Category: Evidence

Regina v Nethercott: CACD 2 Nov 2001

Where defendant sought to rely upon a defence of duress, evidence of subsequent acts of violence may be admissible in support of that contention provided a sufficient connection could be made. Here, the defendant wanted to adduce evidence that those under whose direction he claimed to have acted had stabbed him causing serious injury some twelve weeks later. That evidence was relevant, and should have been admitted.

Judges:

Lord Justice Waller, Mr Justice Curtis and Mr Justice Davis

Citations:

Times 12-Dec-2001

Jurisdiction:

England and Wales

Evidence

Updated: 29 August 2022; Ref: scu.167114

Kimathi and Others v The Foreign and Commonwealth Office: QBD 9 May 2018

Admissibility of extracts from Hansard

Judges:

Stewart J

Citations:

[2018] EWHC 1070 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Kimathi and Others v The Foreign and Commonwealth Office (Strike out) QBD 24-Nov-2016
The defendant sought to have struck out from the group litigation, as a nullity the claim by one claimant who had been deceased at the time of issue. His PRs responded that the court could deal with the matter under CPR Pt 3.
Held: The court’s . .
See Also – Kimathi and Others v The Foreign and Commonwealth Office (Cross examination request) QBD 24-Nov-2016
Application to cross examine translators of claimant witness statements. . .
See Also – Kimathi and Others v The Foreign and Commonwealth Office QBD 9-Feb-2017
Application notice seeking an order that certain issues be listed for hearing as a preliminary point. . .
See Also – Kimathi and Others v The Foreign and Commonwealth Office QBD 28-Mar-2018
Claim as to allegations of abuse in Kenya in the 1950s. . .
Cited – Kimathi and Others v The Foreign and Commonwealth Office QBD 18-Apr-2018
Continued dispute as to admissibility of certain documents . .

Cited by:

Cited – Kimathi and Others v The Foreign and Commonwealth Office QBD 24-May-2018
The Claimants claimed damages against the Defendant for alleged abuses arising during the course of the Kenyan Emergency during the 1950s. . .
Cited – Kimathi and Others v The Foreign and Commonwealth Office QBD 2-Aug-2018
Allegations of abuse by persons for whose conduct it is alleged the Defendant is liable, arising out of the Kenyan Emergency. . .
See Also – Kimathi and Others v The Foreign and Commonwealth Office QBD 21-Nov-2018
. .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 29 August 2022; Ref: scu.616158

HSBC Asia Holdings Bv and Another v Gillespie: EAT 19 Nov 2010

EAT PRACTICE AND PROCEDURE – Admissibility of evidence
PRACTICE AND PROCEDURE – Case management
Respondent in substantial discrimination claim seeking directions at a case management discussion (a) that evidence which the Claimant sought to call avowedly by way of ‘background’ be excluded as inadmissible because it was of no real relevance and (b) that only sample claims be proceeded with at the forthcoming hearing – Judge declines to make either direction, stating as regards (a) that on the authorities he had no power to do so
As regards (a), held that the Judge had been wrong to hold that he had no such power and that in the circumstances the evidence in question should be excluded – Discussion of applicable principles
As regards (b), appeal not pursued, but some guidance given as to when proceeding by way of sample claims might be appropriate.

Judges:

Underhill P J

Citations:

[2010] UKEAT 0417 – 10 – 1911, [2011] IRLR 209, [2011] ICR 192

Links:

Bailii

Employment, Evidence

Updated: 27 August 2022; Ref: scu.426458

Pinfold, Mackenney v Regina: CACD 15 Dec 2003

The appellants challenged their convictions for murder. The convictions had been based substantially upon the evidence of a co-accused who had admitted his part. They now challenged the admission by way of support of the evidence of the co-defendant of medical opinion as to his reliability, where the doctor had not physically examined the witness. The witness had since rescinded his evidence.
Held: ‘. . these convictions are unsafe. We say this despite the fact that we cannot determine where the truth lies as to these murders. However, in the light of the whole of the fresh evidence that we have before us, considered in the context of the evidence at the trial we have come to the conclusion that Childs’ evidence is so unreliable that it is worthless. The appellants’ convictions depended on Childs’ evidence. ‘

Judges:

Mr Justice Aikens Lord Chief Justice Of England And Wales Mr Justice Davis

Citations:

[2003] EWCA Crim 3643, Times 09-Jan-2004, [2004] 2 Cr App R 5

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Stafford CACD 1968
The court considered the admission of evidence which had become available only after the trial.
Held: ‘public mischief would ensue and legal process could become indefinitely prolonged were it the case that evidence produced at any time would . .
Cited – Stafford v Director of Public Prosecutions HL 1974
The House rejected the submission of counsel that the Court of Appeal had asked the wrong question by taking as the test the effect of the fresh evidence on their mind and not the effect that the evidence would have had on the mind of the jury. It . .
Cited – Regina v Lattimore CACD 1975
‘. . . It is also inconceivable that the court would receive inadmissible evidence; for the court must act according to law.’ . .
Cited – Regina v Koerns CACD 2000
. .
Cited – Regina v Pendleton HL 13-Dec-2001
The defendant had appealed his conviction for murder to the Court of Appeal. The 1968 Act required the court to consider whether the conviction was unsafe. New evidence was before the Court of Appeal, but they had rejected the appeal.
Held: . .
Approved – Regina v O’Brien; Regina v Hall; Regina v Sherwood CACD 16-Feb-2000
It is proper for the court to admit psychiatric evidence of a defendant’s particular readiness to make false confessions. Such evidence should however be closely circumscribed, and should include for example, that it makes the evidence gained . .
Cited – Regina v Ward CACD 1993
The court considered the admission of medical evidence to support other evidence against a defendant as to his propensity. ‘But we conclude on the authorities as they now stand that the expert evidence of a psychiatrist or a psychologist may . .
Cited – Regina v Turner (Terence) CACD 1974
The defendant appealed against his conviction for murder. He admitted that he had killed his girlfriend with a hammer, but sought to bring psychiatric evidence that he was susceptible to provocation.
Held: The law jealously guards the role of . .
Cited – Regina v Woolwich Justices ex parte Toohey, Toohey v Metropolitan Police 1965
The court described the limits for the admission of psychiatric evidence in criminal trials. . .
Cited – Regina v Fell CACD 22-Mar-2001
Expert medical evidence has to be based on a physical examination of the witness whose credibility is being impugned before it can be admitted. . .

Cited by:

See Also – Childs (Aka Greenfield), Regina v CACD 30-Sep-2014
In 1979 the defendant had been convicted on his plea, of six murders and subsequently of robbery with 25 similar offences taken into consideration. Now he sought ;eave to appeal bringing evidene of a personality disorder such that nothing he said, . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 27 August 2022; Ref: scu.188847

Kimathi and Others v The Foreign and Commonwealth Office: QBD 18 Apr 2018

Continued dispute as to admissibility of certain documents

Judges:

Stewart J

Citations:

[2018] EWHC 853 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Kimathi and Others v The Foreign and Commonwealth Office (Strike out) QBD 24-Nov-2016
The defendant sought to have struck out from the group litigation, as a nullity the claim by one claimant who had been deceased at the time of issue. His PRs responded that the court could deal with the matter under CPR Pt 3.
Held: The court’s . .
See Also – Kimathi and Others v The Foreign and Commonwealth Office (Cross examination request) QBD 24-Nov-2016
Application to cross examine translators of claimant witness statements. . .
See Also – Kimathi and Others v The Foreign and Commonwealth Office QBD 9-Feb-2017
Application notice seeking an order that certain issues be listed for hearing as a preliminary point. . .
See Also – Kimathi and Others v The Foreign and Commonwealth Office QBD 28-Mar-2018
Claim as to allegations of abuse in Kenya in the 1950s. . .

Cited by:

Cited – Kimathi and Others v The Foreign and Commonwealth Office QBD 9-May-2018
Admissibility of extracts from Hansard . .
Cited – Kimathi and Others v The Foreign and Commonwealth Office QBD 24-May-2018
The Claimants claimed damages against the Defendant for alleged abuses arising during the course of the Kenyan Emergency during the 1950s. . .
See Also – Kimathi and Others v The Foreign and Commonwealth Office QBD 2-Aug-2018
Allegations of abuse by persons for whose conduct it is alleged the Defendant is liable, arising out of the Kenyan Emergency. . .
See Also – Kimathi and Others v The Foreign and Commonwealth Office QBD 21-Nov-2018
. .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 27 August 2022; Ref: scu.620058

Regina v Knight: CACD 29 Jul 2003

The defendant had given no answers during his police interview, but instead his solicitor read out a full written statement of his case. At trial, he did not depart from the statement thus provided. He appealed after the judge allowed the jury to make adverse inferences from his silence, on the basis that it had prevented the police testing his statement on interview.
Held: The section was directed to ensuring the early disclosure of a suspect’s case, not to provide for it to be tested. An inference should not have been permitted.

Judges:

Laws, LJ, Mitting, Rivlin QC, JJ

Citations:

Times 20-Aug-2003, Gazette 02-Oct-2003, [2003] EWCA Crim 1977

Statutes:

Criminal Justice and Public Order Act 1994 34(1)(a)

Jurisdiction:

England and Wales

Citing:

Confirmed – Howell v Regina CACD 17-Jan-2003
The court set down the general approach to be taken where a suspect refused to answer questions put during his interview by the police. . .

Cited by:

Cited – Beckles, Regina v CACD 12-Nov-2004
The appellant had been convicted in 1997 of robbery and false imprisonment. His case was now refererred by the Criminal Cases Review Commission. The defendant had, on advice from his solicitor refused to answer questions at the police station. The . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence

Updated: 26 August 2022; Ref: scu.185748

RB (Linguistic Evidence SPRAKAB) Somalia: UTIAC 15 Sep 2010

1 Linguistic analysis reports from Sprakab are entitled to considerable weight. That conclusion derives from the data available to Sprakab and the process it uses. They should not be treated as infallible but evidence opposing them will need to deal with the particular factors identified in the report.
2 Recordings of all material derived from the appellant and used as material for linguistic analysis should be made available to all parties if the analysis is to be relied on in the Tribunal.
3 Sprakab linguists and analysts are not to be required to give their names (as distinct from their identifiers, experience and qualifications) unless there is a good reason particular to the individual case.

Judges:

CMG Ockleton VP, Perkins, McKee SIJJ

Citations:

[2010] UKUT 329 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

At UTIAC – Secretary of State for Home Department v MN and KY SC 6-Mar-2014
The court was asked as to the use of linguistic analysis (provided by SPRAKAB) as evidence in immigration cases so as to identify the origin of an appellant.
Held: The Practice Directions already provided guidance on the use and admission of . .
Appeal from – RB (Somalia) v Secretary of State for The Home Department CA 13-Mar-2012
The appellant claimed asylum on the basis that she was a member of the Bajuni minority clan from Koyama, an island in Somalia. If that was true, she risked persecution from the majority clan. She appealed against an adverse finding based in part on . .
Lists of cited by and citing cases may be incomplete.

Immigration, Evidence

Updated: 25 August 2022; Ref: scu.425492

Regina v Venn: CACD 1 Feb 2003

The defendant appealed convictions for sexual assault against four young girls.
Held: The admissibility of ‘similar fact’ evidence depends upon the degree of its relevance. If only suggests propensity it is inadmissible. If it goes further and can be shown to be relevant to, and probative of, a particular issue in the case, then it is admissible provided its probative value outweighs its prejudicial effect. While the ‘similar facts’ rule remains a rule of law as to admissibility rather than a matter of discretion its now more broad-ranging and contextual nature offers judges a greater degree of latitude in assessing whether a combination of features, not striking in themselves, amount to a sufficient connection for the purposes of the rule. While the question of the admissibility of ‘similar fact’ evidence in relation to various counts joined in the indictment is always an important one to be considered and will frequently govern the outcome of an application to sever, it is not necessarily decisive. Evidence of distress is still admissible in limited circumstances, if it might reasonably be linked with earlier sexual abuse. In this case the evidence should not have been admitted, but the judges summing up had minimised it to an extent which left the conviction safe.
Discussing attempts to describe the situations in which similar fact evidence may be admissible, the court held: ‘the infinite variety of factual situations which may be involved and the fact that the prosecution may legitimately seek to rely upon ‘similar facts’ in a variety of different ‘issue’ situations. The classic examples are (1) the question of identity, in which respect the Crown Court Bench Book 1 at 20.1 and 20.2 gives two specimen directions, (2) where mistake, accident or innocent association is in issue: see Archbold 2003 at 13-16 to 13-21, (3) where the defence is based on an assertion that two or more complainants are lying or mistaken; see Archbold 13-22 to 13-26(e) and direction 20.3. In all these cases, the nature of the identifiable common feature or features which may constitute a significant connection is bound to depend upon the context and on circumstances which cannot be prescribed.’

Judges:

Lord Justice Potter His Honour Judge Mellor The Honourable Mr Justice Mackay

Citations:

[2003] EWCA Crim 236

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Director of Public Prosecutions v P HL 1991
The defendant faced specimen counts of rape and incest against each of his two daughters. The trial judge refused an application for separate trials in respect of the offences alleged against each daughter. The defendant was convicted.
Held: . .
Cited – Regina v Williams (John) QBD 7-Oct-1994
A Police Constable’s fleeting view of a Defendant could be sufficient identification, subject to checks in court. However a Turnbull warning as to the need for corroboration may not always be necessary. The ‘striking similarity’ or ‘signature’ test . .
Cited – Regina v Musquera CACD 1999
The court observed that, while the decision in DPP v P had eliminated the necessity to identify a striking similarity, it was still necessary to invoke some identifiable common feature or features constituting a significant connection and going . .
Cited – Regina v Ryder CACD 16-Mar-1993
Where there is any suggestion that similar fact evidence might be affected by collusion, it may be appropriate for the judge to hold a voir dire. The rationale of similar fact evidence is that two or more people do not make up or mistakenly make . .
Cited – Regina v Keast CACD 5-Nov-1997
The defendant appealed several convictions for sexual assault against his step-daughters. He said that evidence of her demeanour had been wrongly admitted.
Held: The distress of a complainant shortly after or at the time of an allegation of . .
Cited – Regina v Redpath CCA 1962
Evidence as to the distress of a complainant may not carry probative weight if it is only part and parcel of the making of a complaint. However, it may properly be afforded weight if the complainant is unaware of being observed, and if the distress . .
Cited – Regina v Chauhan CACD 1981
Evidence of a complainant’s distress is not admissible unless the complainant is unaware of being observed, and if the distress is exhibited at the time of, or shortly after, the offence itself, or in circumstances which appear to implicate the . .

Cited by:

Cited – O’Brien v Chief Constable of the South Wales Police CA 23-Jul-2003
The claimant sought damages for malicious prosecution, and sought to adduce similar fact evidence. The defendant appealed an order admitting the evidence.
Held: Comparisons between admission of similar fact evidence in civil and criminal . .
Cited – Jones and Another, Regina v CACD 30-Sep-2019
The court considered the status of evidence given by a counsellor as to her consultations with the victim, and as to whether it counted as expert or opinion evidence.
Held: A counsellor’s evidence should in general be limited to the facts of . .
Lists of cited by and citing cases may be incomplete.

Crime, Evidence

Updated: 21 August 2022; Ref: scu.179518

Wright v Doe Dem Sandford Tatham: KBD 13 Jun 1837

The court was asked as to the understanding of th edeceased when he made his will. Letters, found in the house, were produced and the court now asked whether they could be used in evidence.
Held: such letters were not admissible unless connected in evidence witb some act done by the testator.

Citations:

[1837] EngR 853, (1837) 7 Ad and E 313, (1837) 112 ER 488

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

See Also – Wright v Doe Dem Tatham HL 22-May-1838
In an issue on the sanity of a testator, who made his will in 1825, the devisee offered in evidence the following letters of deceased persons, which were found open, and addressed to testator, with other papers bearing his indorsements, in a . .
See Also – George Wright v Sandford Tatham 7-Jun-1838
On a question of the competence of a party to make a will, letters written to that party by person since deceased, and found (many years after their date) among his papers, are not admissible in evidence without proof that he himself acted upon . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Evidence

Updated: 16 August 2022; Ref: scu.313970

Daltel Europe Ltd and others v Makki and others: CA 28 Feb 2006

The defendant had breached freezing orders and had verified statements put before the court without honestly believing them. He now challenged the subsequent contempt proceedings saying that they were criminal within section 25 of the 1988 Act and hearsay evidence should not have been allowed.
Held: The use of section 25 was confined to the Court of Appeal Criminal Division only, and did not apply. Contempt proceedings were civil in nature and subject to civil rules of evidence. That such proceedings were subject to article 8 of the Human Rights Convention did not prevent them being civil for this purpose.
Lloyd LJ said: ‘The making of a false statement on oath would be perjury, which plainly is a crime, and proceedings for which would be a prosecution, plainly criminal proceedings. When the new rules were devised, with the emphasis on verification of statements by a statement of truth, which is not made on oath, it was necessary to consider what should be the sanction for non-compliance. An offence could have been created, but it was not. Instead recourse was had to the established concept of contempt, which is not the subject of a prosecution or a trial before a jury, but rather of either proceedings within an existing action or separate proceedings before the Divisional Court brought by a Part 8 claim form.
The question being whether the applications before the judge were civil proceedings within the rather general definition in the 1995 Act, it seems to me that the judge was right to decide that they were.’

Judges:

Auld LJ, Lloyd LJ, Wilson LJ

Citations:

[2006] EWCA Civ 94, Times 08-Mar-2006, [2006] 1 WLR 2704

Links:

Bailii

Statutes:

Criminal Justice Act 1988 25, European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

See Also – Daltel Europe Ltd (In Liquidation) and Others v Hassan Ali Makki ChD 17-Jun-2004
. .
Appeal from – Daltel Europe Ltd and others v Makki and others ChD 3-May-2005
Application was made for leave to bring proceedings for contempt of court. David Richards J said that: ‘Allegations that statements of case and witness statements contain deliberately false statements are by no means uncommon and, in a fair number . .
See Also – Daltel Europe Ltd and others v Makki and others ChD 21-Oct-2005
. .

Cited by:

Cited – KJM Superbikes Ltd v Hinton CA 20-Nov-2008
The claimant had been sued for the misuse of trademarks by selling motorcycles imported via a parallel market. It claimed that the defendant had filed false evidence in that action, and now appealed a refusal by the judge to bring contempt . .
Cited – Barnes (T/A Pool Motors) v Seabrook and Others Admn 23-Jul-2010
In each of three cases, the former defendants sought leave to bring claims for contempt of court in respect of what it said were fraudulent claims by the respondents. The defendants argued that a party had first to go to the Attorney General.
Lists of cited by and citing cases may be incomplete.

Contempt of Court, Human Rights, Evidence

Updated: 16 August 2022; Ref: scu.238757

Regina v Mauricia: CACD 25 Feb 2002

The defendant sought to assert that he was of previous good character. The prosecution knew of convictions abroad, and sought to admit them in rebuttal. The 1984 Act did not deal with foreign convictions.
Held: The 1851 Act still applied, and appropriately certified evidence of foreign convictions could be admitted. Police fingerprint evidence was also admitted to establish the identity of the person convicted abroad.

Judges:

Lord Justice Longmore, Mr Justice Johnson and Judge Rhys Davies, QC

Citations:

Times 11-Mar-2002, Gazette 28-Mar-2002

Statutes:

Police and Criminal Evidence Act 1984 73, Evidence Act 1851 7

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Derwentside Justices, Ex parte Heaviside 1996
Establishing whether previous convictions listed were those of the defendant. . .
Lists of cited by and citing cases may be incomplete.

Evidence, Criminal Practice

Updated: 16 August 2022; Ref: scu.167743

Regina v Wahab: CACD 26 Jun 2002

The defendant’s solicitor had advised him whilst at the police station to make a confession. He appealed saying that he should not have been given that advice, and that the evidence should be excluded.
Held: A solicitor’s role in the police station was not simply to make life difficult for the prosecution, nor to get the client off. Advice given in these circumstances would not normally form a basis for excluding a confession.

Judges:

Lord Justice Judge, Mr Justice Astill and Judge Colston, QC

Citations:

Times 22-Jul-2002, Gazette 01-Aug-2002

Statutes:

Police and Criminal Evidence Act 1984 76(2)

Jurisdiction:

England and Wales

Evidence, Criminal Practice

Updated: 15 August 2022; Ref: scu.174438

Fuller v Strum: ChD 20 Dec 2000

Mr Strum had come to England as a refugee from Nazi Germany. He had then left to live in Israel, but retained his property in London. A will was challenged on the basis that the signature had been forged. The two attesting witnesses asserted that the will had been properly executed, but the claimant brought an expert handwriting witness to say that the signature was a forgery.
Held: The court was entitled to give precedence to the lay witnesses. A handwriting expert had a different status to a medical or other witness.

Judges:

Mr Jules Sher QC

Citations:

Gazette 08-Feb-2001, Times 14-Feb-2001, [2001] WTLR 677

Jurisdiction:

England and Wales

Citing:

Cited – Barry v Butlin PC 8-Dec-1838
The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .

Cited by:

Appeal from – Fuller v Strum CA 7-Dec-2001
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . .
Cited – Carapeto v William Marsh Good and others CA 20-Jun-2002
Reltives of the deceased had challenged the will, alleging undue influence and lack of capacity. They sought leave to appeal the grant of probate of the will.
Held: The appeal had no realistic prospect of success. . .
At First Instance – Fuller v Strum CA 16-Feb-2001
The family sought to challenge admission to probate of the will saying that the signature on the will had been forged. They now sought permission to appeal.
Held: Leave was granted. The circumstances were extraordinary. The decision was . .
At first instance – Fuller v Strum CA 11-Oct-2001
The appellant was to challenge admission to probate of the will. He now sought fuller disclosure of the assets in the estate and their values for the purposes of the appeal.
Held: Application refused. The issue at the appeal would be not the . .
Cited – Ali Haider v Syed ChD 19-Dec-2013
It was alleged that the signature on the deceased’s will was a forgery.
Held: Given the serious nature of the allegation of forgery the legal burden of proving that the signature on the Will was forged rested on the Defendant, and cogent proof . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Evidence

Updated: 14 August 2022; Ref: scu.80708

McGartland and Another v The Attorney General: QBD 8 Jul 2014

The AG applied for permission under the 2013 Act to have closed material placed before the court in answer to the claimant’s allegations that as an agent of the Royal Ulster Constabulary, he had suffered after not receiving the protection promised.

Judges:

Mitting J

Citations:

[2014] EWHC 2248 (QB)

Links:

Bailii

Statutes:

Justice and Security Act 2013 6(1)

Jurisdiction:

England and Wales

Evidence, Police

Updated: 07 August 2022; Ref: scu.533869

Regina v Lyons, Parnes, Ronson, Saunders: HL 15 Nov 2002

The defendants had been convicted on evidence obtained from them by inspectors with statutory powers to require answers on pain of conviction. Subsequently the law changed to find such activity an infringement of a defendant’s human rights.
Held: There was no requirement for a court to implement a Human Rights Court decision retrospectively to require that a court should have overridden an express statutory requirement. The relationship between obligations accepted under international convention and national law can be difficult to manage, but they are to be seen as complementary: ‘rules of international law not incorporated into national law confer no rights on individuals directly enforceable in national courts. But although international and national law differ in their content and their fields of application they should be seen as complementary and not as alien or antagonistic systems.’ The ability of a court to revisit a conviction is entirely statutory. A court must apply current standards of fairness but against the background of the law which applied at the time. In the absence of the statute, current standards of fairness would have required the decisions to be set aside. Lord Hoffmann ‘The metaphor of incorporation may be misleading. It is not the treaty but the statute which forms part of English law.’

Judges:

Bingham, Hoffmann, Hutton, Hobhouse, Mittell LL

Citations:

[2002] UKHL 44, [2003] 1 AC 976, [2002] 3 WLR 1562, [2002] BCC 968, [2003] 1 Cr App Rep 24, [2002] 4 All ER 1028, [2003] 1 Cr App R 24, [2003] HRLR 6

Links:

House of Lords, Bailii

Statutes:

Criminal Appeals Act 1968 2(1), Companies Act 1985 434(5)

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
Cited – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Appeal from – Regina v Lyons, Parnes, Ronson, Saunders CACD 21-Dec-2001
The appeals concerned convictions from 1990 which had been challenged before, and following decisions in the European Court of Human Rights. It was alleged that certain information had been known to the prosecution, but not disclosed to them. The . .
Affirmed – Maclaine Watson and Co Ltd v International Tin Council HL 2-Jan-1989
The International Tin Council was a body constituted by an international treaty not incorporated into law in the United Kingdom. The ITC was also created a legal person in the United Kingdom by article 5 1972 Order.
Held: As a legal person in . .

Cited by:

Cited – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Cited – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Cited – A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
Cited – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence Admn 12-Aug-2005
The claimant was born an Iraqi, but had been granted British Nationality. He was later detained in Iraq suspected of membership of a terrorist group. No charges were brought, and he complained that his article 5 rights were infringed. The defendant . .
Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
Cited – Commissioner of Police for the Metropolis v Hurst CA 21-Jul-2005
The Commissioner appealed an order requiring the North London Coroner to re-open an inquest into a death of Mr Hurst. Following the adjournment a neighbour had been convicted of the murder. The commissioner argued that since the death had occurred . .
Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Cited – Secretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
Cited – Gentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
Cited – Corner House Research and Campaign Against Arms Trade, Regina (on the Application of) v Director of the Serious Fraud Office and Another Admn 10-Apr-2008
The defendant had had responsibility to investigate and if necessary prosecute a company suspected of serious offences of bribery and corruption in the conduct of contract negotiations. The investigation had been stopped, alledgedly at the . .
Cited – Hurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
Cited – Hounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .
Cited – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
Cited – Elgizouli v Secretary of State for The Home Department SC 25-Mar-2020
Defendants were to face trial in the US, accused of monstrous crimes. The appellant challenged the release of information to the USA by the respondent to support such prosecutions when the death penalty was a possible outcome of a conviction: ‘The . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Evidence

Updated: 07 August 2022; Ref: scu.178147

Dunlop Slazenger International Ltd v Joe Bloggs Sports Ltd: CA 11 Jun 2003

Waller LJ said: ‘To answer the question whether waiver of parts of a privileged communication waives the complete information, it is that dictum of Mustill J., as he then was, which applies. A party is not entitled to cherry pick and a party to whom privileged information is provided is entitled to have the full content of what is being supplied in order to see that cherry picking is not taking place. If this material . . had been evidence given at a trial, there really would no answer to the point that the full information should be provided in order to make certain that cherry picking is not taking place.’

Judges:

Waller LJ, Thorpe LJ

Citations:

[2003] EWCA Civ 901

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corporation (No 2) 11-Dec-1978
The court considered disclosure of a legally privileged note of an interview: ‘I believe that the principle underlying the rule of practice exemplified by Burnell v British Transport Commission is that, where a party is deploying in court material . .

Cited by:

Cited – Brennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
No Waiver for disclosure of Advice
EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Evidence

Updated: 06 August 2022; Ref: scu.184603

Armory v Delamirie: KBD 1722

A jeweller to whom a chimney sweep had taken a jewel he had found, took the jewel out of the socket and refused to return it. The chimney sweep sued him in trover. On the measure of damages, the court ruled ‘unless the defendant did produce the jewel, and shew it not to be of the finest water, they [the jury] should presume the strongest against him, and make the value of the best jewels the measure of their damages:’ and ‘That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover?’ The court applied the maxim ‘maxim omnia praesumuntur contra spoliatorem’ All things are assumed against the interests of a spoliator.
If the negligence of the defendant has led to evidence being unavailable which might otherwise have assisted the victim of that negligence, he should not have the benefit of any consequent doubt.

Judges:

Pratt CJ

Citations:

(1722) 1 Stra 505, [1722] EWHC KB J94, [1722] 93 ER 664

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Allen v Sir Alfred McAlpine and Sons Ltd CA 1968
The court described the peculiarly difficult position of a solicitor sued for the negligence of losing litigation for his client by reason of having his client’s claim struck out: ‘It is true that if the action for professional negligence were . .
Cited – Malhotra v Dhawan CA 26-Feb-1997
There had been litigation as to the payment due on fees earned during the partnership. One party had destroyed the evidence which would have settled many issues. The court discussed the principle that it should presume all against a destroyer of . .
Cited – Gray v Haig and Son 1855
Gray was the agent for Haig and Son, selling whisky on commission. On the termination of the agency a dispute arose as to the amount of the commission due and an account was ordered. Gray had destroyed his books, which were essential to the taking . .
Cited – Parker v BA Board 1982
The rights and obligations of a finder were considered. The court explained the balancing exercise required of the law when deciding to whom property should be returned and how the balance should be struck: ‘The rule as stated by Pratt CJ must be . .
Cited – Dixon v Clement Jones Solicitors (A Firm) CA 8-Jul-2004
The defendant firm had negligently allowed a claim for damages against a firm of accountants to become statute barred. The defendants said the claim was of no or little value, since the claimant would have proceeded anyway.
Held: The court had . .
Cited – Dobson and Dobson v North Tyneside Health Authority and Newcastle Health Authority CA 26-Jun-1996
A post mortem had been carried out by the defendants. The claimants, her grandmother and child sought damages after it was discovered that not all body parts had been returned for burial, some being retained instead for medical research. They now . .
Cited – Pritchard Joyce and Hinds v Batcup and Another QBD 17-Jan-2008
The claimant solicitors sought contributions from counsel to the damages they had been obliged to pay to their client in negligence.
Held: Underhill J said: ‘My task is not to seek to decide definitively whether LL were liable in negligence to . .
Cited – Mount v Baker Austin CA 18-Feb-1998
The Defendant solicitors had allowed the Plaintiff’s claim to be struck out for want of prosecution. The court considered how to calculate the value of the loss of the chance of pursuing the claim: ‘1. The legal burden lies on the plaintiff to prove . .
Cited – Zabihi v Janzemini and Others CA 30-Jul-2009
The claimant said that he had left valuable jewelry with the defendant for sale. The defendant said at first they had been stolen, but then returned jewelry which the claimant denied was what had been left. The defendant appealed a finding that he . .
Cited – Channon (T/A Channon and Co) v Ward QBD 12-May-2015
The claimant had lost significant sums through his accountancy practice, but now claimed that his insurance broker, the defendant had negligently failed to renew his professional indemnity policies, even though he had supplied policy numbers to the . .
Cited – Wright v McCormack QBD 1-Aug-2022
Claimants falsehood reduced award to nominal only.
The parties disputed the original authorship of bitcoin, the claimant saying he was ‘Satoshi’ that originator. The defendant published a series of tweets denying that connection.
Held: One particular publication was to be read as part of the . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Evidence

Updated: 05 August 2022; Ref: scu.190236

Griffiths v TUI (UK) Ltd: CA 7 Oct 2021

Whether and if so, in what circumstances, the court can evaluate and reject what is described as an ‘uncontroverted’ expert’s report. The question arises in the context of a claim in respect of gastric illness allegedly suffered as a result of consuming contaminated food or drink whilst staying at a hotel in Turkey on an all-inclusive package holiday provided by the Appellants,

Judges:

Bean, Asplin, Nugee LJ j

Citations:

[2021] EWCA Civ 1442, [2021] WLR(D) 518

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Cited – MBR Acres Ltd and Others v McGivern QBD 2-Aug-2022
Contempt Procedures Not to be abused
Reasons for dismissal of contempt application.
Held: The contempt application against Ms McGivern was dismissed and certified as being totally without merit.
The court does not grant injunctions to parties to litigation to be used as a . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence

Updated: 04 August 2022; Ref: scu.668373

B v Responsible Medical Officer, Broadmoor Hospital, Dr SS and others: Admn 8 Sep 2005

Compulsory administration of treatment to detained mental patient. The court considered, but left open, the relationship between the ‘convincingly shown’ standard of proof, and the decision of the House of Lords in In re H as to the civil standard of proof in English law. He proceeded on the basis of the ‘convincingly shown’ standard, treating it as the parties had agreed, as lying between the English civil standard and criminal standard.

Judges:

Charles J

Citations:

[2005] EWHC 1936 (Admin)

Links:

Bailii

Statutes:

Mental Health Act 1983

Jurisdiction:

England and Wales

Citing:

See Also – B, Regina (on the Application of) v Dr SS and others Admn 31-Jan-2005
The claimant was a mental patient detained for a bipolar dis-order after convictions for rape. . .

Cited by:

Cited – AN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
Appeal from – B, Regina (on the Application Of) v SS (Responsible Medical Officer) and others CA 26-Jan-2006
The applicant had been detained after a diagnosis of Bipolar Affective Disorder and convictions for rape. He had applied for discharge, but before the hearing the doctor had said he no longer opposed his release. After the hearing but before being . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights, Evidence

Updated: 03 August 2022; Ref: scu.231224

Jarman v Lambert and Cooke Contractors Ltd: CA 1951

The words ‘pending’ or ‘anticipated’ in the subsection were the words habitually used in connection with legal professional privilege, and ‘The privilege only obtains if litigation is ‘pending or anticipated’, and in that connection it is well settled that a mere vague apprehension of litigation generally is not sufficient . . .’

Judges:

Denning LJ

Citations:

[1951] 2 KB 937

Statutes:

Evidence Act 1938 1(3)

Jurisdiction:

England and Wales

Cited by:

Cited – United States of America v Philip Morris Inc and Others and British American Tobacco (Investments) Ltd CA 23-Mar-2004
The defendants appealed orders requiring them to produce evidence for use in the courts in the US.
Held: It was the pleasure and duty of British courts to respond positively to a letter of request. Public interest required that a court should . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Evidence

Updated: 31 July 2022; Ref: scu.195748

Attorney-General’s Reference (No 1 of 1991): CACD 16 Jun 1992

cw Crime – Computer misuse – Unauthorised access – Person using one computer to obtain from it unauthorised benefit – Whether unauthorised use of single computer within statute – ‘Access to any program or data held in any computer.
The defendant was accused of misusing computer access to put himself in a position to carry out a fraud. The judge held that the section required more than one computer to have been involved. The court was asked to answer whether this was the case.
Held: The charge under section 1(1)(a) of using ‘a computer to perform any function with intent to secure access to any program or data held in any computer,’ did not require the misuse of one computer to access another. Section 1(1) could be satisfied by causing a computer to perform a function with intent to secure unauthorised access to any program or data held in the same computer.

Judges:

Lord Taylor of Gosforth CJ, Macpherson of Cluny and Turner JJ

Citations:

[1993] QB 94

Links:

lip

Statutes:

Computer Misuse Act 1990 1(1)(a) 2(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Holmes v Governor of Brixton Prison and Another Admn 20-Aug-2004
The applicant sought his release from imprisonment where he awaited extradition to Germany. He was suspected of an offence of deception. He said there was insufficient evidence that the offence alleged would be an offence here. The alleged offence . .
Lists of cited by and citing cases may be incomplete.

Crime, Evidence

Updated: 28 July 2022; Ref: scu.177325

Wilson and Another v Her Majesty’s Advocate (Scottish Criminal Cases Review Commission Referral): HCJ 18 Jun 2009

Lord Wheatley set out the test for admission of skilled evidence: ‘[The subject-matter under discussion must be necessary for the proper resolution of the dispute, and be such that a judge or jury without instruction or advice in the particular area of knowledge or experience would be unable to reach a sound conclusion without the help of a witness who had such specialised knowledge or experience.’

Judges:

Lord Wheatley, Lady Paton, Lord Reed

Citations:

[2009] ScotHC HCJAC – 58, 2009 JC 336, 2009 GWD 24-385, 2009 SCL 1047, 2009 SCCR 666

Links:

Bailii

Jurisdiction:

Scotland

Crime, Evidence

Updated: 28 July 2022; Ref: scu.347128

Stewart v Glaze: QBD 7 Apr 2009

Coulson J considered the place of expert evidence in cases involving road traffic accidents, saying: ‘it is the primary factual evidence which is of the greatest importance in a case of this kind. The expert evidence comprises a useful way in which that factual evidence, and the inferences to be drawn from it, can be tested. It is, however, very important to ensure that the expert evidence is not elevated into a fixed framework or formula, against which the defendant’s actions are then to be rigidly judged with a mathematical precision.’

Judges:

Coulson J

Citations:

[2009] EWHC 704 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Ahanonu v South East London and Kent Bus Company Ltd CA 8-Oct-2007
Laws LJ said: ‘There is sometimes a danger in cases of negligence that the court may evaluate the standard of care owed by the defendant by reference to fine considerations elicited in the leisure of the court room, perhaps with the liberal use of . .

Cited by:

Cited – Sinclair v Joyner QBD 23-Jun-2015
The claimant cyclist sought damages from the defendant motorist after a collision in which she was severely injured. They approached each other on a narrow lane. The claimant said that the defendant did not pull over as much as she should, and the . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Evidence, Litigation Practice

Updated: 24 July 2022; Ref: scu.341880

Regina v Director of Public Prosecutions ex parte Kebilene etc: Admn 30 Mar 1999

The applicants sought, by means of the Human Rights Act to challenge the way in which the decision had been made that they should be prosecuted under the 1989 Act, arguing that section 6(2) was inconsistent with the new Act.
Held: The Act contravened the Convention insofar as it made evidential presumptions which were incompatible with the presumption of innocence. An English court is able to apply the Convention anticipating the coming into force of the Act in the UK.
Lord Bingham CJ stated: ‘Statements by ministers concerning the future conduct of themselves and their officials can found no legitimate expectation concerning the future decisions of the Director since he, like the law officers, acts wholly independently of the executive when making decisions on the conduct of criminal proceedings. It is his public duty and responsibility to exercise his own independent judgement. He cannot be bound by any statement made on behalf of the executive, and no reasonable person alert to his constitutional role could expect him to be so bound.’
It was appropriate for the Court to review the soundness of the legal advice on which the DPP acted. The Lord Chief Justice explained: ‘Where the grant of leave to move for judicial review would delay or obstruct the conduct of criminal proceedings which ought, in the public interest, to be resolved with all appropriate expedition, the court will always scrutinise the application with the greatest care, both to satisfy itself that there are sound reasons for making the application and to satisfy itself that there are no discretionary grounds (such as delay or the availability of alternative remedies or vexatious conduct by the applicant) which should lead it to refuse leave. The court will be very slow to intervene where the applicant’s complaint is one that can be met by appropriate orders or directions in the criminal proceedings. If, however, strongly arguable grounds for making application are shown, as the single judge rightly held were shown here, and if there are no discretionary grounds for refusing relief, leave to move may properly be granted; and if on full argument grounds for granting relief are established and no discretionary grounds shown for refusing it, such relief may properly be granted even though the consequence is a delay in the resolution of criminal proceedings. Such was, no doubt, the consequence of quashing the applicant’s committal in Reg. v. Bedwellty Justices, Ex parte Williams [1997] A.C. 225. In the present case I see no discretionary reasons for refusing relief if the applicants establish a ground for granting it’

Judges:

Lord Bingham of Cornhill LCJ, Laws LJ, Sullivan J

Citations:

Times 31-Mar-1999, [1999] EWHC Admin 277, [1999] 3 WLR 175

Links:

Bailii

Statutes:

Prevention of Terrorism (Temporary Provisions) Act 1989 6(2), European Convention on Human Rights, Human Rights Act 1998

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State For The Home Department, Ex Parte Launder HL 13-Mar-1997
The question arose as to whether or not the decision of the Secretary of State to extradite the applicant to Hong Kong would have amounted to a breach of the European Convention on Human Rights. Although the Convention was not at that time in force . .

Cited by:

Appeal from – Regina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
Cited – Regina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
Lists of cited by and citing cases may be incomplete.

Evidence, Human Rights, Constitutional

Updated: 24 July 2022; Ref: scu.139542

Secretary of State for Business Enterprise and Regulatory Reform v Aaron and others: CA 16 Oct 2008

In asking a court to order the disqualification of a company director, the Secretary of State may call in evidence findings of the Financial Services Authority as to misconduct, but no those of the Financial Services Ombudsman. The rule in Hollington applied to such proceedings. Hearsay evidence would have been admissible before the Ombudsman.

Judges:

Buxton LJ, Keene LJ, Thomas LJ

Citations:

[2008] EWCA Civ 1146, Times 10-Nov-2008, [2009] Lloyd’s Rep FC 1, [2009] 1 BCLC 55, [2009] Bus LR 809, [2009] BCC 375, [2009] CP Rep 10

Links:

Bailii

Statutes:

Company Directors Disqualification Act 1986 7

Jurisdiction:

England and Wales

Citing:

Cited – Hollington v F Hewthorne and Co Limited CA 1943
The defendant had been involved in a road accident in which the plaintiff’s son had died, and had been convicted of careless driving. The plaintiff as the personal representative of his son sued for damages for negligence, seeking to rely on the . .
Lists of cited by and citing cases may be incomplete.

Company, Evidence

Updated: 19 July 2022; Ref: scu.276944

AA (Language Diagnosis: Use of Interpreters) Somalia: IAT 25 Mar 2008

IAT It is no part of an interpreter’s function to report on the language or dialect used. The expertise needed to identify a language or dialect is not typically the expertise of an interpreter. In any event, an interpreter should not be in the position of giving, or being asked to give, evidence on a contested issue.

Judges:

C M G Ockelton, DP, White IJ

Citations:

[2008] UKAIT 00029

Links:

Bailii

Immigration, Evidence

Updated: 14 July 2022; Ref: scu.266668

Field and Another v Leeds City Council: CA 8 Dec 1999

The parties were involved in a dispute as to repairs on a tenanted property. The court had ordered an independent surveyor’s report. The claimant objected to the use by the defendant of an employee for this purpose, and was involved in their claims investigation department.
Held: The judge’s decision to exclude the evidence at an interim hearing when the impartiality had not been demonstrated. However, the court could not properly have rejected evidence from such a party without seeing a report prepared by him. He would otherwise have been qualified to report. The fact that a proposed epert witness was an employee of a party need not always debar him from acting. He needed to demonstrate that he was properly qualified, and that he understood that he first duty was to the court and not to his employer or the party calling him.
Waller LJ said: ‘The question whether someone should be able to give expert evidence should depend on whether, (i) it can be demonstrated whether that person has relevant expertise in an area in issue in the case; and (ii) that it can be demonstrated that he or she is aware of their primary duty to the court if they give expert evidence. ‘

Judges:

Lord Woolf MR, Waller LJ, May LJ

Citations:

Times 18-Jan-2000, Gazette 03-Feb-2000, (2000) 17 EG 165, [1999] EWCA Civ 3013, [1999] CPLR 833

Links:

Bailii

Statutes:

Environmental Protection Act 1990 82

Jurisdiction:

England and Wales

Cited by:

Cited – Toth v Jarman CA 19-Jul-2006
The claimant appealed dismissal of his claim for damages for nervous shock, associated with the alleged negligence of the defendant doctor in treating his son. It was said that the medical expert had not disclosed a conflict of interest.
Held: . .
Cited – Armchair Passenger Transport Ltd v Helical Bar Plc and Another QBD 28-Feb-2003
Objection was made to the use of an expert witness who had formerly been a senior employee of the defendant.
Held: The court set out criteria for testing the independence of a proposed expert witness: ‘i) It is always desirable that an expert . .
Cited – Kennedy v Cordia (Services) Llp SC 10-Feb-2016
The appellant care worker fell in snow when visiting the respondent’s client at home. At issue was the admission and status of expert or skilled evidence.
Held: Mrs Kennedy’s appeal succeeded. ‘There are in our view four considerations which . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Housing, Evidence

Updated: 11 July 2022; Ref: scu.258646

Taylor-Sabori v The United Kingdom: ECHR 22 Oct 2002

The applicant had been convicted of serious criminal offences. There were admitted into evidence intercepts of messages to his pager. He complained that this infringed his right to respect for his private correspondence.
Held: The pager messages were correspondence. The UK legislation covering interception of correspondence did not apply to such materials, and accordingly any interception was not under a regime which was ‘in accordance with law’ as required, and infringed his rights.

Judges:

J-P Cost, Bratza, Loucaides, Birsan, Jungwiert, Butkevych, Thomassen

Citations:

Times 31-Oct-2002, 47114/99, [2002] ECHR 686

Links:

Worldlii

Statutes:

European Convention on Human Rights Art 8

Jurisdiction:

Human Rights

Cited by:

Cited – Wood v United Kingdom ECHR 16-Nov-2004
Police officers had placed suspects in a cell together and covertly recorded their conversation in order to obtain evidence against them. The events took place in 1999.
Held: The recording was outside any legal system of control and interefred . .
Cited – Amwell View School v Dogherty EAT 15-Sep-2006
amwell_dogherty
The claimant had secretly recorded the disciplinary hearings and also the deliberations of the disciplinary panel after their retirement. The tribunal had at a case management hearing admitted the recordings as evidence, and the defendant appealed, . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Evidence, Criminal Practice

Updated: 11 July 2022; Ref: scu.177817

General Accident Fire and Life Assurance Corpn v Robertson: HL 1909

The appellant agreed to pay andpound;1,000 to the executors of the owner of a diary if he was fatally injured in a railway accident within twelve months of his name being registered at its head office. The respondent’s husband filled up and forwarded an application for registration which the appellant acknowledged. The appellant did not keep a register, but it arranged and filed the applications for registration in alphabetical order. The issue arose whether the respondent’s application was registered (interpreted as meaning arranged alphabetically with other applications and filed) within the year.
Held: The fact that the date of registration rested peculiarly and solely within the knowledge of the appellant was vital. This was plainly relevant to the issue on whom the parties to the contract must have intended to impose the burden of proving compliance or non-compliance with the twelve month time limit. In the case of a transaction of this kind’ the onus of satisfying the court as to when registration was effected (and accordingly that it was effected more than twelve months prior to the accident) rested on the appellant. In a word, upon a fair reading of the contract construed in the light of the circumstances that the appellant assumed responsibility for effecting registration and would alone know when it took place, the persuasive burden of proof that registration was effected more than twelve months before the accident rested on the appellant and the appellant had failed to discharge that burden.

Judges:

Shaw L

Citations:

[1909] AC 404

Jurisdiction:

England and Wales

Cited by:

Cited – Christopher Evans v SMG Television Limited etc ChD 26-Jun-2003
The claimant had a series of agreements with the respondents. He had worked as radio presenter, having sold the radio station to the respondents. He was later dismissed and now sought damages for wrongful dismissal and breach of a partnership . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 10 July 2022; Ref: scu.183822

Regina v Birchall: CACD 20 Jan 1998

The judge had failed in his direction to remind the jury that they had to find a case to answer before drawing any adverse inference from the defendant’s silence at trial
Held: The court must be careful not to omit any elements of the standard directions to the jury on the drawing of inferences from a defendant’s silence in order to avoid any risk of injustice.
As to the model directions, Lord Bingham CJ said: ‘The Court was reluctant to countenance the view that direction of a jury called for the mouthing of a number of mandatory formulae, and departure by the trial judge from a prescribed form of words would by no means always justify the upsetting of a jury’s verdict. However, standard directions were devised to serve the ends of justice and the Court must be astute to ensure that these ends were not jeopardised by failure to give directions where they were called for. The drawing of inferences from silence was a particularly sensitive area . .’

Judges:

Lord Bingham CJ

Citations:

Times 10-Feb-1998, [1998] EWCA Crim 177, [1999] Crim LR 311

Statutes:

Criminal Justice and Public Order Act 1994 35

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Doldur CACD 7-Dec-1999
A jury cannot convict solely on the basis of an inference, drawn under section 34, from the combination of an accused’s failure to give at interview, an explanation relied upon later at court. Additional evidence could be found not only from the . .
Cited – Petkar and Farquar, Regina v CACD 16-Oct-2003
The defendants appealed their convictions and sentence for theft. Whilst employed by a bank thay had arranged for transfers to their own account. Each blamed the other. They appealed on the basis that the direction on their silence at interview was . .
Lists of cited by and citing cases may be incomplete.

Evidence, Criminal Practice

Updated: 10 July 2022; Ref: scu.153051

Toth v Jarman: CA 19 Jul 2006

The claimant appealed dismissal of his claim for damages for nervous shock, associated with the alleged negligence of the defendant doctor in treating his son. It was said that the medical expert had not disclosed a conflict of interest.
Held: The presence of a conflict of interest in an expert need not necessarily disqualify an expert, though ‘where an expert has a material or significant conflict of interest, the court is likely to decline to act on his evidence or indeed to give permission for his evidence to be adduced.’ The test was as to the independence of his opinion. The court made suggestions for the Rules committee as to possible amendments to the expert’s standard declaration.

Judges:

Sir Mark Potter President, Arden LJ, Wall LJ

Citations:

[2006] EWCA Civ 1028, Times 17-Aug-2006, [2006] 4 All ER 1276

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Whitehouse v Jordan HL 17-Dec-1980
The plaintiff sued for brain damage suffered at birth by use of forceps at the alleged professional negligence of his doctor. The Court of Appeal had reversed the judge’s finding in his favour.
Held: In this case most of the evidence at issue . .
Cited – North Glamorgan NHS Trust v Walters CA 6-Dec-2002
A new mother woke in hospital to see her baby (E) fitting. E suffered a major epileptic seizure leading to coma and irreparable brain damage. E was transferred to a London hospital and the following day the claimant was told by a consultant that E’s . .
Cited – Liverpool Roman Catholic Archdeacon Trustees Inc v Goldberg (No 2) 2001
The claimant brought proceedings for professional negligence against a barrister specialising in tax. The Defendant wished to rely upon the expert evidence of another tax barrister in the same set of chambers as him, who was a friend of many years’ . .
Cited – Pollivitte Ltd v Commercial Union Assurance Company Plc 1987
An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. . .
Cited – Field and Another v Leeds City Council CA 8-Dec-1999
The parties were involved in a dispute as to repairs on a tenanted property. The court had ordered an independent surveyor’s report. The claimant objected to the use by the defendant of an employee for this purpose, and was involved in their claims . .
Cited – National Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) 1993
Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .

Cited by:

See Also – Toth v Jarman CA 21-Nov-2006
. .
Cited – Chester City Council and Another v Arriva Plc and others ChD 15-Jun-2007
The claimant council alleged that the defendant had acted to abuse its dominant market position in the provision of bus services in the city.
Held: It was for the claimant to show that the defendant had a dominant position. It had not done so, . .
Cited – Kennedy v Cordia (Services) Llp SC 10-Feb-2016
The appellant care worker fell in snow when visiting the respondent’s client at home. At issue was the admission and status of expert or skilled evidence.
Held: Mrs Kennedy’s appeal succeeded. ‘There are in our view four considerations which . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Personal Injury, Litigation Practice, Evidence

Updated: 07 July 2022; Ref: scu.243326

H, Regina (on the Application of) v Commissioners of Inland Revenue: Admn 23 Oct 2002

The appellant sought judicial review of the seizure by the respondents of computers found on its premises in the course of executing warrants under the Act, even though the computers might contain other matters not relevant to any investigation.
Held: It had been impossible to make arrangements at the appellant’s home to copy the hard disks. The computers’ hard discs were documents within the provisions, but the 1970 Act provided for seizure of ‘any things whatsoever’. The computer was to be seen itself as a ‘thing’ rather than as a holder of files.
Stanley Burnton J considered that a computer could be a ‘document’ for the purposes of the Taxes Management Act 1970 in which ‘document’ is defined in the same terms as section 114(2) FA 2008: ‘For these reasons, even if I were free to do so, I would not differ from the conclusion reached by the Divisional Court in Da Costa. In any event, I do not think that Da Costa is distinguishable. While it is true that for the purposes of VATA a hard disk is a ‘document’, it is equally a ‘thing’, and in my judgment would be subject to a power of seizure in paragraph 10(3) of Schedule 11 to that Act even without the extended definition of ‘document’.’

Judges:

Stanley Burton J

Citations:

Times 08-Nov-2002, Gazette 28-Nov-2002, [2002] EWHC 2164 (Admin), [2002] Po LR 350, 75 TC 377, [2002] BTC 459, [2002] STI 1395, [2002] STC 1354

Links:

Bailii

Statutes:

Taxes Management Act 1970 20C

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Chesterfield Justices and Others, Ex Parte Bramley QBD 10-Nov-1999
When police officers executed a search warrant, it was not proper to remove articles at large, in order later to sift through them, and then to return material not covered by the warrant. There is no absolute prohibition against removing articles . .
Cited – Da Costa and Co (a Firm) and Collins v Thames Magistrates Court and H M Commissioners of Customs and Excise QBD 25-Jan-2002
The claimant sought to challenge search warrants issued by the respondents. The warrants were criticised as being too widely drawn, and in breach of the 1984 Act. Criticism was also made of the implementation of the searches, in the use of excess . .

Cited by:

Approved – Faisaltex Ltd and others, Regina (on the Application of) v Crown Court Sitting at Preston and others etc Admn 21-Nov-2008
Nine claimants sought leave to bring judicial review of the issue of search warrants against solicitors’ and business and other premises, complaining of the seizure of excluded material and of special procedure material. There were suspicions of the . .
Cited – Glenn and Co (Essex) Ltd), Regina (on The Application of) v HM Revenue and Customs Admn 18-Jun-2010
The company objected to the search of its offices and removal by the defendant of its computers, the officers having entered without any warrant purporting to use powers under the 1989 Act.
Held: The request for judicial review failed. The . .
Lists of cited by and citing cases may be incomplete.

Taxes Management, Evidence

Updated: 06 July 2022; Ref: scu.178015

Regina v Xhabri: CACD 7 Dec 2005

The complainant alleged that the defendant had forced her into prostitution under duress. Hearsay evidence had been admitted from members of the complainant’s family as to what she had told them. They were not available to give evidence at the trial.
Held: The defendant had no objected to evidence from the complainant as to the same matters. The admission of evidence from a witness who was unavailable to give evidence and be cross examined was not a breach of the defendant’s right to a fair trial.

Judges:

Mrs Justice Rafferty, Lord Phillips Lord Chief Justice of England and Wales Mr Justice Mackay

Citations:

Times 10-Jan-2006, [2005] EWCA Crim 3135

Links:

Bailii

Statutes:

Criminal Justice Act 2003 8118, European Convention on Human Rights 6

Jurisdiction:

England and Wales

Evidence, Human Rights

Updated: 04 July 2022; Ref: scu.235951

Wilkinson v West Coast Capital and others: ChD 22 Jul 2005

A claim was to be made about actions of unfair prejudice by the directors against the minor shareholder. The court considered a preliminary issue as to the admissibility of evidence, including without prejudice correspondence.
Held: The applicant sought to dissect the negotiations to identify what was admissible. That was not acceptable as regards without prejudice correspondence: ‘part of the purpose is to enable parties to conduct themselves freely in negotiations, it is important that things going beyond technical admissions should be caught by the bars imposed by the without prejudice principles. In my view, that will extend to who it was who broke off negotiations and who decided not to go through with an apparently agreed deal (albeit subject to contract). That seems to me to be all part of the freedom of negotiation under the umbrella. ‘

Judges:

Mann J

Citations:

[2005] EWHC 1606 (Ch)

Links:

Bailii

Statutes:

Companies Act 1985 459

Jurisdiction:

England and Wales

Citing:

Cited – Vernon v Bosley (1) QBD 1993
The court discussed the extent to which a judge had control over the admission of otherwise admissible evidence: ‘A point comes at which literal admissibility has to yield to the constraints of proportionality . . such proportionality may in any one . .
Cited – Vernon v Bosley (1) CA 8-Apr-1994
Though the judge had a right to exclude admissible evidence, it remained a balancing exercise which came down to being a matter of his discretion. Evidence might not be admitted which would involve ‘inconvenience, expense, delay or oppression’. The . .
Cited – Re Unisoft Group Limited (No 3) ChD 1994
When considering applications to strike out parts of pleadings in a s459 application, the courts had to recognise the need to be careful not to allow the parties to trawl through irrelevant grievances. B The statutory definition of ‘shadow director’ . .
Cited – Prudential Assurance Co Ltd v Prudential Insurance Co of America ChD 20-Dec-2002
The parties had undertaken negotiations on a ‘without prejudice’ basis. One now sought freedom to rely upon the other’s statements.
Held: There was a need to balance the right to freedom of expression, against the need to protect the rights of . .
Cited – Unilever plc v Procter and Gamble Company CA 4-Nov-1999
The defendant’s negotiators had asserted in an expressly ‘without prejudice’ meeting, that the plaintiff was infringing its patent and they threatened to bring an action for infringement. The plaintiff sought to bring a threat action under section . .

Cited by:

See Also – Wilkinson v West Coast Capital and others ChD 21-Dec-2005
. .
Lists of cited by and citing cases may be incomplete.

Company, Evidence

Updated: 01 July 2022; Ref: scu.228968

Solon South West Housing Association Limited v Lisa James Eran James: CA 20 Dec 2004

Hearsay evidence is available on an application for an ASBO or the trial of a possession action.

Citations:

[2004] EWCA Civ 1847

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Moat Housing Group-South Ltd v Harris and Another CA 16-Mar-2005
The defendant family was served without notice with an anti-social behaviour order ordering them to leave their home immediately, and making other very substantial restrictions. The evidence in large part related to other people entirely.
Lists of cited by and citing cases may be incomplete.

Housing, Evidence

Updated: 01 July 2022; Ref: scu.223663

Regina v O’Doherty: CANI 19 Apr 2002

The defendant appealed his conviction based upon voice identification evidence, of making a false emergency telephone call.
Held: The court should have heard expert evidence of acoustic analysis, as well as expert evidence of voice identification. This might not be necessary where the issue was which of a known group had spoken, or where the voice had rare characteristics, or where the issue was as to the dialect of the speaker. The jury should also listen themselves to the recording, but be given a warning as to the dangers of substituting their own opinion for that of the expert. Progress suggested that the techniques accepted in Robb were no longer sufficient..

Judges:

Lord Justice Nicholson, Mr Justice Kerr and Mr Justice McLaughlin

Citations:

Times 03-Jun-2002

Jurisdiction:

Northern Ireland

Citing:

Doubted – Regina v Robb CACD 1991
The evidence of an expert to prove identification by voice was admissible. Also voice recognition evidence given by a phonetician was admissible as expert evidence; and that evidence of police officers who listened to disputed tapes and recognised . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 30 June 2022; Ref: scu.172180

Regina v Maynard, Dudley etc: CACD 31 Jul 2002

The defendants appealed against their convictions for murder. They alleged that the police record of an interview central to the cases had been falsified.
Held: To allow an appeal the court must conclude that the conviction is unsafe. The evidence at trial was that the record was accurate and contemporaneous, but that now appeared to be impossible. The court can never know the inner minds of the jury. The judge had made the integrity of the interviews central. Appeals allowed to that extent.

Judges:

Lord Justice Mantell, Holman, Gibbs JJ

Citations:

[2002] EWCA Crim 1942

Links:

Bailii

Statutes:

Criminal Appeal Act 1968 23(2)

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Pendleton HL 13-Dec-2001
The defendant had appealed his conviction for murder to the Court of Appeal. The 1968 Act required the court to consider whether the conviction was unsafe. New evidence was before the Court of Appeal, but they had rejected the appeal.
Held: . .
Lists of cited by and citing cases may be incomplete.

Crime, Police, Evidence

Updated: 30 June 2022; Ref: scu.174450

Barry George v Regina: CACD 29 Jul 2002

There had been an identification parade, but the witness had not made an unqualified identification of the defendant. He now appealed admission of the evidence from ID parade.
Held: Recognising the difficulties in identification evidence, and the dangers identified in Turnbull, with appropriate caution a qualified identification might be admitted, either where it supported other evidence, or where the context explained the limited identification, and was not used to undermine a witness. The judge must take care to balance the prejudice and the value of the evidence before admitting it.

Judges:

Lord Woolf, Lord Chief Justice, Mr Justice Curtis and Mr Justice Henriques

Citations:

Times 30-Aug-2002, Gazette 03-Oct-2002, [2002] EWCA Crim 1923

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Turnbull and Another etc CCA 9-Jun-1976
The defendants appealed against their convictions which had been based upon evidence of visual identification.
Held: Identification evidence can be unreliable, and courts must take steps to reduce injustice. The judge should warn the jury of . .

Cited by:

See Also – George v Regina CACD 15-Nov-2007
The defendant appealed against his conviction for the murder of the BBC presenter Jill Dando. He said that the prosecution had relied heavily on the discovery, a year later, of a single particle of firearm discharge residue.
Held: The evidence . .
Cited – HM Attorney General v MGN Ltd and Another Admn 29-Jul-2011
The police arrested a man on suspicion of the murder of a young woman. He was later released and exonerated, and a second man arrested and later convicted. Whilst the first was in custody the two defendant newspapers, the Daily Mirror and the Sun . .
Lists of cited by and citing cases may be incomplete.

Crime, Evidence

Updated: 30 June 2022; Ref: scu.174353

Regina v Dallagher: CACD 25 Jul 2002

The prosecution sought to bring into evidence an ear print. The defendant appealed.
Held: The science of identifying ear prints remained under development, but there was nothing to stop it being admitted where appropriately cautious directions were given by the judge. There was no basis for excluding evidence in respect of marks found at the scene of a crime. In this case however there was fresh evidence as to the reliability of these particular marks, which might have affected the jury’s decision if it had been available at trial. The conviction was quashed, and a new trial ordered.

Judges:

Lord Justice Kennedy, Mr Justice Curtis and Mr Justice Pitchford

Citations:

Times 21-Aug-2002, [2002] EWCA Crim 1903

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Kempster, Regina v CACD 7-May-2008
The defendant appealed against his conviction saying that evidence of an ear-print expert had been wrongly admitted.
Held: The court rejected an argument based on Coutts. Ear-print evidence can be admitted provided the experts were . .
Lists of cited by and citing cases may be incomplete.

Crime, Evidence

Updated: 30 June 2022; Ref: scu.174356

Regina v Mushtaq: HL 21 Apr 2005

The defendant was convicted of fraud charges. He sought to have excluded statements made in interview on the basis that they had been obtained by oppressive behaviour by the police. His wife was very seriously ill in hospital and he had made the statement so that he could get out to see her. The police knew his circumstances, but bail was refused. The statement was admitted and the circumstances discussed before the jury.
Held: The appeal failed. In the absence of evidence from the defendant and the denials by the officers there was not actually any evidence of oppression: ‘in this case there was no evidence whatever of oppression, or of any other improper means, for the prosecution to disprove or for the jury to consider. The direction to the jury as to what they might do if they found that the confession had been obtained by oppression or any other improper means was, accordingly, unnecessary and unduly favourable to the appellant. In those circumstances, the fact that the judge did not go further in his direction cannot possibly affect the fairness of the appellant’s trial or the safety of his conviction.’ However even though the judge had ruled that a statement was admissible in law, he must still leave to the jury the question of fact as to whether it had been obtainedby oppression, and that therefore they were entitled to disregard it.
Lord Carswell said that oppression would be constituted by ‘questioning which by its nature, duration or other circumstances (including the fact of custody) excites hopes (such as hope of release) or fears, or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have stayed silent.’

Judges:

Lord Steyn, Lord Hutton, Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Lord Carswell

Citations:

[2005] UKHL 25, Times 28-Apr-2005, [2005] 1 WLR 1513

Links:

Bailii, House of Lords

Statutes:

Police and Criminal Evidence Act 1984 76(2), European Convention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

Cited – Rex v Murray 1951
Where the judge decides that the confession is to be given in evidence, if the defendant’s counsel wishes, the circumstances in which it was obtained will again be explored in evidence before the jury so that they can decide what weight or value to . .
Cited – Wong Kam-Ming v The Queen PC 20-Dec-1978
The voir dire system allows a defendant to give his evidence on the limited issues surrounding the circumstances under which his statement was made as to the admissibility of the confession, without infringing his right to elect not to give evidence . .
Cited – Chitambala v The Queen 1961
Clayden ACJ said: ‘In any criminal trial the accused has the right to elect not to give evidence at the conclusion of the Crown case. To regard evidence given by him on the question of the admissibility as evidence in the trial itself would mean . .
Cited – Ibrahim v The King PC 6-Mar-1914
(Hong Kong) The defendant was an Afghan subject with the British Army in Hong Kong. He was accused of murder. Having accepted the protection of the British Armed forces, he became subject to their laws. In custody, he was asked about the offence by . .
Cited – Regina v Bass CCA 1953
The court considered how to deal with the admission of a statement where the defendant contested its admissibility. Here the defendant said he had not been cautioned before the interview.
Held: It was within the discretion of the judge to . .
Cited – Hui Chi-ming v The Queen PC 5-Aug-1991
(Hong Kong) The defendant was charged with aiding and abetting a murder. A, carrying a length of water pipe and accompanied by the defendant and four other youths, seized a man and A hit him with the pipe, causing injuries from which he died. No . .
Cited – Regina v Sat-Bhambra CACD 1989
The defendant was accused of importing heroin. He challenged use of his recorded interviews saying he was suffering hypoglycaemia from his diabetes at the time. The judge excluded later interviews for this reason, but the defendant challenged the . .
Cited – Chalmers v HM Advocate HCJ 1954
Where a defendant failed to prevent a statement being admitted in evidence, and sought to be able to challenge it again before the jury, this was a situation where logic must yield, since the jury cannot be asked to accept as an item of evidence a . .
Cited – G v United Kingdom ECHR 1983
The applicant went to a police station along with his girlfriend who was to be interviewed on an unspecified matter. He was arrested and questioned about a burglary. He made a confession, but he claimed that he had done so because the police had . .
Cited – Saunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
Cited – Murray v The United Kingdom ECHR 8-Feb-1996
The applicant had been denied legal advice for 48 hours after he had been taken into custody.
Held: There had been a violation of article 6(1) read with article 6(3)(c). However, it was not a breach of human rights to draw inferences from the . .
Cited – Funke v France ECHR 25-Feb-1993
M. Funke successfully challenged his conviction for failing to provide documents which the customs authorities had demanded of him, on the grounds that his rights under Article 6 had been infringed: ‘The Court notes that the customs secured Mr. . .
Cited – Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
Cited – Regina v Ward (Judith) CACD 15-Jul-1992
The defendant had been wrongly convicted of IRA bombings. She said that the prosecution had failed to disclose evidence.
Held: The prosecution’s forensic scientists are under a common law duty to disclose to the defence anything they may . .
Cited – Regina v Prager CACD 1972
The judge’s discretion to exclude a statement on the ground that its admission would be unfair is a matter of degree, but the first and principal decision is whether the prosecution has proved that it was made voluntarily. The court discussed what . .
Cited – Bartlett v Smith 1843
‘Where a question arises as to the admissibility of evidence, the facts upon which its admissibility depends are to be determined by the judge, and not by the jury. If the opposite course were adopted, it would be equivalent to leaving it to the . .
Cited – Chan Wei Keung v The Queen PC 7-Nov-1966
(Hong Kong) The defendant appealed from his conviction for murder. He complained as to the adequacy of the judge’s directions to the jury.
Held: On a voir dire as to the admissibility of a defendant’s challenged statement, the prosecution . .

Cited by:

Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Cited – Foster and Another v The Queen PC 23-Jan-2007
(Barbados) The appellants had been convicted under the felony murder rule, before its abolition in Barbados in 1994. . .
Cited – Ali Hussein v Secretary of State for Defence Admn 1-Feb-2013
The claimant sought to challenge the legality of techniques of interrogation intended to be used by forces members detaining person captured in Afghanistan. He had himself been mistreated by such officers in Iraq. The defendant denied he had . .
Cited – Williams v The Queen PC 25-Apr-2006
PC Jamaica – the appellant had been twelve when convicted on his own confession of murder. He said that the statement after oppression. The statement had been challenged but admitted without following the . .
Lists of cited by and citing cases may be incomplete.

Evidence, Human Rights

Updated: 29 June 2022; Ref: scu.224323

E I Du Pont de Nemours and Co v S T Dupont (1): ChD 31 Oct 2002

Parties appealed from decisions of the Trade Marks Registry, and requested leave to introduce new evidence.
Held: It was not agreed what rules applied on appeals under the 1938 Act. The Trade Mark system had public interest effects as well as private law. The rules governing appeals were therefore different from other regimes. The courts should adopt a more relaxed attitude, and treat the appeal as a full re-hearing rather than as a review, and that, accordingly fresh evidence might be admissible.

Judges:

Neuberger J

Citations:

Times 07-Nov-2002, Gazette 09-Jan-2003, [2003] EWCA 1368

Statutes:

Trade Marks Act 1938 18, Civil Procedure Rules 52.11(2)

Jurisdiction:

England and Wales

Citing:

Cited – ‘Wunderkind’: Application No 2156362A TMR 15-Aug-2001
cw Inter Partes Decisions – Trade Marks – Opposition . .
See also – E I Du Pont de Nemours and Co v S T Dupont (2) ChD 22-Nov-2002
The parties had appeared before a hearing officer at the Trade Marks registry. The opponent of the registration sought leave to argue an additional point which, though unpleaded, could have been argued without any significant adjournment. The . .

Cited by:

See Also – E I Du Pont de Nemours and Co v S T Dupont (2) ChD 22-Nov-2002
The parties had appeared before a hearing officer at the Trade Marks registry. The opponent of the registration sought leave to argue an additional point which, though unpleaded, could have been argued without any significant adjournment. The . .
Cited – Haw and Another v City of Westminster Magistrates’ Court Admn 12-Dec-2007
The defendants appealed convictions for contempt of court, on the basis of having wilfully interrupted the court. The respondent said that no appeal lay.
Held: The statute was ambiguous, and ‘there can be no good reason why a person convicted . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Evidence, Civil Procedure Rules

Updated: 28 June 2022; Ref: scu.178034

United Trade Action Group Ltd and Another, Regina (on The Application of) v Transport for London and Another (Evidence): Admn 20 Jan 2021

Ruling on the admissibility of evidence in two consolidated claims for judicial review.

Judges:

Mrs Justice Lang

Citations:

[2021] EWHC 73 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – United Trade Action Group Ltd and Another, Regina (on The Application of) v Transport for London and Another Admn 20-Jan-2021
. .
Lists of cited by and citing cases may be incomplete.

Transport, Planning, Evidence

Updated: 28 June 2022; Ref: scu.657332

Regina v Beck: CACD 1982

The defendant complained that the judge had failed to direct the jury about the dangers of relying upon the evidence of witnesses who, though not co-defendants, had their own conflicting interests. They also said that corroborative evidence should only have been accepted to support directly some specific evidence of an accomplice.
Held: A formal accomplice direction was not required. It was enough to warn the jurors of the dangers. Evidence whose nature was corroborative need not be directly related to evidence given by an accomplice. ‘While we in no way wish to detract from the obligation upon a judge to advise a jury to proceed with caution where there is material to suggest that a witness’s evidence may be tainted by an improper motive, and the strength of the evidence must vary according to the facts of the case, we cannot accept that there is any obligation to give the accomplice warning with all that entails, when it is common ground that there is no basis for suggesting that the witness is a participant or in any way involved in the crime the subject matter of the trial.’

Judges:

Ackner LJ

Citations:

[1982] CLY 563, [1982] 1 WLR 461, [1982] 1 All ER 807

Jurisdiction:

England and Wales

Citing:

Applied – Regina v Mullins 1848
. .
Applied – Rex v Baskerville 1916
. .
Explained – Regina v Prater CCA 1960
Where one defendant gave evidence incriminating his co-defendant, just as in cases where an accomplice gave evidence for the prosecution, a full corroboration warning was desirable. . .
Explained – Davies v Director of Public Prosecutions HL 1954
Half a dozen youths engaged in a fist fight with another group, but one of their number suddenly produced a knife and stabbed one of their opponents to death. One of the prosecution witnesses was a youth named Lawson. He gave evidence of an oral . .
Cited – Regina v Kilbourne HL 1973
The respondent was convicted of sexual offences against two groups of boys. The trial judge directed the jury that they would be entitled to take into account the uncorroborated evidence of the second group as supporting evidence given by the first . .

Cited by:

Cited – Regina v Spencer; Regina v Smails HL 24-Jul-1986
The defendants were nurses employed at Rampton secure hospital accused of assaults on patients. The witnesses against them had been inmates. They complained that the judge had failed to direct the jurors about the dangers of relying upon their . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence

Updated: 27 June 2022; Ref: scu.191972

International Business Machines Corporation v Phoenix International (Computers) Ltd: ChD 28 Jul 1994

The defendant had, by mistake, included in bundles of documents produced on discovery opinions and other legally privileged material.
Held: A competent solicitor would see immediately that these had been disclosed by mistake, and an order was made restraining their use.

Judges:

Aldous J

Citations:

[1995] 1 All ER 413

Jurisdiction:

England and Wales

Cited by:

Cited – Mohamad Al Fayed v The Commissioner of Police of the Metropolis CA 29-May-2002
During an action, advice from counsel had been inadvertently disclosed to the claimants. The defendant sought to restrain use of the papers in the trial. It was accepted that the papers attracted legal professional privilege, but the police also . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 27 June 2022; Ref: scu.182970

Clarke (executor of the will of Francis Bacon, deceased) v Marlborough Fine Art (London) Ltd and Another: ChD 20 Nov 2001

A party will not be allowed to file pleadings which required him to make contradictory statements of truth in a unified claim. The alternative may be for the proceedings to go ahead as separate, non-unified claims. When considering whether there was evidence to support an amendment, the court should apply the same test as for an application for summary judgment or to strike out. Hearsay evidence now being generally admissible, the requirement to state the source of any hearsay was procedural, and went as to weight, and did not the attribution to be based upon non-hearsay evidence.

Judges:

Patten J

Citations:

Times 04-Dec-2001, Gazette 17-Jan-2002, [2002] 1 WLR 1731

Statutes:

Civil Procedure Rules 38, Civil Evidence Act 1995

Jurisdiction:

England and Wales

Cited by:

Cited – Binks v Securicor Omega Express Ltd CA 16-Jul-2003
The claimant sought damages for personal injury based upon one version of events. The defendant pleaded another, contrary, set of events and objected when the claimant sought to plead an alternative case to apply if the court found the defendants . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Litigation Practice, Evidence

Updated: 27 June 2022; Ref: scu.166944

Cleveland Police v Watson: CA 10 Jul 2001

The Chief Constable renewed his application for leave to appeal against a judgment for damages for assault and malicious prosecution, saying that the judge had incorrectly not allowed mention of some of the claimant’s convictions.
Held: Some of the convictions were spent and had been correctly excluded.

Citations:

[2001] EWCA Civ 1144

Links:

Bailii

Statutes:

Rehabilitation of Offenders Act 1974 7(3)

Jurisdiction:

England and Wales

Torts – Other, Police, Evidence

Updated: 27 June 2022; Ref: scu.218296

Parks v Clout: CA 22 Oct 2002

Application for leave to make second appeal. Brother of deceased alleging that the widower had obtained probate by falsely representing that no will had been made by the deceased.
Held: Insofar as the judge had based his conclusion on an incorrect assertion that circumstantial evidence could not be used at all to base a conclusion as to whether a will had been executed, the appeal had to be allowed to go ahead.

Judges:

Jonathan-Parker LJ

Citations:

[2002] EWCA Civ 1565

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Atkinson v Morris CA 1897
The plaintiff was able to prove that the testator had said she had destroyed one copy of a will she had made in duplicate.
Held: Though that evidence would have had the effect of revocation, it was hearsay and inadmissible and her intentions . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Evidence

Updated: 27 June 2022; Ref: scu.217724

Irvine and Another v Talksport Ltd: CA 18 Jan 2002

The claimants renewed their application for permission to appeal from an order granting an application made by the defendant, Talksport Ltd, to exclude certain evidence which the claimants appeared to wish to adduce at the trial of the action. Mr Irvine, a famous racing driver, talked of the defendant’s use of his image for advertising without his permission.
Held: The claimant had deliberately risked exclusion of his evidence by delaying service of it beyond the limits: ‘The considerations which seem to me quite plainly of great significance which were before the judge were the interests of the administration of justice, whether the application for relief had been made promptly, whether the failure to comply was intentional and whether there is a good explanation for the failure. Those are the first four subparagraphs of rule 3.9(1) and it seems to me clear that each of them counts against the claimants.’ Nor was the sanction disproportionate: ‘The claimants’ behaviour runs counter to the ethos which for some time, even before the CPR’s introduction, has governed the court’s approach, that is to say that cards should be placed on the table quite openly and orders intended to achieve that end should be obeyed. To allow a party to flout a court order for a tactical reason is unacceptable.’

Judges:

Peter Gibson LJ

Citations:

[2002] EWCA Civ 95

Links:

Bailii

Statutes:

Civil Procedure Rules 3.9(1)

Jurisdiction:

England and Wales

Citing:

Cited – Biguzzi v Rank Leisure Plc CA 26-Jul-1999
The court’s powers under the new CPR to deal with non-compliance with time limits, were wide enough to allow the court to allow re-instatement of an action previously struck out. The court could find alternative ways of dealing with any delay which . .

Cited by:

See Also – Irvine, Tidswell Ltd v Talksport Ltd ChD 13-Mar-2002
The defendants used a distorted image of the claimant, a famous racing driver, to endorse its product. He claimed damages in passing off.
Held: On the facts, the famous racing driver Eddie Irvine had a property right in his goodwill which he . .
See Also – Irvine and others v Talksport Ltd CA 1-Apr-2003
Mr Irvine brought an action in passing off against the defendants who were said to have used his image in its advertising, but without his consent. The claimant appealed against the damages awarded (andpound;2,000) and the defendant appealed against . .
Lists of cited by and citing cases may be incomplete.

Evidence, Civil Procedure Rules

Updated: 23 June 2022; Ref: scu.216709

Allan v The United Kingdom: ECHR 5 Nov 2002

The appellant had been convicted of murder. The police had encouraged an informant to associate with him whilst in prison and to entice admissions from him. They had also recorded conversations whilst he was in the police station cells.
Held: No system regulated such recordings, and accordingly the recordings were not according to law, and were an infringement of his human rights. As to the conversations with the fellow inmate, it was not the function of the Court to adjudicate on matters of fact, nor as to the admissibility of evidence. The question for the court was whether the behaviour was such as to render the proceedings as a whole unfair. This included whether there had been shown due respect for the rights of the defence. The right against self-incrimination includes the right not to incriminate oneself through coercion or oppression, in defiance of the will of the accused. He had here exercised his right of silence on interview. The police had coached the informant to try to extract a confession, and the confessions obtained were not spontaneous or unprompted. The confessions were obtained in defiance of his will, and in breach of his article 6 rights to a fair trial. Art 13 had also been infringed by the use of wrongful surveillance without effective remedy.
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 ; Violation of Art. 6-1 ; Violation of Art. 13 ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings

Citations:

Times 12-Nov-2002, 48539/99, [2002] ECHR 697, [2002] ECHR 702

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights Art 8.1 Art 6 Art 13

Jurisdiction:

Human Rights

Human Rights, Evidence, Police

Updated: 21 June 2022; Ref: scu.177895

Dunning v United Liverpool Hospitals’ Board of Governors: CA 1973

Mrs D had been treated at hospital, and sought release of her records to establish whether she had any basis for a claim in negligence. The court considered whether an application under section 31 of the 1970 Act for pre-action discovery had been properly made. Given the delay, the court was asked whether a claim was ‘likely’ to be made.
Held: Whether the parties are likely to be parties in subsequent proceedings does not depend on the state of affairs prior to pre-action discovery. If one concentrates solely on things as they stand prior to pre-action discovery then it will often be impossible to say that anyone is likely to be a party to any subsequent proceedings.
Lord Denning MR said: ‘One of the objects of this section is to enable a plaintiff to find out – before he starts proceedings – whether he has a good cause of action or not’. ‘likely’ must be given its more extended and open meaning. A more restricted meaning would defeat the purpose of the statute.
James LJ said: ‘In order to take advantage of the section, the wording of which is no different from that of s 33(2) of the 1981 Act the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is a reasonable basis for making it. Ill-founded, irresponsible and speculative allegations or allegations based merely on hope, would not provide a reasonable basis for an intended claim in subsequent proceedings.’
Stamp LJ dissented, saying that the expert’s opinion was that proceedings were unlikely, and disclosure was unlikely to produce anything to justify it.

Judges:

James LJ, Lord Denning MR, Stamp LJ

Citations:

[1973] 1 WLR 586, [1973] 2 All ER 454

Statutes:

Administration of Justice Act 1970 31

Jurisdiction:

England and Wales

Cited by:

Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Lists of cited by and citing cases may be incomplete.

Evidence, Health Professions

Updated: 18 June 2022; Ref: scu.416038

North Australian Territory Co v Goldsborough, Mort and Co: CA 1893

The court considered the propriety of the cross examination of a witness of the statements of others. The plaintiff company in liquidation, sought rescission of a contract for the purchase of land. In the course of the liquidation and after the commencement of the action certain persons were examined under section 115 of the 1862 Act. Their depositions were then taken. A commission subsequently issued in the action for the examination of witnesses abroad, and one of the persons who had been examined under s 115 was examined under the commission on behalf of the Defendants. During this cross-examination on behalf of the Plaintiffs he was asked as to the truth of certain of his answers given in the examination under section 115, and the answers were read to him from the depositions. He said that the statements contained in them were correct. He was also cross-examined as to certain answers given by other persons who had been examined under sect.115, and those answers were read to him. The Defendants sought to inspect and copy those depositions used in the cross-examination.
Held: The defendants were not entitled to the inspection sought.
Lord Esher MR said that: ‘answers given in an examination under sect.115 never can be used as evidence or as proof, except for the purpose of contradicting a witness; they are not taken as evidence in an action, but for the purpose of obtaining information to enable the company or its liquidator to decide as to the propriety of bringing or continuing an action’. As to the depositions: ‘are in the nature of information, and there is no injustice in the fact that the person conducting a cause is in possession of information of which the other side is not.’
Lindley LJ said: ‘It is said that they are entitled because these depositions ought to have been scheduled in the Plaintiffs’ affidavit of documents as documents in their possession relating to matters in dispute in the action; but, if they had been scheduled, privilege would as a matter of course have been claimed for them, and the Defendants would never have seen them; and it would not be fair to the Plaintiffs if we were to treat these depositions as documents in their possession unprotected by a claim of privilege.’

Judges:

Lord Esher MR, Lindley LJ, Cotton LJ

Citations:

[1893] 2 Ch 381

Statutes:

Companies Act 1862 115

Jurisdiction:

Australia

Cited by:

Cited – Charnock and Others v Rowan and Others CA 20-Jan-2012
14 passengers in a bus hit from behind at a slow speed had all claimed whiplash injury. The expert had said that the accepted speed required to produce such an injury was a change of 3mph, which would require an impact at 30mph, whereas the evidence . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 17 June 2022; Ref: scu.450440

Re Highgrade Traders: CA 1984

Litigation privilege may be claimed in respect of documents brought into being at a time when litigation is reasonably in prospect.

Judges:

Oliver LJ

Citations:

[1984] BCLC 151

Jurisdiction:

England and Wales

Citing:

Approved – Waugh v British Railways Board HL 12-Jul-1979
No Litigation Privilege without Dominant Purpose
An internal report had been prepared by two of the Board’s officers two days after a collision involving the death of a locomotive driver, whose widow brought the action and now sought its production.
Held: The court considered litigation . .

Cited by:

Cited – United States of America v Philip Morris Inc and others QBD 10-Dec-2003
Witness orders were sought in respect of professionals resident in England to support litigation in the US. They objected on the ground that the terms of the order sought suggested improper behaviour, and that an order would anticipate breach of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence

Updated: 16 June 2022; Ref: scu.188694

Re State of Norway’s Application (No 2): HL 1989

The government of Norway sought evidence here to support a claim for tax in Norway.
Held: The State of Norway’s application requesting the oral examination of two witnesses residing in England did not fall foul of the Revenue rule. A claim will not be enforced here, where the claimant is asserting a sovereign right or where the central interest of the claimant is governmental in nature, however, Lord Goff said: ‘It is of importance to observe that that rule is limited to cases of direct or indirect enforcement in this country of the revenue laws of a foreign state. It is plain that the present case is not concerned with the direct enforcement of the revenue laws of the State of Norway. Is it concerned with their indirect enforcement? I do not think so. It is stated in Dicey and Morris, at p. 103, that indirect enforcement occurs (1) where the foreign state (or its nominee) in form seeks a remedy which in substance is designed to give the foreign law extraterritorial effect, or (2) where a private party raises a defence based on the foreign law in order to vindicate or assert the right of the foreign state. I have been unable to discover any case of indirect enforcement which goes beyond these two propositions. Even so, since there is no authority directly in point to guide me, I have to consider whether a case such as the present should nevertheless be held to fall foul of the rule. For my part, I cannot see that it should. I cannot see any extraterritorial exercise of sovereign authority in seeking the assistance of the courts of this country in obtaining evidence which will be used for the enforcement of the revenue laws of Norway in Norway itself.’
Lord Goff discussed the phrase ‘civil or commercial matters’, and said of itsuse in the 1856 Act: ‘Here we find the first mention in an Act of Parliament, at least in this context, of the expression ‘civil or commercial matter.’ It is plain that here the word ‘matter’ is used as referring to the relevant proceedings; because in section 1 the ‘matter’ is required (consistently with the long title and section 2 of the Act) to be pending before the foreign court or tribunal. This reinforces the natural inference that, in section 1 of the Act, the expression ‘civil matter’ is being given no restricted meaning, and would be understood in this country as referring to civil, as opposed to criminal, proceedings. It is true that this gives no weight to the words ‘or commercial’ so far as the law of this country is concerned: but it is not surprising to find these words added in relation to a jurisdiction which will be invoked by courts or tribunals in foreign countries, many of which differentiate between civil and commercial matters.’

Judges:

Lord Goff of Chieveley

Citations:

[1990] 1 AC 723

Statutes:

Evidence (Proceedings in Other Jurisdictions) Act 1975, Foreign Tribunals Evidence Act 1856

Jurisdiction:

England and Wales

Citing:

Approved – Attorney-General of New Zealand v Ortiz CA 2-Jan-1982
The defendant was to sell a Maori carving which had been unlawfully exported from New Zealand. The Attorney General sought its recovery and an injunction to prevent its sale, relying on the Historical Articles Act 1962. The judge had ordered its . .
Appeal from – Re State of Norway’s Application (No 2) CA 1988
The basic requirement for an issue estoppel to arise was that ‘the earlier determination relied on as raising an issue estoppel shall have been fundamental to the decision first arrived at’. The Board did not accept that an issue estoppel is . .

Cited by:

Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Lists of cited by and citing cases may be incomplete.

Estoppel, International, Evidence

Updated: 14 June 2022; Ref: scu.245569

Makin v Attorney-General for New South Wales: PC 12 Dec 1893

The accused had been charged with the murder of an infant who had been given into their care by the child’s mother after payment of a fee. They appealed after admission of evidence that several other infants had been received by the accused persons from other mothers and that their bodies were found buried in gardens of houses occupied by the prisoners.
Held: The evidence was admissible.
As to the admission of similar fact evidence, ‘It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other.’
The court expounded the principles on which a Court of Criminal Appeal should act, and construed the New South Wales Act, which in defining a strictly appellate jurisdiction in criminal matters, provided ‘that no conviction or judgment thereon shall be reversed, arrested or avoided in any case so stated, unless for some substantial wrong or other miscarriage of justice’.
Held: To transfer the decision of the guilt of the accused from a jury, acting on oral testimony, to an appellate tribunal, possessing that testimony only in writing, cannot be said to involve no miscarriage of justice, and hence that a court of criminal appeal is not entitled to dismiss the appeal by retrying the case on shorthand-notes, or by holding that, if the trial judge had excluded the evidence, which he wrongly received, the verdict would probably have been the same.

Judges:

Lord Herschell LC

Citations:

[1894] AC 57, [1893] UKPC 56

Links:

Bailii

Jurisdiction:

Australia

Cited by:

Cited – Rex v Dyson CCA 1908
The court adopted the practice for selecting cases for which leave to appeal should be given which was set down in Makin . .
Cited – Ibrahim v The King PC 6-Mar-1914
(Hong Kong) The defendant was an Afghan subject with the British Army in Hong Kong. He was accused of murder. Having accepted the protection of the British Armed forces, he became subject to their laws. In custody, he was asked about the offence by . .
Cited – Director of Public Prosecutions v P HL 1991
The defendant faced specimen counts of rape and incest against each of his two daughters. The trial judge refused an application for separate trials in respect of the offences alleged against each daughter. The defendant was convicted.
Held: . .
Cited – Regina v Boardman HL 1974
The defendant appealed the admission of similar fact evidence against him. Acts of buggery were alleged by a schoolmaster with boys in which the accused was the passive partner.
Held: In order to be admissible similar facts must bear a . .
Cited – O’Brien v Chief Constable of the South Wales Police CA 23-Jul-2003
The claimant sought damages for malicious prosecution, and sought to adduce similar fact evidence. The defendant appealed an order admitting the evidence.
Held: Comparisons between admission of similar fact evidence in civil and criminal . .
Cited – Sattin v National Union Bank Ltd CA 21-Feb-1978
The plaintiff sought damages from the loss of a diamond deposited with the defendant bank as security. He asked to present evidence about the experience of another customer who had lost jewellery he had deposited with it.
Held: The proposed . .
Cited – Berger v Raymond Sun Ltd 1984
The court distinguished the test of the admissibility of evidence of similar facts from the criteria according to which the court should exercise its discretion to exclude such evidence. He said that the test of admissibility was the same in civil . .
Cited – Regina v Straffen CCA 20-Aug-1952
The defendant had been arrested for murders of young girls, but after being found unfit to plead, he was committed to Broadmoor. While he escaped another girl was murdered, and he was charged. The prosecutor sought to bring in evidence of admissions . .
Cited – O’Brien v Chief Constable of South Wales Police HL 28-Apr-2005
The claimant sought damages against the police, and wanted to bring in evidence of previous misconduct by the officers on a similar fact basis. They had been imprisoned and held for several years based upon admissions which they said they had . .
Approved – Regina v Brooks CACD 1992
. .
Cited – Regina v Beedles CACD 31-Jul-1996
The defendant appealed against his conviction for sexual assault. The issue was whether a note written by the complainant to her teacher was admissible as evidence of recent complaint to corroborate her statement. Similar allegations had been made . .
Cited – Regina v Wright and Ormerod CACD 1990
The defendants were charged with indecent assault on a child of 5, who said that the defendants had hurt her in the back and said naughty things to her. The Judge also admitted evidence from the child’s mother of the complaint the child had made to . .
Cited – Mitchell, Regina v SC 19-Oct-2016
Appeal against conviction for murder. Evidence was agreed with her representatives as to previous acts using knives, but was presented despite withdrawal by her of her consent. The prosecution now appealed against the quashing of the conviction.
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence

Updated: 11 June 2022; Ref: scu.184203

Bater v Bater: CA 1951

The wife petitioned for divorce, alleging cruelty.
Held: It had not been a misdirection for the petitioner to have to prove her case beyond reasonable doubt: ‘A high standard of proof’ was required because of the importance of such a case to the parties and the community. although it was a misdirection for a judge in matrimonial proceedings to say that the criminal standard of proof applied to allegations of cruelty it was correct to say that they had to be proved beyond reasonable doubt.
Denning LJ: ‘The difference of opinion which has been evoked about the standard of proof in recent cases may well turn out to be more a matter of words than anything else. It is of course true that by our law a higher standard of proof is required in criminal cases than in civil cases. But this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard.
As Best CJ and many other great judges have said, ‘in proportion as the crime is enormous, so ought the proof to be clear’. So also in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require for itself a higher degree of probability than that which it would require when asking if negligence is established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature; but still it does require a degree of probability which is commensurate with the occasion. Likewise, a divorce court should require a degree of probability which is proportionate to the subject-matter.’

Judges:

Bucknill LJ, Somervell LJ, Denning LJ

Citations:

[1951] P 35

Jurisdiction:

England and Wales

Citing:

Cited – Davis v Davis 1950
. .

Cited by:

Cited – AN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
Cited – Blyth v Blyth HL 1966
The House was asked as to the standard of proof required to establish that adultery had been condoned under the subsection.
Held: Lord Denning said: ‘In short it comes to this: so far as the grounds for divorce are concerned, the case, like . .
Cited – Khera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
Cited – In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
Lists of cited by and citing cases may be incomplete.

Evidence, Family

Updated: 11 June 2022; Ref: scu.237705

Harmony Shipping Co SA v Saudi Europe Line Limited (‘The Good Helmsman’): CA 1979

One party objected to the use of the same expert handwriting witness by its opponent. The expert had already given his opinion to both sides, and the question was whether he could be compelled to appear at the trial.
Held: There is no property in an expert witness and any contract purporting to impose an obligation to give evidence for only one side in a dispute would be contrary to public policy. The plaintiff could not prevent the defendant from adducing the evidence of the expert, who could properly be made the subject of a subpoena to appear at trial.
Lord Denning MR said: ”So far as witnesses of fact are concerned, the law is as plain as can be. There is no property in a witness. The reason is because the court has a right to every man’s evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can debar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him. In no way can one side prohibit the other side from seeing a witness of fact, from getting facts from him and from calling him to give evidence or from issuing him with a subpoena . . There being no such property in a witness, it is the duty of a witness to come to court and give his evidence in so far as he is directed by the judge to do so.’
and ‘Many of the communications between the solicitor and the expert witness will be privileged. They are protected by legal professional privilege. They cannot be communicated to the court except with the consent of the party concerned . . subject to that qualification it seems to me that an expert witness falls into the same position as a witness to fact. The court is entitled, in order to ascertain the truth, to have the actual facts which he has observed adduced before it and to have his independent opinion on those facts. In this particular case the court is entitled to have before it the documents in question and it is entitled to have the independent opinion of the expert witness on those documents and on those facts – excluding, as I have said, any of the other communications which passed when the witness was being instructed or employed by the other side.’
and ‘The expert witness can be seen beforehand and give a proof on these limited matters I have mentioned and give evidence accordingly.’

Judges:

Lord Denning MR

Citations:

[1979] 1 WLR 1380

Jurisdiction:

England and Wales

Cited by:

Cited – General Medical Council v Professor Sir Roy Meadow, Attorney General CA 26-Oct-2006
The GMC appealed against the dismissal of its proceedings for professional misconduct against the respondent doctor, whose expert evidence to a criminal court was the subject of complaint. The doctor said that the evidence given by him was . .
Cited – Versloot Dredging Bv v Hdi Gerling Industrie Versicherung Ag and Others ComC 8-Feb-2013
The defendants had engaged an expert witness, and he had undertaken investigations at the claimant’s premises. The claimant now sought an injunction to restrain the defendants from preventing the expert talking to them independently of the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Evidence

Updated: 11 June 2022; Ref: scu.245755

Hughes v Liverpool City Council: CA 11 Mar 1988

Citations:

Unreported Transcript, 11 March 1988

Jurisdiction:

England and Wales

Cited by:

Cited – Wisniewski v Central Manchester Health Authority CA 1997
The court considered the effect of a party failing to bring evidence in support of its case, as regards the court drawing inferences: ‘(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 10 June 2022; Ref: scu.188870

Berthill Fox v Regina (1): PC 2 Oct 2001

(St Christopher and Nevis) On a trial for murder, the defendant had made an unsworn statement from the dock. The direction from the judge as to its value was challenged on appeal. Though there was some confusion, on balance it was acceptable. As to provocation, the common law still applied in St Kitts, and the board was asked to develop the common law so as to bring it into line with the English statutory equivalent.
Held: The board has no such power. The judge had further been correct in directing the jury as to the issue of self defence. Appeal dismissed.

Judges:

Lord Bingham of Cornhill, Lord Mackay of Clashfern, Lord Hoffmann, Lord Clyde, Lord Scott of Foscote, Lord Hoffmann

Citations:

[2001] UKPC 40

Links:

PC, Bailii, PC

Jurisdiction:

Commonwealth

Citing:

Cited – Director of Public Prosecutions v Walker PC 1974
. .
Lists of cited by and citing cases may be incomplete.

Evidence, Commonwealth

Updated: 10 June 2022; Ref: scu.166564

Regina v Shephard: HL 16 Dec 1992

The defendant had been convicted of theft from a supermarket. The evidence was that the till rolls did not include the goods the subject of the charge. She argued that it should not have been admitted as evidence, without supporting evidence that the computer which produced the till rolls was working accurately.
Held: The evidence needed to be given in support of a computer print out varies with the complexity of the situation and the case. Affirmative evidence was always needed whether oral or in the form of a certificate under the Act, but in this case the evidence of a store detective was sufficient.

Judges:

Lord Griffiths, Lord Emslie, Lord Roskill, Lord Ackner and Lord Lowry

Citations:

Gazette 27-Jan-1993, [1993] 1 All ER 225, [1993] 2 WLR 102, [1993] AC 380

Links:

lip

Statutes:

Police and Criminal Evidence Act 1984 69(1)(b) Sch3 Para 8

Jurisdiction:

England and Wales

Citing:

Disapproved – Regina v Minors, Regina v Harper CACD 14-Dec-1988
In each case, the prosecution had produced a computer record to the court as evidence. The record was a computer print out. They challenged their convictions.
Held: To admit such evidence, the court had to see compliance with both sections. . .
Disapproved – Regina v Spiby 1990
The printout from a computerised machine was used to monitor telephone calls. It automatically recorded information such as the numbers to which the calls were made and the duration of the calls. This was admitted as real evidence. It was held that . .

Cited by:

Cited – Yearly v Crown Prosecution Service Admn 21-Mar-1997
Having closed their case, the prosecution applied for and were granted opportunity to adduce evidence in the form of certificates under section 69.
Held: The court had a discretion to allow further evidence. The magistrates had correctly . .
Lists of cited by and citing cases may be incomplete.

Evidence, Criminal Practice

Updated: 10 June 2022; Ref: scu.88013

Regina v Edwards, Denton and Jackson Hendley Crowley; Attorney General’s Reference (No. 1 of 2004): CACD 29 Apr 2004

The court considered references by the Attorney-General with regard to offences imposing a burden of proof upon the defendant. ‘An evidential burden will be discharged by a defendant by ensuring that there is some evidence before the court which could result in a reasonable court or jury determining the issue which is the subject of the reverse burden in the accused’s favour. A classic every day example is self defence; if the defendant adduces some evidence raising the issue, the prosecution then has the burden of disproving self defence. The defendant does not have to prove that he was acting in self defence. Rather the prosecution must prove beyond reasonable doubt that he was not so acting. A ‘legal burden’ is a greater hurdle for the defendant to clear, as he must satisfy a court on the balance of probabilities (but not beyond reasonable doubt) on the issues that are the subject of the reverse burden. The imposition of an evidential burden is therefore considerably easier to justify than a legal burden. ‘ The court gave detailed guidance on when a reverse legal burden of proof might be acceptable. A reverse evidential burden should not be a problem. The court also explained and described the different purposes and consequences of pre-trial and preparatory hearings. ‘Courts should strongly discourage the citation of authority to them other than the decision of the House of Lords in Johnstone and this guidance. Johnstone is at present the latest word on the subject.’

Judges:

Mr Justice Elias Mr Justice Gage Lord Justice Judge Justice, Lord Chief Justice Mr Justice Stanley Burnton

Citations:

[2004] EWCA Crim 1025, Times 30-Apr-2004, Gazette 20-May-2004, [2004] 1 WLR 2111, [2004] 2 Cr App R(S) 27

Links:

Bailii

Statutes:

European Convention on Human Rights 6, Criminal Procedure and Investigations Act 1996 29

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Johnstone HL 22-May-2003
The defendant was convicted under the 1994 Act of producing counterfeit CDs. He argued that the affixing of the name of the artist to the CD was not a trade mark use, and that the prosecution had first to establish a civil offence before his act . .

Cited by:

Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Cited – Director of Public Prosecutions v Barker Admn 19-Oct-2004
Driving whilst disqualified – ban expired but no test taken – burden of evidence . .
Cited – Goodyear, Karl, Regina v CACD 19-Apr-2005
The defendant complained that he had pleaded guilty to a charge of corruption on the basis of an indication from the judge that he would not receive a custodial sentence. Having pleaded guilty he had then been sentenced to a six months prison . .
Applied – Regina v L, G etc CACD 17-Jun-2005
A cash sum of andpound;87,000 was transferred. The defendants appealed against a ruling under the 1996 Act, saying that at the time of its transfer, the property did not represent criminal property under the Act.
Held: The pre-conditions for . .
Lists of cited by and citing cases may be incomplete.

Crime, Human Rights, Evidence

Updated: 10 June 2022; Ref: scu.196055

Dendron Gmbh and others v Regents of University of California and Another: PatC 23 Mar 2004

The claimants sought letters of request to obtain evidence to support applications they wished to make, including onme before the European Patents Office.
Held: The EPO when involved in opposition proceedings was not a domestic court, and letters were not available. The limited power under the regulation should be matched by limitations similar to those which would be imposed under English common law such as the duty not to use evidence obtained under letters of request without the permission of the court or of the witness.

Judges:

The Hon Mr Justice Laddie

Citations:

[2004] EWHC 589 (Pat), Times 24-May-2004

Links:

Bailii

Statutes:

Council Regulation (EC) No 1206/2001

Citing:

See Also – Dendron GmbH v The Regents of the University of California 2004
Pumfrey J said: ‘I would reject the suggestion that the right that is conferred by the grant of a licence is anything wider than a consent on behalf of the patentee to the doing of an act which absent that consent would be unlawful.’ . .

Cited by:

Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – CTB v News Group Newspapers Ltd and Thomas (2) QBD 23-May-2011
The claimant had obtained a privacy injunction, but the name of the claimant had nevertheless been widey distributed on the Internet. The defendant newspaper now sought to vary the terms. The second defendant did not oppose the injunction. . .
Lists of cited by and citing cases may be incomplete.

Evidence, Intellectual Property, Contract

Updated: 10 June 2022; Ref: scu.194838

Regina (Crown Prosecution Service, Greater Manchester) v Bolton Justices: QBD 31 Oct 2003

The magistrates had been taking a deposition, and ordered police officers to be excluded from court.
Held: The witness sought not to have to answer questions on the ground that he would be incriminated by his answers. Magistrates should not accept a claim for privilege without investigation. It was insufficient also to accept that this was claimed solely on the grounds of legal advice. The proceedings of taking the deposition were in open court, and the exclusion of those charged with investigating crime was an irregularity.

Judges:

Kennedy LJ, Royce J

Citations:

Times 07-Nov-2003, [2003] EWHC 2697 (Admin), [2004] 1 WLR 835

Links:

Bailii

Statutes:

Crime and Disorder Act 1998 Sch3 P-4

Jurisdiction:

England and Wales

Evidence, Magistrates, Human Rights, Criminal Practice

Updated: 08 June 2022; Ref: scu.190141

Ng Chun Pui v Lee Chuen Tat: PC 24 May 1988

There had been a crossover collision on a dual carriageway.
Held: The court considered the doctrine of res ipsa loquitur.
Held: Where a defendant adduces evidence, that evidence must be evaluated to see if it is still reasonable to draw the inference of negligence from the mere fact of the accident.
Lord Griffiths said: ‘The judge however was of the view that, despite those findings of fact, because the plaintiffs had originally relied upon the doctrine of res ipsa loquitur, the burden of disproving negligence remained upon the defendants and they had failed to discharge it. In their Lordships’ opinion this shows a misunderstanding of the so-called doctrine of res ipsa loquitur, which is no more than the use of a latin maxim to describe a state of the evidence from which it is proper to draw an inference of negligence. Although it has been said in a number of cases, it is misleading to talk of the burden of proof shifting to the defendant in a res ipsa loquitur situation. The burden of proving negligence rests throughout the case on the plaintiff’ and
‘So in an appropriate case the plaintiff establishes a prima facie case by relying upon the fact of the accident. If the defendant adduces no evidence there is nothing to rebut the inference of negligence and the plaintiff will have proved his case. But if the defendant does adduce evidence that evidence must be evaluated to see if it is still reasonable to draw the inference of negligence from the mere fact of the accident. Loosely speaking this may be referred to as a burden on the defendant to show he was not negligent, but that only means that faced with a prima facie case of negligence the defendant will be found negligent unless he produces evidence that is capable of rebutting the prima facie case.’ and ‘Resort to the burden of proof is a poor way to decide a case; it is the duty of the judge to examine all the evidence at the end of the case and decide whether on the facts he finds to have been proved and on the inferences he is prepared to draw he is satisfied that negligence has been established. In so far as resort is had to the burden of proof the burden remains at the end of the case as it was at the beginning upon the plaintiff to prove that his injury was caused by the negligence of the defendants. Their Lordships adopt the following two passages from the decided cases as most clearly expressing the true meaning and effect of the so-called doctrine of res ipsa loquitur.’

Judges:

Lord Griffiths

Citations:

[1988] SJ 1244, [1988] RTR 298, [1988] UKPC 7

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Scott v The London and St Katherine Docks Co CEC 1865
Requirements to set up Res Ipsa Loquitur
The maxim res ipsa loquitur applies only where circumstances are established which afford reasonable evidence, in the absence of explanation by the defenders, that the accident arose from their negligence. The doctrine of res ipsa loquitur is that: . .

Cited by:

Cited – Smith and Another v Harris PC 30-Oct-2006
(Cayman Islands) The respondent appealed a finding of negligence. She drove a car along a road colliding with three pedestrians, the claimants. The pedestrians said they had been walking in single file in a lay-by off the main carriageway. The . .
Cited – Bingham, Regina (on the Application of) v Director of Public Prosecutions Admn 7-Feb-2003
The defendant appealed by case stated against a conviction for driving a lorry without due care and attention, leading to the death of another road user. There had been an unexplained swing of the rear of his trailer out into the path of the other . .
Lists of cited by and citing cases may be incomplete.

Negligence, Evidence, Commonwealth

Updated: 08 June 2022; Ref: scu.190044

Vehicle and Operator Services Agency v George Jenkins Transport Ltd: Admn 20 Nov 2003

The prosecutor Agency appealed by way of case stated against a decision refusing to allow them to admit documentary evidence.
Held: The appeal was dismissed, but the court took the opportunity to say that a case stated did not need as in this case to set out the full details of some 200 informations which did not affect the ruling. A case stated should set out the facts as found or accepted. The magistrates should if necessary seek assistance from the advocates in drafting the agreed statement of facts, and setting out any areas of disagreement.

Judges:

Kennedy LJ, MacKay J

Citations:

[2003] EWHC 2879 (Admin), Times 05-Dec-2003

Links:

Bailii

Statutes:

Criminal Justice Act 1988 24

Citing:

Cited – Regina v Foxley CACD 9-Feb-1995
Written statements can be admissible at trial with the protections given by the section without being supported by oral evidence. An inference of the personal knowledge of the maker of statement is permissible. . .
Lists of cited by and citing cases may be incomplete.

Evidence, Licensing, Transport, Magistrates

Updated: 08 June 2022; Ref: scu.188529

Polanski v Conde Nast Publications Limited: CA 11 Nov 2003

The claimant sought damages for defamation. He feared arrest and extradition to the US if he came to England, and was granted an order allowing him to give evidence by video link. The defendant appealed that order.
Held: There was no absolute rule which would allow the order made. The judge had considered that if the claimant had only been allowed to give written evidence, this would have had difficulties for both parties. There was no concept of an outlaw in English law to prevent a party bringing an action. ‘the court should have regard to all the circumstances in deciding whether it is appropriate to make a VCF order specifically to enable a witness to evade the ordinary processes of our (criminal and extradition) law under which he might lose his liberty. I do not accept such that orders should only be refused ‘in exceptional circumstances’. In this case the claimant had chosen this jurisdiction, and sought its assistance. He was a volunteer. He should not be allowed to give evidence by video link.

Judges:

Lord Justice Jonathan Parker Lord Justice Simon Brown Lord Justice Thomas

Citations:

[2004] 1 WLR 387, [2003] EWCA Civ 1573, Times 18-Nov-2003, [2004] 1 All ER 1220

Links:

Bailii

Statutes:

Civil Evidence Act 1995 1 3, Civil Procedure Rules 32.1(1)(c) 32.1(2) 33.2(2) 33.4(1) 32.7

Jurisdiction:

England and Wales

Citing:

Cited – Rowland v Bock 2002
Mr Norgren claimed andpound;250,000 due under an agreement with Mr Brock. Mr Norgren had earlier introduced Mr Bock to Mr (Tiny) Rowland, and this dispute formed part of a much larger one. When Mr Norgren’s case came on for trial, he was arrested on . .
Cited – In Re Swaptronics Ltd ChD 24-Jul-1998
A party who was in contempt of court should not be debarred from continuing to take a proper part in a court action unless that contempt was serious enough seriously to interfere with the fair conduct of the trial. ‘The courts need powers of . .
Cited – Cross v Kirkby CA 18-Feb-2000
The claimant was a hunt saboteur and the defendant a local farmer. The claimant shouted to the defendant ‘You’re fucking dead’ and jabbed him in the chest and throat with a broken baseball bat. In order to ward off further blows, the defendant . .
Cited – Motorola Credit Corporation v Uzan and Others CA 26-Jun-2002
A world wide asset freezing order had been made. The defendants sought that it be set aside. Pending the hearing of their application, they sought also delay of their obligation to co-operate in providing full details of their finances.
Held: . .
Appealed to – Polanski v Conde Nast Publications Ltd HL 10-Feb-2005
The claimant wished to pursue his claim for defamation against the defendant, but was reluctant to return to the UK to give evidence, fearing arrest and extradition to the US. He appealed refusal of permission to be interviewed on video tape. Held . .

Cited by:

Appeal from – Polanski v Conde Nast Publications Ltd HL 10-Feb-2005
The claimant wished to pursue his claim for defamation against the defendant, but was reluctant to return to the UK to give evidence, fearing arrest and extradition to the US. He appealed refusal of permission to be interviewed on video tape. Held . .
Lists of cited by and citing cases may be incomplete.

Defamation, Evidence

Updated: 08 June 2022; Ref: scu.187723

Post Office Counters Ltd v Mahida: CA 22 Oct 2003

The defendant appealed a judgment. She was an employee of the claimant, and contractually due to make good certain sorts of losses. When the claim was made, she asked for the original documentation, but it was eventually admitted that it had been destroyed whilst in the claimant’s possession. The trial had proceeded on the basis of secondary evidence.
Held: The secondary evidence was prima facie admissible, and such evidence should not normally be excluded without strong reason. However here the defendant had requested the documentation early, and the claimant had not taken proper care of the documentation. This went to the weight to be attached to the evidence, and that relating to the substantial amounts should have been excluded.

Judges:

Hale LJ, Kay LJ

Citations:

Times 31-Oct-2003, [2003] EWCA Civ 1583

Links:

Bailii

Jurisdiction:

England and Wales

Evidence

Updated: 08 June 2022; Ref: scu.187373

Hammersmith Hospitals NHS Trust and Others v Troup Bywaters and Anders (A Firm): TCC 12 Nov 1999

Contract – professional negligence – duty of care – general consulting engineers – advice to NHS trust whether negligent – expert evidence – admissibility of evidence in the same profession with specialist professional expertise.

Judges:

His Honour Judge John Toulmin Cmg Qc

Citations:

[1999] EWHC Technology 273

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Professional Negligence, Evidence

Updated: 08 June 2022; Ref: scu.185886

Beck v Ministry of Defence: CA 11 Jun 2003

The claimant in a personal injury action was examined for a medical report on behalf of the defendants. The defendants, being unhappy with the report sought a second examination, and were granted leave. The claimant now appealed that leave.
Held: Leave should only have been granted on condition that the defendant first disclose the medical report already obtained. This was necessary to avoid ‘expert-shopping’ and to avoid suspicions.

Judges:

Lord Philips of Worth Matravers, Simon Brown, Ward LJJ

Citations:

[2003] EWCA Civ 1043, Gazette 14-Aug-2003, Times 22-Jul-2003

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Sarah Lloyd Jones and others v T Mobile (Uk) Ltd CA 31-Jul-2003
The claimant challenged a stautory notice. The Act required the notice to be fixed to the structure in question, but because of its location, the notice was not legible without going on to private land.
Held: Appeal lay here from the County . .
Applied – Hajigeorgiou v Vasiliou CA 10-Mar-2005
The landlord had been given permission by the court to adduce one unnamed expert. He obtained one report, but disliked it and sought another. The tenant objected and he was not allowed to rely upon the new report. He appealed judgment in favour of . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 07 June 2022; Ref: scu.184811

Zarvos v Pradhan and another: CA 7 Mar 2003

The landlord had occupied the premises as a restaurant, but subsequently let it to the respondents. The landlord opposed renewal of the tenancy saying that it intended to recommence trading, and now appealed a finding in favour of the tenant.
Held: The landlord had failed to show a sufficiently strong case that his plans had financial viability. Evidence acquired later that a bank would loan the requisite amount was not admissible, since it might have been obtained in time for the trial. It was not necessary always for the court to consider the two limbs under 30(1)(f) sequentially.

Judges:

Ward, Clarke, Longmore LJJ

Citations:

Times 04-Apr-2003, [2003] EWCA Civ 208, Gazette 09-May-2003, [2003] 13 EG 114, [2003] 2 P and CR 122

Links:

Bailii

Statutes:

Landlord and Tenant Act 1954 30(1)(g)

Jurisdiction:

England and Wales

Citing:

Cited – Hertfordshire Investments Ltd v Bubb and Another CA 25-Jul-2000
When considering an application for a re-hearing of a County Court action in order to consider and admit new evidence, the county court and High Court practice is now the same and the judge should consider the list of questions in Ladd v Marshall, . .
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited – Gregson v Cyril Lord Ltd CA 1962
A landlord opposing the grant of a new tenancy on the basis that he wished to conduct his own business from the premises, need not show that everything is in place to conduct the new business, but must be able to show that most obstacles to starting . .

Cited by:

Cited – Patel and Another v Keles and Another CA 12-Nov-2009
The landlord objected to the renewal of the lease, saying that he intended to occupy the premises for his own business. The court had found that he intended to sell the property.
Held: The landlord’s appeal failed. Parliament has not laid down . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Evidence

Updated: 07 June 2022; Ref: scu.180503

Regina (Sim) v Secretary of State for the Home Department: Admn 11 Feb 2003

The defendant had been convicted of a serious offence involving violece or sex, and been made subject to a extended sentence. He had been released on licence but recalled, and now challenged the system under which it had been decided that he should serve the balance of the first sentence.
Held: The system of extended sentences went beyond sentencing for the actual offence asking also whether there was a risk of re-offending. The parole board exercised an important public function, and made decisions with serious consequences to individuals. That this might require an assessment of the risk he posed made the decisions even more requiring of fairness. Where however further information came to light which suggested that there was a risk, then it was proper to recall a prisoner. There was no severance of the causal link with the original sentence, and the factor which caused the re-assessment need not be an offence of the same type as that whch gave rise to the sentence. A parole board could receive hearsay evidence.
Elias J spoke of the purpose of extended sentences: ”In such cases the object of the sentence is not to subject the prisoner to detention for the extended licence period, and indeed frequently when such sentences are imposed there would be no power at that stage to detain the prisoner in custody for that period. The aim of the sentence is to manage the risk in the community rather than in prison, albeit that it is recognised that it may be necessary to resort to further detention if that aim fails. The offender is not on licence as an alternative to prison; rather he is on licence as an alternative to liberty . . Once the prison sentence imposed by the court has been served, once cannot say that the sentencing court had it in mind that the offender should be detained unless it was shown that he was no longer a danger. The presumption implicit in the sentence passed is that during the extension period the offender need not be in custody.’ and ‘To have a presumption, therefore, that detention is justified after recall during the extension period is contrary to article 5. No court has decided, prior to matter being dealt with by the Parole Board, that detention is necessary during that period. The executive will be definition have taken that view, since it has decided to recall the offender, but that is not enough for compliance with article 5. As Elias J said, at para 54, the board should not be required to start from the premise that the executive’s assessment was correct. It is something about which the Parole Board itself should be satisfied.’

Judges:

Elias J

Citations:

Times 21-Feb-2003, Gazette 03-Apr-2003, [2003] EWHC 152 (Admin), [2003] 2 WLR 1374, [2004] QB 1288

Links:

Bailii

Statutes:

European Convention on Human Rights 5, Powers of Criminal Courts (Sentences) Act 2000 85

Cited by:

Appeal from – Regina (Sim) v Parole Board CA 18-Dec-2003
The prisoner had been sentenced to an extended term of five years imprisonment for indecent assault. He had been released, and then recalled for alleged breaches of his licence. The respondent appealed findings that such a recall was subject to . .
Cited – O v Crown Court at Harrow HL 26-Jul-2006
The claimant said that his continued detention after the custody time limits had expired was an infringement of his human rights. He faced continued detention having been refused bail because of his arrest on a grave charge, having a previous . .
Appeal from – Secretary of State for the Home Department v Sim and The Parole Board CA 19-Dec-2003
The prisoner was subject to an extended sentence, and had been recalled to prison. He now complained that the recall procedure had infringed his human rights. . .
Cited – Chater, Regina (on The Application of) v Secretary of State for Justice and Another Admn 2-Aug-2010
The claimant sought judicial review of his treatment after recall to prison from licence. He had a history of the sexual abuse of children. A police surveillance report had been rejected by the Parole Board, but they had nevertheless continued his . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Evidence

Updated: 07 June 2022; Ref: scu.179543

Department for the Environment, Food and Rural Affairs v Atkinson, Hughes: QBD 9 Oct 2002

The defendants were prosecuted for various offences relating to the selling and marketing of veterinary products without being licensed. Their cases were dismissed, when the prosecution put forward evidence as to the nature of what was being sold, but only in the form of the labels on the packages. The defence successfully argued that chemical analysis should have been provided.
Held: Under the 1988 Act, the labels were statements and admissible as evidence. Under the 1994 Regulations, the ingredients did not need to be proved. Cases remitted.

Judges:

Lord Justice Brooke and Mr Justice Bell

Citations:

Gazette 07-Nov-2002, [2002] EWHC 2028 (Admin)

Links:

Bailii

Statutes:

Medicines Act 1968 58(2)(a) 67, Medicines (Veterinary Drugs)(Prescription Only) Order 1991, Marketing Authorisations for Veterinary Medical Products Regulations 1994, Criminal Justice Act 1988 24(1)

Crime, Health, Evidence

Updated: 06 June 2022; Ref: scu.177380

Leslie Tiwari v The State (Appeal No 76 of 2001): PC 29 May 2002

(Trinidad and Tobago) The defendant appealed convictions for rape and other offences based upon identification evidence. He had not been represented at the trial. He had not been warned of his freedom to call witnesses.
Held: Where a defendant was unrepresented, the court should warn him of the advisability of having professional representation. Witnesses whose evidence might have been called by him would have given admissible and relevant evidence. The case was remitted for that evidence to be admitted, and the conviction re-examined by the Court of Appeal of Trinidad and Tobago. Time spent in prison after a notice of appeal has been lodged with the Board, should count toward time served.

Judges:

Lord Nicholls of Birkenhead Lord Hutton Lord Millett Lord Scott of Foscote Sir Andrew Leggatt

Citations:

[2002] UKPC 29, (Appeal No 76 of 2001)

Links:

PC, PC, Leslie Tiwari v. The S’ target=’_n’>PC, Bailii, PC

Jurisdiction:

Commonwealth

Citing:

Cited – Regina v Turnbull and Another etc CCA 9-Jun-1976
The defendants appealed against their convictions which had been based upon evidence of visual identification.
Held: Identification evidence can be unreliable, and courts must take steps to reduce injustice. The judge should warn the jury of . .
Cited – Regina v Carter (Josef) 1960
The defendant appealed against his conviction. Though unrepresented at trial, the judge had not informed him of his opportunity to call witnesses. Counsel had failed to attend and an adjournment has been refused.
Held: The appeal succeeded. A . .

Cited by:

Cited – Kumar Ali v The State (Appeal 56 of 2004) and Leslie Tiwari v The State PC 2-Nov-2005
PC (Trinidad and Tobago) The Board was asked to determine the date from which an unsuccessful appellant’s sentence should run. Pending an appeal or whilst on remand, a prisoner would be held in less demanding . .
Lists of cited by and citing cases may be incomplete.

Crime, Commonwealth, Evidence

Updated: 06 June 2022; Ref: scu.172279

Regina v Nolan: CACD 15 Feb 2002

The defendant was accused of murder. He had been identified by a witness who knew him, but the witness himself was murdered before the trial. The court allowed the prosecutor to read the deceased witness’ statement. Another witness for whom an ID parade had been held had only seen the defendant from the rear, but the defence were not informed of this before the parade.
Held: The scheme of the code required an identification parade if identification was disputed, but it was also required before a parade that the officer believed it would be useful, and the suspect consented. There could be no requirement to inform a suspect of the angle from which the suspect had been seen. The consent was not as to the identification, but the process of the parade, and therefore it did not affect the fairness of introducing the evidence. As to the admission of the evidence of the deceased witness, it was more than a fleeting glimpse, and no counsel would wish to cross examine such a witness in great depth. The conviction was safe.

Judges:

Lord Justice Longmore Mr Justice Gibbs And The Recorder Of Leeds

Citations:

[2002] EWCA Crim 464

Links:

Bailii

Statutes:

Code of Practice for the Identification of Persons by Police Officers (Code D of the Police and Criminal Evidence Act 1984), Police and Criminal Evidence Act 1984, Criminal Justice Act 1988 26

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Director of Public Prosecutions, ex parte Lee Admn 18-Mar-1999
Application for judicial review of CPS decision on disclosure of evidence before committal.
Held: The court recognised an ongoing duty of disclosure from the time of arrest. At the stage before committal, there are continuing obligations on . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence, Police

Updated: 05 June 2022; Ref: scu.167999

Jaura v Ahmed: CA 21 Feb 2002

The applicant sought damages for the wrongful termination of her lease by the respondent. The landlords re-entered in default of payment of the rent. The premises had been sub-let, and she sought damages for the loss of rental profits.
Held: The judge had admitted evidence which was not in formal form, but it was within his discretion to do so. The judge was wrong to award the capital value of the lease in addition to the loss of profits. He had awarded simple interest on the damages at 8% rather than the overdraft rate paid by the claimant. The court decided that the rate payable should reflect better the real cost of a small businessman borrowing that money, and allowed the appeal to that extent, but not compounded.
Rix LJ dealt with the question of setting the interest rate by first referring to Chitty on Contracts: ‘In business contexts, the rate of interest should reflect the current commercial rate. The approach of the Commercial Court is to award interest at a rate which broadly represents the rate at which the successful party would have had to borrow the amount recovered over the period in question.’ and then noted that a rate of 1% above base rate had become the usual rate adopted by the Commercial Court, albeit that this was ‘only a presumption’ and could be varied up or down to meet the fairness of the parties’ particular situation.

Judges:

Lord Justice Potter, Lord Justice Mummery, And, Lord Justice Rix

Citations:

Times 18-Mar-2002, [2002] EWCA Civ 210

Links:

Bailii

Statutes:

Civil Evidence Act 1995 2(4), Supreme Court Act 1981 35A

Jurisdiction:

England and Wales

Cited by:

Cited – Douglas and others v Hello! Ltd and others ChD 23-Jan-2004
. .
Cited – Aerospace Publishing Ltd and Another v Thames Water Utilities Ltd CA 11-Jan-2007
A substantial private archive of valuable books had been damaged when the defendant’s water mains burst. The court was asked to assess the value.
Held: The water company’s appeal failed save to a small extent. The articles were of substantial . .
Cited – Bim Kemi Ab v Blackburn Chemicals Ltd CA 24-Jun-2003
It had been argued by the claimant in written submissions (although not maintained orally) that an order for payment of pre-judgment interest on costs should never be made. As to an award of interest on costs:- ‘In any event in principle there seems . .
Cited – Jones and Others v Secretary of State for Energy and Climate Change and Another QBD 3-May-2013
The claimants sought an order for pre-judgment interest on the disbursements incurred in this group litigation. The clients were liable for payment of the disbursements under the conditional fee agreements, and in this case these amounted to over . .
Lists of cited by and citing cases may be incomplete.

Evidence, Damages

Updated: 05 June 2022; Ref: scu.167646

Dennis Pritchard Evans v Tiger Investments Limited, David John Moore: CA 20 Feb 2002

The first defendant appealed a judgement that it was responsible to the claimant for a loan taken out by the second defendant, one of its shareholders. He had said it was for the company, and he had been found not personally responsible. Land had been purchased in the second defendant’s name, he said, only for convenience in a speedy transaction, and the charge had been executed by him for the company.
Held: The judge had evidence sufficient to establish that the land was being purchased for the first defendant. The appellants sought to introduce new evidence at appeal. The Ladd principles on admission of evidence at appeal, are that the evidence was not with reasonable diligence available for the trial; that the evidence would have an important influence, and that it was credible. In this case the evidence could have been obtained. Concentrating on the justice as between claimant and defendant, there was no purpose in relaxing that principle.

Judges:

The President, Lord Justice Potter, And, Lord Justice Kay

Citations:

[2002] EWCA Civ 161

Links:

Bailii

Statutes:

Civil Procedure Rules 52.11(2)

Jurisdiction:

England and Wales

Citing:

Applied – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Lists of cited by and citing cases may be incomplete.

Company, Land, Evidence, Civil Procedure Rules

Updated: 05 June 2022; Ref: scu.167633

Mason, Wood, McClelland, Tierney v Regina: CACD 13 Feb 2002

The appellants appealed their convictions on two grounds. First the judge who had heard the case was an acquaintance of the chief constable of the investigating force, and second evidence had been admitted of tape recordings of non-privileged conversations between defendants whilst in the police station. The Chief Constable had authorised the covert operation, and his evidence was subject to challenge.
Held: The judge had properly disclosed his acquaintance with the Chief Constable. He had sought advice from the Senior Presiding Judge after objection was taken, and would keep the question under review.
When testing for bias, the court should ask whether in all the circumstances a fair-minded and informed observer would conclude that there was a real possibility that the tribunal was biased. In this case there was no reason to suspect bias.,br /.As to the tapes, the general approach is not necessarily to exclude evidence because it has been obtained in a way which is contrary to law or contrary to rules contained in the Codes of Practice under PACE. In this case PACE had not been complied with, since other methods of investigation had not been properly tried. The 2000 Act had changed the law, but such tapes would have been admissible before the Act. There was no sufficient unfairness to justify exclusion under PACE. The judge had given a direction about the failure of the defendants to give evidence without allowing either counsel to make submissions, and had erred. The direction should normally follow the Judicial Studies Board guidelines, however in this case, the departure made no difference. Appeal denied.
Lord Woolf said: ‘paragraph 4.3 of a draft code of practice [to be issued under s.71 of RIPA] indicates that a prison cell is within the definition of residential premises. We have heard no argument as to this but even if a prison cell falls within the definition, it does not follow that a police cell is necessarily residential. Further clarification is in our judgment desirable, though we recognise that the existence of RIPA has materially improved the situation and it is certainly desirable that what happens in police cells be treated as intrusive surveillance.’

Judges:

The Lord Chief Justice of England and Wales, Mr Justice Mitchell, And, Mr Justice Keith

Citations:

Gazette 21-Mar-2002, [2002] EWCA Crim 385, [2002] 2 Crim App R 38

Links:

Bailii

Statutes:

Police and Criminal Evidence Act 1984 76 78, Human Rights Act 1998, European Convention on Human Rights 5 6 8, Regulation of Investigatory Powers Act 2000 71, Criminal Justice and Public Order Act 1994 34

Citing:

Cited – Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
Cited – Regina v Bailey and Smith CACD 1993
. .

Cited by:

Cited – Plunkett and Another, Regina v CACD 13-Mar-2013
The defendants appealed against their convictions after admission of secret tape recordings made by the police in breach, said the defendants of the 2000 Act and unlawful. The recordings had been in the police van. The Crown said that this was not a . .
Lists of cited by and citing cases may be incomplete.

Administrative, Evidence, Human Rights, Criminal Practice

Updated: 05 June 2022; Ref: scu.167613

Voaden v Champion ( ‘Baltic Surveyor’ ): CA 31 Jan 2002

The ‘Baltic Surveyor’ was lost at its moorings in a storm. A neighbouring ship had been negligently secured, and freed itself and sank the Baltic Surveyor. The owner appealed findings as to the value of the boat, and securing pontoon. She asserted that the boat chosen for comparison had in fact been sold for more and had been in a lesser condition. The boat was of a unique and historical character.
Held: There had been an error as to the sale price of the boat chosen as a comparable. It was argued that the evidence sought to be admitted had been available at trial, and should not now be admitted. Following Ladd, the court applied three tests, that it had not reasonably have been available, that it would have been influential, and that it was credible. Those conditions applied, and a new value was assessed by the court. The appellants argued that the loss of the pontoon should have been treated as the loss of a building rather than a machine. The damages was the cost of replacing the pontoon, not the value of what was lost. The court found the judge’s assessment correct, and the damages were assessed on the basis of the remaining life of the pontoon as a chattel. It was not proper to award damages for loss of personal use in top of the award of the full value of the boat.

Judges:

Lord Justice Schiemann Lady Justice Hale And Lord Justice Rix

Citations:

[2002] EWCA Civ 89, [2002] 1 Lloyd’s Rep 623

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Voaden v Champion, ‘The Baltic Surveyor’ 2001
. .
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .

Cited by:

Cited – Robot Arenas Ltd and Another v Waterfield and Another QBD 8-Feb-2010
The tenant company had defaulted under the lease, and the landlord had retaken possession. The landlord discarded the tenant’s possessions, and the tenant now sued, saying that the landlords as involuntary bailees owed duties to the proper owner. . .
Lists of cited by and citing cases may be incomplete.

Transport, Evidence, Damages

Updated: 05 June 2022; Ref: scu.167537

Regina v Clive Louden Carass: CACD 19 Dec 2001

When a defendant was accused of an offence under the section, and wished to raise a defence under sub-section 4, the duty of proof placed on him by the sub-section amounted to a duty to bring sufficient evidence to raise the defence, and the section did not transfer the burden from the prosecution.
Held: To justify a transfer of the burden of proof, it had to be shown that this was required, and a persuasive burden rather than an evidential burden was not justified. There was no sufficient threat to society which required a higher burden. The words should be read to require the defendant to adduce sufficient evidence.

Judges:

Lord Justice Waller, Mr Justice Rougier and Mr Justice Stanley Burnton

Citations:

Times 21-Jan-2002, Gazette 27-Feb-2002, [2001] EWCA Crim 2845, [2002] 1 WLR 1214, [2002] 2 Cr App R 4

Links:

Bailii

Statutes:

Insolvency Act 1986 206 (1)(a)

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
Cited – Regina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .

Cited by:

Distinguished – Regina v Daniel CACD 22-Mar-2002
The defendant appealed a conviction for hiding assets from her receiver following her bankruptcy. He said that recent case law suggested that the burden of establishing the defence under section 352 was evidential only.
Held: The conviction . .
Cited – Norwood v Director of Public Prosecutions Admn 3-Jul-2003
The appellant a BNP member had displayed a large poster in his bedroom window saying ‘Islam out of Britain’. He was convicted of an aggravated attempt to cause alarm or distress. The offence was established on proof of several matters, unless the . .
Wrongly Decided – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Lists of cited by and citing cases may be incomplete.

Crime, Insolvency, Evidence

Updated: 05 June 2022; Ref: scu.167393

Regina v Dervish and Another: CACD 12 Dec 2001

The defendant had stayed silence at interview, and later at charge. During the trial, the judge ruled that the failure to answer questions at interview was inadmissible, but left to the jury the possibility of drawing adverse inferences from the silence at charge. He appealed.
Held: So long as the fairness of the trial was upheld, the judge was right in allowing a distinction between the two stages. The defendant had merely been put back at the position he would have been in but for the police failings, and had had full opportunity to explain at the trial why he had remained silent.

Judges:

Lord Justice Kay, Sir Ian Kennedy and Judge David Clark QC

Citations:

Gazette 21-Feb-2002, [2001] EWCA Crim 2789

Links:

Bailii

Statutes:

Criminal Justice and Public Order Act 1994 34(1)(a)

Jurisdiction:

England and Wales

Evidence

Updated: 05 June 2022; Ref: scu.167316

Regina v Pearce: CACD 11 Dec 2001

The defendant appealed against his conviction for murder. He said that the court had not allowed his alcoholism as a characteristic for the purposes of testing the defence of provocation, and that the evidence of his long standing partner should be treated as equivalent to that of a wife, making her evidence admissible but not compellable.
Held: As to the admission of evidence, that this was within the area of discretion allowed to convention states, and was a proper balance between the need for respect for family life, and the wider needs of the community. As to the alcohol abuse, there was no evidence of it having reached such a stage as to affect his control over how much he drank. The conviction stood.

Judges:

Lord Justice Kennedy, Mr Justice Hughes, And, Mr Justice Penry-Davey

Citations:

Times 21-Jan-2002, Gazette 21-Feb-2002, [2001] EWCA Crim 2834, [2002] 1 Cr App R 39, [2002] 1 WLR 1553

Links:

Bailii

Statutes:

Police and Criminal Evidence Act 1984 80(1), Homicide Act 1957 3

Citing:

Cited – X, Y and Z v The United Kingdom ECHR 22-Apr-1997
The court refused to find that the failure of United Kingdom law to recognise a female to male trans-sexual as the father of a donor insemination child, born to his partner and brought up as their child, was a breach of their rights to respect for . .
Cited – Regina (Director of Public Prosecutions) v Camplin HL 1978
The court considered the direction to be given as to the existence of provocation so as to reduce a charge of murder to one of manslaughter. The reasonable man in the definition should be one with the defendant’s mental condition. ‘The judge should . .

Cited by:

Cited – Bala and Others, Regina v CACD 10-May-2016
The court was asked whether parties to a polygamous marriage recognised in Nigeria could be exempt thereby from a charge as co-conspirators because of s2 of the 1977 Act. The judge had held the marriage invalid after finding that the defendant was . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence, Human Rights

Updated: 05 June 2022; Ref: scu.167064

Liverpool Roman Catholic Archdiocesan Trust v David Goldberg QC (No 3): ChD 6 Jul 2001

Where parties settled a matter after the draft of the judgment had been delivered to them, and the terms of the settlement required the non-publication of the judgment, the judge nevertheless retained the power to publish that judgment.
Held: The judge limited the judgment to that and the following issue. The defendant’s expert witness was a friend of the defendant, working from the same barrister’s set. He admitted his friendship for the defendant was closer than would be the case normally. The court disallowed admission of his evidence, since the risk of his evidence being coloured by this relationship was incompatible with the special duties owed to the court and all parties. However objective his evidence might in fact be, it was incompatible with the need for justice to be seen to be done.

Judges:

Evans-Lombe J

Citations:

Times 14-Aug-2001, Gazette 23-Aug-2001, [2001] EWHC Ch 396, [2001] 1 WLR 2337

Links:

Bailii

Statutes:

Civil Evidence Act 1972 3

Jurisdiction:

England and Wales

Cited by:

Cited – F and C Alternative Investments (Holdings) Ltd v Barthelemy and Another ChD 14-Jul-2011
The parties applied to the court for a conclusion to their action without the draft judgment being handed down and published, they having reached agreement.
Held: It was within the judge’s discretion and in this in the public interest for the . .
Lists of cited by and citing cases may be incomplete.

Evidence, Litigation Practice

Updated: 04 June 2022; Ref: scu.136127

Re B (A Child): CA 18 Oct 2017

The court heard a case in which in the course of a child residence dispute F had made and sought to have use before the court, covert recordings of interviews and telephone conversations with practitioners.
Held: The actual matters had been decided adequately without the recordings, but the court acknowledged both the difficulties arising and the absence of authority, and said that an initation would be made to the Family Justice Council to consider the issue.

Judges:

Sir James Munby P FD, King LJ

Citations:

[2017] EWCA Civ 1579

Links:

Bailii

Jurisdiction:

England and Wales

Children, Evidence, Litigation Practice

Updated: 02 June 2022; Ref: scu.597402

McQueen v Great Western Rly Co: CA 1875

If a prima facie case is made out capable of being displaced, and if the party against whom it is established might by calling particular witnesses and producing particular evidence displace that prima facie case, and he omits to adduce that evidence then the inference fairly arises, as a matter of inference for the jury and not a matter of legal presumption, that the absence of that evidence is to be accounted for by the fact that even if it was adduced it would not displace the prima facie case. But that always pre-supposes that a prima facie case has been established and unless we can see our way clearly to the conclusion that a prima facie case has been established, the omission to call witness who might have been called on the part of the defendants amounts to nothing.

Judges:

Cockburn C J

Citations:

(1875) LR 10 QB 569

Jurisdiction:

England and Wales

Cited by:

Cited – Liennard v Slough Borough Council QBD 15-Mar-2002
The claimant sought damages from the respondents who had been responsible for his education, for having failed to diagnose his learning difficulties. The school had recognised that he was underachieving, but diagnosis as to the reason was not easy. . .
Cited – Wisniewski v Central Manchester Health Authority CA 1997
The court considered the effect of a party failing to bring evidence in support of its case, as regards the court drawing inferences: ‘(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a . .
Lists of cited by and citing cases may be incomplete.

Evidence

Updated: 02 June 2022; Ref: scu.184029

Bennett and Augustus John v The Queen: PC 17 Jul 2001

(Grenada) The appellants had been convicted of a murder. The court of appeal, having accepted that admissions had been extracted wrongfully, and should not have been admitted, applied the proviso to confirm the conviction.
Held: The committee should not act as a second court of appeal as to the facts, and the judgment as to admissibility was not to be set aside. Nevertheless the proviso was wrongly applied, and the convictions must be quashed. When considering the need for a re-trial, the court should consider whether it would serve the interests of justice in Grenada. The case of Bennett was remitted to the court of appeal to consider a re-trial, but the committee did not order a re-trial, and much of the evidence available at the first trial was now inadmissible or discredited, but it was not for the committee to say what further investigation might reveal.

Judges:

Lord Slynn of Hadley, Lord Steyn, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton

Citations:

[2001] UKPC 37, Appeal No 74 of 2000

Links:

Bailii, PC, PC, PC

Evidence, Criminal Practice, Commonwealth

Updated: 01 June 2022; Ref: scu.159476

Vekaplast Windows (C I ) Limited v Barry Kenneth Jehan and Another (Guernsey): PC 13 Dec 1999

PC Guernsey (Appeal No.65 of 1997) The claimant company asserted that cheques drawn by a director in favour of his own company were for services which had not been delivered. He complained that a tape record of part of the a conversation with the defendant had not been admitted, and that three explanations of the additional charges were inconsistent.
Held: He had agreed to the approach taken by the court on the admission of the transcript, and the explanations of the additional sums charged were not explanations for the same sums, and were not therefore inconsistent. Appeal dismissed.

Judges:

Lord Browne-Wilkinson, Lord Mackay of Clashfern, Lord Nolan, Lord Clyde, Lord Hobhouse of Woodborough

Citations:

[1999] UKPC 53

Links:

Bailii, PC

Contract, Evidence

Updated: 01 June 2022; Ref: scu.159386