Admissibility and exclusion of evidence in criminal proceedings—overview

The question of admissibility of evidence is whether the evidence is relevant to a fact in issue in the
case. Admissibility is always decided by the judge and all relevant evidence is potentially admissible,
subject to common law and statutory rules on exclusion. Relevant evidence is evidence of facts in
issue and evidence of sufficient relevance to prove or disprove a fact in issue. What is a fact in issue
will depend upon what the elements of the offence charged are and, as a result, what the
prosecution has to prove and any defence put forward by the defendant.

Exclusion of unfair evidence

Even where evidence is admissible, it may be excluded in certain circumstances under the court’s
common law powers and more frequently under section 78 of the Police and Criminal Evidence Act
1984 (PACE 1984). Exclusion will often be related to the way the evidence has been obtained.

The court may exclude evidence under PACE 1984, s 78 where, having regard to all the
circumstances, including circumstances where the evidence was obtained illegally, improperly or
unfairly, the admission of the evidence would have such an adverse effect on the fairness of the
proceedings that it ought not to be admitted. This only applies to prosecution evidence.

An application to exclude evidence may be based on a submission that the evidence has been
obtained in circumstances where there has been a significant and substantial breach of the PACE
Codes of Practice. Even where there are such breaches, exclusion will only be ordered where the
breach affects the fairness of the proceedings. The discretion to exclude must be based on the
particular circumstances of the case and the judge’s assessment of the adverse effect on the fairness
of the proceedings.

Applications to exclude evidence under s 78 will be considered by the judge, in the absence of the
jury. The application should be made before the evidence is adduced. Sometimes a voir dire will be
necessary.

See Practice Note: Exclusion of unfair evidence in criminal proceedings which explains the test for
exclusion of evidence under PACE 1984, s 78. It includes information on applications to exclude
evidence on grounds of breach of PACE 1984 Codes of Practice and tainted interviews. This Practice
Note also explains how to make an application to exclude video-recorded evidence-in-chief and to
exclude evidence obtained by surveillance. It covers the procedure for making an application to
exclude evidence and voir dire.

Confessions

A confession is broadly defined in the PACE 1984, s 82(1) as any statement which is wholly or partly
adverse to the person who made it.
There is no requirement that the confession must be made to someone in authority such as a police
officer and PACE 1984 provides that the 'statement' can be made by 'words or otherwise'.

A confession may be 'wholly or partly' adverse to the maker and is referred to as a mixed statement
because it is partly a confession and partly exculpatory or self-serving. Where this is the case the
court will admit the whole statement so that the prosecution cannot rely on the incriminating parts,
whilst excluding those parts favourable to the defendant.

The Criminal Justice Act 2003 (CJA 2003) expressly preserves the common law exception to the rule
against hearsay in respect of confessions. A confession will usually be hearsay if the confession is
relied upon to prove the truth of its contents. See Admissibility of hearsay—preserved common law
exceptions—Confessions

Despite the preservation of the common law exception to the rule against hearsay in respect of
confessions, the admissibility confessions is governed by PACE 1984 and the CJA 2003 expressly state
that a confession by a defendant will not be admissible unless it is admissible under PACE 1984, s 76.

Under PACE 1984, s 76, a confession may be admissible in criminal proceedings if it is relevant to any
matter in issue in the proceedings and it does not fall within a category of evidence which must be
specifically excluded by the court. PACE 1984, s 76 provides that a confession must be excluded
(even if it is true) if:

it is represented to the court that the confession was obtained by:

oppression

as a result of 'anything said or done' which was likely in the 'circumstances existing at the time' to
render the confession unreliable, or

except to the extent that the prosecution proves beyond reasonable doubt that the confession was
not so obtained
•

the court of its own motion requires proof that the confession was not so obtained

The prosecution do not need to prove the admissibility of a confession unless the defence represent
to the court that it is inadmissible by virtue of PACE 1984, s 76.

See Practice Note: Confessions which covers the meaning of a confession under the PACE 1984 and
the mechanisms available to regulate the admissibility of such evidence in a criminal trial. It explains
what a confession is, what are mixed statements, the admissibility of confessions and the exclusion
of confessions. It then covers the procedures for a PACE 1984, s 76 application and excluding
confessions under PACE 1984, s 78.

Admissibility of hearsay evidence

Hearsay is a statement made other than in the present court proceedings which is relied on for the
truth of its contents rather than for some other purpose. The maker of the statement must have
intended to cause someone either to believe the facts stated or to act on the basis that the facts
were as stated. It is very important to remember that hearsay evidence has not been given on oath
nor tested by cross-examination.

If a piece of evidence is classified as hearsay it is only admissible if it can pass through one or more of
four statutory gateways set out in CJA 2003. These are:

it falls within a statutory provision of CJA 2003

if the common law exceptions contained in CJA 2003 apply

if the parties agree

if it is in the interests of justice

The court has a general discretion to exclude hearsay evidence where the case for admitting it is
substantially outweighed by the case for excluding it.

See Practice Note: Admissibility of hearsay evidence which explains the admissibility of hearsay
evidence in criminal proceedings. It provides the definition from CJA 2003. Under CJA 2003 a
statement is broadly defined as any representation of fact or opinion by whatever means, made out
of court where the purpose of the maker of the statement is to cause another to believe or act on
the facts stated. Statements are only hearsay if they are relied on for their truth of the matter
stated, rather than for some other purpose. If a piece of evidence is classified as hearsay it is only
admissible if it can pass through one or more of four statutory gateways set out in CJA 2003, s 114(1)
(a)–(d). If the statement is original evidence (non-hearsay), the evidence is admissible as of right,
subject to relevance and fairness. This Practice Note includes the procedure to be followed by a
party wishing to rely on hearsay evidence under CrimPR, SI 2020/759, Pt 20.

See also: Bad character and hearsay.

Admissibility of defendant’s bad character

Evidence of bad character is evidence of, or a disposition towards, an offence (this includes
convictions and cautions) or other misconduct for which the defendant has not been prosecuted,
other than evidence relating to the offence in question.

If the evidence of misconduct falls within the statutory definition of 'bad character', it can only be
admitted if one or more of the seven gateways of admissibility under CJA 2003 applies. If the
evidence falls outside the definition, the statutory gateways do not apply and the evidence will be
admissible as of right, subject to relevance.

A party who wants to adduce evidence of a defendant’s bad character must comply with the
procedural requirements, including the service of notice in the prescribed form, contained in
CrimPR, SI 2020/759, Pt 21.

See Practice Note: Admissibility of defendant's bad character in criminal proceedings which
summarises the statutory gateways that govern the admissibility of a defendant’s bad character
under CJA 2003. The Practice Note also explains what is meant by ‘bad character’, what is excluded
from the definition of bad character, the different CJA 2003 gateways for admitting bad character
evidence including the relevance of bad character to prove guilt or untruthfulness or propensity, bad
character going to matter in issue between co-defendants, bad character to correct a false
impression, bad character to counter an attack on another person's character and cross-
admissibility. It also explains the procedural requirements for making an application to introduce or
oppose such evidence.

In Uganda legislation requires witnesses to adduce direct evidence in court. However, this may not
be possible in all cases and the law provides for circumstances in which hearsay may be admissible.
The Evidence Act is the main piece of legislation which governs the issue evidence. In this article, the
author relied on 539 cases in which the Ugandan High Court, Court of Appeal and Supreme Court
have dealt with hearsay evidence to establish the principles which these courts have developed on
this issue. This case law shows, inter alia, that there are three major issues that Ugandan courts are
still grappling with when it comes to hearsay evidence: the definition of hearsay; the admissibility of
hearsay (exceptions to the hearsay rule) and the probative value of hearsay evidence. The author
suggests ways in which courts can handle these issues.