The undermentioned sentiments are premised upon the fact that from a procedural position, a figure of applications will probably be made by the prosecution to progress its chances at test. The first of these applications would affect the consideration as to whether it is preferred to continue against each of these suspects individually, or in a combination other than a three individual joint endeavor styled proceeding where all are charged as parties to the slaying of Charlotte. The main footing for separate proceedings is to avoid issues of admissibility of points of grounds that are potentially relevant to one suspect but potentially damaging to another.
The suspects may besides raise the chance of a rupture. ( Smith, 1999, 859 ) topic to the flowering of the proceedings at the pre-trial phase, it may go desirable to break up the suspects where one may be in a place to attest against another.
The sentiments as to the mode in which the grounds obtained in this affair may use refering each prospective suspect is hence considered in the absence of the impact of any procedural issues sing the indictment and the nature of the proceedings. Particularly, the tactical advantages of any rupture of each suspect or any peculiar count, is non considered below except where specifically noted.
It is assume as a affair of fact-finding pattern that the constabulary would instantly hold sought a statement from Diane, so as to avoid the rumor jobs noted below.
A concluding preliminary observation – this analysis is structured so as to thoroughly use the general regulations of condemnable grounds, as opposed to mentioning fact specific an potentially mis taking instance jurisprudence. The instances cited are provided in promotion of this purpose.
General Observations that apply to all suspects
The grounds of Fay, age 10, is potentially relevant to all suspects with regard to Charlotte’s slaying. For this ground the place of Faye as a competent informant is considered independent of the analyses of the place of the suspects as set out below.
Fay, like any informant is competent to give grounds topic to the procedural regulations specified at s. 53 of the Youth Justice and Criminal Evidence Act ( YJCEA ) . The competence of Fay will be foremost assessed by the test justice pursuant to the commissariats of s. 53 ( 3 ) , with the main consideration being that Fay be in a place to understand the nature of the proceedings and the nature of the inquiries asked. Base upon the limited grounds available at this minute, it does look probably that Fay will be able to pass on the awaited grounds in a manner that falls within the bounds of s.53.
As an aside, given the nature of the charges, it is highly likely that consideration must be given to an application to seek the test court’s permission to use one of the enumerated ‘special measures’ for this vernal informant as available through the application of the Criminal Procedure Rules ( 2005, R. 29.1 )
The 2nd facet to the appraisal of the grounds likely to be tendered through Fay is the fact that such grounds will be unworn grounds by virtuousness of the application of s. 55 ( 2 ) ( a ) of the YJCEA, given that Fay is less than 14 old ages old. The admissibility of Fay’s grounds will hence be determined by application of s.56 of the YJCEA, the commissariats sing the admissibility of unworn testimony. The weight to be given Fay’s grounds ( presuming that, as noted above, Fay is competent to attest in this manner ) will be a affair for the test justice to direct the jury in their direction ( Simmonds, 1996, 3 ) ; the weight to be given Fay’s grounds is needfully tied to the rumor concerns and the built-in dependability issues originating at that place, every bit good as the other fortunes noted below that a trier of fact can decently use to measure the weight to be given Fay’s grounds. These points are noted below.
The primary analysis is directed to the facts as they pertain to Tom ; where appropriate, the possible liability of the other possible suspects Enid and Dick is considered at that point. Separate consideration of any issue particular to these suspects is besides delineated below.
The Case against Tom
Tom’s place may be assessed from a figure of positions. His instance may be developed on a figure of bases, peculiarly:
( 1 ) The appraisal of the obvious similar fact grounds and whether Tom could be convicted on such evince entirely
( 2 ) Assuming the admissibility of the similar act grounds, could Tom be convicted on the combined grounds of similar fact and the grounds of Fay sing his visit to her place with Enid and her observations sing the payment of ? 5,000 hard currency
( 3 ) Could Tom be convicted on the grounds of Fay, in concurrence with the grounds adduced in points ( 1 ) and ( 2 ) ;
( 4 ) The relationship between the prospective grounds of Fay and the grounds to be adduced at ( 1 ) , ( 2 ) and ( 3 )
1. The similar fact grounds
Given the general regulations sing the admissibility of such grounds, founded as it is upon the general regulation of probatory value versus the damaging consequence created by its admittance into grounds, it is of import to exactly place the facts available to the prosecution that may decently represent similar fact grounds. As is good known by virtuousness of the taking governments, peculiarly determinations such asPhosphorus( 1998, Crim LR 663 ) andHydrogen( 1995, 2 Cr App R 437 ) , the prosecution is non obligated to set up a dramatic similarity, mirror image type fact or any other suggestion that the facts, one to another, are indistinguishable. A high grade of similarity is clearly a trademark or dependability with regard to how a jury might be instructed as to the usage to which such grounds might be put in Tom’s test.
Further, there is a clear chance to bolster the impact of this grounds through the other grounds considered at ( 2 ) , ( 3 ) and ( 4 ) below.
With these rules in head, the followers is the form of similar act grounds to be considered:
- His clear form of imbibing, chancing and lifestyle that is a common yarn to all of the happenings taking to Charlotte’s slaying.
- His relationship with Dick that likewise is a common component to the full factual circumstance
- The slaying of two partners prior to Charlotte
- All three partners died by manner of a distinguishable slaying mechanism, a possible distinction and a factor that Tom might reason to extinguish the consideration of the earlier happenings as true similar facts ( knifing, hiting and Charlotte’s submerging ) . The prosecution will reason, and it is submitted, set up successfully, that the meeting of the factors of partner, domestic scene, Tom’s absence signifier the place at clip of decease, the comparative short continuance of the matrimony, and the farther facts in ( V ) rhenium motivation will probably over sit such statements.
- Motive – Tom made a important fiscal addition as a consequence of the decease of each of his partners. Coupled with the lifestyle / chancing grounds available, this grounds is a portion of a compelling form of behavior
- Fortunes of his establishing of an alibi on three occasions, as established through the constabulary officers ; the possibility of Tom innocently happening himself in fortunes where an impregnable informant, a constabulary officer, is the party doing the topic telephone call on three occasions is one that defies common sense and forms a portion of the flowering of the narrative leading to Charlotte’s decease.
Tom may be convicted as a party to Charlotte’s slaying on this grounds entirely if admitted in its entireness, taking as it does to the allowable illation that he must hold been an histrionat some degreein this slaying. ( Stewart and Schofield, 1995 ; Chan Wing-Siu, 1985 ; Roberts, 1993 rhenium: general rules )
2. Dick’s payment to Enid
This grounds assumes that Diane will supply this information through testimony and that it would non be tendered by manner of the ‘triple hearsay’ implicit in the testimony of Fay ( in add-on to Fay’s unsworn informant position noted above ) . The payment of this big sum of money is admissible on its ain, but does non get peculiar cogency unless grounds of Enid’s position is admitted through the rumor noted from Fay, or unless Diane testifies.
Diane’s grounds refering Dick is non capable to any exclusion under the grounds jurisprudence ; it is admissible against both Tom and Dick.
3. Diane’s grounds sing Enid
Diane’s grounds refering Enid’s admittance as a contract liquidator is hearsay in footings of its possible admissibility against Tom ( and Dick ) ; it is capable to the bridal considerations of compellability ( Civil Partnerships, 2004, s.84 ( 1 ) and ( 5 ) )
The rumor facets of the vocalization from Enid to Diane must be considered in visible radiation of the commissariats of the Criminal Justice Act ( CJA, 2003, s.118 ( 1 ) )
4. Multiple rumor
The facts present two different facets to this issue – the grounds of Fay and the grounds of George. It is submitted that George’s grounds is merely a farther patterned advance from that of Fay ; if Fay is found to be an undependable informant, it is non imaginable that George’s grounds founded as it is upon Fay as a nexus in the evidentiary concatenation George would supply could be admissible and Fay’s non. The consideration must be hence directed to Fay.
In add-on to the unsworn nature of the grounds, Fay is capable to consideration under the multiple hearsay proviso of the CJA ( s.121 ) . Taken merely as unsworn grounds from a kid, it is submitted that Fay’s testimony would be admissible capable to the weight to be ascribed to it. However, the extra factor of multiple rumor is a serious trouble for the prosecution
2. Extra considerations – Dick
The extent of Dick’s possible liability is hard to determine on the facts as presented. The saloon castanetss of his chancing relationship with Tom are present to make the causal connexion between them. However, without the grounds of Diane admitted as to the nature of Enid’s position this grounds does non make liability.
However, Dianeobservedthe exchange of money between Dick and Enid, an observation that is admissible against Dick Diane nevertheless can attest as against Tom or Dick as to her conversation with Enid sing her slaying activity. Dick is apt as a party to the slaying of Charlotte if these facts are elicited as expected – the relationship with Tom, the transportation of money to a admitted slayer, and the decease of Charlotte under fortunes consistent with the admittance by Enid to Diane support this contention.
3. Extra considerations – Enid
The ‘confession’ provided to Diane by Enid is capable to the exclusionary regulations noted above ( Civil Partnerships, s. 84. Absent this grounds, the facts admissible against Enid are reduced to the followers:
- an observation that Dick was in her company and paid her money
- Two other slayings took topographic point at an earlier tie connected to Tom. This grounds does non fulfill the grade of cogent evidence necessary to implicate Enid by manner of similar fact in the present happenings
The admittance to Diane sing her homicidal activity can non be introduced indirectly via Fay’s hearsay if the substantial confession is inadmissible by jurisprudence.
It is suggested from a tactical position that this possible informant be provided with unsusceptibility from prosecution and that she be called to attest against Dick and Tom.
Smith, John C. ‘Commentary on ‘Severance’Criminal Law Review,1999, pp. 859-865
Table of Legislative acts
Youth Justice and Criminal Evidence Act, 1999
Police and Criminal Evidence Act, 1984
Criminal Justice Act, 2003
Civil Procedure Rules, 2005
Civil Partnerships Act, 2004
Table of Cases
Chan Wing-Siu, R V [ 1985 ] AC 168.
H, R V ( 1997 ) 2 Cr App R 437 HL
P, R V [ 1998 ] Crim LR 663 CA
Panayiotou, R V [ 1998 ] EWCA Crim 1989 ( 19th June, 1998 )
Roberts, R V [ 1993 ] 1 All ER 583
Simmonds, R V [ 1996 ] EWCA Crim 72 ( 3rd April, 1996 )
Stewart and Schofield, R V [ 1995 ] 3 All ER 159
Venn, R. V [ 2003 ] EWCA Crim 236 ( 14 February 2003 )