This inquiry invites us to see the extent to which the regulations of grounds are necessary, and whether a system of free cogent evidence – a system that allows all grounds to be admitted – would be preferred.
This essay will analyze the rules underlying the regulations of grounds, and see whether the regulations of admissibility in civil and condemnable proceedings are justified, with mention to three countries: character grounds, rumor, and grounds below the belt or illicitly obtained.‘Evidence’ is defined by Keane as ‘information by which facts tend to be proved’ , and grounds jurisprudence is ‘that organic structure of jurisprudence and discretion sing the agencies by which facts many be proved in both tribunals of jurisprudence and courts and arbitration in which the strict regulations of grounds apply’ . [ 1 ] Harmonizing to him, ‘the wide regulating rule underlying the English jurisprudence of Evidence’ is that ‘all relevant grounds is admissible, capable to the exceptions’ .
[ 2 ] The thought that all grounds should be admissible – the ‘system of free proof’ – stems from the Benthamite position that in order to guarantee ‘rectitude’ ( i.e. truth ) of decision-making, all grounds should be admitted saloon that which is irrelevant and/or unneeded, although the turning away of inordinate hold and disbursal was a factor that he recognised would necessitate via media.
[ 3 ] With respect to the right to hush, for illustration, Bentham took the position that the accused every bit good as other informants, in both condemnable and civil instances ‘should be called to give grounds and could be asked potentially criminative inquiries, ’ every bit good as ‘properly [ being ] interrogated to bring forth self-incriminating answers’ . [ 4 ] Adverse illations from an accused’s silence were wholly justified. [ 5 ]Stein describes the current regulations of grounds as viewed akin to ‘disintegrated vass voyaging in an ocean of free proof’ . [ 6 ] The regulation that all grounds isPrima facieadmissible does follow the Benthamite ideal to some extent, although advocates of limitations suggest that the exclusions are a mechanism wherebygreatertruth is ensured. [ 7 ] Furthermore, other ideals are of import, such as equity, and these can conflict with the Benthamite ideal that rectitude or truth should be the primary end. [ 8 ] Other factors make taking history of all grounds impractical. These include the demand to hold conclusiveness in judicial proceeding, avoiding unneeded costs and hold, and the fact that the tribunals in England and Wales are dependent on the grounds ‘presented by the parties’ .
[ 9 ] Including grounds of minimum probatory value can take to the inclusion of peripheral issues that detract from affairs that are cardinal to the instance, and some types of grounds may be undependable or excessively damaging to be of benefit, or damage the national involvement. [ 10 ] Despite these concerns, the inclination in recent old ages has been to travel off from proficient regulations to what is arguably a more Benthamite system of grounds jurisprudence. This has been controversial in the field of condemnable proceedings. The Auld study recommended ‘that the English jurisprudence of condemnable grounds should, in general, travel off from proficient regulations of inadmissibility to swearing judicial and lay fact-finders to give relevant grounds the weight it deserves’ . [ 11 ] This indicates a move toward a system that is more in line with one of free cogent evidence for jury tests every bit good as tests conducted by Judgess sitting in the function of fact-finders.The common-law regulation against rumor grounds provided that grounds was inadmissible unless made by a individual in tribunal giving grounds orally, if it purported to be grounds of asserted facts. [ 12 ] The grounds advanced for the regulation include forestalling the danger of acknowledging manufactured grounds, and in instances affecting multiple unwritten rumor, ‘the danger of inaccuracy or error by ground of repetition’ . [ 13 ] InR V BlastlandLord Bridge articulated the rule therefore:‘The principle of excepting [ rumor ] …rooted as it is in the system of test by jury, is a acknowledgment of the great trouble, even more acute for a juryman than for a trained judicial head, of measuring what, if any, weight can decently be given to a statement by a individual whom the jury have non seen or heard and who has non be capable to any trial of dependability by cross-examination…’ [ 14 ]By following a system of free cogent evidence advocated by Bentham, rumor grounds would be admitted in an effort to procure truth of result.
This aim may be hampered nevertheless, given the potency for a jury to be unduly swayed by such grounds.In civil instances, the regulation against rumor has increasingly been dismantled, [ 15 ] and this could be seen to be a merchandise of the fact that a test justice sitting entirely hears civil instances. [ 16 ] There has been a tendency in recent old ages to abduce all relevant grounds in civil instances, if it is dependable and of weight. [ 17 ] S 1 ( 1 ) of the Civil Evidence Act 1995 abolished the regulation against rumor grounds in civil proceedings, although there are some conditions.
S 5 ( 1 ) provides that those doing the statements must be competent informants, and those classed as ‘not competent’ include those ‘suffering from such mental or physical frailty, or deficiency of apprehension, as would render a individual incompetent as a informant in civil proceedings’ . [ 18 ] In add-on, s 6 of the Act provides that where the grounds concerns old consistent statements, leave would necessitate to be obtained by the tribunal. [ 19 ] This is to forestall ‘the unpointed proliferation of otiose evidence’ . [ 20 ] In relation to condemnable proceedings, the Criminal Justice Act 2003 ( ‘the CJA’ ) has allowed some limited relaxation of the regulation. S 134 ( 1 ) abolishes the old common-law regulations against rumor. [ 21 ] S 114 ( 1 ) admits hearsay grounds in certain limited fortunes, including statements made by individuals that are non available as informants, because they are, for illustration, dead or excessively scared to give grounds.
[ 22 ] S 117 allows concern and other paperss to be admitted, and s 119 allows hearsay to be admitted if it is to dispute antecedently inconsistent statements on the portion of a informant. S 121 enterprises to put limitations on multiple rumor in order to forestall the hazard of manufactured or fabricated grounds. [ 23 ]The Benthamite system of free cogent evidence would let for the admittance of all types of character grounds in both civil and condemnable proceedings. While this system would let all character grounds in order to guarantee truth, advocates of limitations argue that presenting grounds such as, for illustration, relevant old strong beliefs is excessively damaging to guarantee that the accused is tried reasonably for the offense in manus. [ 24 ] The danger may be that a jury would reason that a suspect had besides committed the offense in inquiry if he or she had committed offenses of a similar nature in the yesteryear. [ 25 ] The usage of character grounds serves a figure of intents, and may be adduced if the character ‘of a individual is itself in issue in the proceedings’ , if it is relevant ‘to a fact in issue’ , or if it is relevant to credibleness. [ 26 ]Evidence of good character of a suspect in condemnable instances is permitted, if it goes to grounds of his repute, and non grounds of specific and creditable Acts of the Apostless, or a witness’s sentiment about the accused’s temperament. [ 27 ] S 99 of the CJA abolishes the common-law regulations refering ‘evidence of bad character in condemnable proceedings’ .
[ 28 ] Evidence of bad character of both suspects and non-defendants is defined in s 98 of the CJA and relates to grounds of misconduct:‘ [ O ] ther than grounds which — ( a ) has to make with the alleged facts of the offense with which the suspect is charged, or ( B ) is grounds of misconduct in connexion with the probe or prosecution of that offence’ .Following concern from the Law Commission that bad character grounds of non-defendants was being used to falsify the procedure, hurt and antagonise informants and dissuade people from go toing tribunal, [ 29 ] s 100 ( 1 ) allows the usage of grounds of the bad character of non-defendants merely if:‘ ( a ) it is of import explanatory grounds,( B ) it has significant probatory value in relation to a affair which —( I ) is a affair in issue in the proceedings, and( two ) is of significant importance in the context of the instance as whole ; or( degree Celsius ) all parties agree to the grounds being admissible’ .While this subdivision restricts the usage of character grounds against non-defendants, the implicit in principle does propose that greater truth and efficaciousness in the condemnable procedure will be achieved by this step.Previous ‘misconduct’ of the accused, defined as ‘the committee of an offense or other condemnable behavior, ’ [ 30 ] can be admittedinter aliaif ‘it is of import explanatory evidence’ , [ 31 ] or if ‘it is relevant to an of import affair in issue between the suspect and the prosecution’ . [ 32 ] ‘Matters at issue’ are later defined as including inquiries over whether ‘the suspect has a leaning to perpetrate offenses of the sort with which he is charged, ’ [ 33 ] or inquiries over ‘whether the suspect has a leaning to be untruthful’ .
[ 34 ] While the commissariats refering old strong beliefs are restricted in that they merely include old offenses of the same description or class, it is argued that in acknowledging old strong beliefs, ‘the danger of bias is highly high’ . [ 35 ] Evidence of good behavior has been held to be of less relevancy in civil instances. [ 36 ] Evidence of bad character in civil proceedings is less to a great extent circumscribed than in condemnable instances, and this is thought to be because the dangers of bias are less marked given that civil instances are rarely heard before a jury. [ 37 ] The trial for acknowledging such grounds is whether it is sufficiently probatory or relevant. [ 38 ]A system of free cogent evidence would besides enable grounds that had been below the belt obtained, including confessions obtained under subjugation, to be admitted. Although the Police and Criminal Evidence Act 1984 ( ‘PACE’ ) now regulates pre-trial procedures, it used to be the instance that grounds would non be excluded on the footing that it was obtained improperly or below the belt. [ 39 ] This can be illustrated by the instance ofAmerican ginsengwhere the Court of Appeal reviewed the powers of exclusion to reason that there was no authorization to except grounds obtained by entrapment.
[ 40 ] S 76 of PACE provides that ‘a confession made by an accused individual may be used in grounds against him’ ( 76 ( 1 ) ) . However, under s 76 ( 2 ) if:‘ [ I ] t is represented to the tribunal that the confession was or may hold been obtained –( a ) by subjugation of the individual who made it ; or( B ) in effect of anything said or done which was likely, in the circumstances…to render undependable any confession which might be made by him in effect thereof, the tribunal shall non let the confession’ .In these fortunes, the prosecution must set up beyond sensible uncertainty that, notwithstanding the possibility of it being true, the confession was non so obtained. In add-on, s 78 of PACE provides that:‘In any proceedings the tribunal may decline to let grounds on which the prosecution proposes to trust to be given if it appears to the tribunal that, holding respect to all the fortunes, including the fortunes in which the grounds was obtained, the admittance of the grounds would hold such an inauspicious consequence on the equity of the proceedings that the tribunal ought non to acknowledge it’ .S 78 is based on the rule of dependability and is non designed as a mechanism to procure rights or train the constabulary, [ 41 ] so it could be argued that the accent is on seeking to procure an accurate result in proceedings. In contrast, the fact that a confession obtained by subjugation may be excluded notwithstanding the fact that it may be true is said to reflect ‘society’s abomination of the usage of such methods in interrogation.
’ [ 42 ] In these fortunes, the rule of truth could be seen to take 2nd topographic point to disapprobation of such Acts of the Apostless and the rules of equity. Nevertheless, the fact that an interview non conducted in line with the demands of PACE does nonneedfullylead to the exclusion of a confession if made freely and voluntarily, [ 43 ] does propose that the tribunals will include confession grounds where possible.In decision, the current sensitivity towards admissibility that underpins the Torahs of grounds is consistent with the system of free cogent evidence, and limitations are less extended in fortunes where juries are non present. However, concerns that lay heads may be unduly swayed by certain types of grounds does supply a justification for limitations in some fortunes, peculiarly in condemnable instances, and this does look to foster the overall aim of procuring greater truth in decision-making.BibliographyAshworth, AHuman Rights, Serious Crime and Criminal ProcedureSweet and Maxwell: London 2002Auld, L JReappraisal of the Criminal Courts of England and Wales2001 available signifier hypertext transfer protocol: //www.criminal-courts-review.org.uk/ ( 29/4/07 ) .Keane, AThe Modern Law of Evidence6Thursdayedn Oxford University Press: Oxford, 2006.Menlowe, M ABentham, Self-Incrimination and the Law of Evidence( 1988 ) Law Quarterly Review 286Ormerod, D and Birch, DThe Development of the Discretionary Exclusion of Evidence( 2004 ) Criminal Law Review 138Stein, AFoundations of Evidence LawOxford University Press: Oxford 2005C TapperCriminal Justice Act 2003: Part 3: Evidence of Bad Character( 2004 ) Criminal Law Review 533.1