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Evidence Law – Lecture 1Introduction: General Principles and ConceptsLaw of evidence has remained constant. State charges you with a crime or your rights have been infringed, the function of the law of evidence if to devise a framework of rules by reference to evidence. Parties decide what evidence ...

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Evidence Law – Lecture 1

Introduction: General Principles and Concepts Law of evidence has remained constant. State charges you with a crime or your rights have been infringed, the function of the law of evidence if to devise a framework of rules by reference to evidence. Parties decide what evidence they put forward and what witnesses they will cite. Relevancy of evidence Donoghue v Stevenson: don’t confuse relevancy as part of the law and practice of evidence with the plea of relevancy as matter of law. Case was argued, all the way to the HoL, that the pursuers case was irrelevant as no wrong was recognised by the law constituted by the facts of the case. Khaliq: this was also argued initially on the basis that it was irrelevant. If the facts were proved, they had not committed any crime known to the law, but this view was rejected. These show that whole cases can be argued on the basis on relevancy. These arguments preclude the giving of evidence. If there’s no crime, then there is no need to put forward evidence. The above says that some matters are excluded because they are not relevant to the court. "Evidence is relevant if it is logically probative or disprobative of some matter which requires proof . . .. It is sufficient to say, even at the risk of etymological tautology, that relevant (i.e. logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable." (DPP v Kilbourne [1973] AC 729, 756 per Lord Simon of Glaisdale). Evidence which is not sufficiently relevant can be excluded, doesn’t have to necessarily be entirely irrelevant. Often the finder of fact will be a jury. Here you have to avoid confusing the finder of fact by introducing too many side topics. A lot of evidence can be excluded on this basis. Relevancy is a matter of degree and lies within the discretion of the trial judge. Admissibility of evidence Evidence has to be relevant to be admissible, but not all relevant evidence will be admissible. A lot of relevant evidence will not be considered by the court due to policy considerations. Sort of considerations that may make evidence admissible: a) Setting a limit to the scope of any judicial enquiry by excluding evidence of collateral matters (e.g. evidence about character)

b) Ensuring that as far as practicable the truth is ascertained and therefore excluding unreliable evidence (e.g. rule against hearsay evidence) c) Promoting a goal or policy other than truth-finding (e.g. protection of solicitor-client confidentiality) Distinctions in categories of evidence Evidence can be classified in a number of ways. (a) Direct or circumstantial Direct evidence is when it points to a fact in issue before the court (e.g. eyewitness evidence (seeing the accused murder the victim, for example)). Circumstantial evidence is not direct; it is where inference can be drawn (can still be eyewitness evidence (never saw attack, but saw accused running frantically from the scene covered in blood, for example)). Evidence of motive, all forensic evidence etc. is circumstantial. Sometimes circumstantial evidence can portray a better image as each piece of evidence is added. Each piece of evidence will often be independent, its value doesn’t depend on the others value. Sometimes it can be the contrary. Therefore, such evidence is likened to a chain. The chain breaks if any link fails. Gillespie v McMillan 1957 JC 31: early speeding case. the way the police worked out if someone was speeding was to have a police officer at point A in a road with a stopwatch and a police officer at point B with the same. They would log the time the motorists passed their respective points and would use this to calculate speed. No inference can be drawn from this from evidence in isolation. Only by combining them was any inference possible. At the same time, if either piece was potentially inaccurate or suspect then the value of the other piece was likely destroyed. The court didn’t take this view, but probably should’ve as this is an illogical view. (b) Primary or secondary Primary evidence is the original of a document, or thing, that is laid before a court or involves a witness testifying what they know. Secondary evidence is evidence by a witness of what he heard someone else say, or a copy of a document etc. This distinction is important with reference to the ‘best evidence rule’: court needs the best evidence before it, sometimes this will be secondary evidence and so will be accepted. Where primary evidence exists, secondary evidence should be ruled admissible. (c) Oral, written or real evidence This classification turns on the nature or source of the evidence. Some types of written and all real evidence must be ‘spoken to’ (i.e. explained) by oral evidence.

Weight of evidence All types of evidence can be admitted, but trier of fact decides what weight evidence is given. Can be given little weight/exclude it all together. Jury’s deliberations are secret so this is problematic to see what weight they give evidence. Appeals, where there is a jury, on the basis that the trier of fact has attributed the wrong weight to evidence is very difficult. Necessity for evidence Normally you do need evidence, but sometimes you will not require it. This can be due to either facts being presumed to being known to the court or the other side admits to the fact(s). Unified law of evidence? Is there a unified law of evidence or is there a sharp distinction between civil and criminal evidence? Can decide this for ourselves, but lecturer believes there is a distinction, however both branches share common concepts. The impact of statute has tended to erode this commonality and emphasise the difference between the two branches of evidence. For example, there is no law of hearsay for civil, but, as above, there is for criminal. Interaction of evidence and procedure Procedure relates to the overall process whereby evidence is presented to the court and evidence falls within this.

Evidence Law – Judicial Knowledge Definition A consequence of our adversarial approach is that the court knows nothing apart from what is proved before it. Would be ludicrous to assume that the judges knew literally nothing. Parties need not prove matters within the judicial knowledge because the judge is assumed to know this already. Judicial knowledge is distinct from common knowledge. Common knowledge is generally part of judicial knowledge. However, judicial knowledge is matters which can immediately be ascertained from sources of indisputable accuracy, or which are so notorious as to be indisputable. Example: certain scientific facts can be part of judicial knowledge because they have been accepted as scientific fact, and so are incontestable, even if not every judge knows them.

"It is unnecessary, and usually incompetent, to lead evidence regarding matters which fall within judicial knowledge. The judge will himself take notice of these matters, either because he is bound by statute to do so, or because it is customary for judges to do so. In general, they are matters which can be immediately ascertained from sources of indisputable accuracy, or which are so notorious as to be indisputable." (Walker & Walker, Evidence, 3rd edn, p 209; adopted by Lord Justice-General Hope in Lord Advocate’s Reference (No. 1 of 1992) 1992 S.C.C.R. 724 at 737). Once a matter is within judicial knowledge, it becomes a rule of law and cannot be contested in future cases. A fact not within judicial knowledge must be proved even though it is within personal knowledge of the judge. Morrison v Monro - involved a charge, to succeed, involved showing the accused had previous convictions. This case was going to be thrown out as this wasn’t proved, but the judge knew the accused as he convicted him on previous occasions. On appeal, this was said to not be within judicial knowledge, as not every judge knew it, so had to be proved, and the court was not entitled to rely on personal knowledge so conviction was quashed. Court is neither entitled to come to a common sense view of the evidence when expert evidence is required. Kennedy v Smith – on appeal, it was held that a judge is not entitled to form their own view of the likely effect on a person after consumption of a certain amount of alcohol. Expertise required. Judicial knowledge and the law The law lies within judicial knowledge. This doesn’t mean the Counsel can lay the facts before the court and leave this to them. Counsel has a duty to lay all relevant authorities before the court whether they support you or not. This means the law does not have to be formally proved: don’t have to prove the law is the law. Can refer to the Acts of Parliament without having to prove it exists. This seems obvious but important to emphasise. Also, this would not be true of a private Act of Parliament prior to 1850, for these you would have to lay a formally certified copy before the court. The entire common law is part of judicial knowledge, as is EU law and international law. By contrast, English law is regarded as foreign law and so must be proved generally with the assistance of expert witnesses. All foreign law has to be proved. Unless the contrary is proved, foreign law will be assumed to be the same as Scots law and so Scots law will be applied. The English law of treason is made part of Scots law therefore doesn’t have to be proved. Exceptions to the foreign law section are the HoL as a house of appeal from Scottish Courts, Treason, if there is a reciprocal agreement between the jurisdiction and Scotland and child abduction. Other matters with judicial knowledge

a) Ordinary meanings of words. If a word is commonly litigated, or commonly litigated within technicality courts, then it can be judicial knowledge. Oliver v Hislop 1946 JC 20 – local bylaw spoke of cellik. Bylaw said if you were caught with this by a river then it was an offence. On appeal, the view taken was that a Sheriff based at Selkirk would know what this was as it had been used for hundreds of years in local legislation. If a word does seem to have a particular meaning bestowed by a particular context, then evidence can be lead as to its intended meaning. Ciceri & Co v Sutton & Co – referred to statutory carriages. Uncommon word and so the court accepted it was appropriate to lead evidence as to its meaning. b) Historical facts Renouf’s Trs v Haining – judges assumed to not only know history, but also historical development c) Facts of nature and science Harper v Great North of Scotland Railway Co – within judicial knowledge that certain bulls (with horns chopped off) are bad tempered and fierce. d) Facts of economic and social life Taylor v Wylie & Lochhead Ltd – facts of economic and social life are within judicial knowledge Doyle v Ruxton 1999 SLT 487 – within judicial knowledge that alcoholic drinks require a license(?) Petto v HM Adv – layout of tenement buildings was in judicial knowledge, assumed to be known to the court. Anyone who laid a fire on the ground floor of a tenement building would be aware that everyone else in the building would be at risk. No evidence required to show the layout of tenement buildings.

Evidence – Judicial Admissions In an adversarial system, you do not have to prove any matter that is admitted by the other party. It has to be in a formal, legal admission made in the course of court proceedings – for example, admissions under duress are not admissible. If you make an admission out with the court proceedings, e.g. to police, then this must be proved by evidence. The Crown must lead evidence to establish this. Accused is not guilty until this happens. Admission is, but not on its own conclusive, a form of evidence. These formal admissions are to be distinguished from extra-judicial admissions. But note A judicial admission must be taken subject to any explanation or qualification. Action concerning family relationships: Civil Evidence Act 1988, s.8:

(1) In any action to which this subsection applies (whether or not appearance has been entered for the defender), no decree or judgment in favour of the pursuer shall be pronounced until the grounds of action have been established by evidence. (2) Subsection (1) above applies to actions for divorce, for dissolution of civil partnership, for separation of spouses or of civil partners, for declarator of marriage or of nullity of marriage or of civil partnership, or of parentage or non-parentage. (3) . . . in any action for divorce, separation or declarator of marriage or nullity of marriage, the evidence referred to in subsection (1) above shall consist of or include evidence other than that of a party to the marriage (or alleged or purported marriage). Judicial admissions in civil actions a) Admissions on record: In civil actions, each side will build up their case before going to court on open record – which are admissions, documents etc. to which they will rely on in court. The record normally takes some months to build up. When this is ongoing it is known as the open record, which means the pleadings therein can be adjusted at any time. Any admission that you make can be withdrawn or qualified. Once the parties indicate they are happy with their pleadings, and the record is closed, any admission therein are binding on the party making it. Note also 'implied' admissions, ie where party does not expressly deny fact within his knowledge deemed to have admitted it, even where the pleadings say that the matter is 'not admitted’. OCR 9.7 (Sheriff Court): "Implied admissions. Every statement of fact made by a party shall be answered by every other party, and if such a statement by one party within the knowledge of another party is not denied by that other party, that other party shall be deemed to have admitted that statement of fact." Central Motor Engineering Co v Galbraith 1918 SC 755 – someone had given away property. Question was, did the party impliedly admit to knowing this by not deny it. Clark v Clark 1967 SC 296 Implied admissions come when you do not deny facts that you must inevitable know (facts that are within your knowledge). Just because you should probably, or could easily find out a fact, do not necessarily come within this; only things that you must inevitably know. b) Admissions by minute These are made by one or both parties in an action: Convery v Kirkwood 1985 SLT 483. For use in consistorial actions see OCR 33.26: "Joint minutes Where any parties have reached agreement in relation to(a) a section 11 order, (b) aliment for a child, or (c) an order for financial provision, a joint minute may be entered into expressing that agreement; and subject to rule 33.19(3) (no order before views of child expressed), the sheriff may grant decree in respect of those

parts of the joint minute in relation to which he could otherwise make an order, whether or not such a decree would include a matter for which there was no crave." (See also RCS 49.27 (Court of Session)). c) Notices to admit One party can serve a notice on the other, calling on them to admit certain facts, or to accept that a particular document is authentic for example. In the absence of a counternotice, denying this, then the evidence is deemed to be admit, unless the court directs otherwise. d) Oral admissions at the bar or court These are treated as equivalent to formal admissions. Judicial admissions in criminal cases a) Guilty pleas: a plea of guilty accepted by the Crown and not withdrawn by the accused is conclusive against the accused. (Cp Criminal Procedure (Scotland) Act 1995, s 146(8): "It shall not be necessary for the prosecutor to establish a charge or part of a charge to which the accused pleads guilty" (summary cases)). If a guilty plea is rejected, it cannot thereafter be referred to by the Crown. McLean v HM Adv. 2008 JC 97 – M accused of assault along with a number of other people. She offered to plead guilty as long as the charge of acting with others was dropped. The Sheriff later decided to accept her lawyers request of partial guilt. On appeal, it was affirmed that a plea of guilty, once rejected, cannot later be accepted or referred to by the Crown. If the Crown accepts a partial plea of guilty and has other charges against them, the jury should not be made aware of this as this will prejudice their mind against the accused - Walsh v HM Adv 1961 JC 51. McColl v Skeen 1980 SLT (Notes) 53 – for summary cases, awareness of a partial plea of guilty is said to have no effect on the Sheriff’s mind. Further, the Sheriff can take this into account if it is relevant to the remaining charges. Accused said to have forged MOT. Sheriff entitled to take into account his plea of guilty to driving without an MOT. b) Minutes of admission Pages 10-12 set out Section 256-258 of the Criminal Procedure (Scotland) Act 1995. This is the key statute here. Read statute. Evans v Wilson 1981 SCCR 60: minute of admissions referred to some documents, but the Crown’s failure to lodge these documents along with the minutes meant that the minutes were undermined and the conviction was quashed. c) Admission from special defence For example, self-defence is an implied admission – no need to prove actus reus as admitted to it, need only prove mens rea. This has been criticised. Probable better view is that such a defence does not remove the Crown the burden of having to prove all aspects, including the actus reus.

Owens v HM Adv 1946 JC 119, 124. Evidence – Burden (Onus) of Proof Range of Types of Burden of Proof a) Persuasive (legal) burden - Burden on party to prove particular fact in issue - Always remains with the party on whom the law imposes it – it never shifts. - Brown v Rolls Royce 19060 SC (HL) 22, 27-29 b) Evidential (provisional) burden - Burden on party to adduce enough evidence to make some matter a fact in issue - Accused does not have to prove defence f alibi but they are subject to evidential burden of pointing to evidence that will justify the court to consider the defence to begin with. - Crawford v HM Adv. 1950 JC 67, at 69: “If an accused provides or points to some evidence of alibi even though its flimsy and/or ambiguous then the evidential burden is met and the cour will direct the jury to take the possibility of alibi into account in deciding whether the case against the accused is proved beyond reasonable doubt.” – Lord J Cooper c) Tactical burden - When one party has discharged an evidential burden, other party needs to adduce contrary evidence. Does a burden of proof ‘shift’? For useful discussion see GH Gordon, 1968 SLT (News) 29 & 37 - Imposed not by law but by the state of the evidence and therefore may shift several times throughout the course of a case. - Arguable that there is no such thing as a tactical burden of proof Persuasive burden of proof in civil actions In general terms, the burden is on the Crown to prove all aspects of the case against the accused: - Lennie v HM Adv. 1946 JC 79, 80: court insisted that it was for an accused to prove an alibi where they asserted they had one. o Soon came to be acknowledged but that this made no sense (Lambie) - Owens v HM Adv. 1946 JC 119, 124: but disregard what is said in these cases about special defences (see below) - Note some special situations: o Insanity; diminished responsibility: 1995 Act:  Section 51A (4): criminal responsibility of persons with mental disorder. The special defence may be stated only by the person charged with the offence and it is for that person to establish it on the balance of probabilities.  Section 51B (4): diminished responsibility  It is fore the person charged with murder to establish, on the balance of probabilities, that the condition set out in subsection 1 is satisfied.

Position at common law is set out in: HM Adv. v Mitchell 1951 JC 53 and HM Adv. v Blake 1986 SLT o Other special defences (i.e. alibi, self-defence, incrimination): evidential but not persuasive burden on accused (Lambie v HM Adv. 1973 JC 53) o Cp position of automatism; coercion; consent in sexual offences: Criminal Procedure (S) Act 1995 s.78(2) - Facts peculiarly within the knowledge of the accused (Irving v Jessop 1987 SCCR 505) - Statutory burden on the accused – see D Sheldon, 1993 SLT (News) 33. Criminal Procedure (S) Act 1995, S...