LPC: CRIMINAL LITIGATION 2022 CHAPTER 5
CRIMINAL LITIGATION
CHAPTER 5:
INTRODUCTION TO EVIDENCE Legal Practice Course
Learning Outcomes
After this chapter you should be able to:
1. understand the rules governing competence and compellability of
witnesses;
2. understand the importance of evidence and the rules governing the
admissibility of evidence;
3. understand how prosecution evidence can be excluded at court;
4. apply the guidelines relating to admissibility of identification evidence;
and
5. understand the rules on the admissibility of bad character evidence.
1. The trial process
As we saw in Chapter 1 the criminal justice system in England and Wales is
an adversarial system. It is the role of the prosecution to present sufficient
admissible evidence to persuade a tribunal to convict the defendant beyond
reasonable doubt.
Before we consider evidential issues in detail, it is helpful to consider what
actually happens during a trial in the magistrates’ court or Crown Court. The
flow chart below sets out the order in which events usually take place.
LAW SCHOOL 16/06/2019/AU Page 1 of 25
,CHAPTER 5 LPC: CRIMINAL LITIGATION
Trial process
The prosecution opens its case.
The prosecutor will usually
make an opening speech
The prosecution witnesses give
evidence
If appropriate the defence
makes a submission of no case
to answer
The defendant and any defence
witnesses give evidence
In the Crown Court the
prosecution will make a closing
speech
Defence closing speech
In the Crown Court the judge
sums up to the jury,
summarising the facts and
making appropriate directions
on the law
The jury or magistrates
consider their verdict and make
a decision as to innocence or
guilt
Page 2 of 25 16/06/201/AU LAW SCHOOL
, LPC: CRIMINAL LITIGATION 2022 CHAPTER 5
As the burden rests with the prosecution, the prosecution opens with its case
and calls its witnesses. The prosecutor will usually make an opening speech
setting out how the prosecution intends to prove the charges against the
defendant. The prosecution may call a number of witnesses to give evidence
including the victim of the offence, eye witnesses, police officers and expert
witnesses. The prosecution may also rely on exhibits such as CCTV footage
of the incident and will also usually rely on any police interview with the
defendant. The defence will have an opportunity to cross examine each
prosecution witness and put the defence case to the witness.
Once all the prosecution evidence has been heard it is possible for the
defence to make a submission of ‘no case to answer’ in which the defence
lawyer will argue that the prosecution has failed to present sufficient evidence
to the court to raise a prima facie case. If this application is successful then
the defendant will be acquitted of the charges. If not, then the defence will
present its case. The defendant can give evidence and the defence can also
call witnesses. Each defence witness may be cross examined by the
prosecution.
During the trial there may be legal argument relating to the admissibility of
evidence. In the Crown Court, legal argument will take place in the absence
of the jury in what is a known as a voir dire hearing, or a trial within a trial.
During the voir dire, both the prosecution and defence can call and cross
examine witnesses. We will see later in this chapter how the defence might
seek to exclude confession evidence in a voir dire.
At the conclusion of the trial in the Crown Court both the prosecution and
defence lawyers will make closing speeches. In the magistrates’ court, only
the defence lawyer will make a closing speech (although the prosecutor will
have a right to reply to legal argument). In the Crown Court the judge will then
‘sum up’ to the jury, summarising the facts and directing them as to any issues
of law.
2. Competence and compellability of witnesses
This issue is concerned with whether a witness is allowed to give evidence
(competence) and, if so, whether they can be forced to give evidence if they
do not want to (compellability).
The following provisions govern competence and compellability:
Section 53 Youth Justice and Criminal Evidence Act 1999 (‘YJCEA’)
Section 1 Criminal Evidence Act 1898 (‘CEA 1898’)
Section 80 Police and Criminal Evidence Act (‘PACE’)
Under s. 53(3) YJCEA a person is not competent to give evidence in criminal
proceedings if it appears to the court that he is not a person who is able to:
(a) understand questions put to him as a witness; and
(b) give answers to them which can be understood.
LAW SCHOOL 16/06/2019/AU Page 3 of 25
CRIMINAL LITIGATION
CHAPTER 5:
INTRODUCTION TO EVIDENCE Legal Practice Course
Learning Outcomes
After this chapter you should be able to:
1. understand the rules governing competence and compellability of
witnesses;
2. understand the importance of evidence and the rules governing the
admissibility of evidence;
3. understand how prosecution evidence can be excluded at court;
4. apply the guidelines relating to admissibility of identification evidence;
and
5. understand the rules on the admissibility of bad character evidence.
1. The trial process
As we saw in Chapter 1 the criminal justice system in England and Wales is
an adversarial system. It is the role of the prosecution to present sufficient
admissible evidence to persuade a tribunal to convict the defendant beyond
reasonable doubt.
Before we consider evidential issues in detail, it is helpful to consider what
actually happens during a trial in the magistrates’ court or Crown Court. The
flow chart below sets out the order in which events usually take place.
LAW SCHOOL 16/06/2019/AU Page 1 of 25
,CHAPTER 5 LPC: CRIMINAL LITIGATION
Trial process
The prosecution opens its case.
The prosecutor will usually
make an opening speech
The prosecution witnesses give
evidence
If appropriate the defence
makes a submission of no case
to answer
The defendant and any defence
witnesses give evidence
In the Crown Court the
prosecution will make a closing
speech
Defence closing speech
In the Crown Court the judge
sums up to the jury,
summarising the facts and
making appropriate directions
on the law
The jury or magistrates
consider their verdict and make
a decision as to innocence or
guilt
Page 2 of 25 16/06/201/AU LAW SCHOOL
, LPC: CRIMINAL LITIGATION 2022 CHAPTER 5
As the burden rests with the prosecution, the prosecution opens with its case
and calls its witnesses. The prosecutor will usually make an opening speech
setting out how the prosecution intends to prove the charges against the
defendant. The prosecution may call a number of witnesses to give evidence
including the victim of the offence, eye witnesses, police officers and expert
witnesses. The prosecution may also rely on exhibits such as CCTV footage
of the incident and will also usually rely on any police interview with the
defendant. The defence will have an opportunity to cross examine each
prosecution witness and put the defence case to the witness.
Once all the prosecution evidence has been heard it is possible for the
defence to make a submission of ‘no case to answer’ in which the defence
lawyer will argue that the prosecution has failed to present sufficient evidence
to the court to raise a prima facie case. If this application is successful then
the defendant will be acquitted of the charges. If not, then the defence will
present its case. The defendant can give evidence and the defence can also
call witnesses. Each defence witness may be cross examined by the
prosecution.
During the trial there may be legal argument relating to the admissibility of
evidence. In the Crown Court, legal argument will take place in the absence
of the jury in what is a known as a voir dire hearing, or a trial within a trial.
During the voir dire, both the prosecution and defence can call and cross
examine witnesses. We will see later in this chapter how the defence might
seek to exclude confession evidence in a voir dire.
At the conclusion of the trial in the Crown Court both the prosecution and
defence lawyers will make closing speeches. In the magistrates’ court, only
the defence lawyer will make a closing speech (although the prosecutor will
have a right to reply to legal argument). In the Crown Court the judge will then
‘sum up’ to the jury, summarising the facts and directing them as to any issues
of law.
2. Competence and compellability of witnesses
This issue is concerned with whether a witness is allowed to give evidence
(competence) and, if so, whether they can be forced to give evidence if they
do not want to (compellability).
The following provisions govern competence and compellability:
Section 53 Youth Justice and Criminal Evidence Act 1999 (‘YJCEA’)
Section 1 Criminal Evidence Act 1898 (‘CEA 1898’)
Section 80 Police and Criminal Evidence Act (‘PACE’)
Under s. 53(3) YJCEA a person is not competent to give evidence in criminal
proceedings if it appears to the court that he is not a person who is able to:
(a) understand questions put to him as a witness; and
(b) give answers to them which can be understood.
LAW SCHOOL 16/06/2019/AU Page 3 of 25
