"Criminal Evidence in Context" explains the key concepts of evidence law in England and Wales clearly and concisely, set against the backdrop of the broader political and theoretical contexts. It informs students of the major debates within the field, providing an explanation as to how and why the law has developed as it has. Previously published by Law Matters Publishing, this second edition has been thoroughly revised and updated to take into account recent developments in the law and the considerable amount of case law that has emerged since publication of the previous edition. It includes new chapters on the privilege of non-incrimination; improperly-obtained evidence; and, expert evidence. Each chapter contains a range of pedagogical tools including key points, self-test questions and advice on further reading. Diagrams, flowcharts and bullet points make this text easy to follow and clarify complex and important topics.

Preface

Table of cases

Table of international instruments, statutes and legislation

1 KEY CONCEPTS

 INTRODUCTION

THE TRIAL

    The function of the judge and jury

    Facts in issue and collateral facts

    The voir dire or 'trial within a trial'

    Trial procedure

       Phase 1: the prosecution case

       Phase 2: a case to answer?

       Phase 3: the defence case

       Phase 4: the verdict

    The function of the criminal trial

 THE CONCEPT OF RELEVANCE

 FORMS OF EVIDENCE

    Direct evidence

    Documentary evidence

    Real evidence

    Circumstantial evidence

    Evidence of motive

 CORROBORATION AND IDENTIFICATION

    Identification evidence

 THE FUTURE OF CRIMINAL EVIDENCE

 KEY LEARNING POINTS

 QUESTIONS

 SUGGESTED FURTHER READING

2 THE PRINCIPLE OF ORALITY

 INTRODUCTION

THE OATH

THE EXPERIENCE OF VULNERABLE WITNESSES

    Child witnesses

    Complainants in rape and sexual cases

    Witnesses with learning disabilities

    Witnesses in fear of intimidation

    Other witnesses

SPECIAL MEASURES: A PANACEA FOR VULNERABLE WITNESSES?

    The YJCEA 1999

       Eligibility - child witnesses

       Eligibility - adult witnesses

       The defendant

    Types of special measures

       Screens

       Live link

       Evidence given in private

       Removal of Wigs and Gowns

       Video-recorded evidence-in-chief

       Video-recorded cross-examination and re-examination

       Examination of a witness through an intermediary

       Aids to communication

    A new era for vulnerable witnesses?

OTHER PROTECTIONS FOR WITNESSES IN FEAR

 The concealment of identity

 Admission of a written statement

KEY LEARNING POINTS

QUESTIONS

SUGGESTED FURTHER READING

THE BURDEN OF PROOF

INTRODUCTION

LEGAL AND EVIDENTIAL BURDENS

 The standard of proof

    Proof beyond reasonable doubt

    Proof on the balance of probabilities

TARNISHING THE THREAD - EXCEPTIONS TO WOOLMINGTON

 Common law exceptions

 Express statutory reversal

 Implied statutory exceptions

    Summary offences

    Indictable offences

THE IMPACT OF THE HUMAN RIGHTS ACT

 Article 6(2) of the Convention

 The Prevention of Terrorism (Temporary Provisions) Act 1989

 The Terrorism Act 2000

 Misuse of Drugs Act 1971/Homicide Act 1957

 The Insolvency Act 1986

 Discussion

RESTORING THE FUNDAMENTAL NATURE OF THE RIGHT?

KEY LEARNING POINTS

QUESTIONS

SUGGESTED FURTHER READING

COMPETENCE, COMPELLABILITY AND THE PRIVILEGE AGAINST

SELF-INCRIMINATION

INTRODUCTION

COMPETENT AND COMPELLABLE WITNESSES

Problematic witnesses

    Child witnesses

    Witnesses with physical and learning disabilities

    The spouse of the accused

    Former spouses, future spouses and polygamous 'spouses'

    The accused

THE PRIVILEGE AGAINST SELF-INCRIMINATION

The 'Even Terms' rule

The judicial direction

The right to silence

    Section 34: A failure to mention facts when questioned...

    The need for a caution

    Failure to mention facts

    The objective of the questioning

    Reliance in court

    Reasonably be expected to mention.., in the circumstances existing

         at the time

    Section 34 and legal advice

    Police disclosure and section 34

Section 35 - The effect of not giving evidence

    Safeguards under section 35

Section 36 and section 37

Concluding comment

KEY LEARNING POINTS

QUESTIONS

SUGGESTED FURTHER READING

EXAMINATION AND CROSS-EXAMINATION

INTRODUCTION

EXAMINATION-IN-CHIEF

Leading questions

Refreshing memory

    Out of court

    In court

    Reform - the Criminal Justice Act 2003

Previous consistent statements

    Statements to rebut evidence of fabrication

    Previous statements identifying persons, places or objects

    Evidence of recent complaint

    Previous statements by the accused in response to accusations

    Statements forming part of the res gestae

Unfavourable and hostile witnesses

PRINCIPLES OF CROSS-EXAMINATION

The nature of cross-examination

The finality rule

    Previous convictions

    Bias or partiality

    Evidence of physical or mental disability affecting reliability

    Evidence of a reputation for untruthfulness

    Previous inconsistent statements

Character attacks on non-defendant witnesses

    Important explanatory evidence

    Substantial probative value...

The cross-examination of rape complainants

    Previous sexual history evidence

    Reform: the Youth Justice and Criminal Evidence Act 1999

    The exceptions to the rule

    Section 41(3)(a) - an issue other than an issue of consent

    Section 41(3)(b) - sexual behaviour 'at or about' the same time

    Section 41(3)(c) - previous behaviour which is 'so similar ... that the

         similarity cannot be explained by coincidence'

    Rebutting prosecution evidence - section 41(1)(5)

    The additional protection: section 41 (4)

    Section 41: procedure and practice

KEY LEARNING POINTS

QUESTIONS

SUGGESTED FURTHER READING

EVIDENCE OF CHARACTER

INTRODUCTION

THE RATIONALE FOR EXCLUSION

THE EVOLUTION OF THE LAW

 The 'similar fact' rule

 The Criminal Evidence Act 1898

 The road to reform

WHAT CONSTITUTES 'BAD CHARACTER'?

 Previous acquittals and allegations

 'Evidence of the facts of the offence charged'

CONDITIONS FOR ADMISSIBILITY

 Gateways (a) and (b)

 Gateway (c) - important explanatory evidence

 Gateway (d) - relevance to an important matter in issue between

      prosecution and defendant

    Propensity to be untruthful

    Other matters in issue between the prosecution and defence

    Section 101(1)(d) in operation: some practice scenarios

    The distinction between section 101(1)(c) and under section 101(1)(d)

    Co-accused taking advantage of bad character evidence

 Gateway (e) - Substantial probative value in relation to an important matter

     in issue between defendant and co-defendant

    'Important issue' vs. 'substantial probative value'

 Gateway (f)- Evidence to correct a false impression

    Correcting the false impression

 Gateway (g) - Attacks on another person's character

COLLUSION AND CONTAMINATION

 Trials involving multiple victims

 The risk of collusion or contamination

EVIDENCE OF GOOD CHARACTER

KEY LEARNING POINTS

QUESTIONS

SUGGESTED FURTHER READING

HEARSAY EVIDENCE

INTRODUCTION

EVOLUTION OF THE MODERN LAW

What is hearsay?

    Direct and indirect hearsay

Reliable evidence excluded

Avoiding the rule

Hearsay 'fiddles'

THE EROSION OF THE RULE

Reform of the rule

THE CRIMINAL JUSTICE ACT 2003

Implied assertions and direct evidence

    Machine-generated statements

    Photofit identification

Section 116 -Where the witness is unavailable

    Where the relevant person is dead

    Relevant person is physically or mentally ill

    Relevant person is outside the United Kingdom

    Relevant person cannot be found

    Relevant person is in fear

    Where the accused is responsible for any of the conditions

         in section 116(2)

Section 117 - Use of business and other documents

    The conditions of admissibility

    Where the creator and recipient of the document are the same person

Section 118 - Preservation of common law exceptions

    Res gestae

    Section 118(1) 4(a) - Statements made by a person so emotionally

         overpowered...

    Section 118(1) 4(b) - Statements that accompany and explain acts

         of the maker

    Section 118(1) 4(c) - Statements of the maker's own contemporaneous

         state of mind

    Section 118(1) 7 - Statements made by a party to a common enterprise

Hearsay and previous inconsistent statements

Multiple hearsay

HEARSAY AND HUMAN RIGHTS

KEY LEARNING POINTS

QUESTIONS

SUGGESTED FURTHER READING

CONFESSIONS

INTRODUCTION

WHAT CONSTITUTES A CONFESSION?

Content of the confession

THE PRINCIPLE OF EXCLUSION

The scope of section 76(2)

The voir dire

The confessions of co-defendants

CRITERIA FOR ADMISSIBILITY

Oppression

    Defining 'oppression'

The method of questioning

    The requirement for a causal link

Unreliability

    Something 'said or done' need not emanate from the police

    Improper conduct by the police

    The method of questioning

Facts discovered subsequent to an excluded confession

Confessions by the mentally handicapped

Section 78: discretionary exclusion

    Section 78 and confession evidence

    Improper denial of access to legal advice

    Other breaches of PACE

    Section 78 and the right to silence

KEY LEARNING POINTS

QUESTIONS

SUGGESTED FURTHER READING

IMPROPERLY OBTAINED EVIDENCE

INTRODUCTION

EXCLUSION AT COMMON LAW

EXCLUSION UNDER PACE

 The discretion to hold a voir dire

 Breaches of PACE and the codes of practice

 Covert surveillance

 Undercover operations and entrapment

KEY LEARNING POINTS

 QUESTIONS

 SUGGESTED FURTHER READING

10 OPINION EVIDENCE

 INTRODUCTION

 NON-EXPERT WITNESSES

 EXPERT EVIDENCE

    When is expert opinion necessary?

       The application of Turner to mental states

    Determining the competency of experts

    Limitations on expert evidence

    Contesting expert evidence

 KEY LEARNING POINTS

QUESTIONS

SUGGESTED FURTHER READING

Index