1

Evidential
issues within
the trial process

Revision checklist
Essential points you should know:
What, precisely, is meant by the term evidence
The different forms of evidence which may be presented at trial
The evidential concepts of relevance, admissibility and weight, and the
relationship between them
The concepts of burden of proof and standard of proof
The use of presumptions and judicial notice

M01_TAYL2940_03_SE_C01.indd 1

3/31/14 4:24 PM

1 EVIDENTIAL ISSUES WITHIN THE TRIAL PROCESS

Topic map

A printable version of this map is available from www.pearsoned.co.uk /lawexpress

2

M01_TAYL2940_03_SE_C01.indd 2

3/31/14 4:24 PM

SAMPLE QUESTION

Introduction
Evidence is not just anything you think might help win the case.
We are all familiar with the principle of evidence being used to prove whether someone
has committed an offence, but this is not a haphazard process of each side putting
before the court anything and everything that might help in winning the case. There are
strict rules which govern what material may be adduced in evidence and the purpose
for which it is put forward. Before examining the detailed law of evidence, however,
you must understand some of the underlying principles affecting the presentation of
evidence within the trial process.

ASSESSM ENT A DV IC E
In an examination, it is unlikely that you would face a question on any single topic
covered in this chapter (with the possible exception of burden and standard of proof),
but you might be asked to outline two or more as parts of a discuss two from the
following style of question. In each case, the examiner will be looking for a firm grasp
of the basic principles which will be used to underpin your understanding of other
aspects of the law of evidence.
Because of the fundamental importance of these principles, you may also find that they
feature as a small part of a question which centres on one of the more substantive
topics, such as character or hearsay evidence. By recognising that such issues are a
central feature of the trial process and mentioning them as they arise, you will be
demonstrating your broader understanding of the law of evidence and the examiner
will give you credit for this.

Sample question
Could you answer this question? Below is a typical essay question that could arise on this
topic. Guidelines on answering the question are included at the end of this chapter, whilst a
sample problem question and guidance on tackling it can be found on the companion
website.

M01_TAYL2940_03_SE_C01.indd 3

3/31/14 4:24 PM

1 EVIDENTIAL ISSUES WITHIN THE TRIAL PROCESS

ESSAY QUESTIO N
The concepts of relevance, admissibility and weight are central to the trial.
Assess how they interact to ensure the quality of evidential process.

Facts in issue
The central task of the trial process is to determine the facts in issue the facts
which each side must prove to win the case. To do this, each side must adduce evidence
in support of their case. For example, in a criminal case, the prosecution must satisfy
the various elements of the offence in question such as in a murder trial where it must
be proved that the accused killed the victim with the requisite mens rea of malice
aforethought. In such a case, the prosecution must adduce sufficient evidence to convince
the jury that the accused (rather than someone else) did kill the victim and that they did it
with the intent to kill or to cause grievous bodily harm. Similarly, in a civil claim for
negligence, the facts in issue may be the existence of a duty of care, the breach of that
duty and the resultant damage.

Forms of evidence
When we hear the term evidence, our first thought is usually of the witness answering
questions in court; however, this is only one form of evidence which may be presented to the
court. There are a number of types of evidence, each with distinctive features. These include:

Real evidence
Real evidence includes physical objects which may be produced in evidence, such as a
murder weapon, an item of bloodstained clothing, illegal drugs or stolen goods. Frequently,
such evidence requires additional evidence (such as witness testimony) to place it in its
proper context. For example, a kitchen knife will require testimony from an expert witness
to identify its significance as a murder weapon.
It is also possible to view some documents as real evidence, if the purpose of adducing
them in evidence is not to show their contents (see documentary evidence below) but rather
to illustrate their physical condition. For example, a partially burnt will may be adduced as
evidence that an attempt was made to destroy it. Similarly, an automatic printout from a
machine which operates without human involvement will be classed as real evidence.
4

M01_TAYL2940_03_SE_C01.indd 4

3/31/14 4:24 PM

FORMS OF EVIDENCE
KEY CASE

R v Spiby [1990] 1 Cr App R 186 (CA)

Concerning: computer printouts as evidence
Facts
The prosecution had adduced evidence of telephone calls relating to the sale of
cannabis made by the accused from a hotel room. The calls were logged by the hotels
automated telephone system. D appealed on the basis that the record was hearsay
evidence.
Legal principle
The court dismissed the appeal. As the machine logged the calls without any human
involvement, the log was real evidence and, therefore, not covered by the hearsay rule.
Taylor LJ: They did not depend for their content on anything that had passed through
the human mind.

Documentary evidence
It is very common for evidence to be contained in documents (documentary evidence) and
so the parties may wish to adduce such documents as part of their case. The definition of
document is extremely wide.
KEY CASE

R v Daye [1908] 2 KB 333 (KBD)

Concerning: definition of document
Facts
A banker had received a sealed packet containing a formula. As part of its deliberations,
the court was required to consider whether this constituted a document.
Legal principle
Darling J: any written thing capable of being evidence is properly described as a
document and . . . it is immaterial on what the writing may be inscribed. It might be
inscribed on paper, as is the common case now; but the common case once was that
it was not on paper, but on parchment; and long before that it was on stone, marble or
clay . . . I should say it is a document no matter upon what material it be, provided it is
writing or printing and capable of being evidence.

In more modern times, the term document has also been taken to include, for example,
tape recordings (R v Stevenson [1971] 1 WLR 1).
5

M01_TAYL2940_03_SE_C01.indd 5

3/31/14 4:24 PM

1 EVIDENTIAL ISSUES WITHIN THE TRIAL PROCESS

In presenting documentary evidence, the question arises as to whether the original must be
adduced or whether a copy will be sufficient.

KEY STATUTE

Criminal Justice Act 2003, s. 133

Proof of statements in documents
Where a statement in a document is admissible as evidence in criminal proceedings, the
statement may be proved by producing either
(a) the document, or
(b) (whether or not the document exists) a copy of the document or of the material part
of it, authenticated in whatever way the court may approve.

Note also that the fact that the adduced document has been copied many times from the
original does not affect its admissibility.

KEY STATUTE

Criminal Justice Act 2003, s. 134

In this Chapter
copy, in relation to a document, means anything on to which information recorded in
the document has been copied, by whatever means and whether directly or indirectly;
document means anything in which information of any description is recorded.

Execution of documents
Depending on the type of document that the party wishes to adduce in evidence, they may
have to present evidence that the document has been properly executed (i.e. that it was
written or signed by the person alleged to have done so). This may be achieved by evidence
from the author confirming that it was written by them, or from another person who
observed the writing of the document. Alternatively, the disputed document may be
compared with a known sample of handwriting from the person concerned. This may
require expert evidence.

M01_TAYL2940_03_SE_C01.indd 6

3/31/14 4:24 PM

FORMS OF EVIDENCE
KEY CASE

R v Harden [1963] 1 QB 8 (CA)

Concerning: verification of handwriting
Facts
The defendant was accused of obtaining money by false pretences. In reaching their
verdict, the jury were invited to compare various documents and cheques alleged to
have been written by the accused.
Legal principle
The jury should not be invited to compare handwriting in documents unless expert
evidence as to the genuineness of the handwriting had been called. Widgery JJ: [the
trial judge] erred in inviting the jury to reach their conclusions without the assistance of
expert evidence.

KEY STATUTE

Criminal Procedure Act 1865, s. 8

Comparison of disputed writing with writing proved to be genuine
Comparison of disputed writing with any writing proved to the satisfaction of the judge
to be genuine shall be permitted to be made by witnesses; and such writings, and the
evidence of witnesses respecting the same, may be submitted to the court and jury as
evidence of the genuineness or otherwise of the writing in dispute.

Documents and presumptions

There are a number of matters which may be presumed by the court when admitting
documentary evidence. These include:

A document which is more than 20 years old and has been in proper custody for this
time is presumed to have been properly executed.

A document was created on the date which is written on it.

Whereas alterations to a deed are presumed to have been made before it was executed,
alterations to a will are presumed to have been made after execution.

M01_TAYL2940_03_SE_C01.indd 7

3/31/14 4:24 PM

1 EVIDENTIAL ISSUES WITHIN THE TRIAL PROCESS

KEY CASE

Bishop Meath v Marquis of Winchester (1836) 3 Bing NC 183 (HL)

Concerning: proper custody
Facts
The documents in question were discovered amongst the papers of the deceased
Bishop whereas they should have been passed to his successor.
Legal principle
The documents were found in a place in which and under the care of persons with
whom papers of the Bishop might naturally and reasonably be expected to be found.
It was not necessary that they should be found in the best and most proper place
of deposit. It was not unreasonable that it should be found in the Bishops
mansion-house.

KEY CASE

Doe d Arundel (Lord) v Fowler (1850) 14 QB 700 (pre-SCJA 1873)

Concerning: proper custody
Facts
Parish registers had been kept by the parish clerk at his house, when the Parochial
Registers Act 1812 required such registers to be kept at the parsons house or in the
church.
Legal principle
This did not constitute proper custody.

KEY CASE

Anderson v Weston (1840) 6 Bing NC 296 (pre-SCJA 1873)

Concerning: date of creation
Facts
The court was required to rule on the date on which a document had been created.
Legal principle
It was held that, in the absence of evidence to the contrary, the document would be
taken to have been issued on the date stated on it.
8

M01_TAYL2940_03_SE_C01.indd 8

3/31/14 4:24 PM

FORMS OF EVIDENCE
KEY CASE

Doe d Tatum v Catomore (1851) 16 QB 745 (pre-SCJA 1873)

Concerning: presumed date of alteration
Facts
The court was required to rule on the date on which a document had been altered.
Legal principle
It was held that, as a deed cannot be altered after execution without fraud or wrong,
the presumption, if an alteration appears, is that it was made before execution.
However, this does not apply in the case of a will, which may be altered by the testator
without fraud or wrong.

REVISION NOTE

When considering documentary evidence, you should also read the chapter on hearsay
evidence, as there is an overlap between the two topics. You should also make clear this
potential overlap in any answer which you write on the subject.

Circumstantial evidence
Circumstantial evidence is a more difficult category of evidence to define but, in general
terms, it refers to evidence from which facts in issue within the case may be inferred. Such
evidence does not actually prove the offence but serves to increase the probability that the
alleged conduct has taken place. For example, the fact that the murder victims husband
took out a large insurance policy on her life shortly before she died does not prove that he
killed her. If coupled with evidence that the husband was having an affair and that the
murder weapon was found in his car, the cumulative effect of such circumstantial evidence
is to reduce the possibility of an alternative explanation. Recognised categories of
circumstantial evidence include:

motive R v Clewes (1830) 4 C& P 221 (pre-SCJA 1873) (the defendant in a murder
trial had hired the victim to commit another murder and faced being exposed);

opportunity Woolf v Woolf [1931] P 134 (CA) (evidence that a married man had shared
a hotel room with another woman was taken as evidence supporting allegations of his
adultery);

evidence of planning or preparation for the crime R v Clarke & Hewins (1999) (6
Archbold News 2 CA (9704882W3)) (CA) (in a case of murder by arson, where petrol had
been poured through the victims front door, evidence of the defendants purchase of
petrol before the fire was presented in support of the prosecution case);

evidence that the accused has lied (see Chapter 7).

9

M01_TAYL2940_03_SE_C01.indd 9

3/31/14 4:24 PM

1 EVIDENTIAL ISSUES WITHIN THE TRIAL PROCESS

REVISION NOTE

In considering circumstantial evidence, you might also wish to look at adverse

inference and the so-called right to silence (discussed in Chapter 2), as the failure
of the accused to answer a question may be interpreted by the jury as circumstantial
evidence of guilt.

Witness testimony
This is the most recognisable form of evidence. A witness providing their evidence in person
in court and various aspects of witness testimony are considered later (see Chapter 2). At
the outset, however, it is important to note that the key advantages of such testimony are
that it can be challenged by the other side and that the presence of a witness allows the
jury to assess their demeanour.

Relevance, admissibility and weight

The law of evidence is governed by the three principles of relevance, admissibility and
weight. The three concepts are distinct but interrelated.

Relevance
The classic definition of relevance was restated in R v Nethercott [2001] EWCA Crim 2535
(CA):
. . . any two facts to which it is applied are so related to each other that according to
the common course of events one either taken by itself or in connection with other
facts proves or renders probable the past, present or future existence or nonexistence, of the other.

KEY CASE

R v Grant [1996] 1 Cr App R 73 (CA)

Concerning: relevance
Facts
The accused was found with a quantity of cocaine and 900 cash on his person. He
was charged with possession with intent to supply. He admitted the possession but
denied the (more serious) intent to supply.
10

M01_TAYL2940_03_SE_C01.indd 10

3/31/14 4:24 PM

RELEVANCE, ADMISSIBILITY AND WEIGHT

Legal principle
On appeal, it was held that the possession of the 900 was relevant to a charge of
possession with intent to supply. The accused had provided an innocent explanation
for the presence of the money. It was for the jury to decide whether to believe him.
Lord Taylor CJ: It is a matter for the jury to decide whether the presence of money,
in all the circumstances, is indicative of an ongoing trading in the drugs.

KEY CASE

Holcombe v Hewson (1810) 2 Camp 391 (pre-SCJA 1873)

Concerning: relevance
Facts
The defendant publican claimed that he had broken a contract with the claimant brewer
as he had been supplied with bad beer. The claimant wished to adduce evidence from
other customers that his beer was good.
Legal principle
It was held that evidence that the claimant had supplied good beer to his other
customers did not, necessarily, mean that he had supplied good beer to the defendant.
For this reason such evidence was not relevant to the present case.

In this way, relevance is a relational concept something can only be relevant to something
else and so a relevant piece of evidence makes the existence of another fact either more or
less likely.
As a general principle, all relevant evidence will be admissible, though this is subject to
numerous exceptions, including those related to character evidence, hearsay evidence and
opinion evidence, together with the exclusionary rules under section 76 and section 78 of
the Police and Criminal Evidence Act 1984 (PACE). All of these are discussed in subsequent
chapters.

Admissibility
As indicated previously, evidence which is relevant is generally admissible, that is, it is
allowed to be presented in court. This is entirely logical as clearly the court would not want
to waste time on material which was not relevant to the case in question (see Holcombe v
Hewson above). There are, however, a number of circumstances where evidence that is
undeniably relevant will be held not to be admissible, primarily because it breaches one of
the exclusionary rules of evidence which are intended to protect the jury from material
which is unreliable in nature.
11

M01_TAYL2940_03_SE_C01.indd 11

3/31/14 4:24 PM

1 EVIDENTIAL ISSUES WITHIN THE TRIAL PROCESS

EXAM TIP

Make clear that you appreciate one of the key evidential distinctions between civil and
criminal trials:

In a civil trial the judge who hears the case does not need to be protected from
questionable evidence as they are more than capable of assessing its impact.

In a criminal trial, however, the jury which decides the verdict may need to be
prevented from hearing evidence which may be unreliable but which may influence
them unduly.

Weight
The last of the three concepts is weight, that is the strength of a particular piece of
evidence which is sometimes expressed in terms of its probative value. In other words,
how effective is the evidence in supporting the point for which it is adduced? For example,
if one side produces an expert witness with 25 years experience to support their argument
and the other produces a new graduate, it might be assumed that the former will have
greater weight. It is frequently stated that, whereas the judge in a criminal trial decides
whether evidence is relevant and admissible, it is for the jury to decide what, if any, weight
to attach to it. However, this ignores the fact that the judges initial assessment of
relevance will, in part, be based on the weight of the evidence.

Dont be tempted to . . .

It is very easy to become confused over the relationship between the three principles
of relevance, admissibility and weight. Remember that they are interrelated!

Burden and standard of proof

In both civil and criminal trials, each party may be required to prove certain facts. This
obligation may be expressed in terms of a burden of proof which rests upon the party
concerned. Similarly, they are required to achieve a specified standard of proof to satisfy
the court of the fact in question.

The evidential and legal burden of proof

The term burden of proof may be said to comprise two elements: the evidential burden
and the legal burden.
12

M01_TAYL2940_03_SE_C01.indd 12

3/31/14 4:24 PM