Law of evidenceTimes 29 FebruaryRe [1996] 1 FLR 731Times 1 Decembersub nom M and R (Child Abuse: Evidence) [1996] 2 FLR 195Re (2007) Times 17 AugustOphelia, The [1916] 2 AC 206, [1915] P 129Times 31 October
Evidence and procedure
10.41The distinction between evidence and procedure is a result of history, not of principle. As Adrian Zuckerman explained in
Civil Procedure:
12nd edn, Thomson Sweet & Maxwell, 2006.By a quirk of history, however, rules of evidence came to be seen as representing substantive law rather than procedural law. It came to be accepted that procedural rule-making powers did not apply to rules of evidence. Matters of procedure were regulated by rules of court while questions of evidence were regulated by statute and common law. The manner of obtaining and presenting evidence was a matter of practice and procedure, and therefore governed by rules of court. But the admissibility of evidence was a matter for the ‘substantive law of evidence’, over which the rule-making bodies had no authority …
22nd edn, Thomson Sweet & Maxwell, 2006, para 1.45.10.42This is subject to contrary provision. TCEA Sch 5 para 10(2) provides:
(2)Rules may modify any rules of evidence provided for elsewhere, so far as they would apply to proceedings before the First-tier Tribunal or Upper Tribunal.
3See para 10.155 below. The law of evidence
10.43The law of evidence as applied in the courts may be summarised as a basic principle of relevance, which is subject to a series of exclusions based on a variety of considerations. The exclusions each have their own exceptions.
10.44In strict theory, the principle of relevance may not be part of the law of evidence, but merely presupposed by it, leaving to the law of evidence only the exclusions and their exceptions. This is not purely of theoretical interest. If it is correct and the ‘rules’ of evidence do not apply in a tribunal, it is only the exclusions that do not apply. It does not mean that the requirement of relevance is abandoned.
10.45The trend is towards admitting evidence rather than excluding it. Factors that once would have led to evidence being excluded are now relevant to the probative worth of the evidence. This is not a recent trend; it was noted as long ago as 1861
4By Cockburn CJ in R v Birmingham Overseers (1861) 1 B & S 763 at 767. and is now seen as the conceptually appropriate analysis.
10.46The issue for tribunals is whether particular exclusions apply as they do in the courts. There may be an express provision to this effect.
5For example: Social Security Act 1998 s16(5). The existence of a power to prescribe the evidence required, even if not exercised, may indicate that the strict rules do not apply.
6This was the view of Willmer LJ in R v Deputy Industrial Injuries Commissioner ex p Moore [1965] 1 QB 456 at 474. However, he may have misinterpreted the enabling power. It may have referred to the nature and content of the evidence to be produced rather than to the rules of evidence that applied. There is such an enabling power in the Social Security Act 1998 Sch 5 para 3.10.47There may be an express provision that the ‘strict’ or ‘technical’ rules do not apply or need not be applied. Even if there is no relevant provision, there may be authority that these rules do not apply,
7R v Deputy Industrial Injuries Commissioner ex p Moore [1965] 1 QB 456 at 488; Wednesbury Corporation v Ministry of Housing and Local Government (No 2) [1966] 2 QB 275 at 303; T A Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992 at 995. subject to the overriding obligation to ensure a fair hearing.
8Geoffrey Lane LJ in R v Board of Visitors of Hull Prison ex p St Germain (No 2) [1979] 1 WLR 1401 at 1409. An example is the decision of the Employment Appeal Tribunal in
Leighton v Construction Industry Training Board.
9[1978] ICR 577. The tribunal below had devoted time to considering the extent to which extrinsic evidence was admissible to help interpret a contract. The Appeal Tribunal deprecated this and said:
… the primary function of industrial tribunals is to do justice between employer and employee and not to raise barriers to a search for a fair and common sense answer by recourse to rules of evidence which in this field of litigation may be archaic and arcane.
10[1978] ICR 577 at 580.10.48The precise scope of these strict or technical rules has not been precisely delineated. It may be that they vary according to the nature of the tribunal, the proceedings or the issue. It is important to know what they are for two reasons: each tribunal needs to know what rules apply to it and legislation may make its application depend on whether or not the strict rules apply.
11For example: the Civil Evidence Act 1995 s11 provides that the Act applies to ‘any tribunal, in relation to which the strict rules of evidence apply’. As the Act deals with hearsay, this provision suggests that that rule is part of the strict rules of evidence.10.49Legal professional privilege and litigation privilege
12Legal professional privilege, but not litigation privilege, applies in non-adversarial jurisdictions: Re L (Police Investigation: Privilege) [1996] 1 FLR 731. Legal professional privilege does not apply to anyone other than a qualified lawyer: R (Prudential plc) v Special Commissioner of Income Tax [2011] All ER 316. are good examples of the difficulties that arise over the scope of the strict rules of evidence.
13Self-incrimination is another example. These privileges provide some protection for correspondence between a lawyer and a client and for material in respect of litigation. The client need not allow disclosure of the correspondence, material or their contents, although they may be proved by other evidence. This is a rule of evidence and a fundamental condition on which the administration of justice as a whole rests,
14Lord Taylor in R v Derby Magistrates’ Court ex p B [1996] AC 487 at 507; Toulson J in General Mediterranean Holdings SA v Patel [2000] 1 WLR 272 at 280–288. as well as a human right.
15R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563 at [7]–[8]. The privilege is that of the client, not the lawyer. The client may waive the privilege. Whether there has been a waiver depends on fairness and therefore on reliance, and should not be too readily found from casual references to that advice in negotiations.
16Bennett v Sunderland City Council [2009] ICR 479.10.50These privileges apply to tribunals. The Court of Appeal said they did in
Three Rivers District Council v Governor and Company of the Bank of England (No 6),
17[2004] QB 916 at [32]. although the Court was there concerned with inquiries rather than the sort of tribunals covered by this book. And the Upper Tribunal decided that they did in
LM v London Borough of Lewisham.
18[2009] UKUT 204 (AAC). As it is not just a rule of evidence but a human right, it is likely that it still applies even in those tribunals to which the strict rules of evidence do not apply.
10.51Even if the exclusory court rules of evidence do not apply, it is relevant to bear them in mind. They may exclude evidence for a good reason and that reason may be a relevant factor in the assessment of the evidence that is received.
10.52One basis for distinguishing the exclusions that apply to tribunals from those that do not is whether they are fundamental to the process of judicial inquiry. This was considered by the House of Lords in
Official Solicitor to the Supreme Court v K.
19[1965] AC 201. The House was concerned with whether the mother of a ward of court was entitled to see all the evidence available to the Official Solicitor. Lord Devlin said:
All justice flows from the prerogative. Save in so far as their powers are limited by statute, all judges do as they think fit. But what ‘they think fit’ is not determined by each individually and ad hoc; it is determined by their collective wisdom and embodied in judge-made rules. In the field of procedure these rules are those which Upjohn LJ in the Court of Appeal rightly called ‘the ordinary principles of judicial inquiry’. They include the rules that all justice shall be done openly and that it shall be done only after a fair hearing; and also the rule that is in point here, namely, that judgment shall be given only upon evidence that is made known to all parties. Some of these principles are so fundamental that they must be observed by everyone who is acting judicially, whether he is sitting in a court of law or not; and these are called the principles of natural justice. The rule in point here is undoubtedly one of those. There are also rules of less importance designed to aid in the administration of justice and to regulate procedure. They are rules of convenience rather than of principle; and the rule against hearsay … is among them. No one would suggest that it is contrary to natural justice to act upon hearsay.
But a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; otherwise it would become the master instead of the servant of justice.
20[1965] AC 201 at 237–238.The House decided that the mother did not have a right to see all the evidence in view of the nature of the proceedings and the issue.
10.53On Lord Devlin’s analysis, exclusions would apply if they are fundamental to the process of judicial inquiry in a particular tribunal.
10.54In
Mahon v Air New Zealand Ltd,
21[1984] AC 808. Lord Diplock also relied on natural justice as the key to the approach to evidence in a tribunal:
The rules of natural justice that are germane to this appeal can, in their Lordships’ view, be reduced to those two that were referred to by the English Court of Appeal in R v Deputy Industrial Injuries Commissioner ex p Moore [1965] 1 QB 456 at 488–490, which was dealing with the exercise of an investigative jurisdiction … The first rule is that the person making a finding in the exercise of such a jurisdiction must base his decision on evidence that has some probative value in the sense described below …
The technical rules of evidence applicable to civil or criminal litigation form no part of the rules of natural justice. What is required by the first rule is that the decision to make the finding must be based on
some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory.
22[1984] AC 808 at 820–821.10.55This goes too far. If it were right, no exclusions would apply. However, there is authority that some do, at least in some circumstances and for some tribunals: see above.
Relevance
10.56In
R v Greater Birmingham Supplementary Benefit Appeal Tribunal ex p Khan,
23[1979] 3 All ER 759. Lord Widgery CJ emphasised the probative worth of the material before the tribunal:
… it [the tribunal] should not regard itself as being bound strictly to the rules of evidence as they are applied in a court of law. It is open to the tribunal in this particular type of case to take into account all the circumstances, so far as they are probative, so far as they help to conclude proof of the truth in the individual case.
24[1979] 3 All ER 759 at 763.10.57In other words, in making findings of fact, a tribunal must rely on material that is relevant in indicating the likelihood of those facts.
25Lord Simon in Director of Public Prosecutions v Kilbourne [1973] AC 729 at 756.10.58Evidence is relevant if it satisfies two requirements. First, it must directly or indirectly
26Accepting that evidence may be indirectly probative overcomes the point made by Lord Simon in Director of Public Prosecutions v Kilbourne [1973] AC 729 at 756 that sometimes irrelevant evidence is admissible. be probative of a fact. Second, that fact must be material to an issue that the tribunal has to decide. Materiality is determined by reference to the legislation and case-law that governs the issue. In other words, evidence is relevant if it consists of factual information or material that assists the tribunal in making findings of fact material to the issues in dispute.
10.59The fact that evidence is relevant does not mean that it is necessarily admissible. It is a condition precedent to admissibility.
27R v Turner [1975] QB 834 at 841.Receivability and admissibility
10.60Logically these issues may seem prior to the issue of relevance. However, they are of less practical significance and the possible relevance of the evidence will be a factor that has to be taken into account when deciding them.
10.61Receivability and admissibility are separate in theory but related in practice. Evidence is receivable if the tribunal may hear, read or see the evidence. Evidence is admissible if the tribunal is allowed to take it into account making its findings of fact.
Receivability
10.62Generally, a tribunal should receive evidence from all parties rather than decide the case on the burden of proof or strike it out.
10.63In
George A Palmer v Beeby,
28[1978] ICR 196. an industrial tribunal had found that employees had been unfairly dismissed. It had heard evidence from the employer, but had made a decision without hearing evidence from the employees. The Employment Appeal Tribunal directed a rehearing. Kilner Brown J set out the principle that the tribunal should have followed:
The point of principle which arises in this case, which we consider to be of importance, is that where there is an arguable case and it is not a hopeless case, it is never satisfactory for an industrial tribunal to take a short cut and say that the employer has failed to shoulder the burden of proving that he had acted reasonably.
29[1978] ICR 196 at 198. See further in chapter 14.10.64In
Merelie v Newcastle Primary Care Trust,
30(2004) Times 1 December. the issue was when it was appropriate to strike out a case if a party is not represented. The court decided that if a party is not represented it may be appropriate to allow the case to be presented, however implausible it may seem on paper.
10.65A tribunal may refuse to receive evidence even though it is admissible, because it is merely repetitious.
31Jones v National Coal Board [1957] 2 QB 55 at 64; Wednesbury Corporation v Ministry of Housing and Local Government (No 2) [1966] 2 QB 275 at 302. It may also be appropriate to refuse to receive evidence that might impede rather than assist, the tribunal in making its decision. This was acknowledged by the Employment Appeal Tribunal in
Coral Squash Clubs Ltd v Matthews.
32[1979] ICR 607. Slynn J said that evidence should be received and assessed:
… unless it feels that the evidence which it is proposed to tender is such that its admission could in some way adversely affect the reaching of a proper decision in the case.
33[1979] ICR 607 at 611.10.66A tribunal may refuse to receive evidence that is not admissible, for example because it is irrelevant.
34Jones v National Coal Board [1957] 2 QB 55 at 64; Wednesbury Corporation v Ministry of Housing and Local Government (No 2) [1966] 2 QB 275 at 302; Bache v Essex County Council [2000] ICR 313 at 319 (Peter Gibson LJ) and 324 (Ferris J). However, it may be necessary to receive the evidence in order to decide whether it is admissible. Even if it is clear that the evidence is not admissible, the tribunal may prefer to receive the evidence as it is given and to deal with this issue when deliberating and giving its reasons for decision. This is likely to be the more efficient approach if the evidence is given by an unrepresented party who does not understand what is and is not relevant and who is not used to presenting information coherently and concisely. It is ‘well within a judge’s capability’ to avoid being influenced by irrelevant matters.
35Lord Phillips CJ in Swash v Secretary of State for the Home Department [2007] 1 WLR 1264 at [20]. See also the comments of, and passages quoted by, Buxton and Sedley LJJ at [29] and [32].Admissibility
10.67There is some authority that a tribunal should refuse to admit evidence that is unfair or prejudicial. In
Snowball v Gardner Merchant Ltd,
36[1987] ICR 719. the Employment Appeal Tribunal commented that:
It [a tribunal] may on the other hand decide not to admit evidence which would be admissible under the strict rules of evidence, if, for example it considered it unfair to do so, or as in the field of criminal law, its prejudicial effect outweighed its probative value.
37[1987] ICR 719 at 722.10.68However, article 6 does not allow a judge to exclude evidence that has substantial probative value.
38R v Musone [2007] 1 WLR 2467.Opinion evidence
10.69Section 3 of the Civil Evidence Act 1972 deals with opinion evidence. It applies to ‘civil proceedings’, which includes proceedings ‘before any tribunal, in relation to which the strict rules of evidence apply’.
39Civil Evidence Act 1972 s5(1). Section 3 provides:
(1)Subject to any rules of court made in pursuance of … this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.
(2)It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.
(3)In this section, ‘relevant matter’ includes an issue in the proceedings in question.
10.70These provisions distinguish between expert witnesses and others.
10.71Expert witnesses may give evidence on any matter within their expertise, but not on matters within ordinary human experience.
40R v Turner [1975] QB 834 at 841.10.72Reading subsection (1) together with the definition in subsection (3) produces the result that an expert may even give evidence on a matter that is the ultimate issue to be decided. This was confirmed by Butler-Sloss LJ in
Re M and R (Sexual Abuse: Expert Evidence).
41[1996] 2 FLR 195. The correct approach is this.
42[1996] 2 FLR 195 at 211. The issue goes to the probative worth, not the admissibility, of the evidence. If expert evidence on the ultimate issue is irrelevant, it should be excluded on that ground. If it is potentially relevant, it should be admitted and given appropriate significance. However, the decision of the ultimate issue is for the tribunal, not the expert.
10.73Evidence from an expert who has a close relationship with the party may not be admissible under subsection (1). The test was set out by Evans-Lombe J in
Liverpool Roman Catholic Archdiocesan Trustees Inc v Goldberg (No 3):
43[2001] 1 WLR 2337 at [13].I accept that neither section 3 nor the authorities under it expressly exclude the expert evidence of a friend of one or the parties. However, in my judgment, where it is demonstrated that there exists a relationship between the proposed expert and the party calling him which a reasonable observer might think was capable of affecting the views of the expert so as to make them unduly favourable to that party, his evidence should not be admitted however unbiased the conclusions of the expert might probably be. The question is one of fact, namely, the extent and nature of the relationship between the proposed witness and the party.
44The law is more tolerant of a relationship between counsel and an expert witness: see the comments of Arden LJ in Geveran v Skjevesland Trading Co Ltd [2003] 1 WLR 912 at [42].10.74An expert who is asked to give an opinion on the basis of facts found by the tribunal must accept those facts.
45Re J (Contact) (2007) Times 17 August.10.75If one party will not consent to an examination by the other’s expert witness, the tribunal has to balance the first party’s right to personal liberty against the second party’s right to choose its own witness.
46London Borough of Croydon v Y [2016] EWCA Civ 398, applying the principles in Starr v National Coal Board [1977] 1 WLR 63 to judicial review proceedings (age assessment). 10.76Expert evidence must be independent. It may be admissible despite a conflict of interests, but this must be disclosed so that the court or tribunal can decide if the evidence could be relied on.
47Toth v Jarman [2006] 4 All ER 1276.10.77An expert witness has immunity from civil proceedings in respect of evidence given in court and statements made for the purpose of giving evidence, but may be subject to discipline by a professional body.
48Meadow v General Medical Council [2007] QB 462.10.78Those who are not expert may only give their opinions in the way allowed by subsection (2). This covers opinions which are a compendious way of stating the cumulative effect of a number of observations that may not have registered in the witness’s mind individually. For example: a lay witness may give evidence that someone was depressed or anxious. That is not a medical opinion given as an expert diagnosis. Rather, it is merely a convenient way of expressing the numerous features of appearance and behaviour which led the witness to form that opinion.
10.79A finding of fact made in one proceedings is not admissible as evidence on the same matter in later proceedings.
49Secretary of State for Trade and Industry v Bairstow [2004] Ch 1 at [15]–[27]; Conlon v Simms [2008] 1 WLR 484. The reason is that the finding of fact represented the opinion of the fact-finder on the probabilities shown by the evidence.
10.80As the issue with opinion is relevance, all tribunals should logically apply the same rules as the courts, regardless of whether or not the strict rules of evidence apply. However, in practice there are two differences if the strict rules do not apply. First, it may be impractical in a tribunal hearing to exclude opinion evidence. The parties and their representatives may not understand the distinction and trying to limit the evidence may disrupt, and even inhibit, the flow of evidence. Second, evidence may be submitted from a wider range of ‘experts’ than would be accepted by a court. The same considerations that exclude and control expert evidence apply to all judicial proceedings. But, for both these reasons, freedom from the strict rules of evidence may change the point of impact of these considerations from admissibility to the assessment of their probative worth.
50For example: Hampshire County Council v JP [2009] UKUT 239 (AAC) at [34]; MN (Somalia) v Secretary of State for the Home Department [2014] 1 WLR 2064 at [35]–[36]. Tribunals should not reject expert evidence just because the expert is not available for cross-examination.
51MN (Somalia) v Secretary of State for the Home Department [2014] 1 WLR 2064 at [36]. More caution is required if the opinion is given by a member of the executive of the State, such as a police officer.
52RS v CICA [2014] 1 WLR 1313 at [7]–[8].Evidence that has been destroyed
10.81Evidence that would have been relevant to the proceedings may have been destroyed. This may have been done by a party to the proceedings, by the tribunal itself or by someone else. It may have been done routinely or exceptionally. And it may have been done with the intention of preventing its use as evidence.
10.82The loss of evidence by destruction may potentially operate to the benefit or the detriment of the party who destroyed it. If the evidence was destroyed by a party to the proceedings with the intention of preventing its use as evidence, it is likely that it would have been to that party’s detriment. It is permissible to draw an inference that its contents were adverse to that party.
53The Ophelia [1915] P 129 and [1916] 2 AC 206, discussed in R(IS) 11/92. However, the destruction of the document might deprive the party who destroyed it of any benefit that it might have been, for example as corroboration.
54R(IS) 11/92 at [30]. In practice, the effects of destruction are reduced by the possibility of proving the contents of the documents by other evidence.
55R(IS) 11/92 at [38].10.83If the destruction deprives one party of the chance to meet an issue in the proceedings, it may be impossible for there to be a fair hearing on that issue.
56Post Office Counters Ltd v Mahida [2003] EWCA Civ 1583; (2003) Times 31 October. Unfortunately, the Court of Appeal did not distinguish between unfairness for the Civil Procedure Rules and unfairness for article 6.10.84If the evidence was deliberately destroyed before the proceedings were begun, the issue is whether they were destroyed in an attempt to pervert the course of justice. If they were, it is possible in the court system to strike out the proceedings.
57Douglas v Hello! Ltd [2003] 1 All ER 1087 at [86]. However, this is not possible under TCEA, as the rules of procedure do not allow proceedings to be struck out for conduct before the proceedings have begun.
58See chapter 12. If the evidence was destroyed after the proceedings began, the issue is whether a fair hearing is possible and, if not, what action can be taken.
59Douglas v Hello! Ltd [2003] 1 All ER 1087 at [90].