United Kingdom Evidence Law

Overview

English evidence law derives from multiple sources: the common law of evidence as developed through judicial precedent, the Police and Criminal Evidence Act 1984 (PACE) governing the admissibility of confessions and the regulation of police conduct, the Criminal Justice Act 2003 reforming the law of hearsay and bad character, the Youth Justice and Criminal Evidence Act 1999 protecting vulnerable witnesses and restricting sexual history evidence, and the Civil Evidence Act 1995 governing hearsay in civil proceedings. The law is fundamentally structured around the adversarial system, with the judge acting as arbiter of admissibility and the jury (in Crown Court trials) as the tribunal of fact.

Burden and Standard of Proof

The burden of proof is divided between the legal (or persuasive) burden and the evidential burden. The legal burden determines which party must prove a fact in issue, while the evidential burden concerns whether sufficient evidence has been adduced to raise an issue for the tribunal of fact. The landmark decision in Woolmington v DPP [1935] AC 462 established the “golden thread” of English criminal law: the prosecution bears the legal burden of proving every element of the offence beyond a reasonable doubt. The Court held that it is the duty of the prosecution to prove the prisoner’s guilt, subject only to the defence of insanity and to any statutory exceptions. The standard of proof in criminal proceedings is beyond reasonable doubt, while in civil proceedings the standard is the balance of probabilities. Statutory reverse burdens — requiring the defendant to prove a defence on the balance of probabilities — are subject to scrutiny under Article 6(2) of the European Convention on Human Rights (the presumption of innocence) and may be read down under the Human Rights Act 1998.

Hearsay in Criminal Proceedings Under the Criminal Justice Act 2003

The Criminal Justice Act 2003, ss 114–136, comprehensively reformed the hearsay rule in criminal proceedings. Section 114(1) establishes four gateways for the admissibility of hearsay evidence: (a) any statutory provision making hearsay admissible; (b) any common law rule preserved by the Act, including admissions and certain common law categories such as public information and reputation as to character; (c) agreement of all parties to the proceedings; and (d) the inclusionary discretion where it is in the interests of justice to admit the hearsay statement. The inclusionary discretion under s 114(2) requires the court to consider a range of factors, including the probative value of the statement, its reliability, the availability of the declarant for cross-examination, the difficulty of challenging the statement, and the extent to which it would be possible to controvert the statement with other evidence.

Section 116 provides for the admissibility of hearsay where a witness is unavailable, including death, illness, being outside the United Kingdom and not reasonably practicable to secure attendance, fear, or the witness’s refusal to give evidence despite being compelled. Section 117 governs business and other documents analogous to the common law business records exception. Sections 119–120 address the use of previous inconsistent and consistent statements by witnesses. Section 124 preserves the right to challenge the credibility of the hearsay declarant by permitting the introduction of evidence that would have been admissible had the declarant testified.

Under s 78 of PACE, the court retains the discretion to exclude hearsay evidence if its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Additionally, Article 6 of the ECHR, particularly Article 6(3)(d) guaranteeing the right to examine witnesses, may require exclusion or the drawing of adverse inferences where the sole or decisive evidence against a defendant is hearsay.

Hearsay in Civil Proceedings Under the Civil Evidence Act 1995

The Civil Evidence Act 1995 took a radically different approach: s 1 abolished the rule against hearsay in civil proceedings altogether. Hearsay evidence is admissible, and its weight is determined by the court according to the circumstances from which any inference may reasonably be drawn. Section 4 provides a non-exhaustive list of factors relevant to weight, including whether it would have been reasonable and practicable for the party to call the original declarant, whether the statement was made contemporaneously with the events, the motive of the declarant, and whether the statement is multiple hearsay. Procedural safeguards require a party intending to adduce hearsay to give notice to the other parties, with failure to do so affecting weight but not admissibility.

Confessions Under PACE s 76

Confessions are governed by PACE s 76, which establishes a specific exclusionary regime. Section 76(1) provides that a confession is admissible against its maker unless it was obtained by oppression (s 76(2)(a)) or in circumstances likely to render it unreliable (s 76(2)(b)). Section 76(8) defines oppression as including torture, inhuman or degrading treatment, and the use or threat of violence. The broader ground under s 76(2)(b) — likely to render the confession unreliable — goes beyond oppression to include improper questioning, inducements, or any circumstance that might cause the accused to confess when the confession is not true.

Upon challenge by the defence, the prosecution must prove beyond a reasonable doubt that the confession was not obtained in violation of s 76(2). This determination occurs in a voir dire (a trial within a trial) held in the absence of the jury. Even if a confession passes the s 76 test, the court retains discretion under s 78 of PACE to exclude it if its admission would be unfair to the proceedings.

Adverse Inferences from Silence Under the Criminal Justice and Public Order Act 1994

The Criminal Justice and Public Order Act 1994, ss 34–37, permits the drawing of adverse inferences from the accused’s silence in four circumstances: s 34 — failure to mention facts when questioned or charged which the accused later relies on in court; s 35 — failure to testify at trial; s 36 — failure to account for objects, substances, or marks; and s 37 — failure to account for presence at a particular place. The inferences that may be drawn include that the accused had no answer to the allegation or fabricated the explanation subsequently. The Act preserves the right to silence in substance but attaches consequences to its exercise. Section 34 requires the court to consider whether, in light of the circumstances existing at the time of questioning, the accused could reasonably have been expected to mention the fact relied upon. The Condron guideline requires the judge to direct the jury on the proper approach to inferences, and no inference may be drawn unless the prosecution has first established a prima facie case.

Character Evidence Under the Criminal Justice Act 2003

The Criminal Justice Act 2003, ss 98–113, created a comprehensive statutory framework for evidence of bad character. Section 98 defines bad character broadly as evidence of, or of a disposition towards, misconduct, excluding evidence that has to do with the alleged facts of the offence or is evidence of misconduct in connection with the investigation or prosecution.

Section 101 establishes seven gateways through which evidence of the defendant’s bad character may be admitted: (a) all parties agree; (b) the evidence is adduced by the defendant himself; (c) it is important explanatory evidence; (d) it is relevant to an important matter in issue between the defendant and the prosecution (including propensity and credibility); (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant; (f) it corrects a false impression given by the defendant; and (g) the defendant has attacked another person’s character.

Gateway (d) is the most litigated. It permits proof of propensity to commit offences of the kind charged and propensity to be untruthful. Section 103 provides guidance, stating that a defendant’s propensity to commit offences of the kind with which he is charged may be established by evidence of convictions for offences of the same description or category. The court must exclude such evidence under s 101(3) if its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted.

Section 100 restricts the bad character of non-defendants, requiring that such evidence be admissible only if it is important explanatory evidence or has substantial probative value in relation to a matter in issue, and that a substantial probative value outweighs the risk of prejudice.

Sexual History Evidence Under the Youth Justice and Criminal Evidence Act 1999

Section 41 of the Youth Justice and Criminal Evidence Act 1999 severely restricts the admissibility of evidence concerning the sexual behaviour of complainants in sexual offence trials. The provision was enacted to prevent the historical misuse of sexual history evidence for discrediting complainants through prejudicial stereotyping. Evidence of the complainant’s previous sexual behaviour is inadmissible except through specific gateways, including where the behaviour is so similar to the alleged offence that it cannot reasonably be explained as coincidence, or where the evidence is necessary to rebut prosecution evidence about the complainant’s sexual behaviour. The section has been subject to interpretation and refinement, including the House of Lords decision in R v A (No 2) [2001] UKHL 25, which held that s 41 must be read compatibly with Article 6 of the ECHR to permit admission of evidence necessary for a fair trial.

Privilege Against Self-Incrimination and Legal Professional Privilege

The privilege against self-incrimination entitles a person to refuse to answer questions or provide documents that might expose them to criminal sanctions. The privilege is protected under Article 6 ECHR and has been limited in certain contexts, including regulatory investigations and corporate crime. Legal professional privilege encompasses two categories: legal advice privilege, protecting confidential communications between lawyer and client for the purpose of legal advice; and litigation privilege, protecting communications between lawyer, client, and third parties made for the dominant purpose of pending or contemplated litigation.

Witnesses: Competence, Compellability, and Examination

All persons are presumed competent to give evidence, though the Youth Justice and Criminal Evidence Act 1999 establishes special measures for vulnerable witnesses, including children and those with mental or physical disabilities, allowing for screens, video-recorded evidence-in-chief, and live video links. The accused is not competent for the prosecution. Examination proceeds through three stages: examination-in-chief (questioning by the calling party, generally limited to non-leading questions), cross-examination (questioning by the opposing party, permitting leading questions and directed at undermining the witness’s credibility or adducing contrary evidence), and re-examination (limited to matters arising from cross-examination).

Corroboration and Identification Evidence

The common law requirement for corroboration warnings has been largely abolished, though the court retains discretion to warn the jury about relying on the evidence of potentially unreliable witnesses such as accomplices or complainants in certain cases. The Turnbull guidelines, established in R v Turnbull [1977] QB 224, impose a specific procedural obligation on judges in cases dependent wholly or substantially on identification evidence. The judge must warn the jury of the special need for caution, direct them to examine the circumstances of the identification closely, and may invite the jury to consider the absence of a Turnbull compliant identification procedure under PACE Code D. Where the identification evidence is poor or unsupported, the judge must withdraw the case from the jury unless there is other substantial evidence.