You will be assessed on your ability to do the following:
• Analyse the use of evidential concepts to prove facts
• Assess the relevance, admissibility and weight of evidence
• Communicate complex analyses of legal problems within the context of the law of evidence
• Oral presentation – 15 minutes
• Skeleton argument – one side of A4, to be submitted to the lecturer at the beginning of the presentation
IMPORTANT INFORMATION
1. Presentation: a 15-minute individual oral presentation, which may include or be followed by questions from the assessor. It will be recorded, for marking and moderation purposes only.
2. Skeleton argument: You submit the paper at the beginning of the presentation. It should not exceed one side of A4, in a font no smaller than 10-point.
You MUST ensure that you have completed the tutorial on skeleton arguments first: neither transcripts of your presentation nor brief lists of headings fulfil the requirement for a skeleton argument.
Principles of Evidence
Assessment – Spring 2011-12
You are representing James Smith, who is charged with an offence under section 1 of the Prevention of Road Rage Act 2012:*
1. (1) It is an offence for the driver of a vehicle to make gestures or shout words at another driver if those gestures or words are calculated to cause offence.
(2) It shall be a defence for the defendant to prove that he made those gestures or words to provide a warning to the other driver.
James admits that he was waving and pointing his arm at another driver, but says that he did so in order to warn him that his headlight was broken. You are required to make submissions (accompanied by a skeleton argument) on the following issues:
The prosecution say that James bears the legal burden of proving he was providing a warning.
They wish to use evidence that James said to the other driver, ‘I’m really sorry about gesturing rudely to you like that. I’m sorry you were offended.’ James says that he only apologised because the other driver threatened to thump him if he didn’t, and that what he said was not true because his gestures were not rude or offensive.
The prosecution have instructed Dr Clarkson, an expert on motorist behaviour who has a PhD in psychology. He says that in his opinion, the gestures made by James were aggressive and offensive. He bases his conclusions on research which he published last year, and which was attacked by a number of other psychologists who said that it was speculative and unsupported by mainstream psychological research or opinion. In 2009, Dr Clarkson was convicted of theft (shoplifting a bottle of champagne from Waitrose).
*This Act is fictional. Assume for the purpose of the assessment that it is real, in force, and that the offence is fully defined in section 1 above.
Additional Materials
4. Burden and standard of proof
Burden of proof
– Legal burden: “the obligation of a party to meet the requirement that a fact in issue be proved (or disproved) either by a preponderance of the evidence or beyond reasonable doubt as the case may be.” (Cross & Tapper)
– Evidential burden: the obligation to show that there is sufficient evidence to raise an issue
Standard of proof
– “The extent or degree to which the burden of proof must be discharged … the measurement of the degree of certainty or probability which the evidence must generate in the mind of the tribunal of fact; the standard to which the tribunal of fact must be convinced by the evidence before the party bearing the burden of proof becomes entitled to succeed”. (Murphy)
Burden of proof:
Civil cases
= on the party asserting a fact in issue. Burden is on the claimant to prove all the elements essential to their case and on the defendant to prove any facts asserted in their defence.
Which party bears the burden of proof can be essential to the outcome of the case (eg Rhesa Shipping Co SA v Edwards [1985] 1 WLR 948)
Criminal cases
Legal burden of proof is generally on the prosecution.
Throughout the web of the 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
Defences:
• many place evidential burden of proof on the defence, legal burden on the prosecution, eg self-defence, provocation; alibi (s 5(7) Criminal Procedure and Investigations Act 1996)
• legal burden on the accused for the defence of insanity
• legal burden on the accused where it is expressly or impliedly imposed by statute. R v Edwards [1975] QB 27 confirmed the Crown Court rule is the same as s101 Magistrates’ Court Act 1980:
Where the defendant to an information or complaint relies for his defence on any exception, exemption, proviso, excuse or qualification … the burden of proving the exception, exemption, proviso, excuse or qualification shall be on him…
• R v Hunt [1987] AC 352 confirmed factors to consider. HRA requires further factor of compatibility with Art. 6
• Art 6(2): “Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law.” Expanded upon in Salabiaku v France (1988) 13 EHRR 379: “Presumptions of fact or law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. … It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.”
• R v Lambert, Ali & Jordan [2002] 2 AC 545:
• Fact to be proved must not be of crucial importance
• Placing of burden must be justified and proportionate.
• House of Lords revisited the issue in R v Johnstone (Robert Alexander) [2004] Crim LR 244:
• “Compelling reasons” are required to justify a reverse burden
• The more serious the offence, the more compelling they must be.
• A-G’s Ref (No 1 of 2004) 2 Cr App R 27 (CA) further discussed Article 6:
• Is the burden on D compatible with Art 6? If not, can it be read down to an evidential burden?
• Reverse burden is permitted where it is proportionate and reasonably necessary; the assumption is that Parliament would not have made an exception to the presumption of innocence without good reason.
• There is no risk of an evidential burden contravening Art 6.
Standard of proof
Criminal cases
Prosecution must prove its case beyond reasonable doubt/’satisfied so you feel sure’:
‘satisfied beyond reasonable doubt so that you feel sure of the accused’s guilt’ (Ferguson v R [1979] 1 WLR 94) ‘pretty certain’
(R v Law [1961] Crim LR 52)
‘You must be satisfied beyond reasonable doubt … You must feel sure of the prisoner’s guilt.’ (Hepworth [1995] 2 QB 600) ‘reasonably sure’ (R v Head (1961) 45 Cr App R 225)
‘We point out and emphasise that if judges stopped trying to define that which is almost impossible to define there would be fewer appeals.’ (Ching (1976) 63 Cr App R 7)
Defence (where it has a legal burden): on a balance of probabilities.
Civil cases
= balance of probabilities. Party with burden of proof must show that it is more likely than not: if the fact in issue is exactly as likely to be true as untrue, party with the burden of proof loses.
Is there a different standard of proof for more serious/quasi-criminal allegations?
Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability. This is the established general principle. … 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. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher.”
Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563
Confirmed in Re B (Children) [2008] 3 WLR 1:
“Neither the seriousness of the allegation nor the seriousness of the consequences should make nay difference to the standard of proof to be applied in determining the facts.” (Baroness Hale)
“I think the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not … Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence … It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred.” (Lord Hoffman)
Murphy chapter 4
Roberts & Zuckerman chapter 8
Keane chapter 4
Magistrates’ Court Act 1980 s 101
Joseph Constantine Steamship Line v Imperial Smelting Corp Ltd [1942] AC 154
Rhesa Shipping Co SA v Edmunds [1985] 1 WWLR 948
Woolmington v DPP [1935] AC 462
R v Edwards [1975] QB 27
R v Hunt [1987] AC 352
R v Lambert [2002] 2 AC 545
SL (A Juvenile) v DPP [2002] Crim. L.R. 320 (and commentary)
Ewing [1983] QB 1039
Bater v Bater [1950] 2 All ER 458
Re H (Minor) (Sexual Abuse: Standard of Proof) [1996] AC 563
Mirfield The Legacy of Hunt [1988] Crim LR 19
Birch Hunting the Snark [1988] Crim LR 221
Bennion Statutory Exceptions [1988] Crim LR 31
Roberts Drug dealing and the presumption of innocence (2002) 6(1) E&P 17
Dingwall, Statutory Exceptions, Burdens of Proof and the Human Rights Act 1998, (2002) 65 MLR 450
5. Witnesses
Competence & Compellability
Competence
Competent = legally able to give evidence in court.
General rule: all persons are competent.
Youth Justice and Criminal Evidence Act 1999 enacted new rules on competence which have now come into effect for criminal cases:
Section 53:
(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.
…
(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.
(4) A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings).
(5) In subsection (4) the reference to a person charged in criminal proceedings does not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).
The question of a witness’s competence can be raised by any party or by the court itself, and the procedure is set out in section 54. The party calling the witness must satisfy the court of their competence, on a balance of probabilities. This can involve both questioning of the witness and expert evidence, and is done in the absence of the jury but with the parties present.
Note that under s 55, a competent witness’s evidence will be given unsworn unless:
(2) (a) he has attained the age of 14, and
(b) he has a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath.
By virtue of Section 53(1) all persons are competent to give evidence in criminal proceedings whatever their age. ‘Proceedings covers every aspect of a trial from committal proceedings to evidence in mitigation of sentence.
D [2002] EWCA Crim 990, Swinton Thomas L.J. said that that the ability to distinguish between truth and fiction or fantasy and fact was built into the statutory test for competence. If a child gave a coherent account of the events, it was a question of fact for a jury whether they believed the evidence.
Procedure : This is dealt with under Section 54 of the Act. The issue of competence may be raised by any party to the proceedings, or by the court. Once it raised it is matter for the judge alone. It is for the party calling the witness to prove competence on a balance of probability. Competence should be determined in the absence of the jury, in the presence of the parties. Expert evidence is admissible.
Accused as a witness for the prosecution
S53: ‘a person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution’. Therefore one co-accused cannot be called to give evidence against another co-accused unless :
(a) The Attorney General discontinues the proceedings against D1 by the entry of a nolle proseque ;
(b) The prosecution obtain an order for separate trials ;
(c) At the trial of D1 and D2 the prosecution offer no evidence against D1 who is then formally acquitted of the charges against him ;
(d) At the trial of D and D2, D1 pleads guilty to one or more of the charges against him
Compellability
General rule: all competent witnesses are compellable. Certain exceptions:
Spouse/civil partner of the accused
In criminal proceedings, there are restrictions on the compellability of the accused’s husband or wife.
Section 80 PACE:
• A spouse is a competent but not compellable prosecution witness (they are compellable for the defence).
• However, they will be compellable for certain specified offences:
o It involves an assault on, injury to or threat of injury to the spouse or a person under 16;
o It is a sexual offence alleged to have been committed in respect of a person under 16;
o Or conspiracy, attempt etc for such offences.
R v Pearce 2002 1WLR: no breach of Art 8 (respect for family life) in refusing to extend this to unmarried partners.
R v Khan 1986 84 Cr App R 44: this rule does not extend to bigamous marriages or marriages of no effect under English law.
R v Pitt [1983] QB 25: where spouse is not compellable, it is desirable that the judge should explain to her in the absence of the jury that she is not obliged to give evidence. However, once she has taken the oath, she cannot change her mind and is treated like any other witness.
Note that this does not prevent other admissible evidence being used: in RL [2008] 2 Cr App R 18, D’s wife was not compellable and declined to give evidence against him. However the prosecution successfully applied to have her police statement admitted (under the interests of justice exception to the hearsay rule).
Expert witnesses
The general rule at common law is that opinion evidence is not admissible to prove facts in issue
• The relevance of opinion evidence is questionable
• Its reliability is very doubtful
• Such evidence usurps the function of the court, whose role it is to form an opinion on the facts in issue.
Exceptions:
• General reputation is admissible to prove matters of public concern;
• Expert opinion evidence is admissible to prove matters of specialised knowledge on which the court would be unable properly to reach a conclusion unaided; and
• Non-expert opinion evidence may be received on matters within the competence and experience of lay persons generally.
Expert evidence:
Written reports
Civil Procedure Rules 1998
• Extends the use of expert reports (rather than oral evidence)
• Rule 35 prevents any expert report being put in evidence without leave of the court
S 30, Criminal Justice Act 1988 provides for the admissibility of expert reports in criminal cases
• leave of the court is required if the person will not also give oral evidence.
• In deciding whether to give leave, the court will have regard to the contents, reason expert won’t be giving oral evidence, risk of unfairness to any D, and any other relevant circumstances.
Civil cases – Rule 35 provides that a party who fails to disclose an expert report may not use it or call the expert without the court’s permission.
Criminal cases – s81 Police and Criminal Evidence Act 1984 empowers rules to provide that failure to disclose expert evidence on which a party proposes to rely will result in its exclusion, subject to the court’s discretion. Those rules are contained in the Crown Court (Advance Notice of Expert Evidence) Rules 1987.
Expert evidence can include
• answers to hypothetical questions
• explanations of how they reach their conclusions, including hearsay material
• such hearsay material is not evidence in the trial, but is admissible only for evaluating the expert’s evidence. (Abadom [1983] 1 WLR 126)
Who can be an expert witness?
The test is whether the person has the necessary competence
If competent, an expert witness is also compellable. (Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380)
Expert can be cross-examined as to their credit as well as their expert opinion.
Their testimony is evidence of fact: tribunal of fact not bound to accept it simply because it is given by an expert, although that will affect its weight.
‘Ultimate issue’
Because the ultimate issue in the case is one to be decided by the jury and not by the expert, there is a common law rule that the expert must not give his opinion on the ‘ultimate question’
Civil cases: abolished by section 3 of the Civil Evidence Act 1972
Criminal cases: probably still exists, although commentators including Murphy have suggested that such evidence should now be permitted. They give the example of expert evidence on insanity or automatism where it would be desirable for the expert witness to give their view on the issue.
Lay opinion equally valid
Expert evidence will not be admitted if it relates only to a question on which the lay opinion of the tribunal of fact is equally valid.
Ugoh [2001] WL 606393 -psycho-pharmacological evidence re complainant’s ability to give informed consent and whether this would be obvious to observers objected to at trial. CA held: real risk that the jury would interpret the expert’s evidence as relating to the question of whether the defendants were aware that she was consenting. As the appellants were normal young men, their ability to assess her state of drunkenness were properly matters for the jury, not for expert evidence
Another matter within the jury’s experience is judging the credibility of witnesses – expert evidence is therefore allowed in relation to this only in rare and exceptional cases. eg Lowery v R [1974] AC 85.
Concerns about expert evidence
Note that recent miscarriages of justice have raised concerns about the courts’ ability to understand and evaluate complex expert evidence. For example, in cases involving sudden deaths of babies, there have been miscarriages of justice resulting from the courts accepting expert evidence later shown to be problematic.
Cannings [2004] 1 WLR 2607:
For the time being, when a full investigation into two or more sudden unexplained infant deaths in the same family is followed by a serious disagreement between reputable experts about the cause of death and a body of such expert opinion concludes that natural causes, whether explained or unexplained, cannot be excluded as a reasonable (and not a fanciful) possibility, the prosecution of a parent or parents for murder should not be started or continued, unless there is additional cogent evidence …
Kai-Whitewind [2005] 2 Cr App R 31:
We understand that Cannings is being deployed in many cases by the defence as authority for different arguments running along the lines that whenever there is a genuine conflict of opinion between reputable experts, the prosecution should not proceed or should be stopped … That is a startling proposition and it is not sustained by Cannings. … In Cannings there was essentially no evidence beyond the inferences based on coincidence which the experts fo rhte Crown were prepared to draw.
Murphy chapter 11
Roberts & Zuckerman chapter 7
Civil Evidence Act 1995 section 7
Criminal Justice Act 1988 section 30
R v Turner [1975] QB 834
R v Abadom [1983] 1 WLR 126
Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380
R v Gilfoyle (No. 2) [2001] 2 Cr App R 57
R v Ugoh [2001] WL 606393
Lowery v R [1974] AC 85
