Criminal Evidence Act 2019

The  Criminal Evidence Act (CEA) 2019 governs the admission of bad character [BC] and hearsay evidence in the Isle of Man. Its impact will be transformative. Admission of this evidence will now become more common, provided the evidence is relevant, reliable and can be tested.

The Act

The Act defines hearsay and BC, divides each into categories, and creates a series of steps to be traversed before admission. This article is too short for an exposition of these provisions. They are vital, and the words of the statute must be carefully considered. The general effect is to widen admissibility, subject to protections:

  1. The hearsay admissibility criteria focus upon: (a) is it necessary – is first hand evidence available, and (b) is it reliable or can its reliability can be tested: Horncastle [2009] 2 Cr App R 15 and Riat [2013] 1 Cr App R 2.
  2. This applies even if the hearsay is likely to be decisive. Reliability is the touchstone, not importance.
  3. BC is admissible, depending upon the category, if it is relevant or important.
  4. BC is admissible to prove propensity.
  5. The discretion to exclude evidence that the prosecution [P] seeks to adduce remains. Additional protections are provided: to stop the case if admitted hearsay or BC evidence threatens a fair trial [ss. 13 and 28]; to admit evidence to challenge the credibility of absent witnesses [s. 27].
  6. The criteria for admission of hearsay evidence is the same for P and defence [D].
  7. The criteria for the admissibility of BC evidence is similar for P and D. A distinction is that D’s bad character can be adduced if it is ‘relevant’ to an important matter in issue, but non-Ds’ (or a co-Ds’ at D’s suit) BC only if it is of ‘substantial importance’ to such an issue. The distinction arises because there is a discretion to exclude D’s BC at P’s suit only. P is protected by D’s higher admissibility hurdle. D is protected by the discretion to exclude.
  8. Directions are given to ensure that the jury uses the evidence properly.

The Philosophy

Hearsay and BC were always considered relevant. Hearsay was restricted because it was considered to be inherently unreliable. The admission of D’s BC was constrained because it was considered to be prejudicial.

These restrictions reflected two fundamental beliefs: that D must not be wrongly convicted; that a jury cannot be trusted to evaluate evidence if it is difficult to assess or is liable to provoke emotion.

Those fundamental beliefs produced rules which were inflexible. Such rules could contravene the requirements of a fair trial:

  1. All relevant evidence is adduced;
  2. No irrelevant evidence is adduced;
  3. All the evidence is tested.

The new philosophy is that:

  1. A trial is a search for the truth;
  2. Adducing all, and only, relevant evidence, the burden of proof, discretionary exclusion, and judicial directions are sufficient guarantees against wrongful convictions;
  3. Juries can be trusted.

Applying this philosophy, the criteria for admissibility for both parties is similar, the focus is on relevance, reliability and proper testing, and residual fears of prejudice are countered by discretionary measures. This doesn’t mean admission is easy. The Act contains a code designed to ensure evidence is only admitted when it is fair to do so. Evidence must be rigorously examined to ensure the statutory conditions are met. Relevance and reliability must be rationally demonstrated.

Category: Articles | Author: Anwar Nashashibi,Ben Isaacs |

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Barrister Ben Isaacs

Ben Isaacs

Call: 2009


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