LAW OF EVIDENCE 1 2015

LAW OF EVIDENCE 1
Professor John Hatchard
Course objectives
This course aims to provide you with:
i)
a knowledge of the basic principles relating to the law of evidence
as they apply in England and Wales, especially as regards criminal
matters
ii)
the ability to identify correctly the evidential issue(s) arising from a
factual situation
iii)
an opportunity to evaluate critically the basic concepts of the
subject
iv)
an understanding of current issues, challenges and the potential
direction for development of the law
v)
an awareness of the human rights issues relating to the law of
evidence, with particular regard to the right to a fair trial, as well
as the public policy issues inherent in the development of the rules
of evidence

Outline of the course

1. Proof and Truth
2. Overview of criminal procedure
3. Admissibility of evidence obtained by law enforcement agencies
4. Burden and Standard of Proof
5. Obtaining evidence from abroad (mutual legal assistance)
6. Admissibility of hearsay evidence
7. Admissibility of character evidence
8. Witnesses in criminal cases
Note: Only those topics covered in the lectures and/or tutorials are
examinable.
Lectures and Tutorials
LECTURES will take place weekly on Mondays at 14.15-16.05 and
Tuesdays at 10.00-10.50
During some lectures there will be small group work and revision quizzes.
You may be asked questions individually during lectures.
TUTORIALS WILL START IN WEEK 2 and will be held fortnightly
It is a requirement that you attend every tutorial on the correct
day and at the correct time and come fully prepared.
THE RESPONSIBLE LAWYER AND THE RESPONSIBLE LAW STUDENT
Course assessment
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i)
ii)

A 2000 word piece of course work worth 25% of the final mark
A 3 hour written examination consisting of a choice of 3 out of 7
questions. It will count towards 75% of the final mark.

Books
There is no one text book which covers the entire course. You may
wish to consult the following books (using the latest editions)
during the course.
The Modern Law of Evidence Keane and McKeown
Murphy on Evidence
The Law of Evidence I Dennis
Unlocking Evidence Landa and Ramjohn
You will also find some excellent material (both articles and case
commentaries) in the Criminal Law Review
Statute books:
There is a range of statute books for you to choose from. You will be allowed
to take your copy into the examination room with you, provided it is not
annotated.
Reference works:
Archbold Criminal Pleading Evidence and Practice (latest edition)
Judicial Studies Board Crown Court Bench Book available at:
http://www.judiciary.gov.uk/wpcontent/uploads/JCO/Documents/Training/benchbook_criminal_2010.pdf
and Supplement available at:
http://www.judiciary.gov.uk/publications/crown-court-bench-booksupplement/

A BRIEF OVERVIEW OF KEY CRIMINAL PROCEDURE

ISSUES
1. Decision to Prosecute
2. Attorney Generals Guidelines on Disclosure
3. Phases of the Criminal Trial: An overview

1. DECISION TO PROSECUTE
Crown Prosecution Service: Code for Crown Prosecutors
Crown Prosecutors have to ask themselves the following two
questions when they are making their charging decisions:
(1)
Is there enough [ADMISSIBLE] evidence against the
defendant? / Is there a realistic prospect of conviction?

LAW OF EVIDENCE 1 2015

There must be enough evidence to provide a 'realistic prospect of

conviction' against the defendant. A realistic prospect of conviction
is an objective test. It means that a jury or bench of magistrates,
properly directed according to the law, is more likely than not to
convict the defendant of the alleged charge. This is a separate test
from the one that the criminal courts must apply. A jury or
magistrates' court should only convict the defendant if they are sure
that he or she is guilty.
When deciding whether there is enough evidence to prosecute,
Crown Prosecutors must consider whether the evidence can be used
in court [i.e. is admissible] and is reliable. This means that they
must assess the quality of the evidence from all witnesses before
reaching a decision. A decision to drop a case does not mean that
the prosecutor has decided to believe one witness and not believe
another.
If there is not a realistic prospect of conviction, the case must not go
ahead, no matter how important or serious it may be.
If there is a realistic prospect of conviction, the Crown Prosecutor
will ask the next question:

(2)
Is it in the public interest for the Crown Prosecution
Service (CPS) to bring the case to court?
It has never been the rule in this country that every criminal offence
must automatically be prosecuted. For this reason, in each case, the
Crown Prosecutor must consider the public interest in going on with
a prosecution and balance factors for and against prosecution
carefully and fairly before coming to a decision.
A prosecution will usually take place unless the public interest
factors against prosecution clearly outweigh those in favour of
prosecution.
The public interest factors that can affect the decision to prosecute
will vary from case to case. Broadly speaking, the more serious the
alleged offence, the more likely it will be that a prosecution will be
needed in the public interest. On the other hand a prosecution is
less likely to be needed if, for example, a court would be likely to fix
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a minimal or token penalty or the loss or harm connected with the

offence was minor and the result of a single incident.
Note: Other prosecution agencies include
Revenue and Customs Prosecutions Office, which prosecutes for tax
offences and the illegal import and export of drugs
Serious Fraud Office
Are political pressures/national economic interests ever a justification to
commence or terminate a criminal investigation/prosecution?
R (Corner House Research & Campaign Against Arms Trade) v
Director of the Serious Fraud Office & Anor [2008] EWHC 714
(Admin); [2008] UKHL 60
See also Hatchard Combating Corruption: Legal Approaches to Supporting
Good Governance and Integrity (2014 especially chapter 6)

2. ATTORNEY GENERALS GUIDELINES ON DISCLOSURE

These Guidelines apply to the pre-trial process. They are issued by the
Attorney-General for investigators, prosecutors and defence practitioners
on the application of the disclosure regime contained in the Criminal
Procedure and Investigations Act 1996 (CPIA). A key aim is to avoid
surprises or ambushes at the trial itself.
Every accused person has a right to a fair trial, a right long
embodied in our law and guaranteed under Article 6 of the European
Convention on Human Rights (ECHR). A fair trial is the proper object
and expectation of all participants in the trial process. Fair disclosure
to an accused is an inseparable part of a fair trial... (para 2)
Disclosure refers to providing the defence with copies of, or access
to, any prosecution material which might reasonably be considered
capable of undermining the case for the prosecution against the
accused, or of assisting the case for the accused, and which has not
previously been disclosed (section 3 CPIA) (para 4).
Once primary prosecution disclosure has taken place, and the case is
committed or sent to the Crown Court, the accused must give a defence
statement to the prosecutor and the court.

A failure to disclose information, the trial judge may rule that there has
been an abuse of process as the accused cannot enjoy a fair trial and then
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the trial would stop there: Coghlan v Chief Constable of Greater

Manchester Police [2004] EWHC 2801 (Admin).

Criminal Justice Act 2003

Section 6A Contents of defence statement
(1) For the purposes of this Part a defence statement is a written
statement
(a) setting out the nature of the accuseds defence, including any
particular defences on which he intends to rely,
(b) indicating the matters of fact on which he takes issue with the
prosecution,
(c) setting out, in the case of each such matter, why he takes issue
with the prosecution, and
(d) indicating any point of law (including any point as to the
admissibility of evidence or an abuse of process) which he wishes to
take, and any authority on which he intends to rely for that purpose.
(2) A defence statement that discloses an alibi must give particulars of it,
including
(a) the name, address and date of birth of any witness the accused
believes is able to give evidence in support of the alibi, or as many
of those details as are known to the accused when the statement is
given;
(b) any information in the accuseds possession which might be of
material assistance in identifying or finding any such witness in
whose case any of the details mentioned in paragraph (a) are not
known to the accused when the statement is given.
(3) For the purposes of this section evidence in support of an alibi is
evidence tending to show that by reason of the presence of the accused
at a particular place or in a particular area at a particular time he was not,
or was unlikely to have been, at the place where the offence is alleged to
have been committed at the time of its alleged commission.
The Guidelines are available at:
http://www.cps.gov.uk/legal/a_to_c/attorney_generals_guidelines_on_disclo
sure/
Section 11(1) CPIA - Failure to disclose a defence prior to trial, the court
may comment and the court or jury may draw such inferences as appear
proper to deciding guilty: But D may not be convicted solely on the basis
of the inference.

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3. PHASES OF THE CRIMINAL TRIAL: AN OVERVIEW

Counsel to witness:
Please dont shake your head. All your answers must be oral. Now,
where were you on the 12th July?
Witness:
Oral

Phase 1: Prosecution presents its case:

Prosecutor makes opening speech to the jury
Prosecutor calls his/her witnesses and/or reads written statements as
evidence
Examination in chief:
The object of examination-in-chief is to obtain testimony in support
of the version of the facts in issue or relevant to the issue for which
the party calling the witness contends.
Cross examination:
The object of cross-examination is two-fold, first to elicit
information concerning the facts in issue or relevant to the issue
that is favourable to the party on whose behalf the crossexamination is conducted, and secondly, to cast doubt upon the
accuracy of the evidence-in-chief given against such party. (Cross
on Evidence)
Re-examination:
This must be confined to matters arising out of cross-examination and
new matters may only be introduced with leave of the trial judge.
The trial within a trial (voir dire)
Where the admissibility of evidence is called into question, prior to the
trial the defence counsel should warn the prosecution of this point. The
evidence is not then referred to by the prosecution but at the point where
the material would otherwise be introduced the trial judge (or
magistrates) will stop the hearing. In the absence of the jury, the trial
judge will hear argument from both the prosecution and defence as to
whether or not a particular piece of evidence is admissible at the trial.
Witnesses may be called by either party and cross-examined.
A common situation of this occurring is the trial is asked by the
defence to exclude a confession under either section 76 or 78 of the Police
and Criminal Evidence Act 1984.
If the trial judge rules that the evidence is not admissible, then the
jury will not hear any of the excluded evidence (or even know of its
existence). If the evidence is ruled admissible, the evidence is presented
in the normal way to the jury.
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Is there a case to answer?

At the end of the prosecution case, counsel for the defence may, in the
absence of the jury, submit to the trial judge that there is no case to
answer. If the trial judge is satisfied that the prosecution has adduced
sufficient cogent (and admissible) evidence to persuade a reasonable jury
(or bench of magistrates) of Ds guilt, the prosecution is said to have
satisfied the evidential burden. This means that the trial judge will allow
the trial to proceed. If the trial judge is not satisfied that the prosecution
has satisfied the evidential burden, the judge must withdraw the case
from the jury and direct an acquittal.
Galbraith [1981] 1 WLR 1039: the test requires only an assessment of the
weight of the evidence: assuming a reasonable jury accepted the
evidence and the inferences sought to be drawn from it, was it capable of
proving the case beyond reasonable doubt?
Affirmed in CPS v F [2011] EWCA Crim 1844
Note: In 2011, 13% of all acquittals in the Crown Court were directed by
the trial judge at the end of the prosecution case.

Phase 2: Defence presents its case:

Examination-in-Chief
Cross-examination
Re-examination
Does D have an evidential burden on any issue: e.g. self-defence? If so,
has D adduced sufficient evidence to satisfy the trial judge that it is a live
issue at the trial? If D has failed to adduce sufficient evidence, the trial
judge will not put the defence to the jury and the prosecution is not
required to rebut it.

Phase 3: Closing speeches by prosecutor and the

defence counsel
Phase 4: Summing up by trial judge

States the respective roles of the judge and jury: issues of law for
the judge, issues of fact for the jury
Goes through the prominent features of the evidence with the jury
but must make it clear it is their responsibility to decide all the
relevant facts of the case
Deals with the burden of proof issues
Directs the jury on matters of law: need for consistency: based on
the Judicial Studies Board Crown Court Bench Book which contains
specimen directions.
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Phase 5: The verdict

Has the prosecution persuaded the trier of fact of the guilt of the accused
to the requisite standard?
SENTENCE (and where appropriate) CONFISCATION PROCEEDINGS
APPEALS

Note: The Criminal Procedure Rules 2014 (in force 6 October 2014 and as
amended in 2015) contain a number of important provisions and we will
discuss these at the appropriate place in the course: see
http://www.justice.gov.uk/courts/procedure-rules/criminal

Reviewing the Evidence

1. By the prosecution:
Test: Is there a realistic prospect of conviction?
2. By the trial judge:
Test: Has the prosecution adduced sufficient [admissible] evidence to
persuade a reasonable jury of the guilt of the accused? (the evidential
burden/ burden of passing the judge)
3. By the tier of fact:
Test: Guilt beyond a reasonable doubt? (the legal burden)