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Thursday, October 18, 2012

Criminal litigation process

R v. Sir Joseph Priestley

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Sir Joseph Priestley has been convicted of indecent exposure based on evidence given by Ms. Amanda Robert. The situation has been heard inside a Magistrates Court by a sole magistrate. Sir Joseph Priestley now wishes to appeal against the decision with the magistrate. In advising Sir Joseph Priestley, the first difficulty to be touched upon will be the appropriate of appeal in decisions rendered by the magistrates’ courts.

 

A decision of a magistrates’ court can also be challenged in 1 of three ways: firstly, by an appeal towards the Crown Court; secondly, by an appeal to the High Court by means of situation stated by the magistrates for your high court’s opinion, or on computer software to the High Court for judicial review. In this case, Sir Joseph Priestley will likely be suggested to proceed on a basis of an appeal towards High Court by means of situation stated. Most appeals via case stated are aimed at overturning either a summary acquittal or conviction, as from the case of Sir Joseph Priestley, a conviction. Appeals via situation mentioned is governed by the Magistrates' Court Act 1980 and section 111(1) provides that any person who was a party to any proceeding ahead of a magistrates' court or is aggrieved by the conviction in the court may question the proceeding on a ground that it's wrong in law or in excess in the court’s jurisdiction.

 

Sir Joseph Priestley’s application will likely be created over a basis that District Judge Asquith’s decision is wrong in law. The basis for these kinds of a conclusion is premised on a significant evidential issues arising during the course in the trial. In his summing up, the District Judge alluded to three problems which deserve our attention. The very first is his statement regarding the veracity of Ms Robert as being a truthful witness. DJ Asquith refers for the witness’s evidence as corroborated because of her fragrant appearance. This sort of a statement is not of itself improper but it gives result in for concern once the only corroboration in the witness’s account of events is her fragrant appearance. In this case, the right process of corroboration may well had been via other witnesses who saw the offence committed or via witnesses who know the accused or the victim and can testify as to their veracity for your truth. The problem the following is simple – the victim’s evidence has not been tested and it's unsafe to convict Sir Joseph Priestley based on this untested evidence.

 

Secondly, as towards the difficulty of Sir Joseph Priestley’s defence of mistaken identity, DJ Asquith suggests in his speech how the burden of proving this defence lies on a accused – that is clearly not the case. The general rule with regards to the burden of proof in criminal cases is how the burden is over a prosecution to prove the defendant’s guilt beyond reasonable doubt. There's a statutory exception towards the rule which is contained in section 101 on the Magistrates' Court Act 1980 which basically surmises that inside a summary trial where the defendant relies in your defence on any statutory exception, exemption, provision or qualification on the statutory offence charged, the burden of proving that exception is over a defendant. In this case, Sir Joseph Priestley’s defence is not an exception or provision forming part in the offence charged. It's simply a defence of mistaken identity to the offence charged and which forms component from the case how the prosecution has to prove. Whilst Sir Joseph Priestley had the evidential burden of raising the defence, it was for ones prosecution to disprove these kinds of a defence. It was clearly wrong for DJ Asquith to cast the burden of proving the mistaken identity on Sir Joseph Priestley and this clearly provides a basis upon which an appeal is also sought.

hirdly, with respect for the Judge’s reference to Sir Joseph Priestley’s refusal to discuss the details with the case during police interrogation, we need to look at the effect of section 34 of the Criminal Justice and Public Order Act 1994 ( CJPOA) which deals from the defendant’s failure to mention info after questioned or charged. In these kinds of a situation exactly where the defendant has been questioned and he has not responded to individuals questions, the tribunal of reality may perhaps draw this kind of inferences as glimpse appropriate inside defendant’s refusal to mention individuals details which he later seeks to rely on. Even so this offer case need to be distinguished inside the conventional section 34 cases for example R v Condron and R v Cowan since Sir Joseph Priestley clearly stated during interview that it was a case of mistaken identity. Assuming that it actually was a situation of mistaken identity, then there would had been practically nothing additional to discuss during job interview as well as the judge would be wrong in drawing the inferences from Sir Joseph Priestley’s job interview in the police.

 

Another issue which need to be discussed could be the reality that despite alluding for the defence of mistaken identity during police interrogation, the police did not conduct further investigations to enquire regardless of whether any person else over a train may well have seen the crime. A single would imagine that traveling from Buckinghamshire everyday to Neasden, Sir Joseph Priestley would have established a travel pattern which would yield the possibility of discovering normal travel companions who may well know about Sir Joseph Priestley and regardless of whether he has ever engaged in such an act. The inability in the police to yield much more evidence to aid the Ms Robert’s case looks being in particular detrimental in proving the case against Sir Joseph Priestley. It would consequently look that Sir Joseph Priestley has a beneficial chance of overturning the conviction on appeal.

R v. Mr. Harry Collingwood and Mr. Fred Vaughan

 

The details reveal that both Fred and Harry have been convicted with the crimes of murder and conspiracy to result in explosions. They now seek to appeal against their convictions. The difficulty raised here is regardless of whether the conviction is safe during the light with the evidentiary shortcomings displayed during the criminal litigation process. The general rule with respect to appeals within the crown court is encapsulated within section Two in the Criminal Appeals Act 1995. This section states that an individual convicted on indictment may well appeal on the single ground that the conviction is unsafe.

In the case of R v. Chalkley, the Court regarded the definition of “unsafe” and suggested that it was additional or a smaller amount a subjective question of regardless of whether there nonetheless remained a lurking doubt from the minds of folks which created them wonder regardless of whether an injustice has been done.

 

There are many difficulties which needs to be discussed during the light on the conclusion how the conviction looks being unsafe. The first difficulty relates to the procedure followed during the interrogation of each Fred and Harry. The info reveal that during questioning, both parties were denied entry to a solicitor. The general rule with respect to rights of suspects to legal suggestions is contained inside section 58 of the Police and Criminal Evidence Act 1984 (“PACE”). Section 58 provides that a person who is arrested and held in custody at a police station includes a right, at his request, to consult privately using a solicitor at any time. Furthermore, Article 6(3) of the ECHR requires that consultation having a legal adviser need to consume place out from the hearing of the third party. Fred and Harry consequently ought to were informed of their correct to see a solicitor upon arriving at the police station, and they also had the appropriate to consult with solicitors with out the presence of Inspector Lewis or any other third party. The refusal of the correct to consult having a solicitor is clearly grounds for ones exclusion from the evidence obtained due to the denial with the accused’s right.

 

The second issue relates on the refusal by the police to allow both Fred and Harry inform a family members member of their whereabouts. Under PACE, section 56(1) the suspect has the correct to get a friend or family member informed from the arrest. Nonetheless this proper may be delayed in particular circumstances. One of such circumstances could possibly be in which the officer has reasonable grounds to believe that these kinds of friend or household member may perhaps interfere with the evidence connected with an offence, thus hampering the police investigation. It would therefore seem that in this case the police might have been justified in refusing both Fred and Harry the right to inform family members of their whereabouts.

 

The third problem the following relates towards the apparent physical threats produced by Inspector Lewis to both Fred and Harry and also the manner and condition under which the confessions had been made. The threats and also the manner of eliciting the confessions can be mentioned to range to oppression. Oppression is defined in section 76(8) of PACE as ‘torture, inhuman or degrading treatment, and also the use or threat of violence. In 1968, Lord MacDermott commented on the Bentham Club that: “oppressive questioning is questioning which by its very nature excites hopes or fears or so affects the mind of the suspect that his will crumbles and he speaks when otherwise he would have remained silent.”

 

While PACE doesn't define any from the 3 concepts of torture, inhuman or degrading treatment, a single can glimpse for the choice with the European Court of Human Rights from the Greek Situation in which the commission defined inhuman treatment as such treatment as deliberately causing severe suffering, mental or physical and degrading treatment as treatment which grossly humiliates the individual just before others or drives him to act against his will or conscience. Furthermore in the situation if Republic of Ireland v. United Kingdom the court was concerned with particular approaches of interrogation used upon suspects in detention which included wall standing, hooding, deprivation of sleep, foods and drink. In this case, the court held how the approaches amounted to inhuman treatment due to the fact they caused physical and mental suffering and also led to acute psychiatric disturbances during interrogation. Relying on the more than decisions, it's stated how the station residence treatment of both Fred and Harry amounted to inhuman treatment and the nature on the questioning was clearly oppressive.

 

Thirdly, with respect on the Judge’s reference to Sir Joseph Priestley’s refusal to discuss the info on the situation during police interrogation, we have to look at the effect of section 34 of the Criminal Justice and Public Order Act 1994 ( CJPOA) which deals with the defendant’s failure to mention facts as soon as questioned or charged. In this sort of a situation in which the defendant has been questioned and he has not responded to people questions, the tribunal of simple fact may possibly draw such inferences as look appropriate inside defendant’s refusal to mention individuals info which he later seeks to rely on. Even so this present situation needs to be distinguished inside traditional section 34 cases just like R v Condron and R v Cowan due to the fact Sir Joseph Priestley clearly said during job interview that it was a situation of mistaken identity. Assuming that it really was a situation of mistaken identity, then there would had been absolutely nothing additional to discuss during job interview as well as the judge would be wrong in drawing the inferences from Sir Joseph Priestley’s interview in the police.

 

Another issue which should be discussed may be the simple fact that despite alluding for the defence of mistaken identity during police interrogation, the police did not conduct extra investigations to enquire whether anybody else on the train may have noticed the crime. One would imagine that traveling from Buckinghamshire everyday to Neasden, Sir Joseph Priestley would have established a travel pattern which would yield the possibility of discovering regular travel companions who may well know about Sir Joseph Priestley and regardless of whether he has ever engaged in such an act. The inability with the police to yield more evidence to aid the Ms Robert’s situation appears to become particularly detrimental in proving the situation against Sir Joseph Priestley. It would therefore appear that Sir Joseph Priestley has a good chance of overturning the conviction on appeal.

R v. Mr. Harry Collingwood and Mr. Fred Vaughan

 

The information reveal that both Fred and Harry have been convicted with the crimes of murder and conspiracy to trigger explosions. They now seek to appeal against their convictions. The trouble raised here is whether the conviction is safe within the light with the evidentiary shortcomings displayed during the criminal litigation process. The general rule with respect to appeals inside the crown court is encapsulated inside section A couple of with the Criminal Appeals Act 1995. This section states that a person convicted on indictment may possibly appeal over a single ground that the conviction is unsafe.

In the case of R v. Chalkley, the Court regarded as the definition of “unsafe” and suggested that it was additional or a smaller amount a subjective question of whether there nonetheless remained a lurking doubt inside the minds of individuals which produced them wonder whether an injustice has been done.

 

There are a number of difficulties which ought to be discussed inside the light on the conclusion that the conviction appears to become unsafe. The first dilemma relates towards the system followed during the interrogation of each Fred and Harry. The facts reveal that during questioning, each parties had been denied entry to a solicitor. The general rule with respect to rights of suspects to legal suggestions is contained within section 58 of the Police and Criminal Evidence Act 1984 (“PACE”). Section 58 provides that somebody who is arrested and held in custody at a police station has a right, at his request, to consult privately with a solicitor at any time. Furthermore, Write-up 6(3) with the ECHR requires that consultation using a legal adviser need to take location out from the hearing of the third party. Fred and Harry consequently must have been informed of their appropriate to determine a solicitor upon arriving at the police station, and they also had the right to consult with solicitors with no the presence of Inspector Lewis or any other third party. The refusal with the correct to consult using a solicitor is clearly grounds for the exclusion of the evidence obtained because of the denial with the accused’s right.

 

The second problem relates to the refusal by the police to allow both Fred and Harry inform a family member of their whereabouts. Under PACE, section 56(1) the suspect has the correct for getting a friend or family members member informed on the arrest. Even so this right can be delayed in specific circumstances. A single of these kinds of circumstances could possibly be where the officer has reasonable grounds to think that this kind of friend or loved ones member might interfere in the evidence connected with an offence, thus hampering the police investigation. It would consequently appear that in this situation the police may had been justified in refusing each Fred and Harry the proper to inform loved ones of their whereabouts.

 

The third difficulty right here relates towards the apparent physical threats produced by Inspector Lewis to each Fred and Harry as well as the manner and condition under which the confessions have been made. The threats and also the manner of eliciting the confessions can also be stated to number to oppression. Oppression is defined in section 76(8) of PACE as ‘torture, inhuman or degrading treatment, as well as the use or threat of violence. In 1968, Lord MacDermott commented on the Bentham Club that: “oppressive questioning is questioning which by its really nature excites hopes or fears or so affects the mind on the suspect that his will crumbles and he speaks once otherwise he would have remained silent.”

hile PACE doesn't define any from the three concepts of torture, inhuman or degrading treatment, one can glimpse on the decision on the European Court of Human Rights inside the Greek Case in which the commission defined inhuman treatment as these kinds of treatment as deliberately causing severe suffering, mental or physical and degrading treatment as treatment which grossly humiliates the individual just before others or drives him to act against his will or conscience. Furthermore inside the case if Republic of Ireland v. United Kingdom the court was concerned with certain techniques of interrogation used upon suspects in detention which included wall standing, hooding, deprivation of sleep, meals and drink. In this case, the court held how the ways amounted to inhuman treatment due to the fact they caused physical and mental suffering and also led to acute psychiatric disturbances during interrogation. Relying on the more than decisions, it is stated that the station house treatment of both Fred and Harry amounted to inhuman treatment as well as the nature of the questioning was clearly oppressive.

 

In the light of this fact, the following logical question being decided falls to be: Of what evidential value stands out as the confession purported to obtain been signed by both Fred and Harry. Owning determined how the confession was the product or service of oppressive questioning, we now turn to think about section 76 of PACE. Firstly as with all confessions created towards the police, if the prosecution wishes to rely on it, they need to satisfy the rule of admissibility that is certainly in section 76(2). In this case, the Judge should have proceeded to hear issues as towards admissibility with the confession inside a separate proceeding called the voir dire, or the trial within the trial and then deciding as to whether or not the evidence should be allowed in. Failing to perform this, the judge clearly breached the procedural rules concerning the admission of evidence and this clearly presents a ground for difficult the conviction.

 

The next dilemma concerns the joint trial of Fred and Harry, in which each defendants rely on different defences. What exactly do I mean? Well we must verify what section 76(1) of PACE states. It states that a confession created by an accused is admissible against him. This shows that it's only admissible against its maker and not against any other individual and a co-accused who may be known as in the confession. In this case, the learned judge has not employed his discretion to order separate trials, give a limiting warning to the jury or sought to edit the confession so that it does not implicate Harry Collingwood, whose defence is that he was not supply at the time on the bombings, but was in china on vacation. Once again, these kinds of flagrant disregard for criminal system by Mr. Justice Jeffreys lends credible assist on the conclusion that the criminal procedural technique was so flawed as to render the convictions unsafe.

 

The final issue being touched upon relates on the unusual nature in the Judge’s summing up to the Jury. As it has been noted in Blackstone’s Criminal Practice 2008, errors resulting the judge’s summing up are clearly capable of rendering a conviction unsafe. It's for that reason required to carefully dissect the summing up in this case to determine exactly where the judge erred.

The first trouble to be raised on the summing up is that on the burden of proof. While the Judge makes mention with the truth that the burden of proof is on a prosecution, he fails to mention the regular to which the burden must be proven. Secondly, the Judge’s statements that the Jury should disregard Ms Lopez’s testimony without having any right basis for its dismissal is clearly erroneous within the light in the reality how the law clearly states that the judge has a general duty to remind the jury on the evidence, and as part of that duty. He has got to remind them in the defence case – Ms. Lopez’s alibi of Mr. Collingwood forms part from the defence situation for Mr. Collingwood as well as the judge ought not to acquire produced light on the simple fact that adore is blind and can lead persons to perform silly items which clearly forms a bias against Ms. Lopez’s testimony.

 

Overall, the judge’s summing up was clearly biased and in favour on the Prosecution. The judge’s statement that the prosecution evidence is greatest corroborated by the jury’s knowledge with the globe is clearly erroneous and devoid of correct reasoning or sound legal knowledge. Any corroboration that the jury may perhaps require ought to have been inside the evidence presented, and not in any external factors such as their knowledge from the world.

 

In the situation of Berrada, the judge referred to defence allegations which advised that police had fabricated evidence as “really monstrous and wicked”. On Appeal, it was decidedly mentioned that in directing the jury, the judge includes a duty to region matters impartially, clearly and logically and not inappropriately to inflate evidence to sarcastic and inappropriate comment. Similarly in R v. Marr, the judge’s dismissive attitude to the a large volume of character evidence have been held as grounds for acquiring the conviction quashed. Whilst inside the case of O’Donnell, it was held that the judge should be allowed some leeway in commenting upon the evidence and in the situation of Canny, it was held that a conviction will likely be in danger only when the judge crosses the line into blatant unfairness and apparent pro-prosecution bias.

 

Applying the more than cases to the present scenario, it is my opinion that the comments on the judge, during summing up, do clearly cross the line into blatant unfairness and prosecution bias as demonstrated in Canny. The judge could not be described as obtaining been fair in his summing up, and if even allowed some lee way in commenting upon the summing up, his comments could not be described as harmless, but at best, have been produced to perpetrate his politically minded agenda which showed a heavy disdain for political activists. Even so he failed to note how the bench is not the place to perpetrate this sort of an agenda and that he has to remain neutral at all times during the course on the trial. The judge clearly did not accomplish this level of fairness and as this sort of the conviction of both Fred and Harry needs to be stated to be unsafe and harmful and warrants an immediate appeal.

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