Problem Answer to Law of Evidence Question

Problem Answer to Law of demonstration QuestionIn this coursework I open paid particular attention on the juvenility Justice and venomous register deed of conveyance 1999(YJCEA) , execrable Justice forge 2003 , mandate D of thou 1984 encipher of Practice and cases such as Turnbull 1977 , R v Hanson 2005 , R v Vye 1993 and different relevant cases in order to solve this problem question based on criminal proceedings and learn the statutes , the general rule and exceptions of rumor inference ,apply the case honors and critically evaluate and analyses them.In this given set of facts we need to discuss and apply the legal rules of turn out in the context of criminal proceedings specifically find out competence compellability, penny-pinching fibre bad character, general rules of hearsay testify and its exceptions with the proper coat of Youth Justice and culpable Evidence toy 1999 ( YJCEA) and Criminal Justice go 2003 and relevant cases , journals , articles . j ibe to the facts Thomas is only 11 years quondam(a) who saw two men putting electrical equipment into the boot of a white van. He along with Harry Jones identified Adam King as one of the men they saw at a picture acknowledgment procedure .Now we need to focus on mainly whether Thomas is really effective to give evidence and even if he can, what type of evidence he will provide .As a child to a lower place 14 Thomas moldiness give unsworn evidence.1 In this essence the test for sworn testimony is set out in R v Hayes2 which is unnecessary in this scenario .However, in R v MacPherson3 the court of justice of Appeal held that a 5 years old child is suitable in giving retrieve .Moreover, the evidence of children under(a) 14 is to be given unsworn and that a childs evidence must be revived unless it appears to the court that the child is incapable of savvy questions put to him and unable to give answers which can be understood.4The court must decide not whether he is competent on grounds of bestride unless whether he is capable of giving intelligible evidence .It is submitted that a normal 11 years old child would be .The witnesses credibleness and reliability atomic number 18 relevant to the weight to be given to his evidence and might well from the basis of a submission of no case to answer barely they are not relevant to competence 5 . In de bonkring the judgment of the Court of Appeal in R v Sed6 Auld LJ pointed out that section 53 does not expressly provide for 100% comprehension and in this case the Court of Appeal was much influenced by the earlier decision in R v D .7Allowance should be made on the witnesss performance .In this fact it may vary according to the subject matter of the questions, on the length of time between the events referred to by the witness and the date of the questioning and on any strong feelings that those events may have caused 8 as to whether Thomas is really competent to give evidence or not .Moreover according to the statute there is no minimum advance for childrens to give evidence.9In this fact, Thomass parents informed the CPS that Thomas is nervous about giving evidence in court .In relation with this there is a possibility to use of redundant Measures like to use screens10, go away link 11 , video recorded evidence in chief 12 , evidence to be given in private 13 by the pursuit.In this case the court can interview the child witness14 and it could be a video interview if necessary 15 .It may be considered that Thomas might determine special difficulty in testifying .Under section 16 (1) (b) and section 16 (2) of the YJCEA 199916 may give evidence by means such as live video link or pre recording . In R ( On the application of D ) v Camberwell Green Youth Court 17 the Divisional Court held that special measures provisions , here involving children , were compatible with article 6 ( 3 ) ( a ) of European Convention of Human Rights 18 which embodies the defendants right to canvass or have examined witnesses against him .As person under 18 Thomas may also be eligible for special Measures Directions .Under section 21 ( 1 ) ( a ) of the Youth Justice Act and Criminal Evidence Act 1999(YJCEA)19 as amended by the Coroners and Justice Act 2009 , the pristine rule in requiring penetration of a video interview as examination in chief and cross examination through a live link or video link 20at psychometric test , applies to all witnesses under 18 , regardless of the nature of the offence . However , under section 21 if the court determines that under the primary rule special measures would minimize the quality of the witnesss evidence then court can consider a screen which will be open for Thomas to elect to give oral evidence in chief or testify in the courtroom rather than using the live link or pre recorded police video 21.Under section 21 (4C) of YJCEA 1999 the court will consider some factors 22.Although Thomas is not in an age where he might be expected to b e able to give live testimony as he is nervous in giving evidence in court according to the facts but he may be accompanied by an adult to provide support for example his mother who have no personal involvement in this case .Now we need to assess the admissibility of the identification evidence against George Smith .It mainly deals with Code D of PACE 1984 Codes of Practice.23Breaches of Code D sometimes can result in the exclusion of identification evidence under s.78 (1) of PACE. Because failure to comply with the provision in encrypt D can affect the reliability of the evidence and reliability is an important consideration in the application of s.78(1).An important case on the consequences of non-compliance with the provisions of Code D is R vGorja (Ranjit)24.Moreover if Code D do not justify the exclusion of identification evidence, they may require appropriate warnings to be given to the board 25 .In order to avoid mistaken identification of a defendant by prosecution witness es the Court of Appeal recommended a new approach by trial judges to deal with the problems of identification in Turnbull26.The governions in this case only apply whenever the prosecution case depends wholly or substantially on the justness of one or more than identifications of the defendant, and the defence alleges that the identifying witnesses are mistaken and in this case the prosecution substantially depends on the correctness on the identification of George. According to Shand v The Queen27 the prosecution may argue that the Turnbull direction must be given where identification is based on recognition. Moreover, one witness Thomas already mistaken to identify George 28.But sometimes Turnbull is not required when a witness failed to recognize the suspect 29 and Thomas failed to recognize George.30In R v Forbes31 it was held that the breach of Code D did not require the evidence to be excluded under section 78 of PACE. However , in this fact , Thomas failed to identify Georg e32.Moreover , George denied that he was tough in burglary33.It could be argue that the identification procedure under Code D paragraph 3.12 is not necessary in this fact .In R v Turnbull34 ,the Court of Appeal (CA) laid down guidelines for the treatment of the identification evidence where the case depends wholly or substantially on the correctness of the identifications. The guidelines make it take place that the judge should remind the jury of any weakness in the identification evidence and that the judge should withdraw the case from the jury unless there is any other evidence which will support the identification evidence and in this fact there is another witness named Harry who confirmed and recognized George35 .In this fact it is exceedingly believably that the prosecution will be able to argue that identification of evidence against George Smith is admissible.The next issues to be consider Adam Kings previous(prenominal) convictions for assault, robbery and burglary . E vidence of a witnesss bad character did not have to amount to proof of a lack of credibility on the part of the witness.36 This question is concern with rules relating to the admissibility of defendants bad character and also the fairness of the changes made by CJA 2003. In this regard the Law commissioning reports on bad character in 2002.37 The common law recognized the way in which evidence of character could be relevant. It could make allegations against a defendant more likely be true but the trial should not be used to investigate the truth of a previous allegation. 38Sec-101 of CJA 2003 states that in criminal proceedings evidence of defendants bad character is admissible if one of the factors from sub-section 101(1) (a)-101(1)(g) is satisfied 39.In this regard we need to consider the three fold test in R v Hanson40which is laid down by the Court of Appeal. In this case the propensity41 to commit the offence is relied on as the basis for admitting evidence of a defendants ba d character.42 The prosecution now may argue that his previous convictions is relevant to an important matter in this trial43 .But previous convictions for offences of the same description or grade does not automatically mean that they should be admitted44.Adam Kings bad character might be admissible by the courts as the defendant has a propensity to committee offences of this kind because a single previous conviction can be sufficient to establish propensity45 .Moreover in Isichei46where the defendants propensity47 to cater cocaine was relevant to the issue of identification.In this issue we need to discuss as to how should the judge direct the jury about George Smiths character .In this fact George Smith already denied that he have any involvement in the burglary and he dont even have any previous conviction .Similarly in R v Aziz48 the house of Lords held that a person with no previous convictions was generally to be treated as being of good character49 and in this fact it coul d argue that George have good character .Whenever a evidence of good character is given , its significance must be explained to the control panel .The Court of Appeal laid down two limbs in R v Vye50. In this fact it could easily argue that the judge will direct the jury based on the Vye direction about Georges character.However , there were some problems in Vye direction like if someone plead guilty in any other county then he is no longer of good character but in this fact it is already apparent that George dont have any previous conviction .Moreover ,in R v M (CP)51 it was held that once the judge decided that the defendant should be treated as a person of good character then the full Vye direction on good character should be given as it is a matter of law .The prima facie rule of practice is to deal with this by giving a qualified Vye direction rather than no direction at all.52 According to R v Doncaster53 it can easily argue that if the defendant has no previous conviction bu t bad character evidence is given under the Criminal Justice Act 2003 then a modified direction should be given .From the above discussion it can easily argue that the judge in this scenario should direct the jury about George Smiths character with Vye direction because it is the prima facie rule or practice.54Now we need to discuss the issue as to whether the persecution will be permitted to adduce the written statement55 of Harry who is moving to New Zealand .From this issue it is apparent that we need to consider the statement as hearsay evidence which is defined as a statement made outside off the court with the purpose of showing that the statement is true.56But generally in criminal cases hearsay is inadmissible which is also affirmed by Lord Normand in Teper v R 57.Moreover in Myers v DPP58 it was held that a contemporaneous record made by workers in a motor car factory of cylinder block and chassis numbers was held to be inadmissible hearsay.In this fact , we need to focus i f the prosecution made a written statement from Harry then whether it will be admissible59.In this scenario , Harry was outside of UK60 and in relating with these sort of issue the Law Commission introduced a modestnessable practicability test which require the party wishing to adduce the evidence to make reasonable efforts to bring the witness to court but the court will take into account some factors such as the seriousness of the case and the importance of the information contained in the statement.61Moreover , in R v Castillio and Others 62 it was held that it was not reasonably practicable for the witness to attend and important consideration was given to the evidence given by the witness.The prosecution also argue that it move inside the exception of the general rule as the witness Harry moved outside of UK63 and it was beyond reasonable doubt64.From the above discussion it is highly likely that the prosecution will be able to adduce the written statement of Harry at the tr ial.Total Word Count = 3208BibliographyPrimary sourcesText nurseDennis .I.H , The Law of Evidence ,3rd Edition ,Sweet Maxwell 2007Durston . 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