Analysis of Dennis Law of Evidence

Analysis of Dennis Law of Evidence The argument by Professor Ian Dennis that a decision may be factually correct and yet lack the moral justification usually served by a verdict is based on the existence of convictions reached despite apparent procedural irregularities in obtaining the evidence. Three major areas where this occurs are in the areas of confessions, illegally or improperly obtained evidence and silence of the accused as evidence. This represents a battle to maintain the crux of criminal law found in the presumption of innocence and the maxim, â€Å"It is better to let a hundred guilty men go free than hang one innocent man†. On the other hand, it may be thought that to exclude such improper evidence would, in some cases, result in injustice such as the acquittal of the guilty.[1] As a result, English law contains some compromises in some of these areas. This is in order to satisfy the two extreme views. Three cases are analyzed below in order to determine the truth or not of Professor Dennis’ argument. Generally, confessions are admissible in evidence provided they are made voluntarily. However, judges may exercise discretion to exclude confessions obtained by improper or unfair means or in breach of the Judges’ Rules or on grounds that its prejudicial effect outweighed its probative value.[2] These principles are also found in Section 76 of the Police and Criminal Evidence Act 1984 (PACE Act). Professor Dennis’ argument lacks support in the case of properly admitted confessions. In most cases, in order to maintain fairness and morality towards the accused, judges exclude confessions once it is shown that the rules were breached.[3] His argument is upheld only where a confession is admitted and applied to ground a conviction despite being obtained in unfair circumstances. It would then appear that the usual practice does not support the argument above but the exceptional case illustrates the point of Professor Dennis’ statement.[4] In R v. Fulling,[5] the appellant was convicted of obtaining property by deception. Her conviction was grounded on a confession which she claimed to have made under oppressive circumstances. While in custody the appellant was interviewed twice on the first day and once on the following day when she made a confession which she later claimed was the result of being told by an officer that her lover had been having an affair with the woman in the next cell for the last three years. She said that these revelations so distressed her that she could not stand being in the cells any longer and made a statement in the hope that she would be released. The appeal was dismissed on the ground that the confession was admissible since it was not oppressive (characterized by impropriety) under S. 76(2)(a) of the PACE Act or rendered unreliable under S. 76(2)(b). The degree of oppression and impropriety sufficient to exclude the confession was determined by the court to be absent. The decision in this case was factually correct because earlier evidence given by a witness was corroborated by Fuller’s confession. However, if the moral justification for founding conviction were that the degree of impropriety was lower than required, then the verdict would be regarded as morally weak.[6] ILLEGALLY OR IMPROPERLY OBTAINED EVIDENCE – R V. SANG (1980) AC 402 The general position of the law is that evidence, which is relevant and otherwise admissible, should not be excluded only because of the manner in which it was obtained.[7] The judge may exclude such evidence only as a matter of discretion. Therefore, the use of such evidence to found a conviction, although factually correct, can be seen as lacking in moral authority where improper means are alleged. This common law position has been influenced by Section 78 of the Police and Criminal Evidence Act 1984 which grants the court discretion to refuse to allow evidence which would have an adverse effect on the fairness of the proceedings because of the circumstances in which it was obtained. In R v. Sang[8] the appellant sought the exclusion of the evidence upon which the accused was later convicted because the accused had been induced to commit the offence by an agent provocateur. It was held on appeal that the court is not concerned with how the evidence was obtained provided it was relevant and admissible. The reasoning was based on Kuruma Son of Kaniu v. R [9] that remedies may be sought in civil law for illegality but the judge at trial is only concerned with how such unfairly obtained evidence is used by the prosecution and not how it was obtained. This case strongly illustrates how moral legitimacy of a guilty verdict can be compromised where the court overlooks its power of discretion and the unfair circumstances in which the accused is found, choosing instead to apply the facts heedlessly. The accused’ right to silence formerly entitled the accused not to have inferences drawn from his silence as evidence of his guilt.[10] This right has been curtailed by Section 35 of the Criminal Justice and Public Order Act 1994 which provides in subsections (2) and (3) that inferences may be drawn from the failure of the accused to give evidence or his refusal, without good cause, to answer any question. This position was upheld in the case of R v. Cowan ors.[11] although Cowan’s appeal was allowed only on the ground that such inference should not be the sole ground for conviction.[12] Thus in this case the court rejected the argument that adverse inference under S. 35 should be restricted to exceptional cases where there is no innocent explanation for the silence. Consequently, the right to silence when exercised by the accused leaves him in danger of being convicted based on the inference drawn by the jury about his silence and other available circumstantial eviden ce. Innocent reasons or good reasons for silence outside those stipulated by the law are insufficient to protect an accused person.[13] The accused must fit the exceptions in order to be excluded where the court has satisfied itself that other requirements[14] have been met. The use of this kind of evidence strongly supports Professor Dennis’ argument because the decision may be factually correct when other circumstantial evidence is added but the moral justification for finding a person guilty because of his silence is weak. In conclusion, as Professor Dennis notes, apparently reliable evidence may need to be excluded altogether if it risks impairing the moral and expressive authority of the verdict.[15] Trials may be fact-finding missions to ascertain the truth but public interest demands total legitimacy both in accuracy of facts and moral authority (based on respect in the procedure and treatment of the defendant). These rights are also recognized in the provisions of the European Convention on Human Rights and the Human Rights Act 1998 based on the maxim of fairness, â€Å"Justice must not only be done but must be seen to be done†. Heydon J. D. and Ockelton M., 1996. Evidence: Cases and Materials, 4th ed., Butterworths London Huxley P. and O’Connell M., 2004. Blackstone’s Statutes on Evidence, 8th ed., Oxford University Press London Keane A., 2006. The Modern Law of Evidence, 6th ed., Oxford University Press London The Common Law Library, 2005. Phipson on Evidence, Sweet Maxwell London LexisNexis Butterworth, All England Reports http://lexisnexis.com/uk/ Dennis I. H., 2002. The Law of Evidence, 2nd ed., Sweet Maxwell London 1 Footnotes [1] Keane A., 2006. The Modern Law of Evidence, Oxford. p.55 [2] ibid. p.380; R v. Sang (1980) AC 402; R v. May (1952) 36 Cr. App. R. 91, 93 per Lord Goddard CJ [3] This could be upholding the moral element, in other words. [4] A strong illustration is the case of R v. Mushtaq (2005) 3 All ER 885 where the trial judge was held to have breached the defendant’s privilege when he misdirected the jury by stating that a confession had probative weight so long as they thought it was true even if it was obtained by oppression. The appeal was dismissed though because the defence never proved the oppression. [5] supra [6] This can also be seen in R v. Goldenberg (1988) 88 Cr App Rep 285, CA where the admission of a confession made in the hope of getting bail was found correct despite the accused person’s state of mind at the time. See also Heydon and Ockelton, 1996. Evidence: Cases and Materials. p.159 [7] Common Law rule in Leatham (1861) 8 Cox C. C. 498, 501 [8] supra [9] (1955) AC 197, PC [10] S. 1 of the Criminal Evidence Act 1898; R v. Bathurst (1968) 2 QB 99, CA and R v. Taylor (1993) Crim. LR 223, CA [11] supra [12] This rule is in accordance with S. 38 (3) of the 1994 Act [13] R v. Cowan (supra); R v. Napper (1996) Crim. L. R. 591; R v. Becouarn (2003) EWCA Crim. 1154 [14] Such as a prima facie case by the prosecution (or that the accused has a case to answer) , directions to the jury about drawing adverse inference etc. [15] 2002, The Law of Evidence. p.45

The Awakening :: essays research papers

-Compare/contrast Edna's love for Leonce, Robert, and Arobin. Throughout the novel, it became increasingly obvious of Edna's difficulty in the field of true love. She had initially found what she knew wasn't, followed by infatuation, and finally what she was sure was. Several different forms of love were present, yet each (including the final) proved to be unsuccessful.   Ã‚  Ã‚  Ã‚  Ã‚  Edna never felt comfortable in her relationship with Leonce. She had managed to assume the typical role of a female and never stray from her responsibilities that come with that. She had always done what was expected of her from her husband. However, this did not initiate solely with her husbands wants. She had always followed through with doing exactly what she has been expected to do; including finding a husband in someone that she was not in love with. He found more ownership in her, rather than equality in which she was longing for. She was never satisfying in the relationship that she had with him. The love that she had for him was merely present on the surface. It could best be described as a life that she was confined to living rather than the life that she had always yearned for. With the winds of change came a person that she found contrasting to her current life. This man was Alcee Arobin. His role in her life was not true love either. He merely introduced the taste of tangible love to a searching body. This love was not the kind that Edna was longing for either. Arobin's role was to introduce her to the importance of sex. This was something that was foreign between her and her husband. She felt more like an individual when she was enjoying the act of love making, rather than acting on account of someone else's pleasure. This affair was important to her becoming an individual. The entire pre-Robert time was in preparation to finding him. Arobin's importance was evident with Edna's actions immediately following this affair. She decided to close her house up and move to a smaller, less desirable one. The fact that it is less desirable is a key factor. This makes it impossible to assume that she was moving out to live a better material life. She decided that s he would sacrifice her good life and possessions in order to fully acquire individualism. Edna's true love was found in a person that appeared to have the most character.

How to Shoot a Free Throw

Shooting free throws can be the easiest way to score points and lead your team to victory, or it can be stressful and embarrassing. Bad free throw shooting can even cost your team the game! The most important way to make free throws is shooting consistently. To obtain consistency, a player must always practice his form. By doing so, the free throw shooter will gain confidence and will see an increase in the number of free throws he can make. The free throw form should be the same form used for shooting jump shots. 1.First, Position your feet shoulder-width apart. The main foot should be positioned right behind the free throw line, while the other foot is positioned a couple of inches behind the free throw line. The main foot matches your handedness. If you are right-handed, then your right foot will be dominant at the free throw line. 2. Secondly, your legs should be slightly bent at the knee. 3. Thirdly, your dominant hand should be used to cradle the ball from underneath, with the other hand positioned on the side of the basketball for guidance and stability. 4.Fourthly, the ball should be positioned at about chest height, beneath the chin. 5. Fifthly, your dominant arm should form a C shape, with the ball perched atop the hand. 6. Next, the release motion should be smooth, as jerkiness will lead to inconsistent delivery from shot to shot. Your goal is to have the same movement every time you shoot a free throw. The release should flow from underneath the chin upwards and outwards. 7. Also, the wrist of your hand supporting the basketball should be snapped forward, applying backspin to the basketball as it is released.This should look as if the shooter is reaching above and in front of her head to steal cookies out of a cookie jar. 8. Finally, the shooter should find a routine that is comfortable for he/she and practice that routine so that it becomes second-nature. Only then can he/she obtain consistent success from the free-throw line. Remember that this is a classic free throw form. If your form is different, yet you can make a shot without difficulty and yield success each time, remember the old saying: if it isn’t broke, don't fix it! Good luck and remember to practice!

Dickenss Views of the French Revolution Essay - 680 Words

Sow the same seed of rapacious license and oppression ever again, and it will surely yield the same fruit according to its kind. (385) This quote from Charles Dickens A Tale of Two Cities illustrates Dickens bias for the revolting class during the French Revolution. In the book, however, Dickens does vilify the violence that is inherent in this Revolution. He also puts his own slant on the way the Revolution occurs and who leads it. This bias could be attributed to who he was and who his audience was. Because he is an Englishman and the novel is written primarily for other Englishmen, there is a clear bias in the way he presents the classes (through a variety of characters that exemplify each Fcaste) and their actions in the novel†¦show more content†¦This could be due to the fact that he is trying to show the magnitude of the horrors committed by the ruling class over centuries of time in a book spanning less than twenty years. Another possible reason for this oversight co uld be the aforementioned biases he had being British. He likely loathed the French elite of the time period because they did the opposite of what the British had done and thus stifled their countries growth. He might also have a bias against all nobility because of his childhood as a pauper. Either way the illustration of the French nobility is not that far off from the truth. The middle class, on the other hand, is presented significantly different from that of the Revolution. The middle class during the Revolution had mainly themselves in mind and led much of the rebellion that took place. Dickens almost completely neglects the harsh rule of the middle class during the Reign of Terror, and instead places the blame on blood-thirsty mobs calling for the Guillotine. He also neglects the fact that the Revolution was largely led by the middle class. The three primary characters from the middle class, Dr. Manette, Lucie Manette, and Sydney Carton, have nearly nothing to do with the Revolution; all of which, by the end of the novel, are presented in an endearing light. Dr. Manette is a man who had everything stripped from him by the nobility, yet he never wishes to exact revenge on their cruelty untilShow MoreRelated A Tale of Four Novels1596 Words   |  7 Pagesby Dickens that outlines the events of the French Revolution through the story of a French aristoc rat named Charles Darnay. Darnay is a Parisian aristocrat that renounces his aristocracy in order to pursue a new life in London where he falls in love with a woman by the name of Lucie Manette after escaping prosecution for treason due to the help of barrister named Sydney Carton. 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