10. Preliminary evidential matters

Question 1

sWhat is proof?

Answer 1

a. proving a fact is achieved by combing supporting material

b. Implicit standard below which a conclusion would be ‘unproven’. Some things are harder to prove than others, and so better quality facts and arguments will be required to convince the tribunal.

c. Facts and arguments are not all equally valuable in proving conclusions. Some have less relevance, or may be less reliable than others.

d. Ordinarily, proving something means convincing another human being that a particular thing did or did not happen.

Question 2

How does the ordinary meaning of proof differ from the meaning in courts?

Answer 2

In court, proof is subject to a system of rules and practices.

Question 3

What is the weight of evidence?

Answer 3

A way of evaluating the capacity of evidence to prove conclusions.

Question 4

Who is the tribunal of fact?

Answer 4

The persons who must decide whether the facts in question are proven.

Question 5

Who is the tribunal of law?

Answer 5

The tribunal of law are those who decide upon the law.

They may have to consider factual issues when doing so.

Question 6

What are “facts”?

Answer 6

“Facts” are those which the tribunal of fact accept have occurred.

Question 7

What facts are in issue when a defendant pleads not guilty?

Answer 7

• the identity of the culprit;
• the actus reus of the offence (which will have several elements);
• the mens rea of the offence; and
• any defences raised at trial.

Question 8

What is relevance in relation to evidence?

Answer 8

• In DPP v Kilbourne [1973] AC 729:
• “Evidence is relevant if it is logically probative or disprobative of some matter which requires proof. It is sufficient to say … that relevant (ie logically probative or disprobative) evidence is evidence which makes the matter … more or less probable.”
• Article 1 of Stephen’s Digest of the Law of Evidence (12th edn, 1936):
• Any two facts to which it was applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the … existence or non-existence of the other.

A good summary is, in determining relevance, a judge “‘has to decide whether the evidence is capable of increasing or decreasing the existence of a fact in issue’”.

Question 9

What is direct evidence?

Answer 9

Direct evidence is evidence of facts in issue, such as:
a. Testimony by a witness about his or her own perception, such as that they saw D. do something
b. The production to court of some object the existence of which is in issue, such as a lease to prove the existence of the lease.

Question 10

What is circumstantial evidence?

Answer 10

Circumstantial does not involve the immediate perception of a fact in issue, but is evidence which the existence or non-existence of a fact in issue can be inferred. Circumstantial evidence works cumulatively.

Examples include:
a. Evidence of opportunity, i.e. presence of accused
b. Certain types of evidence, i.e. that DNA samples from accused match those found at scene of crime
c. Evidence of facts providing a motive
d. Lies told by the accused

Question 11

What is the sufficiency of relevance doctrine?

Answer 11

Sufficiency of relevance stops a court from considering all evidence which may, only by definition, be relevant but which is not really relevant (i.e. when prosecuting someone for manslaughter for negligent medical practice, the fact that there was previous skill used does not become relevant). Consequently, evidence needs to be sufficiently relevant.

Question 12

What is the full test of relevance?

Answer 12

The evidence does not simply have to be relevant, but it has to be sufficiently relevant to permit the tribunal of fact reasonably to draw an inference.

Question 13

What is the rationale behind the restriction of evidence of marginal relevance?

Answer 13

It would increase the cost and complexity of the trial process.

Question 14

What is conditional relevance?

Answer 14

Where a court has agreed to admit evidence contingent on other evidence being adduced which would make that evidence relevant. If the evidence that such conditionally relevant evidence relies upon is not admitted, then that evidence may be disregarded or a trial discontinued.

Question 15

How may the weight of evidence influence what a lawyer does?

Answer 15

1. A lawyer may seek to influence the weight, such as through cross-examining a witness re. reliability.
2. In assessing what the action should be (i.e. to plead guilty or not).
3. When arguing about the weight to be attached:

(a). such as when making closing speeches.
(b). in whether arguing evidence should be excluded
(c). in whether to argue for a submission of no case to answer.

Question 16

What is collateral evidence?

Answer 16

Collateral evidence does not prove or disprove the facts in issue, but may affect the reception or admissibility of other evidence tendered to prove a fact in issue.

This evidence may include:
* (a) challenges to the truthfulness of particular witnesses;
* (b) challenges to the ability of the particular witnesses to give an accurate account;
* (c) challenges to the strength or validity of the arguments or generalisations made about the evidence; and
* (d) alternative explanations about the evidence.

Question 17

What is probative value?

Answer 17

Probative value is a combination of relevance (what something might prove) and weight (whether it does prove it). Probative value is essentially an evaluation of the extent to which an item of evidence proves a case in a rational way.

Question 18

What is prejudicial effect?

Answer 18

Prejudicial effect is an evaluation of the risk that the evidence in question will be used by the tribunal in an inappropriate way, for example by becoming distracted from deciding the case to the requisite standard of proof or taking into consideration irrelevant or immaterial matters. Prejudicial effect includes an over-willingness on the part of the tribunal of fact to convict (or make some other adverse finding) contrary either to the relevance or the weight that ought to be attached to the evidence before it.

Question 19

What is a formal admission?

Answer 19

A formal admission is the result of a rule of procedure. The effect of the formal admission is that the particular issue is finally resolved: the admission is conclusive of that fact. Following a formal admission, evidence that proves or disproves that issue alone ceases to be relevant and will not be admitted.

Question 20

What is an informal admission?

Answer 20

A party may make an informal admission, for example by admitting to another person (including a police officer in a police station) particular relevant facts. This latter type of admission, commonly known as a confession, is only evidence of that particular fact. It is still possible for the tribunal of fact to disregard it.

Question 21

Under what enactment are formal admissions governed?

Answer 21

Criminal Justice Act s10.

Question 22

When may formal admissions be made?

Answer 22

On any fact of which oral evidence may be given … may be admitted … and the admission by any party of any such fact under this section shall, as against that party, be conclusive evidence … of the fact admitted. (s10(1)).

Question 23

Can a formal admission be used to admit inadmissable evidence?

Answer 23

No.

Question 24

How are formal admissions made?

Answer 24

A formal admission:
* can be made by or on behalf of the defendant or the prosecutor (s 10(1));
* can be made at trial or before trial (s 10(2)(a));
* can be made orally in court. If made on behalf of the defendant, they must be made by the defendant’s solicitor or barrister (s 10(2)(b) and (d));
* can be made in writing either in court or outside of court. The written formal admission must be signed either by the defendant (or prosecutor) in person or, if the party making the admission is a company, by an appropriate officer of that company (s 10(2)(c)).

Question 25

Can a formal admission be withdrawn?

Answer 25

A formal admission may be withdrawn with leave of the court (s 10(4)). R v Kolton [2000] Crim LR 761 suggests that this will only happen rarely. The court will expect cogent evidence from both the party making the admission and that party’s legal representatives which shows the admission to have been made by mistake or misunderstanding.

Question 26

Must a written record of a formal admission be made?

Answer 26

The Criminal Procedure Rules 2020 (Crim PR), r 24.6 and r 25.13 provide that in proceedings before the magistrates’ court and before the Crown Court respectively a written record must be made of the admission unless the court directs otherwise.

Question 27

What occurs if a judge takes ‘judicial notice’ of a fact?

Answer 27

In some cases, a judge may take judicial notice of a fact. Where this happens, there is no longer any requirement to prove the fact in question. The matter is accepted by the court without evidence being adduced.

Question 28

When can judicial notice be taken without inquiry?

Answer 28

Judicial notice can be taken without inquiry where it is so obvious or so far beyond dispute that it would be a waste of court resources for them to have to be proved every time a case is litigated.

An example is that acts of parliament have passed both houses, and that a judicial or official document purporting to be signed by a particular judge was so signed.

Question 29

What can be taken judicial notice of with inquiry?

Answer 29

Where a fact is not quite so widely known, it is still possible for judicial notice of that fact to be taken. However, in such cases, the judge will conduct an investigation. This will happen when the matter is one that is easily resolved by reference to sources of great reliability (such as ministerial certificates or learned works, etc). The rationale is that where facts arise frequently, a low-cost and uniform outcome can be achieved by reference to sources of virtually undisputable authority rather than requiring proof in the normal way.

There are no rules of evidence on this and it is not possible to call evidence to rebut the judge’s findings. Furthermore, the conclusions of the judge in a particular case constitute a binding legal precedent on the point.

• (a) facts of a general nature which can be readily demonstrated by reference to authoritative extraneous sources, such as diaries, atlases, encyclopaedias, etc. In McQuaker v Goddard [1940] 1 KB 687, a judge resolved that a camel was a domestic creature by consulting books and hearing expert evidence;
• (b) facts of a political nature, for example relations between the UK Government and a foreign state or the status of a foreign sovereign or government. Judicial notice can be taken of these matters following inquiry of political sources. In R v Bottrill, ex p Kuechenmeister [1947] 1 KB 41, judicial notice was taken of the fact that the country was still at war with Germany after examining a certificate from the Foreign Secretary to that effect; and
  (c) customs and professional practices following consultation of suitably qualified experts in that field or area. For example, in Heather v P-E Consulting Group Ltd [1973] Ch 189, judicial notice was taken of accountancy practices.

Question 30

Can personal knowledge be used?

Answer 30

The general rule is that neither a judge nor the jurors may apply their personal knowledge of facts in issue or relevant to the issue (Palmer v Crone [1927] 1 KB 804) and jurors should be warned not to take steps to acquire such knowledge during the trial (eg by visiting the scene of an alleged crime) (R v Oliver [1996] 2 Cr App R 514). In Bowman v DPP [1991] RTR 263, the use of personal knowledge was distinguished from judicial notice. It was also stated that any personal knowledge ought to be identified, so as to allow comment by parties to the case.

The general rule is neither a judge or jurors may apply their personal knowledge of facts in issue or relevant to the issue and jurors must be warned not to take steps to obtain personal knowledge.

However, personal knowledge may be used by judges in their general knowledge and magistrates in their local knowledge. There is a distinction between judges and magistrates and jurors: judges may not use their personal knowledge but the latter could do so in the interpretation and evaluation of evidence at trial. A juror or magistrate cannot give evidence of matters within their personal knowledge, however.

No clear rules on the extent to which personal knowledge can be used.

Some case law to say that the tribunal of fact should only be able to rely on personal knowledge if parties had been given the opportunity to deal with the evidence during trial.

Question 31

What is the starting point on admissibility?

Answer 31

The starting point of evidence is that it is admissible except where there is a specific rule that it is not.

Question 32

What are preliminary facts?

Answer 32

some rules of evidence declare evidence inadmissible if it was obtained in particular circumstances (such as exclusion of confession evidence obtained by oppression under s76 PACE) or that evidence will only be admitted if certain matters are proved (i.e. that a person is an expert). Therefore, sometimes admissibility depends on proof of particular collateral facts. These are called preliminary facts, those which have to be proved before the evidence can be admitted.

Question 33

What is the process called for determining preliminary facts?

Answer 33

The process for determining preliminary facts is called a trial within a trial, or voir dire.

Question 34

What are the two important discretions to exclude evidence in criminal proceedings?

Answer 34

• The discretion to exclude prejudicial evidence
• The discretion to exclude evidence obtained unfairly

Question 35

What is the power to exclude prejudicial evidence?

Answer 35

In R v Sang [1980] AC 402, it was held that a trial judge had a common law discretion to exclude evidence tendered by the prosecution if its prejudicial effect outweighed its probative value.

The discretion applies to any prosecution evidence which may lead the jury to follow an impermissible line of reasoning.

Question 36

Can the power to exclude prejudicial evidence be applied to co-accused’s evidence?

Answer 36

This exclusionary discretion only applies to evidence tendered by the prosecution, not evidence tendered by a co-accused (R v Lobban [1995] 2 All ER 602).

Question 37

What is the discretion in s78 PACE?

Answer 37

In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Examples of such exclusion include tricks played on the accused and/or his legal advisers with a view to obtaining confessions (R v Mason [1988] 1 WLR 139); denial of the accused’s right to legal advice (R v Samuel [1988] QB 615); and the improper use of undercover surveillance (R v Loosely [2001] 1 WLR 2060).

This discretion only applies before evidence is admitted. Once it has been admitted, the defence will have to rely on the common law discretion to exclude the evidence.

Question 38

Can you appeal a refusal or exercise of a discretion to exclude?

Answer 38

In appealing an exercise or non-exercise of discretion to exclude, the court will not intervene unless the discretion was exercised perversely by refusing to exercise a discretion, erring in principle, or where there is no material on which the judge could properly have arrived at the decision.

Question 39

Are there discretions other than more prejudicial than probative and s76/78?

Answer 39

Yes, for example the Criminal Justice Act 2003 (CJA 2003), s 101(3) allows the judge to exclude evidence of the defendant’s bad character, while s 126 of the same Act provides the court with a discretion to exclude hearsay evidence.

Question 40

What are the three bases for getting evidence in?

Answer 40

a. Testimony
b. Documentary evidence; and
c. Real evidence.

Question 41

What is ‘testimony’?

Answer 41

This is evidence that is given by a witness. Usually the witness will attend court, swear an oath or affirm, stand in the witness box, and give his or her evidence orally. Each statement of fact by the witness is offered as evidence of that fact. Having been given by a witness, the evidence becomes ‘testimony’.

In criminal cases, s9 CJA 1967 allows for written witness statements.

Question 42

What is documentary evidence?

Answer 42

Documentary evidence is evidence which is contained in a document. The contents of the documents are not treated as the testimony of the maker.

Documentary evidence must be ‘proved’ by a witness. This means that the origin and relevance of the document must be established.

What proof in this sense requires is that it is established that the document has some bearing on the case in question.

Question 43

What is real evidence?

Answer 43

Real evidence derives its value from the physical nature of an object. This item is produced as an exhibit, or the court will go on a site visit. The significance of real evidence is that the tribunal can reach conclusions based on the physical characteristics of the item or place rather than any words narrated.

A person can also be both testimony evidence and real evidence, insofar as they give evidence about something (testimony evidence) and at the same time are evidence (i.e. their demeanour ect).

Question 44

What parts do a judge and jury play?

Answer 44

(1) The judge and the jury play different parts in a criminal trial.

(2) The judge alone is responsible for legal matters. When summing up the judge will tell the jury about the law which is relevant to the case, and the jury must follow and apply what the judge says about the law.

(3) The jury alone are responsible for weighing up the evidence, deciding what has or has not been proved, and returning a verdict/verdicts based on their view of the facts and what the judge has told them about the law.

Question 45

When can the tribunal of law decide factual matters?

Answer 45

(1) In summing up to the jury, as a judge will have to remind the jury of the evidence and review it. A judge may also comment on weight of evidence, plausibility, and credibility of witnesses so long as he reminds the jury that they are not bound by his or her views.

Where the judge strays too far in commenting upon a case, there may be a ground for appeal.

(2) When deciding preliminary facts in a voire dire, which can take place in absence of a jury, such as when considering a discretion to exclude confession evidence where it is alleged there was opression. In those circumstances, the judge will hear evidence and argument from advocates, ultimately concluding in fact-finding on a preliminary issue. There are also times where this is done in the presence of a jury, such as for an expert.

(3) On the sufficiency of evidence. This is a question of law which must be resolved by analysis of the facts. The test is set out in Galbraith:
(1) if there is no evidence the crime has been committed by the defendant, the judge will acquit.
(2) if there is some evidence but of a tenuous character, the judge will acquit if he concludes the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it. This is done at the end of the prosecution case, although before evidence is called a judge may rule as a matter of law whether agreed or admitted facts show whether the offence charged is made out.

(4) On the meaning of words, if they are being used in an unusual way in the statute or if there is an issue as to whether the jury reached a perverse interpretation of the word in question.

(5) Other special cases, such as in perjury cases (what is a ‘material’ false statement) or questions of foreign law.

Question 46

Can the same persons exercise the role of tribunal of law and fact?

Answer 46

Yes, such as magistrates. However, difficulties arise, such as:
(a) It can be difficult to determine the basis upon which a decision has been reached as the tribunal of law does not practically tell the tribunal of fact how to apply the law. The help, the rules of procedure law down rules requiring reasons.
(b) That the same person determining admissible and inadmissible evidence will later decide factual issues. Where magistrates exclude evidence of a defendant’s pre-trial statements, the correct approach is for the magistrates to seek the views of parties on whether the substantive hearing should be dealt with by a different bench.

Question 47

What is the legal burden of proof?

Answer 47

The legal burden is a burden of proof. It is an obligation placed on a party to prove a fact in issue to the required standard.

Question 48

What is the evidential burden?

Answer 48

The evidential burden is not a burden of proof. It is an obligation on a party to adduce sufficient evidence to raise a fact in issue; that is, to make an issue ‘live’ at trial. This is a question of law, which will be decided with reference to and analysis of the amount and qualify of the evidence adduced by a party in respect of a fact in issue. If it is sufficient, it will be left to the tribunal of fact; otherwise, it will be withdrawn.

“That is, the obligation to adduce sufficient evidence which, if believed and left uncontradicted, would justify as a possibility a finding by the jury in favour of the party bearing the burden (Jayasena v R [1970] AC 618).”

Question 49

What is the general rule of the incidence of legal burden?

Answer 49

The general rule is that the prosecution bears the legal burden to prove all elements of the offence, including a negative assertion as well as positives. The classic exposition of this rule is:
Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception … No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.
- Woolmington v DPP [1935] AC 462 by Viscount Sankey LC.

Question 50

What are the exceptions to the general incidence of the burden of proof?

Answer 50

An exception to the general rule is the defence of insanity, of which the burden is placed upon the defence.

There are express reversals of the burden, such as diminished responsibility.

Furthermore, s101 of the MCA 1980 gives an implied burden reversal as it says that where the defendant relies for his defence on an exception, exemption, proviso, excuse, or qualification, the burden for proving this shall be on him without qualification (this is confined to summary trials, though there is a similar common law exception for Crown Court cases).

An example of this is the offence of driving otherwise in accordance with a licence, where the prosecution is only required to show the drive was driving a vehicle on a road and the driver must then prove that he or she held a valid licence.

This exception is limited to statutory offences which prohibit the doing of an act save in specified circumstances, or by persons of specified classes/with specified qualifications, or will licence or permission of specified authorities.

There is further guidance:
Lord Griffiths made the following observation on the question of whether an implied statutory exception places a legal burden on an accused:

If the linguistic construction of the statute did not clearly indicate on whom the burden should lie the court should look to other considerations to determine the intention of Parliament, such as the mischief at which the Act was aimed and practical considerations affecting the burden of proof and, in particular, the ease or difficulty that the respective parties would encounter in discharging the burden.

Question 51

What difficulty does the ECHR present for reverse burdens of proof?

Answer 51

That the reverse burden may contravene Art 6(2), which says:

Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

Question 52

How does a court decide whether a reverse burden infringes Art 6?

Answer 52

By consulting the following factors:

(a) The defendant has a right to a fair trial.

(b) The presumption of innocence is an important, but not an absolute, right and so derogations from the principle are permitted.

(c) The ECHR requires a balance to be struck between the rights of the individual and the wider interests of the community.

(d) There is an obligation on the state to justify any derogation from the presumption of innocence.

(e) For a reverse burden of proof to be legitimate, there must be a compelling reason justifying why it is fair and reasonable to deny the accused person the protection normally guaranteed to everyone by the presumption of innocence.

(f) In determining whether the imposition of a reverse burden is justified, the courts should have regard to:

(i) the seriousness of the punishment that may flow from conviction;
(ii) the extent and nature of the factual matters required to be proved by the accused, and their importance relative to the matters required to be proved by the prosecution;
(iii) the extent to which the burden on the accused relates to facts that, if they exist, are readily provable by the accused as matters within his or her own knowledge or to which he or she has ready access; and

(iv) the particular social problem or mischief that the measure has been enacted to address.

(g) Where a reverse burden infringes Article 6(2), the courts should, where possible, ‘read down’ the offending provision under the Human Rights Act 1998, s 3 so that it imposes only an evidential burden on the defendant. The obligation to interpret reverse burdens in this way so as to comply with s 3 of the 1998 Act is a strong one; it places a duty on the court to strive to find a possible interpretation compatible with the ECHR. It applies even if there is no ambiguity in the language of the provision and it will sometimes be necessary to adopt an interpretation that linguistically may appear strained.

(h) Where it is not possible to read down the provision, the court should make a declaration of incompatibility. However, this is a measure of last resort.

Question 53

When will one party only have to discharge the evidential burden?

Answer 53

Generally, the party with the legal burden will also have the evidential burden. However, in some situations a party will only have the evidential burden.
Some common law and statutory defences place an evidential burden on the accused. In such circumstances, the defendant must adduce evidence that would, if believed and left uncontradicted, induce a reasonable doubt in the mind of the jury as to whether his or her version might not be true. Once the accused has adduced sufficient evidence, the legal burden of disproving the defence then falls to the prosecution. This will be the case even if the judge thinks the defence evidence is unlikely to be of sufficient cogency or strength to be accepted by the jury.

Question 54

How may the evidential burden be discharged?

Answer 54

The evidential burden is most commonly discharged through adducing evidence or evidence elicited by the defence in cross-examination, though it will also be discharged if the defendant can point to evidence to the same effect that has been adduced by another party.

Even where a defence is not specifically raised, if there is sufficient evidence then a judge must allow the defence to be considered by the jury and the legal burden for disproving would be on the prosecution. This remains the case even if the defence has been expressly disclaimed by the accused, or is inconsistent with the defence he has raised.

Question 55

What occurs where a defendant fails to discharge an evidential burden?

Answer 55

The judge may withdraw the defence from the jury.

Question 56

What is the standard of proof required when the burden is on the prosecution?

Answer 56

The standard of proof required where the legal burden is on the prosecution has been described as:

beyond reasonable doubt;

making the jury sure; and

satisfied beyond a reasonable doubt so that the jury feel sure.

Question 57

How should a judge describe the burden of proof to a jury?

Answer 57

From now on, the only term a judge should use to describe the burden is “sure”.

Question 58

What should the judge do if a jury asks how “sure” they should be?

Answer 58

Where an issue is raised by a jury about how ‘sure’ they must be, they should be directed that fanciful possibilities may be discounted and that they should act only on realistic doubts.

The judge should answer in the negative where a jury ask whether they need to be ‘100% certain’.

Question 59

What is the standard of proof required when the legal burden rests on the defence?

Answer 59

The burden is the balance of probabilities, which means:
* if the evidence is such that the tribunal of fact can say “we think it more probably than not”, the burden is discharged but, if the probabilities are equal, it is not.

Question 60

When is evidence admissible?

Answer 60

• It is sufficiently relevant; and
• Where it is not subject to a rule of evidence that excludes it.