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Book

Richard Glover

Murphy on Evidence is firmly established as a leading text for use on undergraduate law courses and in preparation for professional examinations. Frequently consulted by judges and practitioners, and regularly cited in judgments, it has come to be regarded as a work of authority throughout the common law world. The book’s unique approach effectively bridges the gap between academic study of the law of evidence and its application in practice, combining detailed analysis of the law with a wealth of practical information about how it is used in the courtroom. As in previous editions, the author’s teaching method is centred around two realistic case studies—one criminal and one civil—presenting challenging evidence issues and questions for discussion at the end of each chapter. The case study material for this new edition has been further developed with new videos on the Online Resource Centre. Fully up to date with the latest developments in this fast-moving subject, the fifteenth edition of Murphy on Evidence is as indispensable as its predecessors. Topics include: the language of the law of evidence; the judicial function in the law of evidence; the burden and standard of proof; character evidence; and the rule against hearsay.

Chapter

Chapter 2 is divided into two parts. The first part is concerned with the manner in which a dispute as to which party bears the burden of proving a particular issue in a trial should be resolved. The question may arise in a criminal trial as to whether it is the prosecution or defence which bears the burden of proving a certain issue, and in a civil trial as to whether it is the claimant or defendant who bears the burden of proving a certain issue. The second part focuses on the standard to which the burden of proving a particular issue requires to be discharged.

Chapter

Chapter 2 is divided into two parts. The first part is concerned with the manner in which a dispute as to which party bears the burden of proving a particular issue in a trial should be resolved. The question may arise in a criminal trial as to whether it is the prosecution or defence which bears the burden of proving a certain issue, and in a civil trial as to whether it is the claimant or defendant who bears the burden of proving a certain issue. The second part focuses on the standard to which the burden of proving a particular issue requires to be discharged.

Chapter

This first part of the chapter discusses the concept of burden of proof, covering the legal or persuasive burden of proof; the evidential burden; the effect of presumptions on the burden of proof; the legal burden of proof in civil cases; the evidential burden in civil cases; the burden of proof in criminal cases; defence burdens of proof before Lambert; defence burdens of proof after Lambert; and the burden of proof of secondary facts. The second part of the chapter discusses the standard of proof, covering standard of proof required of prosecution in criminal cases; standard of proof required of defence; standard of proof of secondary facts; the standard of proof in civil cases; and the standard of proof in matrimonial and family cases.

Chapter

This chapter focuses on the burden of proof and presumption of innocence in criminal and civil cases under Article 6 of the European Convention on Human Rights (ECHR). It considers the influence of the UK’s Human Rights Act 1998 (HRA) on the allocation of the burden of proof and compares legal/persuasive burden of proof with the evidential burden. It contains a detailed examSination of the case law under this Act and the criteria developed to assess where reverse burdens should apply. It draws on academic commentary in making this analysis. It also looks at situations where the legal and the evidential burden may be split. The leading cases on the standard of proof in civil cases are reviewed.

Chapter

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. This chapter discusses the allocation of the burden of proof in civil and criminal trials, depending on who should bear the risk. In criminal trials the ‘presumption of innocence’ means that the burden is on the prosecution, unless reversed by express or implied statutory provision. The law of evidence safeguards what in some jurisdictions is a civil right backed by the constitution. It is important to understand the difference between the legal and evidential burden and the occasions where they are separately allocated. Tricky areas are where there is a divorce of the legal and evidential burden, primarily in situations where the prosecution cannot expect to put up evidence to anticipate every specific defence the accused may present.

Chapter

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. This chapter begins by addressing the question: What is a crime? It then discusses the difference between criminal law, the law of tort, and contract law; the function of criminal law; sources of criminal law; the classification of offences; the criminal justice process; the hierarchy of the criminal courts; the burden and standard of proof; and the elements of an offence.

Chapter

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. This chapter begins by addressing the question: What is a crime? It then discusses the difference between criminal law, the law of tort, and contract law; the function of criminal law; sources of criminal law; the classification of offences; the criminal justice process; the hierarchy of the criminal courts; the burden and standard of proof; and the elements of an offence.

Chapter

This chapter discusses the law on standard of care and breach of duty. To establish that the duty of care has been breached, the standard of care must first be found and then it must be decided if that standard was reached in the circumstances. The general standard of care is objective: the ‘reasonable person’ standard. Variations in the standard of care regarding children and the more skilled or professional are discussed, as are those pertaining to sport and the medical profession. Proof of breach must be established by the claimant on the balance of probabilities; occasionally with the benefit of the evidential tool of res ipsa loquitur.

Chapter

6. Breach of duty  

The standard of care

This chapter discusses the law on standard of care and breach of duty. To establish that the duty of care has been breached, the standard of care must first be found and then it must be decided if that standard was reached in the circumstances. The general standard of care is objective: the ‘reasonable person’ standard. Variations in the standard of care regarding children and the more skilled or professional are discussed, as are those pertaining to sport and the medical profession. Proof of breach must be established by the claimant on the balance of probabilities; occasionally with the benefit of the evidential tool of res ipsa loquitur.

Chapter

This chapter focuses on the burden of proof and presumption of innocence in criminal and civil cases under Article 6 of the European Convention on Human Rights (ECHR). It considers the influence of the UK’s Human Rights Act 1998 on the allocation of the burden of proof and compares legal/persuasive burden of proof with the evidential burden. It contains a detailed examination of the case law under this Act and the criteria developed to assess where reverse burdens should apply. It draws on academic commentary in making this analysis. It also looks at situations where the legal and the evidential burden may be split. It concludes with an overview of the law on presumptions.

Book

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions and coursework. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. Concentrate Q&A Evidence offers expert advice on what to expect from your Evidence exam, how best to prepare and guidance on what examiners are really looking for. Written by experienced examiners, it provides clear commentary with each question and answer and bullet points and diagram answer plans plus tips to make your answer really stand out from the crowd and further reading suggestions at the end of every chapter. The book should help the reader identify typical law exam questions, structure a first-class answer, avoid common mistakes, show the examiner what the reader knows and find relevant further reading. After an introduction, the book covers burden and standard of proof, presumptions, competence and compellability, Special Measures Directions, character evidence, hearsay, confessions, the defendant’s silence, improperly obtained evidence, supporting evidence, identification expert opinion, issues in the course of trial, privilege, public policy and mixed questions. The final chapter gives guidance on assessed coursework. The book is suitable for undergraduate law students taking optional modules in Evidence.

Chapter

This chapter examines breach of duty in negligence. It discusses the factors that courts consider in determining whether defendants are in breach of their duties of care to claimants. In each case, these factors include the foreseeability of harm to the claimant, the appropriate standard of care owed by the defendant to the claimant, and the conduct of the defendant in comparison to the expected standard of care. This chapter suggests that the question of whether the defendant has breached a duty of care is a mixed one of law and fact and that the standard of care required of the defendant is an exclusively legal construct and based on the standard of a hypothetical reasonable person. The chapter considers also special issues involving proof of breach, most importantly in the application of the res ipsa loquitur doctrine.

Chapter

This chapter examines breach of duty in negligence. It discusses the factors that the court considers in determining whether the defendant is in breach of his duty of care to the claimant. These include the foreseeability of harm to the claimant, the appropriate standard of care owed by the defendant to the claimant, and the conduct of the defendant in comparison to the expected standard of care. This chapter suggests that the question of whether the defendant has breached a duty of care is a mixed one of law and fact and that the standard of care required of the defendant is an exclusively legal construct and based on the standard of a hypothetical reasonable person.

Chapter

This chapter explains the rules governing the legal and evidential burdens of proof that decide which party has the responsibility of proving a fact in issue to the court. It then discusses the degree of persuasiveness the evidence must attain to satisfy the appropriate standard of proof including the test for a successful submission of no case to answer and considers the human rights issues in those exceptional situations where the accused has the legal burden of proof. For both the prosecution and the defence, the rules that allocate the burden of proof and the degree of proof are fundamental to the outcome of a case at trial.

Chapter

Martin Hannibal and Lisa Mountford

This chapter explains the rules governing the legal and evidential burdens of proof that decide which party has the responsibility of proving a fact in issue to the court. It then discusses the degree of persuasiveness the evidence must attain to satisfy the appropriate standard of proof including the test for a successful submission of no case to answer and considers the human rights issues in those exceptional situations where the accused has the legal burden of proof. For both the prosecution and the defence, the rules that allocate the burden of proof and the degree of proof are fundamental to the outcome of a case at trial.

Chapter

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses the following: criminal and civil burdens of proof; the ‘legal burden of proof’ and the ‘evidential burden’; the ‘tactical burden’; the prosecution’s legal burden of proof in criminal cases; when the defendant in a criminal case bears the legal burden of proof; the standard of proof; the evidential burden; the judge’s ‘invisible burden’; the burden of proof when establishing the admissibility of evidence; presumptions and the incidence of the burden of proof; and reversal of the burden of proof and the European Convention on Human Rights.

Chapter

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses the following: criminal and civil burdens of proof; the ‘legal burden of proof’ and the ‘evidential burden’; the ‘tactical burden’; the prosecution’s legal burden of proof in criminal cases; when the defendant in a criminal case bears the legal burden of proof; the standard of proof; the evidential burden; the judge’s ‘invisible burden’; the burden of proof when establishing the admissibility of evidence; presumptions and the incidence of the burden of proof; and reversal of the burden of proof and the European Convention on Human Rights.

Book

Andrew L-T Choo

Andrew Choo’s Evidence provides an account of the core principles of the law of civil and criminal evidence in England and Wales. It also explores the fundamental rationales that underlie the law as a whole. The text explores current debates and draws on different jurisdictions to achieve a mix of critical and thought-provoking analysis. Where appropriate the text draws on comparative material and a variety of socio-legal, empirical, and non-legal material. This (sixth) edition takes account of revisions to the Criminal Procedure Rules, the Criminal Practice Directions, and the Police and Criminal Evidence Act Codes of Practice. It also examines in detail cases on various topics decided since the last edition was completed, or the significance of which has become clear since then, including: • Addlesee v Dentons Europe llp (CA, 2019) (legal professional privilege) • Birmingham City Council v Jones (CA, 2018) (standard of proof) • R v B (E) (CA, 2017) (good character evidence) • R v Brown (Nico) (CA, 2019) (hearsay evidence) • R v C (CA, 2019) (hearsay evidence) • R v Chauhan (CA, 2019) (submissions of ‘no case to answer’) • R v Gabbai (Edward) (CA, 2019) (bad character evidence) • R v Gillings (Keith) (CA, 2019) (bad character evidence) • R v Hampson (Philip) (CA, 2018) (special measures directions) • R v K (M) (CA, 2018) (burden of proof) • R v Kiziltan (CA, 2017) (hearsay evidence) • R v L (T) (CA, 2018) (entrapment) • R v Reynolds (CA, 2019) (summing-up) • R v S (CA, 2016) (hearsay evidence) • R v SJ (CA, 2019) (expert evidence) • R v Smith (Alec) (CA, 2020) (hearsay evidence) • R v Stevens (Jack) (CA, 2020) (presumptions) • R v Townsend (CA, 2020) (expert evidence) • R v Twigg (CA, 2019) (improperly obtained evidence) • R (Jet2.com Ltd) v CAA (CA, 2020) (legal professional privilege) • R (Maughan) v Oxfordshire Senior Coroner (SC, 2020) (standard of proof) • Serious Fraud Office v Eurasian Natural Resources Corpn Ltd (CA, 2018) (legal professional privilege) • Shagang Shipping Co Ltd v HNA Group Co Ltd (SC, 2020) (foundational concepts; improperly obtained evidence) • Stubbs v The Queen (PC, 2020) (identification evidence) • Volaw Trust and Corporate Services Ltd v Office of the Comptroller of Taxes (PC, 2019) (privilege against self-incrimination) • Volcafe Ltd v Cia Sud Americana de Vapores SA (SC, 2018) (burden of proof)

Chapter

This chapter examines Article 101(3) of the Treaty of Functioning of the European Union (TFEU). Article 101(3) provides a ‘legal exception’ to the prohibition in Article 101(1) by providing that it may be declared inapplicable in respect of agreements, decisions or concerted practices, or of categories of agreements, decisions or concerted practices, that satisfy four conditions. After making some preliminary comments on the application of Article 101(3), this chapter discusses the four conditions in Article 101(3). It then considers the implications of Regulation 1/2003 for undertakings and their professional advisers, and in particular their need to ‘self-assess’ the application of Article 101(3) to agreements. The final section of this chapter describes the system of so-called ‘block exemptions’.