Evidence, Proof and Justice - Legal Philosophy and the Provable in English Courts

This book uses legal philosophy to analyse the transformation of the rules of evidence in English courts. Issues such as adverse inferences from silence, fundamental rights of defendants, double jeopardy, public interest immunity and expert evidence and mathematical proof are critically assessed with a view to showing that the proliferation of statutes on evidence in English courts, the wide discretionary powers vested in judges to admit all types of evidence raise serious issues of justice and ‘open impartiality’ as distinct from ‘close impartiality’. Suggestions for reform are proffered.

A lot has happened in the last decade on rationalising the congeries of rules of evidence applied in English courts. Scientific evidence is gradually replacing evidence based on the principle of orality or spontaneity. And yet, judges are not scientifically trained. There is a convergence of the English adversarial system, especially in criminal proceedings, with the Continental inquisitorial system; and, what is more, the proliferation of statutes on the law of evidence and the wide discretionary powers vested in judges to admit all types of evidence raise serious issues of justice and ‘open impartiality’ as distinct from ‘close impartiality’.

It is the object of this book to use legal philosophy to analyse the transformation of the rules of evidence in English courts with a view to teasing out the benefits and portents of the transformation and proffering suggestions for reform.

I seize this opportunity to thank Ms Karin Hamilton Jakobsen and the editorial staff of Ventus Publishing, Denmark, for their cooperation. Many thanks to Ms Sue Wiseman for using her immense word-processing skills to type the manuscript within a short space of time.

The book is dedicated to Diane.

Solomon E. Salako

Liverpool,
United Kingdom.
July 2010.

Preface

1. Introduction
Demosthenes, Cicero and the rationalist tradition
Theories of evidence
Legal philosophy and the rationalist tradition
Guide to readers

2. The presumption of innocence and adverse inferences from silence
Introduction
The presumption of innocence: the marcescent Woolmington principle
Adverse inferences from silence
European Convention Jurisprudence and Commonwealth Paradigms Re-Examined

3. Protecting vulnerable witnesses: summum ius summa iniuria
Introduction
The principle of orality
False-memory
Sexual History Evidence or the slagging-off of the complainant in rape cases
Special Measures and Judicial Discretion
Summary and Conclusion

4. Double jeopardy and similar fact evidence
Introduction
The extent to which double jeopardy protects an accused from further proceedings based on same factual situation
The impact of the CJA 2003 on the Principle of Double Jeopardy and Similar Fact Rule
Double Jeopardy and Reopening of Final Acquittals
Summary and Conclusion

5. Identification evidence: old problems, new solutions
Introduction
Causes Célèbres and the Turner rule
Failure of courts to prescribe rigorous rules for scrutinizing scientific opinion evidence
Conclusion

6. Public interest immunity, privilege and liberty rights: Hohfeld’s analysis re-examined
Introduction
Theories of unimpeded access to justice
Conclusion

7. Expert evidence and mathematical proof
Introduction
The Pascal/Bayes School of Probability and Uncertainty
The Bacon/Mill/Cohen School of Inductive Probability
The Shafer/Dempster School of Non-additive Beliefs

6. The Scandinavian School of Evidentiary Value

7. Conclusion

8. Epilogue: the future
What is wrong with the English adversarial system of justice?
Free proof and the adversarial system of justice: the final words

List of Abbreviations

Endnotes

Solomon E. Salako, LL.B. (London), LL.M. (London), M.Phil. (London), A.C.I.S., Barrister and Solicitor of the Supreme Court of Nigeria, has taught law for twenty-eight years at Ogun State University (Nigeria) and Leeds Metropolitan University and Liverpool John Moores University (United Kingdom). His research interests are in Criminal Law, Evidence, Legal Theory, Human Rights, International Biomedical Law and Ethics and Biotechnology and International Law. He is the author of Evidence, 2009, available at www.insitelawmagazine.com/evidenceintroduction.htm and Evidence, Proof and Justice: Legal Philosophy and the Provable in English Courts, Ventus Publishing, Denmark, 2010; available at www.bookboon.com/int/student/law/Evidence-Proof-And-Justice and numerous books and articles on medical law and ethics. His best known recent publications include “The Council of Europe Convention on Human Rights and Biomedicine: A new look at international biomedical law and ethics” (2008) 27 Medicine and Law 339-356, “The UNESCO Universal Declaration on Bioethics and Human Rights: Protecting Future Generations and the Quest for a Global Consensus” (2008) 27 Medicine and Law 805-823, “Research Ethics Committees and Community Values: Devlin, Dworkin, Hart and Beyond” (2010) 29 Medicine and Law 37-50 and “Informed Consent under the European Convention on Biomedicine and the Universal Declaration on Bioethics” (2011) 30 Medicine and Law 101-113.

Contacts
Tel.: +44 (0)151 733 3755
e-mail: s.e.salako@hotmail.co.uk