The admissibility of the types of evidence such as a confession alleged to have been obtained by oppression fall to be dealt with as preliminary matters in criminal proceedings. The party seeking to have such evidence admitted will have the burden of proving that it is admissible in line with the standard imposed by the relevant rules of evidence. (R v Sartori(1961) Crim LR 397 R v Yacoob 1981). In criminal cases, the judge will be able to on discretion to order discovery but forbid the prosecution from releasing this evidence. Also important is to note that if there are any damaging errors in the admission of evidence they will be reviewable on appeal if an objection was made during the trial.
Material introduced at the trial will ordinarily be restricted to things of great probative value; In civil cases the general rule is that the legal burden on any fact in issue is borne by the party asserting and not denying: He who asserts must prove not he who denies (Re H (Minors)Sexual Abuse: Standard of Proof 1996 AC 563 HL).
In Miller V Minister of Pensions 1947 2 ALL ER 372 Denning J ascribed the standard of proof in civil cases as follows, “ It the evidence is such that the tribunal can say “ we think it more probable than not” , the burden is discharged but if the probabilities are equal it is not. ” However it should be noted that in some instances even in civil cases the court will require the criminal burden of proof, that is in cases of Contempt of Court(Dean v Dean 1987 1 FLR 517 CA), where a person’ s livelihood is at stake, allegations of misconduct amounting to a criminal offence in disciplinary proceedings or where this is required by statute.
Another principle of evidence law pertains to this area known as “ presumptions” whereupon a proof of the preliminary fact the court must conclude the existence of the presumed fact unless sufficient evidence is found to the contrary. In civil proceedings, the rebuttable presumptions may be evidential or persuasive. The Evidential presumption places only an evidential burden on the defendant but a persuasive presumption places a legal burden on the defendant.
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