The Modern Law of Evidence

756 Pages·2012·7.51 MB·English

by  Adrian Keane

The Modern Law
of Evidence

The Modern Law
of Evidence
Ninth Edition
ADRIAN KEANE LL.B
of the Inner Temple, Barrister,
Professor of Law, the City Law School,
City University, London,
Sometime Dean of the Inns of Court School of Law
Paul McKeown LL.B, LL.M
of Lincoln’s Inn, Barrister,
Senior Lecturer, the City Law School,
City University, London
1
3
Great Clarendon Street, Oxford OX2 6DP
United Kingdom
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Sixth Edition published 2006
Seventh Edition published 2008
Eighth Edition published 2010
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Library of Congress Control Number: 2011945450
ISBN 978–0–19–969832–5
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PREFACE TO THE NINTH EDITION
As ever, we have striven in this edition to meet the original aims of the work: to
explore the theory of the law as well as its practical application, bearing in mind the
varied needs of our readers—judges, practitioners, and students at both the under-
graduate and vocational stages; to state the law in a way which is both accurate and
readable; and to focus, wherever possible, on modern aspects of the subject. We are
particularly pleased that the work continues to be used by practitioners, as well as
scholars and students of the subject, and that it has developed an international repu-
tation and has been cited in a variety of courts around the world.
The justifi cation for this new edition lies in the developments, since the eighth
edition, of both law and legal scholarship in the fi eld. The work has been updated to
cover all of the most recent case law, including the decisions of the European Court of
Human Rights in Al-Khawaja and Tahery v UK (hearsay); the decisions of the Supreme
Court in R v Horncastle (hearsay), Al Rawi v Security Service (closed material procedures
and the use of special advocates), Re W (children) (children as witnesses in family
proceedings), and R v Maxwell (illegally obtained evidence); and the decisions of the
Court of Appeal in R v Majid (criminal standard of proof), R v GJB (good character
directions in cases of historic sexual abuse), R v South (bad character of witnesses), R v
C (presumption relating to convictions), R v Daniels (witnesses who agree to assist the
state), R v Barker (competence of children in criminal cases), R v W (cross-examination
of children), and R v Henderson (expert evidence). The new edition also considers the
implications of the Coroners and Justice Act 2009 and the 2011 Law Commission
Report on expert evidence.
The authors remain grateful to OUP for their ongoing effi ciency and support and to
readers for their helpful feedback.
This edition is dedicated to Rosemary Samwell-Smith, who died in October 2010
after a long battle with cancer that was as dignifi ed as it was courageous. Rosie’s sup-
port for, and encouragement of, the authors of this work was quite boundless. She is
sorely missed.
We have attempted to state the law, accurately, as at 1 September 2011.
Adrian Keane
Paul McKeown
September 2011
This page intentionally left blank
OUTLINE CONTENTS
1 Introduction 1
2 Preliminaries 6
3 Evidence obtained by illegal or unfair means 53
4 The burden and standard of proof 79
5 Witnesses 117
6 Examination-in-chief 164
7 Cross-examination and re-examination 191
8 Corroboration and care warnings 221
9 Documentary and real evidence 254
10 Hearsay in criminal cases 272
11 Hearsay admissible by statute in civil proceedings 326
12 Hearsay admissible at common law 346
13 Confessions 364
14 Statutory inferences from an accused’s silence or conduct 408
15 Evidence of character: evidence of character in civil cases 439
16 Evidence of character: evidence of the good character of the accused 444
17 Evidence of character: evidence of bad character in criminal cases 453
18 Opinion evidence 525
19 Public policy 560
20 Privilege 593
21 Judgments as evidence of the facts upon which they were based 636
22 Proof of facts without evidence 651
DETAILED CONTENTS
TABLE OF STATUTES xiv
TABLE OF STATUTORY INSTRUMENTS xxi
TABLE OF CODES, CODES OF PRACTICE, AND PRACTICE DIRECTIONS xxiii
TABLE OF CASES xxiv
11 IInnttrroodduuccttiioonn 11
Key issues 1
Truth and the fact-fi nding process 2
The development of the law 3
Additional reading 5
22 PPrreelliimmiinnaarriieess 66
Key issues 6
Facts open to proof or disproof 7
The varieties of evidence 9
Relevance and admissibility 20
Weight 30
The functions of the judge and jury 31
Judicial discretion 43
Proof of birth, death, age, convictions, and acquittals 49
Additional reading 51
33 EEvviiddeennccee oobbttaaiinneedd bbyy iilllleeggaall oorr uunnffaaiirr mmeeaannss 5533
Key issues 53
Law 55
Discretion 57
Additional reading 78
44 TThhee bbuurrddeenn aanndd ssttaannddaarrdd ooff pprrooooff 7799
Key issues 79
The burden of proof 80
The standard of proof 105
The burden and standard of proof in a trial within a trial 114
Additional reading 116
DETAILED CONTENTS ix
55 WWiittnneesssseess 111177
Key issues 117
Competence and compellability 118
Oaths and affi rmations 132
Live links 134
The time at which evidence should be adduced 136
Witnesses in civil cases 140
Witnesses in criminal cases 142
Additional reading 162
66 EExxaammiinnaattiioonn--iinn--cchhiieefff 116644
Key issues 164
Leading questions 165
Refreshing the memory 166
Previous consistent or self-serving statements 174
Unfavourable and hostile witnesses 184
Additional reading 190
77 CCrroossss--eexxaammiinnaattiioonn aanndd rree--eexxaammiinnaattiioonn 119911
Key issues 191
Cross-examination 192
Re-examination 219
Additional reading 220
88 CCoorrrroobboorraattiioonn aanndd ccaarree wwaarrnniinnggss 222211
Key issues 221
Corroboration required by statute 223
Care warnings 226
Confessions by the mentally handicapped 237
Identifi cation cases 240
Lip-reading evidence 251
Sudden infant death syndrome 252
Additional reading 253