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Course of Study: LA3007 Evidence

Extract title: Chapter 2 ‘The aims of the law of evidence, sections B and C

Title author: Dennis, I.

Name of Publisher: Sweet & Maxwell

Publication year, Volume, Issue: 2020

Page extent: 26 - 39

Source title: The Law of Evidence

ISBN/ISSN: 9780414075597
 THE RATIONALIST MODEL OF ADJUDICATION

The principal attributes of adjudication, as described by Fuller,2 are that the

parties involved participate in the decision by presenting proofs and reasoned
arguments. By "proofs" Fuller means evidence designed to persuade the
adjudicator to uphold a particular party's factual contentions by drawing the
appropriate favourable inferences. The term "reasoned arguments" embodies the
idea that the dispute is to be resolved within an institutional framework governed
by rationality. In other words, the adjudicator is expected to decide the dispute by
the exercise of reason in determining the relevant issues of fact and law. Personal
prejudice and irrelevant reasons would not be acceptable grounds for decision.
This analysis fits best the adjudicator who is a professional judge; the judge
makes a public announcement of the decision and presents a reasoned
justification for it. Juries, on the other hand, also make public announcements of
their decisions, but do not give their reasons. To that extent the rationality of
juries has to be taken on trust. 3 For a variety of reasons it is thought that the
stability of jury verdicts should not be open to disturbance by parties subjecting
the reasoning of lay factfinders to detailed scrutiny.
2-002 From this perspective the question about the aims of the law of evidence needs to
be placed in the context of a wider question about the aims of adjudication. The
issue can be refo1mulated accordingly: what are the goals of adjudication and in
what ways does the law of evidence promote them? After discussion of this issue,
the chapter goes on to deal with the place of rights in the analysis of the aims of
the law of evidence. This involves consideration of the Human Rights Act 1998
and the effects of incorporation of the European Convention on Human Rights
into English law. The chapter concludes with an exposition of the theory that the
aims of the law of evidence are best accounted for in terms of promoting the
legitimacy of verdicts and judgments in adjudication. In summary, the theory
argues that legitimacy is an essential attribute of verdicts and judgments, and that
it is derived from a combination of their factual accuracy, their moral authority,
and their expressive value as official applications of the relevant law.

B. THE RATIONALIST MODEL OF ADJUDICATION

2-003 Consideration of the goals of adjudication, and the role of the law of evidence in
their realisation, can usefully begin with the theoretical model developed by
Twining, which he describes_as the "rationalist model of adjudication". 4 This
presents an ideal or prescriptive theory of adjudication ultimately based on
utilitarian principles but constructed in such a way as to allow for possible points

2
L. Fuller, "The Forms and Limits of Adjudication" ( I 978) 92 Harv. L.R. 353. See also the
penetrating discussion by D.J . Galligan, Due Process and Fair Procedures (Oxford: Clarendon Press,
1996), pp.241 onwards, who correctly describes Fuller's account of adjudication as tied closely to the
adversarial traditions of common law systems.
3 Although it should be noted that English adjectival law seeks to promote rationality of

decision-making by juries through requi rements for judicial directions on the issues the jury has to
decide and on the reasoning process jurors should use in evaluating certain types of evidence. These
requirements, and associated warnings, are discussed in later chapters.
4
W.L. Twining, Rethinking Evidence, 2nd edn (Camb,idge: Cambridge University Press, 2006),
pp.75 onwards.

(26)
 lHlo AJ.M:> Ut' IHJ:, LAW U!' DVIU l:.l~l.,t

of departure or disagreement. 5 Twining claims that the principal features of the

theory have by and large been accepted by the leading scholars in the
Anglo-American tradition of specialist writings on evidence. 6 The theory can be
concisely summarised by saying that it asserts that the fundamental aim of
adjudication is rectitude of decision-making. Rectitude is achieved by the correct
application of substantive law to the true facts of the dispute. The facts are
determined through the accurate evaluation of relevant and reliable evidence by a
competent and impartial adjudicator applying the specified burden and standard
of proof. There must be adequate safeguards against corruption and mistake and
adequate provision for review and appeal.
As Twining indicates, this is an instrumentalist model. 7 It presupposes that
rectitude of decision is a necessary condition of the administration of justice
under the law. The model then embodies the idea that the pursuit of truth through
reason is a necessary means of achieving rectitude. In the light of the model some
of the instrumental aims of the law of evidence become clearer. At a
straightforward level the law should aim to assist in the achievement of rectitude
by ensuring that as far as possible the evidence before the adjudicator is relevant
and reliable, that it is presented in a form which is designed to bring out truth and
discover untruth and that the appropriate burdens and standards of proof are
clearly specified.
For Bentham, from whose work Twining's model is ultimately derived, the
aim of rectitude was best achieved by adoption of what he called the Natural
System of Procedure. 8 This was a system characterised by the absence of
technical rules, particularly rules that excluded certain types of relevant evidence
or attempted to specify the relevance or weight of different pieces of evidence. It
was better, in Bentham's view, to adopt a general principle of admitting all
evidence probative of the factual issues in the case and to give the factfinder a
free hand in its assessment. Any "rules" of evidence should take the form of
guidelines addressed to the decision-maker's understanding rather than to the
will. In other words, the law should not attempt to control factfinding by having
rules dictating what evidence can be received and how it should be evaluated.
Instead the law should aim to improve the quality and accuracy of factfinding by
educating the factfinder about the factors affecting the relevance' and weight of
evidence, and by giving guidance as to appropriate reasoning in the evaluation of
evidence. Under this system, therefore, the reliability of evidence would
invariably be an issue for the factfinder to detennine. It would not be correct to
employ a risk of unreliability as a justification for "technical" rules of exclusion
or use of evidence. 9

5
Twining, Rethinking Evidence (2006), p.76.
6
Twining, Rethinking Evidence (2006), p.76.
7
Twining, Rethinking Evidence (2006), p.83.
8
J. Bentham, Rationale of Judicial Evidence, J.S. Mi ll (ed.) (London: Hunter and Clarke, I 827),
Yol.2, pp.425-434; Vol.4 pp.5-12, 428 onwards. Bentham's work on adjudication and evidence is
illuminatingly discussed by W.L. Twining, Theories of Evidence: Bentham and Wigmore (Stanford :
Stanford University Press, 1985), Ch. 2; and by G. Postema, Bentham and the Common Law Tradition
(Oxford: Clarendon Press, 1986), Chs l 0 onwards.
9
For a modern version of this argument see L. Laudan, Truth, Error and Criminal Law (Cambridge:
Camb1idge University Press, 2006).

[27]
 THE RATIONALIST MODEL OF ADJUDICATION

2--004 However, consistently with principles of utility, Bentham allowed for the
modification of his Natural System by reference to its costs. If the benefits of
receiving certain evidence in aid of rectitude were to be exceeded by the costs, in
terms, as he put it, of the "preponderant" vexation, expense or delay its reception
would cause, then it would be right to exclude the evidence from consideration.
This is a matter of fundamental importance. Bentham's concession to the claims
of these costs was a recognition of the necessity for constraints on a theory which
would argue for the free admission and evaluation of all probative evidence; a
theory, in other words, of "free proof'. 10 In a world of unlimited time and
resources, and with an absence of the intrusion of values competing with
rectitude, free proof might be an attainable ideal. 11 But, as Bentham himself
implicitly acknowledged, in a context of practical decision-making where these
conditions do not obtain, limits have to be set. Part of the aims of the law of
evidence is therefore to articulate and justify the constraints on the principle of
free proof which the rationalist model of adjudication might otherwise logically
adopt.
At this point it is helpful to note that rules of evidence may have different
kinds of significance. Rules with "epistemic" significance relate to the
truthfinding objective of adjudicative proceedings; they are intended to promote
truthfinding and hence rectitude of decision. There are numerous exan1ples of
such rules to be found throughout this book. Important examples include rules
dealing with evidence thought to present risks of unreliability, such as
identification evidence,12 and rules designed to ensure that expert evidence is
given only by persons appropriately qualified. 13 Rules with "non-epistemic"
significance are designed to give effect to values other than truthfinding which
may bear on evidential issues in the proceedings. Again this book contains
several examples. Important examples of such values include police probity in
the investigation of offences, 14 and the protection of confidentiality in the public
interest. 15 Giving effect to these values may generate rules allowing for the
exclusion of relevant evidence, or restrictions on questioning, which might
otherwise promote the truthfinding objective. Many rules of evidence have both
epistemic and non-epistemic significance. A notable example is the right to
confront witnesses 16; this serves the truthfinding objective by providing a means
of evaluating the credibility and reliability of a witness's testimony, and, as

10
See further, on freedom of proof and its assumptions, L.J. Cohen, "Freedom of Proof' in W.L.
Twini ng (ed.), Facts in Law (l983), pp. l , 10; Twining, Rethinking Evidence (2006), pp.208- 210; J.D.
Jackson, "Theories of Trnth Finding in Criminal Procedure: An Evolutionary Approach" (l 988) 10
Cardozo L.R. 475; A. Stein, "The Refoundation of Evidence Law" ( 1996) lX Canadian Journal of
Law and Jurisprudence 279. A fu ller account of Stein 's views is set out in his Foundations of
Evidence Law (Oxford: Oxford University Press, 2005).
11
But see Stein, Foundations of Evidence Law (2005) arguing that freedom of proof fai ls to deal
fairly with the risk of error in adjudicati ve factfi nding, and advocating a " refoundation" of evidence
law according to principles of risk-allocation.
12 Discussed in Ch.7.
13
Discussed in Ch.20.
14
Discussed in Chs 6 and 8.
15
Discussed in Ch.9.
16
Discussed in Chs I 5 and 16.

[28]
 THE AIMS OF THE LAW OF EVIDENCE

explained below, it also gives effect to an important "process value" of enabling a

party to participate fully in the adjudication.
The following discussion argues that accounting for the constraints on free
proof may involve both epistemi~ and non-epistemic consi~eratio~s. _The
discussion shows that the law of evidence frequently has competmg obJect1ves,
particularly where _epi~temic and n~n-epistemic consid~r~tions pull in d~fferent
directions. 17 A maJor issue then anses of how competitions between different
objectives should be resolved.

1. Constraints on freedom of proof

(i) Expense and delay

The aim of minimising expense and delay in adjudication is widely, if not 2-005
universally, accepted. Hearing any evidence involves the expenditure of time and
money. If the evidence is of no use, the expenditure is unjustified. It follows that
no one could reasonably object to a rule that evidence which is not relevant to the
litigation should be inadmissible. Irrelevant evidence is no use, and is therefore
wasteful of resources.18 Indeed a rule excluding irrelevant evidence is clearly
called for by the logic of the rationalist model itself. It follows that the
non-epistemic value of efficiency of legal process and the epistemic value of
truthfinding both support the exclusion of irrelevant evidence. The criteria of
relevance and the problems of evidence with marginal or an insufficient degree of
relevance will be considered in Ch.3.
The aim of cost-reduction may also be part of the rationale for other more
controversial rules of the common law. An example is the rule that, in general, the
statements of a witness made out of court that are consistent with present
testimony are not admissible. Consistency in a witness may be a virtue, but
traditionally such statements were regarded as having doubtful probative value
because of the risk that they might amount only to superfluous repetition or, in
the case of a party, be deliberately manufactured. 19 On this view such benefits as
they might have would therefore be generally outweighed by the expense and
delay incurred in admitting them. There were always exceptions to this general
rule, and these were enlarged by the Criminal Justice Act 2003, so that not only
are more previous statements by witnesses admissible but they are also capable of
being evidence of the facts stated rather than, going only to bolster the witness's
credibility. 20 However, s.126 of the Act gives the court a discretion to exclude

17
For illuminating discussion see L. Laudan, Truth, Error and Criminal Law: An Essay in Legal
Epistemology (Cambridge: Cambridge University Press, 2006).
18
This is quite apart from any otber "costs" it may have, such as distracting the factfinder and
confusing the issues; see Cb .3.
19
See, e.g. the much-quoted dictum ofC.B. Eyre in Hardy (1794) 12 St. Tr. 199 at [1093]: "[T]he
presumption ... is, that no man would declare anything against himself unless it were true; but that
every man, if he was in a difficulty, or in the view to any difficulty, would make declarations for
himself'. The topic of previous consistent statements is discussed in Ch . 14.
20
See Ch.14.

[29]
 THE RATIONALIST MODEL OF ADJUDICATTON

these, and any other, hearsay statements on the ground that their admission
taking account of the value of the evidence, would result in undue waste of
time. 2 1

(ii) Procedural fairness

2--006 Secondly, there is broad agreement that adjectival law, including the law of
evidence, should aim to promote minimum standards of procedural fairness. This
is a concept whose contours are somewhat blurred because it appears that it may
have different applications in different contexts. Nevertheless its central elements
can be stated with reasonable confidence. They derive from the principles of
natural justice22 and comprise the ideas that parties to adjudication should have
adequate notice of the allegations of their opponents, 23 a reasonable opportunity
to present their own cases (which implies reasonable opportunities to gain access
to evidence), a reasonable opportunity to challenge the evidence against them by
cross-examination of witnesses or otherwise, and finally that the adjudication
should be conducted within a reasonable time in public in an orderly and
impartial manner.24
Put in these te1ms, procedural fairness has both epistemic and non-epistemic
significance. First, it can be argued that procedural fairness is instrumentally
important for adjudication. It arguably promotes rectitude of decision by enabling
all parties to locate, produce and test all the relevant and worthwhile evidence on
the facts in dispute. 25 However, there are two countervailing considerations
which suggest that in some respects procedural fairness can operate as a
constraint on free proof. The first is that the procedure involved is the adversary
process. As noted in Ch.l, this allows parties to screen out from the adjudication
certain issues and evidence if they wish. From the standpoint of the adjudicator,
this freedom of the parties to circumscribe the scope of the enquiry may well
reduce accuracy of decision-making. Judges in civil cases are well aware of this,

21 See Ch. 17.

22
The basic princip les are spelt out in art.6 of the European Convention on Human Rights, discussed
in more detail below. See further D.J. Galligan, Due Process and Fair Procedures (Oxford: Clarendon
Press, 1996); M. Bayles, Procedural Justice (London: Kluwer Academic, 1990); P. Jackso n, Natural
Justice, 2nd edn (London: Sweet & Maxwell, 1979); P. Stein and J. Shand, Legal Va lues in Western
Society (Edinburgh: Edinburgh University Press, 1974), pp.77 onwards.
23
See, e.g. A v United Kingdom (2009) 49 E.H.R.R. 29; Secretary ofState.for the Home Department
v AF (No.3) [2009] UKHL 28; (2009) 3 All E.R. 643.
24
A fiuther principle might be that the parties have a right to know the reasons for the decision (see
Bayles, Procedural Justice (1990), Ch.4), but tbe principle is applied patchily in Engli sh law. Parties
to cases in the superior courts are entitled to a reasoned judgment but juries, lay magistrates and many
administrative tribunals do not give reasons. For discussion of the giving of reasons for administrative
decisions, see Gall igan, Due Process and Fair Procedures ( 1996), pp.429--437.
25
Zuckennan has described the principle of access to evidence as "particularly important in an
adversary system of adj udication where liti gants have to rely on their own efforts to find and present
evide nce": A .A .S. Zuckennan, "Privi lege and Public Interest" in C. Tapper (ed.), Crime Proof and
Punishment (London: Butterw01t hs, 198 1), p.248.

[30]
 THE AIMS OF THE LAW OF EVIDENCE

and occasionally comment on it. 26 The second point is that procedural fairness
embodies a principle of equality of opportunity for parties to litigation.27 But
parties are plainly not equal in their ability or their resources to conduct legal
disputes. Hence it is generally considered essential to allow them to be legally
represented; in tum, effective legal representation is generally considered to
require that parties should be able to have confidential access to legal aid and
advice. The doctrine of legal professional privilege permits parties to refuse to
disclose confidential communications with their lawyers. 2 8 Such communications
may contain information that a thoroughgoing inquiry into the truth of the matter
would think was important. Nevertheless the doctrine of legal professional
privilege enables this information to be withheld from the adjudication.
Secondly, procedural fairness is important for non-epistemic reasons as a
component in the acceptability of decisions. Parties who have had a full
opportunity to participate in the decision-making process are more likely to
accept the outcome as a legitimate resolution of the dispute. 29 Respect for full
participation as a "process value" may also help to make decisions more
acceptable to the public at large. 30 This is an aspect of the maxin1 that "justice
must not only be done but be seen to be done".

(iii) Avoidance of error

Thirdly, any adjudicative decision carries a risk of error. The rationalist model 2-007
makes a fundamental epistemological assumption that, in principle, the truth
about past events and present states of affairs is capable of being accurately
inferred from evidence. 3 1 However, it must be recognised that the evidence
presented by the parties may be incomplete or unreliable, or may be evaluated
incorrectly. Mistakes can then occur. If the mistake is of such a kind that it results
in a wrong decision (whether wrongful conviction, acquittal or judgment) a
miscarriage of justice takes place. Rectitude of decision is not achieved.
Therefore an important aim of the law of evidence is to allocate the risks of error
in the adjudicative process so as to minimise the chance of a miscarriage of

26
See, e.g. Air Canada v Secretary ofState for Trade [1 983 ] 2 A.C. 394 at 438, per Lord Wi lberforce:
"It often happens, from the imperfection of evidence, or the with holding of it, sometimes by the party
in whose favour it would tell if presented, that an adj udi cation has to be made whi ch is not, and is
known not to be, the whole truth of the matter" .
27
"Equal ity of ann s" is an essential element of the right to a fa ir trial under art.6 of the ECHR: Xv
Federal Republic of Germany ( 11 51/6 1) ( 1962) 7 Collection of Decisions of the European
Commission ofHuman Rights J 18. See further below.
28
See Ch. I 0.
29
Bayles, Procedural Justice (1990), pp.127- 135; T. Tyler, Why People Obey the Law (Oxford:
Princeton Universi ty Press, 1990). This point is discussed more fully below.
0
' See R.S. Summers, "Evaluating and Improvi ng Legal Processes: A Plea for Process Values" (I 974)
60 Cornell L.R. l.
31
For discussion of va1i ous fonn s of scepticism about the law's epistemology see Twini ng,
Rethinking Evidence (2006), Ch.4. See also Z. Bankowski, "The value of truth : fact scepticism
revisited'' (I 98 1) 3 L.S. 257; and the discussion in Ch.4.

[31 ]
 THE RATIONALIST MODEL OF ADJUDICArION

justice. 32 The most obvious mechanisms employed for this purpose are the
burden of proof and the standard of proof. These are devices which, as explained
above, are an integral part of the rationalist model. They can be varied according
to the importance attached to avoiding particular types of erroneous outcome. The
high standard of proof required in criminal cases is intended to reduce the risk of
a wrongful conviction.
Constraints on free proof arise if it is decided that rules of admissibility and
use of evidence are necessary to avoid particular types of erroneous outcome.
Hence the need to reduce the risk of wrongful conviction is part of the
explanation of some of the more restrictive rules of criminal evidence. For
example, most people would consider a person's criminal record a relevant item
of evidence in deciding whether the person had committed a particular offence.
However, at common law it was generally excluded from evidence on the ground
that the risk of it being misused by the factfinder to the prejudice of the accused
outweighed the probative value it might have. 33 The reforms made by the
Criminal Justice Act 2003 were intended to result in greater admissibility of
defendants' criminal records, but the Court ofAppeal has made it clear that where
the record is admitted a specific direction to the factfinder is required in order to
prevent misuse of this evidence. 34 The detailed rules governing the obtaining of
statements from a suspect by the police are designed at least in part to ensure that
confessions are reliable, and to lessen the chance of a wrongful conviction.35
Many of these restrictive rules continue to attract controversy, either on the
ground that they are insufficiently protective of innocent accused, or that they are
over-protective of defendants at the expense of victims and the community in
general.

(iv) Pursuit of other values

2-008 Fourthly, it must be emphasised that accuracy of factfinding (via the pursuit of
truth) is not the only value at stake in the adjudicative process. As noted above,
non-epistemic values may make significant claims to protection, and these claims
may compete for priority with the value attached to truth-finding. An interest in
the protection of any of these values might call in a particular case for the
exclusion of certain evidence, or restrictions on questioning, to the detriment of
accuracy in factfinding. An illustration would be evidence of the contents of a
secret diplomatic despatch alleged to be defamatory of the claimant. If the
interests of the state protect this letter from disclosure to, and use by, the claimant

32 Australian Law Reform Commission, Report on Evidence (ALRC 39, Canben a, 1987), paras 35

onwards. See also Stein , Foundations of Evidence Law (2005) arguing th at all ocation of the risk of
e1TOr is the foundation principle of the law of evidence; Laudan, Truth, Error and Criminal Law
(2006).
33 See Ch.1 8.
34 Hanson [2005] EWCA Crim 824; [2005] 2 Cr. App. R. 299.
35 See Ch.6.

[32]
 THE AIMS OF THE LAW OF EVIDENCE

. litigation, the action will fail for want of proof of the libel. It follows that the
::w of evi_dence h~s a~ ~p~rtant objective of allocating priorities among
competing mterests m adJudicatlon. 36
This may well be a complex and controversial task. It is not an easy matter to
determine how high a value to place on truth-finding as an aid to rectitude of
decision. Unless criteria can be established to enable judgments about competing
interests to be made coherently and systematically there is a danger that the law
may develop in an unprincipled and inconsistent fashion. A further complication
is the constraints already referred to. How should the various claims of free proof,
avoidance of error, human rights, procedural fairness and competing interests be
determined? To take some concrete examples, how should the law of evidence
approach the question of a confession obtained by torture, or a claim by, say, a
rape victin1, that it is wrong in principle that the accused need not give evidence
at trial to answer a prima facie case? Adjusting competing claims can also be a
problem in civil contexts. For example, in what civil proceedings, if any, should a
person suspected of fraud have a privilege against self-incrimination?
A model of adjudication which is concerned only with rectitude of decision
supplies no answer to such questions, unless it is the robust response that the
implicit principle of free proof is overriding in all cases. But this stance is not
convincing. A law of evidence which, for example, abolished legal professional
privilege and which contained no special protections at all for the accused in
criminal cases would be unlikely to command much support. This is because it
would fail to give effect to values of individual autonomy that, in a liberal
democratic society, are strongly felt to be fundamental to the administration of
justice. As noted above, even Bentham allowed for modifications to his natural
system of procedure on the grounds of the avoidance of vexation, expense and
delay. However, as pointed out by Twining37 and echoed by Galligan, 38
Bentham's failure to define "vexation" left a large question about the extent of
the modification and the criteria for determining it. We turn therefore to the
teclmiques for resolving competing priorities.

2. Settling competing objectives

We can consider three possible approaches to this central issue of how to settle 2-009
competing objectives. The first is some reasonably comprehensive version of
Benthamite utilitarianism. This would begin by conceding a high value to
rectitude of decision, essentially for the reasons given by Benthan1; that because
the law raises expectations and enables people to regulate their conduct, it is
necessary to satisfy such expectations and maintain security and stability by
correct application of the law.39 It would then be necessary to consider the precise

36
The importance of this task bas increased with the incorporation of the ECHR. Many of the
Convention's rights now figure in litigation, and many conflicts of rights can emerge; a witness's right
to privacy under art. 8 versus a defendant's ri ght to exam ine witnesses against him under art.6(3)(d) is
a key example.
37
Twining, Theories of Evidence: Bentham and Wigmore (I 985), pp.91 - 94.
38
D.J. Gall igan, "More Scepticism About Scepticism" (1988) 8 O.J.L.S. 249, 253.
39
J. Bentham, Treatise on Judicial Evidence, E. Dumont (ed.) (London, 1825), p.2.

[33]
 THE RATIONALIST MODEL OF ADJUDICATION

mix of rules and discretion required to maximise accuracy of factfinding_4o

Finally this approach would acknowledge the existence of other social goals such
as the security of the state, or police propriety, and the need to establish how
those goals might be furthered or hindered by particular rules of evidence. A
complex calculation of overall gains and losses to utility would be required where
such goals conflicted with rectitude.
There are some difficult problems to be overcome with this approach. The
most fundamental is whether the whole enterprise is misconceived: how can one
meaningfully undertake a cost-benefit analysis of values which may be
incommensurable? It is hard to see, for example, how state security, or the
sensitivities of witnesses, can be weighed in the same currency as accuracy of
adjudicative decisions. This point underlies much of the criticism directed at law
reform and other official bodies which have purported to "balance" conflicting
interests in the criminal justice process. As Campbell, Ashworth and Redmayne
have argued, the metaphor of "balancing" sometimes turns out to be no more than
a rhetorical device for a conclusion, a value preference, put forward without
proper argument. 41 If the term "balancing" is to be used at all, it is better
understood as the description of a complex process of identifying relevant rights
and interests, explaining the criteria for inclusion and exclusion, and providing
justifying argument for different weights and priorities; all of this should be, in
Campbell, Ashworth and Redmayne's terms, "a properly researched, reasoned
and principled course of argument". Even then, the problems for a utilitarian of
carrying out this prescription on a systematic basis should not be underesti­
mated.42 Relatively few objective data exist about the efficacy of different rules,
or no rules, in achieving accuracy of decision. It is even harder to determine the
effect of evidential rules on more generalised non-epistemic aspects of the public
welfare. The application of the rules is likely to be mediated by the occupational
culture of the social groups that administer the laws; the police are an obvious
case in point, as far as criminal justice is concerned. The result of these factors is
that even the most uncompromising utilitarian is likely to have to resort to
subjective judgments about what particular rules might achieve. 43 In relation to
the epistemic objective, a further problem is whether to give different weight to
different interests in formulating the law and, if so, how this is to be done. If a
wrongful conviction is considered to be a worse evil than a mistaken acquittal,
does it follow that special precautions should be taken to prevent it? What sort of
precautions should they be? Is there an acceptable level of risk of wrongful
conviction? If all possible steps were taken to eliminate the risk, would the price
in terms of unjustified acquittals be too high? There is plainly much scope for
disagreement on these questions where a consequentialist analysis is employed
that takes no account of individual rights.

40 Galligan, "More Scepticism About Scepticism" (1988) 8 O.J .L.S. 249, 256-257.
41
E. Campbell, A. Ashworth and M. Redmayne, The Criminal Process, 5th edn (Oxford: Oxford
University Press, 2019), pp.42-44.
42
Galligan, "More Scepticism About Scepticism" (1988) 8 O.J .L.S. 249, 258.
43 The Auld Review, noted in Ch.J, offers many examples of such judgments on a whole range of

criminal justice issues.

[34]
 THE AIMS OF THE LAW OF EVIDENCE

C. INDIVIDUAL RIGHTS AND THE LAW OF EVIDENCE

1. The foundation values for individual rights

An alternative to utility as a method for settling objectives and ordering priorities 2-010
may be based on the notion of rights in legal process. This approach switches the
primary focus of the _law from _generalised pu?lic welfare to the pr?te~ti_o n of
individual interests. Rights theonsts argue that nghts are possessed by md1v1duals
and they derive from decisions to attach high values to certain individual
interests. The essence of a right, as elaborated by Dworkin, 44 is that it enjoys a
high level of legal protection and is not to be freely traded against generalised
social goals.
The justification for particular rights will be found in the moral and political
values of the society in question. It will frequently be necessary to explore these
to determine the nature and importance of the interest to be protected by the right,
and to decide on the appropriate form and extent of the legal protection
constituting the right. It is not the purpose of this chapter to offer a general
jurisprudential analysis of rights in legal process; but it is helpful to consider the
values which provide the foundation for two rights which are central to debates
about the aims of the law of evidence, particularly criminal evidence. These
rights are, first, the right of an accused person not to be wrongly convicted of an
offence, and, secondly, the right of any person to a fair hearing in the
determination of that person's civil rights and obligations and of criminal charges
against him. Both of these rights are clearly recognised in English law. They have
been strengthened, and possibly enlarged, by the formal incorporation into
English law of the ECHR. Article 6 of the Convention sets out expressly the right
to a fair trial. The right against wrongful conviction does not appear in express
terms in the Convention, but it is implicit in arts 5 and 7 relating to the right to
liberty, and to no punishment without law, respectively.
The issues raised by incorporation of the Convention, and about the scope of
art.6 in particular, are considered later. It is helpful in understanding these issues
to have some appreciation of the foundation values which underlie human rights
instruments in their application to adjectival law. Accordingly, a brief summary of
these is given, and we will then consider further the right against wrongful
conviction. The next section of the chapter will return to the ECHR.
Ideas drawn from dominant streams of Western political and legal philosophy lie 2-011
at the heart of international human rights law. International human rights
instruments are founded on the doctrine of the rule of law, and on a conception of
the individual as an autonomous moral agent who is accorded an entitlement to
certain fundamental rights. The principles involved are familiar ones in
Anglo-American jurisprudence. A lucid statement is provided by Maher, 45
summarising Lon Fuller's conception of law:

44

45
R.M. Dworkin, Taking Rights Seriously (London: Gerald Duckworth & Co Ltd, 1977).
G. Maher, "Natural Justice as Fairness" in D.N. McConnick and P.B.H. Birks (eds), The Legal
Mind: Essays.for Tony Honore (Oxford: Clarendon Press, I 986), pp.103, I14.

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 INDIVIDUAL RIGHTS AND THE LAW OF EVIDENCE

"law as a special means of subjecting human conduct to the governance of rules necessarily
adopts a specific conception of moral personality, one which respects the autonomy of those
subject to the legal order."

Equally familiar to many lawyers and philosophers is the link between natural
justice and the rule of law, as restated most notably in the work of John Rawls.46
According to the liberal theory of dispositive justice, adjudicative decisions
affecting the rights of individuals must be made in accordance with procedures
that respect the autonomy of individuals. Maher again provides a useful
summary:

"just as the rule oflaw insists upon respecting the moral status of peop le generally, the rules of
natural justice receive their justification in the way in which they particu larise this general
principle in the application of general ru les to concrete cases . ..
The idea ... is that the best justification of natural justice lies in the moral requirement of
respect for the autonomy of the party affected by a decision; this leads to using a procedure
which gives him a role in it and can thus explain to him the basis on which the application of
the rule or policy to him is justified." 47

Maher has argued that the principle of fairness provides the best justifying
account of the rules of natural justice. Fairness in adjudicative contexts consists
partly of equality of treatment for the parties concemed, 48 which presupposes an
independent and impartial tribunal, and partly of informed participation in the
process of adjudicative decision.49 These broad principles of equality and
informed participation are important not just instrumentally (because they tend to
promote factually correct outcomes of decisions), but normatively, because
requirements of due process demonstrate respect for the dignity and rights of
individuals. 50

2. The right against wrongful conviction

2-012 Concern for individual autonomy is given further expression in the right against
wrongful conviction. This right is generally agreed to be a fundamental safeguard
of the liberty of the individual. English law recognises this right in the following
way. If it is established on the accused's appeal against conviction that the
conviction is unsafe, the Court of Appeal must quash the conviction. 51 This duty
used to be subject to the express proviso "that the Court may, notwithstanding
that they are of opinion that the point raised in the appeal might be decided in
favour of the appellant, dismiss the appeal if they consider that no miscarriage of

46
J. Rawls, A Theory ofJustice (rev. ed. 1999), pp.209-210.
47
Maher, "Natural Justice as Fairness" in McConnick and Birks (eds), The Legal Mind: Essays/or
Tony Honore (1986), pp.I 15, 11 6.
48
Bayles, Procedural Justice (1990), p.13 l.
49 See generally L. Fuller, "The Fonns and Limits of Adjudication" (I 978) 92 Harv. L.R. 353; R.S.

Summers, "Evaluating and Improving Legal Processes: A Plea for Process Values" (1974) 60 Cornell
Law Review I; D.J. Gall igan, Discretionary Powers (Oxford : Clarendon Press, 1986), pp.242,
332- 337.
50 R.M. Dworkin, "Principle, Policy, Procedure" in C. Tapper (ed.), Crime Proof and Punishment

(London : Butterworths, 1981), p.193.

51
Criminal Appeal Act 1968 s.2([) and (2), as substituted by the Criminal Appeal Act 1995.

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 THE AIMS OF THE LAW OF EVIDENCE

·ustice has actually occurred" (emphasis supplied). The proviso was dropped
~hen the Criminal Appeal Act 1995 substituted a new provision in accordance
with a recommendation by the Royal Commission on Criminal Justice to clarify
the basis on which the Court of Appeal should quash a conviction, but it was not
intended that any change of substance should be made. 52 The strength of the right
against wrongful conviction is shown by the fact that the correctness of the
conviction can be reopened many years later, long after the original appeal
process has been ex.hausted. 53 This is not normally the case with acquittals, where
the general rule is that there can be no second prosecution for the same offence, 54
or with judgments in civil cases unless there is evidence that the judgment was
procured by fraud,_55 or ~er~ are exceptional circ~n_ista~ces.~6 .
What is the basis of this nght? Wrongful conv1ct10n 1s plamly something to be
avoided on a standard utilitarian calculus because of its considerable costs, the
distress caused to the accused, his family and friends, and the alarm and
insecurity that knowledge of such convictions creates in society at large. But, in
an undifferentiated approach to maximising rectitude of decision, this set of costs
would then be weighed against other sets, particularly those resulting from failure
to convict the guilty. A "pure" utilitarian might argue that in deciding on the
optimal arrangement of rules of evidence, the legislator might simply trade off
one set of costs against the other, without attaching any special weighting to
either set. Some might say that the Criminal Law Revision Committee came close
to this approach in formulating its recommendations in the Eleventh Report.
On the other hand, a rights-based approach would argue that the value attached
to individual autonomy and liberty is such that wrongful conviction and
punishment of the innocent is an end particularly to be avoided; the moral harm
involved means that it is a significantly worse event than non-punishment of the
guilty. 57 On this view, avoidance of this outcome is a moral and political
imperative, and talk of weighing costs of outcomes, and indeed the use of
utilitarian calculations generally, is out of place. Furthermore, the argument
52
RCCJ Rep0tt, Ch.JO paras 27- 34.
53
The procedure usually requires a reference of the case back to the Court of Appeal by the Criminal
Cases Review Commiss ion: C1im inal Appeal Act 1995 s.9. For exceptional cases where the Court of
Appeal Crim inal Division has jurisdiction to reopen concluded proceedings in the absence of such a
reference see Yasain [20 15] EWCA Crim 1277; [2015] 2 Cr. App. R 28; Gohil; Preko [2018] EWCA
Crim 140; [201 8] I Cr. App. R. 30, holding that the principles stated in the civil case of Taylor v
Lawrence [2002] 2 All E.R. 353 (n.56) apply in crimina l proceedings also.
54
On the plea of autrefois acquit see Archbold, Criminal Pleading Evidence and Practice (2020 edn)
para.4-216; M. Friedland, Double Jeopardy (Oxford: Clarendon Press, I 969). There are two
exceptions: one for an acq uittal tainted by interference with or intimidation of a juror or witness
(Criminal Procedure and Investigations Act I 996 s.54), the other for an acquittal of a qualifying
offence where there is new and compelling evidence of guilt and it is in the interests of justice for the
defendant to be retried (Ciiminal Justice Act 2003 ss.75- 97).
55
Spencer Bower and Turner, Res Judicata, 2nd edn (London: Butterworths, 1969), pp.322- 330, and
the authorities there cited; Takhar v Gracefield Developments Ltd [2019] UKSC 13; [2019] 3 All E.R.
283.
56
CPR r. 52.30, confinn ing Taylor v Lawrence [2002] 2 All E.R. 353, to the effect that the Court of
Appeal or the High Court will not reopen a fina l determination of any appeal unless it is necessary to
do so in order to avoid real injustice; the circumstances are exceptional and make it appropriate to
~pen the appeal; and there is no alternative effective remedy.
See Dworkm, "Principle, Policy, Procedure" in Tapper (ed.), Crime Proof and Punishment (I 981),
p.l93; Galligan, "More Scepticism About Scepticism" (1988) 8 O.J.L.S. 249,260.

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 INDIVIDUAL RIGHTS AND THE LAW OF EVIDENCE

continues that if the legal system does recognise a right against an outcome of
wrongful conviction, then it ought to recognise in addition ancillary rights to
special rules that are designed to protect individuals against that outcome. In this
way a rights-based approach might justify particular rules of evidence on the
ground that they give effect to a special concern not to convict the innocent. The
burden of proof on the prosecution, the high standard of proof in criminal cases
exclusionary rules, exclusionary discretion, judicial warnings and a number of
other rules and procedures might all be accounted for in this way.
2--013 However, this approach does not necessarily dispose of all disputes about the
degree of legal protection to be afforded to the right against wrongful conviction.
Given that mathematical certainty of guilt is unattainable, the logical extreme of
this approach is that no one could ever be convicted of anything, in view of the
inescapable possibility of a mistake. Such an uncompromising stance would
destroy the criminal justice system. In setting the level of accuracy required for
conviction, and hence the number and scope of protections aimed at promoting
accuracy, the costs of the trial and the costs of acquitting the guilty cannot be
ignored. The more difficult it is made to convict any accused of an offence, the
greater the risk of acquitting a person who is in fact guilty. This point leads
Galligan to suggest that a principle of proportionality is required:

"the level of accuracy sought should represent a sense of proportion between the importance of
the substanti ve right [i.e. that a person should not be wrongly puni shed] and the resources that
society can be expected to make avail able in maintain ing it." 58

Such decisions of proportionality, he says, are difficult but in principle possible.

This is an important constraint on the rights-based approach. It envisages a
necessary limitation on pursuit of the goal of inhibiting conviction of the innocent
by means of rules of evidence; the limitation is derived from the social costs of
the rules, particularly the non-conviction of the guilty. Judgments about the
significance of these costs are not fixed, and they may shift from time to time
with changes in moral and political sentiment. This may in tum lead to pressure
to rest:J.ict or abrogate rules protective of the accused.
A further source of limits on the scope of protective rules is the idea of
victims' rights. The needs and entitlements of victims of crime were much
neglected by the criminal justice system generally until recent years. 59 Increasing
consciousness of the extent to which some victims have been treated unfairly by
certain rules of evidence has produced significant reform, including the
abandonment of some traditional protections for the accused. A good example of
the influence of these factors is the abolition of corroboration requirements for
the evidence of young children, and of complainants of sex offences.60 Until
relatively recently corroboration was required for the evidence of young children,
on the ground of the presumed unreliability of children as witnesses.61 Those
rules were abolished 62 partly as a result of research showing that children's

58 Gal ligan, "More Scepticism About Scepti cism" ( 1988) O.J.L.S. 249, 26 1.
59
See Campbell, Ashworth and Redmayne, The Criminal Process (20 19), p.49 and generally.
60 See Ch.15.
61
See I. Dennis, "Corroboration Requirements Reconsidered" [1 984] Ctim. L.R. 3 16, 330.
62 By the Cri mina l Justice Act 1988 s.34.

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 THE AIMS OF THE LAW OF EVJDENCE

evidence was more reliable than had been thought previously, 63 and partly
because of a growing sense that the rules unduly inhibited conviction of persons
guilty of serious offences against children. 64 In the case of adult complainants of
sex offences, powerful arguments were developed that the common law's
requirement for corroboration warnings about the evidence of complainants­
warnings designed to protect the accused against wrongful conviction-resulted
in unjustified acquittals of dangerous offender under-reporting of rape offences
and a general failure of the law to protect women. These consequentialist
arguments were reinforced by the objection that the requirement was unfair in
principle, demeaning to women and stigmatised them as inferior types of
witness.65 The warning requirement for complainants was abolished in 1994. 66
It seems, therefore, that the evidential procedures secured by the right against 2- 014
wrongful conviction are not absolute. They may be qualified by reference both to
their necessity and to their negative effects on rectitude of decision. In some cases
they may also yield to other social goals. 67 This reinforces the general point that,
although a rights-based approach starts from clearly defined priorities in the task
of settling the objectives of evidential rules, it cannot escape the need to
acknowledge the limiting influence of factors founded on general utility or on
competing rights . We need to bear this well in mind as we return to consider the
effects of incorporation into English law of the ECHR.

D. THE HUMAN RIGHTS ACT 1998

The Human Rights Act 199868 incorporated into English law the provisions of the 2-015
ECHR. The Act has had, and will continue to have, a profound impact on the
creation, interpretation and application of legislation and case law throughout the
whole of English law, and the law of evidence is no exception. Indeed, the law of
criminal procedure and evidence has proved to be one of the most significant
areas of contention as the implications of the Convention, and of art.6 in
particular, have been considered.
Before the Act came into force the Convention had the same formal status in
English law that it had had ever since the UK ratified the international treaty
63
See J.R. Spencer and R. Flin, The Evidence of Children, 2nd edn (London: Blackstone Press,
1993), Ch. 11 .
64
Spencer and Flin , Evidence of Children ( 1993).
65
See I. Dennis, "Corroboration" (1 984] Crim. L.R. 316; J. Temkin, Rape and the Legal Process, 2nd
edn (Oxford: Oxford University Press 2002), pp.255 onwards.
66
Criminal Justice and Publi c Order Act 1994 s.32.
67
e.g. the protection of poli ce sources of information may result in an accused being unable to call
witnesses or deve lop a particular line of cross-exami nation: see Ch.9. Similarly the accused is
restricted in the extent to which he can cross-exam ine a complainant of a rape offence on her previous
sexual history; the justification is fo unded on considerations of the right to privacy and the
undesirable consequences of this type of questioning in tenn s of the distress caused to complainants
and the discouragement of other complainants: see Ch.15.
68
The Act received the Royal Assent on 9 November .1 998. A substantial period of preparation was
allowed before the Act came fully into force on 2 October 2000. For comment on the consti tutional
implications of the legisl ation , see S. Fredrnan, "Bringing Rights Home" (1998) 114 L.Q.R. 538;
A.T.H . Smith, "The Human Rights Act and the Criminal Lawyer: The Constitutional Context" [ 1999]
Crim. L.R. 251.

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