Wednesday, 2 July 2014

Lord Herschell says yeah but no but yeah but no ....


A husband and wife were charged with murdering a child they were fostering and burying it in their backyard.

During their trial evidence of twelve other babies found buried in the backyards of their previous residences was offered as evidence.

The appeal was based on whether this evidence was admissible or whether it was unfairly prejudicial to their defence.

Opinion of the Court

Lord Herschell held that the evidence, in this case, was admissible, however, as a general rule evidence of a past similar event should not be admissible unless there are exceptional circumstances.

"It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other.' "

Evidence of similar facts can only be admitted if it is both relevant and probative to a degree that it substantially outweighs the unfair prejudicial effect.

Yes, I am still upset about Rolf Harris and still going on about it.

If I were dictator able to rewrite the laws of the land at a clattering of my keyboard, how would I fix things so Rolf Harris got off?

I would actually keep all this yeah but no but yeah stuff and still let the judiciary decide where they think evidence reaches the standard of relevancy and probity that makes it outweigh the unfair prejudicial effect on an ad hoc basis.

We already know what the rule is for, but no case can be exactly the same and we can only reason by analogy.

But I would make it a rule that UNCORROBORATED testimony is never admissible, no matter how many complainants there are.

This means if it is just one person's word against another, forget it, unless the alleged offence was reported within 4 weeks of the commission of the alleged offence to the police.

I think 4 weeks is time enough. If it was really serious you would report it immediately without passing go and without collecting £200. If you took 4 weeks to think about it and then decided not to, then you weren't obviously that bothered about it.

If you are out of time then it is too bad and you have to just get on with your life: this has the advantage of helping the victim achieve closure. If you are really that bothered about it, you can do stuff to the perpetrator for revenge and take your chances with the law if what you do to the perpetrator breaks the law.

Extensions are only permitted if you were kidnapped, imprisoned and kept as a sex slave, obviously. Then time would start to run the moment you were in a position to report the sexual abuse you suffered.

If the victim is a child then time runs from the time the parent/guardian/carer knew of the alleged abuse.

I think that is nice and clear, don't you?

No comments: