A more recent version of these Basic Evidential Principles notes – written by Oxford students – is available here.
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Supervision 5 - Basic Evidential Principles Relevance and admissibility
? Relevance refers to any item of proof that renders more or less probable the existence of a fact in issue in the case (Wilson). o Logical relevance - if it increases or decreased probability of 'x'. o Legal relevance - logical relevance and a 'plus value' that makes the evidence worth considering (Blastland).
? More probative than prejudicial.
? Lord Steyn in Randall: "The question of relevance is typically a matter of degree to be determined, for the most part, by common sense and experience."
? 'Circumstantial' evidence describes evidence of facts relevant to the issue. o Circumstantial evidence can suffice for conviction (McGreevy).
? Evidence of cash or lifestyle admissible in cases of drug trafficking to prove an issue in the case - possession or intent (Gordon). o Such evidence will usually lack probative value in proving possession (Guney - special circumstances here - proximity). o To be admissible to prove intention to supply, evidence has to be logically probative of that intention (Gordon).
? If there are fewer than 8 similar ridge characteristics, it would be exceptional for a judge to admit fingerprint evidence (Buckley). o If there are 8 or more, exercise of judge's discretion to admit such evidence will depend on circumstances of the case. o Stressed that fingerprint evidence is of opinion only.
? Circumstantial evidence describes evidence of fact relevant to the issue.
? Finding items similar to those used in the crime relevant (Reading /
? In civil cases, the judge has to be satisfied that a witness both: is capable of speaking coherently, and understands not only what it means to speak the truth, but also the solemnity of the occasion and the added obligation to speak the truth in a court of law (Hayes).
? Youth Justice and Criminal Evidence Act 1999, governing criminal cases, presumes that everyone is competent to give evidence (s.53(1)). o It is for the party calling the witness to satisfy court that, on balance of probabilities, witness is competent to give evidence (s.54(2)).
? General test in s.53(3): o A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to:
? Understand questions put to him as a witness, and
? Give answers to them that can be understood.
? Age of the witness not determinative (Powell).
?Children should not be deemed less reliable than adults (B). Child's competence may be reviewed after they have given evidence (B). o Henderson argues that this is regrettable.
? Spencer argues that liberal view to child competence is good, worries about cross-examination of children. o Argues for defence using video interviews (Pigot procedure).
? In F, witness had severe learning disabilities but still competent. Liberal.
? Judge will consider ABE interview and consider whether use of intermediaries would assist them in giving best evidence. Compellability
? As a general rule, competent witnesses are treated as compellable. o If they refuse to give evidence, could be liable for contempt of court. o Certain parties, such as diplomatic agents, not compellable in any circumstances.
? Unlike other witnesses, the accused does not enjoy a privilege against self-incrimination (Criminal Evidence Act 1898, s.1(2)).
? There are restrictions on the compellability of an accused's spouse. o Non-compellability rule applies to 'lawfully wedded spouses' but not to those who are merely cohabiting (Hoskyn v MPC).
? Pearce argued for expansion, but this was rejected. o Capable of being abused, but in R (CPS), prisoner who was awaiting trial allowed to marry principal prosecution witness. o PACE, s.80 provides that a wife is compellable in the case of 'specified offences'.
? Specified offences defined in s.80(3).
? Focus is on the nature of the offence, rather than factual circumstances (BA). o S.80 makes clear that, unless husband and wife are jointly charged, wife is both competent and compellable on behalf of the husband (s.80(2)). o Failure of spouse to give evidence should not be commented on by the prosecution (s.80A).
? Judge will direct jury to ignore these comments (Davey). o If in the interests of justice (CJA 2003, s.114(1)(d)), spousal statements made to the police will be admissible (RL). o Desirable to check that wife knows rights of immunity but not mandatory (Nelson). o Brabyn argues for stricter rules of non-compellability. Sworn and unsworn evidence
? A witness may now be sworn unless he is at least 14 years old and has sufficient appreciation of the particular responsibility to tell the truth which is involved in taking an oath (YJCE, s.55(2)).
? Witnesses usually take an oath in the form laid down in Oaths Act 1978, s.1.
? The form of oath or affirmation does not matter. The course of the trial
? In criminal cases, prosecution will usually open the case.
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