#15439 - Preliminary Evidential Matters - BPC Criminal Evidence

Syllabus 10: Preliminary Evidential Matters

1. Facts in Issue

Facts that remain contentious, and must be (dis)proven normally by the prosecution (exceptionally by D)

• Thus, nature of the facts in issue is determined by the legal ingredients of the offence/defence

Sims [1946] KB 531, per Lord Goddard CJ at p. 539: ‘[W]henever there is a plea of not guilty, everything is in issue and the prosecution have to prove the whole of their case…’

Criminal Justice Act 1967, s.10: any fact formally admitted under s.10 ceases to be in issue

2. Formal Admissions

Governed by Criminal Justice Act 1967, s 10

• CrimPR, rr. 37.6 (magistrates' court) and 38.13 (Crown Court): where fact is formally admitted, a written record of the admission must be made, unless court directs otherwise

Pittard [2006] EWCA Crim 2028: Written admissions must ordinarily be put before the jury so long as they are relevant and do not contain material that should not go to the jury

• s.10(2)(b) and (d), and Lewis [1989] Crim LR 61: formal admission may be made in court orally

Key principle: clarity on what has been admitted

• eg. Lewis (1971) 55 Cr App R 386: even though opposing counsel formally admitted to all the facts in P’s opening speech, court added that such a procedure should be adopted only rarely and with caution, because jurors, when considering the opening speech, might find it difficult to distinguish between law, mixed fact and law, and comment

s.10(1): a formal admission may be made of ‘any fact of which oral evidence may be given in any criminal proceedings’

• s.10 cannot be used to admit what would otherwise fall to be excluded, eg. hearsay

• Naylor [2010] EWCA Crim 1188: expert opinion is technically not a fact, and therefore cannot be admitted through s.10

  • However, a party who accepts another party's expert's conclusions may admit them as fact under s. 10 (CrimPR, r. 33.3)

Formal admissions should not be made lightly

• Kolton [2000] Crim LR 761: can only be withdrawn under s.10(4) if there exists cogent evidence from the accused and those advising him that the admissions were made by reason of mistake or misunderstanding

3. Relevance

Cardinal rule of evidence: all evidence which is sufficiently relevant to the facts in issue is admissible

• Exception: where no reasonable jury, properly directed as to its defects, could place any weight on it (Robinson [2006] 1 Cr App R 221, a case concerning voice recognition evidence)

• Strict liability offences: evidence of motive, intention or knowledge is inadmissible, being irrelevant to what the Crown has to prove and merely prejudicial to the accused (Sandhu [1997] Crim LR 288; Byrne [2002] 2 Cr App R 311)

Classic formulation in Article 1 of Stephen’s Digest of the Law of Evidence: relevance signifies that ‘any two facts to which it is 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 past, present or future existence or non-existence of the other’

• DPP v Kilbourne [1973] AC 729, per Lord Simon at p. 756: ‘relevant evidence is evidence which makes the matter which requires proof more or less probable’

• Randall [2004] 1 All ER 467, per Lord Steyn at [20]: question of relevance is typically a matter of degree to be determined, for the most part, by common sense and experience

Evidence of good character of P’s witness is generally inadmissible to bolster credibility, except where it is relevant to an issue in the case, e.g.:

• Amado-Taylor [2001] EWCA Crim 1898: in a case of rape, the defence being consent, evidence of the complainant's disposition to resist any form of pre-marital sexual intimacy

• Lodge [2013] EWCA Crim 987: in a case of inflicting grievous bodily harm, the defence being self-defence accompanied by evidence that the complainant had started the violence making racially abusive comments, evidence to show that the complainant was not a racist

• Refer Blackstone’s Criminal Practice F 1.12 - 1.17 for further eg. of relevance in certain issues

4. Circumstantial Evidence

Circumstantial evidence = evidence of relevant facts, i.e. facts from which the existence or non-existence of facts in issue may be inferred

• Contrast with direct evidence = evidence of fact in issue; in testimonial evidence, it is evidence about facts in issue of which the witness claims to have personal knowledge

Works on cumulative effect: DPP v Kilbourne [1973] AC 729 per Lord Simon at p. 758; Exall (1866) 4 F & F 922, per Pollock CB at p. 929

Note the strict approach to determining guilt based on circumstantial evidence, since the guilt is determined based on inference alone and evidence may be fabricated to cast suspicion on another

• Teper v The Queen [1952] AC 480, per Lord Normand at p. 489: ‘It is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.’

  • McGreevy v DPP [1973] 1 All ER 503: But where P’s case is based solely on circumstantial evidence, no requirement for judge to direct jury to acquit unless they are sure that the facts proved are not only consistent with guilt but also inconsistent with any other reasonable conclusion

5. Real Evidence

A material object, of which the condition, value or existence is in issue or relevant to an issue

• This object is produced in court for inspection by the tribunal of fact

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 the tribunal of fact must not draw its own unaided conclusion without the assistance of expert testimony

Where the material object cannot be brought into court, then it may be inspected out of court; termed ‘view’

• Lawrence [1968] 1 All ER 579: view should not take place after summing up, unless at the express request of the defence (Nixon [1968] 2 All ER 33)

• A view should be attended by the judge, the tribunal of fact, the parties, their counsel, and the shorthand writer

• Parry v Boyle [1987] 83 Cr App R 310: In the case of magistrates, as a general rule a visit to the locus in quo should take place before the conclusion of the evidence and in the presence of the parties or their representatives, 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 feature not previously noticed by the parties which impresses the magistrates

1. Questions of Law and Fact

Generally, questions of law are for the judge, and questions of fact for the jury

• Criminal Justice Act 2003, s.48(3) and (5): In a trial without jury, the judge decides both questions of law and fact, but is required to give a judgment which states the reasons for the conviction (while juries need not give reasons per jury secrecy principle)

Exception: judges in jury trials determine question of facts relating to

• Existence or non-existence of preliminary facts, i.e. facts which must be proved as a condition precedent to the admissibility of certain types of evidence

• Sufficiency of evidence (in deciding whether an issue should be withdrawn from the jury)

• Evaluation of evidence adduced by the parties (for the purpose of commenting on its weight in his summing-up to the jury)

Senior Courts Act 1981, ss. 8 and 73: Lay magistrates, when sitting with a judge in the Crown Court, are also judges of the court and must deal with both questions of law and fact

• Orpin [1975] QB 283: But lay magistrates must accept rulings on law of the professional judge

• In summary proceedings presided by lay justices, the justices decide all questions of both law and fact, but on questions of law, including the law of evidence, should seek and accept the advice of the clerk

1. Discretion at Common Law

A judge has a discretion to exclude otherwise admissible prosecution evidence if, in his opinion, its prejudicial effect on the minds of the jury outweighs its true probative value

• Part of his inherent power and overriding duty to ensure that the accused receives a fair...