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The question of whether (and to what extent) evidence suggesting or proving a fact in issue can be entered into the record and heard by the deciders of fact.
Theoretically, admissibility is decided by a Judge before trial, or away from the jury, according to whether the evidence is more probative than prejudicial to the defendant. In practice, the question is governed by a series of special regimes that guide the exercise of judicial discretion. The major power is under the Police and Criminal Evidence Act 1984, s 78, which allows the Judge to exclude evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Other evidential regimes, such as previous sexual history, or bad character, have specific tests and gateways of admissibility for the court to consider.
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Common grounds for appealing conviction and sentence—checklist Grounds of appeal must be settled with sufficient particularity to enable the Registrar, and subsequently the Court of Appeal Criminal Division (CACD), to identify clearly the matters relied upon. A mere formula such as ‘the conviction is unsafe’ or ‘the sentence is in all the circumstances too severe’ will be deemed ineffective. This checklist summarises some of the common grounds for appealing conviction and sentence, which can provide the basis for an appeal in the CACD. It should be read in conjunction with the following Practice Notes: Criminal appeals—certificates of fitness to appeal from the Crown Court, Starting an appeal in the Court of Appeal Criminal Division (CACD) and Conducting an appeal in the Court of Appeal Criminal Division (CACD). For information on appeals in the Crown Court, see Practice Notes: Appealing a conviction in the Crown Court and Appeal against sentence in the Crown Court. Grounds for appealing conviction The single test for the CACD to determine when considering an appeal against...
Advocacy: Resisting an application to admit hearsay—checklist Produced in partnership with Jack Gilliland, 2 Hare Court. • Is the statement within the meaning of Criminal Justice Act 2003 (CJA 2003)? Hearsay is: ◦ a statement made by a person (but not a machine), including in a sketch, photofit, or other pictorial form ◦ out of court ◦ relied on for the truth of any matter stated ◦ the purpose of the maker of the statement was to cause another person to believe or act, or machine to operate, on the basis that the matter stated was true ◦ See: Identifying hearsay in criminal proceedings • If it is not hearsay: ◦ identify the proposed gateway and set out why the statutory test is not met, and ◦ consider any other reasons why the statement should be excluded, eg unfairness (section 78 of the Police and Criminal Evidence Act 1984) and/or the court’s general discretion to exclude hearsay (CJA 2003, s 126) • If the hearsay application is under CJA 2003, s 116 (unavailable...
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Proving the identity of the driverWhere the court is satisfied that the accused was served with a notice under section 172 of the Road Traffic Act 1988 (RTA 1988) and the court has received a statement from the accused confirming that they were the driver, the magistrates will accept that statement as proof of the identity of the driver.Where there is no such statement, either because RTA 1988, s 172 notice was not satisfactorily served in accordance with the Criminal Procedure Rules 2020, SI 2020/759, Pt 4 (CrimPR) or because the offence is not one to which section 172 applies, the magistrates will consider evidence such as details of the registered keeper given to police during questioning or details on the police national database. See: Creed v Scott [1976] RTR 485 (not reported by ÑÇÖÞÉ«ÇéÍø®) and DPP v Bayliff [2003] EWHC 539 (Admin) (not reported by ÑÇÖÞÉ«ÇéÍø®).Details of the driver given to the police can be proof of identity. It does not matter if a driver’s licence is produced to prove the name and address or the details are...
This Practice Note considers what constitutes hearsay evidence, when it might be admissible and how to make an application to introduce hearsay evidence. Hearsay evidence is a particularly important aspect of a criminal trial as it can impact the fairness of proceedings. The Practice Note also sets out what the court should consider when deciding whether or not to allow or exclude hearsay evidence.How to identify hearsayThe definition of hearsay is contained in the Criminal Justice Act 2003 (CJA 2003). The essence of hearsay evidence is that it is a second-hand account of a relevant matter. It comprises of four essential elements.There must be:•a statement•made out of court•relied on for the truth of the matter stated, and•the purpose of the maker of the statement is to cause another to believe or act on the facts statedA statementUnder CJA 2003 a statement is broadly defined as any representation of fact or opinion by whatever means. This means that the representation could be made orally, in writing or by a gesture. The...
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Cross-border protocol for insolvencies or restructurings This Agreement is made [insert day and month] 20 [insert year] Parties 1 [insert name of insolvency representative] in their capacity as [insert capacity eg liquidator or administrator or trustee or custodian or supervisor or curator or examiner]Â of [insert name of company(ies) appointed over] in [insert name of country A] appointed by a decision of the [insert name of court or administrative or governmental or regulatory body appointing them] dated [insert date]; and 2 [insert name of insolvency representative] in their capacity as [insert capacity eg liquidator or administrator or trustee or custodian or supervisor or curator or examiner]Â of [insert name of company(ies) appointed over] in [insert name of country B] appointed by a decision of the [insert name of court or administrative or governmental or regulatory body appointing them] dated [insert date]; together referred to as the Insolvency Representatives; and 3 [insert name of debtor company(ies)] a company incorporated in [insert country] under number [insert registered number] whose ...
Procedural Order for directions following preliminary meeting in arbitration PROCEDURAL ORDER NO. [1] Having heard representatives for both the [ Claimant OR Claimants] and the [ Respondent OR Respondents] (the Parties) at the preliminary meeting held on [date], the Tribunal hereby orders that: 1 Applicable arbitration rules 1.1 This arbitration shall be governed by [insert applicable arbitration rules] in force as of [insert date]. 1.2 The Parties and Tribunal shall seek guidance from, but shall not be bound by, the IBA Rules on the Taking of Evidence in International Arbitration (the IBA Rules), subject to the Tribunal’s discretion to control the procedural conduct of the arbitration. 1.3 [[If appropriate, include a statement on the applicable law of the substantive dispute and/or the arbitration].] 2 Seat and language of the arbitration 2.1 The seat of arbitration is [insert place]. Meetings and hearings may take place at other locations if so decided by the Tribunal after consultation with the Parties. 2.2 The language of the arbitration is [insert...
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A company was liquidated and dissolved in the last few years. Former creditors of the company have put evidence to the liquidator and, as a consequence, the liquidator has now made an application to restore the company in order to investigate the matter further. The former directors would like to get a copy of the liquidator's statement in support of the restoration, but the liquidator felt uncomfortable in providing this. What is the best method of securing disclosure of this? The issue to consider will be generally whether a third party can obtain a copy of a witness statement from the court in respect of live proceedings, and whether there are any restrictions on the applicant in the proceedings regarding disclosing a witness statement to non-parties. The status and use of a witness statement will depend on whether it is a draft witness statement or a final one which has been signed off by the witness. Draft witness statements and affidavits are privileged unless and until privilege is waived....
In proceedings under the Family Law Act 1996, the applicant has produced as part of their evidence a recording of the respondent made without the respondent’s knowledge. The respondent believes that the applicant has made further covert recordings which have not been disclosed. Is there case law to support that the applicant or their solicitors should disclose copies of all covert recordings made? The law relating to the recording of conversations between private individuals and the use of those recordings in court proceedings is a developing area. As a matter of first principles, there is no offence committed where an individual covertly records a conversation with another individual. The Regulation of Investigatory Powers Act 2000 (RIPA 2000) applies to public bodies but not to individuals. Likewise, the Telecommunications(Lawful Business Practice) (Interception of Communications) Regulations 2000, SI 2000/2699 apply to businesses in respect of the recording of conversations without notice to the person being recorded or in certain specified exceptional circumstances. In Jones v University of Warwick, an enquiry agent...
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The Council of the EU and the European Parliament have reached a provisional agreement on a new regulation to improve cross-border enforcement of the GDPR. The deal, led by the Polish presidency, harmonises rules on admissibility, complainants’ rights, and procedural deadlines, with the aim of accelerating the handling of cross-border complaints and strengthening cooperation between national data protection authorities. The agreement must now be formally adopted by both institutions before entering into force.
Restructuring & Insolvency analysis: In this judgment, the High Court considered together two related applications under the Insolvency (England and Wales) Rules 2016 (IR 2016), r 14.8 to reverse or vary decisions made by liquidators as to the admission and rejection (respectively) of two claims, and whether the liquidators should be held personally liable for the creditors' costs of those applications. Although the court ultimately reversed both of the liquidators’ decisions, it declined to order that the liquidators pay the applicants' costs. The liquidators' decision-making process was neither irrational nor unreasonable, they had acted fairly, in good faith, and without conscious bias, and they ‘did their best to give the correct answer’. Their conduct was, therefore, not ‘in substance so unreasonable or irrational, or so plainly contrary to the evidence as to attract an adverse costs consequence’. Thus, the 'starting point' under IR 2016, r 14.9(2) (that an office-holder is not personally liable for costs incurred by any person in respect of an application under IR 2016, r 14.8 ‘unless...
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(1)    In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.(2)    Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.[(3)    . . .]
Admissibility is referenced 1 in UK Parliament Acts
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