THE LAW OF EVIDENCE AND THE RULE OF LAW
Published online by Cambridge University Press: 08 April 2009
- Copyright © Cambridge Law Journal and Contributors 2009
1 See Raz, J., “The Rule of Law and Its Virtue” (1977) 93 L.Q.R. 195Google Scholar (endorsing in this respect the approach of F. Hayek The Road to Serfdom (London 1944), p. 54.)
2 Which for this purpose may include a rule that in the absence of any clear rule demanding a change in the status quo it is to remain unchanged.
3 Unlike rules of science or mathematics which can be precisely accurate since they need to be understood fully only by those applying the rules, and new terms and concepts can be multiplied as necessary to implement newly discerned concepts and distinctions. In science facts are logically prior to relevant rules, whereas in law rules are logically prior to relevant facts.
4  EWCA Crim 3047, .
5 Actually a notice, but widely described as an application (quite contrary to the explicit intention of the legislation).
6 See R. Pattenden Judicial Discretion and Criminal Litigation (Oxford 1990). As early as 1790 Grose J. dreaded that “rules of evidence should ever depend upon the discretion of the judges”; as late as 1914 in argument in R. v. Christie  10 Cr.App. Rep. 141, 149 Lord Halsbury (who participated no further in the decision) protested at the very idea of evidence being excluded at the discretion of the judge; and nearly seventy years later in Rank Film Distributors Ltd v. Video Information Centre  A.C. 380, 442, Lord Wilberforce regarded discretion as affording much less protection to the accused than rule (there of privilege).
7 See e.g. the stricture in R. v. Viola  3 All E.R. 73, 77 that “it is wrong to speak of the judge's ‘discretion’ in this context. He has to make a judgment …. ”; and under the modern law per Hughes L.J. in R. v. McMinn  EWCA Crim 3024, , “The question whether bad character evidence should or should not be admitted pursuant to section 101(1)(d) of the Criminal Justice Act 2003 is essentially for the judgment of the trial judge. It is correctly described as an exercise of judgment, rather than simply of discretion.”
8 The distinction between the use of “may” (exclude) in s.78 of the Police and Criminal Evidence Act and “must” (exclude) in s.101(3) of the Criminal Justice Act 2003 is nugatory when the condition is that “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.” Despite both the form and substance of s.101(3) of the Criminal Justice Act 2003 indicating that it is a rule, reference is frequently made to it as conferring a discretion, see e.g. R. v. Edwards and Rowlands  EWCA Crim 3244,  3 All E.R. 882, ; in R. v. Amponsah  EWCA Crim 2993, , this was even more incredibly described as an “express” provision to that effect; but see R. v. Tirnaveanu  EWCA Crim 1239,  4 All E.R. 301, , for a view much more in accord with that taken here.
9 In R. v. Cole and Keet  EWCA Crim 1924,  1 Cr. App. Rep. 81, , the Lord Chief Justice regarded it as unlikely that the application of the inclusionary discretion in the Criminal Justice Act 2003 s.114(1)(d) would lead to a different result from that of the exclusionary discretion in the Police and Criminal Evidence Act 1984 s.78.
10 In R. v. Reed and Williams  EWCA Crim 3083, , Rix L.J. indicated some doubt as to whether an identical appellate approach to both was appropriate.
11 But not exclusively; one of the earlier examples of such an approach was provided by the High Court of Australia in expounding a common law exclusionary discretion for improperly obtained evidence in Bunning v. Cross (1978) 141 C.L.R. 54.
12 It is unfortunate that in many cases these lists fail to indicate the direction to which they tend, see Lord Phillips C.J. in R. v. Cole and Keet  1 Cr. App. Rep. 81, ; Bunning v. Cross (1978) 141 C.L.R. 54 is still more problematic in this respect.
13 For different arguments leading to the same conclusion see A. Zuckerman, Civil Procedure, 2nd ed. (London 2006), 437.
14 This is by no means peculiar to the law of evidence, but applies even more strongly to the interpretation of such documents as the Constitution of the United States or the European Convention on Human Rights.
15 See R. v. Smith  2 S.C.R. 915, 933. It identified its decision in R. v. Khan  2 S.C.R. 531 as the first case to apply such an approach.
16 Wigmore's own suggestion of a rule allowing a more general exception for hearsay statements of deceased persons illustrates that he did not himself propose departure from justiciable rules. For a typically pithy exposition of the point see J. Thayer, A Preliminary Treatise on Evidence (Boston 1898), App. B, 560 “the rule itself is a different thing from the grounds of it”.
17 It is still more ironic that in R. v. Khelawon 2006 SCC 57,  2 S.C.R. 787 the Supreme Court has now emphasised continuing need for discretion in addition to “principle”.
18 R. v. Rockey  3 S.C.R. 829.
19 See R. v. B(KG)  1 S.C.R. 740, explicitly acknowledged, 783. Hearsay was found to be reliable despite being inconsistent with contrary testimony below by its maker; and necessary, despite the presence of its maker in court willing to testify.
20 See R. v. Hawkins  3 S.C.R. 1043, 1081.
21 Very rough comparison of Supreme Court hearsay cases between the fifteen years before Khan and the fifteen years after Smith shows a more than fourfold increase in the proportion of split decisions, in the average length of judgments and in the number of cases considered in detail, surely more than can be explained simply in terms of changing personalities and styles.
22 So since there is no difference between the true value of a piece of evidence and its probative force, there is nothing left to balance since the probative force of the evidence has already been taken into account in determining whether there is any prejudicial effect at all.
23 Occasionally evidence is admitted in advance of a determination of its admissibility on account of insuperable difficulty otherwise, for example in relation to statements alleged to have been made by conspirators in the course of their conspiracy. So too, as in R. v. M  EWCA Crim 193, it may be excluded, but kept under review, and admitted at a later stage in the light of the evidence admitted or argument developed, in the meantime.
24 A similar point of timing can arise in relation to discretion, see R. v. Wallace  EWCA Crim 1760,  1 W.L.R. 572, . It is not surprising that it has been suggested that in such cases ruling on admissibility be deferred as long as possible, see R. v. Gyima  EWCA Crim 429,  Crim. L.R. 890, .
25 As in R. v. Edwards  EWCA Crim 1813,  1 Cr. App. Rep. 31, ; although this may create problems in relation to compliance with notice requirements, see R. v. Jarvis  EWCA Crim 488,  Crim. L.R. 632, – (where it was unclear until the appellant testified whether or to what extent he would attack a witness or his co-accused).
26 s.100(4): “Except where subsection (1)(c) applies, evidence of the bad character of a person other than the defendant must not be given without leave of the court”.
27 s.101(3): “The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that 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”.
28 Which in the case of bad character has not been explicitly retained, as it was by s.126(2)(a) in relation to hearsay.
29 R. v. Hasan  UKHL 22,  2 A.C. 467, .
30 HL Hansard vol 654, col 1988 (19 November 2003).
31 See R. v. Maitland  EWCA Crim 2145, ; R. v. Amponsah  EWCA Crim 2993, .
32 In R. v. Al Badi  EWCA Crim 2974, , the Court of Appeal appeared to treat s.78 as the primary provision, and s.101(3) as supplementary.
33 R. v. Highton  EWCA Crim 1985,  1 W.L.R. 3472, , .
34 By disregarding the contrast with the express wording of the rules relating to hearsay.
35  EWCA Crim 1237,  1 W.L.R. 2467, . By way of refusing to exercise an inclusionary discretion in relation to evidence in respect of which the rules as to notice had not been satisfied.
36 s.126(2): “Nothing in this Chapter [dealing with hearsay] prejudices – (a) any power of a court to exclude evidence under section 78 of the Police and Criminal Evidence Act 1984 (c. 60) (exclusion of unfair evidence), or (b) any other power of a court to exclude evidence at its discretion (whether by preventing questions being put or otherwise).”
37 For an illuminating critique, see Munday (2007) 171 J.P. 276.
38 s.114(1) “In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if, … (d) the court is satisfied that it is in the interests of justice for it to be admissible.”
39 And even more obviously in relation to s.114(1)(c): “all parties to the proceedings agree to it being admissible”.
40 By s.114(3): “Nothing in this Chapter affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings.”
41 R. v. Taylor  EWCA Crim 260,  2 Cr.App. Rep. 222, .
42 See R. v. s.  EWCA Crim,  2 Cr. App. R. 26, at . In R. v. Kavallieratos  EWCA Crim 2819, at , the Court went even further in assuming an invocation of s.114(1)(d) despite no reference at all having been made to it.
43 “That through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.”
44 “The court is satisfied that that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose.”
45 In Maher v. DPP  EWHC 1271 (Admin), (2006) 170 J.P. 441, at , it was however suggested that the conditions of ss 114(2) and 121 should be cumulated. R. v. Finch  EWCA Crim 36,  1 W.L.R. 1645, is another example of an unsuccessful attempt to evade the consequences of failure to meet the conditions of an exception (there of the Police and Criminal Evidence Act 1984 s.76A).
46 In R. v. Gyima  EWCA Crim 429,  Crim. L.R. 890, at , the Court of Appeal expressed uncertainty as to whether an application was made on the basis of the discretion under s.114(1)(d) or s.116.
47  EWCA Crim 2512, at . But cp. R. v. Adams  EWCA Crim 3025,  1 Cr. App. Rep. 430.
48 [2008 EWCA Crim 260, , .
49 “In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors …. ”(emphasis supplied).
50 “[T]he court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose.”
51 As emphasised in the initial recommendation in Law Com No. 245 para 6.49.
52 See criticism on this basis of the original proposals, Tapper  Crim. L.R. 771, at 781, 782.
53  EWHC 740 (Admin), (2007) 171 J.P. 308, .
54  EWHC 2886 (Admin), (2008) 172 J.P. 89; especially by Thomas L.J., , emphatically rejecting the “safety-valve” terminology as used by the Law Commission in recommending the inclusionary discretion.
55  EWCA Crim 10,  2 All E.R. 484, refusing to accept the contrary view of Fulford J. in R. v. Ibrahim unreported Cr Ct (4 June 2007); but see the subsequent endorsement of Fulford J.'s approach by the Court of Appeal,  EWCA Crim 880,  2 Cr. App. Rep. 23.
56 Section 118.5, interestingly, at , distinguishing sharply between rules of admissibility and of inadmissibility, a distinction apparently totally ignored in the common interpretation of s.99(1).
57 Although the definition of “misconduct” in s.112 runs it very close.
58 In particular it determines whether notice of intention to adduce the evidence need be given under s.111(2) and the rules implementing it, and so whether the accused has an effective opportunity to contest its admission.
59 Despite such importance the Court of Appeal remarked in R. v. Tirnaveanu  EWCA Crim 1239,  4 All E.R. 301, at , as late as the end of May 2007 that there was very little authority as to its meaning.
60 See R. v. McKintosh  EWCA Crim 193, at .
61 This view is fortified by the quite extremely broad view of relevance, both to issue and to credibility, taken in s.103(1) “For the purposes of section (1)(d) the matters in issue between the defendant and the prosecution include – (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence; (b) the question whether the defendant has a propensity to be untruthful. Except where it is not suggested that the defendant's case is untruthful in any respect.” in relation to the most important and common gateway for the admission of bad character.
62 As accepted in R. v. Tirnaveanu  EWCA Crim 1239,  4 All E.R. 301, at .
63 R. v. Edwards and Rowlands  EWCA Crim 3244,  3 All E.R. 882, .
64  EWCA Crim 2308, .
65 These possibilities also apply to evidence which falls just short of amounting to bad character although indicating a character consistent with guilt of the offence charged, see R. v. Weir  EWCA Crim 2866,  2 All E.R. 570,  to .
66  EWCA Crim 837, ; although it found that its exclusion in view of the other evidence in the case had not rendered the conviction unfair.
68  EWCA Crim 1860, .
69  EWCA Crim 1953. . My awareness of this case derives from sight of a draft article on s.98(a) by Dr. Roderick Munday.
70 Certainly much higher than that set by s.103(1)(a) for the purposes of determining a matter in issue between the defendant and the prosecution.
71 , where the propensity was to be untruthful, derived from an admittedly forged document used to deceive the deceased victim of the crime at an earlier stage, and the allegation at trial was of deliberately laying a false trail to mislead the police. Although it seems that admissibility of a conviction to show a propensity for violence does not automatically permit use to show a propensity to be untruthful, see e.g. R. v. McDonald  EWCA Crim 1194, .
72 R. v. Wallace  EWCA Crim 1760,  1 W.L.R. 572, –.
73 It is far from clear why the Court, at , regarded s.78 as excluded from consideration because the accused had chosen for tactical reasons not to adduce evidence of his good character in the sense of absence of previous convictions.
74  EWCA Crim 3196,  to .
75 In R. v. Lowe  EWCA Crim 3047, , there was some suggestion that the scope of s.98(a) is similar to that of res gestae under the old law, and criticism of so treating evidence which should properly be admitted under s.101 which would be more likely to lead to a better focussed jury direction.
76 As in R. v. Watson  EWCA Crim 2308. In R. v. Saleem  EWCA Crim 1923, where part of the evidence consisted of downloaded and altered rap lyrics, the time was measured from that of such events some three months before the commission of the offence, rather than from the time when they were last viewed, some ten days only before the commission of the offence.
77 As in R. v. McKintosh  EWCA Crim 193.
78 Quite contrary to the view of Professor Spencer in his Evidence of Bad Character (Oxford 2006), para 2.23, which had been approved in R. v. Tirnaveanu above, .
79 And, obiter at , a fortiori two days before.
80  EWCA Crim 193, .
81  EWCA Crim 1472,  1 W.L.R. 2798, where a direction that the accused's previous convictions for factually similar offences might indicate propensity to untruthfulness (despite his having pleaded guilty on those occasions) was criticised, but regarded as insufficient to render the conviction unsafe.
82  EWCA Crim 2006,  1 Cr. App. Rep. 43 where evidence that two complaints of similar offences against other family members were true, was not admitted to support the likelihood of the truth of this complaint against a third family member.
83 Or the newly fashionable recitation of ‘Overriding Objectives’, for example in the Criminal Procedure Rules.
84  UKHL 25,  1 A.C. 45.
85 It is quite astounding that Lord Steyn, , expressed the view that the legislature could be taken to agree to his proposal to read down s.41 by inserting some such words as “subject to the implied provision that evidence or questioning which is required to ensure a fair trial under article 6 of the Convention should not be treated as inadmissible” given that a formal amendment had been proposed in the House of Lords on report to what became s.41, that the court “may give leave for any evidence to be adduced or question to be asked if and to the extent that the court considers such evidence or question to be necessary in the interests of justice to ensure a fair trial of the accused” which had been resoundingly defeated by 143 votes to 56, Lords Hansard vol 598 col 38 (12 March 1999). The minority included all of the Law Lords present and voting, and their position had also been supported at an earlier stage by Lord Bingham. In R. v. Highton  EWCA Crim 1985,  1 Cr. App. Rep. 125,  the Lord Chief Justice drew attention to the similarity of purpose of art. 6 and s.78.
86 Very similar arguments can be applied in respect of other recent evidential decisions, such as that of the House of Lords in Attorney-General's Reference (No 4 of 2002)  UKHL 43,  1 A.C. 264 to disregard the legislature's welcome and newly clarified distinction between the imposition of persuasive and evidential burdens.
87 A view apparently shared before 2003 by the Court of Appeal which, in R. v. Chung (1991) 92 Cr.App. Rep. 314, 323, intimated obiter (because it was able to achieve the same result by way of a rule triggered by the same facts), and despite ritual incantation of reluctance to interfere with the trial judge's exercise of discretion, that there, where the facts were undisputed, the discretion ought to have been exercised the other way.
88  EWCA Crim 824,  1 W.L.R. 3169, ; see also R. v. Awaritefe  EWCA Crim 706, –.
89  EWCA Crim 2826,  2 All E.R. 553, .
90 Itself explicitly endorsed elsewhere in Renda, , at least in relation to a determination in favour of the defence. It is however sometimes ignored, see e.g. R. v. Clarke  EWCA Crim 3427, ; R. v. Awaritefe  EWCA Crim 706, .
91 At .
92 At .
93  EWCA Crim 1239,  4 All E.R. 301, . It regarded the exercise of s.101(3) as incorporating a balancing exercise, following the similar approach in R. v. Weir  EWCA Crim 2866,  2 All E.R. 570, and equally immune from any more rigorous control than a decision as to whether its admission had rendered the proceedings unfair .
94 See also  EWCA Crim 2826,  1 Cr.App. Rep. 380, .
95  EWCA Crim 2974, .
96  EWCA Crim 3408, see . In R. v. Grffiths  EWCA Crim 2468 (where there is no explicit reference to any limitation of powers) the Court of Appeal,  seems to have thought it enough that the evidence excluded by the trial judge might well have been considered relevant by the jury and that its exclusion made the verdict unsafe.
97 Citing R. v. Hanson and R. v. Renda.
98 . See also R. v. Williams  EWCA Crim 211, ; R. v. Smith  EWCA Crim 2105, (2007) 151 S.J.L.B. 1260, , in both of which the Court of Appeal found the exercise of discretion at the trial to have been clearly wrong.
99  EWHC 740 (Admin).
100  EWCA Crim 260, .
101  EWCA Crim 10,  2 All E.R. 484.
102  EWCA Crim 1194, –; see also R. v. Awaritefe  EWCA Crim 706,  (although it was nevertheless there possible to uphold the conviction on the basis that it had not thereby been rendered unsafe).
103 And on that basis found it unnecessary to consider the possible application of the general inclusionary discretion in s.114(1)(d), or that for multiple hearsay in s.121(1)(c).
104  EWHC 1271 (Admin), , .
105 Under s.117(6) and (7).
106  EWCA Crim 2006,  1 Cr.App. Rep. 43, .
107 Inherent in any determination of admissibility under s.114(1)(d) or s.116 of the Criminal Justice Act 2003, or s.74 of the Police and Criminal Evidence Act 1984 which the trial judge purported to apply. Much more plausibly in R. v. Watson  EWCA Crim 2308 the same Lord Justice assumed that where the trial judge had refrained from excluding evidence under s.101(3) on the basis of his wrong route to admissibility he would also have refrained from excluding the evidence under s.78 of the Police and Criminal Evidence Act 1984 had he taken the right route.
108  EWCA Crim 429, .
109 At .
111  EWCA Crim 314, (2008) 172 J.P. 249, . See also R. v. Reid and Rowe  EWCA Crim 2900, , where, after accepting that no discretion arose either under s.101(3) or s.78 of the Police and Criminal Evidence Act 1984 (because the evidence was not adduced by the prosecution), the Court of Appeal still thought it appropriate to indicate its view that the evidence should not have been excluded on a discretionary basis.
112 In some cases such as R. v. Singh  EWCA Crim 2140, , the Court of Appeal both stresses the limitations on its powers, but still emphasises its agreement with the trial judge's exercise of his judgment in construing section 101(1)(g).
113  EWCA Crim 429, at .
114 E.g. R. v. Doncaster  EWCA Crim 5(2008) 172 J.P. 202, .
115 E.g. R. v. McNeill  EWCA Crim 2927, (2008) 172 J.P. 50, .
116 Discretion to depart from the normal rule against investigation of collateral matters.
117  EWCA Crim 2308, .
118  EWCA Crim 2900, at .
119 The new criterion for the exercise of the old proviso as introduced by the Criminal Appeal Act 1995.
120 And led to a now postponed proposal for further statutory amendment.
121  EWCA Crim 2512, . In R. v. Finch  EWCA Crim 36,  1 W.L.R. 1645,  in taking a similar view of a defence witness the Court of Appeal first stressed its limited power of review, but then went on to emphasise its agreement with the trial judge.
122  EWCA Crim 1237,  1 W.L.R. 2467, .
123 And under the Criminal Procedure Rules be set out in the notice of intention to adduce the evidence.
124  EWCA Crim 824,  2 Cr.App. Rep. 299, .
125  EWCA Crim 1813,  1 Cr.App. Rep. 31, .
126  EWCA Crim 1985,  1 W.L.R. 3472, . See also R. v. MM  EWCA Crim 2317, ; R. v. Murphy  EWCA Crim 3408, ; R. v. Clarke  EWCA Crim 3427, ; R. v. Awaritefe  EWCA Crim 706, –; R. v. McDonald  EWCA Crim 1194, .
127 And as noted above such direction will need to descend from high abstraction.
128 See R. v. Hanson , and his recommendation in R. v. Edwards at .
129  EWCA Crim 1472,  1 W.L.R. 2798, . See also R. v. Wallace  EWCA Crim 1760,  1 W.L.R. 572, ; R. v. Maguire  EWCA Crim 1028, (2008) 172 J.P. 417,  (in the context of the direction to be given on the application of s.34 of the Police and Criminal Evidence Act 1984).
130 Tennyson, Aylmer's Field.
131 By way of interpretation of article 6(3)(d).