Solicitors' Higher Rights of Audience Qualification Evidence in the Higher Courts Syllabus

Evidence in the Higher Courts syllabus — full chapter and topic list

Expand any chapter to see its topics and sub-topics. This is the whole examinable outline for Evidence in the Higher Courts in Solicitors' Higher Rights of Audience Qualification, not a summary of it.

1. 1

   Fundamental Principles of Evidence

   3 topics

   • Relevance and admissibility
     • The test of relevance
     • Judicial discretion to exclude
   • Burden and standard of proof
     • Legal and evidential burdens
     • Standards in civil and criminal cases
   • Facts requiring no proof
     • Judicial notice
     • Formal admissions
2. 2

   Witness Evidence and Competence

   3 topics

   • Competence and compellability
     • General rules on competence
     • Spouses and special categories
   • Oral evidence and witness statements
     • Examination, cross-examination and re-examination
     • Witness statements standing as evidence in chief
   • Special measures directions
     • Eligibility for special measures
     • Live links, screens and intermediaries
3. 3

   Hearsay Evidence

   3 topics

   • Definition and rule against hearsay
     • Identifying hearsay statements
     • Rationale for exclusion
   • Hearsay in criminal proceedings
     • Statutory gateways under the Criminal Justice Act 2003
     • Business documents and unavailable witnesses
   • Hearsay in civil proceedings
     • Civil Evidence Act 1995 admissibility
     • Notice and weight provisions
4. 4

   Character and Conduct Evidence

   3 topics

   • Bad character of the defendant
     • The statutory gateways (CJA 2003)
     • Exclusion of unfair bad character evidence
   • Good character and directions
     • The good character direction
     • Loss of good character
   • Bad character of non-defendants
5. 5

   Confessions, Identification and Privilege

   3 topics

   • Confession evidence
     • Admissibility and oppression (PACE s.76)
     • Exclusion under PACE s.78
   • Identification evidence
     • Turnbull guidelines
     • Identification procedures
   • Privilege and public interest immunity
     • Legal professional privilege
     • Privilege against self-incrimination

Evidence in the Higher Courts flashcards for Solicitors' Higher Rights of Audience Qualification

21 of 50 cards from the Evidence in the Higher Courts deck — real questions with worked answers.

1. What is the test for relevance of evidence under the common law?

   Evidence is relevant if it is logically probative or disprobative of a fact in issue — i.e. it makes the existence of that fact more or less probable (DPP v Kilbourne). Only relevant evidence is admissible.

2. Distinguish 'relevance' from 'admissibility' of evidence.

   Relevance is a logical question of whether the evidence tends to prove a fact in issue. Admissibility is a legal question of whether relevant evidence is permitted by the rules. All admissible evidence must be relevant, but not all relevant evidence is admissible (it may be excluded by an exclusionary rule).

3. Under what general discretion can a court exclude prosecution evidence in a criminal trial, and what is the test?

   Section 78 of the Police and Criminal Evidence Act 1984: the court may refuse to allow prosecution evidence if, having regard to all the circumstances including how it was obtained, its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted.

4. Who bears the legal (persuasive) burden of proof in a criminal case, and what is the authority?

   The prosecution bears the legal burden of proving the defendant's guilt (Woolmington v DPP — the 'golden thread'). The defendant generally bears no burden to prove innocence.

5. What is the criminal standard of proof, and how is it expressed to a jury?

   Proof beyond reasonable doubt. Juries are now typically directed that they must be 'sure' of guilt before convicting.

6. What is the standard of proof when the defendant bears a legal burden (e.g. insanity or a statutory defence)?

   The balance of probabilities (the civil standard) — the defendant need only prove the matter as more likely than not, not beyond reasonable doubt.

7. Distinguish the 'legal burden' from the 'evidential burden'.

   The legal (persuasive) burden is the obligation to prove a fact to the required standard. The evidential burden is the obligation merely to adduce sufficient evidence to raise an issue fit for the tribunal's consideration; discharging it does not prove the fact, it just puts the issue 'in play'.

8. In civil proceedings, who bears the burden of proof and to what standard?

   Generally the claimant bears the burden of proving each element of the claim (he who asserts must prove) on the balance of probabilities — i.e. more likely than not (over 50%).

9. What are the two categories of 'facts requiring no proof', and what do they mean?

   (1) Judicial notice — facts so notorious or readily verifiable that the court accepts them without evidence; and (2) Formal admissions — facts formally admitted by a party (under s.10 Criminal Justice Act 1967 in criminal cases) which are conclusive and need not be proved.

10. What is the effect of a formal admission under s.10 Criminal Justice Act 1967?

    It is conclusive evidence of the fact admitted against the party making it. It must usually be in writing and may be withdrawn only with the court's leave.

11. State the general rule on the competence of witnesses in criminal proceedings (s.53 Youth Justice and Criminal Evidence Act 1999).

    All persons are competent to give evidence at every stage of criminal proceedings, whatever their age, unless it appears they cannot understand questions put to them as a witness and give answers that can be understood.

12. To what extent is the accused competent and compellable in their own criminal trial?

    The accused is competent (but not compellable) as a witness for the defence. The accused is NOT competent as a witness for the prosecution.

13. When is the spouse or civil partner of the accused compellable for the prosecution?

    Only for 'specified offences' under s.80 PACE 1984 — broadly those involving assault/injury/threat to the spouse or a person under 16, or a sexual offence against a person under 16. For the defence the spouse is generally compellable.

14. What is the general rule requiring oral evidence and its exception?

    The general rule (best evidence / orality principle) is that witnesses give evidence orally in open court so they can be examined and cross-examined. Exceptions allow written witness statements or hearsay to be admitted under statutory provisions (e.g. CJA 2003 in crime; CEA 1995 in civil).

15. In what order is a witness ordinarily questioned at trial?

    (1) Examination-in-chief by the party calling them (no leading questions on disputed matters); (2) Cross-examination by the opposing party (leading questions permitted); (3) Re-examination by the calling party, confined to matters arising from cross-examination.

16. What is the rule against leading questions and where does it apply?

    A leading question suggests the desired answer or assumes a disputed fact. Leading questions are prohibited in examination-in-chief and re-examination (on disputed matters) but are permitted in cross-examination.

17. Who is eligible for special measures directions as a vulnerable or intimidated witness?

    Under the YJCEA 1999: witnesses under 18 (s.16), witnesses whose evidence quality is likely diminished by mental/physical disorder or impairment (s.16), and witnesses in fear or distress about testifying (intimidated witnesses, s.17). Complainants in sexual offences and certain others are automatically eligible.

18. List four examples of special measures available under the YJCEA 1999.

    Examples: screens shielding the witness from the accused (s.23); evidence by live link (s.24); evidence given in private/cleared court (s.25); removal of wigs and gowns (s.26); video-recorded evidence-in-chief (s.27); video-recorded cross-examination (s.28); communication through an intermediary (s.29); and use of aids to communication (s.30).

19. Can the accused themselves receive special measures, and what is available?

    The accused is generally excluded from the standard special measures regime, but may apply for evidence by live link (s.33A YJCEA 1999) and the appointment of an intermediary in limited circumstances. Their position is governed by separate provisions, not ss.16–17.

20. Give the statutory definition of hearsay in criminal proceedings (s.114/115 CJA 2003).

    A statement not made in oral evidence in the proceedings that is relied upon as evidence of a matter stated in it, where the purpose of the maker was to cause another to believe, or to act on the basis that, the matter is as stated. It is admissible only if a CJA 2003 gateway applies.

21. State the 'rule against hearsay'.

    An out-of-court statement is not admissible to prove the truth of its contents unless it falls within a recognised exception. The rationale is the inability to test the absent maker's reliability by cross-examination, plus risks of fabrication and error.

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