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The Trial: Adversarial Characteristics and Responsibilities; Pre-trial and Trial Procedures

Keith Smith

in The Oxford History of the Laws of England: Volume XIII: 1820–1914 Fields of Development

This chapter shows that throughout the 19th century, significant changes occurred in the roles and personnel of law enforcement, along with a drip feed of ameliorative state measures. Such ... More

This chapter shows that throughout the 19th century, significant changes occurred in the roles and personnel of law enforcement, along with a drip feed of ameliorative state measures. Such developments took place against a background of several decades of the steady push of reformers, successfully resisted by defenders of the status quo. Aside from a victim's personal inclination and means, the likelihood of prosecution turned substantially on the attitudes and practices of local magistrates and constabulary. The period also saw fundamental changes in criminal trials on indictment, both in respect of the roles of the dramatis personae and the rules which regulated them. This was true of the judge, prosecution, and most especially the defendant. It was a process of change, in large measure wrought by the relatively small but slowly swelling ranks of lawyers participating in trials from the early 18th century, initially almost exclusively acting for the prosecution.Less

The Law of Criminal Evidence

John H. Langbein

in The Origins of Adversary Criminal Trial

In addition to admitting defense counsel, English judges undertook a further effort to safeguard against the mounting dangers of 18th-century prosecutorial practice, by creating the law of criminal ... More

In addition to admitting defense counsel, English judges undertook a further effort to safeguard against the mounting dangers of 18th-century prosecutorial practice, by creating the law of criminal evidence. Among the rules of evidence that were developed was the corroboration rule for accomplice testimony, the confession rule excluding suspect pretrial confessions, and the hearsay rule. This chapter examines the emergence of the law of criminal evidence based largely on a set of historical sources called the Old Bailey Sessions Papers, which came to light only in recent decades. These pamphlet accounts depict trials proceedings at the main London criminal court, the Old Bailey, from the 1670s into the 1910s.Less

Groundwork for a Jurisprudence of Criminal Procedure

Paul Roberts

in Philosophical Foundations of Criminal Law

This chapter explores four rival perspectives or approaches to conceptualizing criminal procedure and evidence designated: doctrinal-conceptualist; epistemological; institutional; and normative. ... More

This chapter explores four rival perspectives or approaches to conceptualizing criminal procedure and evidence designated: doctrinal-conceptualist; epistemological; institutional; and normative. These four ideal-types are intended to represent core strands in contemporary common law scholarship, viewed from a British perspective. This chapter, in other words is largely an exercise in sympathetic reconstruction of existing theory and practice rather than a building from the ground up of conformity with an ideal theoretical blueprint. Any purported contrast between ‘procedure’ and ‘evidence’ is slippery at the best of times; and readers may need temporarily to suspend belief in their own jurisdiction's conceptual, disciplinary, and pedagogic taxonomies.Less

Adultery, Sex Offenses, and the Criminal Evidence Act of 1898

Wendie Ellen Schneider

in Engines of Truth: Producing Veracity in the Victorian Courtroom

Nearly fifty years passed between the reform allowing parties to testify in civil cases and the Criminal Evidence Act of 1898 that allowed defendants to testify in criminal cases. This delay was a ... More

Nearly fifty years passed between the reform allowing parties to testify in civil cases and the Criminal Evidence Act of 1898 that allowed defendants to testify in criminal cases. This delay was a byproduct of the reform and experimentation that characterized the Victorian legal system’s approach to the possibility of witness deceit. The Act also marks the triumph of cross-examination as the guarantor of veracity in the courtroom. Several highly publicized in which the respectable defendants were accused of scandalous crimes helped drive the Act’s passage.Less

Compelled Self-incrimination and Incriminating Silence

Peter Mirfield

in Silence, Confessions and Improperly Obtained Evidence

This chapter deals with the evidential use of incriminating material at a criminal trial. Where the law provides for the examination of the citizen under the compulsion of punishment for failure to ... More

This chapter deals with the evidential use of incriminating material at a criminal trial. Where the law provides for the examination of the citizen under the compulsion of punishment for failure to answer satisfactorily, it is plain that there is every chance of incriminating statements being made. Equally, the law does allow for forms of compulsory gathering of non-confession evidence by the police or by others acting in an investigatory role. There is considerable interest in the history of the ‘privilege against self-incrimination’ or the ‘right to silence’, particularly in the United States. This chapter also examines the compulsory examination of suspects and others, exclusion under the evidential provisions of the Police and Criminal Evidence Act 1984, compulsory acquisitions of non-confession evidence, evidential use of adverse inferences, exclusion of unfair evidence of silence, the common law relating to implied admissions, and evidential effects of pre-trial non-disclosure or defective disclosure.Less

Alternative Approaches

Peter Mirfield

in Silence, Confessions and Improperly Obtained Evidence

The Police and Criminal Evidence Act 1984 and the Criminal Justice and Public Order Act 1994 have radically transformed English law as it relates to the evidential effects of pre-trial investigation ... More

The Police and Criminal Evidence Act 1984 and the Criminal Justice and Public Order Act 1994 have radically transformed English law as it relates to the evidential effects of pre-trial investigation of offences by the police and analogous agencies. In the United States, during the first part of the 1960s, a federal constitutional dimension to the treatment of unlawfully obtained evidence and confession evidence was authoritatively announced. During the last half-century, the Scottish courts have wavered between a strict view of the inadmissibility of confessions and a flexible one. In Australia and Canada, the courts have developed a jurisprudence for exclusion of both confession and non-confession evidence. In England itself, it has been suggested that confession evidence ought to be corroborated or, in some other way, supported by other evidence before reliance can properly be placed upon it. Alternatively, judges ought to be required to warn juries of the dangers of unreliability which sometimes attend confessions and advised of how best to deal with those dangers.Less

Discretionary Exclusion of Confessions and Other Evidence—Specific Cases

Peter Mirfield

in Silence, Confessions and Improperly Obtained Evidence

This chapter deals with exclusionary discretion of confessions and other evidence. It examines the authorities concerned with exclusion under section 78(1) of the Police and Criminal Evidence Act ... More

This chapter deals with exclusionary discretion of confessions and other evidence. It examines the authorities concerned with exclusion under section 78(1) of the Police and Criminal Evidence Act 1984 according to five different categories. First, it considers the impact of the various provisions of Codes C and E which are concerned with ensuring the accuracy of the record made by the police of their questioning of and other discussions with the accused. Next, it looks at the treatment by courts of some of the various other ‘rights’ granted to suspects by Code C and in particular their treatment of the right to legal advice. The chapter then discusses the provisions of Code D in respect of formal identification procedures used by the police during the pre-trial period. It also focuses on the developing law, outside the terms of any of the codes, dealing with trickery and entrapment. Finally, it analyses the effect upon the power to exclude of the unlawfulness of a search, of whatever kind, carried out by the police.Less

Procedural Issues and Exclusion

Peter Mirfield

in Silence, Confessions and Improperly Obtained Evidence

Where the defence seeks to have excluded at trial evidence which was acquired in the course of investigation of an offence, whether this be by virtue of the exclusionary rule, for confessions, or the ... More

Where the defence seeks to have excluded at trial evidence which was acquired in the course of investigation of an offence, whether this be by virtue of the exclusionary rule, for confessions, or the exclusionary discretion, for both confessions and non-confession evidence, various important, procedural issues are capable of arising. Three provisions need to be kept in mind. First, there is section 76 of the Police and Criminal Evidence Act 1984, in respect of the confessions rule. Secondly, section 75 of that Act grants the judge discretion to exclude unfair evidence. Thirdly, section 82(3) preserves the common law discretion to exclude such evidence. This chapter examines the developed position at common law, including the admissibility of confession evidence, arguments about discretion regarding confession evidence and non-confession evidence, and exclusion issues. It also discusses burden and standard of proof.Less

Confessions—Preliminary Issues

Peter Mirfield

in Silence, Confessions and Improperly Obtained Evidence

This chapter discusses the core exclusionary rule for confessions. In Section 76(2) of the Police and Criminal Evidence Act 1984, there are two heads to the exclusionary rule: an oppression head and ... More

This chapter discusses the core exclusionary rule for confessions. In Section 76(2) of the Police and Criminal Evidence Act 1984, there are two heads to the exclusionary rule: an oppression head and an unreliability head. For purposes of exposition here, the word ‘voluntariness’ and the expression ‘voluntariness rule’ will sometimes be used to comprehend the content of both heads. It is the judicial function to decide all questions of admissibility relating to a confession, the jury function to determine whether or not the confession is true. Both a plea of guilty and an informal admission made in earlier judicial proceedings are, prima facie, admissible in later proceedings. With regard to all judicial confessions, the voluntariness rule in section 76(2) is potentially applicable. This chapter also considers admissions that fall short of full confessions, exculpatory statements, conduct, confessions of non-accused third parties, confessions of co-accused exculpating the accused, confessions of co-accused inculpating the accused, and questioning of the accused on the voir dire.Less

Vulnerable Suspects

Peter Mirfield

in Silence, Confessions and Improperly Obtained Evidence

There are many causes of special vulnerability which may affect particular suspects who are interviewed by the police. For example, special problems clearly arise in the case of blind, illiterate, or ... More

There are many causes of special vulnerability which may affect particular suspects who are interviewed by the police. For example, special problems clearly arise in the case of blind, illiterate, or deaf suspects, as well as with those who do not understand English well or at all. Equally, it is apparent that the police often have to grapple with the issue of what steps should be taken as regards persons under the influence of drink or drugs. Three conditions which lead to vulnerability have proved to be especially prominent not only in the authorities but also in the commentaries: juvenility, mental handicap, and mental disorder. This chapter sets out first what is meant by the three terms, ‘juvenile’, ‘mental handicap’, and ‘mental disorder’, these being the key terms so far as the Police anti Criminal Evidence Act 1984 and Code C are concerned. This chapter then examines the notion of the appropriate adult and the admissibility of evidence to establish mental disorder or mental handicap.Less

A Revolution in Forensic Science?

in Truth Machine: The Contentious History of DNA Fingerprinting

This introductory chapter discusses the theme of this book, which is about the scientific revolution in forensic science. The book traces how forensic DNA testing attained such extraordinary status, ... More

This introductory chapter discusses the theme of this book, which is about the scientific revolution in forensic science. The book traces how forensic DNA testing attained such extraordinary status, analyzes some of its implications for criminal justice, and considers how the attribution of scientific status to DNA evidence seems to have lifted it above and beyond the contestable status of other forms of expert and nonexpert evidence. It examines courtroom dialogues and judicial summaries of trials and admissibility hearings in which DNA profile evidence was challenged, and argues that the credibility of DNA fingerprinting and its occasional vulnerability to attack arises from institutional practices that support or undermine the credibility of less glamorous forms of criminal evidence.Less

Confessions—The Exclusionary Rule

Peter Mirfield

in Silence, Confessions and Improperly Obtained Evidence

Before discussing the statutory exclusionary rule for confessions, to be found in section 76(2) of the Police and Criminal Evidence Act 1984, this chapter briefly examines what may be called the ... More

Before discussing the statutory exclusionary rule for confessions, to be found in section 76(2) of the Police and Criminal Evidence Act 1984, this chapter briefly examines what may be called the mature exclusionary rule at common law. Section 76(8) of the 1984 Act states that ‘oppression’ includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture). Sometimes there may be a breach of one of the code provisions, but without it being appropriate to say that there was police impropriety or misconduct. The criterion of unreliability of the challenged confession is defined by section 76(2) (b) not in terms of its actual probative value. In discussing the substantive heads of exclusion, reference has often been made to confessions having been ‘obtained’ or ‘caused’ by oppression, or having been made ‘in consequence of’ or ‘as a result of’ things said or done. The problem of causation in relation to the two heads of exclusion warrants, then, separate discussion.Less

Investigatory Powers

Peter Alldridge

in Criminal Justice and Taxation

The chapter considers to what extent tax investigations are like, and how they are unlike, police investigations. It examines the powers available to HMRC in the investigation of evasion offences. ... More

The chapter considers to what extent tax investigations are like, and how they are unlike, police investigations. It examines the powers available to HMRC in the investigation of evasion offences. The bifurcated regime operated clearly in the enforcement activities of Customs and Excise and the Inland Revenue from the earliest times. At the time (early 1980s) of the Keith Committee, before the Police and Criminal Evidence Act 1984 (PACE) and before the significance of the civil/criminal distinction (in terms of the European Convention on Human Rights) was recognized in English law, police powers were ill-defined and did not allow for a clear comparison to be made between the sorts of rules that might circumscribe the investigations if the objectives were solely (a) to investigate crime or (b) to establish the tax position of the taxpayer. Over time, the investigatory powers have become increasingly closely assimilated to the PACE powers.Less