The Barrie Guide to the Law of Evidence 2020 Barrie Goldstone Head of the School of Law London Metropolitan University 0 THE LAW OF EVIDENCE CONTENTS A GENERAL INTRODUCTION 1 INTRODUCTION TO EVIDENCE B TYPES OF EVIDENCE 2 TYPES OF EVIDENCE C THE THREE PILLARS OF EVIDENCE 3 RELEVANCE, ADMISSIBILITY AND WEIGHT D BURDENS OF PROOF 4 THE LEGAL BURDEN OF PROOF 5 THE EVIDENTIAL BURDEN OF PROOF 6 THE REVERSE BURDEN OF PROOF 7 REVERSING THE EVIDENTIAL BURDEN E THE STANDARDS OF PROOF 8 BEYOND ALL REASONABLE DOUBT 9 THE BALANCE OF PROBABILITIES F CONFESSION EVIDENCE 10 INTRODUCTION TO CONFESSIONS 11 THE DEFINITION OF A CONFESSION 12 CONFESSIONS OBTAINED BY OPPRESSION 13 UNRELIABLE CONFESSIONS 14 UNFAIR CONFESSIONS 15 THE COMMON LAW TEST G ACCESS TO LEGAL ADVICE 16 CODE C, PACE s.58 AND ARTICLE 6 17 FRUIT OF THE POISONED TREE 1 H CHARACTER EVIDENCE 18 EVIDENCE OF BAD CHARACTER: Introduction and History 19 EVIDENCE OF BAD CHARACTER: CJA 2003 Definitions 20 EVIDENCE OF BAD CHARACTER: CJA 2003 Gateways 21 THE EXCLUSIONARY DISCRETION 22 THE CHILD DEFENDANT I SILENCE 23 SILENCE AS A CONFESSION 24 THE RIGHT TO REMAIN SILENT: Introduction 25 THE RIGHT TO REMAIN SILENT WHEN INTERVIEWED 26 THE OPERATION OF SECTION 34 27 FOLLOWING LEGAL ADVICE TO REMAIN SILENT J THE RULE AGAINST HEARSAY 28 INTRODUCTION TO HEARSAY 29 HEARSAY: POLICY AND PRACTICE 30 WHAT IS HEARSAY EVIDENCE? 31 THE RULE AGAINST HEARSAY EVIDENCE 32 THE STATUTORY DEFINITION OF HEARSAY EVIDENCE 33 STATUTORY CATEGORIES OF ADMISSIBILITY 34 CASES WHERE THE WITNESS IS UNAVAILABLE 35 CASES INVOLVING BUSINESS AND OTHER DOCUMENTS 36 COMMON LAW CATEGORIES 37 RES GESTAE 38 MULTIPLE HEARSAY 39 CREDIBILITY 40 UNCONVINCING EVIDENCE 41 GENERAL DISCRETION TO EXCLUDE EVIDENCE 42 EXPERT EVIDENCE: PREPARATORY WORK 43 CONFESSIONS 44 REPRESENTATIONS OTHER THAN BY A PERSON 45 RELEVANCE OF EVIDENCE K IDENTIFICATION EVIDENCE PART ONE: Famous False Identifications 46 ADOLF BECK 47 MAHMOOD HUSSEIN MATTAN 1952 48 JEAN CHARLES DE MENEZES 2005 PART TWO: The Devlin Committee 49 THE DEVLIN COMMITTEE REPORT 1976 2 PART THREE: The Turnbull Direction 50 INTRODUCTION 51 THE TURNBULL CASE 52 THE CONTENT OF A TURNBULL DIRECTION 53 IDENTIFICATION THROUGH RECOGNITION 54 CASES THAT MUST BE WITHDRAWN FROM THE JURY 55 WHEN A TURNBULL DIRECTION MAY BE NEEDED 56 WHEN A TURNBULL DIRECTION MAY NOT BE NEEDED 57 AN INCOMPLETE TURNBULL DIRECTION DOES NOT NECESSARILY MEAN THAT AN APPEAL WILL SUCCEED 58 CRITICISM OF THE TURNBULL DIRECTION PART FOUR: PACE Code D 59 INTRODUCTION 60 VIDEO IDENTIFICATION 61 CODE D SUMMARY L IMPROPERLY OBTAINED EVIDENCE 62 GENERAL PRINCIPLES 63 RELEVANCE 64 RELIABILITY 65 FAIRNESS 66 DISCRETION 67 HORRIFIC EVIDENCE 68 ENTRAPMENT 69 BREACHES OF PACE CODES 70 COVERT RECORDING 71 INTERCEPTED COMMUNICATIONS 72 LIMITATIONS ON THE ACT TUTORIAL QUESTIONS 3 A GENERAL INTRODUCTION 1 INTRODUCTION TO EVIDENCE i. What is Evidence? 1.1 Oxford English Dictionary 1. The available body of facts or information indicating whether a belief or proposition is true or valid. 2. Information drawn from personal testimony, a document, or a material object, used to establish facts in a legal investigation or admissible as testimony in a law court. 1.2 Murphy on Evidence Evidence is any material which has the potential to change the state of a fact-finder’s belief with respect to any factual proposition which is to be decided and which is in dispute. ii. What is the Law of Evidence? 1.3 Murphy on Evidence The Law of Evidence is a collection of rules governing what facts may be proved in court, what materials may be placed before the court to prove those facts, and the form in which those materials should be placed before the court. 1.4 The Law of Evidence is not substantive law: it does not create causes of action, but rather regulates how the factual elements of substantive law (e.g. a breach of contract or a murder) may be established in a court of law. This is known as ‘adjective’ law, which also includes the rules of procedure and pleading etc. iii. What are the Sources of the Law of Evidence? 1.5 Apart from the rules and practices deriving from the common law and the Civil and Criminal Procedure rules, the Law of Evidence comes from a range of legislative sources. These might involve clear regulations which must be followed, and those which give a discretion to the judge (e.g. in deciding whether relevant evidence is unduly prejudicial the defendant). 1.6 The statutes include: Civil Evidence Act 1995 Coroners and Justice Act 2009 Criminal Evidence Act 1898 Criminal Justice Act 2003 Criminal Justice and Public Order Act 1994 Police and Criminal Evidence Act 1984 Youth Justice and Criminal Evidence Act 1999 iv. The Function of the Law of Evidence 1.7 Both the ancient rules of Natural Justice and the ECHR (as enshrined in the Human Rights Act 1998) lay down the foundations of the Law of Evidence, which is to ensure that any trial should be fair; that it should uphold the standards of a civilised society; and that it should achieve as accurate an outcome as possible. 4 1.8 EUROPEAN CONVENTION ON HUMAN RIGHTS ARTICLE 6 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law... 3. Everyone charged with a criminal offence has the following minimum rights... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. ARTICLE 3 No one shall be subjected to torture or to inhuman or degrading treatment or punishment. This can be relevant to the admissibility of confessions. ARTICLE 8 Everyone has the right to respect for his private and family life, his home and his correspondence. This can be relevant to the admissibility of evidence acquired by the unlawful violation of privacy. v. The Operation of the Law of Evidence 1.9 Although the need for a fair trial (and investigation) applies to both civil and criminal cases, most of the rules concern criminal cases, where there is obviously more at stake for the defendant. • His liberty and reputation are in jeopardy • The opposition (the state) is bound to be more powerful and has nothing to lose 1.10 Most of the rules of evidence are exclusionary. They operate to filter out evidence that one of the parties might otherwise wish to present to the court. There are two reasons for needing such a filter: PRACTICALITY There may be vast amounts of evidence which it would take an excessive time to present; which might not all be relevant; and which might simply confuse the issues. In a civil case, this may be managed by the judge simply limiting the time the parties have to present their case. FAIRNESS In a criminal case especially, there may be evidence which would be disproportionately prejudicial to the defendant, even if it does seem to have probative value. This might be to do with the nature of the evidence itself; or because of the way in which the evidence was obtained. 1.11 In M v. R (Child Abuse: Evidence) [1996], Butler-Sloss LJ in the Court of Appeal cited with approval from the American Federal Rules of Evidence. M v. R (Child Abuse: Evidence) [1996] “We would draw attention to rules 102 and 403 of the American Federal Rules of Evidence. Rule 102 requires the trial judge, while securing fairness: ‘… to eliminate unjustifiable expense and delay to the end that the truth may be ascertained and the proceedings justly determined.’ “Rule 403 provides: ‘Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’” 5 B TYPES OF EVIDENCE 2 TYPES OF EVIDENCE i. The Facts in Issue 2.1 The claimant/prosecution must produce evidence to prove that the elements of the claim/offence are present. In a criminal case, this will usually mean establishing both the actus reus and mens rea of the crime. In a contract case, for example, it might be relevant to prove that a contract was made and what its terms were. ii. Collateral Facts 2.2 There may be facts to be established which are relevant to the case but which are not directly related to the allegations. For example, whether a witness is credible or competent. iii. Direct Evidence 2.3 This is evidence based on the first-hand knowledge of a witness. e.g. The store-detective saw Barrie place the camera into his bag and leave the store without paying for it. iv. Circumstantial Evidence 2.4 This is evidence which makes an allegation more or less likely to be true, but is not the fact in issue. e.g. Barrie started running away when the store-detective called out to him. 2.5 Circumstantial evidence might be based on a generalisation about the accused which makes it more likely that he would commit the crime in question. For example, the fact that Barrie was a very keen photographer but could not afford to buy an expensive camera. It is a question of degree in each case as to whether such generalisations are really relevant or hold any weight, 2.6 Barry George v. R. [2007] EWCA Crim 2722 In this notorious case (which is discussed in detail later in the course) Barry George was wrongly convicted of murdering Jill Dando, a well-known television personality.