Evidence Part 1
The laws of evidence are the rules of the game. They decide what information it is permissible to put before the court, and how that information is to be treated. Just as in football goals can only be scored in accordance with the rules of the game, so English law has developed rules about what can be presented in court and how it can be presented. Although this might seem just that, a game, the purpose is simple. It is to provide a set of rules which are designed to ensure that the material brought before the courts will be appropriately and fairly dealt with.
Like English law generally, rules of evidence come from a mixture of precedent (decided court cases) and statute. In recent times statute has been a much greater source of changes to the rules of evidence.
Sometimes certain types of material cannot be put before the court. Such rules are often criticised as ones which effectively try to keep the truth from the court. In each case there are usually strong reasons of policy for the approach which is taken.
One feature which is consistently apparent in looking at the English law of evidence is the difference between criminal cases and civil cases. In many ways the regimes are wholly different. Of course in general terms serious criminal charges are tried before a judge and jury, whereas civil cases in this country (contrast the position in the United States) are tried before a judge alone. There are very rare exceptions in civil cases where there may still be a jury trial, such as defamation and false imprisonment, but the general position is that juries sit in crime and not on civil. That makes a difference because in a case with a jury they decide the facts and the judge tells them what the law is. Therefore the rules of evidence will decide what information the jury will get. In general terms, a jury coming new to deciding cases, might be thought to be more likely to be influenced by material which a judge might pay less attention to. In general evidential rules are stricter in criminal cases than in civil ones.
It might be thought that this distinction in the rules between what is the law and what are the facts would be fairly easy to identify, but that is not always the case. For example, questions of foreign law are treated as matters of fact. That applies in both civil cases and criminal cases. Therefore if there is an issue as to what foreign law provides, it is not a question of the judge looking at foreign statutes or cases and saying what he thinks the law is, there will be evidence brought from experts saying what foreign law provides. (This is an approach taken in other jurisdictions: one barrister I know, having been asked to give evidence as an expert, once had to go to Texas to give evidence about English contract law). In criminal cases this is now an area which the judge decides even though it is an issue of fact. (This is something of a relief: imagine the bemusement of jurors, having been told judges decide the law, being then told that they had to decide as a matter of fact between two competing versions of what foreign law provided for, each being supported by experts).
Next week we will look at the evidential topic of "burden and standard of proof". Namely who has to prove what, and to what degree.