BASIC CONCEPTS OF EVIDENCE IN CIVIL AND CRIMINAL PROCEEDINGS

Definition
Evidence is information by which facts tend to be proved.
The law of evidence is that body of law and discretion regulating the means by which facts
may be proved. It applies in both courts of law and tribunals and arbitrations in which the
strict rules of evidence apply.
It is adjectival rather than substantive law and overlaps with procedural law.
While the substantive law concerns matters such as the elements of a criminal offence or a
tort or the circumstances leading to discharge of a contract, the adjectival law relates to
practice and procedure. The law of evidence concerns the use of material to prove the
existence or non-existence of any elements of the substantive law.
Law of evidence is based on the Latin maxim - ei incumbit probatio qui dicit, non qui negat
(‘the burden of proof lies on he who seeks to affirm something, not on he who denies it’). –
He who asserts, proves!
Criminal cases - it is for the prosecution to prove the case against the accused
Civil Cases – it is for the claimant to prove the case against the defendant.

Sources of Evidence Law

a) Common Law – Judicial Precedent.
b) Statutes –
o Criminal Justice Act 2003 (CJA)
o Police and Criminal Evidence Act (PACE) 1984.
o Civil Evidence Act 1995
o Civil Procedure Rules 1998.

Basic Concepts of Evidence

The key concepts dealt with in the law of evidence are-
a) Facts
b) Relevance & Admissibility
c) Weight of Evidence
d) Judicial Discretion

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a. Facts
Three types of facts that may be introduced in any trial before the court-
i. Facts in Issue
ii. Relevant facts
iii. Collateral facts

i. Facts in Issue
A ‘fact in issue’ is sometimes referred to as a ‘principal fact’ or ‘factum probandum’.
These are the facts that are being contested by the parties.
They are the facts that both parties are relying upon to establish their case – prove guilt or
innocence in criminal case OR obtain judgment/establish a defence in civil cases.
Criminal Case- the facts that the prosecution must prove to establish a defendant’s guilt, i.e.
the elements of an offence, but they also include those facts that constitute a defence raised
by the defendant. The facts in issue are often disclosed in the prosecution’s charge sheet and
other documents submitted as part of the charge, but also includes facts in the accused’s
statements which raises a potential defence.
Civil Case- facts that the claimant must prove in order to succeed in their claim and to
disprove any defence raised by the defendant, AND facts that the defendant must prove in
order to avoid liability/judgment against him/her. The facts in issue are often disclosed in the
Claimant’s statement of claim and the Defendant’s statement of defence.
Formal Admission- if a fact in issue is formally admitted by a party, then the fact is no
longer a fact in issue.
In that instance the party who has the burden of proving the fact in issue will not have to
adduce any evidence to prove it and the court will not hear such evidence.
E.g., in a murder trial, whether the accused stabbed the victim leading to his death is a fact in
issue. However, if the accused formally admits that he stabbed the victim, that fact is no
longer a fact in issue.
In a civil trial, for example the existence of a duty of care in a negligence claim is a fact in
issue, but if it is admitted by the defendant, it is no longer a fact in issue.

ii. Relevant Facts

A ‘relevant fact’, sometimes called a ‘fact relevant to the issue’, or an ‘evidentiary fact’, is a
fact from which the existence or non-existence of a fact in issue may be inferred.
They are facts which prove or disprove the existence or non-existence of the facts in issue.

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Relevant evidence can be presented in the form of direct witness evidence or circumstantial
evidence. E.g. in a murder trial where the fact in issue is whether the accused stabbed the
victim, the fact that the accused was seen holding a knife while standing next to the victim
shortly before the victim collapsed with a stab wound is a relevant fact.

iii. Collateral Facts

Facts that affect the admissibility of evidence.

Sometimes referred to as ‘subordinate facts’, come in three ways-
(i) facts affecting the competence of a witness;
(ii) facts affecting the credibility of a witness; and
(iii) ‘preliminary facts’, which must be proved or disproved as a condition precedent to
the admissibility of certain facts in issue or relevant facts.
E.g. where a witness is called to testify about whether or not the defendant stabbed the
victim, the fact that the witness is the wife of the defendant is a collateral fact which can be
proved to establish that the witness cannot be compelled to testify against him.
Also, if a witness testifies to the effect that he saw a certain event at a distance of 50 yards,
the fact that the witness suffers from an eye condition which prevents him from seeing
anything at a distance greater than 20 yards is a collateral fact which affects the credibility of
the witness.

b. Relevance and Admissibility

All evidence which a court will receive for the purpose of determining the existence or non-
existence of facts in issue is referred to as admissible evidence.
The admissibility of evidence is a matter of law for the judge.
The principle of admissibility is that all evidence which is sufficiently relevant to prove or
disprove a fact in issue and which is not excluded by the judge, either by reason of an
exclusionary rule of evidence or in the exercise of her discretion, is admissible.
In essence, the admissibility of evidence is based on relevance! – i.e. Only relevant facts and
facts in issues are admissible unless excluded by the judge based on exclusionary principles.
“Evidence is relevant if it is logically probative or disprobative of some
matter which requires proof…”
- DPP v Kilbourne [1973] AC 729 at 756, HL.
In R v Sandhu [1997] Crim L 288, the Court of Appeal held that evidence that illustrated the
defendant’s state of mind at the time of committing a strict liability offence was irrelevant to
prove the issue of the defendant’s guilt. Strict liability is an offence that does not require

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mens rea and, therefore, evidence of the defendant’s state of mind is not relevant to prove or
disprove his guilt.

Exclusionary Rules of Evidence

Evidence must be sufficiently relevant to be admissible, but sufficiently relevant evidence is
only admissible insofar as it is not excluded by any rule of the law of evidence or by the
exercise of judicial discretion.
Thus, relevant evidence may be excluded by a judge on different grounds, including-

i. Public Policy- highly relevant evidence may be withheld as a matter of public

policy on the grounds that its production and disclosure would jeopardize national
security or would be injurious to some other national interest.

Evidence excluded on public policy grounds include-

- Confessional statements that were obtained unlawfully in breach of statutory

requirements – section 76 PACE 1984.

- Evidence obtained from the unlawful interception of communications in

violation of the Regulation of Investigatory Powers Act 2000 (RIPA) – section
17(1) of RIPA 2000.

- Evidence would have such an adverse effect on the fairness of the proceedings
– section 78 PACE 1984.

ii. Limited Admissibility – Relevant evidence may be admissible for a particular

purpose but inadmissible for other purposes. In such a case, the judge may admit it
for the first purpose, but exclude it for the latter purpose. For example, an out-of-
court statement may be inadmissible for the purpose of proving the truth of its
contents, being inadmissible hearsay, but admissible, as original evidence, for the
purpose of proving that the statement was made. In such cases, the judge would
warn the jury of the limited purpose for which the evidence is admissible.

iii. Conditional Admissibility – a piece of evidence may be deemed irrelevant on its

own, but when taken together with other evidence, becomes relevant and thus
admissible. In such a case, the evidence may be granted conditional admissibility
i.e. conditionally admitted, on the basis that it proves relevant when combined
with the other pieces of evidence. If, however, it turns out not to be relevant when
combined with the other pieces of evidence, it is then excluded by the judge as
being inadmissible.

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 E.g. proof of due search for the original of a lost document, on the contents of
which a party seeks to rely on, is a condition precedent to the admissibility of a
copy of that document.

In criminal cases, proof of the voluntariness of a confessional statement by an

accused is a condition precedent to the admissibility of the confessional statement.
Thus, the judge will admit the confession on the condition that the prosecution
establishes its voluntariness, where it is challenged by the accused.

C. Weight of Evidence
The weight of evidence is its cogency or probative worth in relation to the facts in issue.
Once it has been determined what evidence is relevant i.e. facts in issue and relevant facts
that may prove or disprove the facts in issue, it is then down to the court or tribunal of fact
(jury) to decide what weight to attach to it.
While the relevance and admissibility of evidence is a question of law to be decided by the
judge, the weight of evidence is a question of fact and is usually decided by the jury.

Relevance – Question of Law (Judge)

Admissibility – Question of Law (Judge)
Weight – Question of Fact (Jury)

The weight that the jury give a particular piece of evidence will be subjective, drawing on
both logic and commonsense when they determine what they do, or do not, believe.
There are two possible outcomes to this: the evidence may be given no weight and therefore
be disregarded completely or it may be given weight, thereby influencing the jury’s decision
concerning the extent to which they perceive its reliability, strength and truthfulness.
The weight of the evidence is determined by extraneous factors outside of its relevance and
admissibility. Factors which may influence the weight to be attached to evidence include-
- the way in which it is given
- the character and credibility of the witness, and whether or not that witness is discredited
in cross-examination. Thus, a witness may give what appears to be highly relevant
evidence, which is then discredited in cross-examination, in which case, little or no
weight will be attached to the evidence provided by the witness.
- the witness’ motive for testifying e.g., where the witnessed has been induced to testify
through financial rewards.
- Statutory requirements. For instance, section 4(1) of the Civil Evidence Act 1995
provides that in estimating the weight to be given to hearsay evidence in civil
proceedings, the court shall have regard to any circumstances from which any inference
can reasonably be drawn as to the reliability or otherwise of the evidence.

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 Stages of Evidence in Court

d. Judicial Discretion
Even where evidence is relevant and admissible, the judge has judicial discretion in relation
to its admissibility.
Note that this discretion is only an exclusionary discretion and not an inclusionary discretion.
Exclusionary discretion – discretion to exclude ordinarily admissible evidence.
Inclusionary discretion - discretion to include or admit inadmissible evidence.
A judge has no inclusionary discretion and thus cannot, under any circumstances, admit
legally inadmissible evidence.
However, a judge has discretion at common law and under statutes to exclude legally
admissible evidence under the following circumstances –
i. Where any of the exclusionary rules discussed earlier apply.
ii. At common law, a court may exclude prosecution evidence where its prejudicial
effect outweighs its probative value; see R v Sang [1980] AC 402 and s 82(3)
Police and Criminal Evidence Act 1984 (PACE).

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 iii. Section 78 of the Police and Criminal Evidence Act (PACE) 1984 allows the court
to exclude prosecution evidence if ‘after having regard to all the circumstances,
including the circumstances in which the evidence was obtained, the admission of
the evidence would have an adverse effect on the fairness of proceedings’.
iv. The Civil Procedure Rules 1998. Rule 32.1 grants the judge power to exclude
evidence which would ordinarily be admissible if he deems it necessary to achieve
fair proceedings.
Failure to properly apply an exclusionary rule may well constitute grounds for a successful
appeal.

Forms of Evidence
Forms of Evidence refer to the various ways in which evidence may be received by the court.
Evidence can be tendered before the court in the following ways-

a. Direct Evidence
This is direct oral testimony by a witness in court proceedings.
This means that the witness will be called on to testify under oath in open court, and
everything they say will be tendered as evidence of the truth of the facts asserted.
Witnesses can only give evidence of matters that they have themselves perceived with
one of their five senses – usually a witness will speak of what they saw or heard.

b. Documentary Evidence
Documentary evidence usually consists of a document or a copy of a document,
produced for inspection by the court.

Documentary evidence comprises not only written or typed papers, but also maps,
plans, graphs, drawings, photographs, tapes (audio and visual), films, negatives and
disks, CDs or DVDs, and digital recordings.

c. Real Evidence
Real evidence usually takes the form of some material object produced for inspection
in order that the court may draw an inference from its own observation as to the
existence, condition, or value of the object in question.
Although real evidence may be extremely valuable as a means of proof, no weight
attaches to such evidence in the absence of some accompanying testimony identifying
the object in question and explaining its connection with, or significance in relation to,
the facts in issue or relevant to the issue

d. Circumstantial Evidence

Circumstantial evidence is evidence of relevant facts from which the existence, or

nonexistence, of the facts in issue may be inferred. Such evidence may include any of

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 the above forms of evidence except, of course, direct testimony relating to the facts in
issue.
Circumstantial evidence is the opposite of direct evidence as it relies, not on direct
evidence of the facts in issue, but on surrounding facts which make the facts in issue
more or less probable.

FUNCTIONS OF JUDGE AND JURY

English legal system uses the judge and jury system for most civil and criminal proceedings.
In proceedings, there is a distinction between the role of the judge and jury.
Judge – decides on questions of law.
Jury – decides on questions of fact.

a. The Judge
Generally, questions of law will relate to the substantive law involved, rules of evidence, i.e.
relevance and admissibility, applicable principles determining liability and acceptable
defences capable of exonerating the defendant.
In a criminal trial, questions of law involve the definition of an offence, elements of an
offence and available defences for the accused.
The functions of a judge in proceedings include-
i. Deciding questions of law;
ii. In proceedings without a jury, the judge also decides questions of law and facts.
iii. Also, certain questions of fact are decided by the judge even in proceedings with a
jury. This includes questions of fact in a voir dire – trial-within-a-trial involving
the voluntariness of a confessional statement in a criminal trial; in civil cases,
proof of due search for the original of a lost document, on the contents of which a
party seeks to rely, is a condition precedent to the admissibility of a copy of that
document and the judge decides on proof of this fact.
iv. Summing up to the Jury - At a trial on indictment, after the conclusion of all the
evidence and closing speeches by the advocates, the judge must sum up the case
to the jury. In addition to directing them on the substantive law and reminding
them of the evidence that has been given, the judge must also explain a number of
evidential points that will guide them in deciding on the questions of fact before
them.
v. The judge also decides on questions of foreign law.

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b. The Jury
Questions of fact for the jury include those relating to the credibility of the witnesses called,
the weight to be attached to the evidence adduced, and ultimately, of course, the existence or
non-existence of the facts in issue.
The jury sometimes shares close functions with the judge. For instance, in a defamation suit,
the trial judge decides whether the words used are capable of bearing a defamatory meaning
and the jury decides whether the words are in fact defamatory.

FACTS WHICH REQUIRE NO PROOF

There are a number of instances in which no evidence is required to prove something in
proceedings before the court.
Some facts are considered to be so self-evident that it would be pointless to insist upon the
production of evidence and thus judicial notice is taken of them.
Facts requiring no proof include-

a. Facts of which the court takes judicial notice

The doctrine of judicial notice allows the court to dispense with the need to prove notorious
facts. Some facts are simply so well known/notorious that it would both be wasteful of court
time and bring the law into ridicule were parties put to proof of them.
The courts have taken judicial notice of the following facts-
i. rain falls (Fay v Prentice (1845) 14 LJCP 298);
ii. cats are kept for domestic purposes (Nye v Niblett [1918] 1 KB 23);
iii. a goldfinch is a British bird (Hughes v DPP (2003) 167 JP 589);
iv. steamrollers and traction engines are made mainly of iron and steel (McKenna (1956) 40
Cr App R 65);
v. telephone calls made from prison are recorded (Fagan [2012] EWCA Crim 2248, [46]);
vi. Elvis Presley is a well-known, popular musicians this century’ (Re Elvis Presley Trade
Marks [1997] RPC 543, 546);
vii. countries such as Thailand, Jamaica and Holland are areas with drug trafficking, dealing
and supply problems ( R v Crown Court at Isleworth, ex p Marland (1997) 162 JP 251).

b. Formal Admissions

Parties in civil and criminal proceedings may make formal admissions in which they concede
certain facts to be the case, thereby sparing their adversary the need to prove them.

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Therefore, facts which have been formally admitted by parties to proceedings do not need to
be proved.

c. Judicial Findings

Matters decided in previous judicial proceedings and contained in the findings/judgments of

the previous proceedings do not require proof.
These matters arise in two circumstances –
i. Estoppel

Also known as estoppel per rem judicatam, it prohibits parties from re-litigating issues that
have been decided by a court of competent jurisdiction - Lazarus-Barlow v Regent Estates
Co Ltd [1949] 2 KB 465. Thus, in subsequent proceedings, a party is not required to prove
the facts that have been decided by the court in the previous proceedings. Simply tendering a
copy of the judgment is sufficient proof of those facts.
ii. Previous Convictions or Acquittal

In criminal trials, where the fact in issue is whether any person has been convicted or
acquitted of a particular offence in a previous instance, it is sufficient to tender the judgment
of conviction or acquittal in that previous case as proof of this fact without the need to prove
this fact.
Similarly, in civil proceedings, where it is necessary to prove that an act was done by a party
for which that party had been convicted in criminal proceedings, tendering a copy of the
judgment shall be sufficient proof of this fact without the need for additional evidence.

ADVERSARIAL TRIALS
The English system is adversarial in nature.
This connotes the fact that the trial is organised as a two-way contest between the parties, in
which the parties are charged with producing evidence to substantiate their own case, and to
puncture the arguments of their opponent.

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Some of the key elements of the adversarial system include-
a. Party Control

Parties in the adversarial trial have almost complete autonomy to gather, select and present
evidence before the court.
Parties are, thus, solely responsible for the commencement, conduct and termination of
proceedings.
It is for the parties to decide which facts are in issue and which are not.
The parties will also determine how to go about generating proofs, and which witnesses will
be called to aid them in that task. They will generally have a free hand in examining and
cross-examining witnesses, including the accused and the complainant.

b. Neutrality of the Court

Unlike inquisitorial systems, the trial judge in adversarial systems generally adopts a laissez-
faire attitude to much of the conduct of the parties i.e. an unbiased stance and, thus, even
where a party is making a fatal error in his case, the judge is not to intervene to assist the
party.
Similarly, the judge cannot direct parties on how to conduct their cases, which evidence to
tender or how the evidence should be tendered to arrive at an expected conclusion.
The court does not embark on a search for the truth, but merely examines both parties’ cases
and decide which has better merits.
The only legal controls on the parties are the rules of evidence and the extent to which the
trial judge enforces them or uses their discretion to protect the individual witness.

c. Zero-Sum Outcomes

Since the adversarial trial is limited to two versions of events, there is always going to be
only one winner and one loser.
The court determines the outcome of the proceedings by fully awarding complete gain or loss
through a guilty or not guilty verdict in respect of each individual charge or, in civil
proceedings, awarding judgment in favour of one party with liability imposed on one party
towards the other.
In essence, the outcome of proceedings is either victory or defeat for either party.
The exceptions to this in criminal cases is where the jury is ‘hung’ and cannot reach a verdict.
In such a case, there is no definitive outcome and the accused is simply discharged with the
prosecution having to decide whether to pursue a retrial or drop the charges.
In civil cases, the court may enter an order or non-suit which means neither party has proven
their entitlement to a judgment, leaving it open for either party to relitigate the case at a later
time when they have more convincing evidence to obtain judgment in their favour.

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 d. Triumph of Advocacy

Because of the zero-sum nature of the adversarial system, advocates are more interested in
pursuing victory over their opponent than objectively uncovering information. This explains
why proceedings are so highly confrontational and why the adversarial system leaves little
room for human concern as advocates discharge their duties.

READING LISTS

 A. Keane & P. McKeown, The Modern Law of Evidence, 12th ed (Oxford

University Press, 2018), Chapter 2.

 J. Doak, C. McGourlay, M. Thomas, Evidence in Context, 5th ed (Routledge,

2018), Chapter 2.

 C. Singh, M. Ramjohn, and M. Ramjohn, Unlocking Evidence 2nd ed, (Taylor &
Francis, 2013), Chapter 1.

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