Principles and procedures to admit and exclude evidence - Right to a fair trial

Learning Outcomes

After studying this article, you will be able to explain and apply the main rules for admitting and excluding evidence in criminal proceedings, including the burden and standard of proof, the treatment of identification, hearsay, and confession evidence, the rules on character evidence, and the court’s powers to exclude evidence to ensure a fair trial. You will also be able to identify how these principles uphold the right to a fair trial for the SQE1 exam.

SQE1 Syllabus

For SQE1, you are required to understand the principles and procedures for admitting and excluding evidence in criminal cases, with particular focus on the right to a fair trial. In your revision, pay close attention to:

• the burden and standard of proof in criminal proceedings
• the rules and safeguards for visual identification evidence (including Turnbull guidance)
• the definition and admissibility of hearsay evidence
• the rules for admitting and challenging confession evidence
• the gateways for admitting character evidence (especially bad character)
• the court’s powers to exclude evidence (including s 78 PACE) to protect the fairness of proceedings

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the standard of proof required for the prosecution in a criminal trial?
2. Which case established the guidelines for assessing disputed identification evidence?
3. Under what circumstances can hearsay evidence be admitted in a criminal trial?
4. What is the effect of section 78 of PACE 1984 on the admissibility of prosecution evidence?

Introduction

The right to a fair trial is central to criminal justice in England and Wales. The rules on admitting and excluding evidence are designed to ensure that only reliable and lawfully obtained evidence is used, and that the defendant’s rights are protected. This article covers the main principles and procedures for admitting and excluding evidence, focusing on the burden and standard of proof, identification evidence, hearsay, confession and character evidence, and the court’s powers to exclude evidence to guarantee a fair trial.

Burden and Standard of Proof

In criminal cases, the prosecution must prove the defendant’s guilt. The standard is “beyond reasonable doubt”—the court must be sure of guilt before convicting.

Key Term: burden of proof The obligation to prove a fact in issue. In criminal trials, the prosecution usually bears the legal burden to prove all elements of the offence.

Key Term: standard of proof The level of certainty required to discharge the burden. In criminal cases, this is “beyond reasonable doubt” for the prosecution, and “on the balance of probabilities” for most defences where the defendant bears the legal burden.

The defendant is presumed innocent. If the prosecution fails to prove any element of the offence, the defendant must be acquitted. In rare cases, such as the defence of insanity or certain statutory exceptions, the defendant bears the legal burden and must prove the defence on the balance of probabilities.

Worked Example 1.1

A defendant is charged with theft. The prosecution proves that the defendant took property belonging to another, but cannot show that the defendant intended to permanently deprive the owner. Should the court convict?

Answer: No. The prosecution must prove all elements of the offence beyond reasonable doubt. If intention to permanently deprive is not proved, the defendant must be acquitted.

Visual Identification Evidence and the Turnbull Guidelines

Identification evidence from eyewitnesses can be unreliable. Mistaken identity is a leading cause of wrongful convictions. Courts must apply special caution when considering disputed identification evidence.

Key Term: Turnbull guidelines Judicial guidance for assessing the reliability of disputed identification evidence, requiring the judge to warn the jury of the risks and to consider factors such as observation time, lighting, distance, and the witness’s prior knowledge of the accused.

If the case depends wholly or substantially on identification evidence, the judge must give a Turnbull warning to the jury. The judge should direct the jury to consider the quality of the identification and any supporting evidence.

Worked Example 1.2

A witness identifies the defendant as the robber after seeing him for two seconds at night from 20 metres away. There is no other evidence. What should the judge do?

Answer: The judge should assess the quality of the identification as poor. If there is no supporting evidence, the judge should withdraw the case from the jury and direct an acquittal.

Hearsay Evidence

Hearsay is a statement made outside court, relied on for the truth of its contents. Hearsay is generally inadmissible, but there are statutory exceptions.

Key Term: hearsay evidence A statement not made in oral evidence in the proceedings, relied on as evidence of a matter stated.

Hearsay may be admitted if:

• a statutory exception applies (e.g., the witness is unavailable due to death, illness, or fear)
• all parties agree
• the court considers it in the interests of justice
• a preserved common law exception applies (e.g., res gestae)

The Criminal Justice Act 2003 sets out the main rules. If hearsay is admitted, the court must consider the effect on the fairness of the trial.

Worked Example 1.3

A witness gives a statement to police but dies before trial. Can the statement be admitted?

Answer: Yes, if the statement would have been admissible as oral evidence and the witness is identified to the court’s satisfaction, it may be admitted under the statutory exception for unavailable witnesses.

Confession Evidence

A confession is any statement wholly or partly adverse to the person who made it. Confessions are admissible unless obtained by oppression or in circumstances likely to render them unreliable.

Key Term: confession Any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.

Key Term: oppression Includes torture, inhuman or degrading treatment, or the use or threat of violence.

PACE 1984, section 76, requires the prosecution to prove beyond reasonable doubt that a confession was not obtained by oppression or in circumstances likely to render it unreliable. If the court is not satisfied, the confession must be excluded.

Worked Example 1.4

A suspect confesses after being denied food and rest for 18 hours. Is the confession admissible?

Answer: No. Denial of food and rest may amount to oppression or create a risk of unreliability. The court should exclude the confession unless the prosecution proves it was not obtained in such circumstances.

Character Evidence

Evidence of a defendant’s previous misconduct (bad character) is generally inadmissible unless it falls within one of the statutory gateways.

Key Term: bad character evidence Evidence of, or a disposition towards, misconduct, other than evidence directly relating to the offence charged.

The Criminal Justice Act 2003 sets out seven gateways for admitting bad character evidence, including:

• agreement of all parties
• important explanatory evidence
• relevance to an important matter in issue (e.g., propensity to commit similar offences)
• correcting a false impression
• attack on another’s character

Even if evidence falls within a gateway, the court must exclude it if its admission would have such an adverse effect on the fairness of proceedings that it ought not to be admitted.

Exam Warning

The court must balance the probative value of bad character evidence against its prejudicial effect. Evidence of previous convictions should not be admitted simply to show the defendant is a “bad person.”

Exclusion of Evidence and the Right to a Fair Trial

The court has a general discretion under section 78 of PACE 1984 to exclude prosecution evidence if its admission would have such an adverse effect on the fairness of proceedings that it ought not to be admitted.

Key Term: section 78 PACE A statutory power allowing the court to exclude prosecution evidence if its admission would make the trial unfair.

This discretion applies to all prosecution evidence, including confessions, identification, and character evidence. The court will consider the seriousness of any breach of procedure, the impact on the defendant’s rights, and the importance of the evidence.

Worked Example 1.5

Police obtain evidence by searching a house without a warrant. Should the evidence be admitted?

Answer: The court must consider whether the breach was significant and whether admitting the evidence would make the trial unfair. If so, the evidence should be excluded under section 78.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The prosecution bears the burden of proof and must prove guilt beyond reasonable doubt.
• The Turnbull guidelines require special caution for identification evidence; poor quality ID may be excluded.
• Hearsay evidence is generally inadmissible, but may be admitted under statutory exceptions or in the interests of justice.
• Confessions are admissible unless obtained by oppression or in circumstances likely to render them unreliable.
• Bad character evidence is only admissible through statutory gateways and must not unfairly prejudice the defendant.
• The court may exclude prosecution evidence under section 78 of PACE 1984 to ensure a fair trial.

Key Terms and Concepts

• burden of proof
• standard of proof
• Turnbull guidelines
• hearsay evidence
• confession
• oppression
• bad character evidence
• section 78 PACE