Criminl Law Case study | Example Law, Criminal Essay

Question 1

(a)   Prosecution’s Burden of Proof in Relation to the S.11 (1) Offence

Section 11 (1)[1] provides that a person commits an offence if he belongs or profess to belong to a prescribed organisation. However, under the common law, it is not enough to allege that a crime is committed as the accuser need to prove the fact in issue.[2] The prosecution must discharge their legal and evidential burden to prove a criminal indictment.[3] More importantly, the court in Woolmington v DPP[4] observed that in adherence to human rights and rules of natural justice a person is innocent until proven guilty (presumption of innocence). In the case of Charles, the prosecutor bears the burden of proof that the accused has committed a crime under Section 11 (1) of the Terrorism Act.

Terrorism being a criminal offence falls under the “beyond reasonable doubt “ standard of proof as opposed to civil matters that require proof on a balance of probability.[5] Therefore, for the prosecution to successfully prosecute Charles on the offence contemplated under Section 11 (1) they must demonstrate by adducing evidence. First, Charles belongs to an organisation sanctioned by Section 11 and Terrorism Act. Secondly, the organisation is one sanction or carries crimes provided for by the Terrorism Act.

(b)   Charles burden of proof in relation to the Section 11(2)

In criminal cases, the defence assumes the evidential burden of proving any defence put forward.[6] Section 11 (2) of the Terrorism Act presents a defence of a person accused of a crime in 11(1). However, the defence is to the extent the organisation contemplated under section 11 (1) was not engaging in terrorist activities. Another angle is that the accused did not participate in the illegal activities contrary to Terrorism Act. Section 11 (2) therefore, vests burden of proof to the accused to demonstrate either: first, he was a member of the organisation whose activities are not sanctioned by the Act. Secondly, he was not a party to activities of the organisation.

(c)    Whether the Section 11(2) Defence is Contrary to the Human Rights Act 1998

Section 3 (1) and 6 (1) of Human Rights Act 1998 lays an essential foundation for the presumption of innocence in criminal cases.  In criminal matters, the presumption of innocence ensures that the prosecutor discharges their legal and evidential burden to prove that the accused is guilty.[7] In this respect, section 11 (2) to some extent undermines the provisions of Human Rights Act by shifting the burden of proof from proving facts-in-issue to proving innocence on the part of the defendant.

Further, Section 11 (2) imposes a burden on the defendant of proving their innocence, and that is incompatible with Section 3 and 6 of the Human Rights Act. It is arguable that when a state criminalises a specific conduct providing a defence for the same offence undermines the presumption of innocence. According to R. v Chargot Limited[8] the burden of proof must always vest on the prosecution and failure to discharge that legal and evidential burden should lead to the accused acquittal. According to the court in Sweet v Parsley as criminal matters requires mens rea, the chance by statutes for the accused to prove his innocence upholds human rights.[9]

Question 2

Admissibility of Dr. Neyroud and PC Murray’s Evidence.

From the facts, Dr. Sam Neyroud who is called as a witness in Charles trial poses some specialised knowledge in terrorism activities as he has studied extensively on terrorism. That being the case, the court will rely on Dr. Neyroud evidence as an expert opinion which is only admissible to guide the court in decision making. Police-constable Murray is called to the witness stand on the basis that he conducted and search on Charles computer and found evidence that would link the accused with a crime under Section 11 (1) of the Terrorism Act.  In this case, Murray will be testifying and adducing images (documentary evidence) linking the accused to terrorist activities. This part will interrogate the admissibility of Dr. Neyroud and PC Murray.

Expert Opinion

The general principle is that witnesses should only testify or give evidence to matters within their knowledge.[10] In this regard, opinions and beliefs are inadmissible, and the only exception provided by the law is evidence by expert witnesses. According to the court in R v Harris and others[11] an expert opinion is only admissible if it provides to the court information that is outside the judge’s knowledge. Moreover, the Criminal Practice Directions (2015) provides that expert evidence is reliable before a court if it is founded on a scientific basis, expertise or experience.

 In the matter of R v Turner[12] expert opinion by a psychiatric concerning a sane person was held to be inadmissible as the jury could determine the matter. Further, an expert opinion must be relevant to the matter before the court and failure to do so would render it inadmissible.[13]Although the prosecutor presents expert witnesses, they must be impartial and unbiased.[14]

Testimony and Documentary Evidence

In criminal and civil cases, parties are required to rely on the best evidence to prove their matters in court. Therefore, parties should call to the stand witnesses that have knowledge of the subject matter and should avoid hearsay as it is inadmissible in court.[15] Equally, the production of primary evidence (documentary evidence) is encouraged. Where parties chose to adduce documentary proof (includes images) the original documents must the presented for inspection the judge.[16]  In the United Kingdom, records retrieved from computers are admissible as long as the court is satisfied that those records were not misused.[17]

Conclusion

Going by the rule of law above, the admissibility of Dr. Neyroud testimony will be tested by the common law rules established above. First, the court must establish that the opinion is reliable, impartial and relevant to prosecute Charles indictment successfully. On the part of PC Murray, his evidence will be limited to the fact that he conducted a search in Charles house and found the pictures purported to be of the accused person. In this case, the prosecutor can only rely on Murray’s testimony to link Charles and the property retrieved from his house. Murray cannot offer expert evidence as to the origin of the photos found in Charles possession. Furthermore, the image can only demonstrate Charles criminal liability if it can be shown that: one, they are authentic. Secondly, if expert evidence is adduced, it will show that Charles is the actual owner of the images by rebutting his allegations that they were downloaded.

Question 3

(a)   Effect of Silence in his Police Interview

Failure to comment or testify by the accused person or defendant does not present an adverse effect on his or her innocence in a criminal trial. Under the common law, an accused person has a right to remain silent which prevents him from self-incrimination. According to R v. Webber[18] an accused person cannot be forced to give information to the police, and his silence does not demonstrate his guilt. Therefore Charles is within his rights to remain silent.

(b)   Admission of Letters in evidence

According to Baker v Campbell[19] and Section 118[20] Communication between lawyers and their client is considered privileged professional communication which is protected by the law. More importantly, the protection of client-lawyer communication is premised on the common law jurisprudence that men have a right to legal representation in criminal matters.[21] Further, where one venture to consult a lawyer or a person skilled in law their rights should be protected through the privileged communication rule. In this regard, the letters are not admissible as they entail privileged communication.

(c)    Admission of the Handbook on the Grounds of Legal Professional Privilege

The admissibility of the handbook in possession of Charles lawyer will be contested on the grounds of client-lawyer privileges.  For the argument on legal professional privilege to be successful, the communication in question must be legal advice between a lawyer and client.[22] Therefore, the court in Esso Australia Resources Ltd v Commissioner of Taxation[23] observed that a court should distinguish whether the communication between the client and lawyer was for the dominant purpose of litigation. In the absence of professional communication, any other correspondence conducted by client and lawyer to defeat justice is illegal.

Such being the case, Section 118(c) provides that contents of communication (including letters) are protected under the professional privilege rule. Section 123 of the Evidence Act provides that the legal privilege may be lost the documents are to be adduced as evidence in the criminal trial. In this case, the handbook will be admissible to evidence, and an argument that it is privileged will not succeed going by Section 123. The court in R v Barton[24] observed that the client-lawyer privileges cannot be lost and is absolute. Such being the case, the court in Carter v The Managing Partner Northmore Hale Davy and Leake[25] noted that a solicitor cannot be compelled to produce documents subject to legally privileged communication. 

Case Study: Criminal Law Dissertation Writing Service

Bibliography

Books and Journals

Anderson, John. Uniform evidence law. Leichhardt, NSW: Federation, 2016.

Ashworth, Andrew, and Jeremy Horder. Principles of criminal law. Oxford University Press, 2013.

Freckelton, Ian R., and Hugh Selby. Expert evidence: Law, practice, procedure and advocacy.  Lawbook Company, 2013.

Gillers, Stephen. Regulation of Lawyers: Problems of Law and Ethics. Wolters Kluwer Law & Business, 2014.

Kaplan, John, Robert Weisberg, and Guyora Binder. Criminal law: Cases and materials. Wolters Kluwer Law & Business, 2014.

Kaplow, Louis. "Burden of proof." The Yale Law Journal (2012): 12-34

Ormerod, David, Karl Laird, John Cyril Smith, and Brian Hogan. Smith and Hogan's criminal law. Oxford University Press, USA, 2015.

Stephen, James Fitzjames. A history of the criminal law of England. Vol. 2. Cambridge University Press, 2014.

Case Law

(Doughty) v Ely Magistrates' Court [2008] EWHC 522).

Carter v The Managing Partner Northmore Hale Davy and Leake (1995) 183 CLR 121

Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49

R v Cleobury [2012] EWCA Crim. 17.

R v Harris and others [2005] EWCA

R v. Webber [2004] UKHL 1

R. v Chargot Limited [1935] AC 462

Sweet v Parsley [1970] AC 132

Woolmington v DPP [1935] AC 462



[1] Terrorism Act, 2000

[2] Kaplan, John, Robert Weisberg, and Guyora Binder. Criminal law: Cases and materials. Wolters Kluwer Law & Business, 2014.

[3] Kaplow, Louis. "Burden of proof." The Yale Law Journal (2012): 12-34

[4] [1935] AC 462

[5] Ormerod, David, Karl Laird, John Cyril Smith, and Brian Hogan. Smith and Hogan's criminal law. Oxford University Press, USA, 2015.

[6] Ashworth, Andrew, and Jeremy Horder. Principles of criminal law. Oxford University Press, 2013.

[7] Ormerod, David, Karl Laird, John Cyril Smith, and Brian Hogan. Smith and Hogan's criminal law. Oxford University Press, USA, 2015.

[8] [2008] UKHL 73; [2009]

[9] [1970] AC 132

[10] Stephen, James Fitzjames. A history of the criminal law of England. Vol. 2. Cambridge University Press, 2014.

[11] [2005] EWCA

[12] (1975) 60 Cr. App R. 80

[13] (Doughty) v Ely Magistrates' Court [2008] EWHC 522).

[14] R v Cleobury [2012] EWCA Crim. 17.

[15] Wigmore, John Henry. Wigmore on evidence. Wolters Kluwer, 2016.

[16] Ibid

[17] Anderson, John. Uniform evidence law. Leichhardt, NSW: Federation, 2016.

[18] [2004] UKHL 1

[19] (1983) 153 CLR 52, 116–117

[20] Uniform Evidence Act

[21] Freckelton, Ian R., and Hugh Selby. Expert evidence: Law, practice, procedure and advocacy. Lawbook Company, 2013.

[22] Gillers, Stephen. Regulation of Lawyers: Problems of Law and Ethics. Wolters Kluwer Law & Business, 2014.

[23] (1999) 201 CLR 49

[24] [1972] 2 All ER 1192.

[25] (1995) 183 CLR 121

 

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