Unlocking the Law of Evidence 4th Edition by Charanjit Singh ISBN 9781032252735 1032252731

1 An Introduction to the Substantive Law of Evidence

1.1 Introduction

1.2 The exclusionary approach of the English law of evidence

1.3 Types of judicial evidence

1.3.1 Direct or percipient evidence

1.3.2 Circumstantial evidence

1.3.3 Hearsay

1.3.4 Original evidence

1.3.5 Primary and secondary evidence

1.3.6 Conclusive evidence

1.3.7 Presumptive or prima facie evidence

1.3.8 Oral evidence or testimony

1.3.9 Real evidence

1.4 Facts

1.4.1 Facts in issue: criminal cases

1.4.2 Facts in issue: civil cases

1.4.3 Facts in issue: formal admissions

1.4.4 Facts in issue: collateral facts

1.4.5 Facts in issue: relevant facts

1.5 Admissibility, weight and discretion

1.5.1 Admissibility

1.5.2 Weight

1.5.3 Discretion

1.6 Judge and jury

1.6.1 Questions of law

1.6.2 Questions of fact

1.7 Instances in which proof is unnecessary

1.8 The binding nature of judicial findings

1.9 Procedural rules: criminal and civil

Further reading

2 The Law of Evidence: The Burdens and Standards of Proof

2.1 Introduction

2.1.1 Several burdens

2.1.2 Legal burden

2.1.3 Evidential burden

2.1.4 Evidential burden of proof?

2.1.5 Party with legal and evidential burdens

2.1.6 Separate evidential burden

2.1.7 Importance of distinguishing legal and evidential burdens

2.2 Incidence of the legal burden of proof

2.2.1 Civil cases

2.2.2 Criminal cases – general rule – the ‘golden thread’ theory

2.2.3 Exceptions in criminal cases

2.3 Evidential burden

2.3.1 Shifting of the evidential burden

2.4 Standards of proof

2.4.1 Criminal cases

2.4.2 Discharge of the legal burden by the accused

2.4.3 Discharge of the legal burden in civil cases

2.4.4 Discharge of the evidential burden

2.5 Tactical burden

Further reading

3 Testimony of Witnesses

3.1 Introduction

3.2 Attendance of witnesses at court

3.3 Order of presentation of evidence

3.3.1 Re-opening the prosecution case

3.4 Evidence: sworn/unsworn or solemn affirmation

3.4.1 Oath

3.4.2 Solemn affirmation

3.5 Competence and compellability of witnesses

3.5.1 Civil cases

3.5.2 Sworn evidence

3.5.3 Unsworn evidence of children in civil cases

3.5.4 Criminal cases

3.5.5 Sworn/unsworn evidence

3.5.6 The defendant

3.5.7 The defendant’s spouse/civil partner in criminal cases

3.6 Special measures directions

3.7 Witness anonymity orders

3.8 Miscellaneous

3.9 Training or coaching of witnesses/familiarisation

Further reading

4 The Disclosure of Evidence and Protection from Disclosure: Privilege and Public Interest Immunity

4.1 Introduction

4.2 Disclosure

4.3 Privilege

4.3.1 Privilege against self-incrimination

4.3.2 Legal professional privilege

4.4 Journalistic privilege

4.5 Negotiations without prejudice

4.6 Public interest immunity

4.6.1 Requirements on party seeking disclosure

4.6.2 Necessity of disclosure

4.6.3 Public policy

4.6.4 Waiver and objection

4.6.5 Contrasting privilege and PII

Further reading

5 Silence: The Effect on an Accusation

5.1 Introduction

5.2 The historical development and significance of silence

5.3 Silence at common law

5.4 Silence under the CJPOA 1994

5.4.1 Section 34 – failure to mention facts when questioned

5.4.2 Section 35 – a failure to testify

5.4.3 Section 36 – failure to account for objects, substances or marks that incriminate the accused

5.5 Human rights: fair trials and adverse inferences

Further reading

6 Course of Trial

6.1 Introduction

6.2 Examination in chief

6.2.1 No leading questions

6.2.2 Refreshing the memory of witnesses

6.2.3 Unfavourable and hostile witnesses

6.2.4 Previous consistent statements (self-serving or narrative statements or the rule against manufactured evidence)

6.3 Cross-examination

6.3.1 Sections 41–43 of the Youth Justice and Criminal Evidence Act 1999

6.3.2 Chapter II – protection from cross-examination by the accused in person

6.3.3 Omission to cross-examine

6.3.4 Distinction between cross-examination as to issue and credit

6.3.5 Sections 4 and 5 of the Criminal Procedure Act 1865 (previous inconsistent statements)

6.3.6 Finality of answers to questions in cross-examination as to credit

6.3.7 Exceptions to the Hitchcock rule

Further reading

7 Hearsay: The Exclusionary Rule

7.1 Introduction

7.2 Classifying evidence as hearsay evidence

7.2.1 Rationale for exclusion

7.3 A different (inclusionary) approach under the Criminal Justice Act 2003 – in outline

7.3.1 Previous statements or assertions – analysis of hearsay

7.3.2 The purpose of tendering the evidence

7.3.3 Statements relevant only to truth

7.3.4 Original evidence/non-hearsay statements

7.4 The common law exceptions to the rule

7.4.1 The res gestae

7.4.2 Statements evidencing the physical or mental state of the maker

7.4.3 Statements by the deceased

7.4.4 Declarations against an interest

7.4.5 Declarations in the course of a duty

7.4.6 Public documents containing facts

7.4.7 Informal admissions

7.4.8 Binding admissions

7.4.9 Substance: what can be admitted?

7.5 Non-hearsay confessions

7.5.1 Other statements

Further reading

8 Hearsay: Admissibility in Criminal Cases

8.1 Introduction

8.2 The statutory exceptions and criminal cases

8.2.1 The interests of justice

8.3 Statutory exceptions and documentary hearsay

8.4 The safeguards: ss 124–126

8.5 Further exceptions to the hearsay rule

8.6 Other issues

8.7 The impact of human rights on the admission of hearsay evidence

Further reading

9 Hearsay: Civil Cases

9.1 Introduction

9.2 The use of hearsay evidence in civil cases

9.2.1 The Civil Evidence Act 1995

9.2.2 Section 1 CEA 1995

9.2.3 Section 2 CEA 1995

9.2.4 Section 3 CEA 1995

9.2.5 Section 4 CEA 1995: weight

9.2.6 Section 5 CEA 1995: competence and credibility

9.2.7 Section 6 CEA 1995: previous statements

9.2.8 Section 7 CEA 1995: common law

9.2.9 Section 8 CEA 1995

9.2.10 Sections 9 and 10 CEA 1995

Further reading

10 Confessions and Evidence Obtained Unlawfully

10.1 Introduction

10.2 The common law development of confession evidence

10.2.1 Definition of a confession

10.2.2 Admissibility

10.2.3 Exclusion: general

10.3 Exclusion: specific

10.3.1 Section 76 and exclusion by reason of oppression

10.3.2 Section 76 and exclusion by reason of unreliability

10.3.3 Causation

10.4 Exclusion of evidence under s 78 of the PACE 1984

10.5 The effect of exclusion

10.6 Presentation of confession evidence

10.6.1 Remarks that are prejudicial to a defendant

10.6.2 Remarks that exculpate or incriminate a defendant

10.6.3 Remarks that incriminate a co-accused

10.7 Challenging and using confession evidence

10.8 Confessions made by mentally handicapped persons

10.9 Other illegally obtained evidence

Further reading

11 Bad Character Evidence in Criminal Proceedings

11.1 Introduction

11.2 Meaning of character evidence prior to the Criminal Justice Act 2003

11.3 Good character

11.3.1 Directions as to good character

11.4 Disposition evidence of bad character of the defendant at common law (similar fact evidence)

11.5 Abolition of the common law rules and the Criminal Evidence Act 1898

11.6 Definition of bad character

11.6.1 Exclusion from the definition of bad character

Further reading

12 Admissibility of Bad Character Evidence of Witnesses and Defendants

12.1 Introduction and outline of the scheme of the Act

12.2 Grounds for admitting bad character evidence – non-defendant’s bad character

12.3 Requirement of leave

12.4 Bad character evidence of the defendant

12.4.1 Gateway (a) – s 101(1)(a) – ‘agreement between parties’

12.4.2 Gateway (b) – s 101(1)(b) – ‘evidence adduced by the defendant’

12.4.3 Gateway (c) – s 101(1)(c) – ‘important explanatory evidence’

12.4.4 Gateway (d) – s 101(1)(d) – ‘relevant to an important matter in issue between the defendant and the prosecution’

12.4.5 Gateway (e) – s 101(1)(e) – ‘important matter in issue between the defendant and the co-defendant’

12.4.6 Gateway (f) – s 101(1)(f) – ‘correct a false impression given by the defendant’

12.4.7 Gateway (g) – s 101(1)(g) – ‘attack on another person’s character’

12.5 Warning by judge

12.5.1 Sparing use of bad character provisions

12.5.2 Directions by the judge

12.6 Contaminated evidence

12.7 Duty to give reasons

12.8 Rules of court

12.9 Other statutes admitting evidence of the bad character of the defendant

12.10 Bad character of defendants in civil cases

Further reading

13 Corroboration, Lies, Care Warnings and Identification Evidence

13.1 Introduction

13.2 Corroboration

13.2.1 Admissible and independent evidence

13.2.2 Supporting or confirming the commission of the criminal offence by the defendant

13.3 Corroboration: as a matter of law or practice

13.4 The development of corroboration warnings

13.4.1 The evidence of an accomplice

13.4.2 The evidence of children

13.4.3 The evidence of a victim of a sexual offence

13.5 Care warnings

13.6 R v Turnbull guidelines

13.6.1 Guideline 1

13.6.2 Guideline 2

13.6.3 Guideline 3

13.6.4 Guideline 4

13.7 Voice identification or earwitness evidence

13.8 Failure to follow guidelines

13.9 Dispensation with a warning

13.10 Accused conduct: lies told by the accused (in or out of court)

Further reading

14 Opinion, Documentary and Real Evidence

14.1 Introduction

14.2 Opinion evidence

14.2.1 Expert opinion

14.3 Non-expert opinion evidence

14.4 Opinion evidence of reputation

14.5 Previous judgments – hearsay?

14.6 Common law rule: Hollington v Hewthorn

14.6.1 Section 11 CEA 1968

14.6.2 Sections 12–13 CEA 1968: adultery, paternity and defamation

14.6.3 Issues in the use of ss 11–13 CEA 1968

14.7 The use of previous criminal convictions in criminal cases

14.8 Documentary and real evidence

14.8.1 Documentary evidence

14.8.2 Real evidence

Further reading

Index