EVIDENCE

Chapter 2: Preliminaries
(1) THE MEANING OF EVIDENCE
Of the eight uses of the term "evidence" in ordinary parlance 1, only three are relevant in legal parlance. The first defines the term by presenting a complex picture and the importance of the context: "The available facts, circumstances, etc. supporting or otherwise a belief, proposition, etc., or indicating whether or not a thing is true or valid." This definition suggests that argument and evidence are interconnected. But there is a distinction between "an argument" and "evidence": An "argument" is the statement of reasons leading to a conclusion which involves an inference or a deduction whilst evidence is concerned with facts and proof of facts or statistical and experimental data. 2 For example, a person found in possession of stolen goods soon after the theft is presumed to be either the thief or the receiver. But this is a stereotyped conclusion which could be displaced by testimony proving the accused's innocence. Furthermore, a belief is a personal matter since it is difficult for the non-believer to share the belief and as Wittgenstein reminds us: "It is clear that there are no grounds for believing that the simplest eventuality will in fact be realized. 3 The second definition specifies the use to which evidence is put: "Information, whether in the form of personal testimony, the language of documents, or the production of material objects, that is given in a legal investigation, to establish the fact or point in question." The third definition describes what counts as evidence: "a document by means of which a fact is established". Historically, the third definition is very limited in scope since in civil and criminal proceedings we rely on more than just documentary evidence. In legal parlance, therefore, textwriters have adopted variants of the second definition or a combination of the second and third definitions instantiated above. Cross defines evidence of a fact "as that which tends to prove it - something which may satisfy an inquirer

The Concise Oxford Dictionary (Oxford: Oxford University Press, 1951). See G.D. Nokes, An Introduction to Evidence (London: Sweet & Maxwell, 1967), at 9. 3 L. Wittgenstein, Tractatus Logico-Philosophicus (London: Routledge & Kegan Paul, 1960) at para. 6.3631.
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EVIDENCE of the fact's existence". 4 Stephen's definition shows that there are precise requirements for the legal admissibility of evidentiary facts in a court of law. "Evidence", according to Stephen, means: "(1) Statements made by witnesses in court under a legal sanction, in relation to matters of fact under inquiry; such statements are called evidence; (2) Documents produced for the inspection of the Court or judge; such statements are called documentary evidence." 5 Adopting a position not too dissimilar to the second definition instantiated above, Twining opines: "[E]vidence is the means of proving or disproving facts, or of testing the truth of allegations of fact, in situations in which the triers of fact have no first-hand knowledge of the events or situations about which they have to decide what happened ... 'evidence' is information from which further information is derived or inferred in a variety of contexts for a variety of purposes." 6 As the definitions proffered by Cross, Stephen and Twining are silent on the quality of fact or information offered, it is submitted that any material or fact which is sufficiently reliable and cogent (i.e. weighty) may be regarded as evidence.

(2) CLASSIFICATION OF EVIDENCE

The following terms are used (not consistently) as descriptive of different varieties of evidence: Best and inferior. According to Baker, 7 the Best Evidence rule was an attempt to rationalise the hearsay rule and has been traced to Ford v Hopkins. 8 In that case, Holt CJ said: "The best proof that the nature of the thing will afford only is required." By the nineteenth century this dictum, this slender stream of authority, has been developed by textwriters on the law of evidence to enunciate the Best Evidence rule which required that the best evidence the nature of the case would afford must be produced and if the best evidence could not possibly be produced the next best (or inferior evidence) was admitted. For example, the production of a copy of a deed or will
C. Tapper (ed.), Cross and Tapper on Evidence (Butterworths, 1999), at 1. J.F. Stephen, A Digest of the Law of Evidence (London: Macmillan, 1948), at 3. 6 William Twining, "Evidence and Legal Theory" in W. Twining (ed.), Legal Theory and Common Law (Oxford: Basil Blackwell, 1986), at 66. 7 See R.W. Baker, The Hearsay Rule (London: Pitman, 1950), at 15-16. 8 (1700) 1 Salk 283.
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EVIDENCE rather than its original raises the presumption that there is something more in the original. In the latter part of the nineteenth century, the decline of the strict application of the Best Evidence rule became obvious due to the relaxation of the rule and whatever was left was once stigmatised as "one of the ghosts of the law of evidence." 9 Is the rule a ghost or a current principle of the law of evidence? Recently, judges of the Queen's Bench Division and Family Division of the High Court in their response to the Civil Justice Review recognised the currency of the Best Evidence rule as a principle underlying the weight of hearsay evidence to be admitted. 10 In a similar vein, Balcombe LJ in Ventouris v Mountain (No. 2) 11 said that: "The modern tendency in civil proceedings is to admit all relevant evidence and the judge should be trusted to give proper weight to evidence which is not best evidence." 12 Direct and circumstantial. Direct evidence is the proof of a fact in issue by a person who perceived it with one of his five senses. Circumstantial evidence is fact from which the existence or nonexistence of a fact in issue can be inferred. Direct and hearsay. Direct evidence (as defined above) of a relevant fact is admissible whereas proof by a witness who relates what he was told by some other person (first-hand hearsay) or what the other person was told by another person (second-hand hearsay) or what other persons who were not called to give evidence told him (multiple hearsay) is contrary to the rule against hearsay discussed later. Oral, documentary and real. The modern means of proof are often categorised as oral or parol evidence, documentary and real evidence. The term "documentary evidence" is a compendious expression for describing a variety of evidence inscribed on or emanating from a vast array of documents such as maps, graphs, drawings, tables, microfilms, microfiche, computer printouts and Electronic Data Interchange Systems (EDI). Oral evidence is the testimony of a person called as a witness but it includes evidence which, by reason of defect of speech or hearing, is given by signs. Real evidence is that from which the court can draw inferences such as material objects, demeanour of a witness, physical characteristics of a person or an animal. In modern evidential parlance, the word "real" is used to draw a distinction between a document intended to show that it was in fact made (such as a tape or a microfilm) and one tendered as evidence of
9 P. Murphy, A Practical Approach to Evidence (London: Blackstone, 1992), at 40. See also Garton v Hunter (1969) 2 Q.B. 37, Kajala v Noble (1982) 75 Cr App R 149 and R v Governor of Pentonville, Ex p Osman [1990] 1 W.L.R. 277, 308. 10 See The Hearsay Rule in Civil Proceedings (The Law Commission Consultation Papers No. 117, 1991), para. 2. 68. 11 [1992] 1 WLR 887. 12 Ibid., p.899. These views are enacted as section 4 of the Civil Evidence Act 1995.

EVIDENCE the truth of that which was asserted. The former is regarded as real evidence whilst the latter is hearsay. 13 Primary and Secondary. The distinction, a byproduct of the Best Evidence rule discussed above, is of importance in relation to private documents. Primary evidence is regarded as synonymous with best evidence. In other words, the primary evidence of a private document is the original itself whilst a copy of the document or other evidence of its contents is secondary evidence. Prima facie and Conclusive. Prima facie (or presumptive) evidence is either a creature of statute or a judicial pronouncement ossifying into a rule of law. It is evidence declared as sufficient until the contrary is proved. One example will suffice: Section 2(3) of the Partnership Act 1890 which provides that the receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in that business. Conclusive evidence is evidence which no party is allowed contradict (e.g. the rule that a child under 10 is incapable committing an offence - doli incapax). If the evidence incontrovertible, it tantamounts to a rule of law and should be described. to of is so

(3) SOURCES OF THE LAW OF EVIDENCE

The term "source of law" can refer to governmental institutions that formulate legal rules or to the published manifestations of the law: the books and the electronic and other media that contain legal information. 14 The latter and broad meaning of "source" is adopted in this text to include all sorts of historical and modern sources of the law of evidence. In view of the fact that the rules of evidence are of great antiquity, it is pertinent to mention, from the outset, that the concept of the burden of proof has been traced to the second century A.D. whilst the rules of corroboration have been traced to the great religious texts - the Talmud, the Bible and the Koran. Of special importance to the study of evidence are texts written by Nelson 15 and Gilbert 16 in the eighteenth century. The nineteenth century texts published on both sides of the Atlantic are important for the rationalisation of the law of evidence. In England Peake's
See Myers v DPP [1965] A.C. 1001 and R v Kearley (1992) 95 Cr App R 88, HL. See J. Myron Jacobstein and Roy M. Mersky, Fundamentals of Legal Research, 1-2 (5th edn. 1990) cited in Bryan A. Garner (ed.), Black's Law Dictionary, (Minnesota: West Group, 1999), at 1401. 15 W. Nelson, The Law of Evidence, 2nd edn., (London: R. Nutt and R. Gosling, 1735). 16 G. Gilbert, The Law of Evidence (New York and London: Garland Publishing Inc., 1979) [a reprint of the 1754 ed. printed for Sarah Cotton, Dublin].
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EVIDENCE Compendium 17 appeared in 1801 and Bentham's The Rationale of Judicial Evidence, a trenchant critique of the law of evidence, was published in five volumes in 1825. 18 Despite the author's infelicities of style and punctilious analysis of the law, The Rationale was indirectly responsible for a number of statutory reforms of evidence. For the systematisation of the law of evidence, Stephen's Digest 19 in England and, in the United States, Greenleaf's Treatise on the Law of Evidence 20, Thayer's Preliminary Treatise 21 and Wigmore's magnum opus 22 are instructive. No study of the historical evolution of the principles, rules and doctrines of evidence will be complete without consulting two texts by English textwriters - Taylor 23 and Best. 24 The modern sources of the law of evidence include practitioners' texts by Archbold 25, Andrews and Hirst 26, Murphy 27, Phipson 28 and various textbooks 29 and theoretical works. 30 But that is not all: judicial decisions have played a vital role in the development of the law of evidence since its inception as a discrete discipline in 1770. These judicial decisions are reported in various law reports and discussed in law journals such as the Cambridge Law Journal, the Criminal Law Review, the Law Quarterly Review, the Modern Law Review, the International Journal of Evidence and Proof, the European Human

17 T. Peake, A Compendium of the Law of Evidence (New York and London : Garland Publishing Incorporated, 1979) [a] reprint of the 1801 ed. printed for E.&R. Brooke and J. Rider, London]. 18 J. Bentham, The Rationale of Judicial Evidence (London: Hunt and Clarke, 1827), Vols. 1-4. 19 J.F. Stephen, A Digest of the Law of Evidence (London: Macmillan, 1948) (first published in 1876). 20 S. Greenleaf, A Treatise on the Law of Evidence (Little, Brown, 1842). 21 J.B. Thayer, A Preliminary Treatise on Evidence at the Common Law (Boston: Little, Brown, 1898). 22 J.H. Wigmore, Evidence in Trials at Common Law, P. Tillers rev. (Boston: Little, Brown, 1983). 23 J.P. Taylor, A Treatise on the Law of Evidence, 12th edn. (London: Sweet & Maxwell, 1931), Vols. 1 and 2. 24 W.M. Best, The Principles of the Law of Evidence, 12th edn. (London: Sweet & Maxwell, 1922). 25 J. Richardson, et al., Archbold's Criminal Pleading, Evidence and Practice (London: Sweet & Maxwell, 2009). 26 M. Hirst (ed.), Andrews and Hirst on Criminal Evidence (Bristol: Jordans, 2001). 27 P. Murphy, et al., Criminal Practice (London: Blackstone, 2002). 28 H.J. Malek, et al., Phipson On Evidence (London: Sweet & Maxwell, 2008). 29 See I.H. Dennis, The Law of Evidence (London: Sweet & Maxwell, 2007); A. Keane, The Modern Law of Evidence (Oxford: Oxford University Press, 2008); and C. Tapper (ed.), Cross and Tapper On Evidence (Oxford: Oxford University Press, 2007). 30 See T. Anderson and W. Twining, Analysis of Evidence (London: Weidenfeld & Nicolson, 1991); W. Twining, Rethinking Evidence (Illinois: Northwestern University Press, 1994); W. Twining, Theories of Evidence: Bentham and Wigmore (London: Weidenfeld & Nicolson, 1995); and M.R. Damaska, Evidence Law Adrift (New York and London: Yale University Press, 1997).

EVIDENCE Rights Law Review and the European Human Rights Law Journal, to mention a few. In its embryonic stage, the law of evidence consisted of a comparatively small number of Acts of Parliament which has increased by leaps and bounds over the centuries notable amongst which are the Criminal Evidence Act 1898, the Civil Evidence Acts 1968, 1972 and 1995, the Police and Criminal Evidence Act 1984, the Criminal Justice Acts 1988 and 1991, the Criminal Justice and Public Order Act 1994, the Criminal Procedure and Investigations Act 1996, the Youth Justice and Criminal Evidence Act 1999, the Freedom of Information Act 2000, the Regulation of Investigatory Powers Act 2000, the Criminal Justice and Police Act 2001 and the Criminal Justice Act 2003. Finally, no survey of the sources of the law of evidence will be complete without mentioning the pervasive effect of the Human Rights Act 1998, which incorporated the European Convention on Human Rights into British law, on the rules of evidence and the intellectual production excited by this incorporation. Three practitioners' texts on human rights law authored by Clayton and Tomlinson 31, Kempees 32 and Feldman 33 dominate the market but there are other works which are not practitioners' texts and are not so popular as the aforementioned but are equally useful. 34 Recent developments on the municipal law and European law are noted in Current Law and European Current Law respectively.

(4) FACTS IN ISSUE

(A) In general There are two principal facts in issue: those which are in issue as a matter of substantive law and those which are in issue as a matter of the law of evidence itself. These are facts which the plaintiff claimant in civil proceedings and the prosecutor in criminal proceedings must
31 R. Clayton and H. Tomlinson, The Law of Human Rights (Oxford: Oxford University Press, 2008), Vols. 1 and 2. 32 P. Kempees, A Systematic Guide to the Case Law of the European Court of Human Rights, 1960-1994 (Martinus Nijhoff, Dordrecht), 1996, Vols. 1-3. 33 D. Feldman, Civil Liberties and Human Rights in England and Wales (Oxford: Oxford University Press, 2002). 34 See B. Dickinson, Human Rights and the European Convention (London: Sweet & Maxwell, 1997); M. Janis, R. Kay and A. Bradley, European Human Rights Law: Text and Materials (Oxford: Oxford University Press, 2000); E. Shorts and C. de Than, Civil Liberties: Legal Principles of Individual Freedom (Sweet & Maxwell, 1998); E. Shorts and C. de Than, Human Rights Law in the UK (London: Sweet & Maxwell, 2001); and R.M.M. Wallace, International Human Rights: Text and Materials (London: Sweet & Maxwell, 2001) and D.J. Harris, M. OBoyle, E.P. Bates and C.M. Buckley, Law of the European Convention on Human Rights (Oxford: Oxford University Press, 2009).

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EVIDENCE prove in order to succeed. The main facts in issue can only be ascertained by reference to the substantive law and pleadings.

(B) Means of Proof

Facts in issue may be proved or disproved by judicial evidence which takes the following forms: testimony, hearsay, documents, things or real evidence and circumstantial evidence. Testimony. Testimony is the oral statement of a witness made under oath as evidence of the truth of that which is asserted. In legal parlance, it is aptly called 'direct' evidence or testimony to distinguish it from hearsay. Hearsay. Section 1(2) of the Civil Evidence Act 1995 liberally defines "hearsay" as follows: "a statement made other than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated therein." This statutory definition lacks specificity. A specific and universally accepted definition of hearsay proffered by Cross is as follows: "Express or implied assertions of persons other than the person who is testifying and assertions in documents produced to the court [which] are inadmissible as evidence of the truth of that which was asserted." 35 In civil proceedings, all hearsay statements are generally admissible 36 but in reality the statements may still be excluded due to considerations relating to weight (or cogency) 37 or on grounds other than hearsay, for example, because they infringe the rule against opinion or are inadmissible similar fact evidence. In criminal proceedings, hearsay statements are generally inadmissible but are rendered admissible, if they come within the ambit of one of the recognised statutory 38 or common law exceptions 39 to the hearsay rule.
35 Sir Rupert Cross, Cross On Evidence (Butterworths, 1967), at 387. This definition was adopted in the 11th Report of the Criminal Law Revision in June 1972 (Cmnd. 4991). 36 Civil Evidence Act 1995, s.4. 37 Ibid., s.14. 38 The principal statutory exceptions to the hearsay rule in criminal proceedings were stipulated in sections 23, 24, 26, 30, 32 and 32A of the Criminal Justice Act 1988 as extended by section 24 of the Youth Justice and Criminal Evidence Act 1999 which are now replaced by sections 114-118 of the Criminal Justice Act 2003. 39 The hearsay statements admitted as common law exceptions to the hearsay rule are as follow: statements made by deceased persons, declarations against pecuniary interest and proprietary interest, dying declarations as to homicide and res gestae evidence.

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EVIDENCE Documents. The word "document" has no single meaning but includes maps, plans, graphs, photographs, discs, tapes, films, microfilm, microfiche, soundtrack or any other device by which visual image may be reproduced. It therefore also includes videotapes 40 and computer printouts. 41 Documents (as statutorily defined 42) may be incorporated in evidence if they contain admissible hearsay. 43 Things or Real Evidence. Although the term "real evidence" was coined by Bentham 44 and adopted by Best 45, it has not received the blessing of judicial usage. It encompasses material objects, appearance, the demeanour of a witness and a view. An object such as a vicious dog (e.g. a Rottweiler) or a suit that does not fit or a blood-stained knife may be produced to the judge and jury to enable them to form their opinion on the matter. The appearance of the accused - whether he is left-handed, tall, short, weak or has physical deformity such as rupture in cases of alleged rape may be relevant to a fact in issue. Nokes 46 includes the demeanour of a witness as real evidence, for example, the way a witness behaves under crossexamination may rightly be regarded as evidence. There is considerable doubt as to the true nature of a view or visit by a judge to the locus in quo - the scene of the crime or accident. Denning LJ in Goold v Evans & Co. 47 treated a visit to a factory to observe the reconstruction of an accident as a species of real evidence. Hodgson LJ regards it as no more than a means of interpreting evidence in court and this was the view adopted in Birmingham v Daily News Ltd. 48 where it was held that the trial judge had rightly taken into account his opinion of the machine formed at the view. More recently, in Li Shu-Ling v R 49 videotaped reconstruction at the scene of a crime and the accused's confession was admitted in evidence. Circumstantial Evidence. Circumstantial evidence has been defined in section 2 (above) as facts from which the existence or non-existence of a fact in issue may be inferred. For example, in a charge of arson
R v Grimer [1982] Crim LR 674 and Li Shu-Ling v R [1988] AC 270, PC. R v Minors, R v Harper [1989] All ER 208, R v Spiby [1991] Crim LR 199, R v Burke [1990] Crim LR 401 and R v Shephard [1993] 1 All ER 225, H.L. 42 Section 13(1) of the Civil Evidence Act 1995 defines a "document" as "anything in which information of any description is recorded". 43 For further discussion, see Chapter 13. 44 J. Bentham, The Rationale of Judicial Evidence (London: Hunt and Clarke, 1827), Vol. 1 at 53. 45 W.M. Best, The Principles of the Law of Evidence (London: Sweet & Maxwell, 1922), at 17. 46 G.D. Nokes, An Introduction to Evidence (London: Sweet & Maxwell, London, 1967), at 448-9. 47 [1951] 2 TLR 1189, CA. 48 [1956] 2 QB 534. 49 Supra, n. 40.
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EVIDENCE the fact that the accused was seen walking away with an empty can of petrol from a building gutted by fire might lead to the inference that he set the building alight. According to Wigmore, circumstantial evidence may be classified as prospectant, concomitant and retrospectant circumstantial evidence. 50 Prospectant circumstantial evidence is a past event from which a fact in issue can be inferred such as proving speed in an action for negligence as to establish motive or plan. Concomitant circumstantial evidence is used to prove circumstances existing contemporaneously with the transaction in issue before the court to show that the acts alleged are probable, for example, as standard of comparison where the defendant's liability for negligence is determined by considering what other brokers in his position would have done 51 or in rendering admissible a hearsay statement as part of the doctrine of res gestae. Far too much ink has been spilled by textwriters on this doctrine. It will suffice to state that by the doctrine statements which otherwise would have been excluded are now admissible as exceptions to the hearsay rule because the evidentiary facts by reason of proximity in time, place or circumstances throws light on the principal facts. This doctrine is considered in depth in Chapter 13. Retrospectant circumstantial evidence is the converse of prospectant circumstantial evidence in that a person's anterior intention may be proved by his subsequent acts. For example, possession of stolen goods without explanation entitles the jury to infer that the person in possession was either a thief or guilty of dishonestly handling the goods, knowing or believing it to be stolen contrary to section 22 of the Theft Act 1968.

(5) RELEVANCE, ADMISSIBILITY AND WEIGHT OF EVIDENCE

(A) In general
The term "relevance" means the connection between one fact and another fact renders the existence of the other fact probable or improbable. Relevance is not a matter of law but one of logic and experience. The general rule is that all evidence that is sufficiently relevant is admissible and all evidence that is irrelevant or insufficiently relevant should be excluded. The first limb of the rule - that all evidence that is sufficiently relevant is admissible - is subject to a number of exceptions as relevant evidence might still be excluded because the
50 J.H. Wigmore, Evidence in Trials at Common Law, P. Tillers rev. (Boston: Little, Brown, Boston, 1983), Vol. 1A, at 1140. 51 Chapman v Walton (1833) 10 Bing 57.

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EVIDENCE evidence infringes the rules against hearsay and opinion or is inadmissible as similar fact or character evidence. The exclusion of irrelevant or insufficiently relevant evidence may be considered under the following headings: Remoteness. For Best 52, the rejection of evidence on the ground of remoteness is an offshoot of the Best Evidence rule. This rejection is based on lack of connection between the evidentiary and principal facts. In Hart v Lancashire and Yorkshire Rail Co. 53 the fact that the defendants method of changing the points was altered after an accident was held to be inadmissible. In the words of Bramwell B: People do not furnish evidence against themselves by adopting a new plan. Again, in Hollingham v Head 54 where a contract for the sale of guano was in issue, evidence that the plaintiff had contracted on the alleged terms for the sale of guano to strangers was held inadmissible. Williams J said: It would lead to the greatest inconvenience if we were once to relax the rule, which requires the evidence to be confined to the points in issue, by allowing other transactions to be inquired into Multiplicity of issues. The desire to avoid multiplicity of issues is responsible for several of the exclusionary rules of evidence. For example in Agassiz v London Tramway Co. Ltd. 55 a passenger on a tram claimed damages for personal injuries caused by collision due to the negligence of the driver. She sought to tender evidence that she had heard a fellow passenger say that the driver had been off the line five or six times that day. The presiding judge rejected the evidence because it would have given rise to collateral issues. Again, in Folkes v Chadd 56 the question was whether an embankment erected by P caused silting in Ds harbour. One Mr Smeaton, a distinguished engineer, testified as an expert that silting was not caused by the embankment and sought to reinforce his opinion by showing that silting had occurred in other harbours on the same coast. The additional evidence was held inadmissible. However, in Metropolitan Asylum District v Hill 57 and Hales v Kerr 58 the judges were formally disposed to allow such evidence. In the former, the effect of a smallpox hospital on the health of the inhabitants of the neighbourhood was in issue. The House of Lords held that the evidence on the effect of similar institutions on other localities was admissible, although the point was not finally decided. In the latter, P
W.M. Best, The Principles of the Law of Evidence (London: Sweet & Maxwell, 1922), at 234. 53 (1896) 21 LT 261. 54 (1858) 27 LJCP 241. 55 (1873) 21 WR 199. 56 (1782) 3 Doug KB 157. 57 (1882) 47 LT 29. 58 (1908) 2 KB 601. See also Holcombe v Hewson (1810) 2 Camp 391.
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EVIDENCE claimed he had contracted barbers itch from the implements used by D, a barber. He was allowed to prove that two other customers of D had contracted the same disease. Danger of Manufactured Evidence. There is a school of thought that believes that the degree to which an item of evidence is relevant diminishes in proportion to the likelihood of its being manufactured.

(B) Relevance and admissibility: A summary

The distinction between relevance and admissibility was succinctly put by Thayer: Admissibility is determined, first, by relevancy, - an affair of logic and experience and not at all of law; second, but only indirectly by the law of evidence, which declares whether any given matter which is logically probative is excluded. 59 Thayers position on admissibility was revised by Wigmore as follows: Admissibility signifies that the particular fact is relevant, and something more that it has also satisfied all the auxiliary tests and extrinsic policies. 60 Cross 61 eventually reformulated Thayers position in a statement explicable in a quasi-mathematical form: Relevance Admissibility Admissibility = Relevance + Satisfaction of Auxiliary Tests and Extrinsic Policies

(C) Cogency or weight of evidence or probative force

The difference between the admissibility of evidence and cogency or weight of evidence or probative force is that whilst the former is a matter of law for the judge, the latter is a question of fact which frequently forms part of the judges observation in his summing up.

59 J.B. Thayer, A Preliminary Treatise on Evidence at Common Law (Boston: Little, Brown, 1898), at 516. 60 J.H. Wigmore, Evidence in Trials at Common Law, P. Tillers rev. (Boston: Little, Brown, 1983), Vol. 1, at 689. 61 C. Tapper (ed.), Cross and Tapper on Evidence (London: Butterworths, 1999), at 66.

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EVIDENCE

(6) THE FUNCTIONS OF THE JUDGE AND THE JURY

(A) Questions of law and fact
In an adversary system of procedure, the procedural action is controlled by the parties whilst the judges remain passive whereas in an inquisitorial system judges are free to inject themselves in prooftaking if they so choose 62 consonant with their responsibility for ascertaining the truth. Because of the powers of judicial intervention vested in judges in criminal proceedings, Professor W. Twining suggests that the civil procedure is much closer to the adversarial system than the criminal procedure. 63 The reality, however, is that the overall orientation [of English criminal justice] is towards an adversarial model. 64 The general rule is that in the limited civil proceedings with jury trials and in criminal proceedings, questions of law are determined by judges and questions of fact by the jury. 65 There are some special cases and exceptions which lend credence to Professor Twinings position. The special cases and exceptions are as follows:

(B) Special Cases

1. Construction. The proper construction of a word used in a statute is a question of law. In Brutus v Cozens 66 the appellant was charged with insulting behaviour as a result of stepping on the Wimbledon tennis court, throwing around leaflets and sitting down on the court contrary to section 5 of the Public Order Act 1935. The justices held that his behaviour had not been insulting and dismissed the information without calling on him to give evidence. On appeal to the House of Lords it was held that the meaning of an ordinary word of English language is not a question of law. The proper construction of a statute is a question of law. Again, in R v Feely 67 it was held that the word dishonestly used in section 1 (1) of the Theft Act 1968 was an ordinary word of the English language and hat a jury required no direction by the judge as to its meaning.

62 M.R. Damaska, Evidence Law Adrift (New Haven and London: Yale University Press, 1997), at 91. 63 See W. Twining, Rethinking Evidence: Exploratory Essays (Illinois: Northwestern University Press, 1994), at 182. 64 A. Ashworth, The Criminal Process: An Evaluative Study (Oxford: Oxford University Press, 1998), at 69. 65 In other civil cases tried without the jury, the judges determine questions of law and fact. 66 [1973] AC 854. 67 [1973] QB 530, [1973] 1 All ER 341.

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EVIDENCE 2. Defamation. In a criminal prosecution for libel the judge determines whether the document in question is capable of bearing the meaning alleged by the prosecution whilst the jury decides whether it does in fact amount to criminal libel. 68 The same procedures applies in civil cases. Perjury. Whether a statement on which perjury is assigned is material is one of law to be determined by the court of trial. 69

3.

(C) Exceptions
There are two main exceptions. The first is that foreign law, that is, the laws of other countries (Scotland, Eire since 1921 and others) are matters of fact to be determined by evidence adduced. 70 The second is that reasonableness is generally a question of fact for the jury but it must be decided by the judge in actions for malicious prosecution 71, false imprisonment 72 and covenants in restraints of trade. 73

(7) JUDICIAL CONTROL OF THE JURY

(A) Introduction
Although the jury are triers of fact, judges use four methods to control the jury, viz. withdrawal of an issue from the jury, stopping a case, summing-up and discretion.

(B) Withdrawal of an issue

The judge must be satisfied that there is sufficient evidence for the proponents contention for the jurys consideration before the issue can be referred to the jury. Otherwise, he must decide the issue in the opponents favour. In Metropolitan Railway Co. v Jackson 74 the plaintiff claimed damages for negligence because his thumb had been crushed by the slamming of the door of a railway carriage. There was evidence that the defendant had been negligent in allowing the railway to be overcrowded but there was no evidence that the overcrowding had caused the plaintiffs thumb to be where the door was slammed. The House of Lords held that the judge should have withdrawn the case from the jury. It must be noted, however, that in DPP v Stonehouse 75 the trial judge directed the jury that if they
68 69 70 71 72 73 74 75

See Foxs Libel Act 1792 (32 Geo 3, c.60). Perjury Act 1911, s.1 (6). See R v Triano (1987) 27 ACR 271. Administration of Justice Act 1920, s.15. Herniman v Smith [1938] AC 305, [1938] 1 All ER 1. Broughton v Jackson (1852) 18 QB 378. Mason v Provident Clothing and Supply Co. Ltd. [1913] AC 724. (1877) 3 App Cas 193. [1978] AC 55.

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EVIDENCE were satisfied that the accused had falsely faked his own death by drowning dishonestly intending that his wife would obtain money under his insurance policies, that would constitute the offence of obtaining property by deception. The House of Lords held that that amounted to a withdrawal of fact from the jury and a misdirection. Where a no-case submission is made by one of the parties in a civil case tried by the judge alone, he must decline to rule on the submissions unless the party making it elects not to call evidence. This is necessary for two reasons. First, the judge has to determine the facts as well as the law and cannot express an opinion until the evidence is complete. The second reason is that the parties may be put to an extra expense if the Court of Appeal were to decide against the judge. In civil cases tried by a jury the judge has a discretion. In criminal cases the party making the submission is never put to his election but where the ruling is in favour of the submission the trial judge directs the jury to acquit.

(C) Stopping a case

In R v Galbraith 76, it was held that on a submission of no case to answer at the end of the prosecution case, the trial judge should stop the case and direct an acquittal if there was no evidence that the alleged crime was committed by the defendant. It was added, however, that if there was some evidence of tenuous character because of inherent weakness or vagueness or because it was inconsistent with other evidence it was the judges duty to stop the trial but where the prosecution evidence was such that its strength or weakness depended on the view to be taken of a witnesss reliability or on a matter within the province of the jury, then the judge should allow the jury to determine the matter. The Royal Commission on Criminal Justice recommended that Galbraith be reversed so that a judge may stop any case, if he or she takes the view that the prosecution evidence is demonstrably unsafe or unsatisfactory or too weak to go to the jury. 77 This recommendation was effectuated by section 125 of the Criminal Justice Act 2003. 78

(D) Summing-up
Judges frequently exercise considerable influence over the jury by summing-up. The purpose of the summing-up is two-fold, namely, to direct the jury as to the law and comment on the plausibility and credibility of the witnesses and weight of evidence. This influence has
[1981] 2 All ER 1060, CA. Final Report No. 245 (1996), para 45. 78 See also section 107 of the Criminal Justice Act 2003 which allows a judge to stop a trial, direct the jury to acquit or order a retrial if the evidence is contaminated.
77 76

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EVIDENCE been curtailed by the House of Lords in DPP v Stonehouse where Lord Salmond said: Whilst there is no doubt that there is no evidence before the jury which could justify them in convicting the accused and that it would be perverse of them to do so, it is the judges duty to direct them to acquit. This rule, which has been long established, is to protect the accused against being wrongly convicted. But there is no converse rule although there may be some who think that there should be. If the judge is satisfied that on the evidence, the jury would not be justified in acquitting the accused and indeed that it would be perverse of them to do, he has no power to pre-empt the jurys verdict by directing them to convict. The jury alone has the right to decide that the accused is guilty. 79 In other words, judges can direct the jury to acquit but they must not direct them to convict.

(E) Judicial discretion

Judges have the common law discretion preserved by section 82 (3) of the Police and Criminal Evidence Act 1984 (PACE) and the statutory discretion under section 78 of PACE to exclude relevant evidence if admitting the evidence will be adverse to the fairness of the proceedings. These provisions have excited an avalanche of cases and are discussed in Chapter 15.

79

[1878] AC 55 at 79-80. See also R v Wang [2005] 1 WLR 661, HL.

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