THE COMMON LAW LIBRARY PHIPSON ON EVIDENCE SEVENTEENTH EDITION ;: THOMSON REUTERS SWEET & MAXWELL

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1 THE COMMON LAW LIBRARY PHIPSON ON EVIDENCE SEVENTEENTH EDITION SWEET & MAXWELL ;: THOMSON REUTERS

2 PAGE Foreword Preface Table of Cases Table of Statutes Table of Civil Procedure Rules Table of Legislation Table of Statutory Instruments vii ix xxi ccxxxv cclx cclxiv cclxv 1. INTRODUCTION Hodge Malek Q.C. 1. Introductory Definitions and classification Inspection, view and production Lex fori Functions of judge and jury Law and fact Impact of the Human Rights Act 1-^45 2. THE DEFINING OF THE ISSUES Hodge Malek Q.C. 1. Introduction Statements of case and pleadings Variance and amendment JUDICIAL NOTICE Hodge Malek Q.C. 1. Judicial Notice: Introduction Scope of the rule Law, procedure and custom Constitutional, political and administrative matters Territorial and geographical divisions Official gazettes, seals and signatures Matters notified, and companies incorporated by statute Notorious facts Refreshing memory of judge ADMISSIONS Katharine Grevling 1. Admissions generally Formal admissions for purposes of trial Principles common to admissions in civil cases and to confessions in criminal cases Informal admissions client, solicitor, counsel and witnesses 4 23 [xi]

3 5. ESTOPPELS Tony Oakley 1. Introductory Legal estoppels Equitable estoppel BURDEN AND STANDARD OF PROOF Jonathan Auburn 1. Concepts Burden of proof in civil cases Burden of proof in criminal cases Presumptions Impact of the Human Rights Act on reverse burdens and presumptions Standard of proof: criminal cases Standard of proof: civil cases RELEVANCE, ADMISSIBILTY AND WEIGHT: PREVIOUS AND SUBSEQUENT EXISTENCE OF FACTS: THE BEST EVIDENCE RULE Roderick Bagshaw 1. Facts in issue Facts relevant to the issue Facts which affect the legal reception or weight of the evidence tendered Relevance and admissibility Weight of evidence Previous and subsequence existence of facts; course of business Custom and usage Standards of comparison Treatment The best evidence rule 8. ATTENDANCE OF WITNESSES Hodge Malek Q.C. 1. Scope of this chapter Attendance of witnesses in civil cases Attendance of witnesses in criminal cases Witnesses within the United Kingdom Witnesses out of the jurisdiction Evidence in the jurisdiction for foreign civil proceedings Obtaining evidence out of the jurisdiction or for proceedings abroad: criminal cases COMPETENCE AND COMPELLABILITY, OATH AND AFFIRMATION Stephen Whale 1. Competence Compellability Competence and compellability in criminal proceedings of defendants and their spouses Oath and affirmation 9-26 [xii]

4 10. EVIDENCE TAKEN OR SERVED BEFORE TRIAL: DUTY TO DISCLOSE EVIDENCE Stephen Whale 1. Civil cases Criminal cases RULES OF EVIDENCE RELATING TO THE COURSE OF A TRIAL: GENERAL Jonathan Auburn & Douglas Day Q.C. 1. Civil Criminal RULES OF EVIDENCE RELATING TO THE COURSE OF A TRIAL: EXAMINATION OF WITNESSES Jonathan Auburn & Douglas Day Q.C. 1. Civil Criminal EVIDENCE TAKEN AFTER TRIAL Jonathan Auburn & Douglas Day Q.C. 1. Civil cases Criminal Cases CORROBORATION, SUPPORTING EVIDENCE AND RELATED WARNINGS Roderick Bagshaw 1. General Situations where supporting evidence is required by statute Situations where a warning may be necessary What constitutes supporting evidence? IDENTIFICATION Roderick Bagshaw 1. Personal characteristics, etc Visual identification Directions on visual identification evidence Other means of identification PHYSICAL CONDITIONS, STATES OF MIND AND EMOTIONS Roderick Bagshaw 1. Introduction Out of court statements Proof of states of mind and body Permissible inferences from states of mind and body CHARACTER: GENERAL AND INTRODUCTORY Peter Mirfield 1. Introduction Types of evidential relevance Direct issue cases GOOD CHARACTER Peter Mirfield 1. Good character of the accused Good character of others [xiii]

5 19. BAD CHARACTER OF THE ACCUSED (PROSECUTION ASPECTS) Peter Mirfield 1. Introduction to accused's bad character Preliminary matters The common law Criminal Justice Act Statutory exceptions to the common law rule BAD CHARACTER OF THE ACCUSED (DEFENCE ASPECTS) Peter Mirfield 1. Preliminary matters Criminal Justice Act Proof of convictions Bad "character" at common law BAD CHARACTER OF THE CO-ACCUSED Peter Mirfield 1. Introduction Criminal Justice Act BAD CHARACTER OF PERSONS OTHER THAN THE ACCUSED Peter Mirfield 1. Introduction The common law Criminal Justice Act Special protection from bad character evidence (rape and allied offences) LEGAL PROFESSIONAL PRIVILEGE Charles Hollander Q.C. 1. The nature of legal professional privilege Who may claim privilege? Parts of documents, selections and copies Particular cases Manner and form of claim for privilege Legal advice privilege Litigation privilege OTHER FORMS OF PRIVILEGE Charles Hollander Q.C. 1. Joint privilege Common interest privilege Without prejudice privilege Privilege against self-incrimination FACTS EXCLUDED BY PUBLIC POLICY Charles Hollander Q.C. & Stephen Whale 1. Development of public interest immunity Public interest immunity today Public interest immunity in practice: criminal cases Public interest immunity in practice: civil cases [xiv]

6 5. Categories of documents which may be subject to immunity Exclusion of evidence relevant to the adjudicative process Telephone intercepts Loss AND WAIVER OF PRIVILEGE Charles Hollander Q.C. 1. Waiver of privilege: the principles Express waiver of privilege Limited waiver Waiver of privilege: waiver extending to collateral or associated documents Waiver of privilege: particular cases Implied waiver of privilege Loss of privilege through inadvertent disclosure Loss of privilege through fraud THE COLLATERAL UNDERTAKING Charles Hollander Q.C. 1. Development of the undertaking The position under the CPR Arbitrations Obtaining permission to use documents Termination of the undertaking THE RULE AGAINST HEARSAY Rosemary Pattenden 1. Introduction Definitions of hearsay Justifications for the hearsay rule Application of the hearsay rule at common law Proceedings in which the hearsay rule does not apply Reform HEARSAY IN CIVIL PROCEEDINGS Stephen Whale 1. Introduction, Abolition of the hearsay rule: section Safeguards: sections Competence, previous statements, common law: section Records: sections Civil Procedure Rules applicable to hearsay evidence Hearsay evidence: the approach of the courts Other proceedings HEARSAY IN CRIMINAL PROCEEDINGS Rosemary Pattenden 1. General Definition of hearsay in the Criminal Justice Act Overview of the Criminal Justice Act Admitting hearsay by consent Unavailable witness [xv]

7 6. Business and similar documents Inconsistent statement Rebutting alleged fabrication of evidence Forgotten information Recent complaint Evidence of past identification Inclusionary discretion Other statutes Common law categories of admissibility General powers to control admission of hearsay evidence Procedural matters Hearsay and the European Convention on Human Rights RES GESTAE AND CERTAIN OTHER EXCEPTIONS TO THE HEARSAY RULE IN CRIMINAL PROCEEDINGS Rosemary Pattenden 1. The res gestae principle Spontaneous (excited) utterances Statements explaining acts Statements relating to present physical condition or present state of mind (including emotions) Admissions, confessions and mixed statements Vicarious admissions Common enterprise exception: origins and rationale Scope of the common enterprise exception Requirements of the common enterprise hearsay exception Statements of co-conspirators admitted for a non-hearsay purpose Expert evidence COMMON LAW EXCEPTIONS TO THE RULE AGAINST HEARSAY: EVIDENCE OF REPUTATION OR FAMILY TRADITION; PUBLISHED WORKS; PUBLIC INFOR- MATION; BANKERS' BOOKS; ANCIENT DOCUMENTS Rosemary Pattenden 1. Reputation as to character Reputation or family tradition as to pedigree Reputation or family tradition as to public general rights Reputation or family tradition in aid of identification of any person or thing Public information Bankers' Books Ancient documents as evidence of ancient possession OPINION AND EXPERT EVIDENCE Hodge Malek Q.C. 1. Principle at common law Exceptions: Introduction General reputation Expert opinion Expert evidence in civil proceedings Expert evidence in criminal proceedings Expert evidence as to competency and credit [xvi]

8 8. Compellability of expert witnesses Value of expert evidence Subjects of expert evidence Subject on which experts may not testify Opinions of non-experts STATISTICAL AND SURVEY EVIDENCE Deirdre Dwyer 1. The nature of statistical evidence Classical statistics Probability and proof Bayesian statistics Survey evidence Official and other publically available statistics RESTRICTIONS ON THE RIGHT TO SILENCE Katharine Grevling 1. The name of the right The nature of silence Pre-trial silence Failure to account for objects, substances, marks or presence at the scene The accused who fails to give evidence at trial Scope of section "Proper" inferences of guilt CONFESSIONS Katharine Grevling 1. Meaning of confession Matters provable by confession Admissibility of confessions in criminal trials Admissibility before the Police and Criminal Evidence Act Admissibility under the Police and Criminal Evidence Act 1984 section Breach of provisions of the 1984 Act and the Codes of Practice Discretionary exclusion of confessions Function of judge and jury Procedure: the Crown Court Procedure: Magistrates' Court Burden of proof Practice before the jury The admissibility in the substantive trial of evidence given in the trial within a trial Cross-examination on inadmissible confession Confessions of co-defendants and others Admissibility of an excluded confession to show defendant's mode of expression Admissibility of facts discovered as a result of an excluded confession Confessions which include hearsay or opinion [xvii]

9 19. "Mixed statements": confessions which include exculpatory matter Ambiguous confessions Lies of the accused Rulings in and results of previous trials Confessions by mentally handicapped persons Admissions under compulsory process of law STATEMENTS IN THE PRESENCE, AND DOCUMENTS IN THE POSSESSION, OF A PARTY Katharine Grevling 1. Principle Statements Documents AGENCY, PARTNERSHIP, COMPANIES, COMMON PURPOSE, ACTING IN A CAPACITY Katharine Grevling 1. Agency Partners, trustees, executors Corporations Acts and declarations in pursuance of a common purpose Acting in capacity, or under documents JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE Stephen Whale 1. Criminal proceedings: introduction R. v Sang The court's powers in relation to co-defendants Police and Criminal Evidence Act 1984, section Eavesdropping cases Offences instigated Deception The effect of fairness of the proceedings European Convention on Human Rights Other aspects of section Abuse of process Other examples of discretion Civil proceedings AUTHORSHIP AND EXECUTION: ATTESTATION: ANCIENT DOCUMENTS, CON- NECTED AND INCORPORATED DOCUMENTS, ALTERATIONS AND BLANKS, REGISTRATION, STAMPS, ETC. Saima Hanif 1. Genuineness, authorship and execution Connected documents: incorporation reference Alteration: erasures Blanks Registration: enrolment Stamps [xviii]

10 41. DOCUMENTS AND DOCUMENTARY EVIDENCE; HOW DOCUMENTARY EVIDENCE IS PROVED; CATEGORIES OF DOCUMENTARY EVIDENCE: PUBLIC, JUDICIAL AND PRIVATE Rosemary Pattenden 1. Documents and documentary evidence explained How to prove documentary evidence Categories of documentary evidence Judicial documents Private documents EXCLUSION OF EXTRINSIC EVIDENCE IN SUBSTITUTION OF, TO CONTRADICT, VARY OR ADD TO DOCUMENTS Saima Hanif 1. Evidence in substitution Exceptions Evidence to contradict, vary or substitute Exceptions to the rule JUDGMENTS Stephen Whale 1. Judgments as evidence of their existence, contents and legal effects Judgments as giving rise to estoppels in subsequent proceedings Judgments as evidence against strangers APPENDIX: MISCELLANEOUS STATUTES, RULES, ETC Stephen Whale Criminal Procedure Act 1865 ss Criminal Evidence Act 1898 s.l Civil Evidence Act 1968 ss.11-14, 16-18, Civil Evidence Act 1972 ss Administration of Justice Act 1982 ss PAGE Index 1497 xix