Read the following scenario and answer all questions below numbered 1-4 inclusive:
You are a trainee solicitor and have been sent to see Rob, who has been remanded in custody at HMP Birmingham. He is charged with murder and possessing heroin, a Class A drug, with intent to supply, contrary to the Misuse of Drugs Act 1971, s.5(3).
Rob was arrested at his home address following an incident at the Botany Bay public house in Wolverhampton in mid-December. The prosecution case is that at closing time Imran, the bar manager, told Rob and his group of mates that it was time to leave. Rob took exception to this and there was an argument. It is alleged that Rob punched Imran to the face before running out of the pub followed by his mates, Imran and a group of Botany Bay regulars. The prosecution states that a mass fight ensued between about 30 people. Members of the public who witnessed it were ‘terrified’ by what they saw, as there was serious violence that included tables and chairs being thrown around. The prosecution alleges that once outside the pub Rob broke up a bar stool and used one of the legs to beat Imran repeatedly about the head. As a result, Imran sustained a severe head injury, developed post-traumatic epilepsy and later died from his injuries. Other participants in the fight were charged with affray.
The prosecution evidence is that the incident did not last long. The police were called and broke up the fight quickly. A dog unit was called to the scene and a bar-stool leg was found in a nearby hedge. The police found blood on this along with fingerprints that matched Rob’s fingerprints. A DNA profile taken from the blood matched Imran’s DNA. Rob was arrested at his flat a few days later and when initially interviewed by the police admitted that he was responsible for killing Imran. The police conducted a lawful search of his flat and found a substantial quantity of heroin and documents related to the purchase of T?’r Cyffuriau, a mansion located in Mid-Wales. The police believe this is evidence that shows Rob is a drug dealer who is laundering the proceeds of his crimes through the purchase of properties.
Rob was picked out in a properly conducted video identification procedure by a witness called Jasprite, who was a distance of approximately 100 yards away from the fight. Jasprite’s initial description of the person that she saw hitting a man with what she thought was a cosh or truncheon was that the person was male, white, tall, aged about 24 years and with dark hair. She also states that he was wearing dark blue jeans, a plain white T-shirt and Adidas trainers. The prosecution says that this was Rob.
Rob says that he only punched Imran once while inside the pub. He contends that he launched a pre-emptive strike on Imran because he had heard that Imran had a reputation for violence and kept a cutlass behind the bar. Rob says that he punched Imran in self-defence and so that he could escape. He states that when he left the pub he ran straight home to his flat in the rain and had nothing to do with anything that happened afterwards. Rob is unable to account for the DNA and fingerprint evidence.
Rob says that his girlfriend, Bethan, will be an alibi witness and that the identification witnesses were mistaken. Rob states that there was some street lighting outside the Botany Bay but that it was a murky, dark and wet winter evening and denies that he was wearing a white T-shirt (although he accepts he was wearing blue jeans and Adidas trainers). Rob is of mixed African Caribbean-white ethnicity, aged 29-years-old, 5 foot, 8 inches tall with fair hair. He has prominent tattoos on his neck and face.
Rob states that when he was interviewed by the police he was extremely tired and anxious and feeling ‘a bit paranoid’. He was initially denied access to a solicitor and one of the officers who interviewed him was aggressive and, before the first interview, picked up one of the interview room seats and waved at him in a threatening manner, as if to replicate what happened outside the Botany Bay. When he was interviewed for a second time, in the presence of his solicitor and his mother, he accepted hitting Imran once inside the pub, but denied being involved in the violence outside.
Advance disclosure of the prosecution case has indicated that the prosecution propose calling Mrs Nisha Hunter, who teaches the BTEC Diploma in criminology at the local Lady Wulfrun Secondary School Academy, and who will give evidence that there is a very strong correlation between the possession of illegal drugs and criminality of all sorts. She will say that the discovery of drugs in Rob’s flat is virtually conclusive proof that he is guilty of the offences with which he is charged. Rob denies being a drug dealer. He also denies having any knowledge of the drugs that were found in his flat and, therefore, may have a potential defence to the drugs offence under s.28 of the Misuse of Drugs Act 1971.
Advise Rob in relation to the following issues:
- (a) The prosecution’s burden of proof in relation to murder and the s.5(3) offence;
- Rob’s burden of proof in relation to self-defence and the defence under s.28 of the Misuse of Drugs Act 1971.
- The identification evidence.
- Rob’s admission in his first interview.
- a) The admissibility of Mrs Nisha Hunter’s evidence;
- Whether Rob’s conveyancing solicitor may be obliged to hand over any conveyancing documents relevant to the purchase of T?’r Cyffuriau.
From the given facts and circumstances, the issues that are required to be addressed maybe inferred as follows:
- The burden of proof required by the prosecution with respect to the charges of murder and possession of controlled substances under the Misuse of Drugs Act, 1971.
- The burden of proof in relation to Rob’s claims of self defense, in light of the Misuse of Drugs Act, 1971.
- The admissibility and viability of identification evidence.
- Admissibility of Rob’s admission in the first interview.
- Nisha Hunter (expert evidence) and its admissibility.
- If Rob’s solicitor is obliged to hand over documents relating to property/properties that Rob has purchased or plans on purchasing.
The burden of proof required by the prosecution with respect to the charges of murder and possession of controlled substances under the Misuse of Drugs Act, 1971.
As laid down by Woolmington v DPP it is presumed under criminal law that a person accused of a crime is innocent until proven guilty. This lays down that the burden of proof as far as the crime of murder is concerned lies on the prosecution. This means that it is the prosecutions responsibility to establish beyond reasonable doubt that the person accused was in fact guilty of the crime. However, in cases where a murder charge is sought to be reduced to homicide the burden of proof is on the defense to establish that there was diminished responsibility based on valid reasons, this is statutorily provided for in the Homicide Act, 1957.
As held by R. v. Lambert in case of a charge of misuse of controlled substances under the Misuse of Drugs Act, 1971 it is the prosecutions duty to establish that the accused had knowledge of possession of the controlled substance or the container of the same.
In the present scenario Rob has been arrested and accused of murder and has also been found to be in possession of a controlled substance which attracts provisions of s. 5(3) of the Act. Under the circumstances the burden of proof would be on the prosecution to establish beyond reasonable doubt that Rob is in fact guilty of murder. This follows the decision in Woolmington v DPP.
In case of the possession and intent to distribute charge, the burden of proof would again be on the prosecution to establish that Rob had knowledge of possession of the controlled substance and establish his motive to distribute. R. v. Lambert would apply to this situation.
The prosecution would be compelled to establish their charges beyond reasonable doubt as the burden of proof lies on them.
The burden of proof in relation to Rob’s claims of self defense, in light of the Misuse of Drugs Act, 1971.
Section 28 of the Act deals with lack of knowledge and certain other circumstances that maybe used as a defense in case of a charge of possession and intent to distribute. Section 28 (1) of the act makes this defense applicable to charges under section 5 (2) and (3) of the Act.
- v. Lambert also held that if the accused chose to take the defense in s. 28 (3) (b) (i) of the Act, the burden of proof would be on the accused to prove that he had no knowledge of and had no reason to believe he was in possession of a controlled substance. Section 28 (3) of the Act defines situations where lack of knowledge would lead to the acquittal of the accused.
In the present set of circumstances during Rob’s arrest a search and seizure was conducted at his residence and a substantial quantity of controlled substances were found in his possession. Rob seeks to establish that he had no knowledge of the same and thus take the defense under section 28 (3) (b) (i) of the Act. Thus, R. v. Lambert would apply.
The burden of proof would be on Rob to establish that he had no knowledge of and had no reason to believe that he was in possession of such controlled substances.
The admissibility and viability of identification evidence.Law:
The procedures for identification evidence in the U.K. are governed by the provisions of Code D of the Police and Criminal Evidence Act, 1984.
The issue of identification evidence or the viability of the same in English law is based on the judgment delivered in R v. Turnbull. This judgment lays down guidelines that must be considered when giving effect to identification evidence. These guidelines are bifurcated into two categories as follows:
The judge should inform the jury of the following:
- That there is a valid risk of injustice which must be considered.
- A witness may be mistaken even if the person is certain.
- Multiple witnesses may be mistaken.
- Recognition by witness may be flawed even if the witness knows the defendant.
The judge additionally should instruct the jury to consider the following:
- The observation time the witness had to identify the witness.
- The distance between the witness and the defendant at the time of identification.
- The availability and state of light at the time of identification.
- The time lapse between the initial identification and identification to the police.
Application of such directions is known as a Turnbull warning and must be issued by the adjudicating authority at the time of commencement of trial. In a case where the identification is challenged by the defendant it is for the prosecution to prove, beyond reasonable doubt, that the defendant was in fact the person identified as the perpetrator.
In the case of R v. Andrews an appeal to identification evidence was upheld by the Court of Appeal due to the fact that the court had not issued a Turnbull warning when the identification evidence came up during trial. As a result of this the identification evidence was dismissed as inaccurate.
It has been reiterated in R v. Slater that in case there is a possibility of mistaken identification due to similar builds or clothing then it would be more prudent for the court to apply the Turnbull warning.
Rob’s identification happened through the witness statement made by Jasprite, who was around 100 yards away from the incident. Jasprite stated that the perpetrator was tall, aged about 24, of Caucasian decent and had dark hair. She further stated that the perpetrator was wearing a white T-shirt, blue jeans and Adidas trainers. Rob is 29 years old, of mixed African Caribbean-white ethnicity. He has fair hair and denies wearing a white T-shirt on that day. Though he admits he was wearing blue jeans and Adidas trainers. His height would also not be considered as relatively tall (being 5ft 8 inches). It must also be noted here that the street was dark at the time of the incident. In light of these facts it would be prudent for the judge to issue a Turnbull warning when determining the admissibility of the identification evidence. As held by R v. Slater there is a contradiction in the clothing and build of the perpetrator and Rob and thus the identification would be open to challenge.
Rob’s identification is liable to be challenged and the court would have to judge its admissibility based on the directions of the R v. Turnbull.
Admissibility of Rob’s admission in the first interview.Law:
Confessions are defined under Section 82(1) of the Police and Criminal Evidence Act, 1984. Section 76 (2) of the act defines a prohibition on admissibility of unreliable or tainted confessions and dictates that in case of such a challenge the prosecution must establish beyond reasonable doubt that the confession in question was not obtained through any form of “oppression”.
The legal standpoint on admissibility of unreliable confessions is dealt with in R v. Fulling. This case defined various circumstances that would ideally make a confession unreliable and tainted. One of these circumstances includes a confession obtained through hostile and aggressive questioning. When such a confession is obtained it would be considered unreliable and would subsequently become inadmissible by virtue of the provisions of Section 76 (2) of the Police and Criminal Evidence Act, 1984. Such a confession would not be considered during trial and hence would not lead to a conviction.
Rob states that after his arrest and before the first interview he felt anxious and paranoid. He further stated that he was dealt with aggressively by one of the officers. This officer had picked up one of the seats in the interview room and had gone on to wave it in a manner similar to the use of the bar stool in the incident. This attempted emulation of the incident coupled with the aggressive behavior displayed by the officer towards Rob could reasonably be construed as “oppression”. In light of such an oppression Rob’s initial confession to the crime of murder in the first interview would logically follow the principles laid down in R v. Fulling and be adjudicated as inadmissible due to unreliability. This would thus attract the provisions of Section 76 (2) of the Act and hence would be inconsequential to the result of the trial as the tainted confession would have no effect in the proceedings.
Rob’s initial confession to the crime of murder at the first interview after his arrest could be attributed to his mental state immediately before the first interview and the undue pressure put upon him through the aggressive officer’s interrogation methods. Thus, his initial confession would be deemed inadmissible and inconsequential.
Mrs. Nisha Hunter (expert evidence) and its admissibility.
Expert evidence is evidence that is delivered during trial by professionals who have technical knowledge of a subject-matter that the Court cannot adjudicate upon on its own. This poses a situation where the expert’s analysis of the situation gets supremacy over the Court and jury’s opinion of the matter. This is only applicable for scientific and technical advice which the jury on its own would not be able to interpret. In Folkes v. Chard it was held that opinion evidence would not be considered admissible unless it was expert evidence. This meant that the competency of the expert providing the evidence must be scrutinized before the Court could apply the advice given by the expert to the facts and circumstances. This judgment also developed the common law position on admissibility of expert evidence which poses a ban on opinion evidence and declares that only expert evidence is admissible.
In R v. Dlugosz it was held that for expert evidence to be reliable a specific scientific basis must be established. The Criminal Practice Directions, 2015 at Article 19A describes three pre-requisites that establish reliability of expert evidence, these are:
- Relevance to the matters in dispute at hand.
- Required by the Court as the information needed is beyond the Court’s knowledge and experience.
- Competence of the expert.
However, the judgment in R v. Turner excludes psychiatric expert evidence and admissible in cases where the defendant was not suffering from any mental disorder at the time of the offence. It held so due to the fact that even if a piece of expert evidence is relevant to the matter it would not be deemed admissible unless it is outside the ordinary knowledge and experience of the jury.
In the present set of circumstances Mrs. Nisha Hunter who is a teacher of criminology is called upon to provide expert evidence on Rob’s psychology relating to his possession of controlled substances and related charges. This evidence would mainly relate to the relationship between possession of controlled substances and the intent to distribute. Mrs. Hunter would affirm the same. However, this being related to Rob’s psychology can be reasonably inferred by the jury on its own. Thus, it would in fact be inadmissible by virtue of it not constituting knowledge that goes beyond the jury’s comprehension. This would follow the principles laid down in R v. Turner.
Mrs. Nisha Hunter’s expert evidence would be adjudicated as inadmissible in light of common law principles and judicial pronouncements. The evidence provided would thus be inconsequential to the trial.
If Rob’s solicitor is obliged to hand over documents relating to property/properties that Rob has purchased or plans on purchasing.
The Misuse of Drugs Act, 1971 deals with various drug related offences and defines the procedures to be followed in such a case. Section 23 of the Act provides for search procedures relating to obtaining evidence. Section 23 (3) (b) states that any material document that may be related to the charges in question under the act or any intended transaction that would relate to the crime may be obtained by the authorities, even by force if required.
In light of the provisions of Section 23 (3) (b) any property documents found on Rob’s premises that could ideally establish his intent to distribute would be reasonably required for the purposes of the trial and thus the court could order the police to obtain the same. This specifically relates to the conveyance documents relating to “T?’r Cyffuriau” which the prosecution alleges establishes Rob’s intent to distribute.
Thus, Rob’s solicitor would be obliged to produce all relevant documents relating to the purchase of “T?’r Cyffuriau”.Statutes:
Misuse of Drugs Act, 1971.
Police and Criminal Evidence Act, 1984.Cases:
R v. Turner  QB 834
R v. Dlugosz  EWCA Crim 2
Folkes v. Chard  3 Doug KB 157
R v. Fulling  2 ALL ER 65
R v. Slater  Crim. LR 244
R v. Andrews  Crim. LR 590
R v. Turnbull  QB 224
v. Lambert  UKHL 37
Woolmington v DPP  UKHL 1
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