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About this book

From DNA profiling to consideration of the accused's previous conduct, the law of evidence is a fascinating amalgam of logic, common sense, philosophy and tactics. Evidence explains the fundamentals and looks at the principles behind it.

Table of Contents

Chapter 1. Introduction

Abstract
The law of evidence is a fascinating blend of practical and academic issues. It is practical because it is the law which is applied in the courts every day to determine, amongst other things, whether evidence ought to be admitted, the use which may be made of evidence once it has been admitted and the questions which witnesses may be asked. It is a body of law which must be known and understood thoroughly by any advocate (particularly those who practise in the criminal courts) as he or she may need to make submissions on a question of evidence or related procedure at very short notice. But this does not mean the law of evidence is simply a body of rules to be learnt by rote. Far from it. The law of evidence is a discipline which can and ought to be studied at an academic level, for no advocate will be able to support his or her submissions on what the law is, or on what it ought to be, or on how a discretionary power should be exercised, without an appreciation of the principles and considerations of policy which underpin the subject. Certainly one can comprehend the law of criminal evidence only if something is known of the rightsbased theories of jurisprudence, of concepts such as ‘logical relevance’ and ‘proof’, and of the weaknesses and prejudices which are an inherent part of the human psyche.
Raymond Emson

Chapter 2. Preliminaries

Abstract
The ‘facts in issue’ (sometimes referred to as ‘ultimate issues’) are the disputed issues of fact which the prosecution or claimant must prove (or disprove) in order to succeed, along with the issues of fact which the accused or civil defendant must prove in order to establish his defence. The term ‘ultimate probandum’ is sometimes used to represent what the prosecution or claimant must ultimately prove in order to succeed. The party under an obligation to prove a particular fact in issue is said to bear the ‘burden of proof’ on that issue (4.1 post). The nature and number of the facts in issue depend on the substantive law and what, if anything, has been formally admitted by the parties. The substantive law identifies the facts in issue for the type of case before the court, but once a fact has been formally admitted it ceases to be in issue and need not (indeed cannot) be proved by the adduction of evidence (4.6.3 post).
Raymond Emson

Chapter 3. Relevance and admissibility

Abstract
To be admissible any item of evidence must be relevant to a fact in issue or a collateral fact (or contribute to an explanation of the ‘background’ so that the issues can be resolved in their proper context). If, as a matter of logic, the evidence is unable to suggest whether an assertion of fact is more or less likely to be true it has no probative value and is inadmissible. This is uncontroversial, but unfortunately judges (and commentators) have sown confusion by using the words ‘relevant’ and ‘irrelevant’ in two other ways.
Raymond Emson

Chapter 4. Proof and presumptions

Abstract
The purpose of the trial is to resolve disputed issues of fact to the satisfaction of the court by the adduction of admissible evidence. The law of evidence sets out the principles and rules which determine whether evidence is admissible and, if so, whether it ought to be admitted, but it is also concerned with the process of proof . For a trial to function effectively it is necessary to understand which party is obliged to prove any disputed issue of fact (‘discharge the burden of proof’), what is meant by ‘proof’ in this context, what happens when there is no evidence in support of or against a particular factual proposition, and to what extent the tribunal of fact may rely on its own knowledge.
Raymond Emson

Chapter 5. The hearsay rule

Abstract
Hearsay is defined for civil proceedings in s. 1(2)(a ) of the Civil Evidence Act 1995 as ‘a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated’. For criminal proceedings, a similar definition can be derived from ss. 114(1) and 115(2) of the Criminal Justice Act 2003. It has been accepted that these provisions, taken together, define hearsay as ‘any representation of fact or opinion made by a person otherwise than in oral evidence in the proceedings … when tendered as evidence of any matter stated therein’ (Maher v. DPP [2006] EWHC 1271 (DC)). If a pithier definition is needed, hearsay may be described, broadly speaking, as ‘an out-of-proceedings statement tendered to prove the truth of the matter stated’ (where ‘out-of-proceedings statement’ means a statement made otherwise than by a witness giving oral evidence from the witness box or by way of a live television link during the trial; see 2.2.1 ante) . The question of hearsay will also need to be addressed, however, if a party is relying on the truth of a matter stated in any such statement, even if it is the party’s purpose to prove something else.
Raymond Emson

Chapter 6. The trial

Abstract
The trial process is broadly similar in criminal and civil proceedings, although there are significant procedural differences between jury and non-jury trials. The prosecution or claimant (‘P’) will usually give an opening speech outlining the case against the accused or civil defendant (‘D’) and identifying the factual issues which will need to be resolved. P will call their witnesses and adduce any other admissible evidence in support of their case. Each witness will be questioned by P with a view to eliciting favourable testimony (‘examination-in-chief’); and then questioned by D for the purpose of testing that witness’s evidence in chief (‘cross-examinatiori’); and then perhaps re-examined by P on any matters which were raised in cross-examination. At the close of P’s case D may make a submission to the court, particularly in criminal proceedings, that a prima facie case has not been established against him.
Raymond Emson

Chapter 7. Privilege

Abstract
The principle of free proof in relation to some evidence may have to give way to a policy consideration favouring secrecy and non-disclosure, in advance of and during a trial, not because the evidence is unreliable or likely to prejudice the tribunal of fact against a party but because the public interest favouring non-disclosure outweighs the public interest in the due administration of justice. A person may be entitled or (in the case of legal advisers and some other individuals) required to withhold relevant evidence on the ground that it is covered by a recognised ‘privilege’; or there may be a duty of non-disclosure on the ground of ‘public interest immunity’.
Raymond Emson

Chapter 8. Inferences from silence

Abstract
A party’s silence in the face of an allegation or question may be of evidential significance if a response could reasonably have been expected in the circumstances. The party’s failure to respond may amount to a tacit acceptance of an allegation made against him or demonstrate his consciousness of guilt, or it may simply undermine the credibility of a defence raised for the first time by him at the trial. In the absence of a credible alternative explanation, the party’s silence (or rather the inference drawn from it) may be significant enough to amount to an admission of liability, or it may support his opponent’s case as just another item of circumstantial evidence. Subject to any legal restriction on the nature of the inference which may properly be drawn, the tribunal of fact must rely on its experience of human nature to determine whether any inference should be drawn and, if so, its nature and cogency, taking into consideration all relevant factors such as the silent party’s personality, his innocent explanation, the context in which the question or allegation was put and the seriousness of the occasion.
Raymond Emson

Chapter 9. Confessions (and informal admissions)

Abstract
A party’s informal admission (or, in criminal proceedings, the accused’s confession) is an out-of-proceedings statement made by that party which is adverse to his case. Such admissions have long been covered by an exception to the exclusionary hearsay rule and are thus admissible to prove the truth of the matters stated. A confession or an informal admission is not conclusive evidence of any fact admitted, however; the party who made the admission may adduce other evidence at the trial to show why it should not be relied on. By contrast, a party’s formal admission is conclusive evidence of any fact admitted. The effect of any such admission is to obviate the need for the opposing party to prove the admitted fact, thereby reducing the length and cost of the trial (see 4.6.3 ante) .
Raymond Emson

Chapter 10. Evidence obtained by unlawful or unfair means

Abstract
The admissibility of unlawfully obtained evidence was first addressed at a senior level in Kuruma v. R [1955] 2 WLR 223, a case heard by the Privy Council. K had been searched by Kenyan police officers and, it was alleged, found to be in unlawful possession of two rounds of ammunition, a capital offence under the Emergency Regulations then in force. The law provided that only an officer of or above the rank of assistant inspector could lawfully search persons suspected of being in possession of ammunition, yet neither officer involved was of such rank. Consequently the evidence purportedly found on K had been obtained unlawfully and he appealed against his conviction on the ground that it should not have been admitted. Dismissing K’s appeal Lord Goddard CJ said (at pp. 226–7):
In their Lordships’ opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained … There can be no difference in principle for this purpose between a civil and a criminal case. No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused … If, for instance, some admission of some piece of evidence, e.g., a document, had been obtained from a defendant by a trick, no doubt the judge might properly rule it out.
Thus, the unlawful search did not justify the exclusion of evidence, reaffirming the principle asserted by Crompton J in R v. Leatham (1861) 8 Cox CC 498 (DC): ‘It matters not how you get it; if you steal it even, it would be admissible in evidence.’
Raymond Emson

Chapter 11. Safeguares against unreliability and error

Abstract
It is difficult to generalise about the various categories of evidence covered in this chapter, apart from there being a risk for each type of evidence that the jury might reach a mistaken conclusion or draw an erroneous inference if allowed to consider it in the absence of a safeguard, principally a careful direction from the judge. Unreliability may be an inherent and latent quality of the evidence, or it may lie in the number of alternative inferences capable of being drawn from the evidence or the heightened risk of untruthfulness associated with certain witnesses. Alternatively, the danger may lie in the complexity of (and the jury’s unfamiliarity with) the evidence and the associated risk that its true probative value will be misunderstood.
Raymond Emson

Chapter 12. Opinion evidence

Abstract
In any trial it is necessary to determine a number of facts in issue — sometimes referred to as the ‘ultimate’ or ‘material’ issues — upon which the final verdict or judgment will depend. In order to come to a decision on these issues the tribunal of fact is obliged to consider, and entitled to draw inferences from, all the available evidence, including the testimony of any witnesses who have been called. It has long been accepted that, as a general rule, witnesses should only testify as to facts within their own personal knowledge and not give an opinion on the disputed issues, for the determination of the issues is the preserve of the tribunal of fact (Bushells Case (1670) Vaugh 135 (CCP) p. 142).
Raymond Emson

Chapter 13. Exceptions to the hearsay rule

Abstract
In civil proceedings s. 1 of the Civil Evidence Act 1995 provides that evidence is no longer inadmissible merely on the ground that it is hearsay, although notice conditions usually have to be complied with to ensure that the judge can properly assess the weight of the evidence (14.1 post ). The notice provisions are unnecessary if the evidence is adduced pursuant to a separate statutory exception (14.2 post ) or one of the common law exceptions preserved by the Act (14.3 post ).
Raymond Emson

Chapter 14. Hearsay in civil proceedings

Abstract
In Ventouris v. Mountain (No.2 ) [1992] 1 WLR 887 (CA) Balcombe LJ said (at p. 899):
The modern tendency in civil proceedings is to admit all relevant evidence, and the judge should be trusted to give only proper weight to evidence which is not the best evidence …
There has been a general trend in favour of the principle of free proof in civil proceedings, and this is exemplified by Parliament’s approach to the admissibility of hearsay evidence. Judges sitting alone as the tribunal of fact have, on account of their training and experience, traditionally been regarded as better able to assess the probative value of hearsay evidence than their lay counterparts in criminal proceedings. Part I of the Civil Evidence Act 1968 first provided for the admissibility of much hearsay evidence in civil proceedings, subject to compliance with complicated procedural rules, but this statutory scheme was considered unsatisfactory and has now been repealed and replaced by the simpler but more comprehensive Civil Evidence Act 1995 in line with recommendations made by the Law Commission in 1993 (Law Com No. 216). The provisions of the 1995 Act are complemented by Part 33 of the Civil Procedure Rules 1998 (or, in the case of magistrates’ courts, by the Magistrates’ Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 (SI 1999 No. 681)).
Raymond Emson

Chapter 15. The accused’s character

Abstract
The accused’s law-abiding disposition has long been admissible on the ground that it is disprobative of his guilt. If the accused has led a blameless and altruistic life he is less likely to have committed the offence for which he now stands trial; and he is also less likely to commit perjury in the witness box. This would appear to be common sense, but it is a view of enduring human nature based on little more than the assumption that certain people behave in a way which is consistently ‘good’, regardless of the context in which they find themselves — an assumption which has been thrown into doubt in recent years by empirical research (see Melbourne v. R (1999) 198 CLR 1 (HCA) pp. 40–2). If the assumption is incorrect, the admissibility of such evidence can be justified only as an illogical ‘indulgence granted to the accused which continues to be maintained for historical reasons’ (Melbourne v. R (1999) 198 CLR 1 p. 20).
Raymond Emson

Chapter 16. Evidence of sexual behaviour

Abstract
It will be remembered that for any item of evidence to be admissible it must be logically relevant to a fact in issue or a collateral fact (or contribute to an explanation of the background to the case). To determine whether evidence is logically relevant to a matter requiring proof the judge must formulate a generalisation from his own experience and what he understands to be conventional wisdom. There are problems with this approach, however, for some aspects of human life are more widely understood than others, and what is thought to be a valid generalisation may in fact be nothing more than a vague or unwarranted stereotype. Moreover, conventional wisdom itself may be suspect because different cultural groups (including different generations) are unlikely to view the world in the same way or share the same values. What might appear to be a valid generalisation to one generation might well be considered absurd by another. Problems such as these have bedevilled the law governing the admissibility of the complainant’s sexual experience in cases where the accused is alleged to have committed rape or some other sexual offence against her.
Raymond Emson

Chapter 17. Disclosure and public interest immunity

Abstract
The first part of this chapter summarises the law governing pre-trial disclosure of admissible evidence and other relevant information, reflecting two aspects of the right to a fair hearing: first, that litigants should have the means by which to gain access to relevant material in advance of the trial so that they can effectively pursue their claim or defence; and, secondly, that litigants should not be ‘ambushed’ during the trial by evidence which they are in no position to challenge at short notice.
Raymond Emson
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