself is not illegal, but on the other hand surrogacy contracts are unenforceable.

ARGUMENTS FOR SURROGACY

-       A woman should be allowed to do with her body as she wishes

-       Some believe surrogacy is a more appropriate solution for infertile couples than many forms of assisted reproduction

-       Surrogacy is inevitable and therefore best regulated by law

-       Surrogacy encourages and enables a variety of family forms. It is especially good for gay couples

ARGUMENTS AGAINST SURROGACY

-       Surrogacy arrangements are contrary to the best interests of children. It is not desirable for a child to be born in circumstances that are so likely to result in a dispute between adults, which may well harm the child. A child may also be confused about his identity

-       Can be seen as demeaning to women as they are being used as ‘walking incubators’

-       Surrogacy does not challenge the attitude of society towards infertility and means resources are not directed towards discovering the causes of infertility

-       The Roman Catholic Church has argued that surrogacy is analogous to adultery, in that it brings a third party into the married

-       The child after birth might be rejected by both the gestational mother and the commissioning parents, particularly if the child is born disabled

-       Commercial surrogacy arrangements commodify children and treat them as chattels to be bought and sold.

Reform

In 1998 there was a review of surrogacy which led to proposals for a new code of practice aimed at controlling the payments of surrogate mothers and the regulation of surrogacy in the UK. These reforms perhaps happened following the publicity surrounding Karen Roche.

NB: some of the above content may have been taken from other sources