Scottish criminal law – Part 1

Memorandum (Evidence – Law (for Scotland)

Introduction

The Scottish criminal law stipulates that no individual is found guilty of any crime and offence or can be convicted based on a single witness in spite of the strength of the evidence. Thus, any proof of indispensible truth related to a crime must be corroborated by at least two autonomous sources. The element of the Scottish law of evidence is that for one to be convicted, and that the evidence provided should have more than one witness. The case study upon which this paper is based is concerned with an offence of an indictment nature in the supply of drugs, contrary to Section 4(3) (b), of the Misuse of Drugs Act 1971. The provisions in Section 23 of the Misuse of Drugs Act 1971 regarding the power to search and Section 28 of the Act regarding defences, and the the new provisions for arrest by a constable, particularly Sections 1-3 of the Criminal Justice (Scotland) Act 2016 act as a basis for the discussion.

The issues that are addressed in this essay are: Hearsay (HS), confession/interview evidence, character evidence (CE), expert / opinion evidence, real evidence, witnesses competency/compellability, and (b) burdens and standards of proof relevant to each charge, corroboration and  sufficiency(for each charge), rhetorical devices, plea bargaining,  the likely response of the defence to the charges,  likelihood of conviction. Any factors which may help or hinder the case, and the likelihood of success for the prosecution and whether the charges should be proceeded with have all been provided.

The goal of this essay will be to examine the relevant laws in Scotland as regards the possession and supply of cocaine as a controlled drug. Relevant laws such as section 4(3)(b) of the Misuse of Drugs Act 1971 will be examined in-depth. Existing evidence on likely problems of witness compellability and/or admissibility (confession, hearsay evidence, real evidence) will also be examined. In addition, the likely inferences and strength of evidence and possible responses to charges in the form of defence shall be explored, along with the possibility of going forward with the charges by the prosecution.

The Case and Facts

Both Tony Arnott and Peter Dunn have been indicted at the insistence of Victoria Hamilton for supplying drugs between 1st  and 13th January 2016 in Terant’s Bar, Byres Road and the Eastern Baths, Cranworth Street. According to the indictment, both Tony Arnott and Peter Dunn were unlawfully involved in the supply of a controlled drug namely cocaine, a class A drug specified in Part 1 of Schedule 2 to the Misuse of Drugs Act 1971 in contravention of section 4(3)(b) of the said Act. In this case there are 8 potential witnesses who are to orally present their reports, statements, and transcripts orally as evidence, with the possible exception of Fred Fredericks’ statement.

The facts admitted in evidence are that (a) a Crown Label 4 was secured by Grizlee adhesive tape, and it contained one further plastic bag, which contained approximately 3kg of white powder; (b) the white powder in Crown Label 4 contained Cocaine; (c), the Cocaine is a Class A controlled drug within the terms of the Misuse of Drugs Act 1971; (d) the Crown Label 5 is the DVD of the video identification parade; (e) Crown Productions 2 and 3 are true and accurate reports of the Video Identification Parade viewed by Crown Witness number 1, Rosa Inness on 16 January 2016; and (f) Tony Arnott and Peter Dunn are the two suspects in the case.

• Hearsay (HS), Confession/interview evidence, Character Evidence (CE), Expert / Opinion Evidence, Real Evidence, Identity evidence, Witnesses competency / compellability.

Hearsay (HS),

According to the Crown Prosecution Service under the section 114 (1) “Hearsay” in criminal proceedings has been defined as “a statement not made in oral evidence in the proceedings that is evidence of any matter stated” (Crown Prosecution Service 2014). S114-136 of Part II Criminal Justice Act 2003 sets out the admissibility of hearsay evidence in criminal proceedings.  According to Scottish Law Commission (1995), the rule that contravenes HS stipulates that “any assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact or opinion asserted.” (p. 14).  As such, HS is considered admissible only when there is sufficient evidence and it has been delivered orally and by oath.  HS is also admissible in case it becomes hard to test the accuracy and truthfulness of the individual whose words have been spoken through cross-examination. In such a case, there is the risk of the testimony being lost. The rule usually excludes evidence that is not available with the result that the best available evidence is admitted. Thus, Hearsay evidence only becomes inadmissible when it has been established that it is not the best evidence (The Law Commission 2015).

From the case provided, the emerging issue is burden on the accused (Mr. Tony Arnott) whereby all the interviews and confessions made do not indicate whether the accused was in possession of drugs or knew of their existence. Moreover, the statement given by Fred Fredericks  could be a problem for the prosecution because he will not be in court to be cross-examined. Based on the HS, it is hard to test the words spoken by an individual through cross-examination of the credibility and reliability of the interview evidence.

Confession/Interview Evidence

S82 (1) PACE 1984 has defined confession as “any statement wholly or partly adverse to the person who made it whether made to a person on authority or not and whether made in words or otherwise” (Glover & Murphy, 2013, p. 338; Stone 2014, p. 175) Thus, interview evidence or confession covers all the statements that have been made by accused or suspect on which the prosecutor seeks to depend on. According to the confession rules, no statement provided by the accused person is admissible in a court of law unless it has been provided in a voluntary manner, without any form of fear of prejudice. There are five types of confessions namely: (a) voluntary (b) stress-compliant; (c) coerced-compliant; (d) non-coerced-persuaded; and (e) coerced-persuaded (Duff 2004). From the study, the interviews were non-coerced-persuaded, meaning that no coercion was used to get information from the suspects and the witnesses. In all the cases, the confessions and interviews are all admissible because there are no circumstances that raise any form of reasonable doubt in terms of their voluntariness.  All the witnesses were in their right minds, no oppression or threats were used, and police trickery was no applicable (Duff 2004).

The two emerging issues with the confessions and interviews are unreliability and unfairness.  According s 76 2(b), when the current circumstances might lead to an unreliable confession it is not admissible in a court of law. As such, it must be excluded irrespective of its comprehensiveness and contents. In the case of Dunn, there were inducements made by the police to the suspect with regard to a lesser charge, and this could have rendered the confession unreliable.  In R v Delaney 1988 86 CR App R 18 the confession was obtained in circumstances, which cannot be deemed reliable. For instance, by remembering his previous drug arrest, Bell told Dunn that if he told them who he was working for I could ensure we went easy on him as we had done before. It is after such promise was made when Dunn confessed that he was only instructed to collect the package and deliver it.

Unfairness is addressed in s 78 PACE 1974, and it occurs when admission of the confession will have detrimental effect on the fairness of the proceedings. For instance, it is evident when the police failed to inform the client of the need for a solicitor, or when there are deliberate breaches related Code C, among others. In this case, the admissibility of the evidence is related to s 76(2) b and s 78, and  R v Aspinall 1999 Crim LR 741 provides the best example whereby the Court Appeal noted that at the time of interview it was hard for the defendant to judge what was in his best interests. With reference to the current case, Dunn seemed confused during the confession, and he might not have acted in his best interest. In the case of ROSA, the confession is not fair to the proceedings because at the time it was being collected, he was not using his glasses and had problems identifying Tony Arnott. Rosa contended that he had left his glasses in the locker in the staffroom on 13th January and seeing as he was short sighted, he did not see much of the face of the man who hired the locket on the date in question (13th January).

Character Evidence (CE),

            Admissibility of bad character evidence is well stipulated under Sections 98 to 113 Criminal Justice Act 2003 (CJA 2003). Although the court has no power to exclude evidence of bad character, it is up to the prosecution to establish if the evidence is admissible in the court, or not. However, evidence that may have an adverse effect on the fairness of the proceedings must not be admitted by the court (The Crown Prosecution Service, 2015). With regard to the case, the CE is applicable in one of the witnesses because of their character. For instance, ROSA committed a crime in the past and lied to her current employer by stating that she has never been in bother with the police. However, ROSA was charged with fraud because she was claimed benefit and working support and pleaded guilty to the charge and was given a fine.

Although ROSA has given a witness statement which can be used in the court in relation to one of the suspects, there is a problem in admitting her statement because she one lied and committed fraud. Thus, the prosecutor is required to identify such bad character evidence and possible risks for admitting it. Thus, the evidence by ROSA is bad character evidence, and it is not evidence in the case, till it has been admitted through one of the means provided under the Criminal Justice ACT 2003 (The Crown Prosecution Service, 2015). The law states that a person who has a character that has been attached does not need to be part of the witness in the proceedings, because of the bad character evidence. Also, Mr. Arnott at first lied to the detective that he had not been at the Eastern Baths earlier in the day on 13th January, but later stated that he had been there. Thus, it may be hard to accept the confession made by Arnott because he seems to have a habit of not stating the truth. Dunn has a past history of supplying controlled drugs it was only after he had been promised a good deal in terms of sentence that he is was able to make a confession of the crime. As such, Dunn is not a reliable and competent witness in the case, and there is an issue of collaborating his information.

Expert/Opinion Evidence

Expert/opinion evidence is provided based on personal opinion or expertise in certain areas. In this case, expertise opinion consists of knowledge, experience, or skills related to a subject that the person can commend and made an informed decision based on experience possessed by the average person (Gillies 1986). According to Sides (2007), opinion evidence is regarded as admissible if it is found that: (1) the witness is an expert who is qualified; (2) the field of expertise; and (3) the matter is beyond the common knowledge (Doyle 1987; Henry & Whitema, 2007). The rationale for using expert opinion evidence is to help the court determine the issues in a case, in terms of its relevance and opinion applicability in order to provide better understanding the issues (House of Commons 2011).

With reference to the case, the evidence provided by Brian Findlater is both expert and opinion evidence because it meets the three requirements. For example, the expert is a Professor of Packaging Development and Design at the University of Aberforth and hence possess wide knowledge and expertise in this area as evidenced by his research work and publications. According to the Professor, the tape used to secure the parcel is Crown Label 4 and the part roll found in Tony Arnott’s house which is Crown Label 7 is Grizlee Tape. Nonetheless, personal opinion indicates that Arnott Tony Arnott made up the package which is Crown Label 4, although there is not direct link to proof this. Thus, there exists a doubt on the matter, and this can be explained by R. v. Perry whereby Cox J. noted that expert opinion leaves a room for which a doubt can exist reasonably (Doyle 1987). The problem in this that the prosecutor has to prove the expert opinion evidence beyond any reasonable doubt, and hence the principle of burden of proof emerges.

Reference List

Doyle, J J (1987) ‘Admissibility of Opinion Evidence’, The Australian Law Journal, vol. 61, pp. 688-693.

Duff, P (2004) ‘Irregularly obtained real evidence: The Scottish solution?’, The International Journal of Evidence & Proof, vol. 8, pp. 77–99.

Durston, G. (2011). Evidence: Text & materials. Oxford: Oxford University Press.

Fisher, T (2007) ‘The Boundaries of Plea Bargaining: Negotiating the Standard of Proof’, Journal of Criminal and Criminology, vol. 97, no. 4, pp. 943-1008

Gillies, J (1986)`Opinion Evidence, 60 ALJ 597.

Glover, R., & Murphy, P. (2013). Murphy on evidence. Oxford, UK : Oxford University Pres

Gordon, T F & Walton, D (2010) Proof Burdens and Standards [Online] Available at: < http://www.dougwalton.ca/papers%20in%20pdf/09PrfStands.pdf/> (Accessed 29 July 2016).

Henry, E & Whitema, H (2007) Recent Developments in the Use of Experts and the Admissibility Of Expert Evidence — An International Perspective [Online] Available at: < http://www.legislation.gov.uk/ukpga/1971/38/section/5> (Accessed 29 July 2016).

House of Commons (2011) Expert Evidence in Criminal Proceedings in England and Wales [Online] Available at: < https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/229043/0829.pdf> (Accessed 29 July 2016).

House of Lords (2002) Judgments – Regina v. Lambert (On Appeal From The Court of Appeal (Criminal Division) [Online] Available at: < http://www.publications.parliament.uk/pa/ld200102/ldjudgmt/jd010705/regina-1.htm> (Accessed 29 July 2016).

Lumpkin, J A (1987) ‘The Standard of Proof Necessary to Establish that a Defendant has Materially Breached a Plea Agreement, Fordham Law Review, vol. 55, no. 6, pp. 1059-1086

National Archives (n.d) Misuse of Drugs Act 1971[Online] Available at: < http://www.qebholliswhiteman.co.uk/articles-pdfs/expert-evidence.pdf> (Accessed 29 July 2016).

Spencer, M., & Spencer, J. (2007). Evidence. Oxford: Oxford University Press.

Stone, R. (2014). Textbook on civil liberties and human rights, Oxford : Oxford University Press Bottom of Form

The Carloway Review (2011a) Collaboration [Online] Available at: < http://www.gov.scot/About/Review/CarlowayReview/CRconsSuffOfEvid> (Accessed 29 July 2016).

The Carloway Review (2011b)  Sufficiency of Evidence [Online] Available at: < http://www.gov.scot/About/Review/CarlowayReview/Corroboration > (Accessed 29 July 2016).

The Law Commission (1995) Evidence: Report on Hearsay Evidence in Criminal Proceedings [Online] Available at: < http://www.scotlawcom.gov.uk/files/9412/7989/7413/rep149.pdf> (Accessed 29 July 2016).

The Law Commission (2015) The Admissibility of Expert Evidence in Criminal Proceedings in England and Wales: A New Approach to the Determination of Evidentiary Reliability [Online] Available at: < http://www.lawcom.gov.uk/wp-content/uploads/2015/03/cp190_Expert_Evidence_Consultation.pdf> (Accessed 29 July 2016).

Tadros, V. & Tierney, S. (2004) ‘The Presumption of Innocence and the Human Rights Act’ 67 MLR 402.