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.

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.

3. Confessions and the defendant’s silence

This chapter focuses on confessions and on the defendant’s pre-trial silence. It explains how a defendant may be convicted on the evidence of a confession alone. It analyses the definition of a confession as specified in section 82(1) of the Police and Criminal Evidence Act 1984 (PACE), and how a confession proffered by the prosecution or by a co-defendant may be excluded by rule under PACE. The chapter also considers the preservation of the common law discretion to exclude confession evidence as well as the procedure for police interrogation of suspects under PACE. It concludes with an examination of how the jury at trial may draw an inference of guilt under sections 34, 36, and 37 of the Criminal Justice and Public Order Act 1994.

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 recent landmark decisions under Article 6(3)(d) of the European Convention on Human Rights (ECHR).

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 first explains the distinction between the law of evidence and evidence itself before turning to a discussion of fair trial by looking at Article 6 of the European Convention on Human Rights (ECHR), now part of English law as a result of the Human Rights Act 1998. The chapter then considers the main provisions related to evidence, including the presumption of innocence; privilege against self-incrimination; the right to examine witnesses; and admissibility of evidence obtained through covert surveillance, entrapment, or disclosure. It concludes by highlighting the importance of analysis of the relevance of the facts in a trial.

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. The differences between public interest immunity and legal professional privilege are outlined. The chapter contains a number of Figures and Tables to help students understand this complex area. The reason for the limited range of privileges in English Evidence law is explained.

8. Issues in the course of 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 considers the Turnbull direction on identification and Lucas direction on lies by the defendant and the procedures for identification in Code D of the Police and Criminal Evidence Act 1984. It continues with a review of some aspects of examination and cross examination, including the witness’s use of memory refreshing documents under the Criminal Justice Act 2003, the admissibility of inconsistent statements of the witness under the Criminal Procedure Act 1865, and the rule of finality on collateral questions addressed to a witness. The chapter also examines 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.

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.

2. Burden of proof and presumptions

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.

10. Public interest immunity, closed material procedures, and disclosure

This chapter, which deals with public interest immunity (PII) and disclosure in criminal and civil cases, first explains exclusion of evidence on the grounds of the PII doctrine in relation to the public interest in non-disclosure of documents. It then considers disclosure in criminal proceedings under the Criminal Procedure and Investigations Act 1996 (as amended by the Criminal Justice Act 2003) and the Criminal Procedure Rules 2014 as well as disclosure in civil proceedings under the Civil Procedure Rules. The chapter also examines areas of public interest that are covered by possible PII claims, including national security, defence and foreign policy, protection of children, the identity of police informers, and confidential records held by public bodies. It concludes with an outline of the Closed Material Procedures (CMPs).