INTRODUCTION TO THE LAW OF EVIDENCE

What is Evidence?
Evidence refers to “something which may satisfy an inquirer of a facts existence.” – Tapper, C.
The law of evidence regulates the proving of facts in judicial proceedings.
Evidence is the information with which the matters requiring proof in a trial are proved.
Evidence is information by which facts tend to be proved. The law of evidence is that body of
law and discretion regulating the means by which facts may be proved. It applies in both
courts of law and tribunals and arbitrations in which the strict rules of evidence apply. It is
adjectival rather than substantive law and overlaps with procedural law.
Evidence is information that can be used to support an argument that a particular fact is either
true or false. It is critical in helping legal factfinders (judges and juries) reach conclusions.
Evidence isn’t just limited to courtrooms; it plays a role in fields like science, history, and public
inquiries. In a legal setting, evidence establishes the facts upon which the law is applied to
reach a decision. The key question is: What are the facts, and what can we infer from them?
This question lies at the heart of the law of evidence, guiding courts in determining whether
a fact has been sufficiently proven.
At the risk of oversimplification, the broad governing principle underlying the English law of
evidence can be stated in no more than nine words: all relevant evidence is admissible, subject
to the exceptions.

Terminology
1. Facts in Issue
➢ Facts in issue refers to all facts which the prosecutor or the plaintiff must prove
in order to establish its case together with all the facts which the accused or
defendant must establish for his defence. The facts in issue in any given case
will depend on the substantive law in play. For example, in a case of murder,
the facts in issue for the prosecution would be the elements of murder.
Meanwhile, the elements of insanity will also be facts in issue when the
accused is raising a defence.

2. Evidentiary or Relevant Facts

➢ Evidentiary or relevant facts are facts that are not themselves in issue but from
which the fact in issue or other relevant facts can be inferred such as motive,
preparation, conduct prior and subsequent to the commission of the offence.

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3. Direct Evidence
➢ Direct evidence is the testimony given by a witness of the witness perception
by his own senses. For example, eye witness’ testimony.

4. Circumstantial Evidence
➢ Circumstantial evidence refers to evidence of a fact which is not a fact in issue
but is a fact from which the existence or non-existence of a fact in issue can be
inferred. Evidence of relevant facts is circumstantial evidence.

5. Collateral Facts
➢ Collateral facts are facts relating to some subsidiary matter which itself affects
the question of whether a fact in issue will be established.

➢ The example of collateral facts are:

a. Facts affecting the admissibility of evidence.

b. Facts affecting the credibility of witnesses or the weight to be given to a

witness’ evidence (e.g. witness bias).

c. Facts affecting a witness’ competence.

6. Oral Evidence or Testimony

➢ Oral evidence is traditionally referred to sworn oral testimony given in court.
However, not all oral evidence in court is sworn. A child under 14 years of age
can only give unsworn evidence. Evidence in certain cases can be given by
video link. In civil cases, under the new Civil Procedure Rules – written,
unsworn, witness statements are generally used at the pre-trial application.

7. Documentary Evidence
➢ Documentary evidence refers to evidence of the contents of documents. It is
anything in which information of any description is recorded. Likewise, items
such as film, tapes, and video recordings are included.

➢ The contents of a document can be proved by primary or secondary evidence:

a. Primary evidence – Where the original document itself is produced for the
inspection of the court.

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 b. Secondary evidence – Evidence of the contents of the original document
which comes by report, in some other second hand or derivative way. For
example, a copy of the original document, oral evidence from a person who
has seen the original document and can recall its contents.

8. Real Evidence
➢ Real evidence refers to when the court draws an inference from its own
observations such as material objects, the appearance of persons, the
demeanour of witnesses and the intonation of voices.

➢ The production of real evidence calls upon the court to reach conclusions
based on its own perceptions and not on that of the witnesses.

9. Hearsay Evidence
➢ Hearsay evidence refers to the evidence of words uttered by someone other
than the testifying witness, where the object of adducing such evidence is to
prove the truth of anything asserted by the person who first uttered the words.

➢ General rule – An out of court assertion is inadmissible as evidence of any fact

stated.

10. Original Evidence (Two Different Meanings)

➢ A distinction between evidence which is ‘original’ and evidence which comes
before the tribunal at second hand or some other derivative way. For example,
division of documentary evidence into primary and secondary categories.

➢ ‘Original evidence’ as opposed to hearsay is the original evidence refers to

evidence of words uttered by someone other than the testifying witness,
where the object of adducing such evidence is not to prove the truth of
anything asserted by the person who first uttered the words, but the fact that
the assertion was made.

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 THE LECTURER’S SLIDES
Scope of Evidence
1. What is Evidence? Evidence is information that can be used to support and
argument that a particular fact is either true or false.

It is critical in helping legal fact finders (judges and juries)

reach conclusions.

Evidence isn’t just limited to courtrooms; it plays a role in

fields like science, history, and public inquiries.

Key Question: What are the facts, and what can we infer from
them? This question lies at the heart of the law of evidence,
guiding courts in determining whether a fact has been
sufficiently proven.

2. Evidence in a Legal The Relationship between Law, Fact, and Evidence:

Context
➢ Facts are established through evidence, while laws are
argued through legal reasoning. Once the facts are
determined, the law is applied to reach a legal
outcome (e.g., conviction or acquittal).

➢ The law of evidence falls under procedural law, setting

rules for how courts should handle evidence to
establish facts.

➢ The law of evidence is a branch of procedural law. It

establishes the rules that govern how courts should
manage and evaluate evidence in order to apply
substantive law and resolve disputes.

A simple explanation is substantive law is the what and

procedural law is the how. In other words, substantive law
defines the acts that constitute criminal behaviour and what
a prosecutor must prove to convict you of a crime. Procedural
law sets limits and bounds around how a prosecutor may go
about proving the case.

3. Criminal vs. Civil Civil Proceedings: Focus on disputes between private

Evidence individuals or companies, often seeking compensation.

Criminal Proceedings: Involve the state prosecuting an

individual or company, with the goal of imposing punishment
if the defendant is found guilty.

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 Rules of evidence are generally more complex in criminal
cases. This is because criminal trials involve lay factfinders
(juries), and people’s liberty is at stake. Therefore, the
evidence must be scrutinised more thoroughly.

4. Why We Need a The law of evidence serves several purposes:

Law of Evidence
➢ It filters out unreliable evidence, ensuring that
factfinding is rigorous and based on sound
information.

➢ The law provides guidance on how evidence is

presented and considered by legal actors (lawyers,
judges, juries).

However, the degree to which evidence should be filtered or

controlled is debated. Some rules may seem restrictive, but
they aim to prevent wrongful convictions or unfair trials.

5. Examples of What Types of Evidence Should be Admitted?

Evidentiary Rules
The law sets rules for admissibility, determining what kinds of
evidence can be presented to the court. For instance:

➢ Evidence of bad character (e.g., a defendant’s previous

criminal record) may be excluded unless it has a direct
bearing on the case.
➢ Evidence obtained through torture is outright
inadmissible due to concerns about human rights.

How Should Evidence be Evaluated?

The law guides factfinders on how to interpret evidence. For

example:

➢ Inferences from Silence: In some cases, a defendant’s

silence may be used to draw inferences, but there are
strict guidelines on how this is handled.

➢ Turnball Warnings: These are special instructions given

to juries in cases involving disputed identification
evidence to remind them of the dangers of
misidentification.

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 LECTURER’S SLIDES
Evidence in The Procedural Context
1. Adversarial Procedural Adversarial System:
Tradition – Trial as
Partisan Contest ➢ The legal system in England and Wales is based on
the adversarial system. This means that the trial is
a contest between two active parties: the
prosecution and the defence.

➢ Each party is responsible for building its own case

and gathering evidence to support its version of
the facts. The trial is structured as a contest, with
each side presenting its evidence to the court in
an attempt to persuade the factfinder (jury or
judge).

Role of the State:

➢ The trial is not a truth-finding inquiry led by the

state. Instead, the state (through the judge)
remains relatively passive and ensures that the
legal rules are followed but does not actively
investigate the facts.

➢ The parties are responsible for finding and

presenting evidence, with the judge acting as an
impartial procedural referee.

Pre-Trial Responsibilities:

➢ Before the trial begins, each party is responsible

for developing its own account of the facts, known
as the theory of the case. They gather evidence to
support their version of events and seek out
witnesses or documentation to bolster their
arguments.

Procedural Fairness:

➢ Procedural fairness is built into the adversarial

system by giving both parties the same
opportunity to present evidence, cross-examine
witnesses, and make legal arguments. The judge

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 ensures that the trial follows the rules, making
sure that neither party has an unfair advantage.

2. Adversarial Procedural Principle of Orality:

Tradition and Orality
➢ One of the key features of the adversarial system
in England and Wales is the principle of orality,
which means that evidence should be given orally
in court.

➢ Witnesses are expected to appear in person to

testify and be subject to cross-examination. This
allows the factfinder (usually the jury) to observe
the witness’s demeanour, credibility, and
consistency under questioning.

Exclusion of Hearsay:

➢ The rule against hearsay evidence is a key

component of this principle. Hearsay refers to out-
of-court statements made by witnesses that are
not present to testify. These statements are
generally excluded in criminal trials because they
cannot be tested through cross-examination.

➢ The factfinder cannot be told about what a

witness said outside the court unless that witness
is physically present to testify.

Contrast with Civil Procedure:

➢ In civil proceedings, the rules are more relaxed,

and pre-trial written witness statements are
generally admissible. In contrast, criminal
procedure emphasises the importance of live
testimony to ensure fairness.

Procedural Fairness:

➢ The principle of orality and the exclusion of

hearsay are designed to ensure procedural
fairness by allowing both parties to challenge the
evidence presented through cross-examination.

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 This ensures that the evidence used in court is
reliable and credible.

3. Who Does What at a Roles of the Parties:

Criminal Trial in England
and Wales? ➢ In a criminal trial, the prosecution and defence are
responsible for presenting their evidence. The
prosecution goes first, calling witnesses and
submitting evidence to prove the defendant's
guilt. The defence then responds with its own
evidence, attempting to refute the prosecution’s
case.

Crown Court vs. Magistrates Court:

➢ In the Crown Court, which handles serious

criminal cases, there is a clear separation of
functions:

• The judge decides questions of law,

including issues about the admissibility of
evidence.

• The jury decides questions of fact,

determining whether the prosecution has
proven its case beyond a reasonable
doubt.

➢ In the Magistrates’ Court, which deals with less

serious cases, lay magistrates determine both fact
and law, though they are advised by professional
legal advisers.

Dominance of Crown Court Model:

➢ Although the majority of cases are heard in the

Magistrates’ Court, the Crown Court system
remains the dominant model for legal
professionals. This means that much of the
procedural structure in criminal trials, including
the handling of evidence, follows the practices
used in Crown Court.

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 Procedural Fairness:

➢ Procedural fairness is maintained through the

division of responsibilities between the judge and
jury. The judge ensures that the rules of evidence
are followed, while the jury evaluates the facts
without legal bias, providing an impartial verdict
based solely on admissible evidence.

4. Structure of Crown Opening Speech:

Court Trial
➢ The prosecution typically begins the trial with an
opening speech, outlining the case and what they
intend to prove. The defence may also give an
opening speech, though this is less common.

Prosecution’s Case:

➢ The prosecution then calls its witnesses, and each

witness is questioned in examination-in-chief.
After this, the defence has the opportunity to
cross-examine the witness.

➢ Cross-examination allows the defence to

challenge the credibility and reliability of the
prosecution’s evidence.

Defence’s Case:

➢ Once the prosecution has presented its case, the

defence is given the opportunity to call its
witnesses. These witnesses undergo examination-
in-chief by the defence and can be cross-examined
by the prosecution.

Closing Speeches:

➢ Both parties (prosecution and defence) make

closing speeches, summarising their cases and
highlighting the strengths of their evidence or the
weaknesses of the opposing side’s arguments.

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 Judge’s Role:

➢ The judge then sums up the case, providing

guidance to the jury on the relevant facts and the
law that applies. The judge explains the burden of
proof and the legal standards the jury should use
in its decision-making.

Jury Verdict:

➢ The jury deliberates and delivers a verdict of guilty

or not guilty based on the evidence presented at
trial.

Procedural Fairness:

➢ Throughout this process, procedural fairness is

maintained by allowing both parties to present
evidence and challenge the other side’s evidence.
The rules of evidence ensure that only relevant
and admissible evidence is considered by the jury,
preventing undue prejudice or bias.

LECTURER’S SLIDES
Policy, Principle, and The Aims of The Law of Evidence
1. Purpose of the The law of evidence exists to serve several aims, policies, and
Law of Evidence principles. These objectives are often in tension with one another
requiring careful balancing in legal practice.

The primary aims of evidence law include:

➢ Finding the truth: Ensuring that courts reach accurate

conclusions based on reliable evidence.

➢ Fairness to individuals: Guaranteeing that the process

respects the rights of all parties, particularly the
defendant.

➢ Efficiency: Managing trials in a way that provides just

outcomes without unnecessary complexity or delays.

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Conflict between aims:

➢ The goals of truth-finding, fairness, and efficiency often

conflict. For example, rules designed to protect individual
rights (such as excluding unreliable evidence) might make
it harder for the court to uncover the full truth. Similarly,
efficiency concerns might sometimes clash with fairness,
as rushing through cases could undermine careful
consideration of evidence.

Resolving conflicts:

➢ These conflicts are typically resolved by referring to both

the public interest and ethical principles. Courts must
balance the need to maintain public confidence in the
legal system with the need to respect individual rights.

Public Interest vs. Individual Rights:

➢ The public interest often demands that justice is done

swiftly and effectively, particularly in cases involving
serious crimes, to maintain social order.

➢ On the other hand, ethical principles demand that trials

are fair to individuals, ensuring that due process is
followed, and that innocent people are not wrongfully
convicted.

Public Debate and Controversy:

➢ The rules of evidence, and the balance between these

aims, are often the subject of public debate. There is
ongoing discussion about how far the legal system should
go in allowing certain types of evidence (e.g., hearsay,
prior bad acts) and how much protection should be
afforded to the rights of the defendant.

➢ These debates reflect the broader societal struggle

between crime control and the protection of human
rights, as well as evolving public perceptions of fairness in
the justice system.

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 Procedural Fairness and Policy Principles:

Procedural fairness is central to resolving the tensions between

these competing aims. The legal system must ensure that fair
procedures are followed, even when this may conflict with the
pursuit of efficiency or public interest. This is especially true in
criminal trials, where the rights of the defendant (such as the
presumption of innocence) must be safeguarded.

2. Finding the Truth-Finding:

Truth or Facts
➢ A key principle in the law of evidence is the pursuit of
truth. Courts aim to establish accurate facts that lead to
just decisions.

➢ The Criminal Procedure Rules 2020 outline that the goal

is to “acquit the innocent and convict the guilty”,
reflecting the system’s focus on accuracy of outcomes.

Accurate Factfinding:

➢ Accurate factfinding is essential for making appropriate

legal decisions. If facts are established correctly, the court
can apply the law properly, leading to just results.

• Convicting the guilty helps deter future crime and

uphold public safety.

• Acquitting the innocent maintains the moral

legitimacy of the legal system and ensures that
individuals are not wrongfully punished.

Relevance and Reliability:

➢ For the factfinding process to be effective, the evidence

presented must be both relevant and reliable. This means
that the evidence should have a direct bearing on the
facts in issue and be dependable.

➢ Procedural fairness: Courts strive to maintain fairness by

ensuring that only reliable evidence, which can withstand
scrutiny, is presented to the factfinder (jury or judge). This
protects against wrongful convictions and biased
judgements.

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 Clear Presentation of Evidence:

➢ Evidence must be presented in a way that brings out the

truth clearly. This involves ensuring that both sides have
an opportunity to challenge the evidence through cross-
examination and argument, which helps to clarify its
relevance and reliability.

3. Dilemmas Risk of Factfinding Errors:

Around Truth-
Finding ➢ There is always a risk of error in factfinding, where the
court might reach an inaccurate conclusion based on the
evidence. These errors could lead to wrongful
convictions or the acquittal of guilty individuals.

Balancing Errors:
➢ In criminal trials, there is a deliberate emphasis on
avoiding certain types of errors, particularly the
conviction of an innocent person. This is reflected in the
presumption of innocence and the burden of proof lying
with the prosecution.

➢ Burden and Standard of Proof: The prosecution bears the

burden to prove the defendant’s guilt beyond reasonable
doubt.

➢ The law of evidence seeks to ensure that if there is doubt,

the benefit of that doubt falls to the defendant. This is
one of the safeguards to prevent factfinding errors that
would lead to wrongful convictions.

Procedural Fairness:
➢ Procedural fairness plays a central role in resolving doubts
in the search for truth. By ensuring that the burden of
proof lies with the prosecution and setting a high
standard of proof, the legal system reduces the risk of
convicting an innocent person, balancing fairness with
the need for accurate fact-finding.

4. Beyond Truth- Constraints on Factfinding:

Finding:
Procedural ➢ While the aim of trials is to find the truth, courts must
Fairness respect other values, particularly procedural fairness.
This means that the process by which the facts are

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 established must respect the rights and dignity of all
participants.

Values to Respect in Truth-Finding:

➢ Human Dignity and Autonomy: Courts must ensure that

the trial process respects individuals’ rights. For example,
evidence obtained through torture is inadmissible, as it
violates human dignity and undermines the fairness of
the proceedings.

➢ Rule of Law: The state must follow clear, pre-defined

limits in how it treats individuals, and its actions must
adhere to established legal standards.

Rights of Participation:

➢ Procedural fairness also guarantees the rights of

individuals to participate in the legal process. This
includes defendants, witnesses, and victims.

• For example, the defendant’s right to confront

prosecution witnesses is crucial to ensuring a fair
trial. It allows the defence to cross-examine and
challenge the testimony of witnesses, preventing
the court from relying on unchecked statements.

• Special measures can be taken to protect

vulnerable or intimidated witnesses (such as
allowing them to testify behind screens), while
still maintaining the fairness of the process.

5. Recognising and Fairness in the Criminal Procedure Rules 2020:

Defining
Procedural ➢ Procedural fairness is recognised as a core component of
Fairness justice in the Criminal Procedure Rules 2020. The rules
emphasise the need to deal with both the prosecution
and the defence fairly throughout the legal process.

Defendant’s Rights:

➢ Procedural fairness ensures that defendant’s rights,

especially those under Article 6 of the European

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 Convention on Human Rights (ECHR) (the right to a fair
trial), are respected.

➢ The ECHR provides a broad framework for fairness,

requiring that trials must be conducted in a manner that
ensures justice is done for all parties, including
defendants, victims, and witnesses.

Key Human Rights:

➢ Article 6 of the ECHR: Right to a fair trial.

➢ Article 3: Prohibits torture and inhumane or degrading

treatment.

➢ Article 8: Right to privacy and family life.

Human Rights Act 1998

➢ The Human Rights Act 1998 incorporates the ECHR into

domestic law, giving individuals the ability to argue for
procedural fairness in courts in relation to these
fundamental rights. This act ensures that courts respect
these international human rights obligations when
conducting trials.

6. Tensions Competing Notions:

Between the
Aims of the Law ➢ The law of evidence is influenced by changing and
of Evidence competing notions of ethical principles (fairness to
individuals) and the public interest (the consequences of
society).

Three Major Public Concerns:

➢ Over the last 60 years, three major public concerns have

influenced debates about the rules of evidence:

• Crime Control and the Victim: The need to control

and ensure that victims receive justice.

• False Convictions: Addressing the issue of

wrongful convictions and ensuring procedural

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 safeguards prevent innocent individuals from
being convicted.

• Fundamental Human Rights: Ensuring that the

legal process respects human rights, as reflected
in international conventions like the ECHR.

Legislative and Case Law Developments:

➢ These concerns are reflected in modern legislation and

case law, which often address:

• Wider admissibility of previous convictions and

out-of-court statements.

• Qualifications to the right to silence: There are

now exceptions to this right in certain situations.

• Greater protection for witnesses and complaints

in sexual offenses, ensuring they can testify
without intimidation.

• Closer regulation of police interrogations and ID

evidence to prevent miscarriages of justice.

7. What Do We Balancing the Aims of Justice:

Want (and Can
We Have It All) ➢ The law of evidence tries to balance several key
objectives:

• Acquitting the innocent and preventing wrongful

convictions.

• Convicting the guilty and punishing wrongdoers to

control crime.

• Treating individuals fairly during the legal process,

including defendants, victims, and witnesses.

• Protecting the citizens from excessive state

intervention or coercive action.

• Maintaining the legitimacy and credibility of the

criminal justice system.

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 • Efficiency: Achieving the best outcomes at the
lower cost.

Can We Achieve All These Goals?

➢ The legal system continually tries to strike a balance

between these sometimes conflicting aims. It is difficult
to perfectly achieve all of them simultaneously, but the
law of evidence helps manage these tensions by
providing rules that ensure fairness, accuracy, and
legitimacy in legal proceedings.

KEY CONCEPTS
1. Relevance and Although relevant evidence is the starting point, not all relevant
Admissibility evidence will automatically be admissible in court. There are
additional legal tests that determine whether relevant evidence
can actually be used in a trial.
Inadmissible Evidence:

➢ Sometimes, evidence that is clearly relevant may be

inadmissible because of legal rules that exclude it. For
instance, even if a piece of evidence is relevant, it could
be excluded if it was obtained illegally or if admitting it
would unfairly prejudice the jury.

➢ Exclusion Rules: The court may exclude relevant evidence

if it would be unfair to the defendant or if admitting it
would violate certain legal principles (e.g., evidence
obtained through torture or illegal searches is usually
inadmissible, even if it’s relevant).

Judicial Discretion:

➢ Judges have the power to exclude even relevant and

otherwise admissible evidence if admitting it would be
unfair or would unnecessarily complicate the trial.

➢ For example, a judge might exclude evidence that is only

marginally relevant if it would take up too much time or
if its admission would confuse the jury. This is a
discretionary decision, which means it’s up to the judge
to decide based on the circumstances of the case.

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2. Defining ➢ For any evidence to be admissible in court, it must first be
Relevance relevant.

➢ Relevance is a basic threshold test. It means that the

evidence must have some logical connection to the case.
Specifically, it must tend to prove or disprove a fact that
is in issue.

Legal Definition of Relevance:

➢ According to Lord Simon in DPP v Killbourne: “Relevant

evidence is evidence which makes the matter which
requires proof more or less probable.”

➢ Example: Suppose a GPS tracker on the defendant’s

phone shows they were near the crime scene at the time
of the murder. While this doesn’t definitively prove guilt,
it increases the likelihood that the defendant could have
committed the crime, making the evidence relevant.

➢ Judges often decide whether evidence is relevant. If the

relevance is only marginal (i.e., has little impact), judges
might exclude it because it’s not worth the additional
time, cost, or complexity.

3. Facts in Issue ➢ Facts in issue are the specific facts that must be proven
for a legal case to have its desired outcome.

• For example, in a criminal case, this could mean

proving elements like intent or the occurrence of
a particular act.

➢ These facts are defined by the substantive law applicable

to the case. For example, in a theft case, the prosecution
must prove facts like the intention to permanently
deprive someone of property.

➢ Terms used synonymously with “facts in issue” include

material facts, constitutive facts, and ultimate facts.

➢ Using Section 47 of the Offences Against The Person Act

1861 as an example:

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 • The prosecution must prove:

- The defendant unlawfully assaulted the

victim.

- The defendant intended or was reckless in

causing harm.

- The victim suffered actual bodily harm.

• These are the facts in issue in this particular

offence, meaning the prosecution must prove
each of these facts to secure a conviction.

4. Facts Relevant ➢ These are facts that don’t directly prove a fact in issue but
to Facts in Issue help support an inference that a fact in issue is true or
false.

• For example, motive in a murder case doesn’t

directly prove that the defendant killed the victim,
but it makes it more likely that they had a reason
to do so, making it relevant.

➢ Facts relevant to facts in issue are defined by the parties,

under the control of the trial judge (TJ).

➢ Other terms for these include evidentiary facts or

secondary facts.

5. Weight of ➢ Weight refers to how strongly a piece of evidence tends

Evidence to prove the fact it is intended to prove.
• This is often called the probative value of the
evidence.

➢ The factfinders (e.g., the jury or judge in civil cases)

determine how much weight to give to the evidence.

• Judges decide questions of relevance and

admissibility, but the jury decides the weight of
the evidence.

➢ Judges can sometimes make factual determinations when

the law requires them to.

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6. Sufficiency of ➢ After the prosecution presents its evidence, the defense
Evidence and No may submit a motion that there is "no case to answer" –
Case to Answer arguing that the prosecution has not provided sufficient
evidence to prove its case.

• If the judge agrees, they may direct an acquittal,

meaning the defendant is found not guilty
without the jury even considering the case.

• Judges can even withdraw the case from the jury

if they feel that no reasonable jury could convict
based on the evidence presented.

• A famous example is R v Brown, where insufficient

evidence could lead to an acquittal.

• However, judges cannot direct a guilty verdict –

this remains the jury’s role. Cases like DPP v
Stonehouse reaffirm this point.

7. Judicial ➢ At the end of a trial, the judge must summarise both the
Influence on law and the evidence for the jury.
Factual
Determination • Judges explain the legal standards, such as the
(Summing Up) burden and standard of proof, as well as the
elements of the offence and any applicable
defences.
• They also summarise the evidence and may
comment on:

- The credibility of witnesses,

- The inferences the jury could draw from the

evidence,

- The weight of the evidence.

➢ As long as the judge presents the case fairly, higher courts

are reluctant to intervene in these comments.

8. Burdens and ➢ The burden of proof is the legal obligation to convince the
Standards of factfinder (jury or judge) of the truth of a particular fact.
Proof
• It answers the question: Who should bear the risk
of losing the case?

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 ➢ In many cases, different elements of the case may place
the burden on different parties.

➢ The standard of proof refers to the level of certainty

required to satisfy the factfinder.

• In criminal cases, this is usually beyond

reasonable doubt.

• In civil cases, it is often a balance of probabilities

(more likely than not).

9. Legal Burdens ➢ Legal burden of proof: The obligation to convince the

and Evidential factfinder to a certain standard (e.g. beyond reasonable
Burdens doubt) of the truth of the facts in issue.

• It’s also referred to as the persuasive burden or

fixed burden of proof.

➢ Evidential burden: The obligation to present enough

evidence to make a case for the factfinder to consider. If
this burden isn’t met, the judge might not allow the case
to go to the jury.

• This burden must be met before the factfinder can

assess the evidence.

10. Burden of Proof ➢ In criminal cases, the burden of proof generally rests with
in Criminal the prosecution to prove all elements of the offence.
Proceedings
• This principle is enshrined in Woolmington v DPP,
which establishes that the prosecution must
prove the defendant’s guilt.

➢ The prosecution must prove guilt beyond reasonable

doubt, unless the law explicitly shifts the burden.

11. Reversal of the ➢ While the prosecution bears the main burden, the
Burden of Proof defendant must usually satisfy the evidential burden for
certain defences, such as:

• Self-defence, Duress, and Provocation.

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 ➢ In some cases, the legal burden shifts to the defendant,
such as in:

• Insanity (under Common law),

• Diminished responsibility (under statute).

➢ For these defences, the defendant must prove the

defence on the balance of probabilities (a lower standard
than beyond reasonable doubt).

12. Standard of ➢ In most criminal cases, the standard of proof is beyond a

Proof in Criminal reasonable doubt. This means the prosecution must
Cases establish the defendant’s guilt to a very high degree of
certainty.

➢ However, when the burden of proof is placed on the

defendant for a defence (e.g., diminished responsibility),
the standard is lower: on a balance of probabilities.

• This means that the defence needs to prove that

it is more likely than not that the defence applies.

Evidence Law is a Matter of Principles, Rule and Discretions

Rules are applicable in an all-or-nothing fashion. If the facts are those stipulated in the rule,
then the rule applies.
Principles do not apply on an all-or-nothing fashion. A principle does not point conclusively to
a particular result in the way that a rule does.
Why is the difference between rules and principles of utmost importance when considering
whether and to what extent a previous case should be used in arguing a point of evidence
law?
Discretion is where the court is given liberty to choose how it would decide, based on the facts
of the given case. However, discretion is not exercised arbitrarily but in accordance with
established judicial principles. An example of discretion is found in Section 78 of the Police
and Criminal Evidence Act 1984.

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The Functions of a Judge or Jury (In a Crown Court Trial)
Indictable Offences and Summary Offences
For criminal cases, cases may be tried either as indictable offences or summary offences.
Indictable offences generally refer to the more serious offences and are tried by jury.
Meanwhile, summary offences are tried in the Magistrates Court and are tried by the judge
(Magistrate) alone; no jury is involved.

Questions of Law and Questions of Fact

In any given trial, there are two major sets of questions – questions of law and questions of
fact. In indictable offences, where cases are tried by the judge and jury, questions of law are
to be decided by the judge; whereas the questions of fact are to be decided by the jury. In
summary trials, given that a jury is not involved; both questions of law and fact are decided
by the magistrate. In Crown Court (trials by jury) cases, questions on evidence law arise in two
main contexts:
a. Admissibility of evidence.
b. Directions the judge should give to the jury in summing up.
Every summing up should contain a direction to the jury about these separate functions.

Summing Up
The task of the trial judge in summing up is to present the law and a summary of the evidence
in such a way as best to enable the jury to reach a just conclusion. That can be achieved only
if the trial judge communicates effectively to the jury the issues which they need to resolve
and their legitimate approach to the evidence relevant to those issues. Resorting to legal
phraseology is not likely to be helpful is suitable alternatives in plain English are available.
In summing up, the court has to make clear to the jury of their function as triers of fact and
the judge’s role as the trier of law. every summing up should contain a direction to the jury
about these separate functions.
A judge is entitled to give his opinion to the jury on a question of fact and to express it strongly,
provided the judge makes it clear that this is advice rather than a direction to the jury that
must be followed.
While the rule is that the judge decides only on issues of law, the following are three situations
where the judge in a criminal trial makes rulings that involve decisions about facts:
a. Where the existence of certain facts has to be established before the evidence of a
particular witness or a particular document can be admitted, it is for the judge to
decide if the fact has been established.

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 b. It is the judge’s task to decide on a defence submission that there is no case to answer,
whether there is sufficient evidence to allow the case to proceed or whether the jury
should be directed to return a verdict of not guilty without waiting to hear the case for
the defence.

c. Where evidence is said to be contaminated for the purposes of Section 107 of the
Criminal Justice Act 2003.

The European Convention on Human Rights

The European Convention on Human Rights was incorporated into English Law by the Human
Rights Act 1998. The impact of the Convention on evidence law is potentially considerable. Of
particular significance are Article 6, which provides a right to a fair trial, and Article 8, which,
provides a right to respect for private and family life.

Conduct of a Trial

CRIMINAL TRIALS
The case is begun by the party bearing the burden of proof, i.e. the prosecution
(Woolmington v DPP).

Opening Statements

The trial begins with opening statements by the prosecution where the prosecution
summarises the prosecution case, concisely outlining the facts and the matters likely to be
in dispute.

The defendant is then invited to make its opening statement where the matters in issue for
the defence are identified.

Through the opening statements, Magistrates and jurors are presented with the essence of
the prosecution’s case and the accused’s defence at the very beginning of the case.
Therefore, it is crucial for the triers of fact to focus on the issue when hearing all of the
evidence.

The Prosecution’s Case

After the opening statements, the prosecution begins the case. All prosecution witnesses
and evidence are to be presented or tendered during the prosecution’s case. Each and every
prosecution witness (and defence witness) is subject to the examination process (which
comprises of three stages – examination in chief, cross-examination, and re-examination).

Once all the prosecution witnesses have been called and testified. The prosecution closes
the case.

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 A Case to Answer

At the end of the prosecution’s case, the judge is required to make a determination of a
case to answer (R v Brown).

The principles to be applied in considering whether there is a case to be answered is

explained by the Court of Appeal in R v Galbraith:

“How then should the judge approach a submission of no case? (1) If there is no evidence
that the crime alleged has been committed by the defendant, there is no difficulty. The judge
will of course stop the case. (2) The difficulty arises where there is some evidence, but it is
of a tenuous character, for example because of inherent weakness or vagueness or because
it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the
Crown's evidence, taken at its highest, is such that a jury properly directed could not properly
convict on it, it is his duty, on a submission being made, to stop the case. (b) Where however
the Crown's evidence is such that its strength or weakness depends on the view to be taken
of a witness's reliability, or other matters which are generally speaking within the province
of the jury and where on one possible view of the facts there is evidence on which a jury
could properly come to the conclusion that the defendant is guilty, then the judge should
allow the matter to be tried by the jury. It follows that we think the second of the two schools
of thought is to be preferred.”

The application of the Galbraith test to cases based on circumstantial evidence was
considered again in Sardar (Anis), where the court cited a passage from the decision of the
Supreme Court of South Australia, in Questions of Law Reserved on Acquittal (No.2 of 1993),
by King CJ in these terms:

“If there is direct evidence which is capable of proving the charge, there is a case to answer
no matter how weak or tenuous might consider such evidence to be. If the case depends
upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a
reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of
causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is
a case to answer. There is no case to answer only if the evidence is not capable in law of
supporting a conviction. In a circumstantial case, that implies that even if all the evidence
for the prosecution was accepted and all inferences most favourable to the prosecution
which are reasonably open were drawn, a reasonable mind could not reach a conclusion of
guilty beyond reasonable doubt, or to put it another way, could not exclude all hypotheses
consistent with innocence, as not reasonably open on the evidence.”

That approach has been followed in Edwards and adopted in R v Jabber.

1. Where there is No Case to Answer

Where the judge holds that there is no case to be answered, the court may acquit
the defendant on the ground that the prosecution evidence is insufficient for any
reasonable court to properly convict (Rules 24.3 and 25.9 of the Criminal Procedure
Rules, 2015).

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 2. Where there is a Case to Answer

The court will call the defendant to enter his defence. This is known as the
defendant’s case.

The Defence’s Case

All defence witnesses and evidence are to be presented or tendered during the defence’s
case. Each and every defence witness is subject to the examination process (which
comprises of three stages – examination in chief, cross examination, and re-examination).

Once all the defence witnesses have been called and testifies. The defence closes the case.

Closing Arguments

Both prosecution and defence will sum up their cases and highlight the evidence that has
been adduced.

Summing Up and Jury Direction

At the end of the defence’s case, and before the jury goes into deliberation, the judge is
required to deliver the summing up. In the summing up, the judge has to present the law
and a summary of the evidence in such a way that will enable the jury to reach a just
conclusion. Resorting to legal phraseology is unlikely to be helpful if suitable alternatives in
plain English are available.

Different evidential issues will require different types of directions. Therefore, if it is a trial
by judge (Magistrate), then the court will deliberate and decide at this juncture.

Jury Deliberation, Verdict, and Sentencing

After the summing up, the jury goes into deliberation. After deliberation, they present their
verdict to the court – where the defendant is found guilty, sentencing will follow.

CIVIL TRIALS
Civil trials are mostly trials by judges alone.

The case is begun by the party who bears the burden of proof, and as a general rule, this
would be the plaintiff (claimant).

The plaintiff will start with his opening statement by summarising the facts and the
opposing arguments for the benefit of the judge.

As this is the plaintiff’s case, all the plaintiff’s witnesses are called to give their evidence in
support of the claimant’s case. The witnesses will be cross-examined by the defendant and

26
may be re-examined on behalf of the claimant. All relevant evidence for the plaintiff,
including documents and real evidence is to be tendered during the plaintiff’s case.

Once this is done, the plaintiff’s case is closed, and the defendant’s case begins.

He starts off with the defendant’s opening statement. Thereafter, the defendant calls his
witnesses, and they are subject to cross-examination and re-examination.

Finally, the counsel for the defendant and then the claimant will make their submissions to
the judge on the evidence and the law.

The judge then delivers the judgment.

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Facts Open to Proof or Disproof
The facts which are open to proof or disproof in English Courts of Law are:
a. Facts in issue,
b. Relevant facts, and
c. Collateral facts.

Facts in issue
A fact in issue is sometimes referred to as a 'principal fact' or 'factum probandum'. The facts
in issue in any given case are those facts which the claimant (or the prosecutor) must prove in
order to succeed in his claim (prosecution) together with those facts which the defendant (or
the accused) must prove in order to succeed in his defence. The nature and number of facts
in issue in a case is determined not by the law of evidence, but partly by reference to the
substantive law and partly by reference to what the parties allege, admit, and deny. For
example, in an action for damages for breach of contract in which the defendant simply denies
the facts on which the claimant relies for his claim, the facts in issue will be those facts which,
if proved, will establish the formation of a binding contract between the parties, breach of
contract by the defendant, and consequential loss and damage suffered by the claimant.
However, if the defendant, in his defence, pleads discharge by agreement, admitting that the
contract was made but denying the breach and loss alleged by the claimant, then the facts in
issue will then be those which, if proved, will establish breach by the defendant and
consequential loss and damage suffered by the claimant together with those facts which, if
proved, will establish that the parties discharged the contract by agreement. Another
possibility is that the defendant admits the contract and its breach and makes no
counterclaim. The only facts in issue will then be those which, if proved, will establish
consequential loss and damage and the amount of damages to which the claimant claims he
is entitled. There are many other possibilities.
In civil proceedings, the facts in issue are usually identifiable by reference to the statement of
case, its very purpose being to set out the factual (and legal) issues on which the parties agree
and disagree so that they and the court know in advance exactly what matters are left in
dispute and what facts, therefore, have to be proved or disproved at the trial.
In criminal cases in which the accused pleads not guilty, the facts in issue are all those facts
which the prosecution must prove in order to succeed, including the identity of the accused,
the commission by him of the actus reus, and the existence of any necessary knowiedge or
intent on his part, together with any further facts that the accused must prove in order to
establish any defence other than a simple denial of the prosecution case. However, under
Section 10 of the Criminal Justice Act 1967, any fact of which oral evidence may be given in
any criminal proceedings may be admitted for the purpose of those proceedings by or on
behalf of either the prosecution or defence and an admission made by any party of any such
fact shall be 'conclusive' evidence of the fact admitted. In other words, a fact which is formally

28
admitted under the section is not open to contradictory proof and in effect ceases to be a fact
in issue: the court must find the fact to have been proved.

Relevant Facts
A relevant fact, sometimes called a 'fact relevant to the issue', an 'evidentiary fact', or 'factum
probans', is a fact from which the existence or non-existence of a fact in issue may be inferred.
If the only facts which were open to proof or disproof were facts in issue, many claims and
defences would fail. If, for example, the fact in issue is whether a man shot his wife, obviously
an eyewitness to the incident may be called to give evidence that he saw the shooting.
However, in many cases a statement by a witness that he perceived a fact in issue with one of
his senses, which is described as 'direct evidence, is quite simply unavailable. Very often the
only available evidence is that which can establish some other fact or facts relevant to the fact
in issue, for example the evidence of a gunsmith that on the day before the shooting the man
bought a gun from him, the evidence of a policeman that after the shooting he found that gun
buried in the garden of the man's house, and the evidence of a forensic expert that the gun
bore the man's fingerprints. Evidence of relevant facts is described as 'circumstantial
evidence', some further examples of which are given later in this chapter. Where a party to
proceedings seeks to establish a relevant fact the existence of which is denied by his
opponent, the relevant fact may also be said to be a 'fact in issue'.

Collateral Facts
Collateral facts, sometimes referred to as 'subordinate facts', are of three kinds:
a. Facts affecting the competence of a witness,

b. Facts affecting the credibility of a witness; and

c. Facts, sometimes called 'preliminary facts', which must be proved as a condition

precedent to the admissibility of certain items of evidence tendered to prove a fact in
issue or a relevant tact.

As to the first, an example would be that a potential witness suffers from a disorder of the
mind rendering him incompetent to testify. An example of a collateral fact of the second kind
would be that a witness, who testifies to the effect that he saw a certain event at a distance
of 50 yards, suffers from an eye complaint which prevents him from seeing anything at a
distance greater than 20 yards. Such a witness may be cross-examined about his eye complaint
and, if he denies its existence, evidence in rebuttal may be given by an oculist. Similarly, a
witness may be cross-examined about his bias or partiality towards one of the parties to the
proceedings and again, if he denies it, evidence may be called to contradict his denial. A

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collateral fact of the third kind may be illustrated by reference to an exception to the rule
against hearsay: in criminal proceedings a statement made by a participant in or observer of
an event is admissible as evidence of the truth of its contents, by way of exception to the rule
against hearsay, on proof that it was made by a person so emotionally overpowered by the
event that the possibility of concoction or distortion can be disregarded? Another illustration
is an exception to the general rule that a party seeking to rely upon the contents of a
document must adduce the original: a copy is admissible as evidence of the contents on proof
that the original has been destroyed or cannot be found after due search.
Where a party to proceedings seeks to establish a collateral fact the existence of which is
denied by his opponent, the collateral fact may also be said to be a 'fact in issue'. The existence
or non-existence of a preliminary fact in issue is, as we shall see, decided by the judge, not the
jury, as part of his general function to rule on all questions concerning the
admissibility of evidence.

Relevance and Admissibility

Such evidence as a court will receive for the purpose of determining the existence or non-
existence of facts in issue is referred to as admissible evidence. The admissibility of evidence
is a matter of law for the judge. The most important feature of the English law of evidence is
that all evidence which is sufficiently relevant to prove or disprove a fact in issue and which is
not excluded by the judge, either by reason of an exclusionary rule of evidence or in the
exercise of her discretion, is admissible.
In R v Terry, it was held that evidence will be admissible if it is relevant and such that a jury,
properly warned about any defects it might have, could place some weight on it.
This is probably best understood not as the introduction of some new two-limb test for
admissibility, but as a recognition that a judge's determination as to whether evidence is
sufficiently relevant to be admissible will depend, to some extent, on her assessment of its
weight.

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Relevance
Definition of relevance
Lord Simon of Glaisdale in DPP v Killbourne:
“Evidence is relevant if it is logically probative or disprobative of some matter which requires
proof.”

Evidence is ‘probative’ of a proposition if it tends to show that proposition to be true; evidence

is ‘disapprobative’ if it tends to show that proposition to be false.
All relevant evidence is prima facie admissible. Meanwhile, irrelevant evidence is inadmissible.
In what ways the evidence is relevant? In the vast majority of cases, the law furnishes no test
of relevance but refers tacitly to logic and general experience. The key to relevance is an
understanding of the importance of generalisations about the way things are in the world.

‘In the modern law of evidence, relevance is the paramount of consideration.’ Evidence must
be relevant before it can be used in court. If it is relevant and does not infringe any
exclusionary rule, it will be admissible as a matter of law but may yet be rendered inadmissible
by the exercise of a judicial discretion to exclude it.
Thus, relevant evidence will be inadmissible either if it infringes an exclusionary rule or if it is
excluded in the exercise of discretion.
The weight to be attached to admissible evidence is a matter for the trier of fact.
The question on whether evidence is relevant depends not on abstract legal theory but on the
individual circumstances of each particular case. An item of evidence is considered relevant if
it renders the fact to be proved more probable than it would be without that evidence. Thus,
an item of evidence is relevant so long as it has probative value or probative force, however
little.

The importance of relevance can be illustrated in:

R v Toussaint-Collins
The content of a letter written to the defendant by a third party and kept by the defendant,
were held admissible to show the defendant’s state of mind.
Summary – TC was convicted of the murder, committed in the style of an execution in broad
daylight, of V who was sitting in his car. The killing was witnessed by two young girls who were
granted anonymity. Evidence was adduced from a letter from Y to TC, sent before the murder,
in which Y bemoaned the fact that the murder of their friend SS had not been avenged. The
Crown relied on the evidence to demonstrate that TC was aware of the fact that SS had been

31
killed and that his mind had been affected by that killing. The Court of Appeal agreed that this
was not hearsay evidence, and the conviction was upheld.
Analysis – The hearsay rules as redefined under the 2003 Act only applies in relation to
evidence which comprises (1) a statement, (2) made otherwise than in the course of the
present proceedings, (3) relied on for the truth of some matter stated, and (4) which matter
stated the person who made the statement had, as his purpose to cause someone to believe
or act upon. The final two elements of the rule are prone to difficulty in application.
"Here the letter was not being used by the Crown as evidence of the fact that Y was himself
annoyed that nothing had been done about the death of SS, but to establish the fact that he
had made that statement to TC. From this, the jury might infer that it would
influence TC's mind. This is similar to the famous example under the common law of
Subramaniam v PP in which D was charged with running arms in Malaya. He sought to
substantiate his plea of duress by relying on threats made to him. These were not hearsay.
There was no reliance on the truth - it did not matter if the threatener would kill D. What
mattered was that the statements were made and affected D's mind. Thus, the
statements were relevant."

R v M (Paul)
The Court of Appeal considered the relevance of an alleged statement about sexual
misconduct made by a defence witness about a matter which was not the subject of the
indictment.

The relevance of an item of evidence can determine what rules or principles of law govern
admissibility. For example, the rule against hearsay excludes an out-of-court statement only if
it is adduced in order to establish the truth of its contents. If it is tendered for some other
purpose, the rule does not apply.

R v Grant
There may be circumstances, however, where relevant evidence ought not to be left to the
jury without an accompanying judicial warning. For example, evidence that the defendant was
found with a quantity of money in his possession would be relevant to his guilt of the offence
of possession of drugs with an intent to supply them. However,
“Where such evidence [is] admitted it [is] incumbent upon the judge to give a direction to the
jury as to the way in which they should approach the question of whether the finding of the
money is probative of the necessary intent. [It is necessary for the judge to indicate that any
explanation for the money which has been put forward by way of an innocent explanation by
the accused would have to be rejected by the jury before they could regard the finding of the
money as relevant to the offence. Again, the jury should be directed that if there was any

32
possibility of the money being in the accused's possession for reasons other than drug dealing,
then the evidence would not be probative. If, on the other hand, the jury were to come to the
conclusion that the presence of the money indicated not merely past dealing, but an ongoing
dealing in drugs, then finding the money, together with the drugs in question, would be a
matter which the jury could take into account in considering whether the necessary intent
had been proved.”

Admissibility
Admissibility refers to whether the item of evidence can be tendered in court.
Admissibility is essentially a question of law – unlike relevance and weight, which are generally
considered to be questions of logic and common sense.
However, the questions of admissibility may turn on the probative function that a particular
item of evidence – that is, on its relevance. For example, with the rule against hearsay as to
whether the statement is excluded by the hearsay rule would depend on whether the
statement is being tendered for the truth of its contents or for the fact that such a statement
was made. Hence, before handling the legal question of admissibility, there is a need to clarify
the logical or common-sense question of relevance.
The basic framework is that all relevant evidence is admissible except by virtue of an
exclusionary rule or an exclusionary discretion.
Exclusionary discretion in civil trials: Rule 32.1(2) of the Criminal Procedure Rules – a judge
vested with wide discretion to exclude evidence that is relevant and admissible so as to secure
the ‘overrising objective’ – defined in Rule 2.1(2) of the Criminal Procedure Rules.
Exclusionary discretion in criminal trials: under Common Law – the court has wide discretion
to exclude prosecution evidence on the ground that its probative value is outweighed by its
prejudicial effect (note also discretion by statute – Section 78 of the Police and Criminal
Evidence Act 1984, Section 126 of the Criminal Justice Act 2003, etc).
Exercise of these discretions will inevitably require the court to consider questions of
relevancy and weight of the evidence.

The following cases illustrate the relationship and working of the concepts of relevancy and
admissibility:
1. Dishevelled condition pointing to involvement of a third party

R v Blastland

➢ Blastland was charged with buggery and murder of 12-year-old KF. B admitted
to paying KF for consensual intercourse but claimed that KF left him unharmed,
and that KF was murdered by M. This was backed up by the fact that M came

33
 back home to the woman he was living with in an agitated and dishevelled
manner claiming that a child has died today before the murder was reported.
The defence counsel was not permitted to reveal these facts to the jury at trial.
Upon appeal Lord Bridge justified the decision by saying that it lacked "direct
and immediate relevance to an issue which arises at trial," as such knowledge
could have come by in a number of different ways, some incriminating whilst
others completely innocent.

2. Prosecutions admission of facts which might point to a third-party having committed

the crime

R v Greenwood – CA (Criminal Division)

➢ The practice was long-established whereby the prosecution was prepared on

occasion, and as in the instant case, to make admissions relating to the facts
which might point to a third-party having committed the crime, which a
defendant denied committing and such evidence was admissible to be weighed
in the scales against the evidence adduced by the prosecution that the
perpetrator was the defendant charged by the prosecution. The prosecution
could not be compelled to make such admissions if it did not accept that they
pointed to the possibility of a third party being the perpetrator.

3. Evidence relevant to rebut a defence and evidence going towards bad character

R v Ilomuanya

Issue – Whether the admission of letters to the defendant (I) mentioning three
women who had been convicted of smuggling cocaine into the country had a
prejudicial effect exceeding their probative value in his trial for being knowingly
concerned in the fraudulent importation of cocaine, having met at an airport a
woman who had arrived in the country with 1kg of cocaine concealed in her
luggage.

Held:

➢ The letters did not show I’s knowledge of the drug importation by the principal
defendant. The notes demonstrate only that D has the details of people, two
of whom have previously been convicted of importation. This is quite unlike
the cases in which D's possession of drugs or paraphernalia is used to rebut his
claim that he never has anything to do with drugs.

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 ➢ Possession of documents such as those in the present case cannot be said to
be reprehensible: they certainly do not reveal any criminal conduct by their
owner. As such, their admissibility turns on the question of relevance and not
on the terms of the 2003 Act.

➢ Commonly, there will be evidence which triggers the bad character rules. If D
is in possession of drugs or paraphernalia and he denies any involvement in the
importation or supply, etc., the 2003 Act will come into play.

➢ It is submitted that in these cases, the correct approach is first to determine

relevance. If the disputed items or documents relied on are potentially relevant
as establishing knowledge or rebutting a defence of innocent association, the
next question is whether they constitute bad character within Sections 98 and
112. If it is concluded that the evidence is of bad character, the evidence then
becomes admissible for the prosecution only via one of the seven gateways in
Section 101(1). Possible gateways may include – Section 101(1)(c), Section
101(1)(f) and Section 101(1)(d).

4. No similar offences committed since the arrest of accused

In Wilson, the Court of Appeal considered the relevancy and admissibility of evidence
of the fact that no similar offences had been committed since the defendant’s arrest.
Evidence was received from a witness responsible for monitoring crime. Meanwhile,
the defence argued that the evidence was too “nebulous and prejudicial” to be
admitted, the Court of Appeal held it sufficiently probative to be admitted.

5. Discovery of drugs and cash in drug cases

The prosecution can adduce the evidence of the discovery of the drugs which he has
been charged for which should be produced as an item of real evidence, unless the
defence is prepared to make a formal admission in respect of its discovery under
Section 10 of the Criminal Justice Act 1967. Note that, if the search was unlawful a
discussion of Section 78 of the Police and Criminal Evidence Act 1984
(PACE) is required.

In Wright – Discovery of £16,000 in cash and a gold necklace worth about £9000 in the
defendant's flat was held to be relevant and admissible to support a charge of
possessing cocaine with intent to supply, on the basis that drug dealers are known to
deal in large sums of cash.

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 In Guney – Whether the evidence is relevant depends on the circumstances of each
case. Where possession with intent to supply is charged, there are many circumstances
in which evidence of cash and lifestyle might be relevant and admissible in relation to
the issue of possession itself, especially to the issue of knowledge as an ingredient of
possession.

In Grant – The defendant charged with possession of crack cocaine with intent to
supply, was found with over 900 in cash in his possession. The Court of Appeal held
that the finding of the money in the defendant's possession in conjunction with a
substantial quantity of drugs was capable of being relevant to intent to supply drugs
and could be properly admitted.

6. Threshold of admissibility and warning to be given

R v Robinson (Wayne)

Issue – Whether the victim's wife's recognition of the defendants' voice when
he gave evidence at his trial for murder and blackmail, as possibly the voice of
the man who had called her on her husband's mobile phone several months
earlier and threatened to kill her husband was wrongly admitted in evidence.

Held, dismissing the appeal:

➢ The test to be applied to determine whether to exclude evidence on

the ground that its prejudicial effect outweighed its probative value was
that if the evidence was such that a jury properly warned could place
some weight on it, it should be admitted; the basic threshold of
admissibility, being a low one.

➢ There were problems associated with voice-recognition evidence, but

those problems were no different in their general nature from the
problems frequently encountered with visual identification. In fleeting-
glimpse cases where conditions were poor, it was commonplace for the
judge to have to give a detailed warning about the dangers of reliance
on the evidence, yet those problems were not usually perceived to be
such as it would result in the evidence being regarded as inadmissible
for the test to be applied to determine whether to exclude evidence.

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Weight
The weight refers to ‘probative worth’ or ‘probative value’ of an item of evidence will generally
be determined in a criminal trial in the Crown Court by the jury.
“Weight” of evidence is the degree of probability (both intrinsically and inferentially) which is
attached to it by the tribunal of fact once it is established to be relevant and admissible in law.
Thus, where an item of evidence has been admitted in a criminal trial with a jury, it is up to
the jury to decide how much weight to place on the evidence. That is, the final decision on
how compelling the evidence is, and how far it goes in proving the matter requiring proof, is
within the province of the jury.
However, judges do decide questions of weight on a submission of no case to answer and in
exercising the judicial discretion to exclude prosecution evidence where its potential for
causing unfair prejudice to a defendant is greater than its probative value.
(PROBATIVE VALUE OUTWEIGHS ITS PREJUDICIAL EFFECT)

The weight of evidence is its cogency or probative worth in relation to the facts in issue. The
assessment of the weight in evidence is in large measure a matter of common sense and
experience, dependant upon a wide variety of facts such as:
a. The extent to which it is supported or contracted by other evidence adduced;

b. In the case of direct testimony, the demeanour, plausibility, and credibility of the
witness and all the circumstances in which she claims to have perceived a fact in issue;
and

c. In the case of hearsay, all the circumstances from which any inference can reasonably
be drawn as to the accuracy or otherwise of the out-of-court statement including, for
example, whether the statement was made contemporaneously with the occurrence
or existence of the facts stated and whether its maker had any incentive to conceal or
misrepresent the facts.

Weight, like relevance, is a question of degree: at one extreme, an item of evidence may be
of minimal probative value in relation to the facts in issue; at the other extreme, it may be
virtually conclusive of them. Where the evidence adduced by a party in relation to a fact in
issue is, even if uncontradicted, so weak that it could not reasonably justify a finding in his
favour, it is described as 'insufficient evidence'. Where the evidence adduced by a party is so
weighty that it could reasonably justify a finding in his favour, it is described as 'prima facie
evidence'. Somewhat confusingly, however, this term is also used to describe evidence
adduced by a party which is, in the absence of contradictory evidence, so weighty that it does
justify a finding in his favour. 'Conclusive evidence' might be thought to denote the weightiest
possible evidence. In fact, the term refers to evidence which, irrespective of its weight,

37
concludes the fact in issue: the fact ceases to be in issue and is not even open to contradictory
proof because the court must find the fact to have been proved.
The issue of the weight to be attached to an item of evidence is related to, but distinct from,
the issue of its admissibility. The weight of evidence is a question of fact, its admissibility a
question of law. Thus, in a jury trial, the judge decides whether an item of evidence is relevant
and admissible and, if the evidence is admitted, the jury decides what weight, if any, to attach
to it. It does not follow from this, however, that the weight of evidence is solely the concern
of the tribunal of fact. For a variety of different purposes, the judge must also form a view as
to the weight of evidence. In determining admissibility, he must consider whether evidence is
sufficiently relevant, and this will depend, to some extent, on his assessment of its weight. In
examining the evidence adduced to establish preliminary facts, which, it will be recalled, must
be proved as a condition precedent to the admissibility of certain items of evidence, the
weight of the evidence should be taken into account. As we shall see, a judge should withdraw
an issue from the tribunal of fact where a party has adduced 'insufficient evidence' in support
of that issue. As we shall also see, the judge has a discretion to exclude certain items of
evidence and, for these purposes also, may have regard to, inter alia, the weight of the
evidence in question. Last, and by no means least, in his summing-up the judge is entitled to
comment upon the cogency of the evidence admitted, provided that he does not usurp the
jury's function as the tribunal of fact.

The Course of Evidence

The Adversarial Tradition
This chapter examines the principles relating to the presentation of evidence in court. The
English trial process is based on the adversarial tradition. The adversarial model in its
paradigmatic form views the presentation of evidence as the responsibility of the parties, with
the judge playing the role of a 'neutral' umpire.
Adversarialism connotes a system of adjudication in which procedural action is controlled by
the parties and the adjudicator remains essentially passive.' Later we examine two
fundamental features of the adversarial model-the principle of orality and the notion of a
neutral judge-to determine the extent to which English law has remained committed to these
ideals.

Orality
Orality is one principal feature of the adversarial model. Heavy reliance is placed in the Anglo-
American trial process, and particularly in criminal trials, on the oral testimony of witnesses.
There are said to be substantial benefits associated with having witnesses testify publicly in
open court. It is said, in particular, that observation of a witness's demeanour provides a good
indication of the reliability of his or her testimony:

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All of us know that, in everyday life, the way a man behaves when he tells a story – his
intonations, his fidgeting or composure, his yawns, the use of his eyes, his air of candour or of
evasiveness – may furnish valuable clues to his reliability. Such clues are by no means
impeccable guides, but they are often immensely helpful.
The assumption, then, is that a person's demeanour while stating a fact provides valuable
clues about whether he or she is being truthful, whether he or she perceived the fact correctly,
and whether his or her memory is functioning effectively. The extent, however, to which this
assumption actually reflects reality is a matter of speculation.
Wellborn has reviewed a considerable body of experimental evidence relating to the utility of
demeanour in indicating unreliability. By and large, the experimental research has revealed
that demeanour is of little benefit to ordinary observers in assessing whether a person is
untruthful. First, observation of facial behaviour appears to be of little value, and there is
indeed some evidence which suggests that such observation actually decreases the accuracy
of lie detection. Secondly, little assistance would appear to be gained from listening to the
voice of the respondent, as subjects who merely read transcripts performed just as well as, or
even better than, those who heard recordings of the respondent's voice. Finally, there is no
compelling evidence that lying is accompanied by distinctive body behaviour which can be
discerned by observers. The experimental research has also revealed that demeanour may be
of even less assistance in the assessment of the accuracy of a person's perceptions and
memory. Thus, Wellborn concludes that, consistently, the experiments have demonstrated
that the capacity of ordinary people to detect unreliability by observing demeanour is simply
a myth. In the light of such considerations, the question arises whether the reliance currently
placed on oral testimony is misplaced, and whether more emphasis might be placed instead
on preparation of evidence in advance of trial.
In civil proceedings the principle of orality may be regarded as having been substantially
eroded. Rule 32.2(1)(a) of the Civil Procedure Rules pays lip-service to the principle of orality
by prescribing a general rule that, at trial, 'any fact which needs to be proved by the evidence
of witnesses is to be proved by their oral evidence given in public’. This is subject, however, to
the importance that is accorded to the use of witness statements." A witness statement is a
written statement signed by a person which contains the evidence which that person would
be allowed to give orally. ‘The court will order a party to serve on the other parties any witness
statement of the oral evidence which the party serving the statement intends to rely on in
relation to any issues of fact to be decided at the trial’. A party who has served a witness
statement and wishes to rely on the evidence of the witness 'must call the witness to give oral
evidence unless the court orders otherwise or he puts the statement in as hearsay evidence.
Significantly, however, the witness's witness statement is to stand as his or her evidence-in-
chief unless the court orders otherwise. The witness 'may with the permission of the court (a)
amplify his witness statement; and (b) give evidence in relation to new matters which have
arisen since the witness statement was served on the other parties’. Permission will be given
only if the court ‘considers that there is good reason not to confine the evidence of the witness
to the contents of his witness statement’.

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A ‘Neutral’ Judge

CALLING WITNESSES
Civil Proceedings

In civil proceedings the principle that it is the responsibility of the parties to decide what
witnesses to call would appear to be adhered to strictly. Thus, it has been held that 'it is
certainly not the law, that a judge, or any person in a judicial position, such as an arbitrator,
has any power himself to call witnesses to fact against the will of either of the parties’. The
order in which witnesses are called would also appear to be completely within the
discretion of the parties.

Criminal Proceedings

In criminal trials, the responsibility for calling witnesses rests primarily with the parties.

Generally speaking, the prosecution should secure the attendance of all witnesses whose
statements have been served upon the defence as part of the prosecution case and whose
evidence would not be admissible by way of an exception to the hearsay rule. These
witnesses should then be called to testify (or at least called and tendered for cross-
examinations), unless it is considered that the witness's evidence would be unworthy of
belief. This would be the case if the evidence is inconsistent with, or contrary to, the
prosecution case. The prosecution should not refrain from calling a witness merely because
his or her evidence would not fit in exactly with the case that the prosecution is seeking to
prove. In the Crown Court Study, the judges stated that they were aware in 19 per cent of
cases of at least one important witness who was not called by either the prosecution or the
defence.

Unlike the position in civil trials, the judge in a criminal trial does have a limited power to
call witnesses in the interests of justice. The Court of Appeal has stated:

It is well established that the judge in a criminal trial has power to call a witness. It is,
however, a power which should be used most sparingly and rarely exercised. Where the
power is exercised, it should be for achieving the ends of justice and fairness.

Similar principles apply in summary trials.

As in civil trials, the order in which witnesses are to be called in a criminal trial is generally
a matter within the discretion of the parties. Where the defendant testifies, how-ever, he
or she is to be called before the other defence witnesses, unless the court in its discretion
directs otherwise.

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 QUESTIONING WITNESSES
The power of a judge to question witnesses is heavily circumscribed. The particular
importance of ensuring that the judge in a criminal trial is not seen by the jury to be
‘descending into the arena' was emphasised by the Court of Appeal in a passage worth
quoting in full:

R v Gunning
“The judge is not an advocate. Under the English and Welsh system of criminal trials he is
much more like the umpire at a cricket match. He is certainly not the bowler, whose business
it is to get the batsman out. If a judge, without any conscious intention to be unfair, descends
into the forum and asks great numbers of pointed questions of the accused when he is giving
his evidence in-chief, the jury may very well get the impression that the judge does not
believe a word that the witness is saying and by putting these pointed questions, to which
there is sometimes only a lame answer, blows the evidence out of the water during the stage
that counsel ought to be having the opportunity to bring the evidence of the accused to the
attention of the jury in its most impressive pattern and shape. The importance of counsel
having that opportunity is not diminished – indeed it is enhanced – if the evidence emerging
in-chief is a story that takes a bit of swallowing. If the judge, when the witness is skating
over thin ice, asks pointed questions so that the ice seems to crack, the jury may very well
get the impression, however perfectly the judge may later sum up the case, that the judge
has seen through the evidence in-chief so that the jury do not take it very seriously either.”

R v Howes
The role of the judge is a delicate one:
“It is sometimes a difficult task for a judge to know when to intervene and ask questions
during the course of a jury trial. It is plainly his duty to do so when he seeks to clarify what
may be a confusion in the evidence or some other matter. But a judge always has to be
careful when he intervenes that he must not cross the line and descend from the impartiality
of the bench into the arena, as it is often put, between the prosecution and the defence.”

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The Functions of The Judge and Jury
Questions of law and fact
The resolution of disputes in courts of law gives rise to questions of fact, or questions
of law, and often both. In jury trials, the general rule is that questions of law are
decided by the judge and questions of fact by the jury. This is not as straightforward a
division as it may appear at first blush, because some questions of 'fact' for the jury,
for example the issue of recklessness, may be considered to be as many questions of
law as of fact, and some questions of 'law' for the judge, for example the existence or
non-existence of preliminary facts, are essentially questions of fact.

Questions of law for the judge include those relating to the substantive law, the
competence of a person to give evidence as a witness, the admissibility of evidence,
the withdrawal of an issue from the jury, and the way in which he should direct the
jury on both the substantive law and the evidence adduced 169 Questions of fact for
the jury include those relating to the credibility of the witnesses called, the weight to
be attached to the evidence adduced, and ultimately, of course, the existence or non-
existence of the facts in issue.

In trials on indictment without a jury, that is, complex fraud cases and trials where
there is a real danger of jury tampering, the judge decides all questions of both law
and fact and, if the accused is convicted, must give a judgment which states the
reasons for the conviction. In the case of a trial by lay justices, they decide all questions
of both law and fact, but on questions of law, including the law of evidence, questions
of mixed law and fact, and matters of practice and procedure, should give heed to the
advice of the clerk or legal adviser. Theoretically in the same position, district judges
(magistrates' courts) tend to decide questions of law as well as fact. In civil cases tried
by a judge sitting alone, the judge decides all questions of both law and fact.

Although questions of fact are generally decided by the jury, the judicial function
includes the investigation of preliminary facts (for the purpose of determining the
admissibility of evidence), the assessment of the sufficiency of evidence (for the
purpose of deciding whether to withdraw an issue from the jury), and the evaluation
of evidence adduced (for the purpose of commenting upon the matter to the jury in
summing up). Each of these matters is considered separately in this chapter.
Additionally, there is a variety of special cases in which questions of fact are also
capable of being questions of law or are treated as being questions of law or for some
other reason fall to be decided, wholly or in part, by the judge.

They include the following:

a. The construction of ordinary words

b. Corroboration

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 c. Foreign law

d. Questions of reasonableness

e. Perjury

f. Autrefois acquit and convict

g. The voir dire, or trial within a trial

The voir dire, or trial within a trial

Preliminary facts, as we have seen, must be proved as a condition precedent to the
admissibility of certain items of evidence. For example, where the prosecution propose to
adduce evidence of a confession made by the accused and the defence object to its
admissibility on the grounds that it was or may have been obtained by oppression of the
accused, or in consequence of something said or done which was likely, in the circumstances,
to render unreliable any confession which might be made by him in consequence thereof, the
court shall not allow the confession to be admitted except insofar as the prosecution prove to
the court that the confession was not obtained by such means. Proof of due search for the
original of a lost document, on the contents of which a party seeks to rely, is a condition
precedent to the admissibility of a copy of that document. Similarly, it may become necessary
to show that a person is competent to give evidence as a witness or that a witness is privileged
from answering a particular question.
Questions of this kind are matters of law for the judge. The preliminary facts may be agreed
or assumed, but where they are in dispute it is for the judge to hear evidence and adjudicate
upon them. The witnesses give their evidence on a special form of oath known as a voir dire.
The hearing before the judge is called a hearing on the voir dire or a 'trial within a trial.
In general, disputes about the admissibility of evidence in civil proceedings are best resolved
by the judge at trial rather than at a separate preliminary hearing, because at such a hearing
the judge will usually be less well informed and such a hearing can cause unnecessary
costs and delays.

In The Crown Court

In the Crown Court, questions of admissibility, including those involving the hearing of
evidence on the voir dire, are usually determined in the absence of the jury because of the
impossibility of deciding such questions without some reference either to the disputed
evidence, which in the event may be ruled inadmissible, or to other material prejudicial to the
accused.

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Thus, where the prosecution propose to adduce a certain item of evidence and the advocate
for the defence intends to make a submission that it is inadmissible, that intention will be
conveyed to the prosecution either at the Plea and Trial Preparation Hearing or immediately
before the trial commences so that the evidence is not referred to in the presence of the jury,
whether in the prosecution opening speech or otherwise. The prosecution will adduce their
evidence in the normal way but at that point in time when the evidence would otherwise be
admitted, it will be intimated to the judge that a point of law has arisen which falls to be
decided in the absence of the jury and the jury will be told to retire. Whether or not the jury,
on returning to court, hear the disputed evidence, depends, of course, on the judge's ruling on
its admissibility.

R v Reynolds
Lord Goddard CJ was of the opinion that the determination of preliminary facts in the absence
of the jury is confined to exceptional cases, such as those relating to the admissibility of a
confession, where it is almost impossible to prevent some reference to the terms of the
confession. However, the modern practice is to ask the jury to retire whenever there is a risk
of them being exposed to material which might be ruled inadmissible or which, in any event,
would be likely to prejudice the accused. The modern position, therefore, is probably
accurately reflected in r 104(c) of the United States Federal Rules, which provides that
hearings on the admissibility of confessions shall always be conducted in the absence of the
jury and that hearings on other matters shall be so conducted when the interests of justice
require.

In Criminal Proceedings in The Magistrates Court

F (an infant) v Chief Constable of Kent
Lord Lane CJ observed that since the function of the voir dire is to allow the arbiter of law to
decide a legal point in the absence of the arbiter of fact, in proceedings before magistrates,
where the justices are judges of both fact and law, there can be no question of a trial within a
trial. In that case, it was held that once the question of the admissibility of a confession has
been decided as a separate issue, the magistrates having heard evidence on the preliminary
facts and having ruled in favour of admissibility, it is unnecessary for the evidence about the
confession to be repeated later in the trial proper. Lord Lane CJ also held that it was impossible
to lay down any general rule as to when a question of admissibility should be taken in a
summary trial or as to when the magistrates should announce their decision on it, every case
being different.

R v Epping and Ongar Justices, ex p Manby

This flexible approach was reiterated in this case, where the accused contested the
admissibility of certain documentary evidence tendered by the prosecution and sought leave

44
to have the question resolved as a preliminary issue. The magistrates refused and admitted
the evidence as providing a prima facie case for the accused to deal with later, if he saw fit.
The Divisional Court held that the justices had not erred: within statutory constraints, they
should determine their own procedure.

Section 78 of the 1984 Act, whereby a criminal court has a discretion to exclude evidence on
which the prosecution propose to rely on the grounds that it would have an adverse effect on
the fairness of the proceedings, is not a statutory constraint for these purposes and
accordingly does not entitle an accused to have an issue of admissibility settled as a
preliminary issue in a trial within a trial.

Halawa v Federation Against Copyright Theft

It was held that the duty of a magistrate, on an application under Section 78, is either to deal
with it when it arises or to leave the decision until the end of the hearing, the objective being
to secure that the trial is fair and just to both sides. Thus, in some cases there will be a trial
within a trial in which the accused is given the opportunity to exclude the evidence before he
is required to give evidence on the main issues (because, if denied that opportunity, his right
to remain silent on the main issues is impaired); but in most cases the better course will be
for the whole of the prosecution case to be heard, including the disputed evidence, before
any trial within a trial is held. In order to decide, the court may ask the accused the extent of
the issues to be addressed by his evidence in the trial within a trial-a trial within a trial might
be appropriate if the issues are limited, but not if it is likely to be protracted, raising issues
which will have to be re-examined in the trial proper.

Where justices resolve to exclude, under Section 78, evidence of statements made by an
accused, they should consider, after seeking the views of the parties, whether the substantive
hearing – if there still is one – should be conducted by a differently constituted bench.
Section 76(2) of the 1984 Act is a statutory constraint and an exception to the generally flexible
approach.

R v Liverpool Juvenile Court, ex p R

The Divisional Court held that if, in a summary trial, the accused, before the close of the
prosecution case, represents to the court that a confession was or may have been obtained
by the methods set out in Section 76(2), the magistrates are required to hold a trial within a
trial, in which the accused is entitled to give evidence relating to the issue of admissibility, and
are also required to make their ruling on admissibility before or at the end of the prosecution
case. In such a case, an alternative contention based on Section 78 would also be examined
at the same trial within a trial, at the same time.

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