Unlocking the Law of Evidence

Cover
Title
Copyright
Contents
Detailed contents
Guide to the book
Acknowledgements
Preface
List of figures
Table of cases
Table of statutes and other instruments
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