The Law of Evidence in England and Wales
Overview of the Law of Evidence
The law of evidence in England and Wales governs the means by which facts may be proved in civil and criminal proceedings. It comprises a body of common law principles, statutory provisions, and procedural rules that determine what material may be placed before a court, how it may be presented, and the weight to be accorded to it. The modern law of evidence reflects a continuous tension between the need for accurate fact-finding and the protection of fundamental rights, with the Human Rights Act 1998 incorporating the European Convention on Human Rights significantly reshaping evidentiary rules, particularly in the criminal context. The Criminal Justice Act 2003 effected major reforms to the law of hearsay and character evidence, while the Civil Evidence Act 1995 liberalised hearsay in civil proceedings. Evidence law is supplemented by the Criminal Procedure Rules and the Civil Procedure Rules, which impose duties of disclosure and case management that profoundly affect how evidence is adduced at trial.
Burden and Standard of Proof
The burden of proof comprises two distinct concepts: the legal burden (also called the persuasive burden), which determines which party must establish a fact in issue to the required standard, and the evidential burden, which requires a party to adduce sufficient evidence to raise an issue fit for judicial consideration. In criminal proceedings, the prosecution bears the legal burden of proving every element of the offence beyond reasonable doubt. The presumption of innocence, protected by Article 6(2) of the European Convention on Human Rights and the Human Rights Act 1998, requires the state to prove guilt without assistance from the defendant. The leading authority is Woolmington v. DPP (1935), in which Viscount Sankey articulated the “golden thread” of English criminal law: that the prosecution must prove the defendant’s guilt, and the defendant is not required to prove innocence. The Woolmington principle admits of exceptions: the defence of insanity must be proved by the defendant on the balance of probabilities, and statutory reverse onus clauses impose the legal burden on the defendant for certain defences. The compatibility of reverse onus provisions with Article 6(2) was considered in R v. Lambert (2002), where the House of Lords held that the Convention requires a proportionate approach, with the court reading down statutory provisions under Section 3 of the Human Rights Act 1998 where necessary to impose only an evidential burden rather than a legal burden on the defendant. In civil proceedings, the standard of proof is the balance of probabilities, and the legal burden generally falls on the party asserting the affirmative of a particular issue, as established by the common law principle that “he who asserts must prove.”
Relevance and Admissibility
The foundational principle of the law of evidence is that evidence must be relevant to be admissible. In DPP v. Kilbourne (1973), Lord Simon defined relevance as evidence that is logically probative or disprobative of some matter requiring proof. The trial judge determines relevance as a question of law, and evidence lacking any rational connection to the facts in issue must be excluded. Even relevant evidence may be excluded under the court’s discretionary power, codified in criminal proceedings by Section 78 of the Police and Criminal Evidence Act 1984 (PACE), which permits exclusion where the admission of evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. In civil cases, the court’s case management powers under the CPR enable the exclusion of evidence that is disproportionate in cost or complexity to the value of the claim. The principle of admissibility is distinct from the weight of evidence: admissible evidence that is weak, unreliable, or contradicted may be admitted but given little weight by the tribunal of fact.
The Rule Against Hearsay and Criminal Proceedings
The rule against hearsay, one of the most complex and contested areas of English evidence law, provides that an out-of-court statement adduced to prove the truth of its contents is inadmissible unless it falls within an exception or a statutory gateway. The common law rule was substantially reformed by the Criminal Justice Act 2003 (CJA 2003) , Sections 114 to 136, which replaced the complex common law exceptions with a simplified framework. Section 114(1) preserves the general exclusionary rule but creates eight statutory gateways for admissibility: (1) by agreement of all parties (Section 114(1)(a)); (2) where the maker of the statement is unavailable to testify and the statement is in a business document (Section 116); (3) where the statement is contained in a business or professional document (Section 117); (4) where the statement is a previous inconsistent or consistent statement of a witness (Section 119–120); (5) for certain common law exceptions preserved by Section 118 (including public information, reputation as to character, and confessions); (6) with the court’s leave where the interests of justice require admission (the residual inclusionary discretion under Section 114(1)(d)); (7) evidence from witnesses who are dead or unfit (Section 116(2)(a)); and (8) through the capacity of the court to stop a case where the evidence is unconvincing (Section 125, requiring the court to stop the case if the hearsay evidence is so unconvincing that a conviction would be unsafe). The CJA 2003 also permits the use of multiple hearsay (Section 121) in limited circumstances. The Criminal Procedure Rules impose notice requirements for hearsay evidence and empower the court to exclude hearsay if the notice requirements are not complied with.
Hearsay in Civil Proceedings
Civil proceedings are governed by the Civil Evidence Act 1995, which abolished the rule against hearsay in civil cases (Section 1(1)) and provides that hearsay evidence is admissible and that its weight is a matter for the court. Section 2 requires a party intending to adduce hearsay evidence to give notice to the other parties, though failure to give notice does not affect admissibility but may be taken into account in relation to costs and weight. Section 4 provides guidance on the weight to be given to hearsay evidence, directing the court to consider the reasonableness of calling the maker of the statement, the contemporaneity of the statement, whether multiple hearsay is involved, and any motive the maker may have had to misrepresent matters. The 1995 Act represents a fundamental departure from the common law’s suspicion of hearsay in civil proceedings, reflecting the Woolf Reforms’ emphasis on proportionate fact-finding over technical rules.
Character Evidence
The Criminal Justice Act 2003, Sections 98 to 113, comprehensively reformed the law of bad character evidence in criminal proceedings. Section 98 defines bad character as evidence of or a disposition towards misconduct, excluding evidence that is connected with the alleged facts of the offence or the investigation or prosecution of the offence. Section 101 sets out seven gateways through which evidence of a defendant’s bad character may be admitted: (1) by agreement of the parties; (2) where the defendant adduces evidence of their own good character; (3) where the evidence has substantial explanatory value for the prosecution’s case, without which the court or jury would find it impossible or difficult to understand the case; (4) where the evidence is relevant to an important matter in issue between the defendant and the prosecution (which includes propensity to commit offences of the kind charged, and propensity to be untruthful); (5) where the evidence has substantial probative value on an important matter in issue between the defendant and a co-defendant; (6) where the evidence corrects a false impression given by the defendant; and (7) where the defendant has made an attack on another person’s character. The court retains a discretion to exclude bad character evidence under Section 101(3) if 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. The gateway for propensity evidence (Section 101(1)(d)) has been the subject of extensive appellate litigation, with the Court of Appeal in R v. Hanson (2005) establishing guidelines for its use.
The Privilege Against Self-Incrimination
The privilege against self-incrimination protects a person from being compelled to provide information that may expose them to criminal prosecution. The privilege is recognised at common law and is reinforced by Article 6 of the ECHR. In criminal proceedings, the privilege gives effect to the right to silence, though adverse inferences may be drawn from a defendant’s failure to mention facts when questioned or charged under Sections 34–37 of the Criminal Justice and Public Order Act 1994, provided the safeguards established in R v. Cowan (1996) and Condron v. United Kingdom (2000) (ECtHR) are observed. In civil proceedings, the privilege is qualified, and Section 14 of the Civil Evidence Act 1968 provides that a person may refuse to answer any question or produce any document tending to incriminate them. However, the Serious Fraud Office’s compulsory questioning powers under Section 2 of the Criminal Justice Act 1987 and the requirement under the Insolvency Act 1986 to provide information may override the privilege, though the use of such compelled statements in subsequent criminal proceedings is restricted, as established by Saunders v. United Kingdom (1996) (ECtHR).
Legal Professional Privilege
Legal professional privilege (LPP) is a fundamental right protecting the confidentiality of communications between lawyers and their clients. It comprises two branches: advice privilege, which protects confidential communications between a lawyer and a client for the purpose of giving or receiving legal advice, and litigation privilege, which protects confidential communications between a lawyer and a third party, or between the lawyer or client and the third party, made for the dominant purpose of litigation that is reasonably in prospect. The scope of advice privilege in the corporate context was significantly narrowed by the House of Lords in Three Rivers (No. 6) (2005), which held that only communications passing between a lawyer and those employees who are authorised to seek and receive legal advice on behalf of the corporate client are covered by advice privilege. This restrictive approach has been criticised for imposing disproportionate burdens on corporate defendants and has been distinguished in subsequent case law. LPP cannot be overridden by statute except by clear express words, and once established, it is absolute and not subject to balancing against competing public interests, as affirmed by the Supreme Court in R (Morgan Grenfell) v. Special Commissioner (2002).
The Rule in Hollington v. Hewthorn and Its Abolition
The rule in Hollington v. Hewthorn (1943) provided that convictions and judgments in previous proceedings were inadmissible as evidence of the facts on which they were founded in subsequent civil proceedings. The rule was based on the principle that findings in earlier proceedings were res inter alios acta (matters between other parties) and that the decision was not based on the same evidence. The rule was widely criticised as productive of injustice and wasteful of court resources, since it required facts to be relitigated. Parliament abolished the rule by Section 11 of the Civil Evidence Act 1968, which provides that a subsisting conviction is admissible in civil proceedings as evidence that the person so convicted committed the offence, though it does not compel the civil court to reach the same conclusion. The previous proceedings merely shift the evidential burden to the convicted person to rebut the inference. Section 12 of the same Act makes similar provision for findings of adultery and paternity in matrimonial proceedings.
The Criminal Cases Review Commission
The Criminal Cases Review Commission (CCRC) , established under the Criminal Appeal Act 1995, is an independent public body responsible for investigating suspected miscarriages of justice in England, Wales, and Northern Ireland. The CCRC exercises the power (formerly vested in the Home Secretary) to refer cases to the Court of Appeal where there is a real possibility that the conviction, verdict, finding, or sentence would not be upheld if the reference were made. The CCRC investigates cases, reviews fresh evidence not available at trial, and may refer a case even if no new evidence has emerged but the original evidence was wrongly evaluated. The CCRC has played a pivotal role in overturning high-profile miscarriages of justice, including the convictions of the Birmingham Six, the Guildford Four, and the Maguire Seven (though these predated the CCRC’s creation, the cases illustrated the need for an independent review mechanism). The CCRC’s effectiveness has been questioned in relation to resource constraints and its approach to reviewing alleged procedural irregularities, but it remains a critical safeguard in the English criminal justice system.