Obtaining Additional Documents and Materials

During preparation for trial, the parties will disclose to each other the documents that they wish to rely upon in support of their case. In criminal proceedings disclosure is governed by the Criminal Procedure and Investigations Act 1996, s.

In criminal proceedings, the prosecution must also disclose any previously undis­closed material that they believe might undermine the case for the prosecution. Non-disclosure of relevant information might lead to the jury being misled and result in a wrongful conviction. In addition, the accused and his/her representatives do not have the same time and resources available to them to investigate a case in the way that the prosecution has. However, in the Crown Court, the defendant must give disclosure through a ‘defence statement' (see CrimPR Part 15.4) whereas in a Magistrates' Court the provision of a defence statement is optional.

In civil proceedings, a party must make ‘standard disclosure' (see CPR PD 31A para 1.1-1.4). This is restricted to documents on which they rely in support of their case and any documents which adversely affect their case or another party's case (see CPR Part 31.6). Disclosure is through the provision of a ‘list of documents' that are to be disclosed (see CPR Part 31.10 and PD 31A para 3.1-4.7). The other party then has a right to inspect the documents (see CPR 31.3).

Whilst the process of disclosure is prescribed by the rules, the exact documents to be disclosed are not.

It is important to ensure that the client brings in all relevant documents at your first meeting with them and at subsequent meetings. If documents or other materials are held by third parties, e.g. employers or a GP then make sure you obtain copies from those third parties directly by getting the client to sign an authorisation form. Some pre-action protocols will specify what documents you should send to your opponent and what they should send to you.

It is also possible to make an application for pre-action disclosure in civil proceedings (see CPR 31.16). This is disclosure of documents or information before proceedings start, and this may be necessary to help clarify the correct defendant to sue or even if there is a cause of action. When making such an application, the court must be satisfied that the parties would be parties to subsequent proceedings and the documents sought would normally form part of standard disclosure. Remember it may be necessary to prove the authenticity of documents before they can be admitted so always request originals.

Privileged documents (on which a claim of confidentiality is made) or documents on which a claim for public interest immunity is made are excluded from disclosure and we will discuss this further in Chapter 4.

In civil proceedings, another method of obtaining further information about a state­ment of case is to ask the court to order that the other party answer a series of ques­tions to clarify their case and provide further information. This can be done in a formal way as a Further Information document under CPR Part 18 and must contain a state­ment of truth (see CPR Part 22). We will discuss this requirement again in Chapter 6.

2.3.1 Obtaining Expert Evidence

Often, consideration of the material facts of a case may require an understanding of non-legal matters, for example, scientific, actuarial, or IT knowledge that is beyond the expertise of a lawyer. Alternatively, the area of law may be one with which the lawyer is unfamiliar. In those circumstances, research alone may not produce the nec­essary level of detailed knowledge needed to prepare a good case. As such, advocates should know when to seek assistance from an expert. As part of trial preparation, expert evidence may be crucial to establishing proof. Such evidence will need to be independent, objective and unbiased. The court will only allow expert evidence to be called on matters that go beyond the expertise of the judge or jury. When an expert is used in court proceedings, their duty will be to the court and not to the party instructing them. They will also be required to prepare a written report for the court.

Case Example 2

Consider the following set of facts in a criminal case:

Summary of Facts - Criminal Case

You act for the defendant. The defendant (D) has been charged with murder. It is alleged that he fatally stabbed the victim (V), a complete stranger, who had asked for directions to a nearby street. D says in evidence that at the time of the stabbing, he was suffering a psychotic episode having previously drunk a whole bottle of whisky and consumed cocaine. When police officers arrived at the scene, they found D staring at the knife in his hands, shaking his head and saying, “howdid this happen?”He was arrested and charged with murder.

In the above scenario the client's goal is to avoid a charge of murder and to establish a partial defence of diminished responsibility. The defence of diminished responsibility (if accepted by the jury) would reduce the offence of murder to manslaughter. The client does not deny the act itself (the unlawful killing causing death) but maintains that he did not have the necessary mental element (the mens rea) for murder, namely intention.

Below is one example of a table that an advocate might prepare to identify and cat­egorise the issues relating to the defence of diminished responsibility:

The above scenario raises legal issues in relation to whether the requirements for a defence of diminished responsibility under s. 2 of the Homicide Act 1957 (as amended by the Coroners and Justice Act 2009, s. 52) have been met. There is a reverse burden of proof that is placed on the defendant under this Act.

This requires the defendant to prove that there was an abnormality of mental func­tioning that was caused by a recognised medical condition that caused substantial impairment in the defendant’s ability to either (1) understand the nature of the con­duct, or (2) form a rational judgment or (3) exercise self-control. This must in turn pro­vide an explanation for the defendant’s actions. Medical evidence is needed to prove this defence, as established in cases such as R vDix [1982] 74 Crim LR. Voluntary and temporary acute intoxication may remove the ability to rely on this defence as seen in cases such as R v Dowds [2012] EWCA Crim 281.

Using the above method is one way to help you to identify any risks to your client in pursuing this defence as well as highlighting where information is missing or incon­sistent or where further legal research is needed.

2.3.2 Evidence Gathering

It is important at an early stage to identify the nature and type of evidence that will be necessary to support the client’s case. Evidence must be relevant to the issues in dispute between the parties and also capable of settling the issue by proving it (‘pro­bative’) to the correct standard. In civil proceedings, evidence must prove the issues to the standard of ‘on a balance of probabilities’. This is commonly stated as being at least 51% proof or ‘more probable than not’ as stated by Lord Denning in Miller v Minister of Pensions [1947] 2 All ER 372. In the criminal cases the standard of proof is ‘beyond reasonable doubt’ and this is taken to mean to the point where the judge or jury are ‘satisfied so that they are sure’ - see the ‘sure test’ as set out in R vSummers (1952) Cr App R 14.

In criminal proceedings the prosecution bears the burden of proving the case and disproving any defences put forward by a defendant - see the remarks of Viscount Sankey LC in Woolmington v DPP [1935] AC 462. However, in certain limited circum­stances, a defendant will also have a burden of proof for example, certain defences such as diminished responsibility and insanity place the burden of proof on a defend­ant. If a co-defendant wants to use the confession evidence of another co-defend- ant they will have to prove it was not obtained in breach of the Police and Criminal Evidence Act (‘PACE’) 1984 and we will discuss this further in chapter five. Where the burden of proof is reversed onto a defendant in this way then the standard of proof becomes ‘on a balance of probabilities’. This was stated in the case of R vCarr-Briant [1943] 1 KB 607. An advocate should always be clear as to if and when their client has a burden of proof.

Similarly in civil proceedings the burden of proof rests on the claimant in line with the ‘he who asserts must prove' dictum - see Joseph Constantine Steamship Line v Imperial Smelting Corporation [1942] AC 154. A defendant will have a reverse burden of proof in certain situations such as when asserting contributory negligence by a claimant or relying on an exemption clause in a contract. The standard of proof will however remain ‘on a balance of probabilities' for a defendant. The standard of proof in civil proceedings is capable however of changing to the criminal standard. This is because some civil proceedings have a quasi-criminal aspect to them such as confis­cation proceedings - see R v Briggs-Price [2009] UKHL 19.

Part of the evidence gathering process involves (1) finding documents and then (2) analysing their contents to ascertain their importance to the issues in the case and then (3) evaluating how and if the evidence should be used. It may also be neces­sary to inspect the ‘locus in quo’ (the place where events happened). This is particu­larly relevant in road traffic accidents in personal injury cases. Photographs should be taken especially if there is a risk that the layout might change. Going back to the scene may also help to jog the client's memory.

It is important to collect evidence at an early stage when events are still fresh in the memories of key witnesses. Evidence must however be both relevant and admissible before it can be used at trial. Evidence is relevant if it is capable of either proving or disproving a disputed fact. In both the civil and criminal courts there are certain rules about the admissibility of specific types of evidence. For example, in criminal proceedings hearsay evidence (out of court statements used to prove the truth of the matter stated within the statement) is inadmissible unless it falls into one of the exceptions found in ss. 116-120 Criminal Justice Act 2003. Another example is that in civil proceedings a witness who is not an expert can only give opinion evidence if it is based on facts perceived by them (Civil Evidence Act 1972, s. 3(2)).

Disproportionate cost or delays may also be reasons for ruling evidence inadmissible. The court retains a judicial discretion to exclude any irrelevant or inadmissible evi­dence. For example, see s. 78 and s. 82(3) of the Police and Criminal Proceedings Act 1984 in the case of criminal proceedings. The former allows evidence to be excluded if the evidence would have an adverse effect on the fairness of the proceedings and the latter if its prejudicial effect outweighs its probative value (see R v Sang [1979] 3 WLR 263 for a full discussion of the general judicial discretion now found under s. 82(3)). In criminal proceedings the admissibility of evidence is decided at a voir dire' (a trial within a trial) or during a preliminary hearing. In civil proceedings the court has wide powers to make orders or exclude evidence as part of its case management powers (see CPR Part 3 and CPR Part 32.1 (2)).

Even if a piece of evidence is relevant and admissible, it may do little more than simply duplicate other evidence that is available in which case an advocate should decide whether it is really necessary to produce the piece of evidence in question at the trial.

If we return to Case Example 1, we can consider the relevant and admissible evi­dence that might be gathered in order to support a case on behalf of the defend­ants (Mr and Mrs Trelorn). As the claim is a contractual one based on an oral rather than a written contract then the evidence of Mr and Mrs Trelorn becomes important. Witness statements should be obtained from them. These statements should set out in detail their recollection about what exactly was agreed with the claimant on the key dates of 12 September and 16 September. However, other evidence may also be important.

Confidence Exercise

Re-read Case Example 1. What other types of evidence would you collect from the following categories below?

1. Oral evidence (e.g. through witness statements and/or testimony at court).

2. Documentary evidence (including e.g. photographs and sketches).

3. Expert evidence (reasoned opinion from a person with expertise in the field).

4. Real evidence (physical evidence).

Once you have collected evidence, you must next consider how best to present that evidence at trial. The court appreciates brevity and where possible prefers that the parties agree on the use of evidence.

In civil proceedings, the court relies on written evidence at interim hearings (see CPR Part 32.2(b) but oral evidence at a trial (see CPR Part 32.2(a)). In criminal cases, the court is required to ensure as part of its case management function that the evidence (both disputed and undisputed) is “presented in the shortest and clearest way” (see CrimPR Part 3.2(e)). In civil proceedings, the court can give directions about the issues for which evidence should be presented, the nature of the evidence that should be placed before the court and the way that this should be done (see CPR Part 32.1).

Carrying out a case analysis involves identifying all possible courses of action and the consequences of pursuing each as well as considering the weight of the available evidence and whether this will help the client achieve their goal. The analysis may reveal some constraints in terms of what the client would like to achieve, and these constraints must be identified and discussed with the client. This may require the advocate to manage the client's expectations or prioritise the steps that will be taken to achieve the client's goals.