Principles and procedures to admit and exclude evidence - Ri...

Learning Outcomes

This article examines the core legal principles governing the admission and exclusion of evidence in criminal cases, explaining the burden and standard of proof for prosecution and defence, safeguards and procedures for visual identification evidence (including Turnbull guidelines and PACE Code D), and the circumstances in which hearsay, confession, and bad character evidence may be admitted or excluded. It also outlines procedural and substantive protections for the right to a fair trial—such as exclusionary powers, legal professional privilege, and disclosure duties—and presents the structure and rationale for criminal trials, essential aspects of trial management, routes to challenge inadmissible evidence, and the duties of legal representatives in upholding fundamental rights.

SQE1 Syllabus

For SQE1, you are required to understand the principles and procedures governing the admission and exclusion of evidence and the right to a fair trial, with a focus on the following syllabus points:

• the operation of the burden and standard of proof in criminal cases, including the distinction between legal and evidential burdens
• the treatment and admissibility of visual identification evidence, including the Turnbull guidelines and safeguards under PACE Code D
• the definition, rationale, and key statutory exceptions to the rule against hearsay evidence (CJA 2003)
• the requirements for adducing confession evidence, including the meaning of oppression and unreliability under sections 76 and 78 PACE 1984
• the rules and statutory gateways for admitting bad character evidence (s 101 CJA 2003 and court discretion)
• the procedures and legal tests for excluding prosecution evidence to safeguard a fair trial, particularly s 78 PACE 1984 and the broader relevance of Article 6 ECHR
• the interaction between evidential rules and the conduct of criminal proceedings, including special measures for vulnerable witnesses, competence and compellability, and the overriding objective under the Criminal Procedure Rules

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 under Article 6 of the European Convention on Human Rights is an absolute and fundamental right in English criminal law. The rules governing the admissibility and exclusion of evidence are central to the criminal process, ensuring that proceedings are not only fair to the defendant but seek to balance justice, public confidence, and the effective administration of criminal cases. The criminal courts are bound to comply with statutory and procedural safeguards that are designed to prevent miscarriages of justice, limit unreliable or prejudicial evidence, and ensure equality of arms. This article explains these principles and procedures, focusing on how evidential rules and judicial discretion work together to uphold the defendant’s right to a fair trial.

Key Term: fair trial
The requirement that all persons charged with a criminal offence are entitled to a hearing that is fair, public, and conducted before an independent and impartial tribunal, with minimum rights including presumption of innocence, effective participation, access to legal advice, and equality of arms (Article 6 ECHR).

Burden and Standard of Proof

In all criminal proceedings, the prosecution has the legal burden of proving the defendant’s guilt. The principle, known as the presumption of innocence, is foundational and enshrined in both the common law (Woolmington v DPP [1935] AC 462) and Article 6(2) ECHR. The legal burden (sometimes called the persuasive burden) requires the prosecution to prove every element of the offence charged, including disproving any defence once properly raised.

Key Term: legal burden
The obligation on a party to prove a particular fact or issue in the proceedings. In criminal cases, this almost always rests with the prosecution to prove guilt.

Key Term: evidential burden
The obligation to adduce or point to sufficient evidence such that an issue, defence, or fact is put in issue before the court or jury. Often, the defendant must meet only the evidential burden before the legal burden returns to the prosecution to disprove the issue beyond reasonable doubt.

Key Term: standard of proof
The level of certainty required to satisfy the relevant burden. For the prosecution, this is 'beyond reasonable doubt' or 'so that the jury is sure'. For a defendant with a legal burden (e.g., on insanity or diminished responsibility), the standard is 'on the balance of probabilities'.

The defendant is presumed innocent unless and until the prosecution discharges this burden. The standard of proof for the prosecution is very high: the fact finder (jury or magistrate(s)) must be sure that all elements of the offence are proved; it is not enough that the prosecution makes it more likely than not.

There are rare statutory exceptions where the defendant bears a legal burden—to prove, for example, the defence of diminished responsibility in murder (section 2 Homicide Act 1957, as amended). Here, the defendant must prove the defence on the balance of probabilities (more likely than not), usually on the basis of expert evidence.

Key Term: presumption of innocence
The expectation under law that a defendant is innocent until and unless proven guilty beyond reasonable doubt by the prosecution. A core component of the right to a fair trial.

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.

This allocation of burdens reflects the principle that it is for the State to prove guilt, not for the accused to prove innocence. Where a defence (such as self-defence or alibi) is raised, the defendant usually has only an evidential burden. The burden then shifts back to the prosecution to disprove the defence beyond reasonable doubt.

Visual Identification Evidence and the Turnbull Guidelines

Identification evidence from witnesses is often highly persuasive for juries but can be unreliable. Mistaken identification has been responsible for many miscarriages of justice, and so the courts have developed rigorous safeguards for its admission.

Key Term: identification evidence
Evidence in which a witness purports to recognize or select the accused as the person who committed an offence, based on their own sensory perception (primarily visual, but sometimes aural or other senses).

Key Term: Turnbull guidelines
Guidelines issued in R v Turnbull [1977] QB 224 for the assessment and judicial directions on disputed identification evidence. They require the judge to warn the jury about risks of mistaken identification and to direct them as to the need for caution and the factors relevant to the reliability of the witness’s identification.

Whenever the prosecution case depends wholly or substantially on visual identification, the judge must direct the jury on the specific risks and safeguard the fairness of proceedings. The jury must be warned that mistaken identification can occur even with honest witnesses and must scrutinize the circumstances of the identification (including duration, lighting, distance, familiarity, time since the event, and possible discrepancies between original description and the accused).

Where the quality of identification is poor and uncorroborated by other evidence, the judge should consider withdrawing the case from the jury and directing an acquittal.

Key Term: PACE Code D
The Police and Criminal Evidence Act 1984 Code D provides detailed procedures for conducting formal identification procedures—such as video identification, identification parades, group identifications, and confrontations—to ensure reliability and fairness.

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.

Identification must, wherever practicable, be by fair procedures as per Code D, and any failure to follow these procedures can ground an application to exclude the evidence under section 78 PACE 1984. The judge’s role is not simply to warn the jury but also to safeguard the trial’s fairness by ensuring unreliable identification evidence does not contaminate the fact-finding process.

Hearsay Evidence

Generally, evidence must be given orally in person at trial, where it can be tested in cross-examination. Hearsay—i.e., out-of-court statements relied upon to prove the truth of their content—is generally inadmissible due to concerns over reliability, but statutory exceptions exist.

Key Term: hearsay evidence
A statement not made in oral evidence in the proceedings, relied on as evidence of the matters asserted. This includes written statements read out instead of live testimony and statements made to others outside court.

The main statutory regime for hearsay in criminal trials is set out in the Criminal Justice Act 2003. Hearsay may be admitted where:

• a statutory exception applies (e.g. the original witness has died, is unfit, cannot be found despite reasonable steps, is outside the UK and cannot reasonably be brought to court, or is in fear—see s 116 CJA 2003)
• the parties agree to its admissibility
• the court is satisfied it is in the interests of justice to admit the evidence (a catch-all, with factors including probative value, fairness, reliability, ability to challenge the evidence, and significance in the case)
• a preserved common law exception applies, e.g. res gestae (statements made in the immediate aftermath of an event, where spontaneity ensures reliability)

When hearsay is admitted, the court must consider how its admission affects the fairness of the proceedings, and in some cases, must give cautionary directions to the jury. Special procedures, such as notice to the opposing party and grounds for challenge, apply to ensure fairness.

Key Term: res gestae
At common law, an exception to the rule against hearsay, allowing evidence of statements made spontaneously and contemporaneously with an event, such that they are likely to be reliable.

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 (CJA 2003, s 116), subject to safeguards and possible challenges by the defence.

Even where a hearsay statement appears admissible, the court retains overall discretion to exclude it if its admission would be unfair or prejudicial (CJA 2003, s 126). The defendant’s right to challenge must always be preserved to protect the right to a fair trial.

Confession Evidence

A confession, being a wholly or partly adverse statement made by a suspect, can be highly probative. English law, however, provides strong safeguards to ensure that confessions are voluntary, reliable, and obtained fairly.

Key Term: confession
Any statement—oral or written, whether formal or informal, and whether made to a person in authority or not—which is wholly or partly adverse to the person making it (see s 82(1), PACE 1984).

Confessions are generally admissible unless obtained:

• by oppression—torture, inhuman or degrading treatment, or use or threat of violence (s 76(2)(a) PACE 1984)
• in circumstances likely to render the confession unreliable, including denial of basic rights, inducements, trickery, or breach of Codes of Practice (s 76(2)(b) PACE 1984)
• where admission would have an adverse effect on the fairness of proceedings (s 78 PACE 1984)

Key Term: oppression
Includes torture, inhuman or degrading treatment, and the use or threat of violence—requires something beyond mere psychological pressure (PACE 1984, s 76(8)).

If, after a defence challenge, the court finds that a confession was or may have been obtained by oppression or in circumstances making it unreliable, the confession must be excluded. The burden is on the prosecution to prove, beyond reasonable doubt, that the confession was not so obtained. The judge will hold a voir dire (trial within a trial, excluding the jury) to determine admissibility.

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 real risk of unreliability. The court should exclude the confession unless the prosecution proves it was not obtained in such circumstances.

Even if a confession meets the requirements of s 76 PACE, it can still be excluded if the judge concludes that its admission would be unfair to the defendant (s 78 PACE 1984).

Character Evidence

Evidence of a defendant’s previous misconduct (bad character) is tightly regulated owing to the significant risk of prejudice. The Criminal Justice Act 2003 stipulates that such evidence is only admissible through seven specific statutory gateways. Even if it passes through a gateway, the judge must exclude it if admission would have such an adverse effect on the fairness of proceedings that it ought not to be admitted.

Key Term: bad character evidence
Evidence of, or disposition towards, misconduct (commission of an offence or other reprehensible behaviour) other than evidence directly related to the matters charged (CJA 2003 s 98).

The seven gateways for admitting bad character evidence (s 101(1) CJA 2003) are:

• all parties to the proceedings agree to its admission
• it is adduced by the defendant or is given in response to their own cross-examination
• it is important explanatory evidence
• it is relevant to an important matter in issue (most often propensity, e.g. to commit offences of the kind charged or to be untruthful)
• it has substantial probative value on an important matter in issue between co-defendants
• it is to correct a false impression given by the defendant
• the defendant has made an attack on another person’s character

The court must conduct a careful balancing exercise between the probative value and prejudicial effect of bad character evidence. The risk is that the jury may use previous convictions or misconduct simply to infer a ‘bad person’ disposition, rather than as evidence directly relevant to an issue in the case (see s 103 CJA 2003; R v Hanson [2005] EWCA Crim 824).

Key Term: propensity
The tendency to behave in a particular way—either to offend of a certain type or to be untruthful. Propensity inferred from previous convictions may be relevant, but the court is cautious, especially where there are few or old convictions.

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.” The court must be vigilant that the evidence does not undermine the right to a fair trial.

Exclusion of Evidence and the Right to a Fair Trial

The court has a broad statutory discretion and duty 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 (s 78 PACE 1984). The discretion is not restricted to specific categories—it covers confession evidence, identification, character, and any other prosecution evidence.

Key Term: section 78 PACE
A statutory power permitting the exclusion of prosecution evidence if, in all the circumstances (including the manner it was obtained), the evidence’s admission would have such a negative effect on the fairness of proceedings that it ought not to be admitted.

Factors influencing a court’s decision include:

• the seriousness of any breach of procedure or right (e.g., breach of PACE Codes, denial of access to legal advice, improper identification procedure)
• the importance and reliability of the disputed evidence
• whether alternative, less prejudicial means of proof exist
• the balance between probative value and potential prejudice or injustice

Article 6 ECHR supports the court’s approach by providing entitlements such as presumption of innocence, equality of arms, the right to silence and against self-incrimination, and full adversarial testing of prosecution evidence.

An additional layer is provided by the judge’s ongoing obligation to direct the jury on the appropriate use and limitations of evidence and to intervene if the overall fairness of the trial is in jeopardy.

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.

If unlawfully obtained evidence is reliable and not unduly prejudicial (for example, a technical breach where the defendant suffers no unfairness), the court may still admit it. There is no general exclusionary rule for improperly obtained evidence in English law, but fairness is always essential.

Safeguards in Court and Special Measures

Trial management and the conduct of the parties are as important as the rules of admissibility. The Criminal Procedure Rules 2020, under the overriding objective, require courts and parties to actively manage cases to deal justly with all proceedings—including identifying and resolving evidential disputes early, giving robust case management directions, and ensuring compliance with disclosure obligations.

Special measures may be deployed to support vulnerable or intimidated witnesses, helping them give their best evidence without jeopardising fairness for the defendant. These can include evidence by live link, screens, intermediaries, or the removal of wigs and gowns.

Key Term: competence and compellability
All persons are presumed competent to give evidence unless incapable of understanding questions or communicating answers that can be understood. Compellability means the witness can lawfully be required to give evidence, subject to certain exceptions (e.g., defendant in their own trial).

The judge is responsible for ensuring that the trial process, questioning of witnesses, and admissibility decisions maintain equality of arms and prevent any risk of prejudice.

Duties of Legal Professionals and Overriding Objective

Solicitors and barristers have an overriding duty to the court, as well as their client, not to mislead and to ensure the administration of justice. The SRA Code of Conduct 2019, Law Society guidance, and the Criminal Procedure Rules require all legal professionals to balance their duty to the client with their duty to the court and wider public interest. Where instructed not to disclose relevant evidence or to advance a case the solicitor knows to be false, professional conduct rules require withdrawal or the refusal to act, maintaining the integrity of the process and supporting the right to a fair trial.

Key Term: overriding objective
The core principle of the Criminal Procedure Rules (r 1.1): criminal cases must be dealt with justly, which includes acquitting the innocent, convicting the guilty, and ensuring fairness to both prosecution and defence.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The prosecution bears the legal burden of proof and must prove the defendant’s guilt beyond reasonable doubt.
• The defence generally needs only to raise sufficient evidence to "make live" a defence; the prosecution must disprove it to the criminal standard.
• Identification evidence is inherently risky and requires special caution—Turnbull guidelines, judicial warnings, and, where appropriate, exclusion if quality is poor.
• Statutory exceptions allow for hearsay evidence in carefully defined circumstances; the right to challenge is protected.
• Confession evidence is inadmissible if obtained by oppression or in circumstances rendering it unreliable, and may be excluded for fairness (PACE ss 76 and 78).
• Bad character evidence is admissible only through specific statutory gateways; the court must always consider whether admission would have an adverse effect on trial fairness.
• The court has wide discretion to exclude prosecution evidence under section 78 PACE 1984 where admission would compromise fairness, reflecting Article 6 ECHR.
• Procedural and professional safeguards—such as pre-trial case management, special measures, and legal professional obligations—not only support the fair trial right but provide active structures for trial management and the exclusion of potentially prejudicial evidence.

Key Terms and Concepts

• legal burden
• evidential burden
• standard of proof
• presumption of innocence
• identification evidence
• Turnbull guidelines
• PACE Code D
• hearsay evidence
• res gestae
• confession
• oppression
• bad character evidence
• propensity
• section 78 PACE
• competence and compellability
• overriding objective
• fair trial