VI. The course of evidence

This chapter concerns the principal rules governing examination in-chief, cross-examination, and re-examination of witnesses. Such an account is not entirely satisfactory because it is concerned with regulations that are either matters of common knowledge or else can be thoroughly mastered only by experience. However, the rules with which it deals have been highly characteristic of the English law of evidence. The elucidation of facts by means of questions put by parties or their representatives to witnesses mainly summoned by them has been an essential feature of the English ‘adversarial’ or ‘accusatorial’ system of justice. The chapter argues that not only is an appreciation of this procedure desirable for its own sake, but it is necessary for a proper understanding of such matters as the law concerning the admissibility of the convictions, character, and credibility of parties and witnesses.

I. Introduction

This introductory chapter discusses the relevance of evidence in the courtroom. It first explores the development of the law of evidence beginning from the seventeenth and eighteenth centuries. The chapter then studies the extent to which the law of evidence applies to all of the different stages and matters considered by the courts and to other tribunals. The main purposes and categories of evidence are next considered and exemplified, together with the question of whether any broad general rules can usefully be elaborated. Finally, this chapter turns to its most fundamental principle — relevance, which is contrasted with the admissibility of evidence.

V. Witnesses

This chapter looks at some special considerations relating to the evidence of witnesses. It first sets out to sketch the way in which this branch of law has changed over time. The chapter then deals with the procedures for taking testimony in the standard case and, in particular, appropriate measures for dealing with witnesses who are fearful. Next, this chapter discusses factors peculiar to particular categories of witness, such as children, spouses, and offenders. In a number of cases, special rules have been devised to cater for these special categories. Sometimes special rules of competence and compulsion, rules requiring supporting evidence, and rules of practice dictating the form of direction are given to the jury when considering such evidence. Finally, the chapter deals with the nature of supporting evidence.

XIII. Hearsay in civil proceedings

This chapter discusses the hearsay rule in the context of civil proceedings. It begins with a consideration of Section 1 of the Civil Evidence Act 1995 (CEA). Doubts have been raised as to whether the Act is compatible with the ECHR, and on any basis, there are procedural differences between the methods of adducing different forms of hearsay under the provisions of the act. Consideration of the effect of the act in changing the law thus constitutes the first, and more important, section of this chapter. The chapter then turns to how the provisions of the act indicate that some of the existing rules relating to the admissibility of hearsay in civil proceedings remain in force.

IV. The functions of the judge and jury

This chapter discusses the basic functions of judge and jury. It begins with the general rule of separation of functions of judge and jury, before turning to some of the more direct methods of judicial control. The chapter also considers the extent to which the average jury understands the directions that the law requires the judge to give, and whether jurors are as imperceptive, ignorant, or prejudiced as some of the rules of evidence suppose. Secret monitoring of jury deliberations is one way of resolving these issues, but such monitoring would amount to contempt of court. Moreover, any discussion with a third party before verdict is liable to result in a conviction being quashed. Recourse must, at present, be had to simulations and generally less reliable methods of obtaining the information needed to provide a basis for understanding and improving the law of evidence.

XI. Opinion

This chapter discusses the law relating to the evidence of opinion. It first considers the rule on the evidence of opinion and explains its rationale, especially the nature of its relationship to the rules excluding hearsay. The chapter discusses two broad spheres of evidence of opinion: expert and non-expert. The first concerns matters calling for specialized skill or knowledge. In this sphere, the only questions are whether the subject of inquiry does raise issues calling for expertise, and whether the witness is a qualified expert. In the residuary non-expert sphere, evidence of opinion will be excluded if the subject is one with regard to which fact and inference can conveniently be kept separate. The chapter then illustrates the operation of the rule, together with the two areas of expert and non-expert opinion in which there are exceptions. Finally, this chapter deals with the reform of the rule.

XIV. Hearsay in criminal proceedings

This chapter considers hearsay in light of the Criminal Justice Act 2003. It first discusses the relevant provisions of the act before turning to the rules relating to confessions. Along with confessions, the chapter also takes a look at the evidential value of inferences from the accused's silence. In relation to both, the chapter considers the Codes of Practice relating to different aspects of police investigation, which often form a component in the exercise of the judge's discretion to exclude evidence. In addition, the chapter examines the reforms made to the law of hearsay, including the basic policy of the reform, the general exception, special exceptions for business documents and previous statements of witnesses, the impact of discretion, and provisions relating to the authenticity and weight of hearsay.

VIII. Bad character of the accused

This chapter takes up the discussion from the previous chapter by exploring the bad character of the accused. This subject matter is almost wholly governed by certain provisions in the Criminal Justice Act 2003. Thus, the chapter first considers the nature of the problem of the admission of evidence of the bad character of the accused; then attempts at reform, at common law, by recommendations of law reform bodies, and by legislation; an indication of the principal forms of continuing dissatisfaction; and finally the intentions and techniques designed to remedy them. Next, the chapter considers the structure of the bad character provisions from the 2003 legislation and the gateways it provides for admissibility. Finally, this chapter concludes with a brief appraisal of the 2003 act.

IX. Privilege

This chapter concerns privilege. A witness is ‘privileged’ when they may validly claim not to answer a question, or to supply information relevant to the determination of an issue in judicial proceedings. Because the effect is to deprive the tribunal of relevant evidence, powerful arguments are required for such rules. Modern law has reduced their number and scope, although this is arguably balanced by an increase in their status, which has been further enhanced by implementation of the European Convention on Human Rights (ECHR). This chapter discusses certain types of privilege: the privilege against self-incrimination, legal professional privilege, privilege for statements made without prejudice as part of an attempt to settle a dispute, and a privilege derived from the former for statements made to a conciliator.

XII. Hearsay in general

This chapter takes a look at the hearsay rule. Though it is one of the most complex and confusing of the exclusionary rules of evidence, the hearsay rule can be used as the background and foundation to understand the new statutory provisions for civil and criminal proceedings. The chapter first discusses the hearsay rule at the common law level, explaining why such an exclusionary rule was thought necessary. It also indicates the tenor of this rule's development and reform. Next, the chapter more closely examines the scope of the rule, implied assertions, res gestae, the rule against narrative, and the extent to which admissions constitute an exception to the rule.