|
|
|
xix | |
|
|
|
xl | |
|
Table of statutory instruments |
|
|
xlviii | |
|
Table of international instruments |
|
|
xlix | |
| Introductory remarks on the law of evidence |
|
1 | (12) |
|
Origins of a `law of evidence' |
|
|
2 | (2) |
|
Properties of the law of evidence |
|
|
4 | (8) |
|
|
|
12 | (1) |
|
1 Relevance and admissibility of evidence |
|
|
13 | (51) |
|
The respective functions of judge and jury |
|
|
14 | (4) |
|
|
|
18 | (4) |
|
Lifestyle evidence and drugs charges |
|
|
19 | (2) |
|
|
|
21 | (1) |
|
The so-called `best evidence principle' |
|
|
22 | (1) |
|
Matters of which proof is unnecessary |
|
|
23 | (5) |
|
|
|
23 | (5) |
|
|
|
28 | (1) |
|
Judicial findings as evidence |
|
|
28 | (10) |
|
|
|
28 | (4) |
|
Defence evidence of previous acquittals |
|
|
32 | (1) |
|
Convictions of non-defendants as evidence of commission of offences: Police and Criminal Evidence Act 1984, s 74 |
|
|
33 | (5) |
|
Prejudicial evidence, unfairly obtained evidence, and suspect witnesses |
|
|
38 | (19) |
|
Judicial discretion to exclude relevant evidence |
|
|
38 | (1) |
|
Discretion to exclude evidence in criminal cases |
|
|
38 | (9) |
|
Discretion to exclude evidence in civil cases |
|
|
47 | (2) |
|
Judicial discretion in criminal cases to warn of the dangers of relying on the evidence of suspect witnesses: Makanjuola directions and cell confessions |
|
|
49 | (8) |
|
Evidence excluded as a matter of public policy |
|
|
57 | (5) |
|
Intercepted communications: Investigatory Powers Act 2016 |
|
|
57 | (5) |
|
|
|
62 | (1) |
|
|
|
63 | (1) |
|
2 Presumptions and the burden of proof |
|
|
64 | (44) |
|
Criminal and civil burdens of proof |
|
|
65 | (1) |
|
The `legal burden of proof and the evidential burden' |
|
|
66 | (2) |
|
|
|
68 | (1) |
|
The prosecution's legal burden of proof in criminal cases |
|
|
69 | (2) |
|
When the defendant in a criminal case bears the legal burden of proof |
|
|
71 | (6) |
|
Exceptions to the general rule: at common law: the defence of insanity imposes a burden of proof on the accused |
|
|
71 | (1) |
|
Exceptions to the general rule: statute may expressly decree that the defence bears the legal burden of proof |
|
|
72 | (1) |
|
Exceptions to the general rule: statute may impliedly cast the burden of proof on the defendant |
|
|
73 | (4) |
|
|
|
77 | (2) |
|
|
|
79 | (3) |
|
The judge's `invisible burden' |
|
|
82 | (3) |
|
The burden of proof when establishing the admissibility of evidence |
|
|
85 | (1) |
|
Presumptions and the incidence of the burden of proof |
|
|
86 | (1) |
|
Reversal of the burden of proof and the European Convention on Human Rights |
|
|
86 | (20) |
|
R v Lambert and the `reading down' of reverse burdens of proof |
|
|
90 | (2) |
|
Reverse burdens of proof after R v Lambert |
|
|
92 | (3) |
|
R v Lambert, R v Johnstone, and Sheldrake v DPP |
|
|
95 | (2) |
|
Criminal offences properly so-called and regulatory legislation |
|
|
97 | (1) |
|
The utility of human rights instruments other than the European Convention |
|
|
98 | (5) |
|
Statutes that create irrebuttable presumptions |
|
|
103 | (1) |
|
Statutes that impose strict liability |
|
|
103 | (2) |
|
|
|
105 | (1) |
|
|
|
106 | (1) |
|
|
|
106 | (2) |
|
3 Witnesses: competence, compellability, and various privileges |
|
|
108 | (34) |
|
The competence of witnesses in civil and criminal cases |
|
|
109 | (2) |
|
Competence to testify in a civil case |
|
|
109 | (1) |
|
Competence to testify in a criminal case |
|
|
109 | (2) |
|
The compellability of witnesses |
|
|
111 | (8) |
|
|
|
112 | (1) |
|
The accused's spouse or civil partner |
|
|
113 | (6) |
|
Sworn and unsworn evidence |
|
|
119 | (1) |
|
Privileges enjoyed by certain classes of witness |
|
|
120 | (16) |
|
The privilege against self-incrimination |
|
|
120 | (3) |
|
Legal professional privilege |
|
|
123 | (11) |
|
Common interest privilege |
|
|
134 | (1) |
|
`Without prejudice' privilege |
|
|
135 | (1) |
|
|
|
136 | (4) |
|
|
|
140 | (1) |
|
|
|
140 | (2) |
|
4 The course of the trial |
|
|
142 | (53) |
|
|
|
143 | (1) |
|
|
|
143 | (1) |
|
The judge's right to call a witness |
|
|
144 | (1) |
|
|
|
145 | (1) |
|
|
|
146 | (4) |
|
|
|
146 | (1) |
|
Hostile witnesses and unfavourable witnesses |
|
|
147 | (3) |
|
|
|
150 | (8) |
|
Issue and credit, and the principle of collateral finality |
|
|
153 | (5) |
|
|
|
158 | (1) |
|
Calling evidence relating to witnesses' veracity |
|
|
158 | (5) |
|
The Crown's right to reopen its case |
|
|
163 | (2) |
|
Special protections extended to various classes of witness in criminal cases |
|
|
165 | (27) |
|
Restrictions on the cross-examination of sexual complainants on their previous sexual histories |
|
|
165 | (12) |
|
Protection of sexual complainants, child witnesses, and others from cross-examination by the defendant in person |
|
|
177 | (1) |
|
The provision made for assisting the vulnerable at trial before the Crown Court or the Magistrates' Courts |
|
|
178 | (1) |
|
`Special measures directions' available to assist vulnerable and intimidated witnesses |
|
|
178 | (14) |
|
Vulnerable witnesses and parties in civil proceedings |
|
|
192 | (1) |
|
|
|
192 | (2) |
|
|
|
194 | (1) |
|
5 Witnesses' previous consistent statements and the remnants of the rule against narrative |
|
|
195 | (25) |
|
The rule excluding previous consistent statements |
|
|
195 | (20) |
|
Exception 1: complaints by victims of crime (Criminal Justice Act 2003, s 120(4), (7), and (8)) |
|
|
196 | (8) |
|
Exception 2: rebutting suggestions of concoction or afterthought (Criminal Justice Act 2003, s 120(2)) |
|
|
204 | (2) |
|
|
|
206 | (1) |
|
Exception 4: previous statements of a party identifying or describing a person, object, or place (Criminal Justice Act 2003, s 120(5)) |
|
|
207 | (1) |
|
Exception 5: supplementing deficiencies in the memory of witnesses (Criminal Justice Act 2003, ss 139 and 120(6)) |
|
|
208 | (7) |
|
Evidence-in-chief delivered by video recording (Criminal Justice Act 2003, s 137) |
|
|
215 | (1) |
|
Statements made by the accused when first taxed with incriminating facts |
|
|
216 | (1) |
|
Statements made by the accused when incriminating articles are recovered |
|
|
217 | (1) |
|
|
|
218 | (1) |
|
|
|
218 | (2) |
|
6 Character and credibility |
|
|
220 | (18) |
|
|
|
220 | (1) |
|
The concept of `credibility' |
|
|
221 | (1) |
|
Bringing out the character of the parties and their witnesses |
|
|
222 | (4) |
|
Evidence relating to the character of one's own witness |
|
|
222 | (3) |
|
Evidence relating to the character of one's opponent's witness |
|
|
225 | (1) |
|
Introducing evidence of non-defendants' bad character: Criminal Justice Act 2003, s 100 |
|
|
226 | (10) |
|
The defendant who alleges that a third party was the true culprit |
|
|
236 | (1) |
|
|
|
237 | (1) |
|
|
|
237 | (1) |
|
7 Evidence of the defendant's good character in criminal cases |
|
|
238 | (12) |
|
Evidence of the defendant's good character |
|
|
238 | (10) |
|
What constitutes admissible character evidence? |
|
|
239 | (1) |
|
When will a defendant be considered of good character? |
|
|
239 | (2) |
|
The form of the good character direction |
|
|
241 | (6) |
|
Consequences of a defendant adducing evidence of good character |
|
|
247 | (1) |
|
Is evidence of the good character of prosecution witnesses ever admissible? |
|
|
248 | (1) |
|
|
|
249 | (1) |
|
|
|
249 | (1) |
|
8 Evidence of the defendant's bad character |
|
|
250 | (76) |
|
Whether or not to admit evidence of a defendant's misconduct on other occasions |
|
|
251 | (4) |
|
I The admission of evidence of a defendant's bad character in criminal cases: Pt 11 of the Criminal Justice Act 2003 |
|
|
255 | (66) |
|
Two important classes of situation that fall outside the bad character provisions |
|
|
256 | (3) |
|
Judicial discretion to exclude technically admissible bad character evidence |
|
|
259 | (2) |
|
What constitutes evidence of `bad character'? |
|
|
261 | (4) |
|
Acquittals may be admissible as `evidence of bad character' |
|
|
265 | (3) |
|
When is evidence of a defendant's bad character admissible under the 2003 Act? |
|
|
268 | (2) |
|
Situations in which bad character evidence becomes admissible under s 101: the seven gateways |
|
|
270 | (43) |
|
Contaminated evidence (s 107) |
|
|
313 | (1) |
|
The court's duty to give reasons for rulings on matters affecting bad character (s 110) |
|
|
314 | (1) |
|
|
|
314 | (1) |
|
Jointly charged offences treated as separate proceedings (s 112(2)) |
|
|
315 | (1) |
|
Appealing against trial court rulings and directions on bad character |
|
|
316 | (1) |
|
Surviving legislation allowing the Crown to adduce evidence of a defendant's wrongdoing and bad character |
|
|
317 | (3) |
|
|
|
320 | (1) |
|
II Similar fact evidence in civil cases |
|
|
321 | (2) |
|
|
|
323 | (1) |
|
|
|
324 | (2) |
|
9 The opinion rule and the presentation of expert evidence |
|
|
326 | (33) |
|
The general rule excluding evidence of opinion |
|
|
326 | (1) |
|
Four exceptions to the opinion rule born of necessity |
|
|
327 | (1) |
|
The principal exception to the opinion rule: expert opinion |
|
|
328 | (29) |
|
Who may qualify as an expert witness? |
|
|
331 | (5) |
|
Matters on which an expert may deliver opinion evidence |
|
|
336 | (1) |
|
The expert's field of expertise |
|
|
336 | (2) |
|
Particular problems posed by opinion evidence proffered by psychiatrists, psychologists, et simil |
|
|
338 | (3) |
|
Cut-throat defences, and psychological and psychiatric opinion evidence |
|
|
341 | (1) |
|
The expert witness and the ultimate issue |
|
|
342 | (1) |
|
Experts do not testify only to matters of opinion |
|
|
342 | (1) |
|
Expert evidence and the hearsay rule |
|
|
343 | (2) |
|
Expert opinion evidence in civil cases |
|
|
345 | (2) |
|
Expert opinion evidence in criminal cases |
|
|
347 | (1) |
|
Scientific evidence: the presentation of DNA evidence |
|
|
348 | (6) |
|
Scientific evidence: the presentation of Bayes' theorem and instructing the jury in mathematical probabilities |
|
|
354 | (3) |
|
|
|
357 | (1) |
|
|
|
358 | (1) |
|
10 The rule against hearsay |
|
|
359 | (68) |
|
The rationale underlying a rule against hearsay |
|
|
359 | (2) |
|
I Hearsay in criminal cases |
|
|
361 | (60) |
|
Defects in the rule against hearsay prior to the enactment of the Criminal Justice Act 2003 |
|
|
361 | (4) |
|
What constitutes hearsay evidence under the Criminal Justice Act 2003? |
|
|
365 | (5) |
|
Exceptions to the rule against hearsay (s 114) |
|
|
370 | (32) |
|
Admissibility of `multiple hearsay' (s 121) |
|
|
402 | (2) |
|
Testing the credibility of makers of statements who do not testify (s 124) |
|
|
404 | (1) |
|
Stopping the case in which hearsay evidence is unconvincing (s 125) |
|
|
405 | (1) |
|
The court's discretion to exclude evidence in the interest of case management (s 126) |
|
|
406 | (1) |
|
Other statutory exceptions to the hearsay rule (s 114(1)(a)) |
|
|
407 | (2) |
|
Human rights law, the rule against hearsay, and its exceptions (Art 6(3)(d)) |
|
|
409 | (8) |
|
Anonymous witnesses: Coroners and Justice Act 2009, ss 86--96 |
|
|
417 | (4) |
|
II Hearsay in civil proceedings |
|
|
421 | (4) |
|
|
|
425 | (1) |
|
|
|
425 | (2) |
|
|
|
427 | (40) |
|
What constitutes a `confession' under PACE, s 82(1)? |
|
|
429 | (1) |
|
At common law, an accused's silence may amount to an admission |
|
|
430 | (2) |
|
Can a denial ever amount to a `confession' under PACE, s 82(1)? |
|
|
432 | (3) |
|
The conditions of admissibility of confessions under PACE |
|
|
435 | (16) |
|
A confession must be excluded if it has been obtained by oppression: PACE, s 76(2)(a) |
|
|
438 | (1) |
|
A confession must be excluded if it has been made in consequence of things said or done that might render it unreliable: PACE, s 76(2)(b) |
|
|
439 | (3) |
|
A confession may be excluded if its admission might reflect adversely on the fairness of the proceedings: PACE, s 78 |
|
|
442 | (9) |
|
A confession may be excluded under the common law discretion retained in PACE, s 82(3) if the prejudicial effect of admitting it is likely to exceed its probative value |
|
|
451 | (1) |
|
What if the accused, having first made an inadmissible confession, later makes a further confession that is obtained by proper methods? |
|
|
451 | (1) |
|
Confessions made by mentally handicapped persons: PACE, s 77 |
|
|
452 | (1) |
|
The admissibility of evidence discovered in consequence of an inadmissible confession |
|
|
453 | (1) |
|
Using an inadmissible confession to show that the accused speaks, writes, or expresses himself in a particular way |
|
|
454 | (1) |
|
The status of `mixed statements' |
|
|
454 | (1) |
|
An accused's statement to the police is not normally evidence against another co-accused |
|
|
455 | (3) |
|
An accused's right to use his co-accused's confession: PACE, s 76A |
|
|
458 | (4) |
|
Confessions by third parties, the prosecution, and the hearsay rule |
|
|
462 | (2) |
|
|
|
464 | (1) |
|
|
|
465 | (2) |
|
12 Drawing adverse inferences from a defendant's omissions, lies, or false alibis |
|
|
467 | (44) |
|
I Inferences drawn from the defendant's silence |
|
|
468 | (4) |
|
Erosion of English law's traditional right of silence |
|
|
468 | (2) |
|
The right of silence and European human rights law |
|
|
470 | (2) |
|
II The silence provisions of the Criminal Justice and Public Order Act 1994 |
|
|
472 | (33) |
|
Section 34: the effect of the defendant's failure to mention facts when questioned or charged |
|
|
472 | (2) |
|
Failure to mention facts following legal advice |
|
|
474 | (7) |
|
Section 34 applies only to facts upon which the defendant subsequently relies at trial |
|
|
481 | (3) |
|
Directing the jury on s 34 |
|
|
484 | (5) |
|
Inferences stemming from failures occurring after the police have sufficient evidence to charge a suspect |
|
|
489 | (2) |
|
Section 36: the effect of a defendant's failure or refusal to account for objects, substances, or marks |
|
|
491 | (1) |
|
Section 37: the effect of a defendant's failure or refusal to account for his presence in a particular place |
|
|
492 | (1) |
|
Section 35: drawing an adverse inference when the defendant elects not to give evidence at trial |
|
|
493 | (5) |
|
The silence provisions: an envoi |
|
|
498 | (1) |
|
The effect of a defendant's silence at common law |
|
|
499 | (1) |
|
The right of silence and evidence obtained under compulsion |
|
|
500 | (5) |
|
III Inferences drawn from lies told by the defendant: Lucas directions |
|
|
505 | (3) |
|
IV Inferences drawn from false alibis put forward by the defendant |
|
|
508 | (1) |
|
|
|
509 | (1) |
|
|
|
510 | (1) |
|
13 Identification evidence |
|
|
511 | (32) |
|
The inherent unreliability of evidence of identification |
|
|
511 | (1) |
|
The Court of Appeal's decision in Turnbull |
|
|
512 | (12) |
|
Cases that must be withdrawn from the tribunal of fact |
|
|
513 | (2) |
|
The need to deliver a warning in the summing-up: the Turnbull direction |
|
|
515 | (9) |
|
Identification procedures and PACE Code D |
|
|
524 | (6) |
|
When must an identification procedure be held? |
|
|
525 | (5) |
|
Code D and the various methods of identification |
|
|
530 | (9) |
|
`Voice identification parades' |
|
|
532 | (1) |
|
|
|
532 | (2) |
|
|
|
534 | (1) |
|
Identifications made from photographs and videotape |
|
|
534 | (5) |
|
Other assorted means of identification, including tracker dogs |
|
|
539 | (1) |
|
|
|
540 | (1) |
|
|
|
541 | (2) |
| Index |
|
543 | |
