Improperly obtained evidence in the Commonwealth: lessons for England and Wales?

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  • It’s a matter for you exactly how you tackle this question. But do read the question carefully and make sure that you have read and understood the guidance give above. STRUCTURE 
  • Your coursework must have a clear structure, with one point leading logically to another and ultimately to clear conclusions. 
  •  In order to achieve that you need to know what your conclusions are going to be before you start: the structure of your argument throughout the essay will be leading to those conclusions. 
  • You may find it a helpful discipline to state your conclusions at the start of the coursework.
  •  You may find it useful to use sub-headings (of the type I have used in the hand-outs) as you move from one area of discussion to another. Sub-headings help to keep you on track and to prevent you wandering off the point. They also help the reader to know precisely where you are in the argument. STYLE
  • Proof read your essay carefully. Too often students who speak perfectly sensibly and clearly about a subject when we discuss it face-to-face, write incomprehensibly: they write sentences which simply don’t make sense, or which are so poorly expressed that it’s impossible to understand what is being said. It is essential that you aim always for clarity of expression. 
  • Unless you are very confident in your use of English, you may find it better to avoid very complex sentence structures (that advice holds good whether or not English is your first language).
  • Don’t use words of which you don’t know the meaning. Make your meaning clear
  • When you refer to a case do not assume that your reader has read it. Assume that your reader is an educated lawyer who is not familiar with this particular area of the law. He needs to understand your argument. Sometimes (not always) it is necessary to tell him a bit about the case to which you are referring for him to understand your point. For example, it is no good saying that “in the case of X the Court of Appeal found the type of questioning employed by the police to be oppressive”. Unless the reader is familiar with the facts of X that’s not going to mean anything. In this case you would have to give a brief description of the type of questioning employed in order to make your point. QUOTING 
  • Do not quote entire sections of statutes or large chunks of a judgement or authority as “padding”. It is better in a relatively short piece of coursework to summarise in your own words (but accurately) the section/judgement/authority and perhaps quote a short passage that is particularly pertinent to the point. 
  • Make sure that the quotation is appropriate to the point you are making. 
  • You MUST acknowledge quotations. It is not acceptable to quote a large chunk from an academic writer without acknowledging it. Put it in quotation marks and reference it. If you copy and paste passages from other sources into your coursework without any acknowledgment of the course, you could be reported for plagiarism, which is a serious assessment offence. REFERENCING 
  • Do not make broad assertions of fact without providing authority for your assertion, unless the assertion is common knowledge or self-evidently true. You would not, for example, have to provide authority for the assertion that “in a Crown Court trial a defendant is generally tried by a judge and jury” (common knowledge) or the assertion that “the European Court of Human Rights is not a part of the High Court of England and Wales” (self-evidently true). However, if you assert, for example, that “in a large number of cases heard in the Crown Court judges have to give jury directions in relation to s.34” you should provide authority for that assertion of fact.
  •  Where you are relying upon an article or book to support a proposition you have made then the reference in the footnote should include the page or paragraph number at which the support for the proposition can be found. 
  • Do not make assertions of law without providing authority for the assertion.
  • If you refer to a case in the text of your essay (e.g. ‘In the case of R v Beckles the Court of Appeal held that….) make sure that you put in a footnote the reference for Beckles (in this case, [2005] 1 WLR 2829)
  • If you refer to a specific passage in the case, either by quoting it or paraphrasing it, include in the footnote a page or paragraph reference for the passage to which you are referring (so, if you were quoting a passage at p.2834 of Beckles, you would write, [2005] 1 WLR 2829, at 2834). This is important as it allows me to find the passage quickly. 
  • If you have referred to Beckles and given the reference in a footnote it is not necessary to repeat the reference every subsequent time you refer to the case. For example, if you refer to it again by saying, “The decision of the Court of Appeal in Beckles seems to have settled the matter”, it is not necessary to give the reference again. 
  • Similarly, if you are writing an essay about the Human Rights Act 1998 you don’t have to include a footnote reference every time you mention the Act. 
  • Whilst it is acceptable to reference established textbooks, it is not acceptable to reference revision aids such as the Oxford Questions and Answers series or the Routledge Q&A series. 
  • Your footnotes are there to provide references. They are not there for chunks of text which should be included in the main body of the essay. 
  • Never ever ever suggest in a footnote that the reader does his own research. If you are writing a piece of coursework and you quote from, for example, a piece of research, you will give the reference in the footnote. But what you must NOT do is to include words like this after the reference: “see also A.Stein, “Evidential rules for Criminal Trials”. If you do that you are effectively suggesting to me that I go and do my own research should I happen to find your point interesting. 
  • Do NOT reference a secondary source (e.g. a textbook) where the authority for the proposition you are advancing is a primary sourse (e.g. a case). For example, you may have read in Keane’s textbook on evidence that were the defendant raises insanity as defence to a charge he bears the legal burden of proving that defence. Keane cites the case of M’Naghten (1840) 10 Cl&Fin 200 as the authority for that proposition. So if in your essay you want to assert that the defendant bears the legal burden of proof in relation to the defence of insanity the reference in your footnote should be to the report of M’Naghten : it should NOT be to thee page in Keane’s textbook. BIBLIOGRAPHY 
  • Your Bibliography should include all of the materials you have referred to when researching your coursework. 
  • Do not be tempted to pad it out with materials you have not read – it will be perfectly apparent to me that that is what you have done. 
  • There is no minimum requirement for the number of books, articles, cases or other materials to which you should have referred in preparing your coursework. The broader your research the more depth your essay is likely to display. 
  • It should be possible for the reader of a bibliography to understand to which materials you have referred without having to paste an address into a search bar.

 The following type of entry should not appear in your bibliography without an explanation as to what it is and who the author is (if known) SUGGESTED REFERENCE SOURCES Please note that the secondary sources listed below are suggestive only. I have not listed any case law, though you will no doubt want to refer to case law throughout the essay. The following sources do not constitute a compulsory reading list. A piece of coursework presents an opportunity for you to show off your ability to conduct independent research – both into primary and secondary sources. The more widely you research, the more likely you are to achieve and display a clear understanding of the issues involved. There are a number of good textbooks which will give you an overall understanding of the subject. I particularly recommend Andrew L-T Choo, Evidence (6th edn, OUP 2021) In Chapter 7 he gives a very good overview of the subject and, in the section entitled “A Way Forward?” takes a critical look at the present law. Another advantage of this book is that the footnotes contain extensive references to other academic sources. Choo’s views as expressed in his textbook incorporate ideas more fully developed in his other writing, for exampleChoo and Nash, ‘What’s the Matter with Section 78?’ [1999] Crim LR 929 Choo and Nash, “Improperly obtained evidence in the Commonwealth: lessons for England and Wales?” (2007) 11 E&P 75 Of course many other academics have written persuasively on the subject. In his excellent textbook, The Law of Evidence (Sweet & Maxwell), the 7th edition of which is available as an e-book, Professor Dennis considers both the detailed application of s.78 where evidence has been obtained by illegal means, and he considers the theoretical basis of the section (see Chapters 3 and 8). A similarly critical approach to the scope and basis of s.78 is taken by Professors Ormerod and Birch in their 2004 Criminal Law article: Ormerod and Birch, ‘The Evolution of the Discretionary Exclusion of Evidence’ [2004] Crim LR 767

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