A number of evidential issues arise from this situation. The most obvious one is the burden of proof since the reason for going to court is to prove an issue which is in dispute between the defence and the prosecution. In addition there are a number of specific legal issues which arise in this case. Much of the evidence will be hearsay evidence, Justin's confession is important in this case but he has severe mental difficulties, The identification evidence available is particularly good, the effects of adverse pre trial publicity and the how evidence of previous bad character can be used are also issues.
In Wolmington v DPP1 it was confirmed that the standard of proof in criminal cases is beyond reasonable doubt, in R v Summers2 this was described as the Jury being satisfied so that they are sure of the defendant guilt. This is important because the prosecutions job is to get a conviction so to do this they must make the jury sure that the defendants are guilty. R v Kray3 is an example of a high profile case where media coverage was not accepted as a reason to stay proceedings.
Lord Justice Lawton commented that "The drama of the trial almost always has the effect of excluding from recollection that which went before". In effect he is saying that the jury is always going to be exposed to influences other than what is put before them in court and so we have to trust the jury to be able to ignore these. Indeed in R v West4 it was observed that it would be absurd if every murder case where the press had reported on it could not be tried.
From this we get the picture that the judiciary does not take lightly to staying a trial for public policy and practicality reasons and so given the local and comparatively minor nature of the publicity in the current case a claim by the defence on this ground is unlikely to succeed. In R v Taylor5 the judge described media coverage as "unremitting, extensive, sensational, inaccurate and misleading. " What was published had strong sexual connotations which implied the accused had the motive. A retrial was ordered.
During R v Maccann6 Many high profile figures such as lord Denning aggressively criticised the right to silence on TV stating that no man who had nothing to hide would stay silent. In light of this the convictions were quashed. In R v Reade7 the police officers accused of the corruption which caused the Birmingham 6 miscarriage were granted a stay of trial because it caused so much anger and controversy that the general public will never forget about it. In the words of Justice Garland "there is literally nowhere to go".
These cases show that only special reasons such as publishing materiel that some people will not question such as the importance of a persons alleged sexual behaviour or the extreme hate that the Birmingham 6 case generated will suffice and there is no reason to believe that reports of local crime seen in this case will be anywhere near enough and even if it is the court held in R v Stone8 that when publicity is local moving a trial to a different area is possible. S.
82(1) PACE9 describes a confession as 'any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise'. Justin has admitted that he was involved but claims ignorance but because a confession only needs to be partially adverse what he has said is still a confession. Under S. 76 PACE10 any confession which may have been made in consequence of anything said or done which was likely, in the circumstances existing at the time to render it unreliable is not admissible unless the prosecution can prove beyond all reasonable doubt that it was not obtained aforesaid.
S. 76a PACE11extends this to the confessions of co-accused except that the prosecution need only disprove it on the balance of probabilities. R v Kenny12 shows that unreliable means the likelihood of it being inaccurate is important and weather its actually accurate or not is irrelevant. Because the defence are going to call Mr. Bruce to give evidence that Justin has an extremely low IQ and various mental handicaps this section is going to be a problem.
I cannot say for certain if the confession will be inadmissible or not because there is no direct case law on individual cases indeed in R v Wahab13 the court pointed out that there are so many variables that each case must be taken on a case by case basis. R v Moss14 and R v Bailey15 are two cases where a mentally handicapped person was interviewed without a solicitor, in one case the conviction was held inadmissible for that reason in the other giving the jury a warning about the reliability of the confession was held to be enough.
Given just how low Justin's IQ is and just how many difficulties he has I think the confession is most likely to be inadmissible due to the absence of a solicitor and the fact that the police encouraged him to do without one by saying it would take some time to get one. Under S. 77 PACE16 the court has to warn the jury about the reliability of a confession of a mentally handicapped person if it amounts to substantial evidence and no solicitor was present. The confession is the most damaging evidence in the case therefore even if the evidence is admitted this warning will have to be given severely affecting its credibility.
Since an expert is giving evidence of Justin's problems and they are so numerous it is extremely unlikely that it will be possible to rebut it to ether standard of proof needed to use it against ether defendant. Under S. 114(1) CJA17 a statement not made in oral evidence in the proceedings is not admissible of a matter stated unless an exception applies. This is commonly known as hearsay evidence. Sir Rupert Cross defined hearsay as "an assertion other than one made by a person while giving oral evidence in the proceedings regarding any matter stated"18.
The House of Lords has clearly approved of this definition in R v Sharp19. Also Patel v Comptroller of customs20 shows us that the rule applies to documents and not just oral comments made out of court. S. 115(3) CJA21 defines a matter stated as one which was made for the purpose of causing another person to believe the matter. This is important because if the evidence is admitted as evidence that words were said rather than of the truth of their content then it isn't hearsay.
Several things which the prosecution wish to use as evidence are hearsay. The security guard identified his attacker before he died and the prosecution want PC baker to testify as to what he said. Stephanie is unlikely to be able to attend the trial but her previous statements are important evidence. Finally the registration details obtained from the national computer only exist in document form therefore they will be handed to the court and not produced in court this means they too are hearsay. S.
118(1)4a CJA22 preserves the Res gestae exception. This is a preserved common law exception so its meaning can only be found in case law. In R v Andrews23 it was held that an event needed to be so dramatic and distressing that at the time it dominated the victims mind to such a degree that the possibility of malice or concoction can be ruled out, put in the words of lord Ackner "so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection".
The court extensively cited Ratten v The Queen24 as authority for this view which has been repeatedly followed in murder cases such as R v Turnbull25 and R v Blastland26 and even in cases involving minor assaults such as in R v Nye27. In the present case given the guards wounds he would certainly have had the state of mind described by lord Ackner for what he said to be admitted under the res gestre exception. The facts on which this was accepted in Turnbull and Blastland are very similar to the current case so the law clearly allows for this evidence to be used.
In R v Waugh28 it was held that incomplete dying statements could not be admitted. Since he only identified the attacker as S. T the defence may try to use this however in Turnbull the victim just said Tommo had killed him and this was not held to be incomplete therefore such an argument will not succeed. Under S. 116 (1) CJA and 116 (2)c CJA29 If a witness is abroad then his previous testimony can be read out in court if his live testimony would have been aloud and the court is sufficiently satisfied of his identity and it is not reasonably practical to secure his attendance.
Stephanie is doing postgraduate studies in china. She would have been a competent witness and appears to be well identified so these requirements of S. 116 CJA30 are satisfied. In R v C31 it was held that no reasonable steps could be taken to return to the UK a witness who was refusing outright to do so. Given the importance and expensive nature of post graduate courses she is likely to strongly refuse. This case could be distinguished on the grounds that she may return after her course.
There is no case law on this situation but I believe the court will not postpone the trial until she returns because there does not seam to be anything in her statement which the defence could benefit from cross examining, she could not have been mistaken about seeing such a dramatic event and there will be no way to show, through questioning, that she may be mistaken about the number plate she gave. In R v Glyma32 setting up an expensive live video link was not held as reasonably practical due to the expense and organisation that would have been involved.
This shows that the prosecution need to bother trying to negotiate an alternate solution with her. S. 117 CJA33 allows for documents to be admitted if it was supplied by a person with relevant knowledge to a person in trade, business, profession or other occupation, or as the holder of a paid or unpaid office. Any information held on the police computer would have been submitted by the owner of the cycle to the relevant authority. The owner would have had the personal knowledge required and the clerk who received it would have been doing it as his occupation therefore the requirements of S.
117 are met and so this is admissible. Under S. 34(1)-(2) of CJPOA34 if between being cautioned and being charged an accused fails to mention during questioning something which he later uses in his defence and it would have been reasonable for him to mention it at the time the jury may draw an adverse inference which appears proper. Under S. 58(2) of YJCE35 this section only applies if the accused has been given the opportunity to consult a solicitor. In this case Simon has failed to mention that he had an alibi which he has evidence to back up and he did have a solicitor present who advised him to stay silent.
There is no rule for determining the reasonableness of not mentioning a fact so this has been left to the opinions of judges when summing up and juries when coming to a verdict this is clearly illustrated in R v Webber36. In R v Hoare37 the court held that if a solicitor advises a client to remain silent an adverse inference cannot be drawn if this was the reason for silence and it was reasonable to stay silent in light of all the circumstances. This is well established in English law and can be observed in cases such as R v Howell, R v Argent and Condron v UK.
38 Some cases have suggested that a solicitors advise to stay silent will always prevent an adverse inference from being drawn such as R v Betts39 however in this case Kay LJ went on to say "That conclusion does not give licence to a guilty person to shield behind his solicitor" as a result this case was interpreted as actually supporting the former doctrine in Hoare as so is definitely not the current state of the law. Clearly the solicitor's advice for Simon to stay silent alone will not prevent an adverse inference from being drawn as long as his silence was reasonable.
I cannot say for sure if it will be held to have been reasonable for him to stay silent. On one hand he may have forgotten that he was with her as the question does not mention the nature of that day he spent with her however if it was something he should have remembered then the question why he didn't mention it before will be asked and a suspicion of concoction and corroboration between him and Maxine will certainly be grounds to draw an adverse inference as in all the cases which I have mentioned where it has been aloud it has been something the defendant must have known about such as the fact he was acting in self defence.