Law of Evidence (LLB undergraduate module)

# Law of Evidence — LLB Undergraduate Module
## Topic Notes (grounded on corpus cases)

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## PART 1: REASONING WITH EVIDENCE

### 1.1 Relevance and Admissibility

Evidence is admissible only if it is relevant to a fact in issue. The threshold question is probative value versus prejudicial effect. Where the prejudicial effect substantially outweighs probative value, a court retains discretion to exclude (PACE 1984 s.78 in criminal proceedings; common law in civil proceedings).

The danger of over-relying on bad character or propensity evidence to prove guilt — rather than as logically relevant evidence of a specific issue — remains central to the law: "It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his conduct or character to have committed the offence for which he is being tried." This formulation, drawn from **Makin v Attorney-General for New South Wales [1894] AC 57**, continues to be cited as the foundational statement of the propensity exclusionary rule. See its citation in **Director of Public Prosecutions v Limen [2021] IESC 8**, which confirmed its continuing authority when cross-applying the similar fact principle.

### 1.2 Burden and Standard of Proof

**Civil proceedings:** The legal burden rests on the claimant on a balance of probabilities (more probable than not). Evidence of standard of proof was applied in **Raza v Bradford Metropolitan District Council [2021] UKUT LC 39**, where the Upper Tribunal held it was not reliable or fair to determine contested facts to the criminal standard of proof without a hearing, confirming the civil standard must be applied correctly to civil regulatory proceedings.

**Criminal proceedings:** The prosecution bears the legal burden of proof beyond reasonable doubt (the "golden thread" from *Woolmington v DPP* [1935] AC 462, which is a foundational authority not in this corpus). The presumption of innocence requires the prosecution to negative defences unless statute expressly places the legal burden on the defendant.

### 1.3 Non-Defendant Bad Character: s.100 CJA 2003

Under s.100(1)(b) of the Criminal Justice Act 2003, evidence of non-defendant bad character is admissible only if it has "substantial probative value in relation to a matter which is a matter in issue in the proceedings and is of substantial importance in the context of the case as a whole." In **A, R v [2020] EWCA Crim 1687**, the Court of Appeal confirmed that this is a high threshold. The appellant (A, aged 15, convicted of murder) sought to adduce the bad character of the deceased (E) under s.100(1)(b), arguing it had substantial probative value on the issues of self-defence and intent. The court upheld the trial judge's refusal, emphasising that "substantial" in s.100 sets a genuinely demanding standard, not merely relevant or helpful evidence.

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## PART 2: HEARSAY

### 2.1 Definition and Rule

Hearsay is an out-of-court statement adduced to prove the truth of its contents. It was inadmissible at common law subject to numerous exceptions. The Criminal Justice Act 2003 (CJA 2003) ss.114-136 replaced and rationalised the common law regime in criminal proceedings.

Under CJA 2003 s.114(1), hearsay evidence is admissible if:
(a) any provision of Chapter 2 of Part 11 makes it admissible;
(b) any rule of law preserved by s.118 makes it admissible;
(c) all parties agree to it being admissible; or
(d) the court is satisfied it is in the interests of justice for it to be admissible.

Key preserved common law exceptions (s.118): res gestae; admissions and confessions; expert evidence of facts in literature; public information; reputation evidence.

### 2.2 Original Evidence vs Hearsay

The distinction between hearsay and original evidence (evidence of words as acts, not for truth) remains important. In **Sol. Gen. v Murray [1974] JLR 181**, the Jersey court confirmed that a police officer's narrative of a question-and-answer session with an accused was admissible as part of the narrative of the encounter — especially where the accused did not deny the accuracy of the statement or object to admissibility. This illustrates how context determines whether an out-of-court statement is hearsay or original evidence.

### 2.3 The Legislature, Not Courts, Creates New Exceptions: Myers v DPP

The principle from **Myers v DPP [1965] AC 1001** (House of Lords, not in this corpus but foundational to the module) is that courts cannot create new common law hearsay exceptions; that is a legislative function. This principle shaped the statutory consolidation in CJA 2003.

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## PART 3: CHARACTER EVIDENCE AND BAD CHARACTER

### 3.1 Defendant Bad Character: s.101 CJA 2003

Section 101 CJA 2003 provides seven gateways through which defendant bad character may be admitted:
- (a) all parties agree;
- (b) the defendant adduces it;
- (c) important explanatory evidence;
- (d) relevant to an important matter in issue between defendant and prosecution;
- (e) substantial probative value on matter in issue between co-defendants;
- (f) to correct a false impression given by defendant;
- (g) defendant has made attack on another person's character.

Gateway (d) is the most litigated. It includes propensity to commit offences of the kind charged (s.103(1)(a)).

**Johnson, R v [2019] EWCA Crim 1025**: The Court of Appeal upheld the trial judge's admission of Johnson's numerous previous convictions for assault and similar violence in his murder trial. The court confirmed the correct approach: the trial judge must ask whether admitting the convictions carries a real risk of prejudice rendering the trial unfair (s.101(3)), and must weigh the probative value against prejudice. Here, the previous convictions for violent assault were directly relevant to the issue of who was the aggressor and to Johnson's propensity for violence, and their admission was properly reasoned.

**Roddis v R [2020] EWCA Crim 396**: The defendant, previously convicted of placing a hoax bomb (terrorism-related, 2008), faced a fresh charge of engaging in preparation of terrorism. The prosecution relied on the 2008 conviction as bad character evidence demonstrating propensity under s.101(1)(d). The defence contended the 2008 conviction was itself wrong. The Court of Appeal addressed the proper approach where the propensity conviction is disputed: the jury must be directed to consider whether the previous conviction genuinely establishes the relevant propensity.

**Ellis Cloud v Rex [2022] EWCA Crim 1668**: The Court of Appeal addressed bad character issues arising from joinder of two complainants in rape and assault by penetration charges. The court considered whether evidence relating to complainant A could properly be treated as bad character evidence admissible in relation to charges concerning complainant B, examining whether propensity and issue had been correctly framed by the trial judge.

### 3.2 Non-Defendant Bad Character: s.100 CJA 2003

As above under Part 1 — see **A, R v [2020] EWCA Crim 1687** for the "substantial probative value" requirement.

**McChleery v R [2019] EWCA Crim 2100**: The Court of Appeal allowed the appeal in part on the ground that the judge erred in refusing an application to allow the complainant to be cross-examined on an issue of her bad character. The court confirmed that s.100 applications must be rigorously scrutinised but that where evidence of the non-defendant's bad character has substantial probative value on a live issue, exclusion is wrong.

### 3.3 Propensity and the Similar Fact Rule

**Director of Public Prosecutions v Limen [2021] IESC 8** (Irish Supreme Court, with strong engagement with English similar fact principles): The court restated the Makin two-limbed test: (1) prosecution cannot adduce evidence of other misconduct merely to show propensity; but (2) evidence of other misconduct is admissible where directly relevant to an issue other than mere propensity — for example, because of striking similarity or system. The court confirmed that two or more victims' accounts can cross-support each other where the accounts are broadly concurring, subject to a proper direction.

### 3.4 Good Character Direction (Vye Direction)

Where a defendant is of good character, the trial judge must give two limbs of direction: (i) credibility (good character supports truthfulness) and (ii) propensity (no convictions means less likely to have committed the offence). Failure to give a proper good character direction is a ground of appeal.

**McChleery v R [2019] EWCA Crim 2100**: One ground of appeal was that the judge failed to give a good character direction. The court confirmed this was a separate and significant error, although the appeal was allowed on other grounds.

**Adams, R v [2019] EWCA Crim 1363**: The appellant, aged 77, was of previous good character. His appeal raised the issue of whether the good character direction had been properly given in the context of historical sexual offending (1980s). The court confirmed the two-limb Vye direction remains mandatory for defendants of good character regardless of the passage of time.

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## PART 4: WITNESSES AND TESTIMONY

### 4.1 Sexual History Evidence: YJCEA 1999 s.41

Section 41 of the Youth Justice and Criminal Evidence Act 1999 prohibits cross-examination of rape complainants about their sexual history except with leave of the judge. The four permissible categories for leave are:

- s.41(3)(a): the sexual behaviour is not relevant to any issue of consent but to an issue of identity;
- s.41(3)(b): the behaviour occurred at or about the same time as the event in question;
- s.41(3)(c): the behaviour is so similar it cannot be explained as coincidence;
- s.41(5): leave to rebut defence evidence in cross-examination.

**T, R v [2021] EWCA Crim 318**: In this marital rape appeal, the central issue was whether the complainant's sexual orientation or sexual identification could constitute "sexual behaviour" within the meaning of s.41 YJCEA 1999. The Court of Appeal held that the concept of "sexual behaviour" in s.41 is not unlimited and must be interpreted with the protective purpose of the statute in mind. Evidence of a complainant's sexual identity or orientation fell outside the scope of what could be put without leave under s.41, and the trial judge had been correct to preclude the questions.

**R v Jordan Thomas Campbell [2024] EWCA Crim 159**: The applicant raised, as one ground, criticism of the legislation preventing cross-examination of a complainant on her previous sexual history except with leave. The court dismissed the application, confirming s.41 YJCEA 1999 remains intact and that the statutory restrictions are compliant with the defendant's right to a fair trial (Article 6 ECHR), consistent with the House of Lords analysis in R v A (No 2) [2001] UKHL 25 (not in this corpus).

### 4.2 Vulnerable Witnesses: YJCEA 1999 Special Measures

Part II of the YJCEA 1999 provides special measures for eligible witnesses. Eligibility is based on age (under 18: s.16), mental or physical disability, or fear and distress (s.17). Available measures include screens (s.23), live link (s.24), evidence in private (s.25), removal of wigs and gowns (s.26), video-recorded examination-in-chief (s.27), and video-recorded cross-examination and re-examination (s.28, piloted).

**REGINA v BQC [2021] EWCA Crim 1944**: The Court of Appeal quashed convictions in a case where four complainants (children/young persons) gave evidence. The court's analysis of how the evidence of multiple complainants was managed — including how special measures apply — is illustrative of the interplay between special measures directions and the bad character/propensity admissibility framework. The court allowed the appeal, finding the conviction unsafe in light of errors in the evidence management framework.

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## PART 5: CONFESSIONS AND IMPROPERLY OBTAINED EVIDENCE

### 5.1 PACE 1984 s.76: Confessions

Under PACE s.76, a confession is admissible only if the prosecution can prove beyond reasonable doubt that it was not obtained by oppression (s.76(2)(a)) or in circumstances which were likely to render any confession unreliable (s.76(2)(b)).

"Oppression" within s.76(2)(a) includes torture, inhuman or degrading treatment, and the use or threat of violence (s.76(8)).

**Vinson Ariste v The King (Bahamas) [2023] UKPC 18**: Though a Privy Council case from Bahamas proceedings, this is directly relevant to PACE s.76 principles as the Privy Council applied the same voluntariness doctrine. Ariste was detained for 6 days and confessed to multiple offences including murder. He had no legal representation. Prison medical records documented injuries including multiple abrasions and bruising on transfer. The Privy Council held that the trial court had erred in failing to conduct an adequate voir dire (trial within a trial) to determine voluntariness, and that where a defendant alleges police beating and medical evidence corroborates injuries, a confession cannot be admitted without that inquiry. The court emphasised: a confession obtained by oppression — physical coercion — is inadmissible and its admission renders a conviction unsafe.

### 5.2 PACE 1984 s.78: Exclusion of Unfair Evidence

Section 78 PACE 1984 gives the court a discretion to exclude prosecution evidence if, having regard to all the circumstances including the circumstances in which it was obtained, admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

S.78 is the principal mechanism for excluding confessions obtained in breach of PACE Codes of Practice, and improperly obtained evidence generally (including entrapment evidence in appropriate cases).

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## PART 6: EYEWITNESS IDENTIFICATION

### 6.1 Turnbull Guidelines

The Turnbull guidelines (R v Turnbull [1977] QB 224, Court of Appeal — not in this corpus as a briefed case but referenced extensively in corpus cases) require a judge to:
1. Warn the jury of the special need for caution before convicting on eyewitness identification evidence;
2. Explain why caution is needed (the possibility of honest but mistaken identification);
3. Direct attention to the quality of the identification (ADVOKATE: Amount of time, Distance, Visibility, Obstruction, Known before, Any reason to remember, Time lapse, Error in description);
4. If quality is poor, direct acquittal unless supported by other evidence.

**Crampton, R v [2020] EWCA Crim 1334**: An old indecent assault case turned on identification. The complainant had reported being assaulted as a child in the 1990s; she named the perpetrator as "Mark" and later identified "Mark Crampton" after finding him on Facebook — with no formal PACE Code D video identification procedure. The Court of Appeal examined whether this Facebook identification procedure was compliant with Code D requirements, whether a Turnbull direction was adequate, and whether the whole basis of identification was sufficiently reliable. The case illustrates the interplay between Turnbull safeguards and Code D procedures in modern identification cases.

**Pipersburgh & Anor v The Queen (Belize) [2008] UKPC 11**: The Privy Council confirmed that Turnbull directions on the general dangers of eyewitness identification do not discharge a judge's separate duty to direct the jury on the specific dangers of dock identification without a prior identification parade. The two issues, though related, require distinct directions. This remains the authoritative statement on the distinct Turnbull duties where dock identification is in play.

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## PART 7: PRIVILEGE AND SILENCE

### 7.1 Inferences from Silence: CJPOA 1994 ss.34-37

Sections 34-37 of the Criminal Justice and Public Order Act 1994 permit adverse inferences to be drawn from a defendant's failure to mention facts when questioned (s.34), failure to testify (s.35), failure to account for presence at a place (s.36), and failure to account for objects etc (s.37). A proper caution must have been administered.

The right to silence is heavily qualified but a conviction cannot be based solely or mainly on silence (Condron v UK [2001] 31 EHRR 1; not in this corpus).

**REGINA v GARETH HEAD [2022] EWCA Crim 1294**: The conviction of a police officer for ABH turned partly on the jury's assessment of his account given during the original caution/police encounter. The court's consideration of how the police officer's conduct in the encounter was assessed illustrates the ongoing importance of CJPOA inference provisions even for defendants from within law enforcement.

### 7.2 Prosecution Disclosure: CPIA 1996

**Director of Public Prosecutions, R (on the application of) v Crown Court at Caernarfon & Anor [2019] EWHC 767 (Admin)**: The Administrative Court quashed a Crown Court judge's decision granting a defence s.8 CPIA 1996 disclosure application in a speeding offence appeal. The court confirmed the legal framework for disclosure applications: the duty on the prosecution to disclose material that might reasonably be considered capable of undermining the prosecution case or assisting the defence. The judge had erred in the breadth of material ordered to be disclosed.

**McChleery v R [2019] EWCA Crim 2100**: One ground of appeal related to a failed disclosure application. The Court of Appeal considered whether the trial judge had erred in refusing a defence disclosure application that, if granted, might have altered the defence case materially.

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## KEY STATUTES — ANNOTATED SUMMARY

| Statute | Key Provisions |
|---|---|
| CJA 2003 | ss.98-113 bad character; ss.114-136 hearsay; s.101 defendant gateways; s.100 non-defendant; s.103 propensity |
| PACE 1984 | s.76 confession (oppression/unreliability); s.78 exclusion (unfair evidence); Code D (identification procedures) |
| YJCEA 1999 | ss.16-33 special measures; s.41 sexual history; ss.34-40 competence/compellability |
| CJPOA 1994 | ss.34-37 inferences from silence |
| CPIA 1996 | Prosecution disclosure duties |