LAW OF EVIDENCE
Introduction:
Law of Evidence:
1. We establish the facts by evidence.
2. We establish the law by legal argument.
3. We apply law to the facts to determine outcome.
Law of Evidence is a part of Law of Procedure:
1. Rules setting out how courts should apply the substantive law to determine disputes.
2. Law of Evidence is that part of law of procedure that deals with the determination of facts.
Criminal and Civil Evidence:
1. Civil proceedings govern disputes between private individuals and companies and determine whether
compensation should be awarded.
2. Criminal disputes (usually) involve a state prosecution against a private individual or company and
whether punishment should be imposed. Evidential rules are more complex and important in criminal
proceedings.
Adversarial procedural tradition: trial as a partisan (committed party member) contest:
1. Founded on the principle of partisan contest between active autonomous parties rather than truth finding
inquiry by state.
i. Pre-trial, each party is responsible for developing own account of facts (theory of case) and
seeking out evidence to support that account.
2. No judicial evidence gathering.
i. Evidence at trial is presented by parties before a relatively passive judge seen as impartial
procedural referee.
3. Witnesses are primarily called by and questioned by parties rather than the judge.
Adversarial procedural tradition and orality:
1. Principle of orality: that witnesses should come and give evidence orally in court.
2. Rule excluding hearsay evidence renders most written pre-trial witness statements inadmissible.
i. Fact finder cannot be told of them.
ii. Witnesses must testify in person and be cross examined (XX).
3. Contrast with Civil procedure: where pre-trial statements are generally admissible.
Adversarial characteristics:
1. Party Control: Parties control the presentation of evidence and arguments.
2. Passive Judge: The judge acts as an impartial arbiter, ensuring the rules are followed but not actively
investigating the case.
3. Competition: Each side presents its case to convince the factfinder (jury or judge), creating a competitive
environment.
,Role of people at a criminal trial in England and Wales:
1. Parties (prosecution and defence): present evidence.
2. In Crown Court (most serious cases), clear separation of function:
i. Questions of law (including questions of evidence) are determined by professional trial judge.
ii. Questions of fact are generally determined by lay jurors.
3. In Magistrates’ Court (routine cases): lay citizen magistrates determine questions of both fact and law
advised by professional legal advisers.
4. Vast majority of cases are heard in Magistrates’ court, but the practice of Crown Court remains a
dominant conceptual model for lawyers.
Structure of Crown Court trial:
1. Prosecution (P) opening speech (rare for Defence (D)).
2. P calls its Witnesses (Ws)
i. Each W in turn gives evidence in chief (XC) under questioning by P.
ii. Each W in turn may be subject to cross-examination (XX) by D.
3. Roles are then reversed, and D calls its Ws
i. Each W in turn gives evidence in chief (XC) under questioning by D.
ii. Each W in turn may be subject to cross-examination (XX) by P.
4. P and then D make closing speeches.
5. Judge (J) sums up on facts and law.
6. Factfinder (Jury) renders verdict, guilty or not guilty.
Aims of the Law of Evidence:
1. Truth Seeking: Ascertain the truth by ensuring that only reliable and relevant evidence is presented.
2. Fairness: Ensure that trials are fair to both parties, protecting against unfair prejudice and ensuring the
rights of the accused.
3. Efficiency: The rules help streamline the trial process, preventing delays and focusing on pertinent
issues.
4. Protection of rights: Upholding the legal rights of individuals, such as the right against self-
incrimination and the right to a fair trial.
Tensions in the aims of Law of Evidence:
1. Truth vs Fairness: The pursuit of truth might be compromised to ensure fairness, e.g. exclusion of
evidence obtained illegally.
2. Efficiency vs Fairness: Streamlining processes can sometimes lead to perceived unfairness if it limits
the ability to present all relevant evidence.
3. Public Interest vs Individual Rights: Balancing the public’s interest in effective law enforcement with
protecting individual rights can create tension.
Tensions in the aims of Law of Evidence, a story:
Law of evidence constructed in light of changing and competing notions of ethical principle (fairness to
individuals) and public interest (consequences for society). Last 60 years, debates in mass media as three major
public concerns interact (Crime control and the victim, false convictions, fundamental human rights). Reflected
in much new legislation and case law: Wider admissibility of previous convictions and out of court pre-trial
statements, qualifications to right to silence, greater protection to Ws and complainants in sexual offences,
closer supervision of police interrogations, closer regulation of ID evidence.
,How to resolve any conflicts between purposes in creating, interpreting and implementing law of
evidence?
1. By reference to both public interest and ethical principles.
2. But both policy and principle in relation to evidence are often matters of public debate and controversy.
How to find the truth or facts?
Key starting point:
1. ‘Finding the facts’ which leads to ‘rectitude’ of decisions and ‘accuracy of outcomes.’
2. ‘Acquitting the innocent and convicting the guilty’ (Criminal Procedure Rules 2020).
Accurate Fact-finding enables appropriate decisions:
1. Punishing guilty regularly probably reduces crime.
2. Acquitting innocent gives moral legitimacy to punishment.
Follows that:
1. Evidence before the factfinder should be relevant and reliable.
2. It must be presented in a form designed to bring out the truth as clearly as possible.
Dilemmas around truth finding:
1. If there is a risk of fact-finding error and thus inaccurate outcomes.
2. May choose to build into search for truth a particular emphasis on avoiding errors.
3. In criminal matters, principle of presumption of innocence expresses a particular concern:
i. Convicting innocent.
ii. Burden and standard of proof.
4. One function of rules of evidence is to resolve what to do in case of doubt:
i. Make sure risk of error falls more on the P than the D.
ii. P must usually prove case ‘beyond reasonable doubt.’
Beyond truth-finding: procedural fairness
Should fact-finding be subject to other constraints?
1. How should we go about finding the truth?
2. What values should we respect in doing so?
Respect for human dignity and autonomy
1. Evidence obtained by torture is inadmissible.
Respect for liberal notions of rule of law
1. State should obey clear pre-defined limits in its treatment of citizens.
Rights of participation
1. Individuals affected by state processes (Ds, Ws, Vs) should be able to participate effectively in them.
2. Example: right for Ds to confront P Ws. Special measures for vulnerable or intimidated Ws.
, Recognising and defining procedural fairness:
1. Recognised, along with truth-finding, as part of the concept of justice in Criminal Procedure Rules 2020.
i. Dealing with the prosecution and the defence fairly.
ii. Recognising the rights of a defendant, particularly those under Article 6 of the European
Convention on Human Rights (ECHR).
iii. Respecting the interests of witnesses, victims and jurors...
2. ECHR sets out a broad framework of values and principles.
i. Article 6 (right to fair trial).
ii. Article 3 (prohibits torture or inhumane or degrading treatment).
iii. Article 8 (right to privacy and family life).
3. Human Rights Act 1998 gives these arguments from fundamental international rights purchase in
domestic law.
Key Concepts:
1. Relevance and admissibility:
i. To be admissible in court, evidence must be relevant.
ii. But not all relevant evidence is admissible:
a) Inadmissible as a matter of law because a statutory or common law rule excludes it.
b) The Judge exercises a statutory or common law discretion to exclude it.
iii. The Judge determines questions of relevance and admissibility because they are deemed
questions of law: Voire dire (‘trial within the trial’), Jury absent.
2. Facts in Issue (material facts/constitutive facts/facta probanda, ultimate facts, principal facts):
i. Facts that the law requires to be established for particular legal consequences to follow.
ii. How do we know what they are? Defined by substantive civil or criminal law relevant to offence
charged or wrong alleged.
iii. Example: Assault occasioning actual bodily harm (s47 Offences against the Person Act 1861). P
needs to prove that the defendant unlawfully assaulted this victim, intentionally or recklessly
causing the victim actual bodily harm. These are the ‘facts in issue.’
3. Facts relevant to facts in issue (evidential facts/secondary/indirect facts):
i. Neither necessary nor sufficient to establish a constituent element of offence (fact in issue).
ii. But support an inference (i.e. they seem to make it more likely) that a constituent element of
offence or wrong (fact in issue) exists or does not exist. Example, motive in murder charge.
Who determines the probative value of evidence?
1. In criminal cases, jury or the magistrates determine the weight of evidence.
2. In civil cases, the judge determines the weight of evidence.
Sufficiency of evidence: no case to answer
1. No case to answer: when the D feels that Ps evidence is insufficient.
2. Usually Trial Judges (TJ) make ruling after the defence submission of no case to answer at close of Ps
evidence. If there is insufficient evidence for a reasonable jury properly to convict, then TJ should direct
acquittal.
3. TJ may even withdraw issue of guilt from jury on own motion and even after D has tendered his
evidence (R v Brown 2002).
4. TJs may also withdraw a particular defence from the jury on basis that D has not adduced sufficient
evidence to discharge ‘evidential burden.’
5. But cannot, under any circumstances direct a guilty verdict (DDP v Stonehouse (1978)), (Wang (2005)).
Introduction:
Law of Evidence:
1. We establish the facts by evidence.
2. We establish the law by legal argument.
3. We apply law to the facts to determine outcome.
Law of Evidence is a part of Law of Procedure:
1. Rules setting out how courts should apply the substantive law to determine disputes.
2. Law of Evidence is that part of law of procedure that deals with the determination of facts.
Criminal and Civil Evidence:
1. Civil proceedings govern disputes between private individuals and companies and determine whether
compensation should be awarded.
2. Criminal disputes (usually) involve a state prosecution against a private individual or company and
whether punishment should be imposed. Evidential rules are more complex and important in criminal
proceedings.
Adversarial procedural tradition: trial as a partisan (committed party member) contest:
1. Founded on the principle of partisan contest between active autonomous parties rather than truth finding
inquiry by state.
i. Pre-trial, each party is responsible for developing own account of facts (theory of case) and
seeking out evidence to support that account.
2. No judicial evidence gathering.
i. Evidence at trial is presented by parties before a relatively passive judge seen as impartial
procedural referee.
3. Witnesses are primarily called by and questioned by parties rather than the judge.
Adversarial procedural tradition and orality:
1. Principle of orality: that witnesses should come and give evidence orally in court.
2. Rule excluding hearsay evidence renders most written pre-trial witness statements inadmissible.
i. Fact finder cannot be told of them.
ii. Witnesses must testify in person and be cross examined (XX).
3. Contrast with Civil procedure: where pre-trial statements are generally admissible.
Adversarial characteristics:
1. Party Control: Parties control the presentation of evidence and arguments.
2. Passive Judge: The judge acts as an impartial arbiter, ensuring the rules are followed but not actively
investigating the case.
3. Competition: Each side presents its case to convince the factfinder (jury or judge), creating a competitive
environment.
,Role of people at a criminal trial in England and Wales:
1. Parties (prosecution and defence): present evidence.
2. In Crown Court (most serious cases), clear separation of function:
i. Questions of law (including questions of evidence) are determined by professional trial judge.
ii. Questions of fact are generally determined by lay jurors.
3. In Magistrates’ Court (routine cases): lay citizen magistrates determine questions of both fact and law
advised by professional legal advisers.
4. Vast majority of cases are heard in Magistrates’ court, but the practice of Crown Court remains a
dominant conceptual model for lawyers.
Structure of Crown Court trial:
1. Prosecution (P) opening speech (rare for Defence (D)).
2. P calls its Witnesses (Ws)
i. Each W in turn gives evidence in chief (XC) under questioning by P.
ii. Each W in turn may be subject to cross-examination (XX) by D.
3. Roles are then reversed, and D calls its Ws
i. Each W in turn gives evidence in chief (XC) under questioning by D.
ii. Each W in turn may be subject to cross-examination (XX) by P.
4. P and then D make closing speeches.
5. Judge (J) sums up on facts and law.
6. Factfinder (Jury) renders verdict, guilty or not guilty.
Aims of the Law of Evidence:
1. Truth Seeking: Ascertain the truth by ensuring that only reliable and relevant evidence is presented.
2. Fairness: Ensure that trials are fair to both parties, protecting against unfair prejudice and ensuring the
rights of the accused.
3. Efficiency: The rules help streamline the trial process, preventing delays and focusing on pertinent
issues.
4. Protection of rights: Upholding the legal rights of individuals, such as the right against self-
incrimination and the right to a fair trial.
Tensions in the aims of Law of Evidence:
1. Truth vs Fairness: The pursuit of truth might be compromised to ensure fairness, e.g. exclusion of
evidence obtained illegally.
2. Efficiency vs Fairness: Streamlining processes can sometimes lead to perceived unfairness if it limits
the ability to present all relevant evidence.
3. Public Interest vs Individual Rights: Balancing the public’s interest in effective law enforcement with
protecting individual rights can create tension.
Tensions in the aims of Law of Evidence, a story:
Law of evidence constructed in light of changing and competing notions of ethical principle (fairness to
individuals) and public interest (consequences for society). Last 60 years, debates in mass media as three major
public concerns interact (Crime control and the victim, false convictions, fundamental human rights). Reflected
in much new legislation and case law: Wider admissibility of previous convictions and out of court pre-trial
statements, qualifications to right to silence, greater protection to Ws and complainants in sexual offences,
closer supervision of police interrogations, closer regulation of ID evidence.
,How to resolve any conflicts between purposes in creating, interpreting and implementing law of
evidence?
1. By reference to both public interest and ethical principles.
2. But both policy and principle in relation to evidence are often matters of public debate and controversy.
How to find the truth or facts?
Key starting point:
1. ‘Finding the facts’ which leads to ‘rectitude’ of decisions and ‘accuracy of outcomes.’
2. ‘Acquitting the innocent and convicting the guilty’ (Criminal Procedure Rules 2020).
Accurate Fact-finding enables appropriate decisions:
1. Punishing guilty regularly probably reduces crime.
2. Acquitting innocent gives moral legitimacy to punishment.
Follows that:
1. Evidence before the factfinder should be relevant and reliable.
2. It must be presented in a form designed to bring out the truth as clearly as possible.
Dilemmas around truth finding:
1. If there is a risk of fact-finding error and thus inaccurate outcomes.
2. May choose to build into search for truth a particular emphasis on avoiding errors.
3. In criminal matters, principle of presumption of innocence expresses a particular concern:
i. Convicting innocent.
ii. Burden and standard of proof.
4. One function of rules of evidence is to resolve what to do in case of doubt:
i. Make sure risk of error falls more on the P than the D.
ii. P must usually prove case ‘beyond reasonable doubt.’
Beyond truth-finding: procedural fairness
Should fact-finding be subject to other constraints?
1. How should we go about finding the truth?
2. What values should we respect in doing so?
Respect for human dignity and autonomy
1. Evidence obtained by torture is inadmissible.
Respect for liberal notions of rule of law
1. State should obey clear pre-defined limits in its treatment of citizens.
Rights of participation
1. Individuals affected by state processes (Ds, Ws, Vs) should be able to participate effectively in them.
2. Example: right for Ds to confront P Ws. Special measures for vulnerable or intimidated Ws.
, Recognising and defining procedural fairness:
1. Recognised, along with truth-finding, as part of the concept of justice in Criminal Procedure Rules 2020.
i. Dealing with the prosecution and the defence fairly.
ii. Recognising the rights of a defendant, particularly those under Article 6 of the European
Convention on Human Rights (ECHR).
iii. Respecting the interests of witnesses, victims and jurors...
2. ECHR sets out a broad framework of values and principles.
i. Article 6 (right to fair trial).
ii. Article 3 (prohibits torture or inhumane or degrading treatment).
iii. Article 8 (right to privacy and family life).
3. Human Rights Act 1998 gives these arguments from fundamental international rights purchase in
domestic law.
Key Concepts:
1. Relevance and admissibility:
i. To be admissible in court, evidence must be relevant.
ii. But not all relevant evidence is admissible:
a) Inadmissible as a matter of law because a statutory or common law rule excludes it.
b) The Judge exercises a statutory or common law discretion to exclude it.
iii. The Judge determines questions of relevance and admissibility because they are deemed
questions of law: Voire dire (‘trial within the trial’), Jury absent.
2. Facts in Issue (material facts/constitutive facts/facta probanda, ultimate facts, principal facts):
i. Facts that the law requires to be established for particular legal consequences to follow.
ii. How do we know what they are? Defined by substantive civil or criminal law relevant to offence
charged or wrong alleged.
iii. Example: Assault occasioning actual bodily harm (s47 Offences against the Person Act 1861). P
needs to prove that the defendant unlawfully assaulted this victim, intentionally or recklessly
causing the victim actual bodily harm. These are the ‘facts in issue.’
3. Facts relevant to facts in issue (evidential facts/secondary/indirect facts):
i. Neither necessary nor sufficient to establish a constituent element of offence (fact in issue).
ii. But support an inference (i.e. they seem to make it more likely) that a constituent element of
offence or wrong (fact in issue) exists or does not exist. Example, motive in murder charge.
Who determines the probative value of evidence?
1. In criminal cases, jury or the magistrates determine the weight of evidence.
2. In civil cases, the judge determines the weight of evidence.
Sufficiency of evidence: no case to answer
1. No case to answer: when the D feels that Ps evidence is insufficient.
2. Usually Trial Judges (TJ) make ruling after the defence submission of no case to answer at close of Ps
evidence. If there is insufficient evidence for a reasonable jury properly to convict, then TJ should direct
acquittal.
3. TJ may even withdraw issue of guilt from jury on own motion and even after D has tendered his
evidence (R v Brown 2002).
4. TJs may also withdraw a particular defence from the jury on basis that D has not adduced sufficient
evidence to discharge ‘evidential burden.’
5. But cannot, under any circumstances direct a guilty verdict (DDP v Stonehouse (1978)), (Wang (2005)).
