Procedures and processes in criminal litigation - Principles...

Learning Outcomes

This article sets out the principles and procedures to admit and exclude evidence in criminal proceedings, including:

• The concepts of relevance and admissibility and their role in determining what the tribunal may consider
• The burden and standard of proof, and when evidential burdens arise or shift
• The essential legal tests and procedures for hearsay, confessions, visual identification, and bad character evidence
• Statutory and common law exclusionary powers and analysis of trial breaches or errors
• Applications under PACE s 76 (oppression/unreliability) and s 78 (fairness), and the conduct of a voir dire
• Turnbull safeguards and PACE Code D procedures for identification evidence
• The distinction between mandatory and discretionary exclusion and its practical consequences
• Grounds and procedures for challenging prosecution evidence and securing judicial directions
• Assessing fairness and reliability, Article 6 ECHR considerations, and strategic defence objections
• Practical sequencing, timing, and advocacy in raising, arguing, and responding to admissibility challenges

SQE2 Syllabus

For SQE2, you are required to understand the principles and procedures governing the admission and exclusion of evidence in criminal proceedings, with a focus on the following syllabus points:

• the fundamental requirements for relevance and admissibility of evidence at trial, including distinctions between different types of evidence (oral, documentary, real, hearsay, direct, circumstantial)
• the meaning and application of the burden (legal and evidential) and standard of proof in criminal trials, and when these burdens shift
• the main categories of evidence: direct, circumstantial, hearsay, confession, and identification evidence, and the legal requirements to admit each
• the detailed procedures for objecting to, or applying to exclude, prosecution evidence—particularly under sections 76 and 78 of the Police and Criminal Evidence Act 1984 (PACE)
• the operation of statutory exclusionary powers, including the discretionary power to exclude evidence under s 78 PACE and the mandatory exclusion for confessions under s 76 PACE
• the grounds for exclusion of evidence, including unfairness, prejudice, violations of PACE Codes (especially Codes C, D, and E), and breaches impacting the right to a fair trial under Article 6 ECHR
• the procedures and criteria for admitting and excluding hearsay evidence in criminal proceedings, including all statutory gateways under the Criminal Justice Act 2003 and the handling of supporting evidence
• the rigorous safeguards and procedural steps required for the admissibility and challenge of visual identification evidence, including Turnbull guidance, Code D procedures, and the role of the voir dire
• the principles and rules relating to challenging bad character evidence and the seven statutory gateways for admissibility under the Criminal Justice Act 2003, as well as the court's residual discretion to exclude unfairly prejudicial evidence
• the handling of confessions in evidence, the meaning of 'oppression' and 'unreliability', and when and how defence representatives should challenge the admissibility of confession statements
• the correct sequence and timing for procedural applications and how the court determines challenges to the admissibility of contested evidence
• the role of case management proceedings, pre-trial directions, and the application of the overriding objective and rules from the Criminal Procedure Rules and practice directions.

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. Which section of the Police and Criminal Evidence Act 1984 provides the court with discretion to exclude prosecution evidence on grounds of unfairness?
2. What is the key test for when hearsay evidence is admissible in criminal proceedings?
3. If a confession was obtained after a breach of a PACE code, is it automatically inadmissible? Why or why not?
4. What must a judge consider before admitting disputed visual identification evidence under the Turnbull guidelines?

Introduction

The law of criminal evidence is structured around the desire to ensure that only material that is both relevant and fair is admitted at trial. Not every item with some connection to the facts in issue can be received by the tribunal of fact; statutory and common law rules have long set essential limits guided by reason and fairness. For practical and ethical reasons, courts must be vigilant in upholding the integrity of the trial process, recognising situations where improperly obtained, prejudicial, or otherwise unreliable evidence risks undermining justice.

Key Term: admissible evidence
Evidence that the tribunal of fact is permitted to consider for the purpose of proving or disproving a fact in issue at trial.

Key Term: exclusion of evidence
A judicial decision (usually on defence application) to prevent the tribunal of fact from hearing evidence, even if relevant, because of how it was obtained or its prejudicial impact.

The Role of Relevance and Admissibility

For evidence to be admitted at trial, it must have sufficient probative value—it must make a fact in issue more or less probable than it would be without that evidence. However, even relevant evidence is subject to rules of admissibility: if the law excludes it on policy, fairness, or statutory ground, it cannot be considered by the fact-finding tribunal.

Key Term: relevance
The tendency of evidence to make a fact in issue more or less probable than it would be without that evidence.

Burden and Standard of Proof

In criminal proceedings, the prosecution bears the legal burden of proving all elements of the offence—actus reus, mens rea, and disproving any defence raised—beyond reasonable doubt (Woolmington v DPP [1935]). The defendant only bears a legal burden in rare situations, such as for the special defence of diminished responsibility in murder cases (where the standard is on the balance of probabilities). In all other cases, the defendant has only an evidential burden: once evidence is adduced to put a defence like self-defence or alibi in issue, the prosecution must disprove it so the tribunal is sure it does not apply.

Evidential burdens may, for instance, arise where the defence raises self-defence or alibi; the defendant merely needs to adduce credible evidence making the issue live. After this, the prosecution must eliminate that possibility to the criminal standard.

Key Term: legal burden
The obligation imposed on a party (usually the prosecution in criminal cases) to prove a fact in issue to the requisite standard.

Key Term: evidential burden
The requirement to point to or adduce some evidence that makes an issue live for the tribunal of fact.

Types of Evidence

Trials may involve numerous forms of evidence: oral testimony, documentary evidence, real evidence (such as forensic samples), hearsay, confessions, and circumstantial evidence, among others. The form and probative value of each affects both how evidence is presented and how challenges to its use should be made.

Exclusion of Evidence: Statutory and Common Law Powers

The principal statutory grounds for exclusion in criminal litigation are:

• Section 76 PACE 1984 (confessions: oppression and unreliability)
• Section 78 PACE 1984 (all prosecution evidence: adverse effect on the fairness of proceedings)
• Common law powers to exclude evidence where probative value is substantially outweighed by its prejudicial effect, or where evidence lacks sufficient relevance.

Both statutory and common law principles operate together with the trial judge retaining broad discretion—especially where the right to a fair trial under Article 6 ECHR may be in jeopardy.

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

Key Term: hearsay
A statement not made in oral evidence at the trial that is relied upon as evidence of the matter stated.

Key Term: identification evidence
Evidence that purports to establish or corroborate the identity of a person relevant to the alleged offence, often from eyewitnesses.

Worked Example 1.1

A suspect’s confession is obtained in police interview after several hours without breaks, and without access to legal advice despite repeated requests. The prosecution wish to rely on the confession at trial. What procedures must the defence follow, and what are the possible grounds for exclusion?

Answer:
The defence should seek to exclude the confession under section 76 PACE 1984 on the ground it was obtained by oppression (due to prolonged questioning and denial of legal advice). If not excluded under s76, an application under s78 may be made due to significant breaches of fairness. The prosecution must prove beyond reasonable doubt that the confession was not obtained by oppression or in circumstances likely to render it unreliable.

Contested Evidence and Exclusion Applications

Exclusion under Section 76 PACE 1984: Confessions

Section 76 PACE 1984 requires the trial court to exclude confessions if it appears that they were, or may have been:

• obtained by oppression of the suspect; or
• in consequence of anything said or done which was likely, in the circumstances existing at the time, to render the confession unreliable.

Upon any suggestion by the defence to this effect, the burden falls on the prosecution to prove beyond reasonable doubt that the confession was not obtained in such a manner before it may be admitted.

Key Term: oppression
Oppression includes torture, inhuman or degrading treatment, and the use or threat of violence, but may also cover persistent threats, denial of breaks or legal advice, or grossly improper interviewing tactics (s 76(8), PACE; R v Fulling [1987]).

Key Term: unreliability
Circumstances giving rise to a risk that a confession is not true, such as failure to administer the caution, denial of legal advice, exhaustion, hunger, or mental/physical vulnerability.

Key Term: voir dire
A "trial within a trial" where the judge (without the jury present in Crown Court proceedings) determines whether disputed evidence is admissible.

Key Term: significant statement or silence
A statement or silence by a suspect at the police station capable of being used in evidence against them at trial, especially an explicit admission or failure to respond when it is reasonable to expect a denial.

A confession may be a “mixed statement” (containing exculpatory as well as inculpatory elements). If admitted, both parts are generally before the jury. Where reliability is disputed, the judge will hear evidence about the interview conditions (including custody records, audio/video recordings, and evidence from interviewing officers, custody officers, and any appropriate adult present) on a voir dire. The prosecution must satisfy the court to the criminal standard that the statement was not obtained by oppression and was not made unreliable by anything said or done.

Requirements for Admissibility and Procedure

Strict compliance with PACE Codes of Practice (especially Codes C and E on interviews, Code D on identification) is expected. If the defence alleges facts indicating oppression or unreliability, the prosecution must adduce evidence on a voir dire as to the conditions under which the confession was obtained. Even where a violation of Code C or denial of legal advice does not automatically render the confession inadmissible, it is likely to be excluded where breaches are substantial and have a demonstrable impact on fairness or reliability.

A confession may also be excluded under s 78 PACE if, even though obtained neither by oppression nor unreliably, its admission would have such an adverse effect on the fairness of proceedings that it ought not to be admitted.

Worked Example 1.2

A client makes an admission to a custody officer before being given access to a solicitor and then reiterates the admission on tape in the presence of a solicitor. Police failed to administer a proper caution in the first instance. Hearsay rules aside, can the first statement be admitted?

Answer:
The first admission might be excluded under s76 PACE as potentially unreliable (absence of caution, denial of advice). The prosecution must prove its reliability. The reiteration in the presence of a solicitor, properly cautioned, would generally be admissible.

Exclusion under Section 78 PACE 1984: Fairness

Section 78 grants the trial judge discretion to refuse to admit any prosecution evidence—whether or not it is a confession—if its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. This ground can be invoked for a wide range of breaches, including serious or substantial breaches of PACE Codes or unlawful police conduct, but the court will balance the weight and probative value of the evidence against the seriousness and causation of the breach.

Common triggers for a section 78 application include:

• significant or deliberate breaches of the PACE Codes (e.g., failure to caution, denial of legal advice, unlawful searches, or improper identification procedures)
• improper pressure or inducement at interview
• evidence obtained through deception, oppressive conduct, or where there are doubts as to provenance
• entrapment, or improper use of surveillance (although the principal remedy for entrapment may lie in a stay for abuse of process)

The discretion under s78 is not exercised lightly; the court must stand back and consider whether, in the circumstances, exclusion is the only reasonable remedy for the prejudice caused. Where the defence seeks to exclude documentary, digital, or scientific material (e.g., poor-quality CCTV, degraded recordings, improperly stored samples), issues of continuity, authentication, and reliability may also drive the fairness assessment.

Key Term: fairness
Refers to both the procedural and substantive fairness required by Article 6 ECHR, including the right to effective legal representation, to silence, and to have evidence tested.

Worked Example 1.3

The police seize a knife during a search but fail to follow rules for conducting house searches. At trial, the defence apply under s78 PACE 1984 to exclude the knife from evidence. What factors will the judge consider?

Answer:
The judge will consider how serious and deliberate the breach was, whether other remedies are possible, whether the defendant’s right to a fair trial is at risk, and if the evidence, despite the breach, is strongly probative or could be obtained by other means. Exclusion is more likely for significant breaches, especially if the breach taints the reliability or fairness of the prosecution case.

Distinguishing Mandatory and Discretionary Exclusion

It is important to distinguish between s76, which mandates exclusion of confessions proven or possibly obtained by oppression/unreliability, and s78, where exclusion is a matter of judicial discretion in all other circumstances affecting fairness.

Hearsay Evidence in Criminal Proceedings

Hearsay evidence (a statement not made in oral evidence at the proceedings, relied upon for its truth) is generally inadmissible unless admission is authorised by statute (primarily the Criminal Justice Act 2003), by agreement of all parties, by common law (where preserved), or where the court determines it is in the interests of justice to admit it (s 114(1), CJA 2003).

Key Term: hearsay
Evidence of a statement not made in oral evidence at trial, introduced as evidence of the matter stated.

When the court is asked to admit hearsay, it will consider reliability safeguards in the CJA 2003, including whether the absent maker’s credibility can be challenged (s124), whether the case depends wholly or substantially on hearsay (s125), and whether multiple hearsay rules are observed (s121), alongside its residual powers to exclude (s126) and to stop the case in the interests of justice (s125).

Statutory Gateways for Admitting Hearsay

Key statutory exceptions under the Criminal Justice Act 2003 include:

• Witness unavailable due to death, unfitness, being outside the UK, cannot be found despite reasonable steps, or in fear (s116)—"first-hand hearsay" only. The court must be satisfied (on evidence) that the unavailability condition is made out and that admitting the statement is necessary and fair.
• Business documents where the requirements are met (s117), including records created or received by a person acting in the course of a trade, business, profession, or public office, with personal knowledge at each stage of the information chain so far as reasonably practicable.
• Agreement of all parties (s114(1)(a)).
• Interests of justice (the "catch-all" gateway, s114(1)(d)), to be used sparingly and with explicit reasoning given, after the court considers all relevant factors (s114(2)). This includes need, reliability, the ability to challenge, and the extent of any prejudice.

Where hearsay is admitted, the defence must be permitted to attack the credibility of the absent maker as if they had testified (s124), including with evidence of inconsistencies, bias, or previous convictions for dishonesty. The judge retains a duty under s125 to stop a case if the hearsay is the sole or decisive evidence and is unconvincing such that a conviction would be unsafe.

Common Law and Preserved Exceptions

Section 118 CJA 2003 preserves some traditional common law exceptions, notably the res gestae doctrine (statements made spontaneously or contemporaneously with the relevant event).

Key Term: res gestae
A spontaneous statement made so closely in time to the event that the possibility of concoction or distortion is negligible, and thus may be admitted as an exception to the hearsay rule.

Where the prosecution seeks to rely on hearsay, CrimPR Part 20 requires notice as soon as reasonably practicable, setting out the gateway, the substance of the statement, and why the maker cannot be called. The defence should serve objections in accordance with the rule, identifying the statutory grounds relied upon and any alternative proposals (e.g., to admit only parts of a document).

Worked Example 1.4

A victim identifies the suspect in an identification parade. The defence argue that the parade was improperly conducted under the Code D PACE 1984. What should the court do?

Answer:
The judge may consider excluding the identification evidence (by s78 PACE) if the Code D breach is significant and unremedied, but will consider whether the misstep truly threatens fairness. Even if evidence is not excluded, the judge must warn the jury to treat the identification with especial caution if the breach could affect reliability.

Worked Example 1.5

A key eyewitness signed a statement identifying D as the assailant. Before trial, the witness reports being “too frightened” to attend after threats. The prosecution applies to admit the statement as hearsay.

Answer:
The application falls under s116 CJA 2003 (witness in fear). The court must be satisfied of the fear and that admitting the statement is necessary and fair, having regard to reliability and any steps taken to allay the fear (e.g., special measures). If admitted, s124 allows the defence to challenge the absent maker’s credibility; the judge must keep s125 (safeguard where case depends substantially on hearsay) in mind and, if appropriate, give careful jury directions about weight.

Worked Example 1.6

The prosecution seeks to adduce cell-site records and billing data as proof D’s phone connected to a mast near the scene. The analyst who produced the schedules has left the company.

Answer:
The records may be admissible as business documents under s117 CJA 2003 if they were made/received in the course of business by a person with (or receiving from a person with) personal knowledge, and it is not reasonably practicable to call that person. The court will consider reliability, continuity, and the ability of the defence to test methodology. Even if the hearsay gateway is satisfied, s78 PACE and s126 CJA provide residual discretion to exclude if admitting the schedules would unfairly prejudice the defendant.

Admissibility and Exclusion of Visual Identification Evidence

Identification by eyewitnesses carries recognised risks, and courts must adopt strict safeguards. When identification evidence is in dispute, judges must ensure compliance with the Turnbull guidelines (R v Turnbull [1977]).

Key steps include:

• Careful assessment of the quality of identification (duration, lighting, distance, degree of attention, discrepancies, prior knowledge of the suspect, elapsed time).
• Warning the jury of the special need for caution, the risks of mistaken identification, and the importance of considering supporting evidence.
• In cases where identification is poor and unsupported, withdrawing the case from the jury at the close of the prosecution case.
• If identification is weak but supported by other evidence (e.g., forensic evidence, confession, possession of stolen property), specific jury guidance about the limited weight to be given to such identification.

Key Term: Turnbull direction
A special warning delivered by the judge to the jury, highlighting the risks and necessary caution with eyewitness identification.

PACE Code D Procedures

Identification evidence should be tested using proper procedures as laid out in PACE Code D: video identification, identification parades, group identifications, and, if necessary, confrontations (with or without the consent of the suspect). Any failure to comply with these procedures may provide grounds for exclusion (usually via s78 PACE) or for a warning to the jury about the reliability of the identification evidence.

The investigating officer must preserve the initial description given by the witness and provide it to the defence; failures to record or disclose that description can be especially prejudicial and may support exclusion or a strong adverse direction. If the suspect refuses to participate in an identification procedure when one is required, the police may conduct a covert procedure and the refusal may itself be admissible as evidence relevant to the issue of identification.

The choice and administration of identification procedures are delegated to an independent identification officer, whose duties include ensuring compliance with Code D and recording all steps in writing.

Bad Character Evidence and Gateways for Admission

Evidence of a defendant’s bad character (Criminal Justice Act 2003, s98) is generally inadmissible unless one or more of the seven 'gateways' in s101(1) CJA 2003 applies, for example, evidence agreed by all parties, adduced by the defendant, important explanatory evidence, evidence in relation to a key issue between prosecution and defence, evidence to correct a false impression, or where the defendant attacks the character of another.

If the prosecution seeks to adduce bad character evidence to show a propensity to commit offences or to be untruthful, this must be relevant and not merely prejudicial. Courts assess propensity by reference to the nature, number, and similarity of previous convictions (Hanson principles), the time elapsed, and the strength of the other evidence. Even if a gateway is satisfied, s101(3) CJA 2003 requires exclusion where admission would have such an adverse effect on fairness that the court ought not to admit it. CrimPR Part 21 sets out the notice and objection regime and requires the court to give reasons for its decision.

Procedural Requirements

Notice must be given in writing of intention to adduce bad character evidence, and objections must be filed within strict time limits, accompanied by clear grounds for the challenge (CrimPR Part 21). The court must give reasons for any decision to admit or exclude the evidence.

Worked Example 1.7

The prosecution seeks to rely on D’s three similar domestic burglary convictions from eight years ago to show propensity in a current burglary trial. There is little other evidence.

Answer:
Gateway s101(1)(d) (important issue between prosecution and defence) may be engaged. The court will apply the Hanson factors: number and similarity of convictions, and the time gap. The long interval and the lack of other evidence increase the risk that the jury might convict purely on propensity; s101(3) fairness may require exclusion or, if admitted, a strong limiting direction. A conviction based substantially on old propensity alone would be unsafe.

Inferences from Silence

The Criminal Justice and Public Order Act 1994 permits adverse inferences to be drawn in defined situations:

• s34: where, on being questioned under caution or on charge, the suspect fails to mention a fact later relied on in their defence which, in the circumstances, they could reasonably have been expected to mention.
• s35: where the accused fails to testify at trial without good cause (subject to judicial assessment and appropriate warning).
• ss36–37: where, on arrest, the suspect fails or refuses to account for objects, substances, marks, or presence at a place, when given a special warning and the constable reasonably believes the matter to be attributable to the suspect’s participation in the offence.

The court must ensure the statutory preconditions are met and must direct the jury that a defendant cannot be convicted solely on an inference (s38(3)). Where silence was due to legal advice, the jury should be properly directed that the advice may be a good reason for silence if it was a reasonable response to the circumstances (e.g., limited disclosure or vulnerability); the mere fact of advice does not automatically immunise against an inference.

Worked Example 1.8

D is interviewed under caution about an assault. Disclosure is limited to a brief summary. On legal advice D answers “no comment” to all questions. At trial D runs self-defence, relying on a specific fact (an earlier threat) not mentioned in interview.

Answer:
The court will consider s34 CJPOA. It must ask whether, in the circumstances at interview (including the level of disclosure), it would have been reasonable to expect D to mention the fact; whether the fact is one relied on at trial; and whether it was later raised at the earliest reasonable opportunity. If the advice to remain silent was a reasonable response to the limited disclosure, no (or only a cautious) adverse inference should be drawn. The judge must give a careful and balanced direction.

Challenging Evidence and Procedural Steps

To object to the admissibility of evidence at trial, the defence must as early as possible notify the court and the prosecution, setting out the basis and grounds for the challenge—typically via written notice. Where necessary, a voir dire will be held for the judge to decide admissibility, hearing evidence from both parties.

The application should reference the precise legal test relied upon (e.g., s76, s78 of PACE; s101(3) CJA 2003; hearsay gateways), state the breaches or prejudicial risks, and provide supporting factual details. The prosecution must then be afforded a fair opportunity to meet and contest the challenge. Case management orders under the Criminal Procedure Rules (Parts 3, 20, and 21) will usually set timetables for service of notices and responses on hearsay and bad character, with the court deciding the issues at a pre-trial hearing.

When seeking to admit hearsay, the proponent must serve a Part 20 notice “as soon as reasonably practicable”, identifying the statutory gateway and the evidence relied on; the opponent should serve written objections within the time directed by the court. The judge must then decide with explicit reasons, addressing the statutory criteria and any fairness concerns (s114(2), s124–s126 CJA 2003).

Exam Warning

On the SQE2, remember: not every procedural or ethical breach results in exclusion. Exclusion is most likely where the breach is serious, goes to the heart of procedural protections (e.g., right to legal advice, investigation irregularities, suggestiveness in identification), or where fairness is compromised to the extent that admitting the evidence would undermine the integrity of the trial.

Minor or technical breaches of PACE or the Codes of Practice will not routinely lead to exclusion unless the fairness of the proceedings is demonstrably prejudiced.

Revision Tip

Learn precisely the difference between mandatory exclusion of confessions under s76 (oppression or unreliability), discretionary exclusion of all prosecution evidence under s78, and the application of Turnbull and Code D at every stage where identification is in issue. Be able to explain the procedures for objecting to the admissibility of all main types of disputed evidence and identify which party bears the burden and what the burden is.

Key Point Checklist

This article has covered the following key knowledge points:

• Evidence is only admissible if it is both relevant and not excluded under statutory or common law.
• The prosecution carries the legal burden of proving all elements of the offence beyond reasonable doubt, while the defendant may sometimes bear only an evidential burden (or, rarely, a legal burden) for specific defences.
• There are statutory and common law exclusionary rules: confessions must be excluded if obtained by oppression or in circumstances making them unreliable, and the prosecution must justify their admissibility to the criminal standard.
• Section 78 PACE 1984 gives the court discretion to exclude any prosecution evidence if, considering all the circumstances, its admission would adversely affect the fairness of proceedings.
• Hearsay evidence is inadmissible unless it falls within an explicit statutory, common law, or agreed exception, or the court deems it just to admit in the interests of justice; when admitted, reliability safeguards and s124–s126 CJA must be considered, and appropriate jury directions given.
• The admissibility of identification evidence is subject to rigorous statutory safeguards (PACE Code D) and judicial guidance on warning the jury (Turnbull) about risks of mistaken identification, and to procedures for excluding unreliable or improperly obtained identification evidence.
• Evidence of bad character is inadmissible against the defendant unless a specified statutory gateway applies and fair notice is given; the court may exclude such evidence under s101(3) CJA 2003 or s78 PACE where it would unfairly prejudice the trial.
• Even when an application to exclude fails and evidence is admitted, the defence may challenge the evidence's weight and credibility in cross-examination and in closing addresses. Judges retain residual powers to stop a case if hearsay is unconvincing and decisive (s125 CJA).
• Defence challenges to evidence require timely written notice, clear procedural basis, and, where necessary, a voir dire. Hearsay and bad character require compliance with CrimPR Parts 20 and 21 for notice and objection.
• Deliberate or substantial breaches of procedural safeguards are most likely to result in exclusion; minor or technical breaches are unlikely to suffice unless linked to unfairness or unreliability.
• Admissibility is always distinct from the weight and persuasive value the tribunal of fact may afford the evidence.
• Openness, procedural fairness, and respect for the defendant’s Article 6 rights (right to fair trial) underpin all exclusionary powers.

Key Terms and Concepts

• admissible evidence
• exclusion of evidence
• relevance
• legal burden
• evidential burden
• confession
• hearsay
• identification evidence
• oppression
• unreliability
• voir dire
• significant statement or silence
• fairness
• res gestae
• Turnbull direction