증거법 및 절차법
증거 규칙, 입증책임, 민사 및 형사 절차와 법원 체계.
소개
The law of evidence and procedure governs how cases are conducted and decided in the courts of England & Wales. Civil procedure is primarily governed by the Civil Procedure Rules 1998 (CPR), which introduced the 'overriding objective' of dealing with cases justly and at proportionate cost. Criminal procedure is governed by the Criminal Procedure Rules 2020 and a complex body of statute and common law. The law of evidence determines what information is admissible in court, how it may be presented, and what weight it should be given.
핵심 원칙
Burden of Proof — In civil cases, the claimant bears the burden on the balance of probabilities ('more likely than not'). In criminal cases, the prosecution bears the burden beyond reasonable doubt (Woolmington v DPP [1935]). The evidential burden may shift to the defendant for certain defences.
Hearsay Evidence — Out-of-court statements tendered as evidence of their truth are hearsay. In civil proceedings, hearsay is admissible under the Civil Evidence Act 1995 but carries reduced weight. In criminal proceedings, hearsay is generally inadmissible subject to statutory exceptions (Criminal Justice Act 2003, ss.114–136).
Character Evidence — In criminal cases, evidence of the defendant's bad character is admissible through 'gateways' under s.101 Criminal Justice Act 2003 (e.g. important explanatory evidence, propensity to commit offences, correcting a false impression). The court must exclude evidence whose prejudicial effect outweighs its probative value.
Opinion Evidence — Generally, witnesses may only give evidence of facts, not opinions. Expert witnesses are an exception — they may give opinion evidence within their field of expertise, subject to the requirements of Part 35 CPR (civil) and the Criminal Procedure Rules (criminal). The duty of an expert is to the court, not the party instructing them.
Privilege — Legal professional privilege protects confidential communications between lawyer and client for the purpose of giving or receiving legal advice (advice privilege) or in contemplation of litigation (litigation privilege). It is a fundamental right and cannot be overridden by statute unless by express words (R (Prudential) v Special Commissioner [2013]).
Civil Procedure (CPR) — The CPR's overriding objective (r.1.1) requires cases to be dealt with justly and at proportionate cost. Key features include: case management by judges, pre-action protocols, disclosure, Part 36 offers to settle, and the three tracks (small claims, fast track, multi-track).
Criminal Procedure — Criminal cases begin in the magistrates' court. Summary offences are tried there; indictable-only offences are sent to the Crown Court. Either-way offences may be tried in either court, subject to allocation and the defendant's election for jury trial. Appeals lie to the Crown Court (from magistrates) or Court of Appeal (Criminal Division) from the Crown Court.
Court Hierarchy and Precedent — The doctrine of precedent (stare decisis) means lower courts are bound by decisions of higher courts. The Supreme Court is the final court of appeal. It can depart from its own previous decisions under the 1966 Practice Statement. The Court of Appeal is generally bound by its own decisions (Young v Bristol Aeroplane [1944]) subject to limited exceptions.
핵심 법령
Civil Procedure Rules 1998
Criminal Justice Act 2003
Civil Evidence Act 1995
Police and Criminal Evidence Act 1984
Criminal Procedure Rules 2020
주요 판례
Young v Bristol Aeroplane Co
[1944] KB 718
R v Turnbull
[1977] QB 224
Folkes v Chadd
(1782) 3 Doug KB 157
R v Horncastle
[2009] UKSC 14
일반적인 시나리오
Key witness refuses to attend court
In civil cases, a witness summons can be issued under CPR Part 34 compelling attendance. In criminal cases, a witness summons is issued under s.97 Magistrates' Courts Act 1980 or s.2 Criminal Procedure (Attendance of Witnesses) Act 1965. Failure to comply without reasonable excuse is a contempt of court.
Police obtained evidence through an unlawful search
Under s.78 Police and Criminal Evidence Act 1984 (PACE), the court has discretion to exclude evidence if its admission would have such an adverse effect on the fairness of proceedings that it ought not to be admitted. Unlike in some jurisdictions, there is no automatic exclusionary rule — illegally obtained evidence is not automatically inadmissible.
Expert witness gives an opinion outside their expertise
Expert evidence must be within the witness's field of expertise and must assist the court. Under CPR Part 35 (civil) and CrimPR Part 19 (criminal), the expert's overriding duty is to the court. Evidence outside the expert's competence may be excluded and could undermine the party's case.
Making a Part 36 offer to settle a civil claim
A Part 36 offer is a formal offer to settle under CPR Part 36. If the offeree rejects it and fails to obtain a better result at trial, adverse costs consequences follow: the offeree typically pays the offeror's costs from the date the offer could have been accepted, plus enhanced interest and an additional amount (up to £75,000).