Unlocking Evidence

Charanjit Singh, Mohamed Ramjohn

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317570677
• Edition: 3
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Unlocking Evidence will help you grasp the main concepts of the subject with ease. Containing accessible explanations in clear and precise terms that are easy to understand, it provides an excellent foundation for learning and revising Evidence.

The information is clearly presented in a logical structure and the following features support learning helping you to advance with confidence:

• Clear learning outcomes at the beginning of each chapter set out the skills and knowledge you will need to get to grips with the subject

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• Key Facts summaries throughout each chapter allow you to progressively build and consolidate your understanding

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• End-of-chapter summaries provide a useful check-list for each topic

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• Cases and judgments are highlighted to help you find them and add them to your notes quickly

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• Frequent activities and self-test questions are included so you can put your knowledge into practice

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• Sample essay questions with annotated answers prepare you for assessment

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• Glossary of legal terms clarifies important definitions

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This edition has been updated to include the most recent updates in case law and criminal and civil procedure, including developments relating to vulnerable witnesses and character evidence as well as interventions by the trial judge.

1

An introduction to the substantive law of evidence

Aims and Objectives

The aims and objectives of this chapter are to:

• show you what the law of evidence is through hypothetical examples and real case studies;
• help you understand the development of the law of evidence and its exclusionary approach through a brief historical overview;
• teach you, through examples, about the different categories of evidence that exist;
• highlight the importance of the rules on the admissibility of evidence through a discussion of the related rationale;
• aid you to contextualise the role of the judge and jury in assessing evidence through highlighting their relative functions;
• outline the general rules on the exclusion of evidence through a discussion of the principles upon which these are based.

1.1 Introduction

Studying the law of evidence requires a rigorous examination and understanding of the vast array of rules and exceptions, in both the criminal and civil law of evidence, set against the potential judicial decision to exclude. Having a thorough understanding of the core areas of law is also important. The rules of evidence and their exceptions co-exist, like the pieces of a complex jigsaw puzzle, seeking to complement each other and thereby recreating an image or the narrative in the minds of the triers of fact and/or law (which includes magistrates, judges and the jury) of what possibly happened within the greater context. The trial is an adversarial contest and therefore the parties will seek to present their case in the most persuasive manner that they can – this involves selecting the evidence that they will present. Note, there are professional conduct rules that impact on a lawyer’s ability to present evidence in particular circumstances. It is therefore fair to state that all lawyers, regardless of whether they are solicitors or barristers, need to have mastered a sound appreciation of the substantive law of evidence. Tutors often remind their students that they can be tested on any part of the syllabus; this field of study is no different, with many assessments often turning out to be exercises of memory. One method of learning is to think about the rules of the substantive law of evidence as formulae – this can make recalling them much easier. There are three important things that you must remember – that the substantive law of evidence governs: (a) how facts are proven in court; (b) the rules on how evidence should be put to and presented in court; and (c) that these go along with the rules on which evidence should be excluded from the court altogether.

On that basis it is important that you appreciate that the parties to any action, whether it be a civil action or a criminal one, are not given blanket permission to put before the court all the evidence that may assist their case. Here is an important point that you should note: the parties are only permitted to put before the court the evidence that is (a) relevant to a fact in issue in the case and (b) admissible; and even then the trial judge may decide to exclude it, for it is he or she who has the final decision on the matter. Although this sounds like a pretty tall order, as you read through the book you will begin to understand the context in which the law developed and why, for instance, the judicial ability to exclude evidence and give directions to the jury in relation to other types of evidence is so fundamentally important. The topics that are covered in this textbook include:

• burdens and standards of proof;
• competence and compellability of witnesses;
• the trial process (examination-in-chief, cross-examination and re-examination of witnesses);
• privilege and public interest immunity;
• adverse inferences and silence;
• hearsay;
• confessions and illegally obtained evidence;
• identification evidence;
• corroboration and care warnings;
• good and bad character evidence;
• doctrine of similar fact;
• opinion evidence;
• documentary and real evidence.

You should note that, although the similar fact doctrine was superseded by the rules in the Criminal Justice Act 2003 (CJA), the case law is still relevant for discussion purposes.

1.2 The exclusionary approach of the English law of evidence

In order to begin to explore and understand the substantive law of evidence it is pivotal that you appreciate what evidence is and how it works, so this is one of the main aims of this chapter and textbook. The definitions that you will be introduced to in this chapter are those widely used in this field of study and they will remain consistent throughout this textbook. There are a number of infamous trials that exemplify the use of evidence and its impact on the outcome: the trials of Oscar Wilde (1895) and of Dr Crippen (1910) are two of the most notable. In the latter case the prosecution had the task of proving that the doctor had murdered Mrs Crippen (his wife). They alleged that he was having an affair and, because he wished to marry his mistress, he poisoned his wife. Whether the poison had in fact had the desired effect and killed her did not matter because they alleged that he had subsequently dismembered her body and then buried the chunks of flesh in the cellar of their marital home and burnt the bones – her head was never recovered. When his friends enquired about his wife’s whereabouts he had simply told them that she was staying with relatives. When the police began enquiring into his wife’s whereabouts Crippen changed his story, telling them that she had left him. He explained to the police that he had lied to his friends because he was too embarrassed to admit that that is what had happened. Shortly after this the doctor left England with his mistress. When the police dug up his cellar, to their horror, they discovered his wife’s remains. Crippen was caught and returned to England, where he stood trial. One of the main evidential issues was the identification of Crippen’s wife without the head. Evidentially, the head is one of the most useful parts of the human anatomy for identification purposes even when it is in a state that renders it difficult to make a physical identification; in such a case dental records can be used for this purpose. Luckily, in the absence of the head the prosecution was able to use a distinctive scar to prove that the flesh recovered belonged to his wife. Other prosecution evidence included that of Crippen’s initial lies to his friends about the whereabouts of his wife and subsequently leaving England with his mistress. In answer to the question whether the prosecution could adduce this as evidence, they would have to prove that it was (a) relevant and (b) admissible.

Here is another scenario. Tim and Mary have been married for over twenty years, during which time Tim has been repeatedly physically, mentally and verbally abusive towards his wife. One day Tim returns from work drunk and starts to argue with Mary, shouting at her. He begins to walk towards her shaking his fists violently and Mary, fearing for her safety, picks up a frying pan and hits Tim on the head with it. Tim slumps to the floor in a pool of blood; unbeknown to Mary, he has a thin skull that is easily fractured. Tim subsequently dies in hospital. Mary is arrested and charged with murdering Tim. Scenarios such as this are not uncommon in examinations. The questions from a practical legal and evidential perspective include: what happens next? Can Mary prove that she was acting in self-defence? If she were to claim that her responsibility was diminished, how would she substantiate this? The job of Mary’s legal counsel will be to advise her on:

• the case against her;
• any defences that she may raise; and
• the likely prospect of successfully defending herself against this allegation.

Counsel for Mary will want to challenge or test the evidence (the facts) that is stacked against her. This adversarial approach also seeks to ensure that any subsequent conviction is not unsafe. Appeals of decisions are often made where the proceedings have not been conducted in accordance with the rules of evidence (for example judicial misdirections) and process. In summary, evidence can be described as those facts that are used to either prove or disprov e something.

There are many jurisdictions throughout the world that admit all relevant evidence. In contrast, the English law of evidence does not do so. Traditionally, the English system has adopted a far more cautious and arguably restrictive approach. This has, at first sight, resulted in the exclusion of what many would regard as important relevant evidence; for instance, a confession may be excluded because of the unlawful manner in which the police obtained it (discussed later in the book). The foundations to this approach lie in the concept of trial by jury. The widely accepted notion about juries was that they could not sufficiently analyse the evidence presented to them and that they were unable to allocate the appropriate amount of weight to certain types of evidence; for instance, they may give a sighting of the accused at the scene of crime more weight than it deserved. Finally, certain types of evidence were deemed risky because such evidence would more easily prejudice a jury if it were not excluded, even if it were highly relevant. There have been a number of changes in relation to this stance; for instance the UK now takes an inclusionary approach to some types of traditionally excluded evidence, such as hearsay in criminal proceedings, discussions surrounding the exclusion of juries in cases that are technically complex and allowing those who are legally qualified to sit as part of a jury. If you take a brief look at English criminal law you will notice how harsh certain penalties that have been imposed on a defendant who had been found guilty (sometimes wrongfully) for the commission of a criminal offence. Thus, it was necessary to protect an accused from the inequity that would result from a jury mishandling the evidence.

Trial judges were vigilant in excluding evidence that they were suspicious of being concocted, fabricated or distorted. In addition to this, a series of public policy reasons evolved to exclude certain types of evidence from being disclosed. Legal professional privilege is a good example of the latter – this seeks to protect communications between the client and lawyer and promote candour in discussions (note, there are a range of new legal duties that qualify privilege, for instance the duty to report proceeds of crime or serious abuse of the vulnerable). Other examples include evidence that was not in the public interest to disclose because, perhaps, it would potentially damage national security – for instance certain types of military documents during wartime. Again, you should note that such documents might be declassified many years later.

Lawyers analyse and prepare their client’s case on the basis of a two-part test. The first limb of this test asks: is there any relevant evidence that proves the facts contended? If, the answer to this question is in the affirmative then the next question is whether that relevant evidence is admissible. Only then can a lawyer determine how likely it is that a claim would be successful (does the evidence meet the standard of proof) and subsequently advise the client. When you are undertaking an assessment question on the law of evidence you should begin by asking yourself these two questions because only evidence that is relevant and admissible can be put to the court. Whilst there is judicial discretion to exclude admissible evidence (discussed later) there is no judicial discretion to include inadmissible evidence. Take note that the test posed requires you to assess relevancy first – the following example will show you why. Consider this scenario: Sheetal is acting on behalf of Frank as legal counsel. She is presented with fifty pieces of evidence and, unbeknown to her, all fifty are technically admissible but only ten are r...