(1) INTRODUCTION

There are matters which do not require proof or are not allowed to be proved viz. (i) matters presumed, (ii) matters judicially noticed, and (iii) formal admissions.

(2) PRESUMPTIONS

(A) In general

Presumptions are inferences or positions established by law. They are conclusions which may or must be drawn until the contrary is proved. Several reasons have been proffered. Notable amongst these reasons are that the use of presumption accords with the preponderance of probabilities, saves time at the trial, solves a problem where ordinary rules result in an impasse as in the commorientes rule (discussed later), and operates to promote convenience. For example, absence unheard of which leads to a presumption of death enables the affairs of property to be wound up within a reasonable time. Presumptions are categorised as (i) particular presumptions, (ii) irrebuttable presumptions, and (iii) rebuttable presumptions.

(B) Particular Presumptions

(a) Presumption of regularity . This is expressed by the Latin maxim: Omnia praesumuntur rite esse acta [All acts are presumed to have been done rightly]. The presumption of regularity applies to acts of an official or judicial character. For example, in Berryman v Wise , it was held that an attorney need not prove by his certificate or by a roll of attorneys that he was an attorney. Proof that he acted as such was held sufficient. Again, in R v Roberts it was held that the presumption applied to a deputy judge of county court and in Dillon v R that it applied to a policeman.

(b) Presumption of innocence . The presumption of law as to innocence not only applies to criminal charges but also cases where an allegation of criminality is made.

(c) Presumption as to continuance . It is presumed that things or circumstances once proved to have existed at a certain time must continue to exist in that state for a reasonable time. This presumption is not sufficient to support a claim that a person was alive at a particular time as in R v Lumley where the accused, a woman, was tried for bigamy. It was proved that the woman married A in 1836, left him in 1843, and married another man in 1847. Nothing was heard of A after the accused left him, nor was any evidence given of his age, but the judge, holding that there was a presumption of law that A was alive at the date of the second marriage, withdrew the case from the jury and directed them to return a verdict of guilty. It was upheld by the Court of Crown Cases Reserved that there was no presumption of law either in favour, or against, the continuance of A's life up to 1847. The conviction was quashed.

(d) Presumption of death . There is a presumption of law as to death arising from seven years' unexplained absence. In Chard v Chard , it was alleged that the ceremony of marriage in 1933 between the petitioner and the respondent was a nullity. The petitioner had been married to another woman in 1909 and had last heard of her in 1917. The question was whether she should be presumed to be dead in 1933. The court inferred that he was alive then, and held the ceremony of 1933 null. Sachs J stated that for the presumption to take effect it must be shown –

(i) that there is no affirmative evidence that the person in question was alive at some time during a continuous period of seven years or more from persons who would be likely to have heard of him over that period;

(ii) that those persons who are likely to hear of him have not heard of him; and

(iii) that all due inquiries have been made appropriate to the circumstances.

There is no presumption as to the time of death. The burden of proving death at any particular time lies on the person who asserts it.

It must be noted, however, that section 184 (1) of the Law of Property Act 1925 – a statutory enactment of the commorientes rule – provides that where two or more persons die in circumstances rendering it uncertain which of them survived the other, the death shall be presumed to have occurred in order of seniority and the younger shall be deemed to have survived the elder. But where circumstances connected with the death of the persons involved can be proved the question of survivorship may be dealt with as a matter of fact.

(e) Presumption of law as to lawful origin . There is a presumption of law as to lawful origin: that asserted rights exercised uninterrupted for such a length of time that they may be fairly taken to have had a lawful origin, had such origin; for example, the presumption of lost grant. In Johnson v Barnes the corporation of a borough had from time immemorial exercised exclusively the right of pasturage. It was presumed that the corporation was entitled to exclusive rights. Again, in Bridle v Ruby it was held that since the plaintiff had established twenty-two years' user of a right of way by him and his predecessor in title, he was entitled to the presumption of last grant.

(f) Presumption of legitimacy . The fact that a child is born during the subsistence of a valid marriage of its mother or thereafter during the period of gestation raises the presumption of law that the child is legitimate.

(C) Irrebuttable and rebuttable presumptions

Presumptions are traditionally categorised as irrebuttable and rebuttable presumptions. An irrebuttable presumption is rule of law, for example, the presumption of doli incapax : that a child under ten cannot commit a crime. Two rebuttable presumptions are worthy of note. The presumption of legitimacy may be rebutted by strong evidence of non-access whilst equitable presumption of advancement may be rebutted by evidence of statements by the parent which forms part of the transaction, but not by evidence made subsequently or a course of conduct.

(3) JUDICIAL NOTICE

(A) Introduction

According to Stephen, “no evidence of any fact of which the Court will take judicial notice need be given by the plaintiff alleging its existence” because the matters noticed are of common notoriety. Two reasons have been proffered for the doctrine of judicial notice. The first is that it expedites the hearing of cases as where it is judicially noticed that a fortnight is too short a period for human gestation or that the advancement of learning is among the purposes for which the University of Oxford exists. The second is that it tends to produce uniformity of decisions on matters of fact. For example, in R v Simpson it was held that a flick knife was an offensive weapon per se for the purposes of section 1 (1) of the Prevention of Crime Act 1953 since it is an ‘article made … for use for causing injury to a person' within section 1 (4) of the Act.

Although Cross opines that it is pointless to make a list of cases in which courts have taken judicial notice of facts without inquiry since the justification for the courts acting in such a way is that the fact is too notorious, an attempt will be made to categorise the instances. The categories put forward here are: legal matters, constitutional matters, professional practice, historical facts and other facts.

(B) Legal matters

Judicial notice is taken of the laws of England but generally of other parts of the UK , the Commonwealth and the laws of foreign countries.

(a) Custom . Law Merchant such as customary right of a banker to a general lieu on his customer's securities in respect of money owed, general or local customs after due proof in earlier cases as certification by appropriate authority are judicially noticed.

(b) Decisions . Judicial precedent or reported cases constitute one of the sources upon which judges rely when taking judicial notice.

(c) Facts found by judges in the light of their experience. A trier of fact must not produce from his personal knowledge evidence with which the parties have not had an opportunity of dealing. He may use his knowledge to assess the evidence adduced before him but he is forbidden to use such knowledge in order to contradict the evidence given in court. Where a court or tribunal relies on the personal knowledge of one of their members, it is necessary to indicate not only that the member is a specialist in the field but also to bring the facts known by that member to the knowledge of the parties so that their counsel could either deal with them or ask for an adjournment.

In R v Blick the accused explained his presence at the scene of robbery by saying that he was visiting a public lavatory. A juror informed the judge that the lavatory was closed at the time, whereupon the judge invited the prosecution to call evidence on the point so that the juror's information might be investigated by both parties in open court. It was held that the judge had properly received a note and had acted properly in calling evidence on the point. Again, in Wetherall v Harrison where the issue was whether the accused had a good medical reason for refusing to give a blood sample. A medical witness for the prosecution testified that he had not. The justices found that, in the light of their own experience in the matter, the defendant may well have had a good reason for refusing. Lord Widgery CJ explained that whilst a magistrate is forbidden to use his knowledge in order to contradict evidence given in court, he may use his knowledge to assess the evidence adduced before him. The last-mentioned case must be contrasted with R v Fricker where it was held that where a juror had specialised knowledge of matters forming the background to the case against the defendant, and had communicated that information to other members of the jury who had then come to a verdict, the judge was obliged to discharge the jury because the defendant would have had no opportunity to challenge what amounted to an entirely new evidence or fact or put forward his own explanation.

Two other cases are worthy of note. In Reynolds v Llanelly Associated Tinplate Co. Ltd. a factory worker was injured in the right eye by a flying steel splinter and was incapacitated. An operation was performed on the injured eye and an award of compensation was made on the basis of total incapacity for four months. It was held that although the arbitrator was entitled to use his knowledge, properly applied and within reasonable time limits of matters which were within the common knowledge of persons in the district, the present case was a special and individual case and the arbitrator must, wrongly, have based his decision on some particular knowledge which he had. Again, in Harrington v Berker Sportcraft Ltd an employee was seeking compensation for unfair dismissal. In reliance on the personal knowledge and experience of a member of the industrial tribunal in trades connected with the employee's former employment, the tribunal decided to make an award in respect of future loss of earnings. On appeal, it was held that where a tribunal relied on the personal knowledge and experience of one of its members it was necessary to indicate not only that the member was a specialist but also to bring the facts known to that member to the attention of the employee's counsel so that if they were relied on the counsel could either deal with them or ask for an adjournment. As the matters had not been dealt with in this way the case was remitted for rehearing.

(d) Statutes . The effect of section 3 of the Interpretation Act 1978 is that every Act passed after 1850 shall be a public Act and judicially noticed as such in the absence of express provision to the contrary. Scots, foreign and colonial laws are not judicially noticed. It may be necessary to produce the Queen's Printers' copy of a Private Act passed before 1850.

(C) Constitutional matters

The following matters of public administration are judicially noticed:

(a) Sovereign and officers of the state . Judges take judicial notice of the accession and death of the Sovereign whom they represent. They also take judicial notice of the sovereignty of foreign rulers and even membership of the staff of their ambassador on information supplied by a Secretary of State. In Duff Development Co. v Government of Kelantan the Government of Kelantan applied for the enforcement of an arbitration award on the ground that Kelantan was an independent Sovereign State . The Secretary of State for the Colonies in a reply to an inquiry from the Master wrote that Kelantan was a Sovereign State and the Sultan the ruler thereof. The House of Lords held that this concluded the matter.

It must be noted, however, that a judge can take judicial notice of sovereign immunity but that a claim to immunity by a head of state or former head of state applies only to acts performed by him in the exercise of his functions as head of state and these do not extend to torture or other degrading or inhuman treatment.

(b) Parliament . The law and custom of Parliament are part of the law of England . Hence, parliamentary privilege as a defence to an action for libel has been judicially noticed though this is now governed by the Parliamentary Papers Act 1849 as amended.

(c) War . The courts take judicial notice of a state of war to which Britain is a party. Its continuance and cessation of hostilities can be certified by a Secretary of State.

(D) Professional practice

Judicial notice will be taken of the practice of conveyancers or the practice of ordinance survey as to what a line on the map indicates.

(E) Historical facts

The judge can rely on his own historical learning but where it is important to ascertain ancient facts of a public nature he is not permitted to refer to historical works. In Read v Bishop of Lincoln it was held that a judge might consider historical and ritualistic works on whether the mixture of communion wine with water was contrary to the law of the church but in Evans v Getting the history of Beconshire was declared inadmissible on the question of the boundary of Welsh parishes because of possible prejudice of the author.

(F) Other facts

The courts will take judicial notice of official Gazettes of London , Edinburgh and Belfast on their mere production and the fact that a postcard is likely to be read by people other than the addressee.

(4) FORMAL ADMISSIONS

An alleged fact can be formally or informally admitted. Informal admissions are “made casually … they must be proved; and far from being conclusive, they may be denied or explained away …” Any matters which have been formally admitted need not be proved.

In criminal proceedings, the general rule is that formal admissions are inadmissible. There are, however, two exceptions. The first is section 10 of the Criminal Justice Act 1967 which provides that a formal admission may be made by or on behalf of the prosecution or defendant before, or at any criminal proceedings, and may, with the leave of court, be withdrawn. The effect of this statutory provision is that the admitted fact ceases to be a fact in issue. The other exception is the plea of guilty rendered admissible by section 74 of the Police and Criminal Evidence Act 1984 which is discussed in Chapter 5.

In civil proceedings, formal admissions may be voluntary or in response to a notice by the other party. The rules relating to formal admissions have been changed by the introduction of the Civil Procedure Rules (CPR). Formal admissions are made in pleadings and all pleadings now have evidential status; for example, failure of a defendant to deal with an allegation in a claimant's form or statement of the case will amount to an admission of the allegation.

A formal admission may also be made in an answer to notice to admit. The old rule that an admission made orally by counsel at the trial for the purpose of dispensing with proof precludes any evidence on this point is now subsumed in the wider principle of CPR, Pt 14, r.1. It must be noted, however, that where there are two interrelated matters, the admission of one does not exclude the other. Any party may admit the truth of the whole or any part of another party's case at any stage of the proceedings (CPR, r.14.1 (1)) by giving such notice in a statement of a case or by letter (CPR, r.14.1 (2)). Finally, a party must make disclosure of documents which are in his possession. Disclosure is the process of revealing the existence of the documents (CPR, r.31.2).

See W.M. Best, The Principles of the Law of Evidence , ed. by S.L. Phipson (London: Sweet & Maxwell, 1922), at 271.

See J.D. Heydon and M. Ockleton, Evidence: Cases & Materials (London and Sydney: Butterworths, 1996), at 60-62.

(1791) 4 TR 366; 100 ER 1067.

(1878) 14 Cox CC 101.

[1982] 1 All ER 1017.

Williams v East India Co (1802) 3 East 192; 102 ER 571.

(1869) LR 1 CCR 196.

[1956] P.259, [1955] 3 WLR 954, [1955] 3 All ER 721, 99 SJ 890.

[1956] P.259 at 272, [1955] 3 All ER 721 at 728 F-G. The seven year wait for certifying death (without a body) was suspended in respect of British people feared dead in the Indian Ocean tsunami disaster in December 2004. Death certificates were issued in a matter of months.

Re Phene's Trust (1870) LR 5 Ch. 139.

McMahon v McElroy (1869) 5 Ir. Rep. Eq. 1; Hopewell v De Pinna (1809) 2 Camp 113; Nepean v Doe (1837) 2 M&W 894; and R v Lumley, supra, n.7.

“Commorientes” are persons who die in a common calamity such as shipwreck, earthquake, conflagration and battle; for example, the tsunami disaster in the Indian Ocean in December 2004. See W.M. Best, Principles of the Law of Evidence (London: Sweet & Maxwell, 1922), at 351.

See J.P. Taylor, A Treatise on the Law of Evidence (London: Sweet & Maxwell, 1931), Vol. 1, at 183.

(1873) LR 8 CP 527.

[1988] 3 All ER 64.

Banbury Peerage Case (1811) 1 Sim & St 153.

Re Jenion [1952] Ch. 454, CA.

Shephard v Cartwright [1955] AC 431.

J.F. Stephen, A Digest of the Law of Evidence , ed. by H.L. Stephen and L.F. Sturge (London: Macmillan, 1948), Art. 62.

R v Luffe (1807) 8 East 193.

Re Oxford Poor Rate Case (1857) 8 E&B 184.

[1983] 3 All ER 789.

Sir Rupert Cross, Cross on Evidence (London: Butterworths, 1967), at 130.

(1966) 50 Cr App R 280.

[1976] 1 All ER 241.

(1999) The Times, 13 July.

[1948] 1 All ER 40.

[1980] 1 ICR 248.

Mostyn v Fabrigas (1774) 1 Cowper 161.

[1924] AC 797.

R v Bow Street Metropolitan Stipendiary Magistrates & Others, ex p Pinochet Ugarte (No. 3) [1999] 2 WLR 827, at HL. See also Harb v King Fahd Bin Abdul Aziz (2005) The Times, 6 June, CA and Republic of Yemen v Aziz (2005) The Times, 22 June, CA.

Stockdale v Hansard (1839) 9A. & E.1 and Bradlaugh v Gosset (1994) 12 QBD 271.

R v Bothrill [1947] KB 41.

Re Rosher (1994) 26 Ch D 801.

[1892] AC 644.

(1834) 6C & P586.

Documentary Evidence Act 1868, ss. 2 and 5.

Huth v Huth [1915] KB 32.

G.D. Nokes, An Introduction to Evidence (London: Sweet & Maxwell, 1967), at 287.

CPR, Pt. 16 r.5 (Subject to qualifications in CPR, Pt. 16, rr.3 and 4).

CPR, r.32.18

See Ellis v Allen [1914] 1 Ch. 904.

Barnes v Merritt (1898) 15 TLR 419.