Lecture notes
Lecture notes
- Institution
- City University (City)
Preliminary issues in Criminal Litigation- criminal burden of proof between prosecution and defence (legal and evidential burden), bail conditions, grant and denial of bail.
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Criminal Litigation, Evidence and Sentencing w/c 14/09Preliminary evidential matters SA10- 8 Transcripts
KEYWORDS:
TRIBUNAL OF LAW > JUDGE TRIBUNAL OF FACT > JURY
Transcript 1:
Consider is what is meant by ‘Facts in Issue’ in a criminal trial. If a person is alleged to have
committed an offence, they may only be convicted of that offence if they plead guilty to it or if
it is proved against them in a criminal trial. Exactly what must be proved will depend on the
offence charged but where a not guilty plea is entered, the prosecution will only succeed in
securing a conviction if all of the facts in issue are proved.
So, what are these facts in issue? The facts in issue in a criminal matter are the facts which
a party must prove in order to succeed at trial. In a criminal trial these will be the:
● identity of the accused
● all the elements of the offence charged, both the actus reus and mens rea (if not a strict
liability offence), and
For example, where a defendant faces an allegation of an assault occasioning actual bodily
harm, contrary to s47 of the Offences Against The Person Act 1861, the facts in issue will
be: 1) The identity of the accused (who did the deed).
2) The elements of the offence, specifically an assault or battery, causing, actual bodily
harm, and carried out either intentionally or recklessly.
3) Where the defendant raises a positive defence, for example self-defence, that defence is
also a fact in issue. I mentioned that a successful conviction requires that the facts in issue
be proved. How then are these facts in issue proved at trial, and, importantly, what do we
mean by the concept of proof?
Proof is the establishment of facts in issue by proper legal means to the satisfaction of the
court (see definition in Phipson on Evidence). If proved, a fact is accepted as having
happened or as existing. One way of proving a fact is by making a Formal Admission under
s10 of the Criminal Justice Act 1967. A party may admit any fact of which oral evidence
might be given. The admission must be of a fact relevant to an issue, it should be made in
writing, signed by the person purporting to make the admission, and put before the jury.
Once made, a formal admission is conclusive evidence of the facts admitted; the issue is no
longer open to challenge. The admission can only be withdrawn with leave of the court
(s10(4)) and usually cogent evidence is needed to show that the admission was made as a
result of a mistake or misunderstanding.
Ordinarily, the facts in issue are proved by adducing relevant, admissible evidence.
Evidence is any fact which tends to prove or disprove another fact. The concept of
admissibility refers to whether a piece of evidence is ‘acceptable’ or can be received into
evidence. To be admissible, evidence must be relevant and not be excluded under an
exclusionary rule of law or discretion exercised by the tribunal of law.
This of course raises the question, what do we mean by ‘relevance’? Evidence is relevant if
it is logically probative or disprobative of a fact in issue. The classic definition of relevance
was given by Lord Simon in the case of DPP v Kilbourne [1973] AC 729; ‘Evidence is
relevant if it is logically probative or disprobative of some matter which requires proof. It is
sufficient to say… that relevant evidence is evidence which makes the matter more or less
probable.’ In deciding whether or not something is relevant evidence, you must ask the
question, ‘could the evidence properly influence the decision of the tribunal of fact on a
particular point?’
, Criminal Litigation, Evidence and Sentencing w/c 14/09
Evidence that may be relevant to one case, may not be relevant in another; relevance is
case specific depending on the issues raised at trial. For example, evidence of a witness’s
good character is not normally admissible in a criminal trial to bolster the witness’s credibility.
This is considered to be oath-helping. However, where it is suggested that the witness is of
bad character, evidence of the witness’s good character is relevant because it is logically
disprobative of that suggestion. Many cases involve either an advocate or a judge
questioning the relevance of a piece of evidence. In order to be trial ready, you must be in a
position to respond to the challenge and explain why that evidence is relevant.
Transcript 2
OBJ:
- Difference between an exclusionary rule and an exclusionary discretion.
- consider the weight of evidence.
Where an exclusionary rule is engaged, the exclusion of otherwise relevant evidence is
mandatory. For example, the rule against hearsay is an exclusionary rule (although subject
to numerous exceptions), similarly, confessions obtained by oppression or something said or
done which is likely to render the confession unreliable must be excluded (PACE 1984, s
76(2)(a)&(b)). We will focus on the exclusion on hearsay and confessions later in this
module.
Where an exclusionary discretion is engaged, the exclusion of evidence is not mandatory
but may occur by the exercise of judicial discretion. At common law, relevant prosecution
evidence may be excluded if, in the opinion of the judge, its prejudicial effect on the minds of
the jury outweighs its probative value. The most important discretionary power to exclude
otherwise relevant evidence on which the prosecution propose to rely is contained in PACE
1984, s78. Under s78, the court may refuse to admit evidence on which the prosecution
proposes to rely if, 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 proceedings that it ought not to be admitted. We will
consider s78 in more detail later in the course.
While there are lots of exclusionary rules and discretions in the Law of Evidence, there is no
general inclusionary discretion that would allow otherwise inadmissible evidence being
adduced before a criminal court. However, you should note the inclusionary discretion
arising under CJA 2003, s 114(1)(d) to admit hearsay evidence in the interests of justice,
we’ll look at that later.
As an advocate, when you prepare your case for trial it is important that you not only
consider whether evidence is admissible, but also how persuasive that evidence is likely to
be. The weight of evidence is its probative worth in relation to a fact in issue; the extent to
which the evidence proves or disproves a fact in issue. Assessing the weight of evidence is
largely a matter of common sense and experience, but may involve consideration of many
factors, including for example the extent to which the evidence is supported or contradicted
by other evidence, or an assessment of the demeanour and credibility of a witness giving
direct testimony. While counsel must make their own evaluation of weight, it is the Tribunal
of Fact that will ultimately determine the weight of the evidence.
Transcript 3
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