Scottish criminal law -Part 2

Real Evidence

Real evidence is related to a physical object that can be seen, felt, or touched.  According to Duff (2004), real evidence is a form of a material brought by the prosecutor before the court in an effort to show its existence. Real evidence is used to support a claim in a court of law and proof that a crime was carried out by the accused. The application of real evidence is cited in Lawrie v Muir 1950 JC whereby Lord Cooper cited the need for real evidence to ensure that justice is provided (Duff 2004).  Based on the statement recorded by Vernon, a police officer, the roll of adhesive tape that is Crown Label No 7, which is real evidence, was obtained in a fair manner, and there was no incidence of prejudice to the accused. In addition, a search warrant was obtained a warrant from the Sheriff, empowering Vernon to search the dwelling house (Tony Arnott’s house) at 10 Dowanhill Road, Hillhead, and Glasgow for controlled drugs.  Thus, the roll of adhesive tape that is Crown Label No 7 is admissible in the court because it was properly obtained without any form of irregularities.

The other real evidence is the brown package and the issue relates to establishing the owner of the package. The package contained cocaine, while a membership card and key belonged to Mr. Arnott. Based on the testimony, Mr. Arnott rented a locker at Eastern Baths on 13 January 2016 at A1 and was issued with a key. He later came back with a brown parcel and put it in the locker. However, since Mr. Arnott claims to have lost his keys and membership card, it is hard to establish if the brown package belonged to him. According to the confession made by Peter Dunn when interviewed by Bell, he stated that he had been paid to collect a package but he did  not know who it belonged to or what was in it. Thus, it was hard to establish the owner of the brown paper package and its content.

Witnesses Competency and Compellability

            The law under the Scottish Government (2014) stipulates that any person with information related a crime may be regarded and used as a witness by the prosecution or the defence. A competent witness has the mental capability to testify, and compellable witness can attend the court to provide evidence in a criminal of civil case. Notably, all the competent witnesses can be regarded as compellable. With regard to the evidence provided, two of the witnesses, Dunn and Tony, are not competent because they have a case to answer in the court of law. In accordance with S53(1) YJCEA 1999, an accused person is not deemed competent to give evidence for the prosecution (Crown Prosecution Service, n.d;  Marshall Cavendish Corporation 2004). The other problem related to competency and compellability is that the judge or magistrate has not decided if the eight witnesses are competent as required under law. Thus, even witnesses are in their right state of mind, the court has the final determination as required and it can be explained in  R v B [2010] EWCA Crim 4 (Crown Prosecution Service, n.d).

(b) Burdens and Standards of Proof relevant to each charge, Corroboration and  Sufficiency(for each charge), Plea Bargaining,  The likely response of the defence to the charges,  Likelihood of conviction

Burdens and Standards of Proof

Tony Arnott and Peter Dunn’s case is based on  unlawfully supply of drugs to another or others 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. According to the Misuse of Drugs Act 1971, it is an offence for anyone to be in possession of controlled drug. S4 (b) stipulates that for any proceedings for a person accused with controlled drug, it is a defence to prove:

“that, knowing or suspecting it to be a controlled drug, he took possession of it for the purpose of delivering it into the custody of a person lawfully entitled to take custody of it and that as soon as possible after taking possession of it he took all such steps as were reasonably open to him to deliver it into the custody of such a person” (National Archives n.d.).

Thus, in this case, both Tony Arnott and Peter Dunn were indicted for unlawfully supply of drugs to another or others a controlled drug, which was cocaine and there is need for burden and standards of proof for this charge which is in accordance to s4 (b).

The burden of proof is also referred to as the ‘onus of proof’. It is a legal obligation to the effect that a party must satisfy the facts based on a specified standard of proof (Cooper 2016; Dennis, 2005). On the other hand, standard of proof focuses on the level of standard that is needed to determine the burden of proof based on the facts given (Durston, 2011; Gordon & Walton, 2010). Based on the case there is evidential burden for the defence and the prosecution.  As noted by Spencer and Spencer (2007) the prosecution has the burden of proof to amass and present the evidence based on the standard of proof to show that Dunn and Tony were guilt of the possession and supply of controlled drugs. According to Article 6(2) of the Convention, any person who has been charged with a criminal offence is by law presumed innocent until proved guilty (National Archives n.d.). The most significant question is related to the statutory provision that transfers the burden of proof to the accused can be companionable with that presumption. The provisions of sections 28(2) as well as that 28(3)(b)(i) of the 1971 Act are also examined with regard to burden of proof to establish whether the accused are to be charged of the charges levelled against them (Glover & Murphy, 2003). This can be related to the Salmon v H M Advocate, 1999 JC 67, 78E case which is related to drugs and the Misuse of Drugs Act 1971. The Lord Justice General (Rodger) stated that after a carefully reviewing R v McNamara (1988) 87 Cr App R 246, the prosecution have a burden proof that the accused (Dunn) was aware of the existence of drugs in the bag, especially controlled drug (Molan 2005).

Thus,  until the prosecution proofed that Dunn or Tony were aware of the contents found in the brown paper package or the suspects had a reason to know if the bag contained the substance which was a controlled drug (section 28(2)), they are innocent. For the prosecution to claim that both accused were in supply of controlled drugs, they have to establish all probabilities. In this case, there is a breach of the presumption of innocence until proven guilty because there is a legal burden of proof by the defendant in regard to the defence as stipulated under s.28 of the Misuse of Drugs Act 1971 and s.5(3) of The Misuse of Drugs Act 1971 (Tadros. & Tierney, 2004). Since the evidence suggests that Dunn was not aware the package consisted of controlled drugs based on his interview statement and witness statement Horsburgh James, then evidential burden is established (Crown Prosecution Service 2013).

In R v Lambert [2002] 2 AC 545, it was found that the defendant was faced an evidential burden in reference to calling evidence that did not have the requisite belief, knowledge, or suspicion(Crown Prosecution Service 2013). Moreover it is up to the prosecution to prove to the court based on the available evidence that Dunn lacked suspicion, knowledge, and belief. According to the Defenses in S28 of the Act, the defense of the accused is put into task to establish that the accused suspected, believed, or had a reason to suspect if the substance in the brown package was a controlled drug. In this accord, the Crown Prosecution Service (2013) notes that the law requires the prosecutors to have the facts on:

• The credibility of the account given in the interview of both Tony and Dunn in order to establish the evidential burden on the defendant.
• Nature of any packaging (which in this case was well-wrapped with adhesive paper used for wrapping cocaine.
• The circumstances under which the drug was possessed or acquired, as well as its concealment.
• All the observations made by the arresting police before the defendant was stopped and arrested.
• Content of the exhibits such as the package, the membership card, and the key to A1
• Any form of bad character that has been recorded in the past and in an admissible manner.

The prosecution can base their argument on Regina v. Lambert, whereby the Court of Appeal held that it is not necessary for a defendant to have knowledge on possession of controlled drugs for one to be guilt (House of Lords 2002). Based on the collaborative evidence from the witness statements and interviews, the prosecution can support their arguments that Tony was the supplier of the controlled drugs, while Dunn was subcontracted to transfer them to a particular destination. In reflection to Salmon v H M Advocate, 1999 JC 67, it can be noted that subsection (2) of section 28 is related with state of knowledge of the accused and the Crown has the burden of prove the knowledge of the drug. The defense can use the position of McNamara to make its argument.

Corroboration and Sufficiency

The Carloway Review (2011b) has noted that collaboration is based on collaborative evidence and it is highly acceptable in Scotland. The rationale for collaboration is to reduce the risk of convicting an innocent person because the testimony of more than one competent and compellable witness is used. The direct or indirect evidence ought to be sufficient enough.  The need for corroboration is well stated in Fox v HM Advocate where it was noted that corroborative evidence confirms or supports the direct evidence of a witness (Fisher 2007). The law is based on the presupposition that confirmation of the direct evidence is needed and this is supported by the use of other circumstantial evidence or independent direct. Sufficiency of evidence has been regarded as the evidence needed for a conviction (The Carloway Review 2011b). Sufficiency allows the evidence to be more truthful or reliable. In the cases, there is sufficient evidence for a conviction on both Dunn and Tony for a criminal case related to possession and supply of drugs.

In the cases, there are collaborative eye witness and circumstantial evidences that can be used. For instance, Professor Brian Findlater established that the tape used to secure the parcel which is Crown Label 4 and the part roll found in Tony Arnott’s house which is Crown Label 7 is Grizlee Tape. Vernon confirmed that they found the roll of adhesive tape that is Crown Label No 7 at Tony’s apartment.  Also, Horsburgh noted that Dunn confessed of having been in possession of controlled drugs, and this collaborates the witness statement given by Bell Lachalan who noted that Dunn was apprehended while he was in possession of a brown package, which was later established to contain cocaine, which is a controlled drug. However, as in Moody v. State, 232 Ga. App. 499, 503 (2) (1998), the jury is the one to decide if the evidence given by the prosecutor as corroboration is sufficient to confirm the conviction of Dunn and Tony.

Plea Bargaining

Plea bargaining is one of the most commonly used method of criminal case disposition in Scotland.  Fisher (2007) states that every person is given the chance to benefit from a plea bargain. For example, defendants are expected to bargain so as to receive lenient treatment that they can be accorded by the court. On the other hand, the prosecutor bargains to ensure effective conviction in a criminal case. In the case, the prosecutor can enter into an agreement with Dunn to testify against Tony and get a lesser charge, hence plea bargaining (Lumpkin, 1987). In addition, the court can promise the defendant (Dunn) that unless he had breached the bargain his interests must be maintained.

Likelihood of conviction

The Carloway Review (2011a) states that for an individual to be convicted in a court of law, for a crime there must be:

• At least one source of evidence, such as the testimony of the eight witness, that provides a description of the crime to the Crown and to the accused person and;
• An extra source of evidence, such as the testimony of another witness, which is required to support or confirm the first source in regard the crucial facts provided in the court of the law.
• The sources can be indirect (circumstantial) evidence or direct (eye witness) evidence.

Conclusion

From the requirements above, there is a likelihood of conviction for both Tony Arnott and Peter Dunn case. This is because the three requirements needed for an individual to be convicted are all present. For instance, Dunn was found in possession of an unlawfully supply of a controlled drug (cocaine), which is a class A drug specified in Part 1 of Schedule 2 to the Misuse of Drugs Act 1971, and it contravenes S.4(3)(b) of said Act. There were both circumstantial and eye witness evidence in the case. For instance, there are eye witnesses and circumstantial evidence, including a package that had cocaine, collaborative evidence from specialized expert, and eye witness. For example, Rosa Innes, Bronwyn Connelly, Brian Findlater, and Bronwyn Connelly evidence collaborate with the facts in admitted in evidence.

On the other hand, Tony can be convicted because the cocaine was stored in a locker (A1), which he had hired and had a membership card. The witness statement provided by Sandra Mitchell indicate that Fred Fredricks and Tony were at the Terant’s Bar, Byres Road and a key was left which was one of the lockers. This is collaborated with the witness statement given by Fred when he was interviewed by DC Lachlan Bell.  Also, witness statement by Horsburgh indicated that Peter Dunn was heard saying that he was shifting some cash, but it looked like they were drugs.

After establishing the facts above, the prosecution can proceed and prosecute both Dunn and Tony for the charge of supplying controlled drugs, which is contrary to 4(3)(b), of the Misuse of Drugs Act 1971.

Reference List

Crown Prosecution Service (2014) Hearsay [Online] Available at: < http://www.cps.gov.uk/legal/h_to_k/hearsay/> (Accessed 29 July 2016).

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.