5.1 Preliminary Evidential Matters: Relevance, Admissibility & Tribunals

5.1 Preliminary Evidential Matters: Relevance, Admissibility & Tribunals

Topic 10 of the syllabus sets up everything that follows. Hearsay, bad character, confessions and identification are all exceptions to, or qualifications of, a general position — and the general position is that relevant evidence is admissible unless a rule or discretion excludes it.

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1. Facts in issue

The facts in issue are those the prosecution must prove to establish the offence, plus any fact the defence must prove where a legal burden rests on it. They are defined by the elements of the offence as charged and by the defence run. Three practical consequences:

• On a plea of not guilty, every element is in issue, even those the defence does not actively contest;
• Where the defence is identity, the actus reus may be effectively uncontested but remains formally in issue;
• Collateral facts — matters going only to the credibility of a witness, or to the admissibility of other evidence — are not facts in issue, which is why the finality rule on collateral matters exists.

2. Relevance and admissibility

Relevance was defined in DPP v Kilbourne: evidence is relevant "if it is logically probative or disprobative of some matter which requires proof". It is a question of logic and human experience, not law, and it is a matter of degree — evidence may be so marginally relevant that its probative value is outweighed by the time and confusion it would generate.

Admissibility is a question of law. The relationship between the two is one-way:

All admissible evidence is relevant, but not all relevant evidence is admissible.

Relevant evidence may still be shut out by:

1. An exclusionary rule — hearsay, opinion, bad character, privilege;
2. Section 78 PACE 1984 — the discretion to refuse prosecution evidence whose admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it;
3. The common law discretion, preserved by s.82(3) PACE, recognised in Sang: the judge may exclude prosecution evidence where its prejudicial effect outweighs its probative value.

Note two limits on Sang: the discretion applies only to prosecution evidence, and it does not extend to excluding evidence merely because of the manner in which it was obtained (save for confessions and evidence obtained from the accused after the offence). Section 78 is now the wider and more useful tool, and it is the one to cite in an SBA about police impropriety.

3. Formal admissions

Section 10 of the Criminal Justice Act 1967 allows any fact of which oral evidence could be given to be formally admitted by either party. The admission:

• May be made before or at the trial, orally in court or in writing (a written admission by an individual defendant must be signed, and if made out of court by a defendant must be approved by their solicitor or counsel);
• Is conclusive evidence of the fact admitted for the purposes of those proceedings — the jury is directed that the fact is proved and is not to be revisited;
• May be withdrawn only with the leave of the court.

Section 10 is the engine of efficient trials: continuity of exhibits, the fact and time of arrest, medical findings, DNA statistics and CCTV compilations are routinely admitted so that the jury's attention is confined to the real issue. It is also the natural answer to a case-management SBA: the right course is usually agreement under s.10, not calling the witness.

Compare s.9 CJA 1967, which allows a witness statement to be read where the other party does not object. Section 9 puts the statement before the jury as evidence; s.10 puts the fact beyond dispute.

4. Circumstantial and real evidence

Direct evidence proves a fact in issue without the need for inference. Circumstantial evidence proves some other fact from which a fact in issue may be inferred — motive, opportunity, preparation, flight, lies, possession of the proceeds, fingerprints, DNA.

Circumstantial evidence is not second-class evidence. The classic image is of a rope made of many strands: no strand is sufficient alone, but together they may be strong enough to hang a case on. The corresponding warning, equally classic, is against the chain metaphor — and against speculation. Where a case is wholly circumstantial the judge should direct the jury that they must be sure that guilt is the only reasonable inference to be drawn, and that they must not speculate about matters on which there is no evidence.

Real evidence — a weapon, a garment, a substance — is admissible as a thing to be inspected, though it usually needs a witness to explain its provenance and relevance. Related categories include documents, photographs, film and automated recordings.

A view is the tribunal's inspection of a place or object outside the courtroom. It is part of the evidence in the case. In the Crown Court it must be conducted in the presence of the judge, the parties and (unless he waives it) the defendant, with no discussion of the evidence, and the jury must not conduct their own private investigations.

5. Tribunals of law and fact

In the Crown Court the separation is real: admissibility is decided in the jury's absence, and a jury that has been kept from inadmissible material never hears it. In the magistrates' court the same tribunal decides admissibility and guilt, so an objection under s.76 or s.78 requires the justices to put out of their minds material they have necessarily heard about. The practical consequences are examined regularly:

• In the magistrates' court, a voir dire on a confession is heard by the bench that will decide guilt; the bench may hear the objection at the point the evidence is tendered or, where the issue is central, as a preliminary issue;
• Magistrates must give reasons for their decision, which is what makes a summary conviction reviewable by way of case stated;
• A submission of no case in the magistrates' court is decided by the same tribunal that will decide guilt, so the Galbraith discipline of taking the prosecution case at its highest is especially important.

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Exam traps in this section

• Relevance is logic; admissibility is law. Do not merge them.
• Sang covers prosecution evidence and is largely superseded by s.78 where impropriety is alleged.
• A s.10 admission is conclusive; a s.9 statement is just read evidence that can still be disputed.
• In the magistrates' court there is no split tribunal — the bench hears the voir dire and then decides guilt.