#16096 - Evidential Concepts - BPC Criminal Litigation (formerly BPTC) 2024/2025

Evidential Concepts

Preliminary evidential matters

(a) Facts in issue

• Evidence is called, by either party, in order to prove the ‘facts in issue’.

• ‘Facts in issue’ = those facts that any party needs to prove in order to prove its case.

• Facts in issue (anything that needs to be proved for a case to succeed) comprise:

  • (a) facts which prosecution bears burden of proving/disproving (in order to establish guilt of the accused of the offence(s) charged)

  • (b) facts which, in exceptional cases, accused bears burden of proving (in order to succeed in his defence, if one is raised).

• Whenever there is a not guilty plea everything is in issue, prosecution have to prove whole of their case, including:

  • identity of accused;

  • nature of act (AR);

  • existence of any necessary knowledge/intent (MR).

• Job of court is then to try to narrow the issues as much as poss, by seeing what elements, if any, the defence agree upon. Those elements still require proof, but could prove them by means other than calling live evidence.

(b) Proving a fact by means other than calling live evidence

• Several ways of establishing evidence other than by a witness giving live evidence.

• WAYS TO PROVE A FACT (other than by live evidence) [[not on syllabus apart from ‘admitted facts’/formal admission

• (1) Admitted facts/’formal admission’ -- Power to ‘simply agree’ any fact (CJA 1967, s10)--Another way to prove a fact: the advocates in a case simply agree that the fact is so (it then ceases to be in issued):

  • Formal admission may be made by counsel/solicitor orally.

  • Admitted facts may be made by one party OR parties jointly.

  • A written record must be made of the admission (unless court directs otherwise), both parties (the lawyers, not the witnesses) agree and sign the agreement.

  • But, under s10: cannot be used to admit what would otherwise be excluded because, say, it is inadmissible hearsay.

  • A party who accepts another party’s expert conclusions may admit them as fact under s10.

  • If it is sought to resile from formal admissions, leave to withdraw them is unlikely to be given under s10(4) without cogent evidence from the accused that the admissions were made by reason of mistake or misunderstanding.

• (2) ‘Agreed statements’ (by consent of parties, from CJA 1967 s9) the witness’s statement (made previously out of court) can be agreed as accurate and true in its written form: the statement is then simply read out in court, and carries same weight as if witness had attended in person, sworn (or affirmed) and given the evidence from the box.

  • Evidence will only agreed in this way if there is no challenge to the evidence.

  • If the evidence is disputed the witness must be called and challenged orally.

  • If a party wishes to object to the admission of the written statement must serve notice of objection not more than 7 DAYS after service of the statement.

• (3) a judge or jury takes ‘judicial notice’ of the fact

  • Where facts are generally and widely known, then formal proof is not required (eg that there’s bad traffic at rush hour).

  • The doctrine of ‘notice’ goes a little further: a judge is permitted to take judicial notice of a fact ‘on enquiry’. i.e. that the judge might not know a particular fact off the top of his head, but could find out very easily from a source that would be incontrovertible.

  • Eg which counties border Staffordshire? If relevant, parties would have the option of asking the judge to take judicial notice ‘on enquiry’ and simply let the judge look up the answer.

  • Jurors are not allowed to do their own research at any time.

  • Jurors can’t take notice on personal matters that they happen to know, but are not generally known. If a juror has personal knowledge of matters relevant to a case, they should let the court known, and the judge can deal with any issues that might arise.

(c) Types of evidence

• oral evidence given by a witness in court (most common form of evidenc)

• Written form, evidence can be admitted in written form either through agreed statements (s9 CJA); or by way of admitted facts (s10 CJA).

• ‘Real’ evidence: material objects and things brought to court for inspection by the tribunal of fact; the existence/condition/value of which is in issue, or relevant to an issue.

  • Some real evidence will be in forms of docs that are exhibited by a witness who can vouch for their provenance.

  • Little, if any, weight can attach to real evidence in the absence of accompanying testimony identifying the object and connecting it with the facts in issue.

  • In some cases, tribunal of fact must not draw its own unaided conclusion without the assistance of expert testimony (eg comparison of handwriting).

• VIEWS : where occasionally juries can visit a scene of a crime, or leave court to view an object that cannot be brought into court. Their observations become evidence in the case.

  • ‘View’ = both:

    • (a) an inspection out of court of some material object which it is inconvenient/impossible to bring to court.

    • And (b) an inspection of the locus in quo (scene of the crime).

  • A view should not take place after the summing-up.

  • A view should be attended by: the judge; tribunal of fact; parties; their counsel; the shorthand writer.

  • In the case of magistrates: general rule a visit to locus in quo should take place before the conclusion of the evidence, and in the presence of the parties or their reps

    • so as to afford them the opportunity of commenting on any feature of the locality which has altered since the time of the incident; OR any incident/feature not previously noticed by the parties which impresses the magistrates.

  • The presence of the accused is important, because he may be able to point out some important matter of which his legal adviser is ignorant, or about which the magistrates are making a mistake.

  • a judge must produce ground rules for a view, after discussion with the advocates. Ground rules should contain: details of what the jury should be shown, in what order, who will be permitted to speak and what will be said; and they should make provision for the jury to ask questions.

• DIRECT vs CIRCUMSTANTIAL

  • ‘direct evidence’ = evidence of facts in issue (i.e. evidence that a witness gives of having had direct experience of a matter in issue. Direct evidence (if believed) directly proves a fact.

  • OR ‘circumstantial evidence’ = evidence of relevant facts (i.e. facts from which the existence/non-existence of facts in issue may be inferred)

    • Circumstantial evidence allows facts to be inferred.

    • Circumstantial evidence ‘works by cumulatively, in geometrical progression, eliminating other possibilities’. Combination of circumstances (none of which alone would raise a reasonable conviction) but the whole, taken together, may create a strong conclusion of guilt.

    • Doesn’t necessarily follow that weight attached to circumstantial evidence is less than to direct evidence: eg if you have a variety of items of circumstantial evidence all leading to same conclusion.

    • Although circumstantial evidence may sometimes be conclusive, it must always be narrowly examined: as it may be fabricated to cast suspicion on another. Before drawing inference of guilty, jury must be sure no other co-existing circumstances which would weaken/destroy the inference.

  • EG: (in a case where it is in issue where the D was at midnight).

    • Witness 1 says he saw the D at Gladbury Station at midnight (= direct oral evidence).

    • A train ticket found in D’s pocket for a training arriving just before midnight at Gladbury station (= circumstantial real evidence).

(d) Admissibility, relevance and weight of evidence

• To consider admissibility: (1) ‘relevance’; (2) any exclusionary rules; (3) weight (if very poor quality evidence, might affect its admissibility).

• CARDINAL RULE of law of evidence: For any evidence to be admissible, it must be ‘relevant’: this is the first & most fundamental principle of evidence: that all evidence which is sufficiently relevant to the facts in issue is admissible (subject to exclusionary rules); and all evidence irrelevant/insufficiently relevant to facts in issue should be excluded.

• “Relevance” is established by whether the evidence is ‘logically probative’ of a fact in issue –i.e. does the evidence tend to prove or disprove a fact in issue/make those matters more or less probable.

  • If evidence is irrelevant it is inadmissible.

  • If relevant admissible.

• For an offence of strict liability (no proof of MR required) evidence re motive/intention/knowledge is irrelevant and so inadmissible.

• There is more to admissibility:

• Having first considered relevance, you then consider whether the relevant evidence is nonetheless subject to an exclusionary rule: these are rules to protect the fairness of trials to prevent evidence which is relevant, but should not be admitted because of the effect on the fairness of the trial. Eg, if police acquired relevant info using an illegal phone tap.

• Evidence of good character of a prosecution witness is generally inadmissible to bolster his credibility, because it amounts to ‘oath-helping’

  • BUT may be admissible if relevant to an issue in the case, eg in case of rape, the defence being consent, evidence of complainant’s disposition to resist any form of pre-marital sexual intimacy. Eg case of GBH, defence being self-defence, and evidence that complainant had started the violence making racially abusive comments evidence to show that complainant was not a racist.

• ‘Weight’ of evidence: all evidence varies in terms of how strong, reliable and valuable it is.

  • Attaching the right degree of weight to a piece of evidence is a matter...