LAW335

LAWS OF EVIDENCE

2023-24

MODULE HANDBOOK

CONTENTS:

1. General Introduction
2. Teaching, Learning and Assessment
3. Course Outline
4. Lecture/Seminar Schedule
5. Assessed Coursework
6. Assessed Coursework Topic(s)
7.Lecture Worksheets
8. Tutorial/Seminar Worksheets

MODULE CONVENOR:
Don Green, Barrister-at-law, Solicitor Advocate (Non-practising)

LECTURERS:
Don Green
Georgina Firth, Barrister-at-law

Law School
Lancaster University

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 1. GENERAL INTRODUCTION

“... there never was a more slapdash, disjointed and inconsequent body of rules than that which we call the
Law of Evidence ... it has been added to subtracted from and tinkered with for two centuries until it has
become less of a structure than a pile of builders’ debris.” (Harvey, 1958, p. 79)

Before we can determine whether the above statement accurately reflects the current state of the Law of
Evidence, it is necessary to attempt a definition of the subject. According to Elliott, evidence is:

“… anything which tends to persuade an inquirer of the existence or non-existence of some fact or
situation which he is inquiring about. It need not in fact persuade the inquirer; it is enough that it tends to
persuade him. The inquirer may disbelieve it or prefer other contrary evidence which he finds more
persuasive. But anything which, if accepted, would tend as a matter of logic to render it more probable
than before that the inquired-about fact or situation exists or does not exist is evidence.” (Elliott, 1987, p.
3)

Put more simply, evidence may be described as information which — subject to the rules of relevance and
admissibility — may be presented to a tribunal charged with the duty of trying disputed issues, in an effort to
prove or disprove an assertion as being a fact to the satisfaction of that tribunal. And the Law of Evidence
may be seen as a body of rules which govern (i) the means through which assertions or ‘facts’ may be
proved and (ii) the manner in which a party may substantiate or refute assertions or ‘facts’.

Our concern in the Law of Evidence course is to conduct a broad investigation of this body of rules
(concentrating on criminal trials); to understand the social context in which the rules operate; to examine the
principles on which the rules are founded; and to apply these to concrete situations.

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 2. TEACHING, LEARNING AND ASSESSMENT

Aims of the Course

1. The aims of the course are:

 to introduce students to the basic principles of the law of evidence

 to foster knowledge and understanding of the legal rules governing the admissibility, or otherwise,
of evidence in criminal cases
 to develop the ability to identify and correctly apply the law to hypothetical situations in an
effective manner
 to cultivate the ability and willingness to adopt a critical perspective with respect to evidential rules,
and to identify (and where appropriate fashion) constructive suggestions for reform
 to develop the oral, written and study skills necessary to further understanding and to
undertake independent research

2. These aims will be achieved by:

 lectures, supported with lecture outlines, that provide a framework for student discussion
 tutorials/seminars that provide a forum for students to discuss and develop their ideas
 course handouts that guide students’ reading and set out questions for discussion
 contributions from students to discussions in lectures and tutorials/seminars
 the study and research by students of set
topics  the completion by students of set
coursework

3. By the end of the course students should have a broad understanding of fundamental principles relating to
the law of evidence in criminal cases. They should also have the confidence and competence to use that
understanding to appraise substantive areas of evidence law and practice.

This is a 15-credit module, taught primarily in Term 2 (Lent).

Lectures and Tutorials/Seminars

4. The course will be taught by means of 2 lectures per week (each lasting one hour) and by one-
hour tutorial/seminar groups, meeting fortnightly.

5. The 2 weekly lectures will be given by Don Green (Module Convenor) and Georgina Firth. The purpose
of the lectures is to provide students with a framework through which they may organise their studies.
We consider attendance essential for the purpose of understanding sometimes very complex issues
and for your achievement of the aims of the course (see paras. 1, 2 and 3 above). Since some lectures
may invite contributions from students, you are also advised to attend having undertaken a little
preparatory reading (e.g. key cases, references indicated in the Handbook, in the applicable lecture
handout, relevant section(s) of their chosen textbook, journal articles, etc.)
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6. The Tutorial/ Seminar tutors are Don Green and Georgina Firth. The cycle of Tutorials/ Seminars will
begin in WEEK 2. You will be expected to attend tutorials/seminars having previously completed the
assigned preparatory tasks. You are provided with Tutorial/Seminar Sheets (see below) for this purpose.
These are designed to assist you in your preparations for Tutorials/Seminars, to support you in evaluating
your understanding of the topics covered, to encourage discussion and support revision.

Attendance and Progress Monitoring

7. Tutorial/Seminar attendance is compulsory.

Please do NOT change seminar groups without prior approval. If you are unable to attend your
assigned seminar group, please notify your seminar tutor in advance.

Contacting Staff

8. We ask you to appreciate that this module is not the only course we teach, and that each member of
staff has a number of other duties. We therefore ask students who wish to see us to take note of our
office hours (listed on our web pages) and to arrange to see us within those hours. If you email us
beforehand, we can arrange an appointment.

Study

9. As (for most of you) this will be your final year of study; you should already have grasped the
fundamental skills of legal research. You will be expected to draw on these skills and, during the course
of the year, to develop them further. You should normally devote some 186 hours of private study for this
module.

Reading Materials

10. Students are encouraged (though are not obliged) to obtain a copy of ONE the following statute
books: —

Blackstone’s Statutes on Evidence

Sweet & Maxwell’s Evidence Statutes
Butterworths Student Statutes: Evidence
Routledge Student Statutes Evidence
Palgrave, Statutes on Evidence

11. Students should also obtain the LATEST EDITION of ONE of the following textbooks, although Keane
and McKeown is extremely readable with the current 14th edition (2022) up to date:

I. H. Dennis, Law of Evidence, (Sweet & Maxwell)

A. Keane and McKeown, The Modern Law of Evidence, (OUP)

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 A. L.-T. Choo, Evidence, (OUP)

R. Munday, Evidence (OUP)

P. Murphy, Murphy on Evidence, (OUP)

R. Roberts and A. Zuckerman, Criminal Evidence, (OUP)

G. Durston, Evidence: Text and Materials, (OUP)

C. Tapper, Cross on Evidence, (LexisNexis, Butterworths)

12.Some other books students might (but are not obliged to) consult for additional or background
reading include:

W. L. Twining, Theories of Evidence: Bentham and Wigmore, (Stanford UP)

W. L. Twining, Rethinking Evidence: Exploratory Essays, (Blackwell)
M. R. Damaška, Evidence Law Adrift, (Yale UP)
A. Stein, Foundations of Evidence Law, (OUP)
A. Ashworth and M. Redmayne, The Criminal Process, (OUP)
L. Zender, Criminal Justice, (OUP)
S. Uglow, Criminal Justice, (Sweet & Maxwell)
A. Sanders and R. Young, Criminal Justice, (Butterworths)
A. Taylor, Principles of Evidence, (Cavendish)
M. Childs and L. Ellison (eds.) Feminist Perspectives on Evidence, (Cavendish)
J. McEwan, Evidence and the Adversarial Process: The Modern Law, (Hart)
A. L.-T. Choo, Evidence: Text and Materials, (Longman)
S. Uglow, Evidence: Text and Materials, (Sweet & Maxwell)
Heydon and Ockelton, Evidence: Cases and Materials, (Butterworths)
C. Allen, Sourcebook on Evidence, (Cavendish)
J. C. Smith, Criminal Evidence, (Sweet & Maxwell)
J. R. Spencer and R. Flin, Evidence of Children, (OUP)
A. Zuckerman, Principles of Criminal Evidence, (Clarendon)
J. Doak and C. McGourlay, Evidence in Context, (Routeledge)

13.We recommend you visit Lancaster University’s Virtual Learning Environment (MOODLE), which
may be accessed via the student portal at:

https://portal.lancs.ac.uk/

You are advised to consult this site (and specifically the portal for LAW335: Laws of Evidence)
regularly. Students can expect notices from the teaching staff and fellow students to appear periodically
on the LAW335: Laws of Evidence site

Assessment and Examination

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14. The course is assessed by
(i) one coursework essay (OF NO MORE THAT 2,500 WORDS) counting for 50% of the total mark; and
(ii) one two-hour on line examination at the end of the year, from which two questions from a choice of
seven must be answered, counting for 50% of the total mark.

15. The assessment procedures and policy for the course follows that outlined in the Law School’s Code of
Practice and in the school’s ‘Things You Need to Know’ booklet available via the module pages via
Moodle.

16. The essay must be submitted for assessment by uploading through the Moodle portal to the Law School
support staff by no later than 12 noon on April 19th, 2024. Students are, however, encouraged to submit
their essays well in advance of the deadline. A choice of essay topic is listed in section 5 of this handout.

17. Students are advised that the examination paper may contain PROBLEM as well as ESSAY questions.
The examination paper normally offers a total of SEVEN questions. Students will be required to answer
TWO of these questions. Students should not assume that only one topic will be included in any one
examination question.

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 3. MODULE TOPICS IN OUTLINE

In this section you are provided with a brief outline of the course (it may be necessary, should circumstances
dictate, to amend the following).

I. GENERAL PRINCIPLES

I(a) Introduction
General principles, Relevance, Admissibility and Weight

I(b) Burdens and Standards of Proof

The ‘legal’ and ‘evidential’ burdens; the burden of proof in criminal cases; Woolmington; statutory and
common law exceptions; the burden and standard of proof in civil cases

II. TESTIMONY IN ADVERSARIAL PROCEEDINGS

II(a) Competence and Compellability of witnesses - Adults

The accused as witness for the prosecution; the accused as witness for him/herself; the accused as witness
for the co-accused; the spouse’s/ civil partner’s evidence

II(b) Competence and Compellability – Children

Children as witnesses at common law; limiting stress upon child witnesses; statutory provisions; sworn
and unsworn evidence; special measures

II(c) Examination of Witnesses

Examination-in-chief; cross-examination; re-examination;

II(d) Expert Witness Evidence

III. THE ADMISSIBILITY OF EVIDENCE (I)

III (a) The Trial Process

Functions and roles of the judge and jury, Article 6 Right to a Fair Trial

III (b) Confession Evidence

Principles of admissibility; the Police and Criminal Evidence Act 1984 (PACE), s.76; ‘oppression’ and
‘unreliability’; statutory discretion; the ‘right to silence’; the Criminal Justice and Public Order Act 1994;
inferences from silence; silence and human rights law

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III(c) Illegally or Unfairly Obtained Evidence and Abuse of Process
The common law; general common law rules; exclusionary principles; PACE, s.78; PACE Codes of
Practice; leading authorities; agents provocateur; Abuse of Process

IV. THE ADMISSIBILITY OF EVIDENCE (II)

IV(a) Identification Evidence

Legal principles on identification evidence and care warnings regarding certain types of evidence

IV(b) Hearsay Evidence

Hearsay defined; statutory exceptions in criminal cases (apart from confessions above)

IV(c) Character Evidence (Good and Bad):

The Accused and other Witnesses Criminal Justice Act 2003

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 4. LECTURE-SEMINAR SCHEDULE

WEEK LECTURES SEMINARS

11 Introduction General Principles No seminar

Burdens/Standards of proof
Types of Evidence SEMINAR 1 Burdens/ Standards of Proof (Even
12 Witness Testimony – Examination, Week)
Cross Examination, Re-examination

SEMINAR 1 Burdens/ Standards of Proof (Odd

13 Witness Testimony – Competence Week)
and Compellability
Adults and Children SEMINAR 2 Competence and compellability
14 Witness Testimony – Special Even Week)
Measures, Expert and Opinion
Evidence
SEMINAR 2 Competence and compellability
15 The trial process, function and roles (Odd Week)
of the judge and jury, Article 6 Right
to a fair trial
SEMINAR 3 Witness testimony and Special
16 Admissibility of Confession Measures (Even Week)
Evidence and adverse inferences
SEMINAR 3 Witness testimony (lay and expert)
17 Admissibility of improperly obtainedand Special Measures (Odd Week)
evidence and abuse of process

SEMINAR 4 Confession and adverse inferences

18 Admissibility – Identification and (Even week)
evidence requiring caution or
warning
SEMINAR 4 Confession and adverse inferences
19 Admissibility – Hearsay Evidence (Odd week)
SEMINAR 5 Identification, Hearsay and Character
20 Admissibility - Character Evidence (Even week)
SEMINAR 5 Identification, Hearsay and Character
(Odd Week)

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 5. ASSESSED COURSEWORK

Please read the following notes carefully

1. WORD LENGTH: THE ESSAY MUST BE NO MORE THAN 2,500 WORDS. The word limit forms
an important part of this form of assessment. In assessing the mark to be awarded examiners will also
take into account the extent to which a word limit has been exceeded (or met) in judging how a student
has complied with the requirements of the assessment. Where the word limit has been exceeded (other
than minimally) examiners will take this into account when awarding a particular mark.

2. You are required to count and certify, at the end of the essay, the total number of words used (see the
relevant sections in the Law School’s ‘Things You Need to Know’ booklet).

NOTE: The ‘word count’ function in your word processor should be drawn upon to supply the total
number of words used.

3. Essays should be word-processed.

4.The format must be double line spacing and font size 12.

5.(1) COURSEWORK SUBMISSION PROCEDURE: Please consult the Law School’s ‘Things You
Need to Know’ booklet for full details of submission requirements.

5. (2) ELECTRONIC SUBMISSIONS: One copy of your essay should be submitted electronically through
the LAW335 VLE (Moodle) site, at: https://portal.lancs.ac.uk/, by no later than 12 noon April 19th 2024.
You are encouraged, however, to submit your essay well in advance of this deadline.
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6. LATE SUBMISSIONS: Coursework submitted late will be subject to the University’s penalties as outlined
in the Law School’s ‘Things You Need to Know’ pages, available online.

7. DEADLINE EXTENSIONS: Any student seeking an extended deadline for the submission of their
coursework must:

(a) Complete the Law School’s Extension Request Forms (available online and from outside the Law
School Office, C100);

(b) Provide evidence in support of their request, prior to the deadline for the submission of coursework;

and

(c) Submit their request to the Law School’s Coursework Officer – Extended deadline requests are
considered only by the School’s Coursework Officer.

8. NOTE: Students should refer to the Law School’s ‘Things You Need to Know’ pages and the School’s
Code of Practice, both available online, for guidance as to the School’s procedures and policy on the
assessment of essays/coursework.

Referencing and Plagiarism

9. You are reminded of the School’s and the University’s policy on plagiarism (see the Law School’s ‘Part
II Handbook’ and ‘Things You Need to Know’ pages, available online). Plagiarism (the use and
presentation of the work of others as one’s own) is viewed as a very serious matter and may lead to the
imposition of severe sanctions.

10. It is imperative that the assessed essay is made up of your own work. All material relied upon in your
essay must be fully referenced (author, date of publication, title, publisher, place of publication and the
relevant page(s)) and all material used in the preparation of the essay must be cited in a bibliography. If
you have consulted a number of articles, cite them in the appropriate place. This will assist in
demonstrating to the (internal and external) examiners the extent of your research. You should always
place quotations within quotation marks and make reference to the source in a footnote. It is important
that the examiners can determine the extent of your research. We encourage students not only to draw on
sound primary and secondary sources but also to present their own ideas and comments.

NOTE: You are cautioned to be selective with regard to material placed on the web. Similarly,
newspaper and other media accounts of legislation and of the law in action may not be authoritative.
Primary sources, first-rate secondary sources and scholarly articles are preferred sources. You will be
required to certify that all sources used in your essay are fully referenced and that the essay is your own
work.

12. Please be consistent in your method of referencing. If you are unsure as to the convention for
referencing, you might look to the materials you have read (i.e. law books and articles) for examples.

[12]

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 However, for details of the Law School’s referencing and annotation guidance, see its ‘Things You Need
to Know’ pages, available online.

Return of Coursework

13. We will return students essays, marked with comments, as soon as is humanly possible. We aim to
return them within 4 weeks of the submission date. Please bear in mind that on this particular course there
are a large number of coursework essays to mark and grade. Students will be notified when essays are
available. If there is some unexpected delay in returning marked coursework to students, a message will
be posted on the LAW335 VLE (Moodle) website.

14. Each essay will be returned with a mark sheet attached. A copy of the mark sheet is kept on file.
Essay marks are provisional until confirmed by the Board of Examiners.

15. Students are reminded of the following Law School Indicators of Degree Class Standards:

High First Class: (A = 18-24/ 70-80%)

A high first is expected to display originality and excel in most if not all the criteria identified for a First
class mark (below)

A first class answer has a thoughtful structure, a clear message displaying personal reflection informed by
wider reading of articles and/or other commentaries and a good grasp of detail, as evidenced by the choice
of relevant examples which are well integrated into the answer’s structure and with no major errors or
omissions

First class answers are ones that are exceptionally good for an undergraduate and which excel in a majority
of the following:

 comprehensive and accurate coverage of the issues in question;

 clarity of argument and expression;
 integration of a range of material, demonstrating a sound understanding of context;
 evidence of wider reading;
 insight into the theoretical issues

Excellence in one or more of these areas should be in addition to the qualities expected of an upper second
class answer. Although there is no expectation of originality of exposition or treatment, a first class answer
is generally expected to identify points rarely seen

Upper Second Class: (B = 15-17/ 60-69%)

An upper second class answer generally shows a sound understanding of both the basic principles and
relevant details of the law, supported by examples, which are demonstrably well understood, and which are
presented in a coherent and logical fashion. The answer should be well presented, display some analytical
ability and contain few major errors or omissions. Not necessarily excellent in any area
[13]

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Upper second class answers are clearly highly competent and typically possess the following qualities:

 generally accurate and well-informed;

 reasonably comprehensive coverage of the issues in question;
 well-organised and structured;
 evidence of general reading, demonstrating some understanding of context;
 demonstrating a sound grasp of basic principles;
 demonstrating a good understanding of the relevant details;
 succinctly and cogently presented;
 displaying evidence of insight and analysis

One essential aspect of an upper second class answer is that it must have competently dealt with the question
asked by the examiner.

Lower Second Class: (C = 12-14/ 50-59%)

A lower second class answer generally shows an understanding of the basic principles and a substantially
accurate exposition of the main issues

Lower second class answers display a level of competence, as indicated by the following qualities:

 generally accurate;
 providing an adequate answer to the question based largely on textbooks and lecture notes;
 clearly presented;
 mainly descriptive with little real development of arguments;
 may contain some major errors or omissions

Third Class: (D = 9-11/ 40 - 49%)

A third class answer generally shows a basic understanding of the main issues but is not coherently or
accurately presented

Third class answers demonstrate some knowledge or understanding of the general area but third-class
answers tend to be characterised by some of the following:

 descriptive only;
 do not answer the question directly;
 miss key points;
 contain important inaccuracies;
 cover material sparsely;
 assertions are not supported by authority or evidence

Fail: (F = 0-7/ 0-39%)

The submission does not meet the demand of the question or assignment sufficient to gain a mark at honours
standard.

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 6. ASSESSED COURSEWORK TOPICS

NOTE: THE ESSAY IS TO BE SUBMITTED ON OR BEFORE 12 noon April 19th 2024 AND MUST
BE NO MORE THAN 2,500 WORDS IN LENGTH (SEE “4. ASSESSED WORK” ABOVE)

Choose ONE of the following.

Q1 Outline what is meant by ‘opinion evidence’ and critically analyse what concerns there
may be over a juror’s assessment of the weight given to expert evidence.

Q2 Critically consider why an accused’s previous convictions should be admissible if she makes
an attack on another person’s character. Does this make it difficult for an accused with a
criminal record to get a fair trial?

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 7. LECTURE WORKSHEETS

I. GENERAL PRINCIPLES

I(a) Introduction
Relevance, Admissibility and Weight

I(b) Burdens and Standards of Proof

II. TESTIMONY IN ADVERSARIAL PROCEEDINGS

II (a) Examination of Witnesses

II(b) Competence and Compellability - Adults

II(c) Competence and Compellability - Children

II(d) Special Measures for vulnerable witnesses

II(e) Expert Witnesses and Opinion Evidence

III. THE ADMISSIBILITY OF EVIDENCE - I

III (a) The trial process, function of judge and jury, right to a fair trial
III(b) Confessions

III(c) Illegally or Unfairly Obtained Evidence

IV. THE ADMISSIBILITY OF EVIDENCE – II

IV(a) Identification, and evidence requiring the need for caution and warning

IV(b) Hearsay Evidence

IV(c) Evidence of Character

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I GENERAL PRINCIPLES

Introduction

(a) RELEVANCE, ADMISSIBILITY AND WEIGHT

To be admissible, evidence must be relevant and evidence is prima facie relevant if it assists in proving or
disproving a fact at, or in, issue. However, prima facie relevant evidence may in certain circumstances be
deemed inadmissible; and where the evidence is both relevant and admissible a further issue arises: how
much weight is to be attached to the evidence.

Relevance

The word ‘relevant’ means that any two facts to which it is applied are so related to each other that
according to the common course of events one either taken by itself or in connection with other facts
proves or renders probable the past, present, or future existence or non-existence of the other. (JF
Stephen, Digest of the Law of Evidence, 12 edn, revised, 1948, Article 1)

“Evidence is relevant if it is logically probative or disprobative of some matter which requires proof. I do
not pause to analyse what is involved in ‘logical probativeness’, except to note that the term does not of
itself express the element of experience which is so significant of its operation in law, and possibly
elsewhere. It is sufficient to say … that relevant (i.e. logically probative or disprobative) evidence is
evidence which makes the matter which requires proof more or less probable...” (Simon LJ, DPP v
Kilbourne [1973] AC 729)

Consider the case of Batt [1994] Crim. LR 592 and JC Smith’s comments on the case.

See also — Blastland [1986] AC 41; Pieterson and Holloway [1995] 2 Cr App R 11; Burge and Pegg
[1996] 1 Cr App R 163; Guney [1998] 2 Cr. App. R. 242; Buckley (1999) 163 JP 561

Admissibility

“Evidence is admissible if it may be lawfully adduced at a trial...” (Simon LJ, DPP v Kilbourne [1973]
AC 729)

While all relevant evidence is potentially admissible, parties are not free to place whatever material they
wish before the court in an effort to establish facts in issue. If the material is to be received in evidence it
must be both relevant (see above) and admissible. However, relevant evidence may be deemed inadmissible
either by law or by the exercise of judicial discretion.

“Evidence is not admissible if it is not relevant, if it is of insufficient weight, if its prejudicial effect is
greater than its probative value, if its admission would have an adverse effect on the fairness of the
proceedings or if it is excluded by any specific rule of evidence.” (Uglow, Evidence, 1997, p. 17)

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17
Weight

“‘Weight’ of evidence is the degree of probability (both intrinsically and inferentially) which is attached
to it by the tribunal of fact once it is established to be relevant and admissible in law (though its relevance
may … be dependent on its evaluation by the tribunal of fact.” (Simon LJ, DPP v Kilbourne [1973] AC
729)

In circumstance where the item of evidence is deemed relevant and admissible, it is open to the other party
to attack the weight of that item of evidence. The weight to be given to any item of evidence is a matter for
the tribunal of fact, which assesses the credibility of witnesses, the extent to which the item of evidence is
consistent with other evidence in the case and the reliance that can be placed upon it.

I(b) BURDENS AND STANDARDS OF PROOF

Suggested Additional Reading:

AAS Zuckerman, ‘The Third Exception to the Woolmington Rule’ (1976) 92 Law Quarterly Review, 402
JC Smith, ‘The Presumption of Innocence’ (1987) 38 Northern Ireland Legal Quarterly, 223
P Healy, ‘Proof and Policy: No Golden Threads’ [1987] Criminal Law Review, 355
AAS Zuckerman, ‘No Third Exception to the Woolmington Rule’ (1987) 103 Law Quarterly Review, 170
F Bennion, ‘Statutory Exceptions: A Third Knot in the Golden Thread?’ [1988] Criminal Law Review, 31
Stein, ‘After Hunt: The Burden of Proof, Risk of Non-Persuasion and Judicial Pragmatism’ (1991) 54
Modern Law Review, 570
P Mirfield, ‘The Legacy of Hunt’ [1998] Criminal Law Review, 19
DJ Birch, ‘Hunting the Snark: the Elusive Statutory Exception’ [1998] Criminal Law Review, 221
P Mirfield, ‘An Ungrateful Reply’ [1998] Criminal Law Review, 233
P Roberts, ‘Taking the Burden of Proof Seriously’ [1995] Criminal Law Review, 783
TH Jones, ‘Insanity, Automatism and the Burden of Proof on the Accused’ (1995) 111 Law Quarterly
Review, 475
A. Ashworth and M Blake, ‘The Presumption of Innocence in English Criminal Law’ [1996] Criminal
Law Review, 306
M. Redmayne, ‘Standards of Proof in Civil Litigation’ [1999] Modern Law Review, 167
A. Ashworth, ‘Article 6 and the Fairness of Trials’ [1999] Criminal Law Review, 261
P. Lewis, ‘The Human Rights Act 1998: Shifting the Burden’ [2000] Criminal Law Review, 667
P. Roberts ‘The Presumption of Innocence Brought Home? Kebilene Deconstructed’ (2002) 118 Law
Quarterly Review, 41
I. Dennis, ‘Reverse Onuses and the Presumption of Innocence: In Search of Principle’ [2005] Criminal
Law Review, 901
A. Ashworth, ‘Four Threats to the Presumption of Innocence’ (2006) 10 International Journal of
Evidence and Proof, 241
D. Hamer, ‘The Presumption of Innocence and Reverse Burdens: A Balancing Act’ (2007) 66(1)
Cambridge Law Journal, 142
R. Glover, ‘Regulatory Offences and Reverse Burdens: The “Licensing Approach”’, (2007) 71(3)
Journal of Criminal Law, 259
R. Glover, ‘Codifying the Law on Evidential Burdens’ (2008) 72(4) Journal of Criminal Law, 305
H. L. Ho, ‘Re-Imagining the Criminal Standard of Proof: Lessons from the “Ethics of Belief”’ (2009)
13(3) International Journal of Evidence and Proof, 198
R. J. Allen, ‘Modelling Criminal Law’, [2011] 29(4) Law and Philosophy, 469

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 F. Picinalli, ‘Two Meanings of “Reasonableness”: Dispelling the “Floating” Reasonable Doubt’, (2013)
76(5) Modern Law Review, 845
F. Picinalli, ‘The Threshold Lies in the Method: Instructing Jurors about Reasoning Beyond Reasonable
Doubt’, (2015) 19(3) International Journal of Evidence and Proof, 139
Georgi Gardiner, ‘In Defence of Reasonable Doubt’, (2017) 34(2) Journal of Applied Philosophy, 221
A. Keane and P. McKeown, ‘Time to Abandon “Beyond Reasonable Doubt” and “Sure”: The Case for a
New Direction on the Criminal Standard and How It Should Be Used’, [2019] Criminal Law Review,
505

Burdens of Proof

 The Legal (or Persuasive) Burden in Criminal Cases

‘Throughout the web of 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 subject to what I have already said as to the defence of
insanity and subject also to any statutory exception’. (Woolmington v DPP [1935] AC 426; 25 Cr App R
72)

See also:

Bratty v A-G for Northern Ireland [1963] AC 386; 46 Cr App R 1

Re B (Minors) (Sexual Abuse: Standard of Proof) [2008] UKHL 35

 EXCEPTIONS TO THE GENERAL RULE:

Insanity; Express and Implied Statutory Exceptions

→ (1) INSANITY

M’Naghten’s Case (1843) 10 Cl & Fin 200

Criminal Procedure (Insanity) Act 1964

→ (2) EXPRESS STATUTORY EXCEPTIONS

Numerous express statutory exceptions work to place the burden of proof on the defendant. For example:

Prevention of Corruption Act 1916, s.2

Prevention of Crime Act 1953, s.1
Sexual Offences Act 1956, s.30: knowingly living on the earnings of prostitution
Homicide Act 1957, s.2(2): diminished responsibility
Misuse of Drugs Act 1971,

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 Contempt of Court Act 1981, s.3
Criminal Justice Act 1988, s.139(4)
Road Traffic Act 1988, s.5(2)
Trade Marks Act 1994, s.92(5)
Offensive Weapons Act 1996, ss.4, 6
Terrorism Act 2006, s.1(6)

Express Statutory Exceptions — Compatibility with Article 6(2): See, e.g. Attorney General’s Reference
(No 4 of 2002) [2004] UKHL 43

→ (3) IMPLIED STATUTORY EXCEPTIONS: SUMMARY TRIALS; TRIALS ON INDICTMENT

(3A) SUMMARY TRIALS

Section 101 Magistrate’s Courts Act 1980: —

Where the defendant to an information or complaint relies for his defence on any exception, exemption,
proviso, excuse or qualification, whether or not it accompanies the description of the offence or matter of
complaint in the enactment creating the offence or on which the complaint is founded, the burden of
proving the exception, exemption, proviso, excuse or qualification shall be on him; and this
notwithstanding that the information or complaint contains an allegation negativing the exception,
exemption, proviso, excuse or qualification.

When determining whether s.101 is applicable, it is necessary to look at ‘the mischief at which the Act
was aimed and practical considerations affecting the burden of proof, and, in particular, the ease or
difficulty that the respective parties would encounter in discharging the burden’. (Nimmo v Alexander
Cowan & Sons [1968] AC 107)

See, for example:

Gatland v Metropolitan Police Commissioner [1968] 2 QB 279

Westminster City Council v Croyalgrange Ltd (1986) 83 Cr App R 155

(3B) TRIALS ON INDICTMENT

Edwards [1975] QB 27

Hunt [1987] 1 All ER 1; AC 352

 Exceptions to the General Rule and the Article 6(2) of the ECHR

European Convention on Human Rights, Article 6(2), received into English law by the Human Rights Act
1998:

20
 Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to
law.

See: —

X v UK (1972) 42 CD 135
Bates v UK (1996) EHRLR 312
Salabiaku v France (1988) 13 EHRR 379
R v DPP ex p Kebilene [1999] 3 WLR 972; [2000] 2 AC 326
A. Ashworth, ‘Article 6 and the Fairness of Trials’ [1999] Criminal Law Review 261
P. Lewis, “The Human Rights Act 1998: Shifting the Burden” [2000] Criminal Law Review 667
R v Lambert [2001] 3 WLR 206; [2002] 2 AC 545
A. Ashworth, ‘Criminal Proceedings after the Human Rights Act’ [2001] Criminal Law Review 855
Carass [2002] 1 WLR 1714
Johnstone [2003] 1 WLR 1736; 3 All ER 884
P. Roberts “The Presumption of Innocence Brought Home? Kebilene Deconstructed” (2002) 118 LQR 41
L v DPP [2003] QB 137
R v S [2003] 1 Cr App R 35
Attorney General’s Reference (No. 4 of 2002) [2003] 2 Cr App R 22, 3 WLR 1153; [2004] UKHL 43
Daniel [2003] 1 Cr App R 6
Attorney General’s Reference (No. 1 of 2004) [2004] EWCA Crim 1025; The Times, April 30 2004, 1WLR
2111
Sheldrake v DPP [2003] 2 WLR 1629; [2005] 1 AC 264
A. Ashworth, ‘Four Threats to the Presumption of Innocence’ (2006) 10 International Journal of Evidence
and Proof, 241
Keogh [2007] EWCA Crim 528
Malinina [2007] EWCA Crim 3228
R v Charles [2009] EWCA Crim 1570

 The Legal or Persuasive Burden in Civil Cases

Joseph Constantine Steamship Line Ltd v Imperial Smelting Corp Ltd [1942] AC 154

 The Evidential Burden

See, for example, Gill (1963) 47 Cr App R 166; Bratty v A-G for Northern Ireland [1963] AC 386;
Jayasena [1970] AC 618; Galbraith [1981] 1 WLR 1039; Sheldrake v DPP [2003] 2 WLR 1629; [2005] 1
AC 264; Malinina [2007] EWCA Crim 3228

Some examples of circumstances when the defendant will bear an evidential burden in criminal cases: a
burden of adducing evidence in support of his/her defence, sufficient to put the matter at issue.

Alibi: Johnson [1961] 3 All ER 969; Preece (1993) 96 Cr App R 264

21
 Duress: Gill (1963) 47 Cr App R 166; [1963] 1 WLR 841
Provocation: Mancini v DPP [1942] AC 1
‘Loss of Control’: s.54(5) of the Coroners and Justice Act 2009
Belief in consent in rape cases: Gardiner [1994] Crim L R 455
Self-defence: Lobell [1957] 1 QB 547
Necessity: Pommell [1995] 2 Cr App R 607
Non-insane automatism: Hill v Baxter [1958] 1 QB 277; 1 All ER 193; Bratty v A-G for Northern Ireland
[1963] AC 386

Standards of Proof

 CIVIL CASES:

Miller v Ministry of Pensions [1947] 2 All ER 372

Bater v Bater [1951] P 35

— A Civil court, when considering a charge of fraud, will naturally require for itself a higher degree of
probability than that which it would require when asking if negligence is established. It does not adopt
so high a degree as a criminal court, even when it is considering a charge of a criminal nature … (Lord
Denning)

Re Brambledale Ltd [1970] Ch 128

— Criminal standard in civil proceedings – exception to the general rule: contempt of court

R v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340

— Criminal standard in civil proceedings – exception to the general rule: sex offender orders

R (on the application of McCann) v Manchester Crown Court [2003] 1 AC 787

— Criminal standard in civil proceedings – exception to the general rule: anti-social behaviour order
applications (Crime and Disorder Act 1998)

Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563

— The balance of probability standard means that a court is satisfied an event occurred if the court
considers that, on the evidence, the occurrence of the event was more likely than not. When assessing
the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the
particular case, that the more serious the allegation, the less likely it is that the event occurred and
hence, the stronger should be the evidence before the court concludes that the allegation is established
on the balance of probability… Built into the preponderance of probability standard is a generous
degree of flexibility in respect of the seriousness of the allegation. …. this does not mean that where a
serious allegation is in issue the standard of proof required in higher. It means only that the inherent
probability or improbability of an event is itself a matter to be taken into account when weighing the
probabilities and deciding whether, on balance, the event occurred. The more improbable the event,
the stronger must be the evidence that it did occur before, on the balance of probability its occurrence
will be established.

Re Doherty (Original Respondent and Cross-Appellant) (Northern Ireland) [2008] UKHL 33

Re B (Minors) (Sexual Abuse: Standard of Proof) [2008] UKHL 35

22
  CRIMINAL CASES:

Woolmington v DPP [1935] AC 426; 25 Cr App R 72

Carr-Briant [1943] KB 607

Miller v Ministry of Pensions [1947] 2 All ER 372

Edwards (1983) 77 Cr App R 5

Serious Organised Crime Agency v Gale and Another [2010] EWCA Civ 759
— The Court of Appeal in this case considered, inter alia, whether the Agency (SOCA) was required to
establish its case – in an action for the recovery of the proceeds of crime – to the criminal standard.

SEE, for example, G Gardiner, ‘In Defence of Reasonable Doubt’, (2017) 34(2) Journal of Applied
Philosophy, 221

23
II TESTIMONY IN ADVERSARIAL PROCEEDINGS

II(a) EXAMINATION OF WITNESSES

Examination in Chief

Cross Examination

Re-examination

II (b) COMPETENCE AND COMPELLABILITY OF WITNESSES

Suggested Additional Reading:

Criminal Law Revision Committee (1972) 11th Report, Evidence (General) Cmnd 4991, paras.102-113;
143-157
The Pigot Committee Report (1989) Report of the Advisory Group on Video Evidence, London: HMSO
[see recommendations]
J. D. Heydon, ‘Obtaining Evidence versus Protecting the Accused: Two Conflicts’ [1971] Criminal Law
Review, 13
R. Cross, ‘The Evidence Report: Sense of Nonsense’ [1973] Criminal Law Review, 329
S. Edwards, ‘Compelling a Reluctant Spouse’ (1989) New L.J. 691
P. Creighton, ‘Spouse Competence and Compellability’ [1990] Criminal Law Review, 34
D. Birch, ‘The Criminal Justice Act: Children’s Evidence’, [1992] Criminal Law Review, 262
A. McColgan ‘Common Law and the Relevance of Sexual History Evidence’ (1996) 16 Oxford Journal
of Legal Studies, 275
Speaking Up for Justice: Report of the Interdepartmental Working Group on the Treatment of Vulnerable
or Intimidated Witnesses in the Criminal Justice System (London: Home Office, 1998)
L. Ellison, ‘The Protection of Vulnerable Witnesses in Court: an Anglo-Dutch Comparison’ (1999) 3
International Journal of Evidence & Proof, 29.
D. Birch, ‘A Better Deal for Vulnerable Witnesses?’ [2000] Criminal Law Review, 223
L. Hoyano, ‘Variations on a Theme by Pigot: Special Measures Directions for Child Witnesses’ [2000]
Criminal Law Review, 250
J. McEwan, ‘In Defence of Vulnerable Witnesses: The Youth Justice and Criminal Evidence Act 1999’
(2000) 4 International Journal of Evidence & Proof, 1.
J. Doak, ‘Confrontation in the Courtroom: Shielding Vulnerable Witnesses from the Adversarial
Showdown’ (2000) 5(3) Journal of Civil Liberties, 296
D. Birch and R Leng, Blackstone’s Guide to the Youth Justice and Criminal Evidence Act 1999, (London:
Blackstone, 2000)
A. A. Gillespie, ‘Compellability of a Child Victim’, (2000) 64(1) Journal of Criminal Law, 98-105
D. Birch and R Leng, Blackstone’s Guide to the Youth Justice and Criminal Evidence Act 1999, (London:
Blackstone, 2000)
N. Kibble, ‘The Sexual History Provisions: Charting a Course between Inflexible Legislative Rules and
Wholly Untrammelled Judicial Discretion’, [2000] Criminal Law Review, 274
L. Hoyano, ‘Striking a Balance between the Rights of Defendants and Vulnerable Witnesses: Will
Special Measures Directions Contravene Guarantees of a Fair Trial?’ [2001] Criminal Law Review,
948
A. Gillespie, ‘Compellability of the Child Victim’ (2001) 64 Journal of Criminal Law, 98
L. Ellison, The Adversarial Process and the Vulnerable Witness, (Oxford: OUP, 2001)
D. Birch, ‘Rethinking Sexual History Evidence: Proposals for Fairer Trials’, [2002] Criminal Law
Review, 531
J. Temkin, ‘Sexual History Evidence – Beware the Backlash’ [2003] Criminal Law Review, 217

24
 D. Birch, ‘Untangling Sexual History Evidence: A Rejoinder to Professor Temkin’ [2003] Criminal Law
Review, 370
D. Dwyer, ‘Can a Marriage be delayed in the Public Interest so as to maintain the Compellability of a
Prosecution Witness?’ (2003) 7(3) International Journal of Evidence and Proof, 1916
N. Kibble, ‘Judicial Perspectives on the Operation of s.41 and the Relevance and Admissibility of Prior
Sexual History Evidence: Four Scenarios’ [2005] Criminal Law Review, 190
N. Kibble, ‘Judicial Discretion and the Admissibility of Prior Sexual History Evidence under Section 41
of the Youth Justice and Criminal Evidence Act 1999: Sometimes Sticking to Your Guns Means
Shooting Yourself in the Foot’ [2005] Criminal Law Review, 263
M. Burton, R. Evans and A. Sanders, Are Special Measures for Vulnerable and Intimidated Witnesses
Working? Evidence from the Criminal Justice Agencies, Home Office Online Report 01/06 (Home
Office, 2006)
L. Hoyano, ‘The Child Witness Review: Much Ado About Too Little’ [2007] Criminal Law Review, 849
J. Plotnikoff and R. Woolfson, ‘Making Best Use of the Intermediary Special Measure at Trial’ [2008]
Criminal Law Review, 91
L. C. H. Hoyano, ‘Coroners and Justice Act 2009: Special Measures Directions Take Two: Entrenching
Unequal Access to Justice?’, [2010] Criminal Law Review, 345
D. Ormerod, A. Choo and R. Easter, ‘Coroners and Justice Act 2009: The “Witness Anonymity” and
“Investigation Anonymity” Provisions’, [2010] Criminal Law Review, 368
E. Henderson, ‘Root or Branch? Reforming the Cross-Examination of Children’, [2010] Cambridge Law
Journal, 460
A Keane, ‘Cross-examination of Vulnerable Witnesses – Towards a Blueprint for Professionalization’,
(2010) 16(2) International Journal of Evidence and Proof, 181
P. Cooper, ‘Child Witnesses in Family Proceedings: Should Intermediaries be Showing Us the Way?’,
(2011) 41, Family Law, 397
A. Brammer and P. Cooper, ‘Still Waiting for a Meeting of Minds: Child Witnesses in the Criminal and
Family Justice Systems’, (2011) Criminal Law Review, 925
A. Keane, ‘Towards a Principled Approach to the Cross-examination of Vulnerable Witnesses’, (2012)
Criminal Law Review, 407.
J. Brabyn, ‘A Criminal Defendant’s Spouse as Prosecution Witness’, [2011] Criminal Law Review, 613
S. K. Ragavan, ‘The Compellability Rule in England and Wales: Support for the Spouse of the
Defendant’, (2013) 77(4) Journal of Criminal Law, 310
J. McEwan, ‘Vulnerable Defendants and the Fairness of Trials’, [2013] Criminal Law Review, 100
A. Kirby, ‘Effectively Engaging Victims, Witnesses and Defendants in the Criminal Courts: A Question
of “Court Culture”?’ [2017] Criminal Law Review, 949

COMPETENCE AND COMPELLABILITY - ADULTS

Lapworth [1931] 1 KB 117

Mount (1934) 24 Cr App R 135
Grant [1948] 2 All ER 311
Sharrock [1948] 1 All ER 145
Waugh v R [1950] AC 203
Yeo [1951] 1 All ER 344 (note)
Verolla [1962] 3 WLR 132
Moss v Moss [1963] 2 QB 799
Bathurst [1968] 2 QB 99; 52 Cr App R 251; 2 WLR 1092
Pipe (1967) 51 Cr App R 17

25
 Sparrow [1973] 1 WLR 488
Deacon [1973] 1 WLR 696
Much [1973] 1 All ER 178
Hoskyn v Commissioner of Police of the Metropolis [1979] AC 474; [1978] 2 WLR 695
Pitt [1982] 3 All ER 63
Khan (1987) 84 Cr App R 44
Woolgar [1991] 2 Crim LR. 545
Cruttenden [1991] 2 WLR 921
Taylor [1993] Crim LR. 233
Palmer [1994] Crim LR. 122
Martinez-Tobon (1994) 1 WLR 388
Cowan [1995] 3 WLR 818; 4 All ER 939
Napper [1996] Crim LR 591
Friend [1997] 1 WLR 1433; 2 All ER 1011
Birchall [1999] Crim LR 311
R v MacPherson [2005] EWCA Crim 3605; [2006] 1 Cr App R 30
R v Dixon (Jordan) [2013] EWCA Crim 465

The Law in Outline

Competence

Compellability

The Accused

The accused as witness for the prosecution

The Youth Justice and Criminal Evidence Act 1999, s.53(4)

Criminal Justice and Public Order Act 1994, s.35

Cowan [1995] 3 WLR 818; 4 All ER 939

Napper [1996] Crim LR 591
Friend [1997] 1 WLR 1433; 2 All ER 1011
Birchall [1999] Crim LR 311
R v Dixon (Jordan) [2013] EWCA Crim 465

The accused as witness for the defence

Criminal Evidence Act 1898, s.1

Bathurst [1968] 2 QB 99

Rhodes [1899] 1 QB 77; Wickham (1971) 55 Cr App R 199; Much [1973] 1 All ER 178; Sparrow [1973]
1 WLR 488; Matinez-Tobon [1994] 1 WLR 388

26
Section 53(1) of the Youth Justice and Criminal Evidence Act 1999, which is applicable to all witnesses,
provides:

‘At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.’

The accused as witness for a co-accused

Macdonnell (1909) 2 Cr App R 322

The Spouse (or Civil Partner) of the Accused

PACE, s.80, (as amended by the Youth Justice and Criminal Evidence Act 1999; the Sexual Offences Act
2003; the Civil Partnership Act 2004; the Marriage (Same-Sex Couples) Act 2013) — SEE
http://www.legislation.gov.uk/ukpga/1984/60/section/80

PACE, s.80 — Applicable to the defendant’s spouse (or civil partner) but not to a cohabite (see, e.g. R v.
Pearce [2002] 1 Cr App R 39)

PACE, s.80A: a failure of the wife or husband of any person charged in the proceedings to give evidence
in the proceedings shall not be made the subject of any comment by the prosecution.

SEE:

X, Y and Z v UK (1997) 24 EHRR 143

R v Pearce [2002] 1 Cr App R 39

SEE ALSO: R v L [2008] EWCA Crim 973, [2008] 2 Cr App R 18 — When interviewing a wife about a
crime of which her husband is suspected, law enforcement officers are not required to inform the wife
that she is not a compellable prosecution witness against her husband. Admissibility under the ‘interests
of justice’ test, in s.114(1)(d) of the Criminal Justice Act 2003, is not necessarily precluded by the fact
that the maker of the statement is the defendant’s spouse or civil partner and would not in the
circumstances of the case be compellable as a witness for the prosecution by virtue of s.80 of the Police
and Criminal Evidence Act 1984.

On the ambit of PACE, s.80 and, particularly, of ‘specified offence’ in PACE, s.80(2A)(b) and s.80(3)
see, for example, R v BA [2012] EWCA Crim 1529. The Court of Appeal in this case also considered the
issue of, where a spouse is not compellable under s.80 of PACE, whether the spouse’s (or civil partner’s)
out-of-court statements may be admissible as an exception to the hearsay rule under s.114(1)(d) of the
Criminal Justice Act 2003.

Consider the relationship between PACE, s.80, s.114(1)(d) of the Criminal Justice Act 2003 ECHR and
Article 6(3)(d) of the ECHR. Section 114(1)(d) of the 2003 Act permits the trial judge, when satisfied it
is in the interests of justice to do so, to allow the prosecution to adduce out-of-court (hearsay) statements.

SEE ALSO R v Horsell [2012] EWCA Crm 227, where s.80 of PACE and s.114(1)(d) of the 2003Act
were considered with respect to the admissibility of a spouse’s out-of-court statement.

27
 NOTE: In the earlier case of R v Sultan Shah [2010] EWCA Crim 2326, the Court of Appeal drew
attention to the desirability of witnesses being made available to give evidence and for cross-examination.
The Court found that the trial judge had been misled into believing that steps had been taken to trace
three witnesses when no such steps had been taken. The Court also found that in consequence the
appellant had not received a fair trial.

The Former Spouse (or Civil Partner)

PACE, s.80(5)

The Youth Justice and Criminal Evidence Act 1999, s.53

See, P. Creighton, “Spouse Competence and Compellability” [1990] Criminal Law Review, 34

See also, Cruttenden [1991] 3 All ER 242

COMPETENCE AND COMPELLABILITY - CHILDREN

Children and Persons of Defective Intellect in Historical Context

Brasier (1779) 1 Leach 199

Hayes (1977) 2 All ER 288; [1977] 1WLR 234
Wallwork (1958) 42 Cr App R 153
Bellamy (1986) 82 Cr App R 222
Wright (1987) 90 Cr App R 91
McInnes (1990) Cr App R 99
Wyatt [1990] Crim LR 343
Z [1990] 3 WLR 113; 2 All ER 971; 2 QB 355
X, Y and Z (1990) 91 Cr App R 36
Pryce [1991] Crim LR 379
MacPherson [2005] EWCA Crim 3605; [2006] 1 Cr App R 30
M [2008] EWCA Crim 2751
Malicki [2009] EWCA Crim 365

The Youth Justice and Criminal Evidence Act 1999

COMPETENCE: YJ&CE Act 1999, s.53(1) (4); s.54(2)

YJ&CE Act 1999, s.53(1):

‘At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.’

28
YJ&CE Act 1999, s.53(3):
‘A person is not competent to give evidence in criminal proceedings if it appears to the court that he is
not a person who is able to —
(a) understand questions put to him as a witness, and
(b) give answers to them which can be understood.

SEE, for example:

Ali Sed [2004] EWCA Crim 1294

Powell [2006] 1 Cr App R 6
Barker [2010] EWCA 4

COMPELLABILITY: YJ&CE Act 1999

SEE, for example: Yusuf [2003] 2 Cr App R 32

Sworn Evidence: YJ&CE Act 1999, s.55

Unsworn Evidence: YJ&CE Act 1999, s.56

NOTE: By ss.55(2) and 56A of the YJ&CE Act 1999 a child who is under the age of 14 must give
evidence unsworn, and individuals over the age of 14 must also do so where found to lack the
appreciation of the solemnity of the occasion and the particular responsibility to tell the truth involved in
taking the oath.

SEE, for example:

E. Henderson, ‘Root or Branch? Reforming the Cross-Examination of Children’, [2010] Cambridge Law
Journal, 460

SPECIAL MEASURES FOR VULNERABLE WITNESSES

Special Measures provided for in the Youth Justice and Criminal Evidence Act 1999 – as amended by the
Coroners and Justice Act 2009

Special Measures Available to Eligible Witnesses: YJ&CE Act 1999 (as amended by the Coroners and
Justice Act 2009), s.18

Special Provisions Relating to Child Witnesses and Certain Witnesses over 17: YJ&CE Act 1999 (as
amended by the Coroners and Justice Act 2009), ss.21, 22

29
Range of Special Measures: YJ&CE Act 1999 (as amended by the Coroners and Justice Act 2009), ss.23,
24, 25, 26, 27, 28, 29, 30

Special Measures Direction: YJ&CE Act 1999 (as amended by the Coroners and Justice Act 2009), ss.19,
20

Eligibility for Special Measures: YJ&CE Act 1999 (as amended by the Coroners and Justice Act 2009),
ss.16, 17

Protection from Cross-Examination: YJ&CE Act 1999 (as amended by the Coroners and Justice Act
2009), ss.34 - 39

SEE, for example:

R v A (No 2) [2001] UKHL 25 — on cross-examination, the ‘rape shield’ and the scope of s. 41, YJCE
Act 1999
R v D (Video Testimony) [2002] 2 Cr App R 36
R (on the application of D) v Thames Youth Court [2002] EWHC 2046 (Admin)
R (on the application of D) v Camberwell Green [2003] UKHL 4; EWHC 227 (Admin); Cr App R 16
R (on the application of S) v Waltham Forest Youth Court [2004] EWHC 715 (Admin); 2 Cr App R 21
R v F [2005] 2 Cr App r 13
Re S [2007] EWCA Civ 589 — on whether judge has discretion to permit a witness wearing a veil to
testify
R v Harris [2009] EWCA Crim 434

NOTE: Section 37 of the Criminal Justice Act 2003 authorises courts to permit a video recording of
an interview with a witness (other than the defendant), or a part of such a recording, to be admitted as
evidence in chief of the witness.
See also Criminal Justice Act 2003, s.138 — providing that where a video recording (or part of one)
is admitted under s.137, the recording should be the final statement of any matters dealt with adequately
within the recording for the purpose of the witness's evidence-in-chief.
See also Criminal Justice Act 2003, s.139 — which permits a witness in criminal proceedings to
refresh his/her memory from a document whilst giving evidence.

NOTE: By s.33A of the YJ&CE Act 1999 (inserted by s.47 of the Police and Justice Act 2006 (in
force from 15/01/07), criminal courts — on application from a vulnerable adult defendant or a defendant
under the age of 18; where satisfied the vulnerable adult defendant suffers from a mental disorder or has a
significant impairment of intelligence and social function or, in the case of defendants under the age of 18
his/her ability to participate effectively in the proceedings is compromised by his/her level of intellectual
ability or social functioning — may direct that the defendant’s evidence be given by live video-link

30
SPECIAL MEASURES UNDER THE CORONERS AND JUSTICE ACT 2009

The Coroners and Justice Act 2009 amends the Youth Justice and Criminal Evidence Act 1999 with
respect to Special Measures for Vulnerable and Intimidated Witnesses.

See the Coroners and Justice Act 2009, sections 98 - 110

Criminal Evidence (Witness Anonymity) Act 2008

See R v Davis [2008] UKHL 36 in which the House of Lords considered the permissibility of allowing
witnesses to give evidence anonymously in light of the fair trial principles protected by Article 6 ECHR.

The Government responded to the Davis decision (on 18/06/08) with the introduction of emergency
legislation, the Criminal Evidence (Witness Anonymity) Act 2008. The 2008 Act, which came into force
on 21/07/08, abolishes the common law rules on witness anonymity and replaces them with a scheme
under which the prosecution, or the defence, may apply to the court for ‘witness anonymity orders’ – for
the conditions to be satisfied before a ‘witness anonymity order’ will be granted, see s. 4 of the 2008Act.

The Criminal Evidence (Witness Anonymity) Act 2008:

http://www.opsi.gov.uk/acts/acts2008/ukpga_20080015_en_1

R v Mayers, et al, [2008] EWCA Crim 1418 — on whether courts may admit anonymous witness
statements made otherwise than in oral evidence

Witness Anonymity — the Coroners and Justice Act 2009

See Coroners and Justice Act 2009, sections 86-87, for provisions on Anonymity of Witnesses. These
provisions replace those contained in the Criminal Evidence (Witness Anonymity) Act 2008. Note:
Section 96 of the Coroners and Justice Act 2009 repeals sections 1 to 9 of the Criminal Evidence
(Witness Anonymity) Act 2008.

Anonymity in Criminal Investigations – the Coroners and Justice Act 2009

See also Coroners and Justice Act 2009, sections 74 to 85, for provisions on Anonymity in Criminal
Investigation

31
Expert Witness Evidence

Suggested Reading:

Alldridge, Peter, ‘Forensic Science and Expert Evidence’ (1994) 21 Journal of Law and Society 136
Beecher-Monas, Erica, ‘Reality Bites: The Illusion of Science in Bite-Mark Evidence’ (2009) 30
Cardozo
Law Review 1369
Damaska, Mirjan, D, ‘Rational and Irrational Proof Revisited’ (1997) 5 Cardozo Journal of International
and Comparative Law 25.
Disney, R.H.L, ‘Fraudulent Forensic Scientists’ (2002) 45 Journal de Medecine Legale Droit Medical
225
Koehler, Jonathan, L ‘The Psychology of Numbers in the Courtroom: How to Make DNA-Match
Statistics Seem Impressive or Insufficient’ (2001) 74 Southern California LR 1275
Lempert, Richard ‘Some Caveats Concerning DNA as Criminal identification Evidence: With Thanks to
the Reverent Bayes’ (1991) 13 Cardozo LR 303.
Mackay, R.D and Colman, Andrew M, ‘Excluding Expert Evidence: A Tale of Ordinary Folk ad
Common Experience’ [1991] Crim LR 800
Redmayne, Mike ‘, Doubts and Burdens: DNA Evidence, Probability and the Courts’ [1995] Crim LR
464
Redmayne, Mike, ‘The Royal Commission’s Proposals on Expert Evidence: A Critique’ (1994) 2 Expert
Evidence 157.
Roberts, Paul, ‘Science in the Criminal Process’ (1994) 14 OLJS 469
Spencer, J.R, ‘Court Experts and Expert Witnesses: Have we a Lesson to Learn from the French?’ [1992]
CLP 213
Thornton, Peter, ‘The Admissibility of Expert Psychiatric and Psychological Evidence – Judicial training’
(1995) 35 Medicine, Science and the Law 143
Walls, H.J, ‘What is “Reasonable Doubt”? A Forensic Scientist Looks at the Law’ [1971] Crim LR 458
Wonder, Anita K.Y, ‘Science and Law, A Marriage of Opposites’ (1989) 29 Journal of the Forensic
Science Society 75

Law Commission Consultation Paper No 190, The Admissibility of Expert Evidence in Criminal
Proceedings in England and Wales (SO, 2009)

32
III THE ADMISSIBILITY OF EVIDENCE (1)

THE TRIAL PROCESS

Function and roles of judge and jury, Article 6 ECHR – right to a fair trial

III(a) CONFESSIONS

Suggested Additional Reading:

Royal Commission on Criminal Procedure, Report, (Cmnd 8092, London, 1981)

P. Mirfield, Confessions, (London, 1985)
D. J. Birch, ‘The Pace Hots up: Confessions and Confusions under the 1984 Act’ [1989] Criminal Law
Review, 95
R. Munday, ‘The Interpretation of “Oppression” in s 76 of the Police and Criminal Evidence Act’ (1990)
154 Justice of the Peace, 520
C. J. W. Allen, ‘Discretion and Security: Excluding Evidence under Section 78(1) of the Police and
Criminal Evidence Act 1984’ [1990] Cambridge Law Journal, 80
M. McConville, A. Sanders and R. Leng, The Case for the Prosecution, (Routledge, 1991)
R. Pattenden, ‘Should Confessions be Corroborated?’ (1991) 107 Law Quarterly Review, 317
A. Choo, ‘Corroboration of Disputed Confessions’ (1991) 107 Law Quarterly Review, 544
A. Choo, ‘Confessions and Corroboration: A Comparative Perspective’ [1991] Criminal Law Review,
867
G. Gudjonsson, The Psychology of Interrogations, Confessions and Testimony, (Chichester, 1992)
Royal Commission on Criminal Justice, Report, (Cm 2263, London, 1993)
M. McConville, Corroboration and Confession: The impact of a rule requiring that no conviction can be
sustained on the basis of confession evidence alone, (Royal Commission on Criminal Justice Research
Study No 13, 1993)
I. Dennis, ‘Miscarriages of Justice and the Law of Confessions: Evidentiary Issues and Solutions’ [1993]
Public Law, 291
S. Greer, ‘The Right to Silence, Defence Disclosure and Confession Evidence’ (1994) 21 Journal of Law
and Society, 102
R. Pattenden, ‘Inferences from Silence’ [1995] Criminal Law Review, 602
P. Mirfield, ‘Two Side-Effects of Sections 34 to 37 of the Criminal Justice and Public Order Act 1994’
[1995] Criminal Law Review, 612
R. Munday, ‘Inferences from Silence and European Human Rights Law’ [1996] Criminal Law Review,
37

33
I. Bryan, Interrogation and Confession, (Dartmouth, 1997)
P. Mirfield, Silence, Confessions and Improperly Obtained Evidence, (Oxford, 1997)
M. Hurst ‘Confessions as Proof of Innocence’ (1998) 57 Cambridge Law Journal 146
J. Hartshorne and A. L-T Choo ‘Hearsay Fiddles in the House of Lords’ (1999) 62 Modern Law Review,
290
D. J. Birch, ‘Suffering in Silence: A Cost-Benefit Analysis of s34 of the Criminal Justice and Public
Order Act 1994’ [1999] Criminal Law Review, 769
A. Ashworth, ‘Silence and Safety: The Impact of Human Rights Law’ [2000] Criminal Law Review, 879
D. Ormerod and D. J. Birch, “The Evolution of the Discretion Exclusion of Evidence” [2000] Criminal
Law Review, 767
J. H. Azzopardi, ‘Disclosure at the Police Station, the Right of Silence and DPP v Ara’ [2002] Criminal
Law Review, 295
G. Gudjonsson, ‘Unreliable Confessions and Miscarriages of Justice in Britain’, (2001) 4 International
Journal of Police Science and Management, 332
P. Thornton, ‘The Prejudiced Defendant: Unfairness Suffered by a Defendant in a Joint Trial’ [2003]
Criminal Law Review, 433
R. Munday, ‘Adverse Denial and Purposive Confession’ [2003] Criminal Law Review, 850
J. Hartshorne, ‘Defensive Use of a Co-Accused’s Confession and the Criminal Justice Act 2003’ (2004)
8(3) International Journal of Evidence and Proof, 165
R. Munday, ‘The Court, the Dictionary and the True Meaning of “Oppression”: A Neo-Socratic Dialogue
on English Legal Method’ [2005] Statute Law Review, 103
S. Greer, ‘Should Police Threats to Torture Suspects Always be Severely Punished? Reflections on the
Gäfgen Case’, (2011) 11(1) Human Rights Law Review, 67
Hock Lai Ho, ‘Confessions in the Criminal Process’, (2021) 84(1) Modern Law Review, 30

Confessions at Common Law

Ibrahim v R [1914] AC 599

The Judges’ Rules 1912 - 1986

Royal Commission on Criminal Procedure 1981

Confessions under the Police and Criminal Evidence Act 1984 (PACE)

Section 82(1) of PACE defines a confession as including:

… any statement wholly or partly adverse to the person who made it, whether made to a person in
authority or not and whether made in words or otherwise …

Challenges to the admissibility of confessions are determined in a voir dire (i.e. in a trial within a trial)
where the jury is excluded.

34
MANDATORY EXCLUSION

Two Grounds for the Mandatory Exclusion of Confession Evidence: PACE, s.76

(1) In any proceedings a confession made by an accused person may be given in evidence against him in
so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in
pursuance of this section.

(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an
accused person, it is represented to the court that the confession was or may have been 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,

the court shall not allow the confession to be given in evidence against him except in so far as the
prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may
be true) was not obtained as aforesaid

Oppression (PACE, s.76(2)(a))

‘Oppression’: See PACE, s.76(8); Article 3 of the European Convention on Human Rights

See, for example:

Fulling [1987] QB 426; 2 WLR 923; 2 All ER 65

Ismail [1990] Crim LR 109
Emmerson [1990] 92 Cr App R 284
Beales [1991] Crim LR 118
Paris (1993) 97 Cr App R 99
Heaton [1993] Crim LR 593
Gäfgen v Germany (2010) 52 EHRR 1: Whether police threats to use violence against a child abduction
suspect amounted to ill-treatment contrary to Article 3 ECHR; Whether the use of evidence secured as
a result of duress violated Article 6 ECHR

Unreliability (PACE, s.76(2)(b))

See, for example:

Harvey [1988] Crim LR 241

Everett [1988] Crim LR 826
Goldenberg [1989] Crim LR 687; 88 Cr App R 285
Doolan [1988] Crim LR 747
Delaney (1989) 88 Cr App R 338
Walker [1988] Crim LR 211

35
 McGovern (1990) 92 Cr App R 228; [1991] Crim LR 124
Crampton (1990) 92 Cr App R 369
Moss (1990) 91 Cr App R 371

McGovern [1990] 92 Cr App R 228

Crampton [1990] 92 Cr App R 369
Cox [1991] Crim LR 276
Chung (1991) 92 Cr App R 314
Silcot, Braithwaite and Raghip (1991) The Times, 9 December
Barry (1991) 95 Cr App R 384
Walker [1998] Crim LR 211
Wahah [2003] 1 Cr App R 232
Ahmed [2003] EWCA Crim 3627

 Confession Evidence Tendered by Co-Defendant: PACE, s.76A

Section 76A was inserted into PACE by s.128(1) of the Criminal Justice Act 2003

For the situation prior to the insertion of s.76A into PACE, See:

M. Hurst, ‘Confessions as Proof of Innocence’ (1998) 57 Cambridge Law Journal 146

J. Hartshorne and A. L-T Choo, ‘Hearsay Fiddles in the House of Lords’ (1999) 62 Modern Law Review,
290
Criminal Procedure Act 1865, s.4 (confession as previous inconsistent statement)

SEE ALSO:

R v Rowson [1986] 1 QB 174

Lui Mei-Lin v R [1989] 1 AC 288
R v Beckford [1991] Crim LR833
R v Myers [1998] AC 124

For accounts of the situation following the insertion of s.76A into PACE, See:

J. Hartshorne, ‘Defensive Use of a Co-Accused’s Confession and the Criminal Justice Act 2003’ (2004)
8(3) International Journal of Evidence and Proof 165
R v Finch [2007] EWCA Crim 36
R v Johnson [2007] EWCA Crim 1651

SEE ALSO:

Mclean [2007] EWCA Crim 219

Y [2008] EWCA Crim 10
Nazir [2009] EWCA Crim 213
Sliogeris [2015] EWCA Crim 22

 Hearsay Statements Contained in the Confession of Another Person

R v Y [2008] EWCA Crim 10

36
 — Section 114(1)(d) of the Criminal Justice Act 2003 is available in law for all types of hearsay.... In the
case of an out-of-court statement contained in, or associated with, a confession, section 118(1) paragraph
5 does not exclude the application of s.114(1)(d). The greatest care, however, must be taken, before
admitting an out-of-court statement under s.114(1)(d), to ensure that the s.114(2) factors are fully
considered and that overall it is genuinely in the interests of justice that the jury should be asked to rely on
the statement without seeing its maker and without any question being addressed to him about it. It is not
the effect of s.114(1)(d) that out-of-court statements, whether by co-accused or anyone else, are routinely
to be admitted.

DISCRETION TO EXCLUDE

 Judicial Discretion to Exclude: PACE, s.78 and s.82(3)

PACE, s.78 — judicial discretion to exclude not limited to confessions:

(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely
to be given if it appears to the court that, having regard to all the circumstances, including the
circumstances in which the evidence was obtained, the admission of the evidence would have such an
adverse effect on the fairness of the proceedings that the court ought not to admit it.

SEE, for example:

O’Connor (1987) 85 Cr App R 298

Samuel (1987) 87 Cr App R 232; [1988] QB 615
Mason [1988] 1 WLR 139
Absolam (1988) 88 Cr App R 332
Alladice (1988) 87 Cr App R 380
Keenan (1989) 90 Cr App R 1; 3 All ER 598
Canale (1989) 91 Cr App R 1
Walsh (1989) 91 Cr App R 161
Sat-Bhambra (1989) 88 Cr App R 55
Dunford (1990) 91 Cr App R 150
Quinn [1990] Crim L R 581
Dunn (1990) 91 Cr App R 237; [1990] Crim LR 527
Sparks [1991] Crim LR 128
Bryce (1992) Cr App R 320
Sanusi [1992] Crim LR 43
Brine [1992] Crim LR 122
Smith [1993] 99 Cr App R 233
Smurthwaite [1994] 1 All ER 898
Kelly (1998) The Times, 23 February
Kirk [2000] 1 WLR 567
Elleray [2003] 2 Cr App R 11
Gill [2004] 1WLR 469

PACE, s. 82(3) ― common law judicial discretion to exclude preserved:

37
 Nothing in this Part of this Act shall prejudice any power of a court to exclude evidence (whether by
preventing questions from being put or otherwise) at its discretion.

See, for example:

O’Leary (1988) 87 Cr App R 387

Sat-Bhambra (1988) 88 Cr App R 55
Khan [1996] 2 Cr. App. R. 440; Khan v. UK [2000] Crim. LR 684

NOTE: — While the discretion in s.78, PACE and in s.82(3) may be described as ‘exclusionary’, that
provided for by s.114(1)(d) of the Criminal Justice Act 2003 is essentially ‘inclusionary’ in nature.
See, for example:

R v Renda [2005] EWCA Crim 2826, [2006] 2 All ER 553;

R v Y [2008] EWCA Crim 10, [2008] WLR (D) 15, [2008] 1 WLR 1683

 The Admissibility of Facts Discovered in Consequence of Confessions Ruled Inadmissible

PACE, s.76(4), (5), (6)

— Preserving the common law position established in Warickshall (1783) 1 Leach 263

SEE, e.g. Gäfgen v Germany (2010) 52 EHRR 1

 Confessions by ‘Mentally Handicapped’ Persons (PACE, s.77)

SEE, for example:

Lamont [1989] Crim LR 813

Bailey [1995] 2 Cr App R 262
J [2003] EWCA Crim 3309

Silence and Inferences

 The Right to Silence at Common Law

Rice v Connolly [1966] 2 QB 414; 2 All ER 649

 Inferences from Silence under the Criminal Justice and Public Order Act 1994

38
 Section 34: pre-trial failure to mention pertinent facts
Section 35: failure to testify at trial
Section 36: pre-trial failure to account for objects, substances or marks
Section 37: pre-trial failure to account for presence

Section 38(3): a person should not be convicted solely on the basis of an inference drawn under sections 34 -
37.

Sections 34, 36 and 37 of the Criminal Justice and Public Order Act 1994 amended by s.58 of the Youth
Justice and Criminal Evidence Act 1999: no adverse inferences may be drawn unless the accused first had
an opportunity to consult a legal adviser.

SEE, for example:

Condron [1997] 1 WLR 827

Argent [1997] 2 Cr App R 27
Bowden [1999] 1 WLR 823; 4 All ER 43
McGarry [1999] 1 Cr App R 377
Nickolson [1999] Crim LR 61
Gill [2001] 1 Cr App R 160
Betts and Hall [2001] 2 Cr App R 16
Elliott [2002] EWCA Crim 931
Compton [2002] EWCA Crim 2835
Dervish [2002] 2 Cr App R 105
Webber [2004] 1 Cr App R 40
Hoare [2004] EWCA Crim 784
Johnson and Hind [2005] EWCA Crim 971
Wishart [2005] EWCA Crim 1337
Howell [2005] 1 Cr App R 1
Hoare and Pierce [2005] 1 WLR 1804
Beckes [2005] 1 WLR 2829
Loizou [2006] EWCA Crim 1719
Hall-Chung [2007] All ER (D) 429

 Inferences under the Criminal Procedure and Investigations Act 1996

 Silence, Inferences and the European Convention on Human Rights

Article 6(1): right to a fair trial; Article 6(2): presumption of innocence

SEE, for example:

Murray v UK (1996) 22 EHRR 29

Sanders v UK 23 (1996) EHRR 313
Bowden [1999] 1 WLR 823

39
 D. J. Birch, ‘Suffering in Silence: A Cost-Benefit Analysis of s.34 of the Criminal Justice and Public
Order Act 1994’ [1999] Criminal Law Review, 769
A. Ashworth, ‘Silence and Safety: The Impact of Human Rights Law’ [2000] Criminal Law Review, 879
J. H. Azzopardi, ‘Disclosure at the Police Station, the Right of Silence and DPP v Ara’ [2002] Criminal
Law Review, 295
I. Dennis, ‘Silence in the Police Station: The Marginalisation of Section 34’ [2002] Criminal Law
Review, 25
E. Cape, ‘Incompetent Police Station Advice and the Exclusion of Evidence’ [2002] Criminal Law
Review, 471
A. Choo, ‘Prepared Statements, Legal Advice and the Right to Silence: R v Knight’ [2002] International
Journal of Evidence and Proof, 62
Bristow and Jones [2002] EWCA Crim 1571
Webber [2004] 1 Cr App R 40

III (b) ILLEGALLY OR UNFAIRLY OBTAINED EVIDENCE AND ABUSE OF PROCESS

Suggested Additional Reading:

A. Ashworth, ‘Excluding Evidence as Protecting Rights’ [1977] Criminal Law Review, 723
D. K. Allen, ‘Entrapment and Exclusion of Evidence’ (1980) 43 Modern Law Review, 450
M. J. Allen, ‘Entrapment: Time for Reconsideration’ (1984) 13(4) Anglo-American Law Review 57
CJW Allen, ‘Discretion and Security: Excluding Evidence under Section 78(1) of the Police and Criminal
Evidence Act 1984’ [1990] Cambridge Law Journal, 80
M. A. Gelowitz, ‘Section 78 of the Police and Criminal Evidence Act 1984: Middle Ground or No Man’s
Land?’ (1990) 106 Law Quarterly Review, 327
A. Choo, Abuse of Process and Judicial Stays of Criminal Proceedings, (Oxford, 1993)
S. Sharpe, ‘Covert Police Operations and the Discretionary Exclusion of Evidence’ [1994] Criminal Law
Review, 793
G. Robertson, ‘Entrapment Evidence: Manna from Heaven, or Fruit of the Poisoned Tree?’ [1994]
Criminal Law Review, 805
D. Birch, ‘Excluding Evidence from Entrapment: What is a “Fair Cop”?’ (1994) 47 Current Legal
Problems, 73
A. Choo, ‘Halting Criminal Prosecutions: The Abuse of Process Doctrine Revisited’ [1995] Criminal
Law Review, 864
S. Sharpe, ‘Covert Policing: A Comparative View’ (1996) 25 Anglo-American Law Review, 163
K. Grevling, ‘Undercover Operations: Balancing the Public Interest?’ (1996) 112 Law Quarterly Review,
401
J. R. Spencer, ‘Bugging and Burglary by the Police’ [1997] Cambridge Law Journal, 6
S. Sharpe, ‘Judicial Discretion and Investigative Impropriety’ (1997) 1(2) International Journal of
Evidence and Proof, 149
A. Ashworth, ‘Should the Police be allowed to use Deceptive Practices?’ (1998) 114 Law Quarterly
Review 108
L. Davidson, ‘Quashing Convictions for Pre-Trial Abuse of Process: Breaching Public International Law
and Human Rights’, [1999] Cambridge Law Journal, 466
D. Ormerod and D. J. Birch, ‘The Evolution of the Discretion Exclusion of Evidence’ [2000] Criminal
Law Review, 767
P. Mirfield, ‘Regulation of Investigatory Powers Act 2000 (2): Evidential Aspects’ [2001] Criminal Law
Review, 91

40
 S. Bronitt and D. Roche, ‘Between Rhetoric and Reality: Sociolegal and Republican Perspectives on
Entrapment’ (2000) 4(2) International Journal of Evidence and Proof, 77
S. Nash, ‘Secretly Recorded Conversations and the European Convention on Human Rights: Khan v UK’,
(2000) 4 International Journal of Evidence and Proof, 268
A. Ashworth, ‘Redrawing the Boundaries of Entrapment’ [2002] Criminal Law Review, 161
D. Ormerod, ‘ECHR and the Exclusion of Evidence: Trial Remedies for Article 8 Breaches’ [2003]
Criminal Law Review, 61
D. Ormerod and McKay, ‘Telephone Intercepts and the Admissibility’ [2004] Criminal Law Review, 15
A. Choo and S Nash, ‘Improperly Obtained Evidence in the Commonwealth: Lessons for England and
Wales?’ (2007) 11(2) International Journal of Evidence and Proof, 75
S. Greer, ‘Should Police Threats to Torture Suspects Always be Severely Punished? Reflections on the
Gäfgen Case’, (2011) 11(1) Human Rights Law Review, 67
P. Duff, ‘Irregularly Obtained Real Evidence: The Scottish Solution?’ (2004) International Journal of
Evidence and Proof, 77
J. A. Roth, ‘The Anomaly of Entrapment’, (2014) 91 Washington University Law Review, 979
R. M. Re, ‘The Due Process Exclusionary Rule’, (2014) 127 Harvard Law Review, 1885
H. L. Ho, ‘The Criminal Trial, the Rule of Law and the Exclusion of Unlawfully Obtained Evidence’,
(2016) 10 Criminal Law and Philosophy, 109
L. Levanon, ‘The Law of Police Entrapment: Critical Evaluation and Policy Analysis’, (2016) 27
Criminal Law Forum, 35

 Judicial Discretion to Exclude at Common Law

Leatham (1861) 8 Cox CC 489

Jones v Owen (1870) 34 JP 759
Kuruma, Son of Kaniu v R [1955] AC 197
Payne [1963] 1 All ER 481
Jeffery v Black [1978] 1 All ER 555; QB 490
Sang [1979] 2 All ER 1222; [1980] AC 402

 Judicial Discretion to Exclude under PACE, s.78

Mason [1987] 3 All ER 481; [1988] 1 WLR 139; O’Connor (1987) 85 Cr App R 298; H [1987] Crim L R
47; DPP v Marshall [1988] 3 All ER 683; Christou [1992] 4 All ER 559; Bryce [1992] 4 All ER 567;
Bailey and Smith [1993] 3 All ER 513; Maclean and Kosten [1993] Crim. LR 687; Williams v DPP
[1993] 3 All ER 365; Smurthwaite [1994] 1 All ER 898; Khan [1994] 4 All ER 426; Khan [1997] AC
588; Teixera de Castro v Portugal (1999) 28 EHRR 101; Khan v UK [2000] Crim LR 684

SEE ALSO: Looseley [2001] 1 WLR 2060; R v Sargent [2001] 3 WLR 922; Attorney General’s
Reference (No. 3 of 2000) [2001] UKHL 53; R v E [2004] ECWA Crim 1243, [2004] 2 Cr App R 29;
Moon [2004] EWCA Crim 2872; Attorney General’s Reference (No. 5 of 2002) [2004] UKHL 40, [2005]
12 Cr App R 20; Jones [2007] EWCA Crim 1118

NOTE: — While the s.78, PACE discretion may be described as ‘exclusionary’, that provided for by
s.114(1)(d) of the Criminal Justice Act 2003 is essentially ‘inclusionary’ in nature.

See, for example: R v Renda [2005] EWCA Crim 2826, [2006] 2 All ER 553; R v Y [2008] EWCA Crim
10, [2008] WLR (D) 15, [2008] 1 WLR 1683

41
European Convention on Human Rights, Article 8 – received into English law by the Human Rights Act
1998:

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for the prevention of disorder or crime, for
the protection of health or morals, or for the protection of the rights and freedoms of others.

SEE, for example:

Malone v UK (1984) 7 EHRR 14

Gäfgen v Germany (2010) 52 EHRR 1

Regulation of Investigatory Powers Act 2000

SEE, for example:

Looseley [2001] 1 WLR 2060

R v Sargent [2001] 3 WLR 922
R v E [2004] ECWA Crim 1243, [2004] 2 Cr App R 29
Attorney General’s Reference (No. 5 of 2002) [2004] UKHL 40, [2005] 12 Cr App R 20
Jones [2007] EWCA Crim 1118
Winter [2007] EWCA Crim 3493

 Stay of Proceedings for Abuse of Process

NOTE — Austin [2013] EWCA Crim 1028, in which the Court of Appeal considered the judicial power
to stay proceedings for abuse of process in relation to: the prosecution’s disclosure obligations; the role of
‘special independent counsel’; and the ECHR Article 6 right to fair trial.

SEE, for example:

L. Davidson, ‘Quashing Convictions for Pre-Trial Abuse of Process: Breaching Public International Law
and Human Rights’, [1999] Cambridge Law Journal, 466
S. Hatt, ‘Abuse of Process: A Trio of Commonwealth Cases’, [2011] Journal of Commonwealth Criminal
Law, 333
P. Hungerford-Welch, ‘Abuse of Process: Does It Really Protect the Suspect’s Rights?’ [2017] Criminal
Law Review, 3
R v L(T) EWCA Crim 1821 — Where the Court of Appeal considered ‘private’ entrapment in the context
of attempts to expose alleged paedophiles

42
IV ADMISSABILITY OF EVIDENCE II

IV (a) IDENTIFICATION EVIDENCE AND CARE WARNINGS FOR CERTAIN EVIDENCE

Suggested Reading:

Articles:

Birch, D ‘Corroboration: Goodbye to all that?’ [1995] Crim LR 524

Dennis, I ‘Corroboration Requirements Reconsidered’ [1984] Crim LR 316

Tinsley, E ‘Even better than the Real Thing? The Case for Reform of Identification Procedures’ (2001)
E&P 99

Gross, S R ‘Loss of Innocence: Eyewitness Identification and Proof of Guilt’ (1987) 16 Journal of Legal
Studies 395

Roberts, P and Sanders, S ‘Introducing Pre-Trial Witness Interviews - A Flexible New Fixture in the
Crown prosecutor’s Toolkit’ [2008] Crim LR 831

Books:

Twining, Theories of Evidence: Bentham and Wigmore (Weidenfeld & Nicolson, 1985)

Other:

PACE, Code D

Auld Report, 2001, 81-94

Law Commission, Corroboration of Evidence in Criminal Trials, WP No 115, 1990,

The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William Macpherson of Cluny, Cm. 4262-1,
1999

IV(b) HEARSAY IN CRIMINAL CASES

NOTE: Additional reading lists, suggested materials and significant cases will be contained in lecture
slides, uploaded to Moodle later in the term

Suggested Reading:

Birch, ‘Hearsay: Same Old Story: Same Old Song’? [2004] Crim LR 556

43
 Durston, ‘Previous (In) consistent Statements after the Criminal Justice Act 2003’ [2005] Crim LR 206
Friedman, Richard D ‘”Face to Face”: Rediscovering the Right to Confront Prosecution Witnesses’
(2004) 8 E & P 1
Friedman, Richard D ‘Truth and Its Rivals in the Law of Hearsay and Confrontation’ (1998) 49 Hastings
LJ 545
Friedman, ‘Thoughts from across the water on Hearsay and Confrontation’ [1998] Crim LR 697
Herrmann, Frank R and Speer, Brownlow M ‘Facing the Accuser: Ancient and Medieval Precursers of
the Confrontation Clause’ (1994) 34 Virginia Journal of International Law 481
Jackson, John D, ‘Hearsay: the Sacred Cow that Won’t be Slaughtered?’ (1998) 2 E & P 166
Morgan, Edmund, ‘Hearsay Dangers and the Application of the Hearsay Concept’ (1948) 62 Harvard LR
117
Nokes, G D ‘Res Gestae as Hearsay’ (1954) 70 LQR 370
Ormerod, David, ‘Redundant Res Gestae?’ [1998] Crim LR 301
Spencer, J.R, ‘Hearsay Reform: A Bridge Not Far Enough?’ [1996] Crim LR 29
Spencer, J.R, ‘Orality and the Evidence of Absent Witnesses’ [1994] Crim LR 628, 631
Spencer, Keith, ‘The Common Enterprise Exception to the Hearsay Rule’ (2007) E&P 106, 132
Tapper, Colin, ‘The Law of Evidence and the Rule of Law’ (2009) 68 Cambridge Law Journal 67
Tapper, Colin. ‘Hearsay in Criminal Cases: An Overview of Law Commission Report No.245’ [1997]
Crim LR 771
Weinstein, Jack B, ‘Probative Force of Hearsay’ (1961) 46 Iowa LR 331
Worthen, ‘The Hearsay Provisions of the Criminal Justice Act 2003: So Far, Not so Good’ [2008] Crim
LR 431
Zuckerman, A A S, ‘The Futility of Hearsay’ [1996] Crim LR 4

Callen, Craig R, ‘Interdisciplinary and Comparative Perspectives on Hearsay and Confrontation’ in Paul
Roberts and Mike Redmayne (eds) Innovations in Evidence and Proof (Hart, 2007)
Choo, Andrew L-T, Hearsay and Confrontation in Criminal Trials, (OUP, 1996)
Spencer, J.R, Hearsay Evidence in Criminal Proceedings (Hart, 2008)
Keane, chap 10 OR Murphy, chap 8 OR Dennis, Chapter 17

Law Com No 245, Evidence in Criminal Proceedings: Hearsay and Related Topics (TSO, 197)
Lord Justice Auld, Review of the Criminal Courts of England and Wales: Report (2001)
Law Commission Consultation Paper No. 138 on Hearsay (1995)
Law Commission Report 245 (1997)

IV(c) EVIDENCE OF BAD CHARACTER (Accused and Witnesses)

Suggested Reading:

Goudkamp, James. ‘Bad Character and Reprehensible Behaviour’ (2008) 12 E&P 116
Hoffman, L H ‘Similar Facts After Boardman’ (1975) 91 LQR 193, 204
Lloyd-Bostock, Sally ‘The Effects on Juries of Hearing About the Defendant’s Previous Criminal
Record: A Simulation Study’ [2000] Crim LR 734
McEwan, Jenny ‘Previous Misconduct at the Crossroads: Which “Way Ahead”? [2002] Crim LR 180
Mirfield, Peter ‘Bad Character and the Law Commission’ (2002) 6 E&P 141

44
Munday, Roderick ‘What Constitutes “Other Reprehensible Behaviour” under the Bad Character
Provisions of the Criminal Justice Act 2003?’ [2005] Crim LR 24, 38-9
Redmayne, Mike ‘The Ethics of Character Evidence’ (2008) 61 Current Legal Problems 371
Roberts, ‘All the Usual Suspects a Critical Appraisal’ [1997] Crim LR 75

CLRC 11th Report, paras 114-136

The Law Commission Consultation Paper on Previous Misconduct, No.141 (1996)
Auld Report (2001) paras 112-120

45
 8. TUTORIAL/SEMINAR WORKSHEETS

TUTORIAL/SEMINAR 1

Issues for Seminar Discussion

1. Distinguish between the ‘legal or persuasive’ burden of proof and the ‘evidential’ burden.

2. “The evidential burden is not, strictly speaking, a burden of proof. Rather, it may be seen as something of
a duty to stimulate or rouse. And, regardless of whether it is viewed as a burden or duty, there is no
requirement for it to be discharged by reference to a specific standard of proof.”

Discuss.

3. Discuss the onus and standard of proof in the following cases:

(a) Bill attacked Cecil with a carving knife shouting, “I’m going to finish you off, once and for all.”
The knife severed an artery and Cecil bled to death. It is part of Bill’s story that he attacked Cecil
because Cecil had threatened to Kill Bill’s wife, Amy, and had, immediately before the attack,
called Bill an offensive name. There are no witnesses to the killing.

(b) Norman is charged with publishing lectures in contravention of the (fictitious) Protection of
University Lecture Notes Act. The Act stipulates that it is an offence for any person, not being
certified by a competent university authority, to publish any lecture delivered within a university
within the previous 5 years. Norman admits to publishing the lectures but asserts that (i) the
lectures were delivered 6 years earlier and that (ii) he was issued with a valid certificate - a
certificate he cannot now find.

4. Give a brief account of the propriety/ impropriety of placing the legal burden on the accused in TWO of
the following:

R v. Lambert [2001] 3WLR 206, [2002] UKHL 37, [2002] 2 AC 545;

L v DPP [2003] QB 137 DC

Sheldrake v. DPP [2004] 3 WLR 976;

46
 TUTORIAL/SEMINAR 2

Issues for Seminar Discussion

1.What are the rules in relation to competence and compellability? What are the exceptions to the rules?

2. Dennis and Annette are charged with indecently assaulting Joyce, a 15 year old school girl. They both
wish to call Annette’s husband, Fraser, to give evidence on their behalf. Fraser is now estranged from
Annette and does not wish to testify for either defendant.

Discuss, making clear whether (and, if so, on what basis) Fraser can be compelled by Dennis, Annette or
the prosecution to testify.

3. What are the ‘specified offences’ in relation to which certain individuals can be compelled to give
evidence for the prosecution or a co-defendant?

47
 TUTORIAL/SEMINAR 3:
Issues for Seminar Discussion –
Protecting vulnerable witnesses, and Expert Opinion evidence

1. “Section 34, Youth Justice and Criminal Evidence Act 1999 contravenes Article 6, ECHR as everyone
has the right to examine, or have examined, witnesses on their behalf. Section 34 stops this by preventing a
defendant in person from cross-examining alleged victims. This cannot be justified”.
To what extent do you agree with this statement?
2. ‘Part II of the Youth Justice and Criminal Evidence Act 1999 provides for a range of procedural and
evidential protections for ‘vulnerable witnesses. The courts may now be better equipped to ensure the guilty
are properly convicted but the defendant’s right to a fair trial is imperilled as a consequence’ Discuss.
3. Think about your experiences of watching lectures and participating in classes via Teams or Zoom. Do
you think it is as good as in-person teaching? Think about watching witnesses via live-links or pre-recorded
testimony. Do you think there is a danger that the jury will not consider the evidence as carefully? Would we
want to go back to hearing live evidence though? What can be done to resolve this conflict?
4. (A)‘Opinion evidence is unavoidable in the criminal trial and trying to make distinctions between ‘expert’
opinion and the opinions of other witnesses is artificial.’ Discuss
(B) Why might juries place undue weight on the evidence of an expert witness and what might be the
consequences in doing so?
Suggested Reading:
Keane & Mc Keown (2020) The Modern Law of Evidence (13e) OUP pp 155- 175, 216-217
Hoyano ‘Reforming the Adversarial Trial for Vulnerable Witnesses and Defendants [2015] Crim LR 107
McEwan, J ‘Vulnerable Defendants and the Fairness of Trials [2013] Crim LR 100
Pre-recorded evidence and juror decision-making: evidence review - gov.scot (www.gov.scot)
First victims spared harrowing court room under pre-recorded evidence pilot - GOV.UK (www.gov.uk)
The burden of proof | Law | The Guardian
Expert Witness Evidence

Suggested Reading:

Alldridge, Peter, ‘Forensic Science and Expert Evidence’ (1994) 21 Journal of Law and Society 136
Beecher-Monas, Erica, ‘Reality Bites: The Illusion of Science in Bite-Mark Evidence’ (2009) 30
Cardozo
Law Review 1369
Damaska, Mirjan, D, ‘Rational and Irrational Proof Revisited’ (1997) 5 Cardozo Journal of International
and Comparative Law 25.
Disney, R.H.L, ‘Fraudulent Forensic Scientists’ (2002) 45 Journal de Medecine Legale Droit Medical
225
Koehler, Jonathan, L ‘The Psychology of Numbers in the Courtroom: How to Make DNA-Match
Statistics Seem Impressive or Insufficient’ (2001) 74 Southern California LR 1275
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 Lempert, Richard ‘Some Caveats Concerning DNA as Criminal identification Evidence: With Thanks to
the Reverent Bayes’ (1991) 13 Cardozo LR 303.
Mackay, R.D and Colman, Andrew M, ‘Excluding Expert Evidence: A Tale of Ordinary Folk ad
Common Experience’ [1991] Crim LR 800
Redmayne, Mike ‘, Doubts and Burdens: DNA Evidence, Probability and the Courts’ [1995] Crim LR
464
Redmayne, Mike, ‘The Royal Commission’s Proposals on Expert Evidence: A Critique’ (1994) 2 Expert
Evidence 157.
Roberts, Paul, ‘Science in the Criminal Process’ (1994) 14 OLJS 469
Spencer, J.R, ‘Court Experts and Expert Witnesses: Have we a Lesson to Learn from the French?’ [1992]
CLP 213
Thornton, Peter, ‘The Admissibility of Expert Psychiatric and Psychological Evidence – Judicial training’
(1995) 35 Medicine, Science and the Law 143
Walls, H.J, ‘What is “Reasonable Doubt”? A Forensic Scientist Looks at the Law’ [1971] Crim LR 458
Wonder, Anita K.Y, ‘Science and Law, A Marriage of Opposites’ (1989) 29 Journal of the Forensic
Science Society 75

Law Commission Consultation Paper No 190, The Admissibility of Expert Evidence in Criminal
Proceedings in England and Wales (SO, 2009)

Further reading can be found in the Course Handbook and at the end of the Textbook chapters.

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 TUTORIAL/SEMINAR 4:
Issues for Seminar Discussion –
Confession Evidence and Adverse Inferences

1. Astrid was charged with theft. At her trial she gave no evidence. In his summing up on this matter, the
judge said:
‘The defendant gave no evidence. That was her right. Parliament has made clear, however, that where a
defendant fails to give evidence, a jury must take that into account in deciding whether the prosecution
has proved its case’.
Astrid was convicted. She seeks your advice on whether, in light of the judge’s summing up, she should
appeal the conviction

2. PC Thomas was walking down the high street in the evening when she saw Mick and Norman sitting in a
parked BMW car. PC Thomas thought this suspicious since the boot of the car was open and, according
to her, “Mick and Norman didn’t look the types to own a BMW”. She approached the driver’s side and
said to Mick: “What are you doing?” Mick replied, “Talking to my mate, Norman”. PC Thomas alleges
that the following conversation took place:

Officer: “I haven’t seen you two around here before.”

Mick: “You can’t know everybody.”
Officer: “Where do you live?”
Norman: “The other side of town.”
Officer: “Is it far to drive?”
Mick: “With the price of petrol, yes.”
Officer: “Is this your car?”
Mick: “We are just sitting in it. It was open.”
Officer: “Have you stolen it or are you trying to?”
Norman: “It was open. We were just hiding from the rain.”
Officer: “You were going to nick it, weren’t you?”
Norman: “Yes, until we saw you.”

This, according to the officer, was written up in her notebook two days later. After the alleged
conversation, both Mick and Norman were arrested, taken to the police station and interviewed. Under
interview, Mick and Norman denied any intention of stealing the car. At their trial for attempted theft of
the car, Mick and Norman object to the admissibility of PC Thomas’ notebook entry as contrary to one or
other of the exclusionary provisions of PACE.

Discuss.

3. Cedric was under arrest on suspicion of involvement in a burglary. At the police station, Cedric said: “If
you don’t let me go, I’ll hang myself.” The police thought it best, in the light of this, to deprive Cedric of
all his clothes and he was accordingly stripped of his possessions. As a result of a laundry strike, the
police had no blankets that day and Cedric was therefore left naked in his cell. Cedric protested loudly,
saying: “This is the worst thing that has ever happened to me. I feel completely humiliated”. DC Topper
came to Cedric’s cell and said: “I’m taking you to be interviewed. You’ll have to go through the canteen
but this won’t put anyone off their food.” Cedric shrieked, “You can’t do this, it’s disgraceful.” As they

50
entered the canteen, Cedric said, “I’ve had enough, I’ll admit it.” He was taken back to his cell and made
a full confession.

At the trial, Cedric objects to the admission of this confession in evidence by virtue of one or other of the
exclusionary provisions of PACE.
Discuss.

[47]

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 TUTORIAL/SEMINAR 5:
Issues for Discussion –
Identification, Hearsay, Bad Character
Essential Reading:
Your chosen textbook chapters on identification evidence, hearsay and bad character evidence in criminal
cases.
For example, Keane & McKeown (2022 14th ed) – chapters 10, 12 and 19
There are additional reading materials posted on Moodle and also at the end of the textbook chapters for
those who want to read more widely in these areas.
Please answer the following questions.
1. Anita was asleep when she heard a commotion. She poked her head out of her tent and saw a man
wearing blue shorts and a yellow top exit a tent directly opposite her. Later that morning she heard
that some money had been stolen from the tent. She told the police her description, noting that it was
a full moon so she could see clearly. The police arrest Lance and they invite Anita to a video
identification procedure four days later. She picks Lance out.
Den was assaulted by someone who accused him of pushing in at the queue for the beer tent. The
attacker wore a ring with a pentagon shape on it, and a pentagon shaped imprint was left upon Den’s
forehead from where he had been punched. The imprint was still there when the police arrived, but
then faded away. The police asked Den to walk around the festival with them to see if Den could
point out his attacker. In due course, Den pointed to Ian, saying “that’s him, no mistaking!”. On
arrest, Ian was found to be wearing a ring with a pentagon shape upon it. Ian denied being anywhere
near the beer tent. The police decided not to hold any further identification procedures because it was
obviously Ian.
Several people at the festival had their pockets picked during the main act. The police realise that the
footage was being live streamed on the internet by the BBC. They get hold of the footage and start to
look at it. They see footage of a woman taking a man’s wallet out of his back pocket when she was
dancing with him. One of the police officer’s reviewing the footage realises that the woman is Janice,
a person he dated for a few months, about two years ago.
Consider the evidential implications of the above, and whether any evidence would be admissible at
trial.

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2. Sarah has been charged with the assault of an elderly lady, Bertha, who Sarah was employed to look
after. Sarah denies all the allegations against her. The prosecution wishes to admit the following:

(a) Testimony from Alfred, a 92-year-old man, who says that Edith told him that she had seen Sarah
pushing Bertha against a wall screaming at her, “you stupid old woman, now look what you’ve
done”. Sadly, Edith died six weeks ago.

(b) A written reference by Carol, a former employer of Sarah, who says that she is “very good at her
job” but she had to warn her on a couple of occasions because “she has a bit of a temper”. It was
mainly because when anything went wrong, Sarah would swear, including in front of clients. Sarah
does not object to this reference being admitted.

(c) A statement by Edward, Sarah’s boyfriend at the time, where he will say that she told him that
she had “a bad day in the office” on the day in question. Sarah, in her police interview, told the
police that she was not at work on the day that Bertha was allegedly assaulted.

(d) Lucy, a colleague of Sarah’s, has written a witness statement to say that she saw Sarah push
Bertha against a wall and scream “you stupid woman, look what you’ve done”. Whilst Lucy is still
keen to be involved in the case, she is now employed in a care home in Washington DC and would
struggle to return to England for a trial.

Can the prosecution adduce any of the above?

3. Since the introduction of the Criminal Justice Act 2003, a defendant’s previous bad character tending
to show a propensity for committing the crime charged or showing a lack of credibility because it
demonstrates untruthfulness, may be adduced by the prosecution. Does this prejudice the right to a
fair trial under Article 6 ECHR?

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