Syllabus 10: Preliminary evidential matters
1. Facts in issue
[F1.1, F1.3]
Compromise:
(a) The facts which the prosecution bear the burden of proving or disproving in order to establish
the guilt of the accused; and
(b) The facts which, in exceptional cases, the accused bears the burden of proving in order to
succeed in the defence.
Any fact which is formally admitted under CJA 1970 s.10, ceases to be in issue.
Ordinarily, written admissions should be put before the jury, provided they are relevant to an issue
before the jury and do not contain any material which should not go before the jury.
In court, a formal admission may be made by counsel or a solicitor orally.
It is important that the jury are clear as to what has been formally admitted.
Formal admissions made with the benefit of advice are important and cogent part of the evidence in a
trial.
2. Relevance
[F1.11, F1.12, F1.14]
(a) Relevance and admissibility
All evidence which is sufficiently relevant to the facts in issue is admissible and all evidence which is
irrelevant or insufficiently relevant to the facts in issue should be excluded.
Evidence which is relevant may nonetheless be excluded if it is such that no reasonable jury, properly
directed as to its defects, coulse place any weight on it.
(b) The meaning of relevance
‘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’.
Evidence is relevant if it is logically probative or disprobative of some matter which requires proof
[Lord Simon of Glaisdale].
The question of relevance is typically a matter of degree to be determined, for the most part, by common
sense and experience.
,(c)Good character
Evidence of good character of a prosecution witness is generally inadmissible to bolster the witness’
credibility because it amounts to ‘oath-helping’ but it may be admissible if relevant to an issue in the
case.
Mader [2018]:
(1) Generally, evidence is not admissible simply to show that a prosecution witness has a good
character in the sense that he or she is a generally truthful person who should be believed.
(2) However, evidence is admissible if it is relevant to an issue in the trial.
(3) The category of issues to which evidence of disposition may be relevant is not closed.
(4) If the evidence is admitted because ‘’issue relevant’’, the judge should ensure that the effect of
admitting it is not to water down the burden of proof on the prosecution and any good character
direction given for the accused.
G(T) [2017]: unless a jury hear that a crown witness is not of good character, they will no doubt assume
that there is nothing to speak against the witness’s credibility. When an accused contradicts a
prosecution witness on a relevant issue, both of them are of good character, evidence is given of the
accused’s good character and the jury are directed that it is relevant to the accused’s credibility, then
evidence of the good character of the prosecution witness should also be admissible and the jury should
receive a direction that it is relevant to the witness’s credibility accompanied by a rider as to its
limitations and effect.
3. Circumstantial evidence
[F1.22]
To be contrasted with direct evidence.
Circumstantial evidence (CE) is evidence of relevant facts.
CE works by cumulatively, in geometrical progression, eliminating other possibilities.
It is necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be
sure that there are no other co-existing circumstances which would weaken or destroy the inference.
In a case involving circumstantial evidence relied on by the prosecution, the judge should summarise
any evidence and/or arguments relied on by the defence to rebut the evidence and/or the conclusions
which the prosecution seek to draw from it and direct the jury:
(a) To examine each strand of it and decide which if any they accept and which if any they do not
and decide what fair and reasonable conclusions can be drawn from any evidence that they
accept;
(b) Not to speculate or guess or make theories about matters which in their view are not proved by
evidence; and
(c) To decide having weighed up all the evidence whether the prosecution have made therm sure
that D is guilty.
There is no requirement to use these exact words.
4. Real evidence
[F8.45]
Real evidence is usually some material object, the existence, condition or value of which is in issue
or relevant to an issue, produced in court for inspection by the tribunal of fact.
,Little if any weight can attach to real evidence in the absence of accompanying testimony identifying
the object and connecting it with the facts in issue.
(a) Views
[F8.50]
Term ‘view’ is used to describe both an inspection out of court of some material object which it is
inconvenient or impossible to bring to court and an inspection of the locus in quo (the place where a
legal cause of action arose).
A view should not take place after the summing up.
The view should be attended by the judge, the tribunal of fact, the parties, their counsel and the
shorthand writer.
For magistrates, the view of the locus in quo should take place before the conclusion of the evidence
and in presence of the parties or their representatives. The presence of the accused is important as they
may be able to point out some important matter of which the legal adviser is ignorant or about which
the magistrates are making a mistake.
5. Questions of law and fact
[F1.37 - F1.43]
a. Trial on indictment
General rule: questions of law are for the judge and questions of fact for the jury .
Trials on indictment without a jury, the judge decides all questions of both law and fact. If the accused
is convicted, must give a judgment which states the reasons for the conviction.
Lay magistrates when sitting with a judge in a crown court are also judges of the court, they should
participate in all questions to be determined by the court but must accept the ruling of the judge on any
question of law.
Questions of law include:
(a) Where the court has determined that an accused is unfit to plead, whether the accused did the
act or made the omission charged as the offence.
(b) Challenges to jurors
(c) The discharge of a juror or the whole jury
(d) The competence of persons to give sworn or unsworn evidence
(e) The admissibility of evidence
(f) The withdrawal of an issue form the jury
(g) Submissions of no case to answer
(h) Numerous issues on which the jury should be directed in the summing up
(i) Matters ancillary to the trial itself (bail, costs, leave to appeal)
Questions of fact for the jury include:
(a) Whether the accused stands mute of malice or by visitation of god
(b) The credibility of the witnesses called and the weight of the evidence adduced; and
(c) Whether, applying the burden and standard of proof applicable to the case, they are satisfied as
to the existence or non-existence of the facts in issue
In jury trials, questions of fact which fall to be determined by the judge are:
, - whether the accused is fit to plead
- The existence or non-existence of preliminary facts
- The sufficiency of evidence
- The evaluation of evidence adduced by the parties
b. Summary Trials
The justices decide all questions of both law and fact.
On the questions of law, they should seek and accept the advice of the justice’s legal adviser.
DJ’s are in theory in the same position as lay justices. In practice however, the DJ’s will be the more
experienced lawyer so that the occasions for asking for advice will be quite rare.
6. Police and Criminal Evidence Act 1984, s78
[F2.7, F2.8 - F2.10]
Most important discretionary power to exclude otherwise admissible prosecution evidence.
(1) In any proceedings the court may (discretionary power) 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.
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.
Applies to evidence on which the prosecution propose to rely on. Applications should be made before
the evidence is adduced.
(a) General Application
s.78(1) may be used to attempt to exclude any evidence on which the prosecution propose to rely.
(b) Scope for exclusion wider than at common law [s.76]
Evidence open to exclusion at common law:
- Any admissible evidence which is likely to have a prejudicial effect out of proportion to its
probative value; and
- Admissions, confessions and other evidence obtained from the accused after the commission
of the offence by improper or unfair means and which might operate unfairly against the
accused...
...may be excluded either at common law or pursuant to s.78.
R v Sang [1980] AC 402: Judge can exclude Pros evidence if the prejudicial effect outweighs the
probative value.
(c)Application to evidence obtained unlawfully, improperly or unfairly
Common law powers are restricted to admissions, confessions and other evidence obtained from the
accused after the commission of the offence.
