11. Privilege

This chapter looks at the rules relating to legal professional privilege and, in outline, the doctrine of the privilege against self-incrimination. Under these provisions potentially relevant evidence may be excluded at trial. The role of legal professional privilege in protecting defendants in criminal trials is outlined and the absolutist stance of the courts discussed. The chapter outlines the various immunities which are embraced under the privilege against self-incrimination.

2. Burden of proof

This chapter focuses on the burden of proof and presumption of innocence in criminal and civil cases under Article 6 of the European Convention on Human Rights (ECHR). It considers the influence of the UK’s Human Rights Act 1998 on the allocation of the burden of proof and compares legal/persuasive burden of proof with the evidential burden. It contains a detailed examination of the case law under this Act and the criteria developed to assess where reverse burdens should apply. It draws on academic commentary in making this analysis. It also looks at situations where the legal and the evidential burden may be split. It concludes with an overview of the law on presumptions.

1. Introduction, principles, and key concepts

This chapter introduces the principles and key concepts underlying the law of evidence, with an emphasis on criminal evidence. It reviews Article 6 of the European Convention on Human Rights (ECHR), now part of English law as a result of the Human Rights Act 1998. It concludes by highlighting the importance of analysis of the relevance of the facts in a trial.

4. Improperly obtained evidence other than confessions

This chapter focuses on evidence that is relevant but improperly obtained and thus may be excluded by judicial discretion. It looks at the exclusionary discretion contained within section 78 of the UK’s Police and Criminal Evidence Act 1984 (PACE), and explains how common law and statutory exclusionary discretion may be exercised in relation to other areas of evidence, such as character evidence and hearsay evidence, other than confessions. The chapter also looks at the most common areas of exclusion, other than confession evidence, including breach or evasion of legislation such as PACE and the Codes of Practice. It also reviews when a stay of prosecution might be the appropriate procedure. Finally, it discusses the relevant principles of Article 6 of the European Convention on Human Rights (ECHR) that are enshrined in section 78 of PACE.

5. Character evidence

This chapter, which focuses on the admissibility and evidential worth of character evidence, explains the definition of bad character under the Criminal Justice Act 2003. It examines how bad character evidence of the defendant may be admitted through one of the ‘gateways’ under the Act. It reviews the evidential worth of the character evidence if admitted and explains the difference between propensity and credibility. The law on the admissibility of the bad character of non-defendant witnesses is explained. The chapter concludes with the admissibility of good character evidence, governed by the common law.

10. Public interest immunity

This chapter first explains exclusion of evidence on the grounds of the PII doctrine in relation to the public interest in non-disclosure of documents. The chapter examines areas of public interest that are covered by possible PII claims. These include national security, defence and foreign policy, protection of children, the identity of police informers, and confidential records held by public bodies.

9. Opinion evidence

This chapter, which focuses on opinion evidence in criminal and civil cases in the UK, explains the rule on the admissibility of opinion, including expert opinion, as well as notice and disclosure in criminal cases under the Criminal Procedure Rules 2014. The criteria for the admissibility of expert evidence, the responsibilities of expert witnesses, and the approach of the courts to new areas of expertise are examined in detail. It also considers the presentation of expert evidence, including the use of court-appointed experts, in civil cases under the Civil Procedure Rules, and, finally, examines the ultimate issue rule, which has been abolished by section 33(1) of the Civil Evidence Act 1972.

8. Identification, care warnings, questioning at trial

This chapter examines a number of procedural matters in criminal trials. It first explains suspect evidence and the erosion of the rules on corroboration under the Criminal Justice and Public Order Act 1994. It then concentrates on identification evidence concerned with the Turnbull directions and the provisions of Code D to PACE 1984. It continues with a review of some procedural aspects of examination and cross examination. The chapter concludes with an examination of the rules on cross examination of complainants in sexual cases on previous sexual history and the case law under section 41 Youth Justice and Criminal Evidence Act 1999.

7. Competence and compellability. Special Measures

This chapter focuses on the competence and compellability of witnesses in criminal and, in outline, in civil trials. It explains the main criminal law exceptions in relation to competence and universal compellability. It gives details on the complex and controversial position under section 80 of the Police and Criminal Evidence Act 1984. The chapter outlines the Special Measures Directions (SMD) available under the Youth Justice and Criminal Evidence Act 1999 for vulnerable non-defendant witnesses in criminal trials and the more limited measures for vulnerable defendants. It concludes with an outline of the Criminal Evidence (Witness Anonymity) Act 2008.

6. Hearsay evidence

This chapter, which focuses on hearsay evidence and its relationship to confessions, first considers the rule against hearsay and its application to out-of-court statements of witnesses in civil and criminal cases. It then looks at statements, both oral and written, and gestures, as well as the admissibility of hearsay in criminal proceedings under the Criminal Justice Act 2003 and, in outline, in civil proceedings under the Civil Evidence Act 1995. The chapter also explains the legal distinction between first-hand (what X told Y) and multiple hearsay (what X told Y who told Z), and concludes by discussing the landmark decisions under Article 6(3)(d) of the European Convention on Human Rights (ECHR).