Application preparation and case theory - Admissibility of e...

Learning Outcomes

This article explains how to analyse and argue the admissibility of evidence in SQE2 advocacy and case preparation, including:

• identifying the statutory and common law tests for admissibility, and distinguishing inclusionary and exclusionary rules in criminal and civil proceedings
• defining and using key evidential concepts such as relevance, probative value, prejudicial effect and exclusionary discretion
• framing and arguing applications to admit or exclude evidence under ss.76, 78 and 82(3) PACE 1984, and applying the Criminal Justice Act 2003 gateways and safeguards on hearsay and bad character
• managing hearsay and other documentary evidence in civil proceedings using the Civil Evidence Act 1995 and CPR 32.1, including notice requirements and weight arguments
• constructing a persuasive, coherent case theory that anticipates and integrates admissibility decisions, including the sequencing of witnesses and documents
• applying these principles to SQE2-style problem scenarios, avoiding common exam pitfalls and presenting clear, concise submissions

SQE2 Syllabus

For SQE2, you are required to understand how to analyse the admissibility of evidence and prepare applications and case theory that address inclusionary and exclusionary rules across criminal and civil proceedings, with a focus 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.

1. Define in one sentence the primary test for admissibility of evidence under English law.
2. What is the statutory provision giving courts discretion to exclude unfairly obtained evidence in criminal proceedings?
3. When, if at all, can hearsay evidence be admitted in criminal proceedings, and under what authority?
4. 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. The Criminal Procedure Rules also require criminal advocates to explain how any evidence beyond direct oral testimony is admissible (see CrimPR 24.4(3) in the magistrates’ court and CrimPR 25.11(3) in the Crown Court). Admissibility issues are typically decided by the judge, sometimes during a hearing within a hearing in the absence of the jury (a voir dire).

Key Term: admissibility of evidence
The question of whether a particular item of evidence can be considered by the court in reaching its decision.

Key Term: probative value
The extent to which evidence logically assists in proving or disproving a matter in issue.

Key Term: prejudicial effect
The risk that evidence will improperly sway the tribunal of fact (for example, by emotion or propensity reasoning) rather than by its logical probative value.

Key Term: voir dire
A procedure in criminal trials where the judge hears and decides an admissibility issue in the absence of the jury, to avoid the jury hearing inadmissible material.

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. Relevance is a low threshold but not the only filter; courts also assess whether, despite relevance, the evidence should be excluded or limited because its prejudicial effect outweighs its probative value, or because admitting it would undermine the fairness of the proceedings.

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.

Fair trial rights and case management underpin admissibility decisions. In criminal proceedings, Article 6 ECHR informs the fairness analysis; in civil proceedings, the overriding objective and CPR powers shape how evidence is controlled. A recurring theme is structured judicial balancing: what does the evidence prove, how reliably, and at what fairness cost?

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). You must be able to identify which applies.

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.

In criminal cases, two central PACE provisions operate:

• s.76 PACE 1984 mandates exclusion of confessions obtained by oppression or likely unreliability.
• s.78 PACE 1984 gives a general discretion to exclude prosecution evidence whose admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. This applies to all prosecution evidence, including unfairly obtained material.

PACE s.82(3) preserves the court’s common law power to exclude evidence. Even if a specific statute regulates a type of evidence (such as hearsay or bad character under the Criminal Justice Act 2003), the court may still consider fairness-based exclusion.

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.

Key Term: section 76 PACE 1984
Section rendering confessions inadmissible if obtained by oppression (s.76(2)(a)) or in consequence of things said or done likely to render the confession unreliable (s.76(2)(b)).

In civil cases there is no general rule excluding illegally obtained evidence. The default position is inclusive—relevant evidence is admitted—subject to case management powers and specific rules like privilege. CPR 32.1 allows the court to exclude evidence that would be unfair, disproportionate or an undue waste of time.

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 fairness (s.78 PACE). This includes breaches of PACE Codes of Practice (Codes A–H), oppressive or deceptive conduct, and unfair trickery. The discretion is a fairness assessment; not every breach leads to exclusion. PACE s.82(3) preserves a broader common law discretion to exclude. Appellate courts will rarely interfere with the exercise of such discretions unless Wednesbury-unreasonable.

Police trickery can trigger exclusion, but the focus remains the fairness of use at trial, not merely the method of obtaining it. In Khan v UK, admitting covert recordings did not violate Article 6 where the defendant had a real opportunity to challenge admissibility and reliability, and adequate procedural safeguards existed.

• Confessions: Confessional evidence is powerful and therefore tightly controlled.

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.

Under s.76 PACE, the prosecution must prove beyond reasonable doubt that a confession was not obtained by oppression or by anything said or done that was likely to render it unreliable. Oppression is defined to include torture, inhuman or degrading treatment, and the use or threat of violence; it can also include conduct that is coercive, intimidating or in bad faith. If s.76 is engaged and not satisfied, exclusion is mandatory. Even if admitted under s.76, s.78 can still be invoked to exclude on wider fairness grounds.

• Hearsay evidence: The Criminal Justice Act 2003 (CJA 2003) largely codifies criminal hearsay.

Key Term: hearsay evidence
A statement not made in oral evidence in proceedings but used as evidence of the matter stated.

Hearsay is generally inadmissible unless a statutory or agreed gateway applies (s.114(1)), including:

• s.114(1)(a): a statutory provision (for example, s.116 unavailability; s.117 business documents; ss.119–120 previous statements of witnesses).
• s.114(1)(b): preserved common law exceptions (s.118), including res gestae.
• s.114(1)(c): agreement of all parties.
• s.114(1)(d): interests of justice.

Key Term: interests of justice test
The open gateway in s.114(1)(d) CJA 2003 allowing admission of hearsay where, considering the factors in s.114(2), it is in the interests of justice to admit it.

Key Term: business documents hearsay
Under s.117 CJA 2003, statements in documents created or received in the course of business are admissible subject to conditions and reliability safeguards.

Safeguards include:

• s.123: the maker of the statement must have been capable of being a witness applying ordinary tests of competency.
• s.124: allowances for credibility attacks on an absent maker, including proof of inconsistent statements or bad character.
• s.125: the judge must stop the case if the hearsay is so unconvincing that a conviction based upon it would be unsafe.
• s.126: a specific discretion to exclude hearsay where the case for exclusion outweighs its probative value, taking into account potential unreliability and the time admission would consume.

Courts also consider whether it was reasonably practicable to secure attendance (for s.116), alternative means such as live link (CJA 2003 s.51), and the overall reliability and necessity (Riat and other guidance). The interests of justice gateway is not a shortcut around the specific gateways; it requires a careful factor-by-factor analysis.

• Bad character evidence: Controlled by CJA 2003, this area is inclusionary in scope but carefully managed by gateways and safeguards.

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.

For defendants (s.101), the seven gateways for admission include agreement, self-adduction, explanatory evidence, important matter in issue (propensity or untruthfulness), substantial probative value between co-defendants, correcting a false impression, and where the defendant attacks another’s character. The principal propagation gateway is s.101(1)(d), read with s.103: showing propensity to commit the offence or to be untruthful. Courts consider similarity, number, nature and timing of previous misconduct, and may draw on the “propensity” guidance in R v Hanson. The judge must give reasons in open court when admitting or excluding, and direct the jury carefully on the use to be made of such evidence (credibility, propensity, or both).

For non-defendant witnesses (s.100), the evidence must have substantial probative value in relation to a matter in issue and be of substantial importance in the context of the case, with statutory factors guiding the assessment (s.100(3)). There are rebuttable presumptions of truth for convictions (s.109). The court retains fairness-based exclusion powers (including s.101(3) and PACE s.78).

Key Term: propensity
A tendency to act in a particular way, used in bad character analysis to assess whether prior misconduct suggests a pattern relevant to the charged offence.

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) or case management discretion. The court actively manages evidence to deal with cases justly and proportionately.

• Hearsay is admissible by statute. The Civil Evidence Act 1995 abolishes the common law rule against hearsay and permits reliance on hearsay subject to:
  • a notice requirement (s.2) unless dispensed with by the court;
  • weight factors (s.4), including whether the maker can be called, the reason for unavailability, the contemporaneity and reliability of the statement, and any motive to misrepresent;
  • the court’s general power to draw adverse inferences if a party without good reason fails to call the maker;
  • the ability to challenge credibility (s.5–s.7) and the court’s power to require that the “best available” evidence is adduced.

Key Term: Civil Evidence Act 1995 notice
The requirement to serve notice of intention to rely on hearsay, with the court’s discretion to dispense with or vary the requirement.

• Illegally obtained evidence may be admitted, but the court can exercise CPR 32.1 discretion to exclude if its admission would be unjust, oppressive or disproportionate. The court may also reflect disapproval in costs orders. In Jones v University of Warwick, covert surveillance was admitted because its probative value and the need to deal with the case justly outweighed the impropriety, but the court signalled costs sanctions as a deterrent to unfair methods. Privilege remains a hard bar: improperly obtained privileged documents are not admissible unless privilege is waived; where privileged material was inadvertently disclosed, CPR 31.20 restricts reliance without permission.

Key Term: privilege
A rule of law that protects certain communications (such as those between a lawyer and client) from being given in evidence.

Civil courts may exclude or limit evidence to save time, avoid duplication, or protect rights of confidentiality. They also have broad powers to control cross-examination and the form of evidence (eg, written questions, affidavits, or witness statements standing as evidence-in-chief).

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, corroborate a witness, undermine credibility).
• State the legal rule(s) governing admissibility (eg, relevance, PACE s.76 or s.78, CJA 2003 gateway and safeguards, Civil Evidence Act and CPR powers).
• Apply the facts: explain how the evidence meets (or fails to meet) the criteria for inclusion/exclusion, addressing probative value versus prejudicial effect, reliability, necessity and fairness.
• If exclusion is sought, set out the statutory or discretionary basis and the fairness reasoning; if admission is sought under an inclusionary gateway, address the safeguards.
• Conclude with a precise submission: whether the evidence should be admitted or excluded and why. Invite any necessary directions (eg, limiting directions, edited interviews, jury directions) and identify any procedural steps (eg, notices, CrimPR Part 20 for hearsay and Part 21 for bad character, or CPR 32 notices).

When presenting, take the judge to the specific statutory provision and any leading authority. In criminal proceedings, remember the court often decides admissibility on a voir dire.

Key Term: interests of justice test
The balancing exercise under s.114(2) CJA 2003, weighing factors like probative value, reliability, ability to test, and reasons for non-attendance.

Key Term: business documents hearsay
CJA 2003 s.117 allows admission of business records if conditions are met and no significant risk of unreliability arises.

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. The submission should address the seriousness of the breach, whether it was deliberate or reckless, the availability of alternative lawful methods, and whether admitting the evidence would encourage future non-compliance. The defence can also rely on the general power preserved by s.82(3) PACE and invite the court to consider a limiting or exclusionary ruling after a voir dire.

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. The court should consider whether it was reasonably practicable to secure attendance, whether alternative means like live link are available (s.51 CJA 2003), and the s.114(2) factors. Even if a gateway is satisfied, the judge retains discretion to exclude under s.126 CJA 2003 or s.78 PACE if fairness demands it. A stop-the-case safeguard exists under s.125 if the hearsay is so unconvincing that a conviction would be unsafe.

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, the overriding objective, and the availability of less intrusive means. The court may also admit the evidence but mark its disapproval in costs (as in Jones v University of Warwick), or impose restrictions on the manner of use. Privileged material remains inadmissible unless privilege is waived.

Worked Example 1.4

A defendant’s interview contains incriminating admissions made after prolonged late-night questioning without adequate rest or appropriate adult. The prosecution seeks to rely on the interview.

Answer:
The defence should seek exclusion under s.76 PACE on the basis that the confession was obtained by oppression or is unreliable due to things said or done (eg, failure to provide rest, potential breaches of Code C, absence of an appropriate adult for a vulnerable suspect). The burden is on the prosecution to establish beyond reasonable doubt that the confession was not obtained in these prohibited circumstances. If the court is not so satisfied, exclusion is mandatory. Even if admitted under s.76, the defence can argue for exclusion under s.78 PACE due to broader fairness concerns, or for editing to remove tainted passages.

Worked Example 1.5

The prosecution applies to adduce a defendant’s previous conviction for theft from five years ago to show propensity under s.101(1)(d) CJA 2003. The current charge is burglary. The defence objects.

Answer:
The court must assess whether the prior conviction demonstrates a propensity to commit offences of the same description or category (considering the CJA 2003 (Categories of Offences) Order) or otherwise probative of propensity under s.103(2). Applying R v Hanson, the judge should examine similarity, frequency, and strength of the previous misconduct. A single conviction can sometimes show propensity, but caution is required; the judge must also give a careful direction limiting the use to propensity and/or credibility as appropriate (R v Highton). If the unfairness of admitting it would outweigh its probative value (s.101(3)), the court should refuse admission. If admitted, reasons must be given (s.110) and a tailored jury direction provided.

Worked Example 1.6

A civil claimant serves notice to rely on hearsay witness statements from two witnesses now abroad. The defendant argues the court should give those statements little or no weight.

Answer:
Under the Civil Evidence Act 1995, hearsay is admissible but its weight is assessed under s.4. The court will consider the reason the makers are not called (and whether party X could reasonably have secured their attendance), whether the statements were made contemporaneously, any motive to misrepresent, and whether multiple hearsay is involved. The defendant can attack credibility and invite the court to draw an adverse inference if the claimant unreasonably failed to call the witnesses. The court may admit the statements but give them reduced weight or, using CPR 32.1, limit or exclude them where fairness demands.

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 (including s.114, s.116, s.117, s.118, s.124, s.125, s.126), and the relevant CPR rule for civil cases (CPR 32.1 and Civil Evidence Act 1995). Remember the procedural framework: serve and respond to CrimPR notices for hearsay (Part 20) and bad character (Part 21), and comply with Civil Evidence Act notices in civil cases. In criminal trials, many admissibility issues are resolved on a voir dire—ask the court to proceed that way if the jury is present.

Revision Tip

Always start any application or legal submission on admissibility by quickly stating: (1) your evidence item and purpose, (2) the governing rule/discretion and any notice requirements, and (3) whether you seek inclusion or exclusion, followed by a concise, law-applied-to-facts argument. Anticipate the opposing side’s fairness and reliability points and pre-empt them.

Building Case Theory Around Admissibility

Systematic case theory links the facts, law and admissibility. Plan your witness order, document sequence and legal applications together so your admissible evidence tells a coherent story.

• Map each essential issue to the admissible evidence you will use to prove it, noting any potential challenges (eg, hearsay, bad character, confession reliability).
• Decide early whether any prosecution evidence should be the subject of a s.78 PACE challenge and what factual basis you need (eg, Code breaches, vulnerability, trickery).
• For hearsay, identify the gateway, the reliability safeguards, and whether an alternative (eg, live link) is feasible; if you resist admission, come armed with a worked s.114(2)/s.126 analysis and credibility points under s.124.
• For bad character, if you propose to adduce it, pick the correct gateway and address propensity carefully; if you resist it, focus on unfair prejudice and proper jury directions.
• In civil proceedings, weigh whether to seek exclusion under CPR 32.1 or to accept admission but press for limited weight and robust case management (eg, strict timetables, agreed bundles, witness summonses for key makers where proportionate).

Good advocacy means not only knowing the rule but also deploying it at the right time and linking the outcome to your overall narrative. If admission is inevitable, ask for limiting or tailored directions. If exclusion is realistic, plan how your case theory works without that evidence.

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 but not the end of the inquiry.
• In criminal cases, PACE s.76 provides mandatory exclusion for confessions obtained by oppression or likely unreliability; s.78 provides a fairness-based discretion to exclude prosecution evidence; s.82(3) preserves common law discretion.
• Criminal hearsay is governed by CJA 2003 s.114–s.126, with gateways (including s.116 and s.117) and safeguards (s.123–s.125), plus a residual discretion to exclude (s.126) and, where appropriate, s.78 PACE.
• Bad character evidence is admissible only through statutory gateways; judges must balance probative value and fairness and give careful jury directions on use.
• In civil proceedings, hearsay is admissible under the Civil Evidence Act 1995 but weight is assessed using statutory factors; CPR 32.1 provides broad powers to exclude, limit or control evidence.
• Privilege remains an absolute bar unless waived; inadvertent disclosure of privileged material is controlled by CPR 31.20.
• Applications should be structured: identify the evidence and purpose, state the governing rule, apply the facts to the test, address fairness and reliability, and conclude with a precise order sought (including any limiting directions).
• Integrate admissibility decisions into your case theory; if evidence is excluded, know how your narrative still proves the issues; if admitted, be ready with limiting directions and jury guidance.

Key Terms and Concepts

• admissibility of evidence
• relevance
• exclusionary rule
• section 78 PACE 1984
• section 76 PACE 1984
• confession
• hearsay evidence
• interests of justice test
• business documents hearsay
• bad character evidence
• propensity
• privilege
• probative value
• prejudicial effect
• voir dire
• Civil Evidence Act 1995 notice