Welcome to your comprehensive revision guide for UK Evidence Law. This guide is designed to provide law students with a structured overview of the key principles, cases, and statutes that form the foundation of this critical area of study. Evidence law governs the rules and procedures for proving facts in legal proceedings, ensuring a fair trial for all parties. It is a cornerstone of both the Solicitors Qualifying Examination (SQE) and academic law degrees.
💡 Key Takeaway
The law of evidence is not just a set of abstract rules; it is the mechanism that ensures the integrity of the justice system. Its primary function is to ensure that verdicts are based on reliable and relevant information. The core tension in evidence law is the balance between admitting all relevant evidence and excluding evidence that is unfairly prejudicial, misleading, or unreliable.
The Burden and Standard of Proof
The concepts of the burden of proof and the standard of proof are fundamental to all legal proceedings. They determine which party is responsible for proving a fact and the level of certainty required.
The Burden of Proof
In criminal law, the legal burden of proving the defendant's guilt rests firmly on the prosecution. This principle was famously articulated in Woolmington v DPP [1935] AC 462, where it was described as the "golden thread" running through English criminal law. The prosecution must prove all elements of the actus reus and mens rea.
In Woolmington v DPP, Viscount Sankey LC stated: "Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt..."
However, there are exceptions where the burden shifts to the defendant. These are known as a 'reverse onus'. These include express statutory exceptions (e.g., s.2(2) of the Homicide Act 1957 for diminished responsibility) and implied statutory exceptions, as seen in R v Edwards [1975] QB 27. The compatibility of reverse onus clauses with the European Convention on Human Rights (ECHR), particularly Article 6(2) (the presumption of innocence), has been a subject of considerable debate. The courts have held that the burden on the defendant must be proportionate to a legitimate aim, as established in R v Johnstone [2003] UKHL 28.
The Standard of Proof
The standard of proof dictates the degree to which the party with the burden must convince the tribunal of fact. In criminal cases, the prosecution must prove the defendant's guilt beyond a reasonable doubt. When the burden shifts to the defence, the standard is lower: on the balance of probabilities, the same standard used in civil proceedings.
Relevance and Admissibility
For evidence to be used in court, it must be both relevant and admissible. Relevance is the foundational requirement: the evidence must logically connect to a fact in issue. As Lord Simon stated in DPP v Kilbourne [1973] AC 729, "evidence is relevant if it is logically probative or disprobative of some matter which requires proof."
However, not all relevant evidence is admissible. Admissibility acts as a gatekeeper, excluding certain types of relevant evidence for policy reasons. For example, evidence might be excluded if its prejudicial effect outweighs its probative value. This balancing act is a key judicial function. The discretion to exclude evidence at common law was confirmed in R v Sang [1980] AC 402, where the House of Lords held that a judge has a discretion to exclude evidence if its prejudicial effect outweighs its probative value, but this discretion does not extend to excluding evidence on the basis that it was improperly or illegally obtained, unless it amounts to a confession.
💡 Key Takeaway
Remember that relevance is a matter of logic, while admissibility is a matter of law. Evidence can be highly relevant but legally inadmissible. The discretion to exclude evidence is a crucial safeguard to ensure a fair trial, a principle now enshrined in s.78 of PACE 1984.
📝 Exam Tip
When analysing a problem question, always start by asking: 1. Is the evidence relevant? 2. If so, is there any rule that makes it inadmissible? This two-step process is crucial for structuring your answer on admissibility issues.
The Rule Against Hearsay
Hearsay is one of the most complex topics in evidence law. The general rule, now codified in the Criminal Justice Act 2003 (CJA 2003), is that hearsay evidence is inadmissible in criminal proceedings (s.114(1)). Hearsay is defined as a statement made out of court, which is now being repeated in court to prove the truth of the matter stated.
The classic case defining hearsay is R v Kearley [1992] 2 AC 228, where police answered phone calls at a suspected drug dealer's house from people asking for drugs. The House of Lords held this was inadmissible hearsay as it was being used to prove the truth of an implied assertion (that the occupant was a drug dealer).
Exceptions to the Hearsay Rule
The CJA 2003 provides several key statutory exceptions where hearsay can be admitted:
- s.116: The witness is unavailable (e.g., dead, unfit, outside the UK, or in fear).
- s.117: Business and other documents.
- s.118: Preserved common law exceptions (e.g., res gestae).
- s.114(1)(d): The interests of justice require it. This is a safety-valve provision allowing for flexibility.
The case of R v Twist [2011] EWCA Crim 1143 provides crucial guidance on how to apply the hearsay definition. The Court of Appeal set out a clear, step-by-step approach to determine if a statement is hearsay. Another key case is R v Singh [2006] EWCA Crim 660, where mobile phone records showing calls made from a particular location were held not to be hearsay as they were not asserting that the defendant was at that location, but were circumstantial evidence from which that inference could be drawn.
📝 Exam Tip
When dealing with hearsay, always ask: What is the purpose of adducing the statement? If it is to prove the truth of the matter stated, it is hearsay. If it is for another purpose (e.g., to show the state of mind of the maker or recipient), it is original evidence and not hearsay. This distinction is vital for both problem questions and essays.
Character Evidence
Character evidence refers to a person's general reputation or disposition. The rules differ for defendants and non-defendants.
Defendant's Bad Character
The admissibility of a defendant's bad character is governed by ss.98-113 of the CJA 2003. The starting point is that evidence of a defendant's bad character is not admissible unless it falls under one of the seven gateways in s.101(1).
| Gateway (s.101(1)) | Description |
|---|---|
| (a) | All parties agree to the evidence being admitted. |
| (b) | The evidence is adduced by the defendant himself. |
| (c) | It is important explanatory evidence. |
| (d) | It is relevant to an important matter in issue between the defendant and the prosecution (the "propensity" gateway). |
| (e) | It has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant. |
| (f) | It is evidence to correct a false impression given by the defendant. |
| (g) | The defendant has made an attack on another person's character. |
The gateway in s.101(1)(d) is the most frequently used and controversial. It allows the prosecution to introduce evidence of a defendant's previous misconduct to show a propensity to commit offences of the kind charged, or a propensity for untruthfulness. The leading case on this gateway is R v Hanson [2005] EWCA Crim 824, which set out three key questions for the court to consider: 1) does the history of conviction(s) establish a propensity to commit offences of the kind charged? 2) does that propensity make it more likely that the defendant committed the current offence? 3) is it just to rely on the conviction(s) of the same description or category, and are the proceedings fair?
💡 Key Takeaway
The CJA 2003 significantly changed the landscape of character evidence. While the gateways provide clear routes for admissibility, the courts retain a crucial role in ensuring fairness, primarily through s.101(3). Always consider the balance between the probative value of the bad character evidence and its potential for unfair prejudice.
⚠️ Common Mistake
A common error is to assume that any previous conviction is admissible. The court must always apply the fairness test under s.101(3) and can exclude evidence if its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. See R v Campbell [2007] EWCA Crim 1472.
Confessions
A confession is any statement wholly or partly adverse to the person who made it. The admissibility of confessions is governed by the Police and Criminal Evidence Act 1984 (PACE 1984).
Under s.76(2) of PACE 1984, a confession must be excluded if it was obtained:
- (a) by oppression of the person who made it; or
- (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof.
Oppression is defined in s.76(8) as including "torture, inhuman or degrading treatment, and the use or threat of violence". The case of R v Fulling [1985] QB 426 clarified that oppression should be given its ordinary dictionary meaning.
The unreliability mechanism in s.76(2)(b) is broader. It requires a causal link between the "thing said or done" and the confession. Key cases include R v Harvey [1988] Crim LR 241 and R v Barry [1991] 95 Cr App R 384.
Furthermore, under s.78 of PACE 1984, the court has a general discretion to exclude any prosecution evidence if its admission would have an adverse effect on the fairness of the proceedings. This is often used to challenge confessions obtained through significant and substantial breaches of the PACE Codes of Practice. A key case on s.78 is R v Keenan [1989] 3 All ER 598, which established that a failure to follow the Codes of Practice could lead to the exclusion of evidence. The more significant and substantial the breach, the more likely the evidence will be excluded.
📝 Exam Tip
When faced with a confession in a problem question, always consider both s.76 and s.78 of PACE. First, analyse whether the confession is mandatorily excluded under s.76 (oppression or unreliability). Then, even if it is not, consider whether it could be discretionarily excluded under s.78 due to unfairness, often linked to breaches of the PACE Codes.
Expert Evidence
Expert opinion evidence is an exception to the general rule that opinions are inadmissible. An expert can give an opinion on a matter that is beyond the ordinary knowledge and experience of the court. The admissibility of expert evidence is governed by common law and Part 19 of the Criminal Procedure Rules.
The seminal case of R v Turner [1975] QB 834 established that the subject matter must be one where the jury needs the help of an expert. The expert must also be suitably qualified.
| Admissibility Test | Key Case |
|---|---|
| Is the subject matter beyond the jury's common knowledge? | R v Turner [1975] QB 834 |
| Is the expert witness properly qualified? | R v Silverlock [1894] 2 QB 766 |
| Is the evidence impartial and objective? | The Ikarian Reefer [1993] 2 Lloyd's Rep 68 |
| Is there a reliable body of knowledge or science? | R v Dlugosz [2013] EWCA Crim 2 |
The Law Commission has criticised the current "laissez-faire" approach to the admissibility of expert evidence in England and Wales, particularly in contrast to the more stringent reliability test set out in the US case of Daubert v Merrell Dow Pharmaceuticals 509 U.S. 579 (1993). For SQE purposes, you must be aware of the current common law tests and the duties of an expert as outlined in the Criminal Procedure Rules.
FAQs
What is the difference between the legal and evidential burden of proof?
The legal burden (or persuasive burden) is the duty to persuade the trier of fact to the required standard of proof. This burden does not shift. The evidential burden is the duty to adduce sufficient evidence to make an issue a "live one" at trial. This burden can shift between parties during the proceedings.
Can a defendant's silence be used against them?
Yes, under certain circumstances. The Criminal Justice and Public Order Act 1994 allows for "adverse inferences" to be drawn from a defendant's silence when questioned by police (s.34), at trial (s.35), or on failing to account for objects, substances or marks (s.36) or presence at a particular place (s.37). However, a conviction cannot be based solely on silence.
What is the res gestae doctrine?
Res gestae is a common law exception to the hearsay rule, preserved by s.118 of the CJA 2003. It applies to statements made in circumstances of such spontaneity or involvement in an event that the possibility of concoction or distortion can be disregarded. The leading case is R v Andrews [1987] AC 281, which set out the test for admissibility.
What is the significance of R v Vye [1993] 1 WLR 471?
R v Vye established the rule for judicial directions regarding a defendant's good character. A judge must give a direction about the defendant's credibility (the "first limb") and their propensity to commit the offence (the "second limb"). The CJA 2003 has since complicated this area, but Vye remains a crucial starting point for understanding good character evidence.
How does the SQE assess the law of evidence?
In SQE1, the law of evidence is tested as part of the Functioning Legal Knowledge (FLK) assessments, particularly within the context of Criminal Law and Practice. You will be expected to answer multiple-choice questions on topics like admissibility, hearsay, confessions, and character evidence. In SQE2, you will apply these principles in practical skills assessments like advocacy and case analysis.