Unit 1 Evidence

Question 1

What are the four rules of evidence?

Answer 1

Relevance, weight, probative value and prejudicial effect

Question 2

What is relevance?

Answer 2

DPP v Kilbourne: Evidence is relevant if it is logically probative or disprobative of some matter which requires proof. It is sufficient to say … that relevant (i.e. logically probative or disprobative) evidence is evidence which makes the matter … more or less probable.
Relevance is a quality which a piece of evidence either does or does not have.
Evidence need not be directly relevant to a fact in issue. Instead, the evidence may be relevant to a fact that, in turn, is relevant to a fact in issue.

Question 3

How does Circumstantial evidence work?

Answer 3

Circumstantial evidence works cumulatively (R v Taylor, Weaver and Donovan (1928) 21 Cr App R 20, CA); one piece of circumstantial evidence may be insufficient to prove a fact in issue, but circumstantial evidence may be particularly powerful when it demonstrates a variety of different facts all pointing to the same logical conclusion.

Question 4

Relevance Examples:

R v Whitehead (1848) 3 Car & Kir 202

Answer 4

A doctor was tried for manslaughter of one patient. Evidence that the doctor had treated other patients skilfully was held to be irrelevant. Only evidence of the skill used in treating the patient who died was held to be relevant.

Question 5

Relevance Examples:

Hart v Lancashire and Yorkshire Railway Co (1869) 21 LT 261

Answer 5

The defendant was sued for negligently causing an accident. It was alleged that the accident had been caused by the changing of railway points. Evidence that the defendant company had altered its practice in changing railway points after an accident was held to be irrelevant.

Question 6

Relevance Examples:

Hollingham v Head (1858) 27 LJ CP 241

Answer 6

was a breach of contract case in which the defendant sought to prove certain terms of the contract that would excuse him from liability. To prove that those terms were incorporated into the contract with the defendant, he sought to adduce evidence that the plaintiff had entered into contracts with other persons on those same terms. The Court of Common Pleas held that evidence of contracting behaviour with other parties was irrelevant.
The court said that the previous contracting behaviour was not relevant because it supported no reasonable inference as to how the parties had contracted.

Question 7

Relevance Examples:

R v Blastland [1986] AC 41

Answer 7

concerned the murder and buggery of a boy. The defendant wished to adduce evidence which showed that, before the victim’s body had been found, another person, M, had spoken about the murder of a boy. The House of Lords held that evidence which showed that M knew of the murder was irrelevant to the issue in the case, namely whether the defendant was the murderer.

Question 8

Relevance Examples:

R v T (AB) [2007] 1 Cr App R 43

Answer 8

a 7-year-old child made statements accusing her uncle, grandfather, and step-grandfather of sexual abuse. Her grandfather admitted the allegations to the police, and her step-grandfather pleaded guilty to four counts of indecent assault based on the child’s accusations. It was held that evidence of her accusations against her grandfather and step-grandfather could not possibly be relevant to the issue of whether she had been abused by her uncle. The mere fact that she had told the truth about the other incidents was not logically probative of the facts alleged against the uncle.

Question 9

The test for Relevance

Answer 9

The test for relevance is not simply whether the evidence might tend to prove or disprove a fact in issue. Evidence must be capable of proving or disproving it to a sufficient degree.

Question 10

What is weight? (evidence)

Answer 10

The weight of the evidence concerns the extent to which the evidence does prove or disprove the conclusion. Weight is much more subjective and can differ across 12 jurors.

Question 11

What is collateral evidence?

Answer 11

Collateral evidence does not prove or disprove the facts in issue at trial but it may affect the reception or admissibility of other evidence tendered to prove a fact in issue. Collateral facts are those facts affecting the competence or credibility of a witness, and preliminary facts which must be proved as a condition precedent to the admission of certain items of evidence.
This concern about keeping cases focused on the factual disputes has led to a general rule restricting collateral evidence, namely the rule of finality.

Question 12

Examples of collateral evidence (4)

Answer 12

Collateral evidence affecting credibility includes:

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 13

What is probative value?

Answer 13

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 14

Prejudicial effect

Answer 14

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 15

What is a formal admission?

Answer 15

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. the Criminal Justice Act 1967. Section 10(1)

Question 16

Rules for a formal admission (the Criminal Justice Act 1967. Section 10(2)).

Answer 16

Section 10(2) sets out how such formal admissions are made. In essence, the section provides that formal admissions: 
•	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 17

Can a formal admission be withdrawn?

Answer 17

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 18

Examples of Judicial Notice without enquiry

Answer 18

Where a fact is so commonly agreed as to be beyond serious dispute, a judge may take notice of it without hearing any evidence. Famous examples include:
• R v Luffe (1807) 8 East 193, two weeks is too short a period for human gestation;
• Dennis v A J White and Co [1916] 2 KB 1, that the streets of London are full of traffic;
• Nye v Niblett [1918] 1 KB 23, cats are ordinarily kept for domestic purposes; and
• Green v Bannister [2003] EWCA Civ 1819, the existence of a ‘blind spot’ that cannot be observed in a car’s wing mirror.
Some matters are taken on judicial notice by virtue of legislation. For example:
• Acts of Parliament do not have to be proved by evidence. It is not necessary to prove an Act’s content or that it was passed by both Houses of Parliament (Interpretation Act 1978, ss 3 and 22(1)); and
• European Union Treaties, the Official Journal of the Communities, and decisions of the European Court of Justice (ECJ) are taken on judicial notice (European Communities Act 1972, s 3(2)).

Question 19

The rule on personal knowledge

Answer 19

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. However, the courts have allowed judges to use their general knowledge and magistrates may use their local knowledge in reaching decisions.

Question 20

General rule for exclusionary Discretion

Answer 20

There is no general judicial discretion to include evidence which is rendered inadmissible by a rule of evidence. However, there is a power to exclude otherwise admissible evidence in both civil and criminal cases.
• the discretion to exclude prejudicial evidence; and
• the discretion to exclude evidence obtained unfairly.

Question 21

Two types of exclusionary discretion

Answer 21

• the discretion to exclude prejudicial evidence; and

* the discretion to exclude evidence obtained unfairly.

Question 22

To whom does exclusionary discretion apply?

Answer 22

This exclusionary discretion only applies to evidence tendered by the prosecution, not evidence tendered by a co-accused. The discretion exists to protect the accused from wrongful conviction.
Thus, where a defendant seeks to exclude evidence adduced by a co-defendant, the judge would not be able to act without potentially increasing the risk of the wrongful conviction of the co-defendant. Therefore, the judge has no discretion to intervene in such a situation.

Question 23

Section 78(1) PACE 1984

Answer 23

(1) 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.

Question 24

When can the tribunal of law decide factual matters?

Answer 24

• Summing up to the jury (some evaluation and consideration of the evidence)
• Preliminary facts and the voir dire
• Sufficiency of evidence (discharging the evidential burden)
• Libel cases (whether a document is capable of bearing defamatory meaning)
• Perjury proceedings, if he or she makes a false statement that is material to proceedings.
• Questions of foreign law

Question 25

The test for the defence on evidence - (the galbraith test for submission of no case to answer!)

Answer 25

The test is that set out in R v Galbraith [1981] 1 WLR 1039, CA:

(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty—the judge will stop the case.
(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence … where the judge concludes that the prosecution evidence, taken at its highest is such that a jury properly directed could not properly convict on it, it is his duty on a submission being made to stop the case.

Question 26

A submission of no case to answer (CrimPR 24.3(3))

Answer 26

(d) at the conclusion of the prosecution case, on the defendant’s application or on its own initiative, the court— (i) may acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict, but
(ii) must not do so unless the prosecutor has had an opportunity to make representations.

Question 27

The Legal Burden

Answer 27

The legal burden is the obligation placed on a party to prove a fact in issue to the required standard. The legal burden is also known as ‘the persuasive burden’ and ‘the burden of proof’. Whether party has discharged the legal burden to the required standard of proof is a question to be determined by the tribunal of fact at the end of the trial. Where the tribunal of fact finds the party has discharged the legal burden in respect of a particular fact in issue that fact in issue has been proven. By contrast, where a party fails to discharge a legal burden they will lose on the issue in question.

Question 28

The Evidential burden

Answer 28

The evidential burden is the obligation on a party to adduce sufficient evidence to raise a fact in issue; that is, to make a particular issue a ‘live’ issue at trial. Whether a party has discharged the evidential burden is a question of law for the judge.
The judge will assess whether the amount and quality of the evidence adduced by a party in respect of a fact in issue is sufficient to leave the issue with the tribunal of fact for deliberation. If the judge decides that the amount and quality of the evidence is not sufficient, the party has failed to raise the fact in issue. The consequence is that the fact in issue will be withdrawn from the fact-finding tribunal. For this reason, the evidential burden is sometimes known as ‘passing the judge’.

Question 29

Exceptions to the burden of proof being on the prosecution to prove beyond a reasonable doubt (be sure)

Answer 29

• Defence of insanity – defence
• Statutory “reverse” provisions – e.g. abnormality of the mind defence in murder. Burden of proof on the defence.
• Implied statutory provisions – e.g. s101 MCA 1980 – the burden of proving the exception, exemption, proviso, excuse or qualification shall be on him. Also Road traffic offences – e.g. proving possession of a valid license.
Certain common law and statutory criminal defences place an evidential burden, but not a legal burden, on the accused.

Question 30

Common law defences which impose an evidential burden on the accused (but not a legal one)

Answer 30

• self-defence
• duress
• non-insane automatism; and
• intoxication

Question 31

Can Lay Magistrates out vote a judge?

Answer 31

When the Crown Court comprises a judge sitting with a justice or justices, the decision of the court may be by a majority (Senior Courts Act 1981, s. 73(3)). It follows that the justices may out-vote the professional judge, although if an even-numbered court is equally divided the professional judge has a casting vote (s. 73(3)). 

Question 32

What appeal is available following a guilty plea?

Answer 32

Guilty plea = can only appeal sentence, not guilty plea = can appeal against conviction or sentence.

Question 33

Representation Orders

Answer 33

The decision whether or not to grant a representation order is to be determined by a two-stage test, incorporating a merits test ‘according to the interests of justice’ and an assessment of means.