Advise Karl to forthcoming criminal trial.
The prosecution must prove the guilt of the defendant, there is no such burden laid on the defendant to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence (Woolmington v The Director of Public of Public Prosecutions).
Some of the evidence that may be brought by the prosecution is as follows:
- Karl's library card found on Rina's floor;
- Karl's confession; and
- Karl's previous conviction for criminal damage and dealing in stolen goods.
Karl's library card found on Rina's floor
In R v Nottle the court was of the view that there is no obligation on the police to disclose all evidence to the defense in pre-interview disclosure. In this case the police did not tell Karl that they had found his library card on Rina's floor and this failure to disclose will be of no effect since they do not have an obligation to disclose any evidence.
The library card is circumstantial evidence that will be used to identify Karl as the offender. In R v Taylor, the court was of the view that ‘it is no derogation of evidence to say that it is circumstantial (Emson 2004). In this case the library card is highly probative and in this case it operates to reduce the possibility that anyone else could have committed the offence.
Confessions are defined in section 82(1) of the Police and Criminal Evidence Act (PACE). In order for the prosecution to bring evidence of a confession it must satisfy the requirement of Section 76(2) of PACE, which are basically that the confession was not obtained under oppressive circumstances or rendered unreliable.
The term oppression is defined in section 76(8) of PACE as including “torture, inhuman or degrading treatment, and the use or threat of violence”. The courts have found that ‘oppression' for the purposes of Section 76 PACE was to be given its ordinary dictionary meaning and was likely to involve some impropriety on the part of the interrogator (Regina v Fulling).
The Court of Appeal in Regina v Fulling also set out a wide ranging scope for unreliable confessions, which cover:
- Confessions obtained as the result of an inducement - for example a promise of bail or a promise that a prosecution would not arise from the confession.
- Hostile and aggressive questioning.
- Failure to caution.
- Failure to comply with the Codes of Practice issued under PACE Code C in relation to the detention of the accused - for example a failure to allow sufficient rest prior to an interview.
Clearly from the above, in cases where a confession will be introduced as evidence, it is important to examine carefully the circumstances in which the confession was made in order to decide on its admissibility. In this case the circumstances in which Karl's confession was made indicate that a challenge could be made to its admissibility. The interrogation was prolonged without a break. Karl's confession could have been induced by the police telling him that they would overlook the evidence they had of him driving his car without insurance if he co-operates on the theft allegation.
In considering whether or not to exclude Karl's confession, which was obtained as a result of breach of the Codes of Practice issued under PACE or considered inadmissible due to oppression or unreliability, the court may;
- look whether the breach is significant and substantial (R v Keenan) ; or
- refuse to allow evidence on which the prosecution proposes to rely if it appears to the court that, having regard to all the circumstances in which the evidence was obtained, the admission of that evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it (section 78 of PACE); or
- exclude any otherwise admissible evidence where the probative value of the evidence is outweighed by the prejudice to the defendant in the putting the evidence forward (R v Sang).
Mentally handicapped persons who made confessions during interrogation enjoy additional protection under the Act. The term “mental handicap” is defined as applying to any person who “is in a state of arrested or incomplete development of mind, which includes significant impairment of intelligence and social functioning”(section 77 (3) of PACE).
In the event that the confession is admitted, section 77 (1) imposes a statutory responsibility on Judges to warn a jury of the need for caution before relying upon a confession by mentally handicapped person where the court is satisfied that (Munday 2007):
- he is mentally handicapped; and
- the confession was not made in the presence of an independent person.
Karl is suffering from Bulimia, an eating disorder which is classified as a mental handicap. Important points to note are that the police were not aware of Karl's mental handicap. However, he made his confession in the presence of his solicitor. Under these circumstances the confession could be admitted, subject to the jury being cautioned.
Karl's previous conviction for criminal damage and dealing in stolen goods
The issue here is whether Karl's previous conviction for criminal damage and dealing in stolen goods amount to bad character under the ambit of the Criminal Justice Act 2003 (the 2003 Act) and whether it can be admissible as evidence.
Prior to the 2003 Act, although the expression ‘bad character' was left without precise definition, it was generally agreed that a person's previous convictions, if judged relevant would certainly fall within ‘bad character' (Munday 2007). In R v Z the definition of bad character was wide enough to apply to conduct arising out of a conviction, or conduct where there has been an acquittal and a person who has been charged with another offence, and a trial is pending, the use of the evidence relating to that charge in current proceedings.
Today, section 98 of the 2003 Act defines bad character as follows: ‘References in this Chapter to evidence of a person's "bad character" are to evidence of, or of a disposition towards, misconduct1on his part, other than evidence which—
- has to do with the alleged facts of the offence with which the defendant is charged, or
- is evidence of misconduct in connection with the investigation or prosecution of that offence.'
Bad character, under section 98, is a wider concept than criminal convictions: it includes a disposition towards misconduct. Furthermore, the exclusion of certain evidence in section 98(a) and (b) mean that the pre- 2003 Act position is retained. Therefore, evidence may be admissible at common law, subject only to the relevance (Hopkins 2006).
It is clear from the above that Karl's previous convictions could constitute bad character in terms of section 98 because it firstly does not amount to evidence that is excluded in section 98. Karl's previous conviction for criminal damage and dealing in stolen goods does not have to do with the alleged facts of the assault and theft with which he is charged. Secondly, the previous conviction is not evidence of misconduct in connection with the investigation or prosecution of the assault and theft with which he is charged.
In the event that Karl's previous conviction constitute bad character, the issue that would remain, is whether it is admissible as evidence. Section 101 of the 2003 Act specifies certain criteria, which must be satisfied before evidence of a defendant's bad character is admissible (R v Wier). Section 101 (1) (d) is relevant for this case and it provides that: In criminal proceedings evidence of the defendant's bad character is admissible if, but only if- it is relevant to an important matter in issue between the defendant and the prosecution,
Karl's previous conviction falls within section 101(1) (d) because this subsection allows evidence of the defendant's bad character to be given where ‘it is relevant to an important matter in issue between the defendant and the prosecution.'
Section 103(1) provides some clarification of what ‘matters in issue' entails and it provides that: For the purposes of section 101(1 )(d) the matters in issue between the defendant and the prosecution include-
- the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;
- the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect.
Evidence of propensity to commit offences of the kind with which the defendant is charged may be demonstrated by proving that the defendant has previously been convicted of an offence either of the same description or the same category as the one with which he has been charged (s103(2)).
In terms of subsection 4(b) of the 2003 Act, the Criminal Justice Act 2003 (Categories f Offences) Order 2004 creates two prescribed categories of offences: the ‘theft category' and the sexual offences category. The theft category is relevant in Karl's case, primarily because it could constitute evidence of propensity to commit offences of the kind he is charged: Karl has a previous conviction for criminal damage and handling stolen goods, an offence which is within the theft category. However, Karl's previous convictions could be inadmissible because the Court of Appeal in R v Hanson said that whilst a single previous conviction for an offence of the same description or the same category as the offence charged is insufficient to show propensity (Reay 2005). Furthermore, Karl may argue that the admission of the previous conviction makes it no more likely that he is guilty of the offence he is now charged with. He may make an application to exclude the previous conviction on the grounds that its admission would have such an adverse effect on the fairness of the proceedings. The judge has a discretion to refuse to admit evidence under this provision if he is satisfied that it would be unjust and by the reason of the length of time since the conviction (s103 (3) (4) of the 2003 Act).
In the event that the previous conviction is admitted, the judge will direct the jury against placing undue reliance on previous conviction or concluding that Karl was guilty merely because of the previous conviction.
Karl's previous convictions may be admissible, since in his defence he plans to bring evidence of Rina's previous convictions (Section 101 (1) (g) of the 2003 Act - making an attack on another person's character).
Alternatively, Karl's previous convictions may be admitted under section 27(3) of the Theft Act 19682, the prosecution may admit evidence of previous misconduct on a charge of handling stolen goods for the purpose of proving that the accused knew or believed the goods were stolen (Hopkins 2006).
Some of the evidence in Karl's defence in order to raise a doubt as to his guilt is as follows:
Witness evidence given by Helen regarding Rina's past social behaviour
The defence have evidence from Rina's former flatmate, Helen, that Rina often brought strange men home to the flat who stayed the night. However, Helen is unwilling to testify at trial. When dealing with reluctant witnesses, such as Helen, the Court may make an order and the reluctant witness is subpoenaed to appear. In the event of the witness still refusing the Court can issue a warrant for their arrest for "contempt of Court", the Court will be informed of this fact when they appear to give their evidence3. However, in the courtroom it is not uncommon for counsel to apply to have a witness declared hostile (Munday 2007). Reluctant witnesses fall into two categories: hostile witnesses, who do not wish to tell the truth and unfavourable witnesses, who endeavour to be truthful but simply fail to testify in the way anticipated. The court could consider Helen a hostile witness.
Section 23 of the Criminal Justice Act permits the admission of evidence from a witness who has made a statement in a document but is unavailable at trial if one of the statutory reasons for the unavailability is proven. Under these circumstances, Helen's reason for her unavailability to testify would not be satisfactory, in order to admit her statement under section 23 of the Criminal Justice Act.
Rina's previous conviction for insurance fraud
Rina's previous conviction may be admissible under section 74 of PACE as evidence of the facts upon which it is based, where it is relevant to an issue in the case to prove that a person committed an offence. In this case is to prove that Karl did not commit theft.
The guideline on the application of section 74 was provided by the Court of Appeal in R v Mahmood and Another. The court must apply a two-fold test (Hopkins 2006):
- Whether the conviction is clearly relevant to an issue in the trial; and
- If relevant, whether there would be prejudice to the defendant(s) in respect of the fairness of the proceedings.
Rina's previous conviction for insurance fraud could be relevant because it renders the act of stealing less probable. In the event that the court finds the previous conviction relevant, Karl would not be prejudiced at all; in fact it would work in his favour to raise doubt as to his guilt.
Karl is unsure whether to testify and the issue that would arise should he choose not to testify is that by virtue of sections 35 and 37 of the Criminal Justice and Public Order Act 1994, the court is allowed to draw such inferences as appear proper from the defendant's failure to give evidence or his refusal without good cause, to answer any question at the trial (section 35 (3)). Lord Taylor CJ, in R v Cowan advised that courts should decline to draw adverse inference from silence at trial only where there is some evidential basis for doing so or some exceptional factors in the case making that a fair course to take. When an accused does not testify at trial, Judges must direct the jury that (Hopkins 2006):
- The accused is entitled to remain silent;
- Silence alone is not sufficient to justify a conviction;
- The jury should consider any explanation for his silence and should draw inferences only where they conclude that silence must, sensibly, be attributed to the defendant having no answer (R v Birchall).
In this case it is likely that the jury would conclude that the prosecution's case against Karl is sufficiently compelling to call for an answer from Karl. The issues he would need to address are:
- the reason he confessed to a crime he did non commit (if the confession is admissible);
- his previous convictions; and
- the reason his library card was found in Rina's flat.
Karl's silence under these circumstances would draw an adverse inference and section 35 permits such a negative inference.
Advise also on the burden and standard of proof in the possible civil proceedings.
The legal burden in civil cases lies with the party asserting an affirmative proposition to prove it: ‘he who asserts must prove'. In Joseph Constantine Steamship Line v Imperial Smelting Corpn, Lord Maugham said that this was a general rule ‘founded on considerations of good sense which should not be departed from without strong reasons'. However, Lord Maugham also pointed out that the incidence of legal burden ‘depends on the circumstances in which the claim arises' which suggests that a more flexible approach is adopted in civil proceedings (Emson 2004).
In civil cases evidential burden runs with the legal burden, therefore the claimant also has the evidential burden. At the close of the claimant's case the evidential burden passes to the defendant. (Hopkins 2006).
Standard of proof
The standard of proof on both parties is proof on the balance of probabilities (Miller v Ministry of Pensions), even if there is a serious allegation of crime (Hornal v Neuberger Products).