New Evidence Or New Investigation

[Mickey80]

Advice on a scenario please (very simplistic):

Person A is charged with assaulting Person B and the case goes to court.

During the course of the trial, Person C makes a complaint to be police about a similar assault by Person A

Does Person C's evidence/complaint:

a) be included in the current trial as evidence of propensity against Person A

or

b) be excluded from the trail as it needs further investigating and could have an adverse effect on the current trial.

or

c) be included as evidence of propensity in the current and be further investigated by the police

Cheers

M

[jno]

only a guess, but I'd say B: a defendant is supposed to know what he's been charged with and what the evidence against him is, so he has the opportunity to rebut it.

[New Judge]

Your scenario is unrealistic.

It is not likely that person C would have the opportunity to make allegations against A as part of the trial. The trial will only be concerned with the allegations that A assaulted B.

If C simply makes an allegation to the police whilst the trial is in progress (and bear in mind that most assault trials are concluded in less than one day) it will simply be investigated in the usual way. There is no way that an unsubstantiated allegation can be admitted as evidence at all and certaily not at such a late stage. Bad Character evidence in the form of “propensity” must be considered for admission as evidence by the court and this is usually done before the trial. It is mostly confined to convictions, not allegations. An allegation made whilst the trial is in progress would simply not be considered.

[Mickey80]

Thank you. I thought as much.

Similar scenario - pre-trial (investigation stage)

Whilst the police are investigating Person A's crime against Person B, Person D comes forward and claims Person A has a violent temper and witnessed an assault on Person E.

What would happen next?

a) Person D's account will be used as evidence if the case gets to court (A v B)

b) Person E would need to be traced and questioned regarding Person D's account and would become a separate investigation and/or trial and Person D's evidence would only be admissible in A v E trial

c) Person D's evidence would be admissible evidence in A v B and A v E

Hope that makes sense

[BlackadderV]

b

[New Judge]

Definitely not (a). Criminal trials are very much confined to the events in question and will be concerned only with A's assault on B. D's allegation is just that - an allegation, and it would not be admissable under the "Bad Character" rules.

Not (b). If "Bad Character" is admitted (under the quite strict rules) it would have to be following the conviction of A for his assault on E. D's account would not be used as evidence. Only the fact that A had been convicted would be mentioned.

Only in part would (c) be in order. D can provide evidence of A's assault on E as he witnessed the events. He could not provide evidence of A's assault on B. He did not witness it and his opinion that A has a violent temper is not evidence.

[BlackadderV]

As a and c are clearly wrong the only answer can be b. D's allegations are irrelevant to A v B, only to A v E.

[jno]

if we're talking criminal law, there won't be A v B and A v E trials; A would simply be charged with assault on whoever. Aside from that, I would have thought (b) - if A is separately charged with asasalting E, and D has witnessed it, D can give evidence.

[BlackadderV]

Quite right, jno, I missed that point. I must remember to send back my law degree certificate! The cases would be R v A and R v E.

[BlackadderV]

Sorry, I'm getting confused. There is only one case here, R v A.

[jno]

I suppose if D's allegations prompted a successful investigation, the case of R v E might be brought

[jno]

no no, sorry, you're quite right, there would be another R v A trial, wouldn't there.

That A is a bad lot.

[BlackadderV]

This has awakened memories. When I began studying law I was taught that in citing cases orally, v was never translated as versus, as in the US. Instead, in criminal cases it was 'The crown against A', but in civil cases it was 'A and B'. I never understood the reason for the difference between 'against' and 'and'.

[Mickey80]

Thanks so much for the input. Much appreciated, really helping me with my essay.

Can I throw one last scenario in, regarding confessions as evidence. This now only relates to A v B

During the investigation of Person A's assault on Person B, a therapist/professional, who here's about assault, discloses to the police that Person A has received anger management for his temper and during sessions Person A talked about not being able to control his anger and on one occasion Person A almost assaulted Person C during an argument.

What would need to happen next?

a) the therapists evidence can be admissible as bad character evidence in A v B
b) Person C would need to be traced and a separate investigation launched. The therapists evidence would not be admissible as evidence in A v B as it may have an adverse effect on the trial as we don't know what has fully happened regarding Person C
c) the therapists evidence can be used to try and prove propensity and Person C is still traced.

In all the scenarios I've mentioned, would Person B be made aware of any of the other evidence streams against Person A.

[BlackadderV]

I hope you pass your law exams, although it looks as though you may be struggling a wee bit at the moment. If in doubt consult your textbooks, not chat sites. You can always cite a statute or decided case, but not an answer on AB.

[Mickey80]

Thanks BlackadderV and sorry. I know that AB has many knowledgeable experts in this field, sometimes it's easier to post what's on your mind then follow up with my textbooks.

[New Judge]

You need to bear in mind that the admission of "bad character" evidence is very much exceptional and only acceptable under one of the seven "gateways" outlined in the guidance to the legislation (which I am sure you have access to)..

In the scenarios you describe the information provided by the third parties, particularly the therapist in your last post, cannot be described as evidence. They are matters of opinion or conjecture and as such would not normally support "propensity".

[Mickey80]

Thanks New Judge, appreciate the response. The last scenario mentions an admission/confession by the defendant to his therapist. It's not the therapist opinion, its the defendant possible admission of his "bad character".

[BlackadderV]

My law is now getting rusty, but I would have thought that a confession to a psychiatrist would be treated in much the same was as one to a priest, privileged information which the recipient cannot reveal.

[jno]

if you're ordered by the court to give information, you have to. If you aren't, it may be professionally improper to give it without the patient's consent but I don't think it's illegal.

http://www.medicalprotection.org/uk/england-factsheets/giving-evidence-in-court

[Mickey80]

Thanks for the link jno.

What worries me is, if the therapists evidence was admissible, wouldn't the person he claims to have nearly assaulted during the argument need to be traced. Wouldn't the evidence be unreliable, not having both sides of the story.

I agree with New Judge, saying you could have or may have assaulted someone doesn't prove propensity, which is what the prosecution are looking to assertion.

Thanks