5. Hearsay

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. This chapter focuses on the rule against hearsay, which is, historically, one of the great exclusionary rules underlying the law of evidence. In 1997 the Law Commission recommended that hearsay evidence be put on a clearer statutory footing in criminal trials. This eventually led to wholesale reform in the Criminal Justice Act (CJA) 2003, which preserves the rule but increases the number of exceptions and safeguards, providing a comprehensive regime for hearsay. The chapter provides an overview of the changes to hearsay introduced by the CJA 2003.

2. Burden and standard of proof: Presumptions

10.1093/he/9780198819905.003.0002 ◽

2018 ◽

Author(s):

Maureen Spencer ◽

John Spencer

Keyword(s):

Burden Of Proof ◽

Presumption Of Innocence ◽

Criminal Trials ◽

Standard Of Proof ◽

Statutory Provision ◽

Questions And Answers ◽

Flow Charts ◽

The Law ◽

The Difference ◽

Law Of Evidence

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. This chapter discusses the allocation of the burden of proof in civil and criminal trials, depending on who should bear the risk. In criminal trials the ‘presumption of innocence’ means that the burden is on the prosecution, unless reversed by express or implied statutory provision. The law of evidence safeguards what in some jurisdictions is a civil right backed by the constitution. It is important to understand the difference between the legal and evidential burden and the occasions where they are separately allocated. Tricky areas are where there is a divorce of the legal and evidential burden, primarily in situations where the prosecution cannot expect to put up evidence to anticipate every specific defence the accused may present.

2. Burden and standard of proof: presumptions

10.1093/he/9780198715795.003.0002 ◽

2016 ◽

Author(s):

Maureen Spencer ◽

John Spencer

Keyword(s):

Burden Of Proof ◽

Presumption Of Innocence ◽

Criminal Trials ◽

Standard Of Proof ◽

Statutory Provision ◽

Questions And Answers ◽

Flow Charts ◽

The Law ◽

The Difference ◽

Law Of Evidence

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. This chapter discusses the allocation of the burden of proof in civil and criminal trials, depending on who should bear the risk. In criminal trials the ‘presumption of innocence’ means that the burden is on the prosecution, unless reversed by express or implied statutory provision. The law of evidence safeguards what in some jurisdictions is a civil right backed by the constitution. It is important to understand the difference between the legal and evidential burden and the occasions where they are separately allocated. Tricky areas are where there is a divorce of the legal and evidential burden, primarily in situations where the prosecution cannot expect to put up evidence to anticipate every specific defence the accused may present.

Confessions and the Criminal Justice Act 2003

The Journal of Criminal Law ◽

10.1350/jcla.2013.77.3.842 ◽

2013 ◽

Vol 77 (3) ◽

pp. 231-254

Author(s):

Michael Stockdale ◽

Joanne Clough

Keyword(s):

Criminal Justice ◽

Third Parties ◽

Criminal Proceedings ◽

England And Wales ◽

The Law ◽

Hearsay Evidence ◽

Court Of Appeal ◽

The admissibility of hearsay evidence in criminal proceedings in England and Wales is now governed by provisions of the Criminal Justice Act 2003, a result of Law Commission reform proposals. The Law Commission's Report left several issues concerning the admissibility of confessions in the context of its proposed hearsay regime unclear, some of which have not yet been clarified by the post-2003 Act jurisprudence. In particular, whilst the authorities have established that confessions made by third parties may be admissible in exceptional circumstances, the courts have not yet engaged with s. 128(2) of the 2003 Act which limits the extent to which confessions made by defendants may be admissible under the 2003 Act's provisions. Moreover, whilst the Court of Appeal has recognised both that certain confessions may exist outside the 2003 Act's statutory framework and that the admissibility of such a confession for the prosecution when made by a defendant is governed by s. 76 of the Police and Criminal Evidence Act 1984, other issues concerning the admissibility of such confessions have not yet been resolved.

The Safety-Valve: Discretion to Admit Hearsay Evidence in Criminal Proceedings

The Journal of Criminal Law ◽

10.1350/jcla.2012.76.4.783 ◽

2012 ◽

Vol 76 (4) ◽

pp. 314-335

Author(s):

Michael Stockdale ◽

Emma Piasecki

Keyword(s):

Criminal Justice ◽

Safety Valve ◽

Criminal Courts ◽

Criminal Proceedings ◽

The Law ◽

Hearsay Evidence ◽

Section 114(1)(d) of the Criminal Justice Act 2003 gave the criminal courts discretion to admit hearsay evidence in the interests of justice. The Law Commission envisaged that the courts would only exercise this inclusionary discretion in exceptional circumstances. Whilst the admissibility threshold created by s. 114(1)(d) is not as high as the Law Commission had intended, the recent jurisprudence suggests that the courts will exercise the s. 114(1)(d) discretion much as the Law Commission had anticipated except that, contrary to the Law Commission's intentions, there is authority for the proposition that where a confession is admitted under s. 114(1)(d) it may be admissible against persons other than its maker and there is also authority for the proposition that the hearsay evidence of a witness who cannot be identified is not admissible under s. 114(1)(d).

11. Mixed topic questions

10.1093/he/9780198819905.003.0011 ◽

2018 ◽

Author(s):

Maureen Spencer ◽

John Spencer

Keyword(s):

Case Law ◽

Legal Issues ◽

Redundant Information ◽

Single Issue ◽

Questions And Answers ◽

Flow Charts ◽

The Law ◽

The Given

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and diagrams and flow charts. This chapter describes how examination questions frequently cover several issues. It is impossible to cover each area in the same depth as single-issue questions so it is important to take time listing matters that raise points of law, then specifying the appropriate statute or case law, and finally applying the law to the given facts. A well-crafted question will not contain redundant information, so be prepared to comment on all parts of it. These questions do not ask for an evaluation or criticism of the law as it is, but for identification of legal issues in the narrative given and application of the law to each. It may be appropriate to refer to academic commentary, particularly in new areas of law.

9. Examination and cross-examination

10.1093/he/9780198819905.003.0009 ◽

2018 ◽

Author(s):

Maureen Spencer ◽

John Spencer

Keyword(s):

Criminal Procedure ◽

Sexual Offence ◽

Criminal Trials ◽

Questions And Answers ◽

Flow Charts ◽

Special Rule

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. This chapter deals with the type of questions that can or cannot be asked in examination-in-chief or cross-examination in criminal trials. This area overlaps considerably with criminal procedure, and Evidence courses vary in the topics they cover. The chapter covers refreshing of memory, rules on previous consistent statements and exceptions, and hostile witnesses in respect of examinations-in-chief. In respect of cross-examination, it covers rules on previous inconsistent statements, finality to answers to collateral questions and exceptions, the special rule for cross-examination of complainants in sexual offence cases and non-defendant’s bad character.

8. Opinion evidence

10.1093/he/9780198819905.003.0008 ◽

2018 ◽

Author(s):

Maureen Spencer ◽

John Spencer

Keyword(s):

Expert Opinion ◽

Expert Witness ◽

Common Law ◽

Expert Evidence ◽

High Quality ◽

Criminal Trials ◽

Questions And Answers ◽

Flow Charts ◽

Scientific Expertise ◽

Civil Trials

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and diagrams and flow charts. This chapter explores an area of evidence law dominated by expert witness evidence and the extent to which flawed testimony leads to miscarriages of justice. Expert evidence is now commonplace in criminal and civil trials, and the courts and Parliament have developed procedures to ensure that it is of high quality. These are an eclectic mix of common law and statute and their development reflects the importance of scientific expertise. It is necessary to be familiar with the differences between expert and non-expert opinion evidence and on when and in what circumstances both types are admissible and questions that can be asked of the expert whilst giving evidence. The approach depends on whether the question relates to civil or criminal trials

2. The language of the law of evidence

Murphy on Evidence ◽

10.1093/he/9780198788737.003.0002 ◽

2017 ◽

Author(s):

Richard Glover

Keyword(s):

Circumstantial Evidence ◽

Material Objects ◽

Documentary Evidence ◽

The Law ◽

The Difference ◽

Law Of Evidence ◽

Hearsay Evidence

This chapter discusses the following: the basic terminology of the law of evidence and the often inconsistent use of these terms; the terminology of the qualities of evidence, including the difference between direct and circumstantial evidence; hearsay evidence; documentary evidence (both primary and secondary); real evidence, including material objects, demeanour, appearance, and views of the locus in quo; the terminology of the form of evidence (oral, documentary and real evidence); the terminology of facts to be proved; facts in issue; facts forming part of the res gestae; facts relevant to facts in issue; standards of comparison; and the terminology of admissibility and weight.

The UK’s corporate killing law: Un/fit for purpose?

Criminology & Criminal Justice ◽

10.1177/1748895817725559 ◽

2017 ◽

Vol 18 (4) ◽

pp. 488-507 ◽

Cited By ~ 6

Author(s):

Steve Tombs

Keyword(s):

Criminal Justice ◽

Overwhelming Majority ◽

Annual Total ◽

Fit For Purpose ◽

The Law ◽

Corporate Manslaughter ◽

The Uk ◽

The annual total of occupational deaths in the UK is measured in the tens of thousands, yet the overwhelming majority attract no criminal justice attention. More recently, a very small number of deaths have generated attempts to prosecute companies for manslaughter. In 1996, following a series of multiple fatality ‘disasters’, the Law Commission proposed for a new law on corporate manslaughter; in 2008, the Corporate Manslaughter and Corporate Homicide Act 2007 came into force. It is with the implementation and effects of this Act that this article is concerned. It begins by setting out the dimensions of the new law before analysing the key themes that have emerged from its use to date. In conclusion, I consider whether the law has proven to be unfit for purpose—which begs the question of what that purpose might have been.