Learning Outcomes
After reading this article, you will understand how to analyse the admissibility of evidence—a critical aspect of preparing and presenting cases for the SQE2. You will be able to define key legal terms, distinguish inclusionary and exclusionary principles, apply the main statutory and common law rules, and explain how to construct a persuasive case theory that anticipates admissibility issues. You will also practise SQE2-style problem scenarios and avoid common exam mistakes.
SQE2 Syllabus
For SQE2, you are required to understand the admissibility of evidence in applications and case presentation. This article focuses your revision on the following syllabus points:
- the statutory and common law tests for the admissibility of evidence
- distinguishing between inclusionary and exclusionary rules of evidence
- identifying and applying the main statutory provisions and judicial discretions for excluding evidence (eg, hearsay, confessions, improperly obtained evidence, bad character)
- practical techniques for preparing an application or case theory around admissibility issues
- the structure of a legal argument concerning whether evidence should be admitted or excluded
- formulating case strategies based on evidential strengths and weaknesses
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.
- Define in one sentence the primary test for admissibility of evidence under English law.
- What is the statutory provision giving courts discretion to exclude unfairly obtained evidence in criminal proceedings?
- When, if at all, can hearsay evidence be admitted in criminal proceedings, and under what authority?
- In what situations must the court exclude a confession in criminal proceedings under the Police and Criminal Evidence Act 1984?
Introduction
Preparing a successful application or case theory for the SQE2 exam requires a clear understanding of how courts decide whether evidence is admissible. This can be the critical difference between a case being well argued or failing to meet the legal standard. For criminal and civil proceedings, you must know the principal tests for admissibility, the key statutory and discretionary exclusionary powers, and how to build an argument that either persuades a court to admit or to exclude a piece of evidence based on these principles.
Key Term: admissibility of evidence
The question of whether a particular item of evidence can be considered by the court in reaching its decision.
General Principles and Legal Tests
Evidence is generally admissible if it is relevant to a fact in issue in the proceedings and is not excluded by a rule of law or discretion.
Key Term: relevance
Evidence is relevant if it makes the existence of a fact in issue more or less probable than it would be without that evidence.
The court’s approach to admissibility is governed by rules set by both statute and common law. However, even relevant evidence may be excluded on policy or fairness grounds.
Exclusionary Rules and Judicial Discretion
Some rules render evidence automatically inadmissible (mandatory exclusion), while others give the court the power—but not the obligation—to exclude (judicial discretion).
Key Term: exclusionary rule
A principle or statutory provision that bars the admission of certain types of evidence, either absolutely or at the court's discretion.
Admissibility in Criminal Proceedings
The most commonly encountered exclusionary powers in criminal proceedings are:
- Illegally or unfairly obtained evidence: Even if evidence is relevant, a court may exclude it if admission would have an adverse effect on the fairness of the proceedings.
Key Term: section 78 PACE 1984
Section allowing criminal courts discretion to exclude prosecution evidence if its admission would adversely affect the fairness of proceedings.
- Confessions: Under s.76 PACE 1984, a confession is inadmissible if obtained by oppression or in consequence of things said or done which are likely to render it unreliable.
Key Term: confession
A statement (wholly or partly adverse to its maker) that may be used as evidence against the person admitting liability or guilt.
- Hearsay evidence: The Criminal Justice Act 2003 sets out when hearsay statements may be admitted and the safeguards attached.
Key Term: hearsay evidence
A statement not made in oral evidence in proceedings but used as evidence of the matter stated.
- Bad character evidence: Controlled under CJA 2003, bad character evidence can only be admitted by specified gateways or with the judge's permission.
Key Term: bad character evidence
Evidence of, or a disposition towards, misconduct except for the facts of the current charge or conduct directly linked to the case.
Admissibility in Civil Proceedings
In civil cases, the general rule is that all relevant evidence is admissible unless excluded by a specific rule (eg, privilege):
- Hearsay is generally admissible under the Civil Evidence Act 1995, subject to notice requirements and the weight the court gives the evidence.
- Illegally obtained evidence may be admitted, but the court can exercise case management powers to exclude it under CPR 32.1 if its admission would be unjust or unfair.
Key Term: privilege
A rule of law that protects certain communications (such as those between a lawyer and client) from being given in evidence.
Legal Argument Structure for Admissibility
An application or submission on admissibility should be clear and logically structured. The essential elements are:
- Identify the item of evidence and its purpose (eg, to prove a key fact, undermine a witness).
- State the legal rule(s) governing admissibility (eg, relevance, statutory exclusion, discretion).
- Apply the facts: Explain how the evidence meets (or fails to meet) the criteria for inclusion/exclusion.
- If exclusion is sought, set out the statutory or discretionary basis and why the court should exercise the power to exclude.
- Conclude with your submission: Whether the evidence should be admitted or excluded and why, referencing fairness and prejudice where relevant.
Worked Example 1.1
A police officer finds physical evidence during a search conducted in breach of the Police and Criminal Evidence Act 1984 (PACE) Codes of Practice. The prosecution seeks to rely on this evidence. How should the defence apply for its exclusion?
Answer:
The defence should apply under s.78 PACE 1984 for exclusion of the evidence. The argument is that the breach of the Codes of Practice makes its admission unfair and would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.
Worked Example 1.2
An out-of-court statement by a witness unable to attend is submitted by the prosecution in a criminal trial. The defence objects on the basis of hearsay. What is the test for admitting the statement?
Answer:
The Criminal Justice Act 2003 permits admission of hearsay where the witness cannot attend for specified reasons, with adequate safeguards in place. The prosecution must satisfy the court that an exception applies (eg, s.116), that the evidence is reliable, and that its admission does not render the proceedings unfair.
Worked Example 1.3
In a civil trial, a party wishes to admit evidence obtained via covert surveillance without the subject’s knowledge. Is the court likely to admit it?
Answer:
In civil proceedings, relevant evidence is prima facie admissible even if improperly obtained. However, the court may exercise discretion to exclude it under CPR 32.1, especially if its admission would be unfair or oppressive, giving consideration to proportionality and the need for a fair trial.
Exam Warning
Some SQE2 questions test your knowledge of which rule or discretion governs exclusion in a given scenario. Be very clear on the precise sources and legal thresholds: s.76 and s.78 PACE, CJA 2003 admissibility for hearsay and bad character, and the relevant CPR rule for civil cases.
Revision Tip
Always start any application or legal submission on admissibility by quickly stating: (1) your evidence item, (2) the governing rule/discretion, and (3) whether you seek inclusion or exclusion, followed by a concise, law-applied-to-facts argument.
Key Point Checklist
This article has covered the following key knowledge points:
- All evidence must be relevant to be admissible; relevance is the essential threshold.
- Statutory rules and common law may direct mandatory exclusion (e.g., unreliable confessions).
- Courts have discretionary powers to exclude evidence (e.g., under s.78 PACE) in the interests of fairness.
- Hearsay and bad character evidence in criminal proceedings have defined gateways for admission and exclusion (CJA 2003).
- Civil courts may admit most relevant evidence but have case management powers to exclude it.
- Argument on admissibility should be well structured: identify, state rule, apply, conclude.
Key Terms and Concepts
- admissibility of evidence
- relevance
- exclusionary rule
- section 78 PACE 1984
- confession
- hearsay evidence
- bad character evidence
- privilege