I just typed out a new blog post but because something was wrong with the internet connection, I lost it while I was posting. Aaaargh. I should have typed it out on Microsoft Word first.

Anyway, allow me to share my answer on a question on law of evidence today.

Is it justifiable to exclude entirely reliable evidence under section 78 of the Police and Criminal Evidence Act 1984?

The wording of section 78(1) of the Police and Criminal Evidence Act 1984 (PACE) suggested that it is justifiable to exclude entirely reliable evidence under the section. The section allows courts to refuse to allow evidence that “would have such an adverse effect on the fairness of the proceedings”, and it is entirely possible for reliable evidence obtained by improper means to have adverse effect on the fairness of the proceedings. Lord Scott in R v Looseley acknowledged that the fairness of a trial may be compromised if the prosecution is allowed to rely on evidence obtained by unfair means.

However, more often than not, what is practiced is not what was preached. The common law position as derived from House of Lords’ decision in Sang was that improperly obtained evidence could be excluded only in the exercise of the court’s discretion to ensure a “fair trial” and in the exercise of this discretion such evidence could be excluded only if the impropriety affected the reliability of the evidence or constituted an infringement of the accused’s right against self-discrimination. Reliability is a factor taken into account in deciding whether discretion to exclude ought to be exercised. After all, section 78 is not a tool used to discipline the police.

On the other hand, significant and substantial breaches of Code by police tend to lead to exclusion of evidence, irrespective of the issue of reliability. In Mason, where the police hoodwinked both the solicitor and client, the deceit practiced was said to be “a most reprehensible thing to do.” PACE is an important Act, especially to protect the rights of the accused. As the court reasoned in Canale, if police continue to demonstrate lamentable attitude towards PACE by practicing serious breaches that are flagrant, deliberate and cynical, it is time for the police to appreciate the importance of PACE. It does seem that section 78 had turned out to be a means to ensure the police comply with the Codes under PACE by excluding entirely reliable evidence.

Furthermore, the case of Smurthwaite provided a non-exhaustive list of factors in deciding whether to exercise its exclusionary discretion: was the police enticing the defendant to commit an offence he would not otherwise have committed; does the evidence consist of admissions to a completed offence, or does it consist of the actual commission of offence; is there an unassailable record of what occurred or is it strongly corroborated; and whether he has abused his role to ask questions which ought properly to have been asked as a police officer and in accordance with the codes.

There is a public interest in not conveying the impression that the court will adopt the approach that the end justified any means. Even if there is no danger of the conviction of an innocent person, a court has the duty to act if failure to do so would compromise the legitimacy of the adjudicative process. As House of Lords put it simply in Latif, there is a need to take into account “broader considerations of the integrity of the criminal justice system.” Considerations of extrinsic policy are as much a concern as considerations of intrinsic policy.

Recent decisions of the Court of Appeal appear to have shifted their focus from nature of the breach to nature of the evidence. Reliability of evidence is once again an issue. It was held in Cooke that even if the DNA profile obtained from hair from accused’s head was illegal, it is not wrong to admit the evidence since it constituted very strong evidence that Cooke had sexual intercourse with the complainant. The illegality had not affected the reliability of the evidence – it would be absurd to say that DNA could change just because the hair was plucked illegally.

Perhaps we can argue that the gravity of illegality in Cooke was not serious enough. The police did not inflict grievous bodily harm on Cooke to obtain the evidence. What about Chalkley, then? In order to obtain evidence, the police had arrested Chalkley in connection with crimes about which no action had previously been taken to place listening device in his home. The court held that even if the arrest of Chalkley was unlawful, the judge’s decision not to exclude the evidence should stand. Court also suggested that the discretion to exclude evidence on the ground that it had been obtained improperly was only applicable in relation to evidence of a confession obtained from the accused, other evidence obtained from the accused after the commission of  the offence, evidence excludible under the Smurthwaite principle and evidence which quality might be affected by the way it was obtained. The decision of House of Lords in Khan (Sultan) also made it clear that even taking into account the effect of European Convention of Human Rights and Human Rights Act 1998, it would be a strange reflection on English law if a man who has admitted his participation in the illegal importation of a large quantity of heroin should have his conviction set aside on the grounds that his privacy has been invaded. The cases seem to be suggesting that reliable evidence would not be excluded. As said in Mullen, certainty of guilt cannot displace the essential feature of this kind of abuse of process, namely the degradation of the lawful administration of justice.

However we must taken into account what was said in Quinn: that function of the judge is to protect the fairness of proceedings. Normally proceedings are fair if a jury hears all relevant evidence which either side wishes to place before it, but proceedings may become unfair if one side is allowed to adduce relevant evidence which the other side cannot properly challenge or meet, or where there has been an abuse of process. Section 78 aims to ensure fairness of proceedings. This would mean that it is justifiable to exclude reliable evidence which is improperly obtained.

This is followed by Radak, where the court’s central concern was the failure to respect the accused’s procedural rights instead of the quality of the impugned evidence. This was also the position of Saunders v United Kingdom, where the court was prepared to accept that the use of evidence obtained in breach of internationally recognized procedural safeguards could violate basic principles of fair procedure inherent in Article 6 of the European Convention on Human Rights. The case of Teixeria de Castro v Portugal also made it clear that despite the fact that the fight against organized crime may require “appropriate measures to be taken”, the right to a fair administration of justice nevertheless holds such a prominent place that it cannot be sacrificed for the sake of expedience.

Perhaps the justification of entirely reliable evidence could be best explained by Dennis, who said that fairness of the proceedings as a whole may be adversely affected if admission of the prosecution evidence in question means that the prosecution have an advantage which is inconsistent with the fundamental moral and political values of the criminal justice system. Section 78 enables the judge to calculate whether the extent of the unfair advantage is such as to require the exclusion of the evidence.

I think R v Cooper is an interesting case.

In this case, the defendant was charged with an offence involving the importation of cannabis concealed in a television. One of the evidence concerned were two letters written by the defendant’s wife.

The letters were found in their room and they were not posted. One of the letter said this:

“We have been hasless for a couple of weeks (all the houses) and the strain was showing. There was a sharp increase in the consumption of alcohol and general erratic behaviour. But, Ali’s contact came thru for us last Friday and had us all smiling.”

The Court of Appeal said that before a defendant can be cross-examined on a third part’s account of events, he must have accepted that account as true. Furthermore, the letters should be inadmissible as hearsay, and to admit the letters is an attempt to get round the general rule under which one spouse was not a compellable witness against the other.

At first I thought the letters should be admissible, as the jury could infer from the letters that the defendant was indeed expecting the arrival of a consignment of drugs; but then again, it would seem quite unfair to draw an adverse inference against the defendant based on the letters which contents he was not aware of. He clearly shouldn’t be responsible for what he didn’t know – there could be a possibility of fabrication by his wife.

On the other hand, if the offence commited is murder, and it could be inferred from the letters that the defendant and murdered someone, then in my humblest opinion, I would think it is both in the interest of justice and public interest to convict the defendant. I personally think that the nature of the offence commited will influence the outcome of the decision.

I think it will also be fair to look into the surrounding circumstances (if, hypothetically, it becomes an issue) ie the defendant’s relationship with his wife. Did they have a quarrel recently? Is there any possibility of the wife revenging on the defendant? Did the wife (or the defendant) have another affair? I think all that could be taken into account in deciding whether the letter is reliable.

Then again, maybe I think too much when I read… But then again, you can have all sorts of opinion on law since it is concerned of balancing between two extremes instead of what’s right and what’s wrong, isn’t it?

Both Devlin Report and 11th Report of the Criminal Law Revision Committee regarded mistaken identification as the greatest cause of actual or possible wrongful convictions.

I thought to myself: that can’t be right. The greatest cause should be something like, police fabricating or concocting stories, or other form of abuse of power.

A little voice in my head then reminded me of the times when I was a school prefect, where we were quite sure of someone who break the school rules and how we tried to bend the rules (unauthorised, obviously) to catch the culprit. Most of the time, they were the real culprits. I suppose MOST (not ALL) police have the same mentality: that they know who the criminal is, but they just don’t have enough evidence to convict him, hence they have to fabricate stories.

Which explained why police fabrication cannot be the greatest cause of miscarriage of justice.

I then remember how often I pat someone on their shoulders, thinking they are someone I know, but it turn out to be that I had identified the wrong person. It’s so easy to identify the wrong person, because most people resemble each other in one way or another – the same hairstyle, hair colour, voice, height, skin colour, clothings…

Which is why we need the Turnbull direction (derived from the case R v Turnbull) when dealing with identification evidence.

Turnbull direction requires the judge to warn the jury of the special need for caution before convicting the accused based on identification evidence, to tell the jury why such a warning is needed, and direct the jury to examine the circumstances when the identification was made.

The court in R v Turnbull also suggested factors that can help determine whether an identification is mistaken, such as whether the identifying witness was drunk, the distance between the identifying witness and the accused, was the observation impeded, etc.

Next time when I notice someone that I think I know on the street, I’m going to tell myself: hey girl, you can be mistaken. Look carefully before you say hello.

In the case of Romanathan Somanathan, the priest was the rapist. This is a case on bad character evidence, but today all I want to do is to share the facts of this case.

The appellant was 42 year-old. The victim, W was 30 year-old. Her marriage broke down. She came to England and started attending the Hindu Temple, where the appellant was the “Aya” – the main priest. After several conversations, the appelant went to her flat to conduct a poojah (blessing). While he was there, he raped her.

I thought W would have lodged a police report as soon as she could but funnily enough, she didn’t. She continue to attend the Hindhu Temple, and the appellant continue to contact her. The appellant visited her again to give her a gift he obtained on a religious trip to Himalayas, and he raped her again. W became pregnant and had an abortion. In the following year, W finally made a police report.

At first I thought this was a case where the priest had somehow hoodwinked the victim that rape is part of the process of blessing, blah blah blah, but I was wrong. After the first rape, W had told her friend that her priest had come to her house, didn’t want to leave, and had bolted the door. He had pinned her to the floor and she struggled. She couldn’t fight him off. He said they should be together. She said no several times, but afterwards she felt weak and dirty. She said he forced her.

Sometimes we think we are smart for not falling for the tricks of the so-called religious people, but just because we are smart it does not mean that we can fight with someone stronger than us. It is still important to be a little paranoid sometimes by not letting anyone into your house when you are alone and vulnerable to attacks. To quote Professor Moody in Harry Potter: “Constant vigilance.” Over-sensitivity is not necessarily a bad thing, so don’t trust people for the reputation of their profession. Vicars and priests can be bad; it was portrayed nicely in Hunchback of Notre Dame.

Oh, and please don’t let your guard down when you are depressed. Bad things happen in life. It’s okay to feel sad, but sadness is no reason to do something irrational. Always, always, always think before you leap.

It happened when I was eight. I was in the living room, reading a storybook (Rapunzel, if I’m not mistaken) when my father entered the room. He looked furious, and he was holding a cane.

I’ve learned this formula since I’m 4…

Parent looking mad + a cane in hand = I’m going suffer some kind of injury, either on my palm or my butts, for whatever I’ve done which pissed them off.

So I got very scared. I wanted to apologize but the problem was, I had no idea what I’ve done wrong. My father got nearer and nearer and still my mind remained blank.

“I’m sorry,” I blurted out the words before he could start whacking me, even though I still don’t know what mistake I’ve committed. “I won’t do it again.”

When coerced, pressured or persuaded, people can confess to anything. Remember the Gypsy girl, Esmeralda, in Hunchback of Notre Dame? She had, against her will, falsely confessed to the murder of her lover after she was tortured by tightening a pair of heavy metal shoes on her feet, which was so painful that she eventually fainted.

Of course, there are also people who voluntarily make false confessions for the sake of notoriety, or to protect the real culprit, but today I would like to talk a little about false confessions which are involuntarily made. I would like to focus on the interrogation techniques used by the Chinese Communists, which, according to Hinkle and Wolff, “can force men to confess to crimes which they have not committed, and to believe in the truth of their confessions and express sympathy and gratitude towards those who have imprisoned them.”

  It was the latter part of the statement which aroused my curiosity. I understand that there’s plenty kinds of torture which can make a person confess to almost everything, but how on Earth can these interrogators make people believe in the false confessions they made?

  According to Schein, Schneier and Barker, the Communists achieved this by influencing people’s beliefs, attitudes, values and behaviour by psychological manipulation. This process requires three stages:

1. “Unfreezing” – where the forces pushing people towards confessing are strengthened (saying things likes “look, the evidence is adverse to you. It is better for you to confess.”)but at the same time the forces maintaining resistance are weakened (emotional distress, deprivation of sleep etc). The former is achieved via persuasion whereas the latter is achieved via coercion. During this stage, the subjects are usually placed in a situation where there is no escape, causing the subjects to feel hopeless and start to believe that the only means to escape is to confess.

2. “Changing” – This occurs after the prisoners’ needs and motives are changed and they now have a clear idea as to the new direction they should take. In my “cane-in-father’s-hand” example, this would have occured when my father got nearer to me. That’s when my motive is changed from “I am innocent therefore I should not confess” to “I’ll say anything just to avoid being caned.”

3. “Refreezing” – This is where new information or belief is being integrated into the prisoner’s self-concept and value system. Usually there will be some form of incentive for the prisoner to confess, such as a less severe sentencing.

  Usually, such influences would not be permanent. Once the prisoner is removed from the social support system which reinforces the attitude change, they will usually revert to their original beliefs.

  Anyway, just a little evil idea that came across my mind all of a sudden: to those with a partner, maybe you can use the unfreezing-changing-refreezing process on your partner to get them to confess to some kind of mistake just so they feel guilty and start to treat you better… Hey, I’m not making any suggestions, alright? I’m just sharing my thoughts, and there’s a distinction between sharing and suggesting *wink*

For every paper, I have to answer four questions, and for each question, the maximum score is 25. Same for my assignments. So far, the highest score I obtained for my assignments was 15, so you can imagine how surprised I was when I received 19 for my evidence assignment (2008 Zone B Part 1 Question 1). I know it’s going to be extremely boring for those who come across my blog to read a 3-page-plus assignment, but please bear with me, okay? The joy was so overwhelming that I had to share it here.

NOTE: My boyfriend thought it looked like a 14 instead of 19, but I was quite sure I saw my lecturer scribbled a 19 on my paper.

NOTE 2: Some paragraphs do not seem to be connected with the essay as a whole because my lecturer had striked off three whole paragraphs he considered as “unnecessary examples.”

Question:

What justifications have been put forward for having a rule against hearsay? How convincing are they?

Hearsay is defined in section 1(2) of the Civil Evidence Act 1995 as a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated. As a general rule, hearsay evidence is not admissible. This is stated in Cross on Evidence – “an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted” – and this rule is adopted by Lord Havers LC in R v Sharp.

Oath is seen as a ceremonial and religious symbol which may induce in the witness a feeling of special obligation to speak the truth. Taking of the oath is also a powerful disincentive to perjury. Psychological and anecdotal evidence suggests that the taking of oath may at least have the effect of making witnesses more cautious when giving their testimony than they might otherwise be, and since hearsay evidence is made out of court rather than an oath in the court. However, even Tregarthen had argued in 1915 that the objection to admission of hearsay on the basis that one is not in fear of punishment for stating what is not true is, in the twentieth century, a consideration that has no weight, as people are no longer over-awed by the mummery of oath. Oath is not an absolute guarantor of reliability – even the substantive law of hearsay appears to treat the oath as being of secondary importance to cross-examination as a means of ensuring the reliability of evidence. Grose J had said in R v Eriswell (The Inhabitants): “Evidence, though upon oath, to affect an absent person, is incompetent, because he cannot cross-examine; as nothing can be more unjust than that a person should be bound by evidence which he is not permitted to hear.” Therefore, oath does not seem to be a convincing justification for rule against hearsay. What about cross-examination?

Wigmore had described cross-examination as “beyond any doubt the greatest legal engine ever invented for the discovery of truth”, as it constitutes a powerful weapon in exposing the possible unreliability of the witness’s testimony. Cross-examination is said to be able to expose faulty perception, erroneous memory, ambiguity in narration and insincerity. However, is cross examination that powerful? There may be situations where a witness’s testimony will be successfully “broken down” in cross-examination where the witness will end up admitting to lying, but a strong-willed witness intent on deceiving will be unlikely to be affected by the process of cross-examination. He would have planned his story ahead. He might even have rehearsed it. Therefore, cross-examination is likely to be much less effective in exposing insincerity. Furthermore, efficacy of cross-examination in exposing faulty perception may be limited too. Also, suggesting facts to a witness in cross examination may actually distort, rather than assist his or her memory. If a witness is being questioned on the scene of the murder :”How was the scene? Was the alley empty, or was there anything that might suggest that there might be someone lurking in the corner?” The witness probably had not observed anything strange at all, but the way the question was phrased could trigger him to think “I indeed saw some large boxes in the corner” and he would continue to think “the area where the boxes were located were darker… I think there were shadows around the boxes… It must be human’s shadow… What does a shadow indicate?” which eventually led him to think “yes! There was someone hiding behind the boxes!” After all, memories are fragile. Also, it should be noted that cross-examination would be of little utility in a case like Myers v DPP, where the hearsay evidence in question was a contemporaneous record made by workers in a motor car factory of cylinder block and chassis numbers. How could cross-examination help in such a situation? Surely the workers’ recollection of several years later of parts and numbers have been non-existent.

Apart from oath and cross-examination )both which our analysis above had proven them to be not that convincing as justification for rule against hearsay), demeanour is also another justification for rule against hearsay. Observation of the demeanour of a witness would provide a good indication of the reliability of his testimony. Sergel had argued that the stress experienced by a perjurer, coming from the fear and public humiliation and prosecution would contribute to their demeanour, which can be used to detect their unreliability. On the other hand, Wellborn had presented experimental research which revealed that demeanour is of little benefit to ordinary observers in assessing whether a person is untruthful. Observation of facial behavior may actually decreases the accuracy of lie detection, and little assistance would be gained from listening to the voice of the respondent, as there is no compelling evidence that lying is accompanied by distinctive body behavior which can be discerned by observers. The capacity of ordinary people to detect unreliability by observing demeanour could be said as nothing more than a myth, hence it is definitely not a convincing justification for having a rule against hearsay.

Perhaps the most convincing justification for having a rule against hearsay is the fact that hearsay evidence is not the best evidence. Allow me to quote A.Pope, The Temple of Fame:

“The flying Rumours gather’d as they roll’d;
Scarce any Tale was sooner heard than told;
And all who told it, added something new;
And all who heard it, made Enlargements too.”

The descriptions of events can become distorted as they are passed from person to person, either due to defects in the perception, memory, sincerity, or ability to narrate clearly of the maker of the statement. As Loftus described it, ability to perceive an event accurately is dependent on “event factor” and “witness factor”, which include length of time for which the witness was exposed to the event, frequency of exposure to the event and significance of the event, and a variety of other factors. Generally, the longer the time a witness is exposed to an event, or the more frequent he is exposed to it, or the more the significant the event is, the ability to perceive an event accurately will be higher. Faulty perception could also be caused by factors like cultural expectations, expectations from past experience, personal prejudices, momentary or temporary expectations, perceptual activity and stress. A classic experiment conducted by Allport and Postman clearly shows that people who are prejudiced against Blacks are more likely to perceive Blacks as criminals, even though this might not be the case.

Also, in detecting ambiguity, the “filling phenomenon” may make the task more difficult than it already is. On hearing an account of events, there is a tendency to compensate for any ambiguities by “filing in” gaps with considerations drawn from our past experience or knowledge. In Huff v White Motor Corp, there was a statement made by a deceased person that “as he was approaching the curve or starting into it his pant leg was on fire and he was trying to put his pant leg out and lost control and hit the bridge abutment and then the truck was on fire.” It is unclear, but most people who heard the statement would have formed a clear picture of the events in their minds through the filling phenomenon, and this formed picture might or might not be what actually had happened. Another example is found in the celebrated 1952 trial for murder of Derek Bentley, where Bentley had shouted to the principal offender, “Let him have it, Chris.” What as Bentley trying to say: to start the shooting, or to let the police have the gun? It remains unclear.

Another sound justification for rule against hearsay is extrinsic policy considerations. In Nesson’s view, hearsay rule is a mechanism for promoting continuing public acceptance of jury verdicts. Individuals would also surely regard as procedurally fairer a system where observers of events testify directly to what they saw, than one where hearsay evidence is adduced, which will in turn encourage compliance with the law. Hearsay rule also acts as a deterrent to certain types of police impropriety, discouraging police from extracting statements from witnesses by questionable means, as hearsay rule will prohibit admissibility of out-of-court statements. More importantly, the rule against hearsay protects the value of individual dignity in criminal proceedings. The ability of an accused person to confront and cross-examine the maker of a statement against him, and not just a person reporting the statement, is consistent with the right of accused person to be treated with dignity.

Some of the justifications for hearsay rule may seem irrelevant today, but most of it remain as sound and convincing justification for having a rule. Of course, there remains situations where hearsay evidence should be admitted in the interest of justice as there are circumstances where hearsay evidence will be the best evidence, but that will not be a discussion for the purpose of this essay. For now, it is enough to remember that although C.F.H. Tapper said that although the statements of third persons are acted upon in the practical affairs of everyday life without the slightest hesitation or suspicion and that ordinary experience shows that it is quite safe to infer the existence of a thing or the happening of an event from second-hand testimony, the fact remains that justice must not only be done but must be seen to be done, and that is why there is a need to have rule against hearsay.

Most of us are prejudiced in one way or another. Me, for instance, when I notice a guy and a girl quarreling, being a feminist, I will immediately conclude that the guy had done something wrong. I knew that to assume is to make an ass out of “u” and me, and I know what I think does not necessarily reflect what’s actually going on, but I will subconsciously perceive it in that manner because I am prejudiced that way.

Our ability to perceive accurately is affected by a number of factors. Basically, we see what we expect to see. What we expect to see depends on our cultural expectations, past experiences, personal prejudices and momentary expectations. For me, cultural expectations, to a very large extent, depends on our personal prejudices. I have friends who think all Englishmen are good-looking, so when they get to know real Englishmen in real life, before they were introduced to each other, in their minds they were already expecting to be introduced to a Robert Pattinson-look alike.

  I’ll like to adduce evidence to prove my opinion. Allow me to share with you guys something I’ve came across when I was reading Andrew Choo’s article on hearsay rule, The Rationales for The Rule.

  In the 1940s, a series of experiments were conducted by Allport and Postman. They used a picture which showed the interior of a crowded subway, with two people standing up, talking to each other. One of them was a well-groomed black man. The other man was a white man, who was holding a razor blade. This picture was showed to a subject, Subject A,  for a brief moment. Subject A then has to tell Subject B about the contents of the picture, who then have to repeat the information to Subject C. The process keep repeating itself until it reaches six or seven subjects. This experiment was conducted on a number of people. It was found there most people end up recalling the picture as showing a black man holding the razor. Some even ended up recalling the black man “brandishing it widly” or “threatening the white man with the razor.”

  Conclusion? Don’t always believe in what you see.

P.S. I suppose that’s the reason why my boyfriend always tell me: Just because I’m looking at somewhere else, it does not mean I’m checking out hot chicks!

  Anyway, are you guys prejudiced against anything?