In criminal trials for serious offences a judge still sits with a jury. The Law of Evidence determines the role which each plays. The division of functions is not entirely clear-cut. The basic rule is that law is for the judge and fact for the jury. Decisions about the admissibility of evidence are taken by the judge even when they hinge on questions of fact.

The Law of Evidence was originally almost entirely judge-made. However, increasingly the legislature has intruded into this area of the law and the study of Evidence, like the study of most legal subjects, requires a familiarity with both the common law and statute law. The most important statutory provisions which we shall be studying are contained within the Criminal Justice Act 1988, the Criminal Evidence Act 1898 and the Police and Criminal Evidence Act 1984 and the Criminal Justice and Public Order Act 1994, Civil Evidence Act 1995 and the Youth Justice and Criminal Evidence Act 1999 and the Criminal Justice Bill 2003.  As a general proposition the Law of Evidence is the same for civil and criminal disputes, although both the common law and statutes have made certain changes to the rules as they apply in criminal proceedings.

For example, the standard of proof is more demanding in criminal proceedings, the reception and evaluation of evidence is more stringently regulated and limits have been set on the permissible scope of cross-examination of the accused if he decides to go into the witness box.  The Law of Evidence has been fashioned to accommodate the adversarial system in which it operates. The rules assume that the parties have responsibility for determining the evidence to be presented to the court. If the adversarial system were to go the rationale for many of the rules would disappear.   In the last few decades there has been considerable reform of the Law of Evidence. The pressure for reform is continuing. The trend is towards greater admissibility; of limiting the scope and operation of the various exclusionary rules with the goal of creating a rational body of rules and principles to aid the court to discover the truth about the facts in dispute.

The Evidential Burden

In order to attempt to discharge the legal burden of proving each ultimate fact, the party making the claim – the prosecutor or the plaintiff – adduces evidence. Several witnesses might be called and each will likely be cross examined by the defendant. Other evidence may be adduced in some other way. At the end of the plaintiff/prosecutor’s case, the case closes. The plaintiff/prosecutor will announce to the court that that is all the evidence that the plaintiff/prosecutor will call and that the case is closed.

This is an important juncture in the trial. At this point it is impossible to tell whether the plaintiff/prosecutor has discharged the legal burden of proof in connection with each ultimate issue. This is because the evidence is not weighed at this stage. You have to wait until the end of the trial to make that determination. However, it is possible to tell whether the plaintiff/prosecutor has discharged the evidential burden of proof in relation to each ultimate fact.

Easier for the prosecution to discharge the legal burden of proof

Another reason for placing only an evidential burden on the defence is that it is easier for the prosecution to discharge the legal burden of proof. The prosecution dictates the nature of the proceedings, and it has far greater resources than the defendant to further them and bring them to a successful conclusion. The prosecution employs professional investigators to detect crime and gather evidence; it has scientific resources unavailable to most defendants and the manpower to conduct detailed and lengthy inquiries. It has legal advisers to shape the charges to fit the evidence. Innocent people are not generally concerned to prove their innocence until called upon to do so, and by then it may be too late to collect the necessary evidence. The defendant’s access to physical evidence may be restricted, as where the prosecution has destroyed all available samples during testing or has failed to collect samples at all. To know that your state of mind was an innocent one is not the same as being able to prove that that was the case.

Easier for a defendant to discharge the burden:

Their reason was that sometimes it would be easier for a defendant to discharge that burden than for the prosecution to prove that the preparation was in a form not permitted by the statute, for example, where there was evidence that the defendant had possessed the substance but where he had refused to surrender it for examination .

The civil standard of proof

Lord Denning, in Miller v. Minister of Pensions, said of the civil standard: ‘If the tribunal of fact thinks it more probable than not, the burden is discharged’. A 51% probability is sufficient to discharge the civil burden of proof. There are recognized exceptions to the general rule in civil cases where either the criminal standard or a standard higher than the normal civil standard of proof will be applied:

  1. The standard of proof in committal proceedings for civil contempt of court is beyond reasonable doubt .
  2. By virtue of a statutory requirement: for example under the Royal Warrant Act 1949, where an application is made for a war pension, the Minister must be satisfied beyond reasonable doubt that the C’s application is not supported by the evidence (Judd v. Minister of Pensions and National Insurance.
  3. Where a serious allegation of crime is made in the context of civil proceedings, it has been suggested that a higher standard of proof is appropriate (Thurtell v. Beaumont). Hornal v. Neuberger Products Ltd is today regarded as more authoritative. That case suggests that the civil standard will always be the appropriate one, however serious the allegation.
  4. It has been held that evidence capable of rebutting the presumption of the validity of a marriage must be strong, distinct and satisfactory (Piers v. Piers) or even evidence which satisfies beyond reasonable doubt .

The criminal standard of proof

  1. Where the legal burden lies with the prosecution, the criminal standard of proof, beyond reasonable doubt, applies.
  2. where, exceptionally, the defendant bears a legal burden by raising a defence such as diminished responsibility or insanity, he need only discharge that legal burden to the civil standard, proof on a balance of probabilities .
  3. Explained both standards of proof. Of the criminal standard he said: ‘If the evidence is so strong against a man as to leave only a remote possibility in his favour the case is proved beyond reasonable doubt’.
  4. Judges must be careful in directing juries as to the meaning of the term proof beyond reasonable doubt . The prudent judge will adopt the wording in R v. summers that the jurors must be satisfied so that they feel sure where they feel an explanation of the term is necessary.

For example, it would be a necessary feature of the law if it were accepted that, in Dworkin’s words, ‘people have a profound right not to be convicted of crimes of which they are innocent’. Do our politicians, or even our judges, recognise a basis of principle rather than policy for this rule? The story of the exceptions to it does not provide an encouraging answer. They pointed out that in the typical case under the existing law, where the essence of the offence is that the offender has acted with blameworthy intent and the defence that the defendant must prove is that he acted innocently, it was disgusting to principle that a court, left in doubt as to the defendant’s intent, should be bound to convict. Although a just result appears to have been reached on the facts in R. v. Hunt, the decision has been criticized for the effect that it may have had on the Woolmington principle. One problem is its assumption that an implied allocation of an issue to the defendant involves a legal, rather than an evidential, burden. But the main thrust of the criticism is that it failed to establish a clearly defined rule of limited application to allow for implied statutory exceptions to Woolmington. Instead, it established a broad rule that allows an uncertain range of policy criteria to be adopted by the courts in their interpretation of legislation. The effect has been to authorise judicial policy making under the appearance of statutory interpretation. This significantly undermines Woolmington, because it makes it possible for judges to adopt utilitarian policies that ignore, or at any rate give less weight to, the principles that justify placing the burden of proof on the prosecution . The strength of this criticism has been weakened by the way in which the European Convention has been interpreted. The European Court of Human Rights, the House of Lords and the Court of Appeal have accepted that where a reverse burden question arises, judges may have to take into account such considerations as the threat faced by society that the legislation was designed to correct, and the right balance to be struck between the interests of the individual and those of society.

The suggestion that judges ought not to concern themselves with public policy sounds increasingly like an argument from another world, but there is at least one argument that can be used to enforce the principle contained in Art 6(2). The effect of s 35 of the Criminal Justice and Public Order Act 1994 has been to put defendants under greater pressure to offer an explanation where prima facie evidence of an offence has been adduced. The former disadvantage of the prosecution where the defendant had special knowledge may now have been substantially reduced, if not removed altogether. If a reverse burden is thereby made unnecessary, it is difficult to see how it could be supported if a breach of Art 6(2) is alleged.

Basic Principles of the Evidence

The Act deals with Relevancy of Facts, Mode of Proof and Production and Effect of Evidence. The following principles are called the basic principles and The exceptions to the above principles, the exact application has been set out very clearly in the Act:

  1. Evidence must be confined to the matters in issue.
  2. Hearsay evidence may not be admitted.
  3. The best evidence must be given in all cases.
  4. All facts having rational probative value are admissible in evidence ,unless excluded by a positive rule of paramount importance.