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LLB THE LAW OF EVIDENCE
Lecture 1: Introduction to the Law of
Evidence

Course outline
•
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•
•

Introduction, that’s this one;
Burden and standard of proof;
Unfairly obtained evidence;
Public interest immunity and privilege;
Witnesses, competence and compellability;
Inferences from lies and silence;
Hearsay;
Confessions;
Good and bad character;
Identification evidence
...


Tribunal of fact or Tribunal of law?
• Tribunal of fact decides questions of fact (what
happened?)
• Tribunal of law decides questions of law (is a
rescuer a primary victim for the purposes of
nervous shock?);
• Consider who the tribunal of fact is in a criminal
case;
• And a civil case?
• Now, consider the same thing for the tribunal of
law?

Why is the distinction important in
evidence?
• The tribunal of law is the gatekeeper;
• The tribunal of fact can only examine the
evidence that the tribunal of law allows it to
...
g
...


What is relevance?
DPP v
...
The first
two terms are frequently, and in many circumstances legitimately, used
interchangeably; but I think it makes for clarity if they are kept separate,
since
some relevant evidence is inadmissible and some admissible evidence is
irrelevant (in the senses that I shall shortly submit)
...
I
do not pause to analyze what is involved in "logical probativeness," except
to note that the term does not of itself express the element of experience
which is so significant of its operation in law, and possibly elsewhere
...
e
...

•
•

Admissibility for what purpose?
• Evidence is admitted for a purpose i
...
To prove
something;
• Example: Syd told me the car he sold me was a 1948
Morris;
• I might want to admit that evidence merely to prove
that Syd said this;
• Or, as evidence of my belief that it was a 1948 Morris;
• Or, as evidence that Syd is a fraudster;
• Note that evidence might be direct evidence of
Purpose A, but only circumstantial evidence of purpose
B
...
Kilbourne;
• There, the evidence of the first group of boys
could be used to corroborate i
...
Help prove
the Crown’s case in relation to the second
group of boys, and vice versa;
• But a boy in the first group could not
corroborate the evidence of another boy in
the first group;
• Why was that?

Exclusion of admissible evidence
(common law)
• R v
...


Exclusion of admissible evidence
(some statutory rules)
• PACE s
...
78 (unfairness);
• Criminal Justice Act 2003 contains discretion
to exclude certain admissible hearsay
...
g
...


This week
• First, an explanation of the burden and
standard of proof;
• Second, an explanation of the legal and
evidential burden;
• Third, a discussion of criminal cases;
• Fourth, civil cases;
• Last, all you need to know about
presumptions
...


• In criminal cases, the prosecution
must discharge the legal burden of
proof to a high standard, usually
articulated as proof beyond
reasonable doubt
• In civil cases, the legal burden of
proof rests on the party who, on the
proper interpretation of the law,
asserts the affirmative proposition
...
For example, in criminal law matters, the
prosecution has the burden of proving the accused's guilt because innocence is presumed
...

• Submission of no case: At the close of the prosecution's case during
a criminal trial, the defendant may submit to the judge or
magistrate that there is no case for the defendant to answer
(similar to a motion for a directed verdict in a United States court)
...


Woolmington v
...
If, at the end of and on the whole of the case,

there is a reasonable doubt, created by the evidence given by

either the prosecution or the prisoner, as to whether the prisoner

killed the deceased with a malicious intention, the prosecution has

not made out the case and the prisoner is entitled to an acquittal
...
”
"Woolmington principle" - golden thread - duty of the prosecution to prove D
guilty
...




In the case of defences, D bears an evidential burden of production to
raise the issue before the court, at which point the prosecution must
disprove duress BRD


Exceptions to the orthodoxy: preLambert law
• Insanity; 3 First exception to Woolmington
Insanity
...
(so have
both the legal burden and the burden of production)
...
Applies M'Naughten's case

• Express provisos;Second exception to Woolmington
express reverse onus clauses - statute expressly place a probative burden on D

• Implied provisos; implied reverse onus clauses
...
R v Hunt - while the Woolmington emphasis on
Parliament's intention not to place a burden on the accused
remains clear, it depends on the facts of the case
...

• R v
...
Hunt [1987] AC 352
...
Typically, this provision
concerns a shift in burden onto a defendant in either a criminal offence or tort claim
...
Broadly the court can imply a reverse onus clause even if the exact words of the provision are not
used
...
Lambert [2001] 3 WLR 236
• Appellant convicted of possession with intent to supply relies on
affirmative defence that he did not know the substance was a
controlled drug;
• House of Lords dismisses the appeal;
• HRA 1998 does not operate retrospectively;
• But were it in force, the purported legal burden in s
...
3;
• Legal burdens permissible but only when proportionate
...


onus is still on the crown to prove beyond reasonable doubt if accused bears an evidential burden
...


Post-Lambert developments
• Johnstone [2004] 3 WLR 1736; Their Lordships held that, in the
circumstances, it wasn’t disproportionate to place the legal burden
on the defendant
...
DPP [2005] 1 AC 264: -At issue was the defence under
the Road Traffic Act 1988 which stipulates that when charged with
being drunk in charge of a vehicle, it is a defence to prove that at
the time he is alleged to have committed the offence the
circumstances were such that there was no likelihood of his driving
the vehicle

-The HoL upheld the legal burden because the offence had a
legitimate purpose: to protect other road uses, the penalty was
relatively minor and it was easier for the defendant to prove he
was not likely to drive


Summary
• Art
...
6;
• But presumptions against the defendant must be used in a limited or
proportionate way;
• Query whether we currnetly have a coherent set of principles
...


Jargon buster
• What are statements of case or pleadings?
• The particulars of Claim (Claimant tells
the story behind his claim);
• The Defence (the defendant tells his
story, usually denying the claimant’s in
whole or in part);
• Possibly a Counterclaim as part of the
Defence
...
g
...


Proof, Probatilities and Inherent risk
• The adversarial system is all or nothing;
• That has caused problems for civil cases
...


The Re H Heresy
• Lord Nicholls: the more serious the
allegation, the more cogent the evidence
will need to be in support of it;
• Reflects the commonsense idea that more
evidence is required to prove fraud than
negligence
...


RE H RIP
• Re B [2009] 1 AC 11;
• Stops all this nonsense
...
’
Problem remains on how to identify these
proceedings
...
’

The Presumption Analysis
• If X exists, Y is presumed;
• If it’s a rebuttable presumption, then Y
can be disproved;
• If it’s an irrebuttable or conclusive
presumption, Y is a fact
...


Example
• Presumption of innocence; the burden of proof is on the one who
declares, not on one who denies), is the principle that one is considered
innocent unless proven guilty
...
The presumption
of death belongs to the class of rebuttable, as distinguished from
conclusive, legal presumptions
...
In particular siblings are not normally
considered to have a close tie of love and affection
...
This presumption can be rebutted only if it can be
clearly established that the child in question is illegitimate

Res Ipsa Loquitur
• This is presumed negligence;
• The pleader’s last resort!
• Basically, if the accident can only be
explained by negligence;
• If E
...
Claimant walking past a house, and
a piano falls from an upstairs window onto
his head;
• Rebuttable, Defendant need only offer an
explanation
...


1
...


2
...

3
...

4
...

5
...

6
...

7
...


Next week
• Unfairly obtained evidence;
• Entrapment and insurance fraud on the
menu
...


A very quick reminder
• Admissibility: evidence is admissible if it is relevant to a
fact in issue & are agreed by the parties 2 be admissible
...

• Relevance: logically probative or disprobative of the
matter (fact in issue) it is sought to prove;
• Weight: the degree of weight attached to admitted
evidence when examining whether a fact in issue is proved;
• Tribunal of law: deals with questions of law, in evidence
will deal with questions of admissibility, only occasionally
weight;
• Tribunal of fact: weight is its province, considers whether
the facts are proved
...


Inclusionary and exclusionary defined
• Inclusionary discretion: the discretion to
admit prima facie inadmissible evidence;
• Exclusionary discretion: the discretion to
exclude prima facie admissible evidence
...
R [1964] AC 964;
Myers v
...

That appears to me to be contrary to the whole framework of the existing law
...
The whole development
of the exceptions to the hearsay rule is based on the determination of certain classes of
evidence as admissible or inadmissible and not on the apparent
credibility of particular evidence tendered
...
Half a dozen witnesses may offer to prove that they heard two men of high
character who cannot now be found discuss in detail the fact
now in issue and agree on credible account of it, but that evidence would not be admitted
although it might be by far the best evidence avalable
...


The story before Sang: Chapter 1
• Evidence obtained by torture is always
excluded;
• This principle is as old as the trees;
• Basically this is what is said in A v
...
2 [2006] 2
AC 921
...
Leatham (1861) is a perfect representation
of the orthodoxy;
• Per Crompton J
...
”

The story before sang continued
• Kuruma v
...
Black [1978]
...


Held: Lord Goddard said: ‘In their Lordships’ opinion the test to be applied in considering whether evidence is
admissible is whether it is relevant to the matters in issue
...
While this proposition may not have been stated in so many words in any
English case there are decisions which support it, and in their Lordships’ opinion it is plainly right in principle
...


Jeffrey V
...

Officers improperly searched his house and found cannabis and cannabis resin
...
The Justices ruled out the evidence of search as inadmissible
...
The
Appeal was allowed
...
The mere fact that evidence is obtained in an irregular
fashion does not of itself prevent that evidence from being relevant and acceptable to the Court
...

The Queen with approval)
2
...

3
...


Sang itself
• per Lord Diplock: "(1) A trial judge in a criminal
trial has always a discretion to refuse to admit
evidence if in his opinion its prejudicial effect
outweighs its probative
• value
...
The court
is not concerned
• with how it was obtained
...
He pleaded not guilty
...
Counsel hoped to persuade the Judge to exercise his
discretion to disallow evidence of commission of the offence thus incited, and to direct the return of a not guilty
verdict
...
The
appellant changed his plea and was convicted and sentenced
...
On appeal to the House of Lords, the following question was certified for consideration:
Whether a trial Judge has discretion to refuse to allow evidence being evidence other than evidence of admission to
be given in any circumstances in which such evidence is:a) Relevant, and
b) Of more than minimal probative value
Held
i) A judge in a criminal trial always has the discretion to refuse to admit evidence if its prejudicial effect outweighed its
probative value or force;
ii) Except in the cases of admissions, confessions and evidence obtained from an accused after commission of an
offence, a Judge had no discretion to refuse to admit relevant and admissible evidence merely because it had been
obtained by improper or unfair means
...

iv) The defence of entrapment had no place in English law and could be accepted by a Judge by means of the
procedural device of exercising his discretion to exclude the Prosecution’s evidence of commission of the crime
...
Fox [1986] AC 281
...
78
• Sang puts any fair treatment concerns very much
on the back burner;
• S
...
"

Examples of s
...
Wolverhampton Crown
Court;Where police officers acted mall
fide and oppressively
• R v
...


S
...
Walsh where the Court said:
“although bad faith may make substantial or
significant that which might not otherwise be so,
the contrary does not follow
...
”

Towards fair treatment?
• There are still plenty of illustrations
during this period that go against the fair
treatment idea;
• Court of Appeal really only interfered with
exercise of discretion if Wednesbury
unreasonable;
• The culmination is perhaps Lord Nolan’s
judgment in R v
...


The Human Rights Effect
• R v
...
UK;
• The Court holds unanimously there is a violation of art
...
13;
• By six to one that there is no violation of art
...
78 which is sufficient;
• Note the dissent by Mr Loucaides: breaking the law in
order to enforce the law is a contradiction in terms;
• A victory for fair treatment or a false dawn?

Entrapment
• Consider R v
...


Effect of Looseley
• Entrapment is no defence;
• But a stay of the prosecution clearly entails a
moral judgment on the actions of the police;
• Arguably, there is more room for fair
treatment ideas, not only in entrapment but
elsewhere;
• But then again, fairness is such a
discretionary notion that we search for
principle in vain
...


Some examples
• Calcraft v
...
Pape (1913);
• See also ITC Film Distributors Ltd v
...


• ITC Film Distributors Ltd v
...
Where one party comes by privileged docs by a trick, the court has to balance the public interest in the truth coming out, with the
private interest that one's docs should not be filched from under the judge's noses
...
Where it is impossible for the court to pretend to have no knowledge of the docs when they have already been used in evidence,
the court perhaps will not make an order restraining the trickster from relying on that evidence
...
P sought an order that D should give
up the documents and all copies of them, and restraining D from making any use of the documents or the contents of them
...
32
...
University of Warwick [2003] 1 WLR 954
...
But there may well be circumstances, it
said, where evidence obtained by unlawful means would be
admitted on the basis that it was in the overall interests of justice to
enable the defendant to challenge an exaggerated claim put
forward by his opponent
...
In the absence of other wrongdoing,
such as holding back the evidence in order to ambush the claimant
with it at trial, the evidence should not normally be excluded
...


LLB THE LAW OF EVIDENCE
LECTURE 5: WITNESSES,
COMPETENCE AND
COMPELLABILITY

Learning Outcomes
• By the end of this topic you should be able to:
•  
• Define and explain the importance of
competence and compellability;
• Explain the general rule on competence and
compellability in criminal and civil cases;
• Evaluate the principal exceptions to the rule
in a criminal law context; and
• Apply the rules and principal exceptions to
factual scenarios
...


Competence and compellability defined
• Competence: is the witness able to give
evidence?
• Compellability: if he is able, is he
required to give evidence?

The three-stage test
• 1
...
Is the witness competent to give sworn
evidence or must his testimony be
unsworn?
• 3
...

• All persons who are competent are
compellable
...
53(1):
(1)At every stage in criminal proceedings all
persons are (whatever their age)
competent to give evidence
...
53(3);
• Must understand questions put to him as a
witness;
• Must give intelligible answers to those
questions;
• Both conditions must be met;
• If they are not, the witness is not
competent
...
55;
• Must be fourteen or over;
• Must have an appreciation of the solemnity of
the occasion and the particular responsibility to
tel the truth involved in the giving of an oath;
• Both conditions must be met and if they are
not, unsworn evidence is given;
• Unsworn evidence generally carries less weight
...


1: the Accused
• Not competent for the prosecution;
• Competent but not compellable to give
evidence in his own defence;
• Competent but not compellable for a coaccused
...
)
1
...


Significance of accused not being
compellable
• The accused does not have to give
evidence in his own case, but it is a risk;
• The precise magnitude of the risk is the
subject of next time
...
80
• Let’s stick with Robert, and his wife Joanna;
• Robert is charged with theft alongside his
mate John;
• Joanna is competent and compellable to
give evidence on behalf of Robert;
• Competent but not compellable to give
evidence on behalf of the prosecution;
• Competent but not compellable to give
evidence on behalf of John
...
A [2012] 1 WLR 3378: It is
sufficient enough if the offence
encompassed the real possibility of an
assault or injury or threat of injury

Spouses as co-accused
• Competent but not compellable on behalf
of each other;
• Not competent for the prosecution;
• And of course, competent but not
compellable on behalf of themselves
...
80 doesn’t extend to cohabitant(Pearce
[2002] 1 Cr App R 39;
• It can be circumvented (L [2009] 1 WLR
626;
• See also Horsnell [2012] EWCA Crim 227
...

[F3(1)
In any proceedings the wife or husband of the accused shall be competent to give evidence—
(a)
subject to subsection (4) below, for the prosecution; and
(b)
on behalf of the accused or any person jointly charged with the accused
...

(2A)
In any proceedings the [F5spouse or civil partner] of a person charged in the proceedings shall, subject to subsection (4) below, be
compellable—
(a)
to give evidence on behalf of any other person charged in the proceedings but only in respect of any specified offence with which that
other person is charged; or
(b)
to give evidence for the prosecution but only in respect of any specified offence with which any person is charged in the proceedings
...


The cases
• Powell [2006] 1 Cr App R 31;
• Contrast with Macpherson [2006] 1 Cr App
R 30;
• Barker [2010] EWCA Crim 4;
• Wills [2012] 1 Cr App R 2
...
R [2007] EWHC 1842
(Admin);
• Consistent with the policy towards mental
capacity of recent times as illustrated by
Mental Capacity Act 2005;
• If they are competent, they are
compellable in the normal way
...


Next week
• Lies;
• Silence;
• Inferences
...


This lecture
• Denials (in brief);
• Lies;
• Silence
...


Lies
• Lucas [1981] QB 720;
• In order for a lie to be treated as evidence against
the accused it must be:
• (i) A deliberate lie);
• (ii) concerned with a material issue in the case;
• (iii) Motivated by the realisation of guilt and fear
of the truth; and
• (iv) shown to be untrue
...


Lucas Directions
• These are very common indeed;
• Both in criminal and civil cases
...
],and you are entitled to consider whether this
supports the case against him
...
(If the issue arises) You must decide whether the
defendant did in fact deliberately tell [these] lies
...
If you are sure, consider: 2
...
A defendant may lie for many
reasons,and they may possibly be ‘innocent’ ones in the sense that
they do not denote guilt,for example, (add as appropriate) lies to
bolster a true defence, to protect somebody else,to conceal some
disgraceful conduct [other than] [short of] the commission of the
offence, or out of panic, distress or confusion
...
If you think that there is, or may
be, an innocent explanation for his lies then you should take no
notice of them
...
”

The Right to Silence: as old as the trees
• Take the trial of St sir Thomas More for treason in
1535;
• This arose out of his refusal to take the oath of
supremacy required by the Act of Sepremacy 1534;
• But he would not say why he refused to take the oath;
• In short: ‘I will not take this oath, and you do not
know why I won’t take it, and the law requires a fact,
not an inference’;
• In fact, More relied on the maxim: qui tacet
consentire videtur (he who is silent is deemed to
consent)
...
”;
• And More replied: “no other law in the world can
punish any man for his silence…tis God only that is
the judge of the secrets of ower hearts
...


Criminal Justice and Public Order Act
1994
• Section 34 (failure to mention facts later
relied on in court when it would have been
reasonable to do so);
• Section 35 (failure to give evidence at trial);
• Section 36 (failure to account for substances,
objects or marks);
• Section 37 (Failure to account for one’s
presence at a scene);
• Section 38 (various important provisions to do
with inferences under these sections)
...
34 - s
...


Section 34
• Basically, this kicks in most often when
you fail to mention facts in interview and
you later rely on them in court;
• An inference is only possible if it would, in
the opinion of the jury, have been
reasonable for you to mention those facts
...


The legal advice cases
• What if the Defendant has been advised
to remain silent?
• Argent [1997] 2 Cr App R 27;
• Beckles [2005] 1 All Er 705
...


R v Argent
s
...


6 conditions to be satisfied:

proceedings against a person for an offence

failure to mention facts must occur before D is charged

failure must occur during questioning under caution

failure must be to mention any fact relied on in defence
(broad - R v Webber)

fact was one that in the circumstances D could have been
reasonably expected to mention

must allow opportunity to consult a solicitor prior to being
questioned

Beckles
• Judges should discuss their s
...


s
...


~Effects of S
...


The circumstances
• See Cowan [1996] QB 373;
• Essentially, this case is authority that
inferences may be drawn if the true
reason is that the defendant has no
answer that would bear scrutiny
...
5 essentials:
Burden of proof remains on prosecution

Accused entitled to be silent

Inference cannot prove guilt alone

Prosecution must have a case to answer

If jury conclude that silence can only be sensibly be
attributed to D having no answer they may draw adverse
inferences

The Cowan Principles
•
•
•
•

•

(1) The judge will have told the jury that the burden of proof remains upon the
prosecution throughout and what the required standard is
...
That is his right and his choice
...

(3) An inference from failure to give evidence cannot on its own prove guilt
...

(4) Therefore, the jury must be satisfied that the prosecution have established
a case to answer before drawing any inferences from silence
...
But the jury may not believe the witnesses
whose evidence the judge considered sufficient to raise a prima facie case
...

(5) If, despite any evidence relied upon to explain his silence or in the absence
of any such evidence, the jury conclude the silence can only sensibly be
attributed to the defendant's having no answer or none that would stand up to
cross-examination, they may draw an adverse

Human Rights implications
• The ECTHR has made it clear that neither s
...
35 are in and of themselves violations of
art
...
35, for example, the judge must be
satisfied that the defendant knows the
consequences of failing to give evidence
...
34 and s
...


Silence in civil cases
A lot of it is done on paper in civil;
Basically, if I am silent about a matter I
ought to have denied, or required the
other side to prove, I am deemed to admit
it;
For example, if I am a defendant in a
negligence matter and I don’t deny the
Claimant’s allegation of breach, I am
deemed to have admitted it
...


LLB THE LAW OF EVIDENCE
LECTURE 4: PUBLIC INTEREST
IMMUNITY

Learning Outcomes
• By the end of this topic you should be able to:
• define public interest immunity;
• distinguish public interest immunity from
privilege;
• Understand how public interest immunity works in
the context of full disclosure;
• discern facts that might give rise to public
interest immunity;
• Evaluate critically the current state of the law in
light of recent developments including the Human
Rights Act 1998
...


Public Interest immunity: basic
definition
– Lord Templeman with a great definition of
public interest immunity in Ex Parte Wiley:
“Public interest immunity is a ground for
refusing to disclose a document which is
relevant and material to the determination of
issues involved in civil or criminal proceedings
...
”

Additional Points from Slide above:
• He acknowledges it’s a derogation from the general principle of open justice
• More about the document side of it than the oral side- That’s why Templeman
talks about documents in his quote
• The approach of PII is the balancing exercise

Public Interest Immunity: the starting
point
• The starting point, put simply, is equality
of arms;
• Criminal Procedure and Investigations Act
1996, s
...
3 (1)(a) imposes a duty to
disclose prosecution material which might reasonably be considered capable of
undermining the case for the prosecution against the accused or of assisting the case
for the accused
...
31
...


Additional points from slide above:

CRIMINAL PROCEEDINGS
• Full and frank disclosure in both civil and criminal proceedings
• Equality of arms: In criminal proceedings the prosecution has a very onerous duty to disclose
material to the defence
• In criminal proceedings the emphasis is on not being unfair to the accused, so the prosecution ha
to disclose material that it’s going to rely on, it has to disclose material that weakens its case an
material that assist the accused
...
(Criminal Procedure and Investigations Act 1996, s
...
31
...
Emphasises the importance of
full and frank disclosure
...


PII is a derogation from the principle full and frank disclosure on evidence which we
intend to rely

Types of Claim of PII
• Class claims: ‘These documents are of
class X and are, therefore, not to be
disclosed (no ifs, no buts);
• Content claims: ‘The content of these
documents means that disclosure would
damage the public interest
...
Rimmer [1968] AC 910:
• Per Lord Reid: “I do not doubt that there
are certain classes of documents which
ought not to be disclosed whatever their
content may be…cabinet minutes and the
like ought not to be disclosed until such
time as they are only of historical
interest
...


Additional point from above case:
• Burmah Oil- Disclosure of various papers and the communications of the bank of
England was resisted on the grounds that it would harm national economic interest
...


A further example
• Air Canada v
...
Such cases have occurred in the United
States (Nixon v US)…But while Cabinet documents
do not have complete immunity, they are entitled
to a high degree of protection against disclosure
...
Chief constable of West Midlands
Police, ex Parte Wiley [1995] 1 AC 274;
• Class immunity for police documents
doesn’t make sense;
• Content claims still possible;
• The balancing exercise is the key for
adjudicating on such matters
...


• “Thomas LJ’s analysis in the earlier Divisional Court judgement was approved
by Lord Judge CJ and it is submitted that it provides a useful structure for the
‘Wiley balancing exercise’:

• (i)Is there a public interest in bringing the redacted paragraphs into the public domain?
(ii) Will disclosure bring about a real risk of serious harm to an important public
interest, and if so, which interest? (iii) Can the real risk of serious harm to national
securities and international relations be protected by other methods or limited
disclosure? (iv) If the alternatives are insufficient, where does the balance of the
public interest lie?

Informers
• Marks v
...
In Keane, the Court of
Appeal talked in terms of a balancing exercise between competing interests, but added that if the
disputed material may prove the defendant’s innocence or avoid miscarriage of justice, then the
balance comes down in favour of disclosure
...

• decided correctly?

Procedure
• The starting point is equality of arms;
• Public interest immunity by definition resiles from
that;
• A serious matter with implications for ECHR
Article 6 in particular;
• Rowe and Davis v
...
- dragging a 3rd party has rights toe
...
31
...


Criminal cases
• Inequality of arms far more serious in
criminal cases;
• That’s why disclosure is firmly in favour of
the defendant;
• If any material is withheld, CPIA s
...
15 require that ruling to be kept under
review;
• The minimum necessary must be withheld
...
H [2004] 2 AC 134;
• This is authority for the approach that a
judge should take in public interest
immunity cases;
• Special counsel are not to be appointed
prematurely
...
O
...
“It must determine whether the defendant’s interest can be protected without
disclosure or limited disclosure can be ordered that will give adequate protection to the public interest
and also to the interests of the defence and also to the interests of the defence
...
3
...
” … 5
...
(The court is under a duty to get as close as possible to full disclosure while
offering adequate protection for the interest in question)
...
“It must consider whether any order for
limited disclosure under steps 4 or 5 above may render the trial process unfair to the defendant
...
” 7
...
”

Only attaches to original documents
• See Calcraft v
...
Pape
...


Next week
• Witnesses: competence and
compellability
...


This lecture
•
•
•
•

What is hearsay, a basic formula?
Why the scepticism;
The history;
The nouveau regime (Criminal Justice Act
2003)
...


What is Hearsay?
• “Gary told me that Ibrahim had told him
he would kill him if he ever saw him in
the area again
...


Introductory
33
...


Why the caution?
• Traditionally, hearsay viewed as less
reliable;
• Difficulties of cross-examination;
• Possibilities of concoction;(mixture of
elements- confusing)
• Juries not able to cope
...


• credibility- being trust or believed in

Hearsay definition and rationale
an out-of-court statement offered for the purpose of establishing the truth of the matter

Rationale: it denies the opponent the opportunity to cross-exam the person whose perception, memory
and sincerity are in issue

Questions to ask regarding hearsay
1) Is it an out of court statement?

2) What precisely is the out of court statement?

3) is it being offered for the purpose of establishing its truth?
What is involved in a hearsay
One Scenario: 1) declarant making the statement, 2) witness reporting the statement in court

Alternative Scenario: 1) declarant writing the out of court statement, 2) writing produced in court

-these are the same potential hearsay statements

Criminal Justice Act 2003 (key
provisions)
•
•
•
•
•
•
•
•
•
•

S
...
115 (definition of hearsay);
S
...
117 (business documents);
S
...
121 (multiple hearsay);
S
...
136 (discretion to exclude);
Also don’t forget PACE s
...


78
Exclusion of unfair evidence
...

(2)
Nothing in this section shall prejudice any rule of law requiring a court to exclude
evidence
...
]

Approach to hearsay in exams and in
practice
• 1
...
if it is, is it admissible hearsay?

Question 1: is it hearsay?
• Starting point is s
...
115;
• It is hearsay if (and only if) it is a
statement made other than orally in the
proceedings; and
• If it is tendered to prove the truth of the
matter stated
...


Hearsay: the Twist approach
• 1
...
Identify whether there is a statement of
that matter in the communication; if not,
then the communication isn’t hearsay
...
If yes, identify whether it is one of the
purposes of the maker to cause the recipient
or any other person to believe the matter
stated to be true, or to act upon the basis
that it was true; if yes, then it is hearsay
...
114(1);
Statutory admissibility;
Preservation of common law exceptions
If the parties agree;
If it’s in the interests of justice to admit
the statement
...
6(3D) the right to confront your accusers or crossexamine them;
• “3
...
”
• That right is as old as the trees, goes back way before the
ECHR;
• So if a witness is unavailable, there’s a problem;
• And yet s
...


Al-Khawaja v
...
6
...


Court of Appeal reasoning
•
•
•
•

Legislative intent;
Strasbourg jurisprudence inconsistent;
Practical difficulties;
Counterbalancing factos
...


Business and other documents
• S
...


Certain common law exceptions
(outline only)
• S
...
118(4) res gestae;
• Andrews [1987] AC 281; Hearsay evidence
- Stabbing victim assailant dying breath
...

• Saunders [2012] EWCA Crim 1185
...
121;
• Maher v
...


Other provisions of note
• Ss
...
124; Credibility relevant & therefore
admissible
• S
...
126
...
Which gateway?
• 2
...
Interests of justice tests (either
s
...
116(4);
• 5
...
Exclude the evidence?

Next week
• Confessions;
• A very important exception to the hearsay
rule
...


This lecture in outline
• Brief discussion of admissions, mainly in a
civil context;
• What is a confession: PACE and preserved
common law;
• Exclusion of confessions

Admissions
• In outline only;
• There are formal and informal admissions;
• A formal admission is determinative of the matter
stated in it;
• So, in civil proceedings, if I admit breach of contract
in the pleadings, that is conclusive of that issue;
• Remember that I can admit breach either expressly,
or by failing to deal with the allegation of breach in
my pleadings;
• Formal admissions may only be withdrawn with
leave;
• You can have admissions in criminal proceedings too
...
Informal admissions, which are usually made out of court, must be
distinguished from formal admissions, made in the pleadings or in court
...
82(1);
• A statement wholely or partly adverse to
the accused, whether in writing or orally,
and whether made to a person in
authority or not
...
R [1976] 1 WLR 1251 (even terms): Silence
- P was confronted by the mother of a woman
bleeding from stab wounds
...

P made no reply but when the mother tried to get
hold of him tried to stab her
...
The
parties are on even terms, silence in the face of
an accusation may amount to a confession
...
82(1);
• The statement is admissible against the person
who made it;
• Not anyone else;
• Except where the statement is made in the
presence of a co-accused who adopts it as
correct;
• Consider what would happen if X makes a
confession that incriminates Y, can the Crown
rely on it?

What is a statement wholely or partly
adverse to the accused?
• “I admit that I did it
...
” (how does
that statement go in a trial for robbery?);
• Sharp [1988] 1 WLr 7;
• Hasan [2005] AC 467 (an old friend from criminal
law): Confessions - Aggravated burglary, he
claimed duress
...


Exclusion of Confessions: the
framework
• PACE s
...
78
...

(1)
In any proceedings a confession made by an accused person may be given in evidence against him
in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in
pursuance of this section
...


pace 78

78
Exclusion of unfair evidence
...


Oppression
• Fulling [1987] QB 426; It was alleged that evidence had been
obtained by police oppression
...
The circumstances caused the appellant severe
distress, and she made admissions in the following interview
...

Applying 76(2)(a), the Court stated, obiter dicta that it was ‘abundantly clear that a confession may be invalidated under
Section 76(2)(b) where there is no suspicion of impropriety’
...
’ One of the quotations
given under that paragraph runs as follows: ‘There is not a word in our language which expresses more detestable
wickedness than oppression
...
’

• PACE s
...

In this section “oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence
(whether or not amounting to torture)
...
Barry
• Identify the thing said or done;
• Identify whether, in the circumstances,
confession rendered unreliable;
• Identify whether, notwithstanding that,
the prosecution has proved beyond
reasonable doubt (or co-accused on
balance of probabilities) that the
confession was reliable
...
At trial he argued that he
had confessed in order to get more drugs
...
The test set out in s76(2)(b)
required that things said or done were
extraneous to the maker of the confession
...


walker

Robert

The cat out of the bag argument
• Smith [1959] 2 QB 35;
• McGovern [1991] 92 Cr App R 228: where the
defendant was a pregnant young woman with
a low IQ
...
In a subsequent, properly conducted
interview she again confessed
...


smith

The fruit of the poisonous tree
• Can evidence that was discovered as a
result of the confession be adduced?
• Can evidence of why or how that evidence
was discovered i
...
By reason of the
excluded confession be adduced?
• PACE s
...


Section 78 and confessions
• Mason [1988] 1 WLR 139: Confessions - Defendant was arrested for
setting fire to a car
...
Solicitor
advised explaining his involvement and defendant confessed
...

• Samuel [1988] QB 615;
• Aspinall [1999] 2 Cr App R 115;
• Kirk [2000] 1 WLR 567: He wanted to retract his confession admitting
the theft
...
Code C para 10
...
See also Art
5(2) ECHR which provides that 'Everyone who is arrested shall be
informed promptly, in a language that he understands, of the reasons
for his arrest

samuel

Human rights dimensions
• ECHR art
...
UK et al are very important in
this regard, though happily not important
enough to read
...
76A
...


LLB THE LAW OF EVIDENCE
Lecture 9: Character evidence

Learning Outcomes
• By the end of this topic, you should be able to:
•  
• Understand the history and development of the
law as to good and bad character in outline;
• Have a detailed knowledge of the treatment of
bad character evidence in criminal
proceedings;
• Apply your knowledge to a factual scenario;
• Understand the approach to bad character
evidence in civil proceedings
...


Character, the traditional approach
• Based on the traditional view of good and
evil;
• Good people less likely to commit
offences;
• Bad people more likely to commit
offences;
• Rowton [1865] 169 ER 1497 (synonymous
with reputation)
...


Good Character
• Not generally in civil cases;
• The exception might be an action in
defamation or deceit;
• But in criminal cases, good character is
very important
...
(2)
• A direction as to the relevance of his good character to the
likelihood of his having committed
• the offence charged is to be given, whether or not he has
testified, or made pre-trial answers
• or statements
...
101
=judge must give a bad character direction, but may interweave into his
remarks a modified good character direction, subject to the absurdity
principle;
• Defendant has no previous convictions or cautions but admits other
reprehensible behaviour, but the prosecution is not relying on this as
probative of guilt =left to the good sense of the trial judge, defendat not
entitled to a good character direction
...
41
although it is in your reading
...


Similar fact: civil cases
• Similar fact stil relevant to civil cases;
• But it’s much easier;
• If I am sued for negligence because the
claimant slipped on a damp floor in my
supermarket, evidence of previous such
occasions is admissible;
• O’Brien v
...


The problem of bad character
evidence
•
•

The traditional starting point is Makin v
...
C
...
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
...
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 whetherparticular piece of evidence is on the one side or the other
...
98 (disposition towards misconduct);
• S
...


98
“Bad character”
References in this Chapter to evidence of a person’s “bad character” are to
evidence of, or of a disposition towards, misconduct on his part, other than
evidence which—
(a)
has to do with the alleged facts of the offence with which the defendant is
charged, or
(b)
is evidence of misconduct in connection with the investigation or prosecution of
that offence
...
101(1);
• All parties agree;
• Evidence adduced by defendant himself;
• Important explanatory evidence;
• Relevant to an important matter in issue between
defence and prosecution;
• Of substantial probative value in relation to an
important matter between defendant and co-accused;
• Evidence to correct a false impression;
• Defendant has made an attack on another person’s
character
...


Gateways A and B
• Sometimes, you might want to adduce
evidence that your client is of bad
character;
• Maybe the police have only picked on him
for that reason
...
102;
• Difficult or impossible to understand the
case without this evidence;
• If I murder a prisoner, it’s probably
unrealistic to suppose that we can
conduct the case without referring to the
fact that I was in prison at the time
...
103;
• Propensity to commit offences of same
description or in same category;
• Or propensity to be untruthful;
• Hanson [2005] 1 WLR 3189;
• Campbell [2007] 1 WLR 2798;
• Note that this gateway is subject to the
exclusionary discretion in s
...


R v Hanson [2005]
F: H was one of 3 applicants whose convictions had been based on character evidence
...




H:

103(2) is not exhausive of the types of conviction which might be relied upon to show evidence of
propensity to commit offences of the kind charged, Nor, however, is it necessarily sufficient, in order to
show such propensity, that a conviction should be of the same description of category as that charged
...
at trial, evidence was adduced of his violent conduct
towards two previous partners
...
Cannot
admit evidence whenever there is an issue as to whetherh D's case is truthful
...
DIRECTION is essential

103
“Matter in issue between the defendant and the prosecution”
(1)
For the purposes of section 101(1)(d) the matters in issue between the defendant and
the prosecution include—
(a)
the question whether the defendant has a propensity to commit offences of the kind with
which he is charged, except where his having such a propensity makes it no more likely
that he is guilty of the offence;
(b)
the question whether the defendant has a propensity to be untruthful, except where it is
not suggested that the defendant’s case is untruthful in any respect
...
104 supplements this gateway: “Matter in issue
between the defendant and a co-defendant”
(1)
Evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under
section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant’s defence
...


Evidence to correct a false impression
• Supplemented by s
...


105
“Evidence to correct a false impression”
(1)
For the purposes of section 101(1)(f)—
(a)
the defendant gives a false impression if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a
false or misleading impression about the defendant;
(b)
evidence to correct such an impression is evidence which has probative value in correcting it
...


Launches attack on another’s character
• Supplemented by s
...
23) to
cross-examine a witness in his interests) asks questions in cross-examination that are intended to elicit such evidence, or are
likely to do so, or
(c)
evidence is given of an imputation about the other person made by the defendant—
(i)
on being questioned under caution, before charge, about the offence with which he is charged, or
(ii)
on being charged with the offence or officially informed that he might be prosecuted for it
...

(3)
Only prosecution evidence is admissible under section 101(1)(g)
...


Safeguards?
• S
...
107 (innocent contamination);107

Stopping the case where evidence contaminated
(1)
If on a defendant’s trial before a judge and jury for an offence—
(a)
evidence of his bad character has been admitted under any of paragraphs (c) to (g) of section 101(1), and
(b)
the court is satisfied at any time after the close of the case for the prosecution that—
(i)
the evidence is contaminated, and
(ii)
the contamination is such that, considering the importance of the evidence to the case against the defendant, his conviction of the offence
would be unsafe,
the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury
...
108 (offences when a child);
• See Lamb (2007] EWCA Crim 1766 on innocent
contamination
...
100;
Provisions are markedly different;
Brewster [2010] 2 Cr App R 20;
South [2011] EWCA Crim 754: (Narrow
approach to admissibility) convictions for
dishonesty- Must consider dis/similiarities
between offences, truthfulness? Witness
pleaded guilty or not guilty
...


Brewster: the general approach
•

Per Pitchford L
...
At para 23: The first question for the trial judge under section 100(1)(b) is whether
creditworthiness is a

•

matter in issue which is of substantial importance in the context of the case as a whole
...
Just because a witness has convictions does not mean that the opposing

•

party is entitled to attack the witness' credibility
...
Whether convictions have

•

persuasive value on the issue of creditworthiness will, it seems to us, depend principally on

•

the nature, number and age of the convictions
...
The question is whether a fair-minded tribunal would regard them

SUPPLEMENTARY LECTURE
ON HUNTER V
...

• Propensity: the defendant’s good character
may make it less likely that he committed the
offence
...


Types of identification evidence: some
examples
•
•
•
•
•

Visual;
By voice;
Fingerprints;
Body samples;
DNA
...

Procedure; EIC Visual Identification Definition
S 4: 

an assertion by a person
...
of the commission of an offence was done at, or about, the time the act was done; or

an account (whether oral or in writing) of an assertion of the kind described in paragraph (a)
EIC Visual Identification
S 45 - visual identification evidence obtained by formal procedure admissible in a criminal
proceeding unless defendant proves it is unreliable

If no formal procedure, and no good reason, and prosecution does not prove that
circumstances would have produced reliable identification, not admissible

If defendant makes consistent identification at trial then s 35 may override s 45

s 126 - reliability warning about identification evidence
Loose ends
...
1 Theft Act 1968);
Dishonest;
Appropriation;
Of property;
Belonging to another;
Intention permanently to deprive;
No good at all if you don’t prove that the
Defendant himself did all of this
...


The Turnbull direction
• Judge must direct the jury to the
circumstances in which the identification
was made;
• Warn the jury about honest mistake;
• Warn the juryt that even close relatives or
friends might e mistaken as to identity
...


Quality of identification evidence:
consequences
• No evidence =submission of no case to answer;
• Poor quality unsupported evidence =judge
should assume it is true but withdraw the case
from the jury if he considers no reasonable
jury could convict based on it;
• Poor quality supported evidence =judge should
leave the case to the jury but not tell them
that the evidence is poor;
• Good quality identification =can safely be left
to the jury, but usual warning
...


Procedure
Identification parades;
Video identification;
Group identification;
Confrontation (last resort);
Dock identification (very much
exceptional);
• See PACE Code D
...


Voice identificatoin
• Traditional view is that this is more
difficult than by sight;
• A particularly careful Turnbull warning
must be given;
• Ideally,expert evidence on this
...




---