Evidence, Proof and Justice

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.

1. Introduction
   1. Demosthenes, Cicero and the rationalist tradition
   2. Theories of evidence
   3. Legal philosophy and the rationalist tradition
   4. Guide to readers
2. The presumption of innocence and adverse inferences from silence
   1. Introduction
   2. The presumption of innocence: the marcescent Woolmington principle
   3. Adverse inferences from silence
   4. European Convention Jurisprudence and Commonwealth Paradigms Re-Examined
3. Protecting vulnerable witnesses: summum ius summa iniuria
   1. Introduction
   2. The principle of orality
   3. False-memory
   4. Sexual History Evidence or the slagging-off of the complainant in rape cases
   5. Special Measures and Judicial Discretion
   6. Summary and Conclusion
4. Double jeopardy and similar fact evidence
   1. Introduction
   2. The extent to which double jeopardy protects an accused from further proceedings based on same factual situation
   3. The impact of the CJA 2003 on the Principle of Double Jeopardy and Similar Fact Rule
   4. Double Jeopardy and Reopening of Final Acquittals
   5. Summary and Conclusion
5. Identification evidence: old problems, new solutions
   1. Introduction
   2. Causes Célèbres and the Turner rule
   3. Failure of courts to prescribe rigorous rules for scrutinizing scientific opinion evidence
   4. Conclusion
6. Public interest immunity, privilege and liberty rights: Hohfeld’s analysis re-examined
   1. Introduction
   2. Theories of unimpeded access to justice
   3. Conclusion
7. Expert evidence and mathematical proof
   1. Introduction
   2. The Pascal/Bayes School of Probability and Uncertainty
   3. The Bacon/Mill/Cohen School of Inductive Probability
   4. The Shafer/Dempster School of Non-additive Beliefs
8. The Scandinavian School of Evidentiary Value
9. Conclusion
10. Epilogue: the future
    1. What is wrong with the English adversarial system of justice?
    2. Free proof and the adversarial system of justice: the final words
11. List of Abbreviations
12. Endnotes