“THE CONCEPT OF RELEVANCE IN THE LAW OF EVIDENCE IS NOT AS STRAIGHTFORWAD AS IT APPEARS TO BE.” DISCUSS

It is difficult to spell out a straightforward definition of the concept of relevance (Tapper, p71). In the R v Nethercott case, it was held that any two facts to which the concept of relevance is applied are so related to each other that according to the common course of events, one either taken by itself or in connection with other facts, proves or renders probable the past, present or future existence or non-existence of the other. According to Lord Simon in DPP v Kilbourne, “Evidence is relevant if it is logically probative of some matter which requires proof… It is sufficient to say … that relevant (that is, logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable” (Allen, p8). Essentially, relevant evidence is that which makes the matter requiring proof more or less probable. In this sense, relevance is arguably an absolute concept, as proof of one fact either makes the existence of another more probable, or it does not.

Notwithstanding, relevance is often regarded as variable, just as evidence can be regarded as more or less relevant. Zuckerman describes relevance as “having a contextual and dynamic nature”, and the relevance of one fact to another can be judged on its own or in connection with other facts (Zuckerman, p46). This seems to relate more to the cogency of the evidence, given its relevance, but it secures a place in the exposition of the subject because the qualification of sufficiency relates to it. Moreover, for an item of evidence to be relevant, it is never necessary that it should be conclusive. In other words, it is no argument against the relevance of an item of evidence that it can be explained in a way that does not support the proposition that it is being put forward to prove. An alternative explanation can always be found for what appears to be the most compelling piece of evidence. It follows that the mere fact that evidence is admissible does not necessarily mean it will be admitted, since the judge has the explicit discretion to exclude certain evidence (Dennis, p71).

The basic test of relevance is a matter of logic and common sense. The law cannot prescribe rules to determine whether a piece of evidence has sufficient probative potential to justify its reception. In applying the rest of relevance, care must be taken with regard to the selection of the appropriate major premise. For example, one cannot ascertain that a majority of people who plan to kill a particular person actually do so, yet there may be no doubt of the relevance in a murder case of the accused’s plan to kill the deceased. The appropriate premise, for example, is not ‘those who plan to kill a particular person usually do so’, but ‘those who plan to kill a particular person are more likely to do so than those who have no such plan’. The whole point of circumstantial evidence is to establish the accused’s membership of a number of different classes of persons more likely than non-members to have done or omitted to do some act.

The threshold that an item of evidence must overcome to be sufficiently relevant is not a high one. There is a considerable amount of leeway to admit items that are essentially background in character and which are offered as an aid to understanding. This leeway is the reason why there is relative difficulty in the UK in determining the admission of relevant evidence. Relevance in itself is not an inherent characteristic of any item of evidence, but it exists only as a relation between an item of evidence and some other matter which requires to be proved. It is sufficiently relevant when it renders the existence of the other matter more or less probable The appeal courts do not lay guidelines as to when evidence is admissible, although they may interfere with the trial judge’s discretion when the evidence is insufficiently relevant. Notwithstanding, any item of evidence should not necessarily be considered in isolation; its relevance should be considered in the context of the evidence as a whole.

Notwithstanding this threshold, the introduction of exclusionary rules further complicates the concept of relevance. Even where the evidence is relevant, with sufficient probative weight and non-prejudicial, it might still be the subject of an exclusionary rule as was held in the Sang [1979] case (Dennis, p83). The general rule that all relevant evidence is admissible is conclusively subject to a number of exceptions. For example, an out-of-court assertion by a third party that he committed an offence with which the accused is charged is excluded under the rule against hearsay (despite its high degree of relevance) on the reasoning that the witness who narrates the third party’s statement to the court may have no personal knowledge of the facts stated and the party against whom the evidence is admitted may have no opportunity of cross-examining the third party (Dennis, p70). Furthermore, evidence of the accused’s bad character or his disposition towards wrongdoing or specific acts of misconduct may be thought to be relevant because it makes it ore likely that he committed the offence charged, but such evidence is generally excluded because it is thought that there is a risk that the tribunal of fact would attach to it a greater probative value than it has, so that, as it was held in DPP v Kilbourne, its prejudicial effect would outweigh its probative value.

Essentially, common law excludes evidence of many matters which anyone in his own daily affairs of moment would regard as important in coming to a decision. In Hollingham v Head, the defence to a claim for the price of guano was that an express condition in the contract of sale provided hat the goods be equal to Peruvian guano. The defendant wished to call witnesses to swear that the valiant had entered into contracts with other customers that contained a term similar to that for which he contended, but the court held that he was not entitled to do so. Relevance is a matter of degree, and it is as idle to enquire as it is impossible to say whether evidence was rejected in Hollingham because it was irrelevant, or merely because it was too remotely relevant (Tapper, p76). It may also require a balance to be struck between the probative force of the evidence and the external pressure vitiating its use, such as the time likely to be taken in resolving collateral issues.

The concept of relevance is further limited by the decision made by the House of Lords in R v Blastland. The body of a boy who had been strangled was found, and in due course the defendant was charged with buggery and murder. He denied murder, but admitted some sexual activity with the boy not far from where the body was found. According to the defendant, after having sexual intercourse with the boy, he panicked and left after noticing another man nearby. The defendant argued that this other man (Mark) had committed the murder. In order to support this, the defendant wished to rely on evidence of persons to whom this stranger had spoken to after the murder had taken place. It was hoped that the evidence would show that he knew things about the murder that only the murderer could have known. The House of Lords held that the evidence was inadmissible because, amongst other reasons, it was irrelevant; what the defence witnesses could say would amount to evidence of the other person’s knowledge, and so of his state of mind. According to Lord Bridge, for that state of mind to be relevant, it had to be a direct issue at the trial, which was not the case. The issue at the trial was whether it could be proved that the defendant had committed sexual activities and murdered the boy, and the other man’s knowledge was not of any relevance to the issue. It provided no rational basis on which the jury could be invited to draw an inference as to the source of the knowledge, and the admission of the evidence would have been a mere invitation to speculate.

The question that arose from this case involves how potentially relevant evidence could be deemed irrelevant by the courts. The ruling in Blastland is particularly troubling because it is hard to justify the exclusion of Mark’s knowledge. Even if the evidence was rightly excluded, it does highlight transparency in judicial making (Dennis, p63). The House of Lords tried to avoid the mess of claiming that while the evidence was relevant, it was going to be excluded because the trouble it would create in generating collateral issues and mere speculation outweighed its marginal probative value. They did not adopt this approach because it would have been incompatible with the doctrine which implied that no rule of exclusion applicable to potentially exculpatory defence evidence exists. In its bid to preserve the concept of relevance, the House of Lords may have excluded arguably relevant evidence. Notwithstanding, a more straightforward approach is encouraged by the powers under the US Federal Rules of Evidence, where it is held that “relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice…” (Uglow, p13).

It has been observed by some academics that this concept of legal relevance has led to a lack of clarity in the overall concept of relevance. It follows that this has made relevance a less straightforward area of the law. Zuckerman refers to the rejection of evidence under “blanket pronouncements of irrelevance” (Zuckerman, 49-50). In conclusion, mere legal precedence is not as sufficient as a case by case assessment of evidential sufficiency. In many cases where evidence is deemed irrelevant judges are not actually referring to the concept of relevance as governed by logic and common sense. By departing from the common sense notion of relevance the courts have created an additional need for us to decipher which concept of relevance they are really basing their judgment on. The concept as occasionally used by the judiciary has resulted in some judgments on the issue being vulnerable to claims of obscurity. Past decisions serve as useful guides for implementing evidentiary goals and policies by avoiding confusion, whereas appeals to common sense as the arbiter of relevance introduce a plethora of complexities. Notwithstanding, relevance should not be instituted as a straightforward concept. If there is a good reason for excluding logically relevant evidence, the courts should not be afraid to say in plain terms, rather than hiding under the pretext of deeming such controversially relevant evidence as irrelevant, as it will in no way foster the already waning public confidence in the administration of criminal justice.

The concept of relevance is certainly not as straightforward as once presumed. The current use of the term could render the concept itself redundant, and it has continued to blur the reasoning behind some exclusion principles. The judiciary should not exercise power by coercion of law; rather, a codified yardstick for determining legal relevance (which could be pointed to and used to guard against claims of abuse of power) will be more serving. A plethora of policy concerns have been carpeted under the ultimate criterion of the concept of relevance, and various scholars have warned of how this could be damaging to the Rule of Law and public confidence in the justice system.

Rather than the current approach, where relevant evidence is excluded for undefined policy reasons, attempts need to be made to expressly state this exclusionary discretion in statute. As mentioned earlier, Rule 403 of the US Federal Rules of Evidence provides an example of such a legislative move. The exclusionary discretionary should be formally recognized as being on a par with settled exclusionary rules such s.78 of PACE (Dennis, p88-89). Once legal relevance is identified as a separate concept and its policy considerations openly acknowledged it would be necessary for law-makers to fully define its scope and also give justifications for its existence. This process would provide clarity and a rational basis for determining relevance, thus making it a more straightforward area of the law.

WORKS CITED

TEXTS:

Allen, Christopher, "Practical Guide to Evidence" (3rd Ed.). Cavendish Publishing, 2004
Dennis, I.H. "The Law of Evidence" (2nd Ed.). London Sweet & Maxwell, 2002
Tapper, Colin, "Cross & Tapper on Evidence" (10th Ed.). Lexis Nexis, 2004
Uglow, Steve, "Evidence Text & Materials". London Sweet & Maxwell, 1997
Zuckerman, A.A.S. "The Principles of Criminal Evidence". Clarendon Press, Oxford 1992

CASE LAW:

DPP v Kilbourne

Hollingham v Head

R v Blastland

R v Nethercott

Sang [1979]