Chapter 1

Do you think that all relevant evidence should automatically be admissible? Give reasons for your answer.

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Answer

The answer to this is clearly no for a number of reasons. Evidence may be relevant but not admissible because it may have been collected in an unlawful manner for example a forced confession. Whilst it is important for the courts to safeguard the need for justice this must be balanced with the preservation of the integrity of the law and the courts own processes. Furthermore, it would be counter-productive if there were a requirement to adduce all the relevant evidence that goes to proving a fact in issue.

What are commonly regarded as facts in issue in a set of civil proceedings? Think of examples from particular actions for instance negligence or breach of contract.

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Answer

In a civil action the facts in issue are those that need to be proven if a claim is to be successful. In a claim for negligence the claimant must prove that the defendant owed them a duty of care, which the defendant breached and that breach resulted in the claimant suffering damage.

If probative evidence persuades that there is a higher probability that a fact in issue is probably true, why do you think that evidence whose probative worth is outweighed by its potential prejudicial effect is excluded?

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Answer

The prejudicial factor(s) may lead the jury to make a decision on an improper basis.

What roles do the judge and jury play in criminal proceedings?

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Answer

In criminal proceedings in an adversarial justice system the judge acts as trial manager ensuring that the case is conducted within the confines of the law and procedure. This is a less active role than in an inquisitorial justice system where judges are responsible for supervising the collection of the evidence that will help resolve the final issue. The jury, also referred to as the trier of fact, must decide on the final issue i.e. guilty or not.

Who decides questions of fact and law?

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Answer

The majority of questions of fact are decided by the jury other than the meaning of a term in an unusual context – this is a question of fact for the trial judge. Questions of law are decided by the judge.

Do you think that there should be limitations on when a judge can rely on their specialist knowledge?

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Answer

The present rules do not allow trial judges in the crown court to substitute their specialist knowledge over the requirement for evidence to prove the fact in issue. The risk on limiting this could be counterproductive in terms of efficiency. In contrast, magistrates may rely on their specialist knowledge to assess the weight of particular evidence. 

Chapter 2

Summarise your understanding of the legal burden of proof

The party asserting a fact will bear the legal burden to prove that to be believable to the requisite standard of proof. In a criminal case this will normally be the prosecution, the evidence must satisfy the tribunal of fact beyond reasonable doubt. Where a defendant bears the legal burden in criminal proceedings perhaps by reason of statute for instance in relation to a defence they have raised such as insanity, then it will be discharged on the balance of probabilities (civil standard of proof). The latter relates to the argument that placing a legal burden on a defendant is inconsistent with the presumption of innocence. In a civil case the claimant will bear the legal burden of proof and it will be satisfied where they prove that on the balance of probabilities that which they assert is true.

How is the evidential burden of proof defined?

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Answer

This is defined as the requirement to adduce sufficient enough evidence so as to raise a fact in issue and make it a live issue in the trial.

What is a reverse burden of proof?

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Answer

A reverse burden of proof is created when a statute imposes a legal burden on a defendant to prove a defence for instance where a provision states ‘the defendant will have a defence if he proves that he or she did reasonably believe a, b or c at the time the committed the offence’. More often than not this relates to the mental element for example insanity.

What is the effect of the HRA 1998 on placing the burden of proof on a defendant?

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Answer

The presumption of innocence has generally meant that even where a defendant bares the legal burden to prove something then that need only be satisfied to the civil standard of proof (on the balance of probabilities). Although derogation from the presumption of innocence is permissible because it is not absolute the imposition of the legal burden of proof on a defendant must be justified as being fair and reasonable.

In a civil case what factor determines who bears the burden of proof on an essential issue?

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Answer

The burden of proof will be placed on he or she who makes the affirmative allegation. This is determined by exploring the substance of the issue itself. Note the use of a negative term to assert a positive action will not affect who bears the burden for example if the claimant claims that the defendant failed to carry out his duties to a reasonable standard then the claimant must prove that, there is no requirement on the defendant to prove that they did do the work to the requisite contractual standard.

Is the term ‘beyond reasonable doubt’ clear?

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Answer

The term required clarification as it was unclear. Beyond reasonable doubt is not the same as ‘beyond the shadow of a doubt’ nor ‘on the balance of probabilities’. In R v Gray (1973) 58 Cr. App. R. 177 the term was defined as ‘a reasonable doubt is that quality or kind of doubt which when you are dealing with matters of importance in your own affairs you allow to influence you one way or another.’

In what instance would a defendant in a criminal case bear the legal burden of proof?

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Answer

Statute may impose a legal burden (reverse burden of proof) on a defendant in relation to a defence

How clear is the term ‘on the balance of probabilities’?

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Answer

Although the terminology is clear its application was unclear. Lord Denning defined the term in Miller v Minister of Pensions [1947] 2 All ER 372 as ‘[a] case must be [proven to] a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘we think it more probable than not’ [then] the burden is discharged, but if the probabilities are equal it is not.’ The issue related to which standard of proof applied in a civil case where there was an allegation that a criminal offence had been committed, the answer is confirmed as the civil standard of proof on the balance of probabilities.

Chapter 3

In what instance may a co-accused give evidence on behalf of the prosecution?

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Answer

Section 53(1) of the YJCEA 1999 provides that all persons, regardless of age, are competent to give evidence in criminal proceedings. In addition, s.53(4) states that those charged with the commission of an offence, whether solely or not, are not competent to give evidence for the crown. However, a co-accused or alleged accomplice may be called as a witness for the prosecution in three different ways:

• The crown enters a nolle prosequi against that person; this is a decision not to proceed with the prosecution (s.67 of the CJA 1967). This renders the person in the same position as any other witness;
• Separate trials are ordered for all those accused;
• Where the accomplice pleads guilty they are no longer caught by s.53(4) of the YJCEA 1999. This also renders the person in the same position as any other witness.

What do you think was parliament’s intention when introducing special measures?

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Answer

Special measures introduced under the Youth Justice and Criminal Evidence Act 1999 are designed to facilitate the collection and giving of evidence by those witnesses that are disabled, vulnerable or intimidated. The measures are designed to help alleviate the stress of giving evidence and should result in the best possible evidence being elicited. In addition, witnesses are key to ensuring that the criminal justice system is effective, that justice is delivered and that public confidence in the system is promoted.

Chapter 4

What is the purpose of examination-in-chief?

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Answer

The purpose of examination-in-chief is either elicit evidence that supports (prosecution) or undermines (defence) the facts in issue and to raise any defence. A witness being examined-in-chief will give evidence relevant to the facts in issue of which they have personal knowledge; things they heard, saw or perceived themselves.

Think of an example in which a witness may be deemed as being hostile to the interests of the party calling them.

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Answer

In a case where the victim of a crime begins to give evidence and then decides mid-way through the process that they no longer wish to do so. On successful application to the trial judge the witness can be treated as being hostile and cross-examined. For an example see: R v Thompson (1977) 64 Crim App Rep 96.

Summarise how re-examination differs from cross-examination. 

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Answer

There are a number of differences between re-examination and cross-examination. The most obvious is that leading questions are permitted during cross-examination but not during re-examination. The process of cross-examination is designed to test the evidence presented, this may result in a witness’s evidence being undermined. An opposing party will seek to elicit evidence that is favourable to his or her own case from an opposition witness. Where the opposing party is successful in eliciting such evidence then re-examination gives the party calling that witness an opportunity to mitigate some of the damage that the cross-examination has done to their evidence and deal with any new evidence that may have emerged during that process. The risk in terms in re-examining a witness lies in the fact that the party calling them may end up reinforcing the damage that was done.

What purpose is served by adducing a previous consistent statement?

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Answer

Previous consistent statements were originally admissible to prove that the witness was being consistent in terms of the evidence they were now giving, the CJA 2003 prohibits such narrative. The risk was that a lie could be later corroborated by the production of a previous consistent statement. Previous consistent statements may only be adduced in three circumstances:

• By victims of sexual offences to prove consistency in the allegation they have made and to aid the jury in determining their accuracy or truthfulness (s.120(7) of the CJA 2003)
• To rebut accusations of that evidence has been recently fabricated (s.120(2) of the CJA 2003)
• Where the statement forms part of the res gestae (s.118 CJA 2003).

Chapter 5

Why do you think disclosure is required for the efficient administration of justice?

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Answer

In short, disclosure allows the parties in a civil dispute or criminal proceedings to be prepared for trial. The statutory regime under the CPR, CrPR and relevant statutes (CPIA 1996) seeks to prevent undisclosed evidence being revealed at trial because this would result in the trial being discontinued. The result of discontinuance was wasted court resources, inconvenience to witnesses and undermining of the confidence the public have in the functioning of the criminal justice system.

Summarise the rationale that underpins the privilege against self-incrimination in English law.

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Answer

The common law privilege against self-incrimination provides that any witness in court proceedings is not required to answer a question or produce a document that may incriminate him or herself and result in them being exposed to potential prosecution for the commission of criminal offences or forfeiture in England, Scotland or Wales. The privilege is intimately connected with an accused’s right to remain silent and the right to a fair trial. The rationale for its existence relates to the balance that must be struck between the interest of the state in detecting, prosecuting and punishing the commission of criminal offences and the protection of individuals (and their rights) from potential oppression through the abuse of power.

What requirements, if any, must be satisfied to claim the privilege against self-incrimination and what is the extent of the protection provided? 

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Answer

The test that must be satisfied for a claim of the privilege against self-incrimination is as follows: does the answer to the question or document potentially incriminate the witness, their spouse or the company and is a relevant criminal prosecution reasonably likely to be pursued as a result of the answer or disclosure of the document. The danger of incrimination must be ‘real and appreciable’, and not just a mere possibility. There are a number of statutory exceptions to this form of privilege being claimed for instance s.2 of the CJA 1987 assists authorities when investigating serious fraud.

In what instance can a court use answers given by a witness relating to privileged information as evidence?

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Answer

Where the right to claim the privilege against self-incrimination has been abrogated from by statute then the provisions themselves will state whether the answers to incriminating questions or incriminatory document are admissible as evidence for an example see s.174 of the Financial Services and Markets Act 2000. There is no rule that requires the court to inform the witness that they are entitled not to answer any question or produce any document that potentially incriminates them and exposes them to criminal prosecution in England, Scotland or Wales. Furthermore, if the risk for prosecution is outside of the latter jurisdiction the privilege cannot be claimed. Where a witness chooses to answer the question or produce the document concerned either knowingly or in ignorance of their rights then they cannot retract that at a later stage and claim privilege retrospectively. Where a claim of privilege has already been successful but the witness unwittingly answers an incriminating question or produces a document that does the same which leads to the discovery of other evidence then that answer is likely to remain inadmissible but the evidence discovered as a result is most likely to be admissible.

What was the significance of the decision in Waugh v British Railways Board [1980] AC 521?

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Answer

In this case the British Railways Board (BRB) produced an internal inquiry report shortly after a train crash. The BRB claimed the report to be protected from disclosure by litigation privilege. The evidence showed that it had been produced (a) to identify what had caused the train crash so that relevant safety measures could be implemented and (b) to obtain legal advice in case of any prospective litigation resulting from it. In this case the House of Lords held that a report could only be protected by litigation privilege where its dominant purpose was to obtain legal advice, thus the purpose of obtaining legal advice should be clearly paramount.

What is the rationale that underpins a claim for public interest immunity?

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Answer

Promotion of ‘common good or interest’ is the rationale that underpins a claim for public interest immunity; a notion that is also considered to be intrinsically connected to general government and law. It is generally accepted that the preservation of democracy may require politically sensitive documents relating to policy, national security or the detection of crime to be withheld from disclosure. Thus, the right to justice for a private individual is outweighed by the public interest in protecting particular types of documents or communication from disclosure unless they are required to prevent a miscarriage of justice from place (see R v Keane [1994] 1 WLR 746).

What factors does the court take into account when considering whether to grant immunity? 

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Answer

The court will take into account the arguments that favour the grant of immunity (administrative or executive) with those that are against its grant (judicial) (see Rogers v Home Secretary [1973] AC 388).

Chapter 6

Summarise the requirements of each of the ss. 34 – 37.

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Answer

The CJPOA 1994 regulates the instances in which the jury may draw adverse inferences from the silence of an accused. The statute was seen as an abrogation of an accused’s right to remain silent under the common law. The purpose of the relevant provisions was to prevent silence being used to frustrate justice and it was postulated that the potential for adverse inferences to be drawn from silence would promote individuals to plead guilty much earlier. Furthermore, evidence obtained must comply with the normal rules on admissibility. In summary ss.34 – 37 provide for adverse inferences to be drawn from an accused’s silence in the following specified circumstances:

• Section 34 of the CJPOA 1994 and s.34(2A) of the YJCEA 1999 require (a) a failure or refusal to mention any facts it would be reasonable to expect an accused to mention (b) upon being questioned (c) under caution whether before or after being charged or being told of the possibility that he or she is likely to be charged with the commission of a criminal offence (d) in an authorised place of detention (e) facts that he or she then seeks to rely on later in his or her defence
• Section 35 of the CJPOA 1994 requires (a) a failure or refusal by an accused to testify in court or (b) where he or she does testify then without good cause a failure or refusal by them to answer any question
• Section 36 requires (a) an arrest, (b) an object, substance or mark on any object, (c) that is on their person, in or on their clothing or footwear or in the place of arrest. The arresting officer must (d) reasonably believe that the object, substance or mark on any object might be attributable to the criminal offence with which the accused is charged then (e) inform the accused of that and request that they account for it at the time of arrest and (f) inform the accused of the repercussions of not doing so
• Section 37 requires (a) a failure or refusal by an accused to account in an authorised place of detention his or her presence at an incriminating place at the time an offence is alleged to have been committed, (b) the constable investigating the offence reasonably believes that his or her presence at that place and at that time may be attributable to his or her participation in the commission of the offence and (c) that they are informed of this at the time.

What is the rationale issuing a Turnbull warning? 

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Answer

Eyewitness evidence is considered to be risky because of the increased likelihood of error even where the identification is of someone with whom the witness is familiar. Thus, to help prevent further miscarriages of justice the court of appeal set out guidelines in R v Turnbull [1977] 3 All ER 549 on how this evidence should be treated. For instance where the prosecution case is either wholly or substantially based on eyewitness evidence, which the defence argue as being mistaken then the trial judge should warn the jury to be cautious and the reasons for this.

Chapter 7

Summarise the elements of the hearsay rule.

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Answer

Hearsay is a statement made by someone whether orally, in writing or by any other method of assertion out of court that is tendered as evidence to prove as true whatever was stated therein. The hearsay rule prior to the CJA 2003 stated that hearsay was inadmissible for this purpose save in particular instances and it could be adduced as evidence of other matters for example to contradict a witness who claimed they did not know the victim but had written several letters to them. Section 114 of the CJA 2003 takes an inclusionary approach providing that hearsay is admissible if it falls into one the categories as set out within it.

What was the rationale for excluding hearsay evidence?

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Answer

Hearsay was treated with caution because (a) it could not be tested through cross-examination as the person giving the evidence did not perceive the event personally, (b) human fallibility means that the recollection by the witness of what was said is prone to error and (c) the fact that a jury may give inappropriate weight to such evidence.

What is rationale that underpins the decision in Kearley?

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Answer

In this case the House of Lords held that an implied assertion namely a statement that infers a fact was inadmissible hearsay evidence. Evidence of telephone calls made to a phone seized by the police where the telephone callers believed they could obtain drugs would be relevant to prove the state of mind of the callers, which was not a fact in issue, but it was irrelevant to prove the guilty state of mind of the accused. The admission of this evidence would lead the jury to infer that the premises were being used for the sale of narcotics. The current position would be different as it is likely that this evidence would be admissible under the CJA 2003.

In what instance is the confession of A admissible as evidence against B?

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Answer

A confession is admissible as evidence against its maker or their agent regardless of whether it was made through conduct, orally or in writing. Section 76A PACE 1984 (inserted into the Act by s.128 of the CJA 2003) permits a defendant to introduce a co-defendant’s confession so long as he or she can prove (on the balance of probabilities) that it was not made using any circumstances that would render it unreliable for example by oppression. If the confession is excluded any facts are discovered by reason of it will continue to be admissible. 

Explain what is meant by the term res gestae.

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Answer

The terms res gestae are Latin for ‘things done’ and refers to the ‘state of affairs’. A res gestae statement is a spontaneous statement that is made by someone as an integral part of an event. This common law rule is expressly preserved by s.118 CJA 2003. The logic is that the statement almost forms part of the event because it is inherent to it and therefore any risk of fabrication is mitigated by the spontaneity by which it is made.

What is the rationale that underpins the need for safeguards when admitting hearsay evidence?

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Answer

Hearsay evidence was treated with caution because it could not be adequately tested at trial. Therefore, any scheme that seeks to admit hearsay as evidence requires safeguards that help minimise the inherent risk (concoction or fabrication) posed.

What is the extent or impact of the protection provided by the safeguards on hearsay evidence that is adduced at trial under one of the provisions of the CJA 2003?

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Answer

The safeguards are quite far reaching. Section 24 allows the admission of evidence relating to the credibility of the absent witness including anything that could have been put to them in cross-examination and evidence to rebut an allegation contained within the statement. Section 25 allows the court to direct the jury to acquit the accused. The court may discharge the jury where a substantial part of the prosecution case is based on hearsay evidence. Section 26 allows the court to exclude hearsay evidence where the case for admission is outweighed by the case for its exclusion and s.78 of the PACE Act 1984 allows the court to exclude any evidence, including hearsay, where the fairness of the proceedings would be adversely affected by its admission. Thus, it can be said that more than adequate protection is available that seeks to mitigate the risks attached to admitted more hearsay evidence for purposes of criminal prosecutions.

Chapter 8

What is the purpose of adducing a confession at trial?

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Answer

Confessions are statements that are wholly or partly adverse to their maker, they are tendered as evidence of the accused’s guilt and are admissible hearsay (see s.118 CJA 2003).

How is weight attributed to a confession?

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Answer

The jury will assess the weight to be attributed to a confession once it has been admitted by asking itself this question: to what extent do we believe it to be true taking into account the entirety of the circumstances. The jury would keep in mind the quality of the evidence and all the arguments each side has put forward relating to the purpose for which it is adduced.

On what basis may counsel challenge a confession?

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Answer

Section 76(2)(a) of the PACE Act 1984 allows counsel to challenge a confession on the basis that it was obtained by oppression or under s.76(2)(b) counsel may challenge a confession because it was obtained by things said or done which in the circumstances render it unreliable – this covers anything that falls short of oppression. Where either of these is proven the confession will be excluded unless the prosecution can show beyond reasonable doubt that it was not so obtained.

What are the risks associated with confession evidence?

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Answer

Such evidence is treated with caution because people may admit things for a variety of reasons that include coercion, fabrication or mental disability.

To what extent can a court exclude evidence under s.78 of the PACE Act 1984?

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Answer

The discretion of the court under s.78 of the PACE Act 1984 is broad and runs alongside the common law discretion to exclude prosecution evidence that would have an adverse effect on the fairness of the proceedings. Section 78 is prospective and therefore can only apply to evidence that is yet to be adduced not including that of a co-accused.

Section 58 allows a court to delay an accused access to legal advice. Discuss the pros and cons of this action and any relevant safeguards.

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Answer

Section 58(8A) of the PACE Act 1984 allows access to legal advice to be delayed if it would result in any other person who may be involved being alerted which may lead to the destruction of evidence or hinder the recovery of any property. In terms of safeguards, the accused must be informed that their access to legal advice is being delayed and that a full record of this is being kept on the custody information sheets. Furthermore, where the reason for the delay ceases to exist, perhaps all concerned have been arrested, then no further delay can be authorised.

Chapter 9

Summarise the rule from R v Rowton.

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Answer

Prior to the CEA 1898 and CJA 2003 statutory regimes that govern character evidence under the common law evidence of reputation that was adduced to contradict prosecution evidence relating to an accused’s guilt was inadmissible. Reputation refers to the estimation or regard with which the public holds someone. Under the common law a character witness could be adduced to confirm only the general character of an accused and the prosecution could then adduce evidence in rebuttal of this – this was referred to as the rule from Rowton.

What purpose does a Vye direction serve?

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Answer

The purpose of a Vye direction was to focus the jury’s attention on the use of good character evidence adduced by an accused. In that case the court decided that where an accused sought to establish his or her good character either prior to or at trial then the trial judge should consider issuing a direction relating to the evidence and its relevancy in terms of the accused’s credibility and propensity.

Why do you think that parliament did not define bad character to include ‘evidence to do with the alleged facts of the offence with which the defendant is charged’ nor ‘evidence of misconduct in connection with the investigation or prosecution of that offence’?

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Answer

There is much debate about the exclusion of these particular instances from the definition of bad character, which is defined as a ‘disposition towards misconduct’. In short, the exclusion from automatic admission sought to minimize the risk created by evidence that did not form part of the central set of facts which the parties should not be impeded in adducing evidence in relation to. This evidence if freely admitted would only serve to distort the jury’s good judgment (prejudice) which could result in them reaching an inappropriate conclusion that an accused has a disposition towards misconduct. Note: this evidence is admissible as evidence of guilt but it must satisfy the normal rules on relevancy.

Why were the common law rules abolished and some of them replaced by statutory provisions?

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Answer

One of the reasons for the codification of these rules was to rebalance the criminal justice process for victims and non-defendants. Further, the common law rules were created on a piecemeal basis and the introduction of an inclusive statutory scheme sought to promote consistency and clarity whilst modernising the law and making it easier for the prosecution to satisfy the legal burden of proof.  

Summarise what is meant by the terms ‘important explanatory evidence’.

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Answer

Important explanatory evidence is that without which the trier of fact or law would at least find it difficult to understand the evidence that was before them. This evidence will have substantial value in aiding the jury’s understanding of the case as a whole.

What is the purpose of adducing evidence that relates to propensity?

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Answer

The CJA 2003 covers the propensity to commit the types of offences with which the defendant is charged (s.103(1)(a)) and the propensity to be untruthful (s.103(1)(b)). Evidence relating to propensity is adduced to show that the accused has a particular character trait whether that is to target the vulnerable in the case of violent offences he or she may have previously committed or to be untruthful. In terms of the latter the accused may have previous convictions for perverting the course of justice or perjury. Such evidence makes it easier for the prosecution to satisfy the legal burden of proof.

What is the rationale that underpins adducing an accused’s bad character under s.101(1)(g)?

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Answer

The rationale is to prevent the accused from undermining the credibility of another person whilst his or her own credibility is protected from being revealed.

Why do you think the approach to the admission of bad character evidence varied between the civil and criminal courts?

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Answer

Since the CJA (2003) and its codification and modernization of the law relating to bad character evidence in criminal  proceedings, rebalancing it in favour of victims and non-defendants, the changes have had a positive effect on the admission of this evidence at trial and on the prosecutions ability to satisfy the legal burden of proof. Even though the civil courts have been much more open to receiving various forms of evidence they were reticent to accept criminal convictions as evidence in civil proceedings because of the risk they posed on influencing any subsequent decision made in the civil courts. In short, criminal convictions can be used in civil proceedings as proof in relation to specified matters (see s.7 of the CEA 1995 and ss.11 – 13 of the CEA 1968) – they will give rise to the presumption that the person was guilty.

Chapter 10

What do you think is the rationale for the admission of best evidence?

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Answer

This is the best type of proof that is available and therefore it is considered to be the most reliable. Thus, greater confidence can be placed in this as proof of something.

Who amounts to an expert for the purposes of the law?

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Answer

An expert is someone whose evidence goes beyond the competence, experience and expertise of a normal person. Therefore, an expert is someone who can form an opinion on the basis of his or her expertise. This includes those with educational qualifications such as PhDs and those with years of experience in dealing within a particular field of work.

Outline the instances in which opinion evidence may be admissible.

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Answer

Generally, opinion evidence is not admissible and the evidence of witnesses should relate to that which they themselves have perceived. There are three instances in which opinion evidence is admissible, they are expert opinion evidence, eyewitness opinion and opinion of an accused’s general reputation.

In what instances will a previous criminal conviction be admissible in a civil claim?

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Answer

There are two instances in which a previous criminal conviction is admissible in a civil claim. Section 11(1) of the CEA 1968 allows the fact that a person has been convicted of an offence in the United Kingdom for the purpose of proving that he or she committed that offence, regardless of whether or not they were convicted on a plea of guilty or otherwise. Furthermore, they do not have to be a party to the civil proceedings in which this evidence is being adduced; of course it has to be relevant. Section 11(2) allows the court to presume that the person is convicted unless they prove otherwise and any particular documents are also admissible to prove the facts upon which that conviction is based.

Which statutes regulate the admission of character evidence in criminal proceedings?

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Answer

The two statutes are the Criminal Evidence Act 1868 and the Criminal Justice Act 2003.