Key rules of evidence
- Relevant and admissible evidence
- Order of giving evidence
- Privilege
- Judicial notice
- Formal admissions
- Hearsay
- Opinions
Relevant and admissible evidence
1. Evidence may be proved by:
- calling witnesses (witness evidence);
- producing documents (documentary evidence);
- producing things (real evidence).
2. In considering the evidence needed to ensure a conviction, you should be concerned with:
- relevance;
- admissibility; and
- weight.
3. Evidence of whatever type must be both relevant and admissible. Evidence is relevant if it logically goes to proving or disproving some fact at issue in the prosecution. It is admissible if it relates to the facts in issue, or to circumstances that make those facts probable or improbable, and has been properly obtained. The prosecution is only required to introduce evidence that proves each element of the offence. For example, for an absolute offence, it is not necessary to introduce evidence as to the defendant's state of mind. This would be irrelevant and inadmissible. 1 The "weight" of the evidence is the reliance that can properly be placed on it by the court.
Order of giving evidence
4. After taking the oath or affirming a witness is:
- examined in chief: leading questions are not generally allowed 2. Leading questions are those that are obviously steering a witness towards giving a particular response. They are put to the witness in such a way as only to allow the reply of `yes' or `no', or they are framed in such a way that they assume certain facts not yet established;
- cross-examined: leading questions are allowed, as are questions to witnesses (except in relation to defendants in limited circumstances) about their character; and
- re-examined: this is confined to the explanation of matters raised in cross-examination, and leading questions are not allowed.
5. takes place for each prosecution and each defence witness in turn.
Privilege
6. A witness should not be required to answer any question in court where the answer would:
- Tend to incriminate the witness, ie the answer might expose the witness to any criminal charge, penalty or forfeiture (privilege against self-incrimination)3 ;
- disclose communications between the witness and his or her solicitor or counsel made for the purpose of giving or obtaining legal advice 4 (legal professional privilege); 5
- disclose HSE's internal workings in a way that would affect its ability to carry out its functions generally. 6
Judicial notice
7. A court will take judicial notice of facts that are of such common knowledge that to require proof of them would be absurd, such as the meaning of ordinary words. Unless an Act expressly provides otherwise, the court takes judicial notice of all Acts of Parliament. 7
Formal admissions
8. Either the prosecution (eg by way of a Friskies schedule) or the defendant may admit facts in writing before a case comes to court or may agree admissions at court. The "formal admission" is conclusive evidence of the fact admitted, so no other evidence on the matter needs to be brought (see also Witnesses and statements – Formal admissions[166]).
9. Under section 10(1) of the Criminal Justice Act 1967, factual admissions may be made of any fact of which oral evidence may be given in any criminal proceedings; ie admissions cannot be used to admit evidence which would otherwise be excluded by the court.
10. You should note the following key points concerning admissions:
- Admissions made before trial must be in writing, signed and, if made by a defendant who is an individual, approved by his/her defence counsel or solicitor before or at the hearing.
- Admissions made orally at trial in the magistrates' court must be written down and signed unless the court otherwise directs8.
- Oral admissions in the Crown Court do not need to be made in writing9. Admissions made on behalf of a defendant who is an individual must be made by the defence counsel or solicitor10.
- Admissions by a body corporate must be signed by an appropriate officer11.
- Admissions made at any stage before the trial by the defendant must be approved by his/her counsel or solicitor.
11. An example of a written form of formal admission can be found in the letters and forms section.
12. An admission may be withdrawn with the leave of the court during the proceedings or at any subsequent appeal12.
13. It is important to distinguish between formal and informal admissions. An informal admission (which does not meet the statutory requirements of s10 of the Criminal Justice Act 1967) is a statement made by the defendant which is adverse to his/her case. It is admissible as evidence of the truth of what is admitted although, unlike a formal admission, informal admissions are not conclusive proof. An example of an informal admission is a statement made by a defendant during a PACE interview which undermines the defence case.
14. The maker of the informal admission may adduce evidence at trial with a view to explaining the admission away. A party who fails formally to admit facts about which there is no real dispute may be ordered to pay the costs incurred by the opposite number in proving them. Legal advisers owe a duty to their clients to consider if any formal admissions can be made. Informal admissions are exceptions to the "hearsay rule".
Hearsay
15. The general rule is that any statement, other than one made by a witness while giving evidence in the proceedings, is inadmissible as evidence of the facts stated. 13However, this rule only applies if the statement is given as evidence of the truth of its contents. The rule applies to both oral and written statements. The main reason for the rule is that there is otherwise no opportunity to test whether the person that made the original statement is telling the truth.
16. This rule is considered in more details in the `Hearsay' Section[167].
Opinions
17. Witnesses must only give evidence of facts observed by them, and not evidence of their opinion (ie evidence of inferences drawn from those facts). However, witnesses may give evidence of opinion as a means of conveying relevant facts observed by that witness. 14
18. For example, an assertion that a person was drunk may be a convenient way of describing what the witness saw, heard or smelt which led him or her to form that opinion. The court will allow such statements as long as no special expertise is necessary.
19. The court may need expert opinion on matters outside of its experience. When this need arises, expert opinion is admissible. Expert witnesses may give an opinion upon facts that are either admitted or proved in evidence. (You should refer to the section on Expert Evidence[168] for further information).
Footnotes
- See R -v- Sandhu [1996] TLR 2 January, CA, where it was held that such inadmissible evidence might have prejudiced the jury against the defendant and therefore the conviction could not stand. Back to reference of footnote 1
- Leading questions may be allowed on uncontested facts and with the leave of the judge. Back to reference of footnote 2
- The defendant, however, may be asked questions in cross-examination which may incriminate him/her as to the offence charged; the Criminal Evidence Act 1898, s.1(e), removed the defendant's privilege against self-incrimination. This section does not, however, extend to questions incriminating the accused indirectly by inferences drawn from a discreditable past: Jones v DPP [1962] AC 635, HL. Back to reference of footnote 3
- R v Derby Magistrates Court, ex parte B. [1995] 3 WLR 681, HL: legal professional privilege is a fundamental condition on which the administration of justice rests and is not to be overridden by other public interests. Back to reference of footnote 4
- See Collecting Evidence[169], for a fuller explanation of the extent of legal professional privilege. Back to reference of footnote 5
- D v NSPCC [1977] 1 All ER 589; Marks v Beyfus (1890) 25 QBD 494, CA. This is an aspect of public interest immunity, so that the Courts must carry out a balancing exercise, and have discretion to order disclosure when necessary to establish the defendant's innocence: R v Agar [1990] 2 All ER 442 CA. In such an event, the prosecution may not wish to proceed in order to protect its source. See R v Turner [1995] 2 Cr. App. R. 94, CA for discussion of how the interests may be weighed. See also AG's Guidelines on Criminal Procedure and Investigations Act 1996 and CPIA Code of Practice. Back to reference of footnote 6
- Interpretation Act 1978, s.3 and sch.2(2). Back to reference of footnote 7
- Part 37.6 CPR 2014. Back to reference of footnote 8
- CJA 1967 s.10(2)(b). Back to reference of footnote 9
- CJA 1967 s.10(2)(c). Back to reference of footnote 10
- Director or manager, the secretary or clerk, or some other similar officer: CJA 1967, s.10(2)(c). Back to reference of footnote 11
- CJA 1967, s.10(4). Back to reference of footnote 12
- R v Sharp [1988] 1 All ER 65, HL; [1988] 1 WLR 7 at 11; Subramanian v Public Prosecutor [1956] 1 WLR 965 at 970; R v Kearley [1992] 2 WLR 656 (at 676B and E.), HL. Back to reference of footnote 13
- For example, an identification witness does not have to describe the person seen in great detail, but can state that it was the accused; this is a compendious way of giving an elaborate description. Back to reference of footnote 14