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Chapter

Cover The Modern Law of Evidence

14. Hearsay admissible at common law  

This chapter considers the following categories of hearsay: statements in public documents, works of reference, evidence of birth, age, and death, evidence of reputation, statements forming part of the res gestae, and statements which are admissions made by an agent of a defendant. All of these categories were established at common law as exceptions to the rule against hearsay, and all of them have been preserved by statute. The categories relating to age and res gestae have been preserved in criminal but not civil proceedings. All of the other categories have been preserved in both criminal and civil proceedings.

Chapter

Cover Murphy on Evidence

13. The rule against hearsay IV  

The accused’s denials and silence

The rules applicable to confessions are not necessarily applicable to all statements made by a suspect when confronted with his suspected involvement in an offence, because not all such statements are even partly inculpatory. Two situations are of particular importance: those in which the accused denies the allegations put to him, and those in which he remains silent in the face of the allegations. This chapter discusses the following: the accused’s denials; the accused’s silence at common law; the accused’s failure to mention facts when questioned or charged; the accused’s failure to account for objects, substances, or marks; and the accused’s failure to account for their presence at the scene of the offence.

Chapter

Cover The Modern Law of Evidence

15. Confessions  

This chapter discusses the admissibility of confessions under the Police and Criminal Evidence Act 1984 (the 1984 Act). It considers how, under s 76(2) of the 1984 Act, confessions may be excluded as a matter of law where obtained by oppression or in consequence of something said or done which was likely to render any such confession unreliable. It also considers the discretion to exclude confessions under s 78(1) of the 1984 Act; the effect of breaches of the Codes of Practice issued under the 1984 Act; the voir dire; statements made in the presence of the accused; and facts discovered in consequence of inadmissible confessions.

Chapter

Cover The Modern Law of Evidence

11. Evidence obtained by illegal or unfair means  

This chapter discusses the circumstances in which relevant evidence can be excluded, as a matter of law or discretion, on the grounds that it was obtained illegally, improperly, or unfairly. The principles for exclusion of evidence are considered, and exclusion in both civil and criminal cases are covered. In respect of civil cases, discretionary exclusion under the civil procedure rules is examined, and in respect of criminal cases, discretionary exclusion at common law and under statute is discussed. The chapter also considers the circumstances in which criminal proceedings should be stayed as an abuse of the court’s process, where a trial would undermine public confidence in the criminal justice system and bring it into disrepute.

Chapter

Cover The Modern Law of Evidence

13. Hearsay admissible by statute in civil proceedings  

Under the common law rule against hearsay, any assertion, other than one made by a person while giving oral evidence in the proceedings, was inadmissible if tendered as evidence of the facts asserted. The Civil Evidence Act 1968 constituted a major assault upon the common law rule in civil proceedings by making provisions for the admissibility of both oral and written hearsay subject to certain conditions. In June 1988 the Civil Justice Review recommended an inquiry by a law reform agency into the usefulness of the hearsay rule in civil proceedings and the machinery for rendering it admissible. The subsequent recommendations of the Law Commission were put into effect by the Civil Evidence Act 1995. This chapter discusses the admissibility of hearsay under the Civil Evidence Act 1995; safeguards; proof of statements contained in documents; evidence formerly admissible at common law; and Ogden tables.

Chapter

Cover Murphy on Evidence

12. The rule against hearsay III  

Admissions and confessions

Admissions and confessions are the most important common law exceptions to the rule against hearsay. Section 118(1) of the Criminal Justice Act 2003 preserves any rule of law relating to the admissibility of admissions made by agents in criminal proceedings. This chapter is divided into two parts, the first of which discusses admissions, covering the principles of admissibility; what admissions may bind a party; and what may be proved by admission. The second part deals with confessions, covering the admissibility of confessions; the exclusion of confessions; evidence yielded by inadmissible confessions; excluded confessions as relevant non-hearsay evidence; confessions by the mentally handicapped and those otherwise impaired; the Codes of Practice and the discretionary exclusion of confessions; the use of confessions by co-accused; confessions implicating co-accused; and partly adverse (‘mixed’) statements.

Chapter

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16. Previous judgments as evidence  

The common law adopted the position that previous judgments should not be admissible as evidence of the truth of the facts on which they are based, as against strangers to the judgment. However, given the evidential value of previous judgments, the following cases must be distinguished: (a) judgments as evidence of their own existence, content, and legal effect; (b) judgments as evidence of the truth of facts on which they are based, as between the parties to the proceedings in which the judgment was given, and their privies; and (c) judgments as evidence of the truth of facts on which they are based, as between strangers to the proceedings in which the judgment was given, or as between parties to the proceedings (or their privies) and strangers. This chapter discusses cases (a) and (c).

Chapter

Cover The Modern Law of Evidence

12. Hearsay in criminal cases  

This chapter discusses the meaning of hearsay in criminal proceedings and the categories of hearsay admissible by statute in such proceedings. It considers the relationship between the hearsay provisions of the Criminal Justice Act 2003 (the 2003 Act) and Art 6 of the European Convention on Human Rights as it relates to hearsay; the definition of hearsay, and its admissibility under the 2003 Act, including admissibility under an inclusionary discretion (s 114(1)(d)); and safeguards including provisions relating to the capability and credibility of absent witnesses, the power to stop a case and the discretion to exclude. Also considered in this chapter are: expert reports; written statements under s 9 of the Criminal Justice Act 1967; and depositions of children and young persons under s 43 of the Children and Young Persons Act 1933.

Chapter

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9. Corroboration and suspect witness warnings  

This chapter discusses the corroboration rule and the practice of suspect witness warnings. It covers the meaning and function of corroboration; the fact that there is no general requirement for corroboration at common law and that a conviction or judgment may be based on the evidence of a single witness; where corroboration is required as a matter of law; the abolition of the rule of practice requiring the judge to direct the jury to exercise caution before convicting in the absence of corroboration; the development of suspect witness warnings; cases in which a suspect witness warning is required; and suspect witness warnings and confirming evidence.

Chapter

Cover Evidence

10. The rule against hearsay  

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. The rule against hearsay is one of the great exclusionary rules of the law of evidence. In a system that places a premium on orality, with witnesses delivering their testimony in person, it is an understandable corollary that witness A should often be forbidden from giving testimony on behalf of witness B. This chapter discusses the following: the rationale underlying a rule against hearsay; the hearsay rule in criminal cases, and its many exceptions, both at common law and under statute; and the remnants of the hearsay rule in civil proceedings.

Chapter

Cover Evidence

12. Drawing adverse inferences from a defendant’s omissions, lies, or false alibis  

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. A suspect’s silence in response to questioning is liable to arouse suspicion. This chapter discusses: the so-called right to silence; permissible inferences drawn from the defendant’s silence at common law; the failures provisions of the Criminal Justice and Public Order Act 1994: permissible inferences drawn from the defendant’s failure to mention facts, failure to testify, failure or refusal to account for objects etc, or failure to account for presence; permissible inferences drawn from lies told by the defendant: Lucas directions; permissible inferences drawn from false alibis put forward by the defendant.

Chapter

Cover Evidence Concentrate

3. Confessions, and the defendant’s pre-trial silence  

This chapter focuses on confessions and on the defendant’s pre-trial silence. It explains how a defendant may be convicted on the evidence of a confession alone. It analyses the definition of a confession as specified in s82(1) of the Police and Criminal Evidence Act 1984 (PACE), and how a confession proffered by the prosecution or by a co-defendant may be excluded by rule under PACE. The chapter also considers the preservation of the common law discretion to exclude confession evidence as well as the procedure for police interrogation of suspects under PACE. It examines recent case law on the significance of lack of access to legal advice of a suspect under interrogation. It concludes with an examination of how the jury at trial may draw an inference of guilt under ss34, 36, and 37 of the Criminal Justice and Public Order Act 1994 (CJPO), sections which have eroded the right to silence. The influence of the Strasbourg jurisprudence in this area is outlined.

Chapter

Cover Evidence Concentrate

7. Competence, compellability, and special measures  

This chapter focuses on the competence and compellability of witnesses in criminal and, in outline, in civil trials. It explains the main criminal law exceptions in relation to competence and universal compellability. It gives details on the complex and controversial position under s80 of the Police and Criminal Evidence Act (PACE) 1984. The chapter outlines the special measures directions (SMDs) available under the Youth Justice and Criminal Evidence Act (YJCAE) 1999 for vulnerable non-defendant witnesses in criminal trials. The more limited measures for vulnerable defendants are outlined, in particular the use of intermediaries. The chapter concludes with an outline of the Criminal Evidence (Witness Anonymity) Act 2008.