Law of Evidence
Section A: Problem scenario
Alan is charged with possession of class A drugs with intent to supply. The prosecution would like to adduce the following evidence:
• A small bag of cocaine that Alan sold to Bronagh, an undercover police officer. Bronagh had approached Alan unsolicited in a nightclub and asked if he knew where she could purchase cocaine.
• A series of text messages sent to Alan’s phone from various numbers, involving requests for drugs or expressions of approval about drugs.
• Alan’s statement to police that he had taken drugs into the nightclub with the intention of selling them. Alan now wishes to retract this statement, saying that he was heavily intoxicated during his police interview and made it up believing he was an actor in a crime drama. There is no published scientific research linking the drugs Alan had taken with this kind of delusion, but Colin, a first-year PhD researcher, is exploring a possible connection.
• A sealed packet, which on examination turns out to contain a large number of sachets of cocaine, and a shoebox filled with banknotes, both of which were found in the same drawer in Alan’s bedroom. Alan says the money is his, but that he had no idea what was in the other packet, which he had agreed to take delivery of for a friend.
• A previous written statement from Dominika, Alan’s former housemate, that people regularly came to the house to purchase drugs from Alan.
Dominika had agreed to testify should Alan’s case reach trial but now says she is afraid to do so.
Ellie is accused of sexual assault and assault by penetration following a complaint by Françoise. Françoise is Alan’s girlfriend and had been in the club with him on the night of his arrest. This left her with no way of getting back to Alan’s house, where she had been planning to stay, so she accepted an offer from Ellie to stay at Ellie’s flat, sharing the only bed. The defence would like to cross-examine Françoise on the following matters:
• Claims that Françoise has had a string of ‘one-night stands’ with various friends and acquaintances, both male and female.
• Ellie’s statement that Françoise has previously said she had no way of getting home as a pretext to go to Ellie’s flat after a night out and engage in sexual activity.
Advise Alan and Ellie on the relevant evidential rules and how they are likely to apply should their cases come to court. You are not required to advise or speculate on the likely outcome of the case(s).
Section B: essay
Choose one question from the following options
1. What factors will a court take into account in determining whether a defendant’s confession is admissible evidence? Was the European Court of Human Rights justified in its conclusion that it can be ‘appropriate’ for the safeguards surrounding confession evidence and the treatment of suspects in police custody to be relaxed in ‘exceptional’ cases where there is a threat to public safety (Ibrahim v UK [2015])?
2. Outline the changes in the law governing the admissibility of hearsay evidence in criminal courts that took place in the early 2000s. Explain why the reforms were deemed necessary and provide an assessment of the compatibility of the law on hearsay with the right to a fair trial.
3. Using examples from case law, explain what factors courts will take into account when determining whether police investigations involving searches and/or surveillance are compatible with articles 8 and 6 ECHR. Do you agree with Hyland and Walker that these kind of operations are governed by
‘underwhelming’ laws?
4. How much has the law governing the use of evidence obtained by entrapment between the leading cases of Sang [1979] and Looseley [2002]? Does the law as it stands strike an appropriate balance between the defendant’s right to a fair trial and the public interest in ensuring serious offences can be successfully prosecuted?
5. To what extent has the suspect or defendant’s privilege against selfincrimination been eroded since 1998? Do sufficient safeguards remain around the drawing of inferences from silence to ensure the fairness of criminal trials?
