TUTORIAL 1 – INTRODUCTION TO THE LAW OF EVIDENCE

By the end of this tutorial, you should be able to:

1. Identify the underlying purposes of the law of evidence and any tensions that may
exist between them and explain how these tensions influence debates about and
interpretations of fundamental concepts.

2. Identify the key characteristics of adversarial criminal procedure and explain how the
trial process in England and Wales might be considered adversarial.

3. Outline the order of events in criminal trials and describe the basic division of
responsibility for decision-making between the judge and factfinder in both criminal
and civil proceedings.

4. Define and distinguish key terms and concepts fundamental to the law of evidence,
including:

a. Burden and standard of proof;

b. Legal and evidential burden;
c. Relevance and admissibility;
d. ‘Facts in issue’ and ‘Facts relevant to facts in issue’;
e. ‘Direct’, ‘Indirect’, and ‘Circumstantial’ evidence;
f. ‘Hearsay’ and ‘Direct’ evidence;
g. ‘Probative value’ and ‘Prejudicial effect’;
h. ‘Objects of proof’ and ‘Means of proof’.

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Here are 10 key questions to guide your reading and preparation for the small group
discussion. As you work through your preparation, use these questions to focus your reading
and come prepared to discuss them. While we may not cover all of them, you should be ready
to talk about any of them.

1. What is the key aims or objectives of the law of criminal evidence? Can you identify
any potential tensions or contradictions that might arise between different objectives
in specific cases?

The key aims or objectives of the law of evidence:

a. The law of evidence plays a crucial role in guiding judges and juries as they
evaluate the facts presented to them, ensuring that they reach informed
conclusions based on reliable information.

b. It filters out unreliable evidence, ensuring that the fact-finding process is

rigorous and grounded in credible information.

c. It provides clear guidelines on the presentation and consideration of

evidence, assisting legal actors – such as lawyers, judges, and juries – in
making informed decisions.

Fairness vs. Truth-Seeking

In some cases, evidence that could lead to the truth may be excluded because it was
obtained unlawfully (e.g., without a warrant), which can create a tension between
the desire to reveal the truth and the need to protect defendants' rights.

Prejudicial Effect vs. Probative Value

The aim of the prosecution in criminal trials is to prove allegations against the
defendant beyond a reasonable doubt, which necessitates presenting substantial
evidence to support their case. However, this goal seems at odds with the judicial
discretion granted to judges to exclude evidence under common law and the Police
and Criminal Evidence Act 1984, particularly when the prejudicial effect of such
evidence may outweigh its probative value.

This creates a tension: if the prosecution possesses strong evidence that could lead
to a conviction, but that evidence might sway the jury or judge, the prosecution may
be required to omit it. This raises questions about the fundamental purpose of the
prosecution – to punish wrongdoers and secure convictions – by potentially
undermining their ability to present a complete case.

Such exclusions could lead to an outcome where justice is not fully served,
challenging the effectiveness of the legal system in holding individuals accountable.

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2. Why did the trial judge in the case of Christopher John Halliwell (see the extracts linked
above) exclude the confessions he made to Detective Superintendent Steve Fulcher?
Do you believe the judge made the right decision? Be prepared to support your
opinion with reasoning.

a. Breach of Police and Criminal Evidence Act 1984 (PACE):

• Detective Superintendent Steve Fulcher conducted the "urgent
interview" without following the guidelines of PACE, particularly in
relation to the defendant’s rights after arrest.

• Under PACE, suspects must be informed of their rights, including the

right to legal representation and being cautioned before questioning.
Fulcher did not properly caution Halliwell during the interrogation.

b. Denial of Legal Representation:

• Halliwell was not provided access to a solicitor, which is a
fundamental right under PACE.

• Despite Halliwell being entitled to legal advice, Fulcher continued to

question him without a solicitor present, further violating Halliwell’s
rights.

c. Extended and Coercive Interrogation:

• Halliwell was subjected to an interrogation for hours between his
arrest at 11:06 am and his arrival at the police station around 3:15
pm.

• The police pressured Halliwell to confess and reveal the location of

the bodies during this time, which amounted to coercive questioning,
not done in compliance with standard procedures.

d. Failure to Follow Urgent Interview Protocols:

• The police invoked an “urgent interview” procedure under PACE
Code C (used in emergency situations when immediate questioning
is necessary to prevent harm or recover evidence).

• However, even within the urgent interview framework, all other PACE
rules (such as providing a caution and access to a solicitor) must still
be followed. Fulcher did not comply with these rules, making the
interview improper.

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 5. Oppression Concerns:
• The judge ruled that there was a risk of oppression in the manner
Halliwell was questioned, as Fulcher designed the questioning to
persuade Halliwell to speak despite Halliwell’s earlier expression of
not wanting to repeat his statements to others.

• The questioning was deliberately done in circumstances where

Halliwell was vulnerable, further tainting the confession.

6. Substantial and Irretrievable Breaches:

• The breaches of PACE were deemed “substantial and irretrievable”
by the trial judge. This meant that the violations were so serious that
they could not be remedied or overlooked.

• As a result, the evidence obtained during that period, including

Halliwell’s confessions, was excluded.

No, the judge did not make the right decision:

In the case of R v Leatham, Crompton J emphasised that the origins of evidence,
even if unlawfully obtained, should not prevent its admissibility if it holds significant
probative value. In Halliwell's case, despite breaching the PACE Act, the confession
provided concrete evidence regarding the whereabouts of the missing girls’ bodies.
The seriousness of the crime and the urgency of justice suggest that the confession’s
truthfulness outweighs procedural missteps. If Halliwell showed no mercy to his
victims, it raises the question of why he should be afforded such mercy during his
arrest. The primary focus should be on uncovering the truth and ensuring justice for
the victims and their families, which the confession directly contributes to.

Yes, the judge made the right decision:

Conversely, the judge’s ruling aligns with the principles set forth in the European
Convention on Human Rights (ECHR), to which the UK is a party. The incorporation
of the ECHR into domestic law via the Human Rights Act 1998 mandates that law
enforcement must uphold the rights and dignity of individuals during arrest and
interrogation. Sections 6 and 7 of this Act emphasise the necessity of protecting
human rights, even for those accused of serious crimes. By excluding the confession,
the judge upheld these crucial legal protections, reinforcing the idea that the ends
do not justify the means. Ensuring that all evidence is obtained lawfully preserves
the integrity of the legal system and safeguards the rights of all individuals.

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3. What are the key characteristics of adversarial criminal procedure?

a. Two Opposing Parties: The system is based on a contest between two sides
– the prosecution and the defence. Each party presents its case, arguments,
and evidence to an impartial judge or jury.

b. Role of the Judge: The judge acts as a neutral arbiter, ensuring that legal rules
are followed and that both parties have a fair opportunity to present their
cases. The judge does not actively investigate the case.

c. The Principle of Orality: The emphasis on oral presentations of evidence and

arguments in court, rather than relying primarily on written documents.
Witnesses are typically required to provide live testimony in court, allowing
for direct questioning and cross-examination. This helps to assess credibility
and allows for immediate interaction. Arguments, evidence, and legal
submissions are presented orally during the trial, promoting spontaneity and
responsiveness. This contrasts with systems that rely heavily on written
submissions.

4. How is the adversarial tradition reflected in the presentation of evidence at trial, and
in the respective roles of the prosecutor, defence, and judge?

Presentation of Evidence
a. Party Control: Each side (the prosecution and the defence) controls the
presentation of their own evidence. The prosecution presents its case first,
followed by the defence, emphasising the competitive nature of the process.
b. Direct and Cross-Examination: Witnesses are examined in two stages – direct
examination by the party that called them and cross-examination by the
opposing party. This allows for rigorous questioning and challenges to the
credibility of witnesses.

Roles
Prosecutor:
a. Burden of Proof: The prosecutor has the responsibility to prove the
defendant's guilt beyond a reasonable doubt.

b. Presentation of Case: The prosecutor presents evidence and witnesses to

support the charges, striving to establish a compelling narrative of guilt.

Defence:
a. Challenging the Prosecution: The defence’s primary role is to challenge the
prosecution’s case, raising reasonable doubts and advocating for the rights
of the accused.

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 b. Presenting a Case: The defence may present its own evidence and witnesses
to support its arguments or to establish alternative narratives.

Judge:
a. Neutral Arbiter: The judge maintains impartiality, ensuring that the trial
proceeds according to legal standards and rules of evidence.

b. Rulings on Evidence: The judge decides on the admissibility of evidence,

balancing probative value against potential prejudice.

5.

a. Define and distinguish the following evidential concepts:

❖ Relevance – Lord Simon in DPP v Killbourne: ‘Evidence is relevant if it is logically

probative or disapprobative of some matter which requires proof.’

❖ Admissibility – Admissibility refers to whether the item of evidence can be

tendered in court.

❖ Weight, cogency, probative value – Weight refers to the strength or persuasiveness

of the evidence presented in a case. It assesses how compelling the evidence is in
supporting a party's argument or claim. Cogency refers to the clarity and logical
coherence of the evidence presented. It relates to how well the evidence supports
the argument being made and its ability to create a convincing narrative. Probative
value refers to the ability of evidence to prove something relevant to the case,
particularly in relation to the facts in dispute. It assesses whether the evidence
makes a fact more or less probable than it would be without the evidence.

b. Who decides these questions, and at what stage in the trial?

Relevance:
• The judge decides whether evidence is relevant. This decision is typically
made before the evidence is presented to the jury. The judge assesses
whether the evidence has logical probative value or disapprobative value
in relation to a fact that requires proof in the case.

Admissibility:
• The judge also decides the admissibility of evidence. This decision is
usually made during pre-trial hearings or at trial (Voir Dire), outside the
presence of the jury. The judge determines whether the evidence
complies with legal rules and principles, such as those related to hearsay,
privilege, or whether the evidence was obtained unlawfully.

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 Weight, Cogency, and Probative Value:
• These are assessed by the jury (or the judge in a bench trial) during the
trial. After the judge has ruled on admissibility, the jury evaluates how
much weight to give to the evidence, how cogent the evidence is, and its
overall probative value. The jury will consider the credibility, reliability,
and strength of the evidence when deciding on the facts of the case and
the ultimate verdict.

6. What is the relationship between relevance and admissibility?

For evidence to be admissible, it must be relevant. While irrelevant evidence is

inadmissible, not all relevant evidence is necessarily admissible. If the relevant
evidence 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 judicial discretion to
exclude it.

7. What do lawyers mean when they refer to “objects of proof”? How does this concept
differ from “means of proof”?

When lawyers refer to "objects of proof," they are talking about the facts or issues
that need to be established or proven in a case. These are the specific elements that
must be demonstrated to support a legal argument or claim, such as the occurrence
of an event or the intentions of a party.

In contrast, "means of proof" refers to the methods or tools used to establish those
facts. This can include various types of evidence, such as witness testimony,
documents, physical evidence, or expert opinions.

In summary, "objects of proof" are the facts that need to be proven, while "means
of proof" are the ways in which those facts are demonstrated.

8. What is meant by “facts in issue” and “facts relevant to facts in issue”, and how do we
determine what they are in a given case?

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. Facts in issue refer to the specific facts that are central to a legal dispute
and must be established for a party to succeed in their claim or defence.

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

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 issue may be inferred. Facts relevant to facts in issue are additional facts that, while
not the primary focus, can help establish, support, or undermine the facts in issue.

9. What do the terms “direct”, “indirect”, and “circumstantial evidence” mean? Can you
think of examples for each?

Direct Evidence
• This is evidence that directly proves a fact without the need for any inference
or presumption. It provides straightforward proof of an assertion.

Example: A witness testifies that they saw the defendant commit a crime.
This testimony directly supports the claim.

Indirect Evidence
• This type of evidence does not directly prove a fact but instead suggests a
conclusion based on circumstances. It may require inference to connect it to
the fact in issue.

Example: A witness hears gunshots and sees someone running away from
the scene. While this doesn’t directly prove who fired the gun, it implies
involvement based on the circumstances.

Circumstantial Evidence
• This is a subset of indirect evidence that relies on the surrounding
circumstances to suggest a conclusion. It requires a logical connection
between the evidence and the fact being proven.

Example: Finding the defendant's fingerprints on a weapon used in a crime

can suggest their involvement, even though it does not directly prove they
committed the act.

10. Distinguish between the burden of proof and the standard of proof in civil and criminal
proceedings.

Burden of Proof
Definition: The burden of proof refers to the obligation of a party to prove their
claims or defences in a legal proceeding.

In Criminal Proceedings: The burden of proof typically rests with the prosecution,
meaning they must prove the defendant's guilt. The defendant does not have to
prove their innocence.

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In Civil Proceedings: The burden of proof generally lies with the plaintiff (the party
bringing the lawsuit), who must prove their case against the defendant.

Standard of Proof
Definition: The standard of proof refers to the level of certainty required to meet
the burden of proof in a legal case.

In Criminal Proceedings: Where the prosecution bears the legal burden of proving
a particular issue, it must be proved ‘beyond a reasonable doubt’. Where the
defence bears the legal burden of proving a particular issue, it need only be proved
on the 'preponderance of probability’, or, as it is more commonly termed, on the
'balance of probability'.

In Civil Proceedings: Proof is made on the balance of probabilities in civil trials.