Evidence - 1970- 1979

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This page lists 24 cases, and was prepared on 28 October 2012.

In re Bramblevale Ltd [1970] 1 Ch 128
1970	Evidence, Contempt of Court	Casemap 1 Citers
	For reasons of policy or pragmatism, the actual criminal standard of proof may be used in civil proceedings such as contempt of court.

British Oxygen Co Ltd -v- Ministry of Technology; British Oxygen Co Ltd -v- Board of Trade [1971] AC 610; [1970] UKHL 4
15 Jul 1970 HL Viscount Dilhorne, Lord Reid	Evidence, Administrative	Casemap 1 Citers
	It was reasonable and right for a public authority to make known to those interested the policy it was going to follow: '[b]y doing so fruitless applications involving expense and expenditure of time might be avoided'. If a policy is not to be applied in accordance with its meaning, as would have been the case on the original wording of section 6.1 of the licensing policy, there can be no such guidance." and "Since there is a rule that a public authority is not entitled to fetter its discretion, it is obliged to keep open the possibility of not applying that policy in any particular case if the specific circumstances of that case warrant the disapplication of the policy in relation to it."
	Industrial Development Act 1966
	Link[s] omitted

British Railways Board -v- Herrington [1972] AC 877; [1972] 2 WLR 537; [1971] 1 All ER 749; [1972] UKHL 1
16 Feb 1972 HL Lord Reid, Lord Morris of Borth-y-Gest, Lord Wilberforce, Lord Pearson and Lord Diplock	Land, Personal Injury, Nuisance, Children, Negligence, Evidence	Casemap 1 Cites 1 Citers
	The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser. Held: Whilst a land-owner owes no general duty of care to a trespasser, the creation by him of particular risks which may be unknown to sections of the public, including children, might create such a liability. The test may be subjective, as to whether a land-owner of this character might reasonably be expected to do or refrain from doing something on his land to avoid the risk. A duty might arise where the owner had, or ought to have had, actual knowledge of trespassers using the land, and of the risk they might face, and the risk was such as might cause a person with ordinary humane feelings to seek to avoid it. The duty does not extend beyond taking reasonable steps to enable a trespasser to avoid the danger. Lord Diplock said that the court may draw adverse inferences from a defendant's decision not to give or call evidence as to matters within the knowledge of himself or his employees: "This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold."
	Link[s] omitted

Regina -v- Kilbourne [1973] AC 729
1973 HL Lord Simon of Glaisdale	Evidence	Casemap 1 Citers
	The House considered what was the general character of relevant evidence. Lord Simon of Glaisdale: "Evidence is relevant if it is logically probative or disprobative of some matter which requires proof . . . relevant (ie. logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable."

Dunning -v- United Liverpool Hospitals' Board of Governors [1973] 1 WLR 586; [1973] 2 All ER 454
1973 CA James LJ, Lord Denning MR, Stamp LJ	Evidence, Health Professions	Casemap 1 Citers
	Mrs D had been treated at hospital, and sought release of her records to establish whether she had any basis for a claim in negligence. The court considered whether an application under section 31 of the 1970 Act for pre-action discovery had been properly made. Given the delay, the court was asked whether a claim was 'likely' to be made. Held. Whether the parties are likely to be parties in subsequent proceedings does not depend on the state of affairs prior to pre-action discovery. If one concentrates solely on things as they stand prior to pre-action discovery then it will often be impossible to say that anyone is likely to be a party to any subsequent proceedings. Lord Denning MR said: "One of the objects of this section is to enable a plaintiff to find out – before he starts proceedings – whether he has a good cause of action or not". “likely” must be given its more extended and open meaning. A more restricted meaning would defeat the purpose of the statute. James LJ said: "In order to take advantage of the section, the wording of which is no different from that of s 33(2) of the 1981 Act the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is a reasonable basis for making it. Ill-founded, irresponsible and speculative allegations or allegations based merely on hope, would not provide a reasonable basis for an intended claim in subsequent proceedings." Stamp LJ dissented, saying that the expert's opinion was that proceedings were unlikely, and disclosure was unlikely to produce anything to justify it.
	Administration of Justice Act 1970 31

Gallagher -v- BRS [1974] 2 QB 440
1974	Evidence, Contract	Casemap
	Evidence was required to support an assertion of collateral contract.

Lowery -v- The Queen [1974] AC 85
1974 PC Morris L	Crime, Evidence, Commonwealth	Casemap 1 Citers
	(Victoria) A young girl was sadistically murdered. The two accused, were present and the crime was committed by one or the other, or both. Each brought evidence of the unlikelihood that he could have committed the murder. L emphasised his good character and said that because of fear of K he had been unable to prevent the murder. K said that he had been under the influence of drugs and had been powerless to prevent L from killing the girl. Despite L's objection, K was allowed to call a psychologist as to their respective personalities and, on that evidence, to invite the jury to conclude that it was less probable that K was the killer. They were both convicted. L unsuccessfully appealed to the Supreme Court of Victoria on the ground, inter alia, that the psychologist's evidence ought not to have been admitted. Held: Only in exceptionl circumstances can expert evidence be admissible as to the likelihood of the defendant's veracity. The evidence of the psychologist was relevant in support of K's case to show that his version of the facts was more probable than that put forward by the appellant. Accordingly the Privy Council dismissed the appeal. Evidence is relevant 'if it tended to show that the version of the facts put forward by one co-accused was more probable than that put forward by the other'. The Board approved a statement as to the law: "It is … established by the highest authorities that in criminal cases the Crown is precluded from leading evidence that does no more than show that the accused has a disposition or propensity or is the sort of person likely to commit the crime charged; .. it is, we think, one thing to say that such evidence is excluded when tendered by the Crown in proof of guilt, but quite another to say that it is excluded when tendered by the accused in disproof of his own guilt. We see no reason of policy or fairness which justifies or requires the exclusion of evidence relevant to prove the innocence of an accused person."

Stafford -v- Director of Public Prosecutions [1974] AC 878; [1973] 3 All ER 762; [1973] 3 WLR 719; (1974) 58 Cr App R 256
1974 HL Lord Kilbrandon, Viscount Dilhorne	Criminal Practice, Evidence	Casemap 1 Cites 1 Citers
	The House rejected the submission of counsel that the Court of Appeal had asked the wrong question by taking as the test the effect of the fresh evidence on their mind and not the effect that the evidence would have had on the mind of the jury. It would be anomalous for the court to say that the evidence raised no doubt whatever in their minds but might have raised a reasonable doubt in the minds of the jury. Lord Kilbrandon said that the test to be applied by each member of the appellate court is: "Have I a reasonable doubt, or perhaps even a lurking doubt, that this conviction may be unsafe or unsatisfactory?" Viscount Dilhorne: "While . . the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe]."

Regina -v- Turner [1975] QB 834; 60 Cr App R 80; (1974) 60 Cr App R 80
1974 CACD Lawton LJ	Evidence, Criminal Practice	Casemap 1 Citers
	Expert medical evidence based upon observation of a witness can only be admitted if that evidence showed a recognised mental illness. "An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. In such a case, if it is just out of the scientific jargon, it may make judgment more difficult."

O’Donnell -v- Reichard [1975] VR 916
1975	Evidence	Casemap 1 Citers

Regina -v- Lattimore [1975] 62 Cr App R 53
1975 CACD Scarman LJ	Evidence	Casemap 1 Citers
	". . . It is also inconceivable that the court would receive inadmissible evidence; for the court must act according to law."

Regina -v- Boardman [1975] AC 421
1975 HL Lord Morris of Borth-y-Gest, Lord Wilberforce, Lord Hailsham of St Marylebone, Lord Cross of Chelsea, Lord Salmon	Evidence	1 Cites 1 Citers
	The defendant appealed the admission of similar fact evidence against him. Acts of buggery were alleged by a schoolmaster with boys in which the accused was the passive partner. Held: In order to be admissible similar facts must bear a striking similarity to the facts of the case currently before the court. Lord Morris of Borth-y-Gest: The test was whether it was "a really material bearing on the issues to be decided." Lord Wilberforce: There must be "a strong degree of probative force" based on the "striking similarity" of the material facts. "evidence which would point so strongly to his guilt that only an ultra-cautious jury, if they accepted it as true, would acquit in face of it." Lord Cross of Chelsea: It must be "evidence which would point so strongly to his guilt that only an ultra-cautious jury, if they accepted it as true, would acquit in face of it." Lord Salmon: "the similarity would have to be so unique or striking that common sense makes it inexplicable on the basis of coincidence."

Regina -v- Lee [1976] 62 Cr App R 33
1976 CACD	Evidence	Casemap 1 Citers
	A defendant charged with burglary of a house should have been allowed to introduce into evidence the bad character of others, not called as witnesses, who had access to the house. The relevance of this evidence is that it goes to disposition.

Mood Music Publishing Co -v- De Wolfe Ltd [1976] Ch 119
1976 CA Lord Denning MR,Orr Browne LJJ	Evidence	Casemap 1 Cites 1 Citers
	The plaintiffs alleged breach of copyright case involving music and sought to have admitted in evidence similar fact evidence showing that the defendants had published music resembling material protected by copyright in the past. The defendant apealed. Held: Lord Denning: "The admissibility of evidence as to 'similar facts' has been much considered in the criminal law. Some of them have reached the highest tribunal, the latest of them being Reg v Boardman [1975] AC 421. The criminal courts have been very careful not to admit such evidence unless its probative value is so strong that it should be received in the interests of justice: and its admission will not operate unfairly to the accused. In civil cases the courts have followed a similar line but have not been so chary of admitting it. In civil cases the courts will admit evidence of similar facts if it is logically probative, that is, if it is logically relevant in determining the matter which is in issue: provided that it is not oppressive or unfair to the other side: and also that the other side has fair notice of it and is able to deal with it. "

Regina -v- Turnbull and Another etc [1976] 3 WLR 445; [1977] QB 224; (1976) 63 CAR 132; [1976] 3 All ER 549
9 Jun 1976 CACD Widgery LCJ, Roskill and Lawton L.JJ., Cusack and May JJ	Evidence, Criminal Practice	Casemap 1 Cites 1 Citers
	The defendants appealed against their convictions which had been based upon evidence of visual identification. Held: Identification evidence can be unreliable, and courts must take steps to reduce injustice. The judge should warn the jury of the special need for caution before convicting the accused in reliance upon the correctness of identification. No special form of words need be used. The jury should examine closely the circumstances of the identification. Recognition may be more reliable than identification of a stranger, but mistakes can still be made. Lord Widgery discussed the direction about alibi evidence: "Care should be taken by the judge when directing the jury about the support for an identification which may be derived from the fact that they have rejected an alibi. False alibis may be put forward for many reasons: an accused, for example, who has only his own truthful evidence to rely on may stupidly fabricate an alibi and get lying witnesses to support it out of fear that his own evidence will not be enough. Further, alibi witnesses can make genuine mistakes about dates and occasions like any other witnesses can. It is only when the jury is satisfied that the sole reason for the fabrication was to deceive them and there is no other explanation for its being put forward, that fabrication can provide any support for identification evidence. The jury should be reminded that proving the accused has told lies about where he was at the material time does not by itself prove that he was where the identifying witness says he was." Lord Widgery continued: "In our judgment the dangers of miscarriage of justice occurring can be much reduced if trial judges sum up to juries in the way indicated in this judgment. First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the Judge need not use any particular form of words. Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence." "Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused's case, the danger of a mistaken identification is lessened, but the poorer the quality, the greater the danger. . . . When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification. This may be corroboration in the sense lawyers use that word; but it need not be so if its effect is to make the jury sure that there has been no mistaken identification: for example, X sees the accused snatch a woman's handbag; he gets only a fleeting glance of the thief's face as he runs off but he does see him entering a nearby house. Later he picks out the accused on an identity parade. If there was no more evidence than this, the poor quality of the identification would require the judge to withdraw the case from the jury; but this would not be so if there was evidence that the house into which the accused was alleged by X to have run was his father's . . In our judgment odd coincidences can, if unexplained, be supporting evidence. The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so."
	[ lip ]

Regina -v- Neale [1977] 65 Cr App R 304
1977 CACD Scarman LJ	Crime, Evidence	Casemap 1 Citers
	Neale and Burr were jointly charged with arson and manslaughter. N wanted to adduce evidence, either by cross-examining prosecution witnesses or leading evidence himself, that B had admitted that he had started fires himself on four other occasions. Held: The evidence was irrelevant and therefore inadmissible. "The view that he took was that this was evidence of propensity or disposition only, and contained nothing which bore upon the defence which was that the applicant was elsewhere and did not therefore do it. We have come to the conclusion that the learned judge was right and that it really is, in the circumstances of this case, a non sequitur to deduce from the existence of a propensity in Burr to raise fires that Neale was not there or participating when this fire, which did the damage and caused the death, was raised. Mr Hillman really revealed or exposed the logical fallacy in his argument, when in the course of a succinct and extremely well developed submission he submitted that evidence of Burr's propensity to commit wanton and unaided arson was needed in order to support the defence that the applicant Neale was not there at the time the fire was raised. In our judgment this is a non sequitur." and "There is a clear general principle, that, in general, evidence of propensity to commit a crime is not evidence that the man with that propensity committed the crime on the particular occasion, but of course in the present case the logical gap is greater. Hence the relevance of the evidence has to be borne in mind by reference to the defence, which was, 'I was not there.'"A judge has no discretionary power at the request of one accused to exclude relevant evidence tending to support the defence of another accused."

Regina -v- Tate [1977] RTR 17
1977 CACD Lawton LJ	Road Traffic, Evidence, Criminal Practice	Casemap 1 Citers
	At the close of a prosecution case for driving with excess alcohol, the appellant stated that he would not give or call evidence. He then submitted that the jury should be directed to consider only the admissible evidence of the analyst called who stated in cross examination, that two of the experiments had been carried out by a colleague. The results of those experiments were, therefore, hearsay and inadmissible. The trial judge then permitted the second analyst to be called, and the appeal was dismissed. Held: "Since 1911 there have been a number of cases before this court and its predecessor in which the problem has had to be considered. It suffices, we think, to say without going through the cases in detail, that it is now clearly established that the trial judge has a discretion whether he will allow the prosecution to call any more evidence after they have closed their case. The exercise of discretion will not be interfered with by this court unless it has been exercised either wrongly in principle or perversely."

McGregor -v- D 1977 SC 330
1977 Lord President Emslie	Scotland, Evidence	Casemap 1 Citers
	With regard to proceedings under the Act, in no sense were these proceedings criminal proceedings. They were on the contrary civil proceedings sui generis. Where the ground of referral is that the child has committed an offence and the sheriff is asked to consider whether this ground has been established under section 68 of the 1995 Act, the standard of proof which must be applied is that which is required in criminal procedure: section 68(3)(b). The Civil Evidence (Scotland) Act 1988 provides for the abolition of corroboration and the admission of hearsay evidence in civil proceedings. But section 9 of that Act excepts from the definition of "civil proceedings" for the purposes of that Act any hearing by a sheriff of an application under what is now Part II of the Children (Scotland) Act 1995 where the ground of referral was that the child has committed an offence. Nevertheless, the proceedings which Parliament has laid down for the determination of these applications by the sheriff is civil procedure.
	Social Work (Scotland) Act 1968

Reynolds -v- Phoenix [1978] 2 LIR 22
1978 CA Lord Denning MR	Evidence	Casemap 1 Citers
	The court discussed the effect of the 1974 Act on the admission of a spent conviction which was relevant or potentially relevant (depending on the trial judge's findings as to "materiality" for insurance purposes) to a liability issue in the case: "The man has to be treated as if he had never been convicted at all .... If he is asked whether he has been convicted he need not answer. He can say "No"."
	Rehabilitation of Offenders Act 1974

Chow Yee Wah -v- Choo Ah Pat [1978] 2 MJL 41,
1978 HL Lord Fraser of Tullybelton	Evidence	Casemap 1 Cites
	When considering “the printed evidence” the Court in Watt referred to a transcript of the evidence only. The disadvantage under which an appellate court labours in weighing evidence is even greater where all it has before it is the judge’s notes of the evidence and has to rely on such an incomplete record.

Sattin -v- National Union Bank Ltd (1978) 122 SJ 367
21 Feb 1978 CA Lawton LJ	Evidence	Casemap 1 Cites 1 Citers
	The plaintiff sought damages from the loss of a diamond deposited with the defendant bank as security. He asked to present evidence about the experience of another customer who had lost jewellery he had deposited with it. Held: The proposed evidence was admissible. (Lawton LJ) If a defendant in this class of case said "My system for safeguarding customers' property is a reasonably safe one" it is relevant for the plaintiff to call evidence to show that experience should have taught the defendant that it was not a safe system. The evidence was also admissible in order to rebut the suggestion that the bank was unfortunate in losing the customer's property albeit they used all reasonable care to safeguard it. "A fundamental principle of the law of evidence, both in civil and criminal cases, is that evidence must be confined to what is relevant. In general, if there is an issue whether A did a particular act on a particular day, then the fact that he may have done the same act on another day is not relevant to that issue. To that fundamental rule there are a number of exceptions." and "That principle of law [from Makin] in criminal cases applies equally in civil cases." (Megaw LJ) "There was a good deal of argument before us by counsel on each side: counsel for the plaintiff appellant seeking to show the similarities between matters arising in the present case and matters involved in the previous incident as to which it is sought to adduce evidence; counsel for the defendant respondent seeking to stress the differences between the two. It is no objection to such evidence being tendered that it relates to one previous incident only. It does not need to be a defective 'system'. It is no objection to the evidence being tendered that it is going to be contended on behalf of the defendant employer that the previous alleged incident did not happen at all, or that, if it did happen, there were material differences which would prevent it from having any substantial bearing upon the instant case: as, for example, where the claim by the employee is that he tripped over some piece of plant or some object left on the floor which ought not to have been there and evidence is given of another similar accident on a previous occasion, it would be no objection to the admissibility of the evidence if the case for the employer defendant was to be that, on the occasion of the previous incident, if (which he denies) it happened at all, there had been a sudden failure of the lighting system through no fault on the part of the employer. That would not affect the admissibility of the evidence though it might destroy all its weight."

Waugh -v- British Railways Board [1980] AC 521; [1979] UKHL 2; [1979] 3 WLR 150; [1979] 2 All ER 1169
12 Jul 1979 HL Lord Simon, Lord Edmund Davies, Lord Wilberforce	Legal Professions, Evidence	Casemap
	An internal report had been prepared by two of the Board's officers two days after a collision involving the death of a locomotive driver, whose widow brought the action and now sought its production. Held: The court considered litigation privilege. There is a conflict between the need to enable clients to communicate freely with their legal advisers in relation to litigation and the need to ensure that all relevant material is before the court. The report undoubtedly contained material collected by or on behalf of the Board for the use of their solicitors in anticipated litigation, but because it could not be shown that this was its dominant purpose the document did not attract litigation privilege. Legal advice privilege has to be distinguished from litigation privilege. The need to make that distinction was sometimes overlooked: "It is for the party refusing disclosure to establish his right to refuse. It may well be that in some cases where that right has in the past been upheld the courts have failed to keep clear the distinction between (a) communications between client and legal adviser, and (b) communications between the client and third parties, made (as the Law Reform Committee put it) 'for the purpose of obtaining information to be submitted to the client's professional legal advisers for the purpose of obtaining advice upon pending or contemplated litigation.'" A 'dominant purpose' test was the best method of resolving the competing principles that on the one hand there should be full disclosure of relevant material in litigation, and on the other, there must be effective maintenance of legal professional privilege.
	Link[s] omitted

Regina -v- Sang [1980] AC 402; [1979] UKHL 3; [1979] 3 WLR 263
25 Jul 1979 HL Lord Scarman, Lord Diplock, Viscount Dilhorne, Lord Salmon, Lord Fraser of Tullybelton	Evidence, Criminal Practice	1 Cites
	The defendant appealed against an unsuccessful application to exclude evidence where it was claimed there had been incitement by an agent provocateur. Held: There is no defence of entrapment in English law. All evidence which is relevant is prima facie admissible in a criminal trial, although the trial judge has a discretion to exclude evidence which, though admissible, has been obtained by unfair means from the accused after commission of the offence. A court is concerned only with "the conduct of the trial" and neither "initiates nor stifles a prosecution" but "the fairness of a trial is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted."' Lord Diplock said that the rule against accepting evidence obtained under duress originated in the principle expressed as "nemo debet prodere se ipsum", "nemo tenetur se ipsum accusare" or "nemo tenetur prodere seipsum"- the right against self incrimination.
	Link[s] omitted

Gamlen Chemical Co (UK) Ltd -v- Rochem Ltd [1980] 1 WLR 614; [1980] 1 All ER 1049; [1983] RPC 1
4 Dec 1979 CA Goff and Templeman LJJ	Company, Legal Professions, Evidence	Casemap 1 Cites 1 Citers
	Solicitors accepted instructions against a promise of sums on account of costs. After non-payment they began to apply to be removed from the record. The new solicitors sought transfer of the solicitors file, and obtained an order to that effect subject to an undertaking to maintain its condition and to respect the solicitors' lien. The first firm appealed. Held: The practice embodied in the order was appropriate. Where a solicitor discharged himself, a mandatory order should be available. Legal professional privilege will not be upheld if the relevant document came into being as a step in a criminal or illegal proceeding.