Formative Plan Part A :

1) Introduction- Reiterate the courts legal system and evidential process seeks to prove
facts, incorporate the element of truthfulness, but point out its possible non-impartial or
biased nature stemming from personal interpretations (Hock Lai Ho, A Philosophy Of
Evidence Law Oxford University Press 2010. P51-52

2) Relevance – look at classic definition (R v Nethercott (2001) EWCA Crim 2535 as

example but also point out the test in Nethercott differs from Crim Procedure and
Investigations Act 1996 relating to unused material Will look at the relationship between
the accused and person bearing evidence in both time and space ( was she close enough
to get a view of the incident and there at the right time)
Look at form of evidence – real evidence by way of witness testimony
3) Admissibility- Examine the evidence on its merits – draw distinctions between the civil
and criminal evidence rules. Look at the historical development of admissibility. Outline
exclusionary rules under PACE S 76,78 Taking into account competence and
compellability of witness and any issues that could arise. Use R v Renshaw(1989) to show
general rule that all persons are presumed competent and all competent witnesses are
compellable. Due to the age of the witness, can examine the rules governing competence
in light of incompetence due to unreliable memory
4) Weight- Examine the issues arising of the strength of the evidence, its “probative
value” Examine the process of voire dire hearing and its drawbacks when magistrates are
arbiters
5) Burden and Standard of proof – Look at whom the burden to discharge rests and the
standard to which the evidence must meet for conviction in Civil vs Criminal (Examine
norms and identify exceptions (not in depth) use Woolmington v DPP (1935) –looking at
“golden thread” and reverse burdens (not in depth but draw its incompatibility to Art.6
ECHR and examine R v Foye (2013)

6) Examine witness process - Examination in Chief Refreshing Memory-Cross

examination  re examination
Examine rule against leading questions- generally against but evidence can be
admissible with weight reduced Moor v Moor (1954)
Refreshing memory rules CJA 2003 (matter is up to judge not witness Britton (1987))

Unfavorable vs hostile witness : will use R v Prefas and Pryce [1987] as example for
unfavourable witness due to similarity in problem question ; inconsistency with
description
7) Right to silence - Rights based principle- Use R v Alladice (1988) and R v Parris
(1989) to illustrate due to similar facts (right to silence) and look briefly at qualified
right vs absolute in other legal systems (maybe R v Condron and Condron (1997)
Look at the CJPO 1994 and adverse inference S34-7 note that similar provisions are
restated in S11 CPIA.
Note that the central issue is not failure to say anything, but to say anything that he
could reasonably rely on for his defence. Use R v Essa 2009 to illustrate S34 inference
was correct at trial to be drawn. Also point out that a defendant who fails to say
anything but also does not seek to rely on evidence on his defence cannot be held to
adverse inference R v Moshaid (1998)

Part B

1) Intro – Give definition of hearsay (Subramaniam v Public Prosecutor(1956))and look

at historical development in common law – traditionally held to be inadmissible to has
since radically changed through the twentieth century till Civil Evidence Act 1995 – and
by CJA2003
Also look at what constitutes hearsay eg Documents (Roberts v DPP (1994), direct and
indirect etc (point out multiple hearsay as inadmissible under CJA 1998 but allowed in
CJA 2003)

2) Civil and Criminal – Look at CJA 2003 and CEA 1995, Civil easy and straight forward.
Criminal look at statutory exemptions

Examine CJA 2003 S114 Admissibility of hearsay evidence – evolved directly from law
commission findings

3) Admissibility – Largest argument

Against – R v Sharp (1988) No logically probative value For – Hansard HL vol 654(nov
2003)

This looks at no Probative value vs should be allowed all “value to truth seekers” will be
contrasted in later discussion on middle round found ny CJA2003 which reduces weight
placed on hearsay without entirely making it inadmissible.

4) Clash with Art 6(3) ECHR-

Look at Al-Khawaja and Tahery v UK (2012)

And Luka v Italy (2001) – acknowledged it was infringing but accepted it was necessary
5) CJA 2003- Examine how the CJA2003 on recommendations from law commission
abolished the entire hearsay rules previously except for the statutory exceptions and made
hearsay generally inadmissible.
Examine the developments of the exceptions Res gestae etc