Basic principles

This element considers some of the basic

principles of evidence.
Preliminary evidential matters

In talking about evidence, it is helpful to

agree on some commonly used language, Facts in issue
and some fundamental themes. This
element will consider: Proving a fact
• facts in issue;
• proving a fact by means other than Types of evidence
calling live evidence;
• types of evidence; Admissibility, relevance and weight
• admissibility, relevance and weight of
evidence;
Tribunals of fact and law
• tribunals of fact and law.
Facts in issue

Let's start with asking what it is that

Facts in issue evidence is called for. That is not a difficult
concept; you call evidence to prove your
Proving a fact case.
We will look in a moment at what burdens
there may be on either side to prove a
Types of evidence case, but what we can agree on right away
is that evidence is called by any party in
Admissibility, relevance and weight order to prove the 'facts in issue’.
The facts in issue are the facts that any
party needs to prove in order to prove its
Tribunals of fact and law
case.
Facts in issue

For the prosecution then, the facts in issue are those facts that are
needed to prove the offence(s) charged. The obvious place to start here is
to simply list the ingredients of the offence. So, for a theft, the prosecution
has to prove that the defendant appropriated property, belonging to
another, dishonestly, with an intention of permanently depriving another of
it.
The job of the court is then to try to narrow the issues as much as
possible, by seeing what elements, if any, the defence agree upon. They
still require proof, but you would be able to prove these elements by
means other than calling live evidence (see the next pages).
Proving a fact by means other than calling live evidence

There are several ways in which evidence

Facts in issue can be established other than by a witness
giving live evidence which we will consider
Proving a fact in more depth:
• agreeing a witness statement as true
by consent of the parties, Criminal
Types of evidence Justice Act 1967, s.9;
• agreeing any fact between the parties,
Admissibility, relevance and weight Criminal Justice Act 1967, s.10; and
• a judge or a jury to take 'judicial notice'
Tribunals of fact and law of the fact.
Agreeing a witness statement as true Agreeing any fact between the parties
by consent of the parties Criminal Justice Act 1967, s.10
Criminal Justice Act 1967, s.9
Another way to prove a fact is simply for
The witness's statement can be agreed as the advocates in a case to agree that the
accurate and true in its written form. fact is so. The fact is reduced to writing,
The statement is then simply read out, and and both parties (the lawyers, not the
carries the same weight as if the witness witnesses) agree and sign the agreement.
had attended in person, sworn (or So, for example, if a defendant is found
affirmed), and given the evidence from the with someone else’s credit card, the
witness box. prosecution would need to prove that the
Evidence will only be agreed in this way if owner of the card had not given anyone
there is no challenge to the evidence. If authority to take and use the card. One
the evidence is disputed, then the witness could either acquire a witness statement
must be called and challenged orally, so from the original owner of the card or,
that the court can see and assess the more simply, just agree that the defendant
dispute being aired openly and decide was not the owner of the card and did not
upon the dispute accordingly. have permission to have it. We assume in
this scenario that the defendant is
challenging guilt on some other basis and
is not challenging that the card was
someone else’s.
Judicial notice
The next way in which a fact may be 'proven' without evidence is for a judge or a jury to
take 'judicial notice' of the fact. It is clearly the case that we all know some things without
needing to have them proven to us. We know if we are in a recession, or if the economy
is doing well. We know that traffic in city centres at rush hour is pretty much universally
awful. It would be remarkably tedious for the parties in trial to have to prove every last
fact which might help the jury understand a case when much of the factual context for a
case is simply 'known'. Where facts are generally and widely known, then formal proof of
them is therefore not required.
The doctrine of 'notice' goes a touch further, in that a judge is permitted to take judicial
notice of a fact 'on enquiry'. This simply means that judges might not know a particular
fact 'off the top of their head' but could find out very easily, from a source that would be
incontrovertible. So, for example, which counties border Staffordshire? If this was
relevant to the case, the parties would have the option of asking the judge to take judicial
notice 'on enquiry' and simply let the judge look up the answer. Jurors are not allowed to
do their own research at any time.
The final point on taking notice is that the jurors cannot take notice on personal matters
that they happen to know, but are not generally known. If a juror has personal knowledge
of matters that are relevant to a case, they should let the court know, and the judge can
deal with any issues that might arise.
Types of evidence

Evidence can come in a variety of forms:

Facts in issue
a) oral evidence given by a witness in
court- the most common
Proving a fact
b) written form:
a) agreed statements (s 9 CJA
Types of evidence 1967);
b) admitted facts (s.10 CJA 1967)
Admissibility, relevance and weight c) 'real' evidence
d) ‘direct’ evidence
Tribunals of fact and law e) ‘circumstantial’ evidence
f) a ‘view’.
We will consider (c)- (f) on the next page in
greater detail.
Types of evidence

• Real evidence- simply means objects and things which are brought to court for
inspection. Some real evidence will be in the form of documents that are exhibited by
a witness who can vouch for their origin.
• Direct evidence v circumstantial evidence- the other way in which it is important to
classify evidence is according to whether it is 'direct evidence', namely evidence that
a witness gives of having had direct experience of a matter in issue, or circumstantial
evidence, i.e. evidence from which facts are inferred. An example of the difference
might be (in a case where it is in issue where the defendant was at midnight) witness
1 saw the defendant at the station at midnight (direct oral evidence) and a train ticket
found in the defendant's pocket showing a train ticket for a train arriving just before
midnight at the station (circumstantial real evidence).
• A view- occasionally juries can visit a scene of a crime, or leave court to view an
object that cannot be brought into court. This is called a 'view'. Their observations
become evidence in the case.
Admissibility, relevance and weight of evidence

For any evidence to be admissible, it must

Facts in issue be relevant. This is the first and most
fundamental principle of evidence.
Proving a fact Relevance is established by whether the
evidence is 'logically probative' of a fact in
issue – i.e. does the evidence tend to
Types of evidence prove or disprove a fact in issue.
If evidence is irrelevant, it is
Admissibility, relevance and weight inadmissible, and if the evidence is
relevant, it is admissible.
Tribunals of fact and law
Admissibility, relevance and weight of evidence

R v Usayi [2017] EWCA Crim 1394

In the case of R v Usayi a trial took place where the defendant was charged with a
sexual assault.
The defence had, in its possession, a note that tended to suggest that the
complainant had earlier incorrectly indicated that her mother had died. The defence
argued that this showed her to be dishonest.
In the trial, there had been an argument about the admissibility of this evidence (on
the basis of ‘hearsay’- that a statement made out of court may not be presented in
evidence as proof of its contents).
The Court of Appeal indicated that the evidence was insufficiently relevant
regardless of the hearsay arguments, and should not have been admitted as it had
insufficient bearing on the issues at hand.
Exclusionary rules Weight
That is, of course, not the end of the The final concept is that of 'weight'. All
matter in terms of admissibility. Having first evidence varies in terms of how strong,
considered relevance, you then consider reliable and valuable it is.
whether the relevant evidence is
Attaching the right degree of weight to a
nonetheless subject to an exclusionary
piece of evidence is a matter for the jury.
rule. There are rules to protect the fairness
Advocates will typically devote
of trials to prevent evidence which is
considerable effort into persuading the
relevant, but should still not be admitted
jurors as to what weight they should attach
because of the effect on the fairness of a
to the evidence.
trial.
However, if the evidence looks to be very
For example, if the police acquired problematic (e.g. a drunken man catching
relevant information by using an illegal only a fleeting glimpse of a person
phone tap, then the courts would consider committing a crime) then the judge may
an exclusionary rule to prevent the use of intervene to rule the evidence as
the evidence in court. inadmissible. This would be on the basis
that although it may be relevant, no one
could reasonably put any reliance on the
evidence. So in extreme examples of
poor-quality evidence, the weight of the
evidence may affect its admissibility.
 We use the word ‘tribunals’ when asking
Tribunals of fact and law these questions:
1) Who in this case determines what the
facts are; and
Facts in issue 2) Who in this case determines the law?
The answer to question one is that the
'tribunal of fact' is responsible for
Proving a fact
determining the facts. In the Magistrates'
Court, the tribunal of fact is the bench of
Types of evidence magistrates (or District Judge). In the
Crown Court, the tribunal of fact is the jury.

Admissibility, relevance and weight The second question is answered in

similar terms, namely that the tribunal of
law is responsible for the law, and in the
Tribunals of fact and law Magistrates' Court, the tribunal of law
comprises the magistrates (or District
Judge) and in the Crown Court, the
tribunal of law is the judge. Issues of
admissibility of evidence are matters of
law for the tribunal of law to determine.
Tribunals of fact and law

Example
It is rarely necessary to use these terms in everyday practice, but sometimes
questions do arise as to whether a question is one for the tribunal of fact, or the
tribunal of law.
A good example is the tricky question of who has what role when the defence put
forward an outrageous argument, for example, on self-defence. To run the defence of
self-defence, the force a defendant uses must be reasonable and proportionate.
That's the law. If a young child threatened the defendant with a toy sword and, when
the young child turned away from the defendant, the defendant nonetheless shot the
young child 'in self-defence', the question is which tribunal is engaged? Is it for the
jury to determine on the facts that self-defence is not made out, or is it for the judge
to determine that these facts cannot, in law, amount to self-defence? When dealing
with issues such as this, it is helpful to talk about the tribunal of fact and the tribunal
of law, and to describe how these two interact.
Tribunals of fact and law

Example
In the example just discussed the Judge would direct the jury that the defence of self
defence could not apply in law on the facts and the jury would be bound to conclude
that the defendant was not acting in self defence. Crucially, a Judge cannot “strike
out” a criminal defence, the ultimate question of whether the defence was made out
would remain with the tribunal of fact, the jury.
Crown Court

The other critical point to note is that the tribunals are different in the Crown Court (i.e.
judge and jury take one role each) but in the magistrates' court, it is the same person (or
people) playing both roles. This has huge practical implications. As an example, a
defendant might confess in a criminal case, but then challenge the admissibility of the
confession, perhaps saying that officers used force to extract the confession. In the
Crown Court, the judge alone will hear the application to exclude as inadmissible the
evidence of the confession. If the application is successful, the jury (as tribunal of fact)
will never be told that there had been a confession. In the magistrates' court, it is the
same bench that hears the application to exclude the confession that will ultimately
consider guilt. Having ruled the confession as inadmissible, the magistrates must then
'put out of their mind' the confession and not let their knowledge of the confession
influence their consideration of the facts of the case. It is like the dramas we all see from
the U.S. where attorneys use foul play or some trick in the courtroom and the judge says
'strike that from the record' and the jurors have to pretend that they never heard the
improperly adduced evidence.
The fact that in the magistrates' court, the tribunals and fact and law are the same is
regularly a strong reason for defendants to prefer trial in the Crown Court.
 • Types of evidence- oral evidence,
Summary written evidence (agreed statements
and admitted facts from s.9 and s.10
CJA 1967), real evidence (such as
objects), direct evidence, circumstantial
This element considered some of the evidence and a view (an observation).
basic principles of evidence. • Evidence will be admissible if:
• Facts in issue- the elements that any • relevant- 'logically probative' of a
party needs to prove in order to prove fact in issue – ie does the
its case. evidence tend to prove or
• Proving a fact- by means other than disprove a fact in issue;
calling live evidence: • not subject to an exclusionary
• agreeing a witness statement as rule of evidence; and
true by consent of the parties, • not so poor-quality evidence, that
Criminal Justice Act 1967, s.9; no one could reasonably put any
• agreeing any fact between the reliance (weight).
parties, Criminal Justice Act • Tribunals of facts- determine what
1967, s.10; and the facts of the case are. Tribunals of
• a judge or a jury to take 'judicial law- determine the law, such as issues
notice' of the fact. of admissibility of evidence.