The revival of evidential relevance: overcoming myths and misconceptions

August 2024
 

July saw a recent article by Polly Hernandez, Lecturer in Law, titled "The revival of evidential relevance: overcoming myths and misconceptions” published in the Criminal Law Review Journal [Crim. L.R. 2024, 7, 458-470].

Introduction

When you think about criminal court cases and the supporting evidence put forward in such proceedings in the UK, it is likely that you have an awareness of the “relevance” principle. Whether your knowledge of evidential relevance stems from academic studies, fictional courtroom dramas on tv or other sources, you may be aware that evidence in criminal trails must be deemed “relevant” before it can be admitted. Evidence is considered to be relevant if it “makes the matter which requires proof more or less probable”.

You may consider evidential relevance to be well established in terms of both definition and application throughout the criminal legal system, given its longevity and prevalence. However, Polly’s article explores this notion, suggesting that “a prominent relevance myth exists: the myth of relevance as a “well-settled” evidential matter that poses few problems in the criminal courts.”

As part of a research project undertaken by Polly looking at evidential relevance in theory and practice, interviews were conducted with 20 criminal barristers. These interviews inform the article discussions regarding the understanding and application of relevance testing, how it works in practice and the inconsistencies that were uncovered. The article also frames the timeliness of this discussion as it pertains to a recent consultation paper published by the Law Commission regarding evidential matters in sexual offence prosecutions. The consultation paper considers sexual behaviour evidence, proposing a new evidential filter model that progresses the relevance test. Some of the difficulties surrounding “relevance” are considered within the article, with a call for the Law Commission to acknowledge these difficulties and to explore possible controls that could be implemented.

Logical Relevance or Legal Relevance

The interplay between relevance and admissibility is considered in the article, given that determining relevance does not guarantee that the evidence will be presented and considered. One form of evidential process of exclusionary discretion asks if the evidence is:

1. 1. Relevant
   2. Subject to an exclusionary rule
   3. Subject to an inclusionary exception to any applicable exclusionary rule

The placement of relevance in this evidential process highlights a difference between relevance (item 1) and admissibility (items 2 and 3), and this placement process was used by the author in both research project and the article, for consistency and clarity.

Consideration is then given to the relevance test, of which there are two standard approaches:

1. 1. Logical - needs to establish a link between the evidence and the fact in issue, in a common sense and logical way
   2. Legal - needs to establish a link between the evidence and the fact in issue, in a common sense and logical way and it also needs to demonstrate a “plus value” which is an “additional probative value”, meaning any disadvantages of admitting the evidence can be considered

The article states that there is a lack of research into how the relevance test is applied in practicality, including which test should be used and when.

Circling back to the Law Commission paper regarding evidential matters in sexual offence prosecutions, an overview of the current admissibility requirements is provided. Detailing that sexual history evidence cannot be admitted unless it fits within one of four “gateways” of admissibility and it meets other criteria. The Law Commission paper and a number of the barristers interviewed identified that the current framework is too restrictive and complex. The Law Commission paper proposes a move away from the exclusionary evidential standards, which aligns with a wider move from exclusionary evidential standards in other areas of law, to a potential relevance-based approach in sexual behaviour evidence. The new approach would use a “structured discretion model” with an enhanced relevance test which would require the evidence to have “substantial probative value”. This leans towards the legal relevance test, as detailed above. The article calls for further detail on substantial probative value as part of the reform proposal and it emphasises the importance of understanding the tests for relevance, particularly when being used as part of a proposed law reform framework.

Insight into Views and Approaches

Engaging barristers in research interviews provided key insights into the views and approaches of the relevance test in the criminal justice system. There was a general consensus across the barrister interviews that relevance is a “settled and unproblematic evidential matter” that is applied consistently.

B14: “I think [barristers] are all pretty clear on what it means for evidence to be relevant. I think to put it in the most simple way for you, we need to ask ‘is the evidence going to assist the jury based on the particulars of the given case?’”

B12: “It’s just if something’s not relevant, that is normally screaming out … whether or not it is relevant is rarely something that is balanced on a knife edge.”

Potential differences in outcomes were discussed, but the consistency of the relevance test application was not identified as an issue:

B2: “I don’t think there is an inconsistency as to the law that is being applied. I do think, undoubtedly, there are inconsistencies of approach between judges and between lawyers, as to whether something genuinely is or isn’t relevant.”

B3: “I always try to remove anything which I think is irrelevant, you know, and it is tricky, not every barrister is the same. Other barristers might say ‘oh I think that’s really relevant’ and you sort of think ‘oh I don’t know’.”

Taking the potential for differing outcomes into consideration, Polly notes that “the overriding theme from interview data was a collective assumption that barristers understood relevance in the same way and took the same approach to decisions on relevance”. It is suggested that the responses to the Law Commission’s consultation paper are likely to reflect the responses of the interviewees, marking relevance as steady and reliable. However, the research data collected opens up challenges to this, demonstrating how, at times, relevant is approached inconsistently in practice.

Selection

The 20 barrister interviewees were asked to detail whether they recognised with the logical or legal relevance tests in practice:

• 9 identified the logical test as the appropriate test

B1: “I think there’s a real danger in the second one [legal relevance] … I’m thinking more of an investigative aspect, the problem that you have, and this you see it in the most serious cases … you start applying a notional probative test to it [evidence], then that is ultimately subjective, and that’s very much in the eye of the person who’s applying that probative test … Now the difficulty is if you apply that probative test, that material will be in effect lost, because it won’t even appear on the disclosure schedule and that creates a problem. Because then there’s material that you didn’t even know existed further down the line … So I would reject a probative test, I think. Is it logically, in common sense, relevant … I just think if you, if you start … subverting the second stage of any sort of evidential tests, first being relevance, the second is it evidence or unused material, the third is if it’s unused material. Is it sensitive, disclosable? But all the rest of it and then probative. It’s … far further down the line. I think it’s a discrete test.”

• 5 identified the legal test as the appropriate test

B15: “As I understand it, I would say [legal relevance] because it directs your mind to the strength of the evidence, which is necessary. You might think that some evidence is relevant to something in the case, logically speaking, but that does not necessarily mean it is useful to the case you are advancing.”

• 6 were labelled as ‘other’ as they used a mixture of both tests, used neither test or didn’t specify a test

B2: “I think it probably is just a mish mash in practice … I think most people in daily practice just approach it without really thinking whether what they are using to decide that question was strictly speaking a question of logic or by relevance to a legal test … they’re only going to start focusing on specific legal definitions of relevance … if they’re obliged to assess a statutory gateway.”

Understanding of the relevance test and views on the appropriate test varied across the barristers, which contradicts the assertion in the data that the understanding and approach is universal and consistent. The articles notes “This is not a critique of barristers or a suggestion of bad practice, but a reminder of the importance of understanding how discretionary tests—such as relevance—are used in practice”.

Whilst it may seem that the Law Commission’s reform proposals to include a substantial probative value threshold in the relevance test for sexual history evidence may help lessen the disparities that are in operation currently, the article suggests it does not go far enough. The higher threshold of relevance does not remove the subjective interpretation and there is a call for the Law Commission to provide additional guidance and detail to aid consistency in relevance testing.  

Application

The research data showed that other factors, outside of the relevance test, can influence the decision-making process which leads to further inconsistencies. Judges and other parties in the court room were part of the external influence:

B11: “I know if I am … in front of X judge then they might give me some latitude in terms of the evidence I want to include in the case, and give me the time and space to explain its value to the jury. Y judge might have a more brisque approach, so I know when I am before judge Y that I just need to get to the point and that might mean leaving out some bits that I might have otherwise included.”

B20: “You definitely don’t want to get a reputation among colleagues as someone who will take issue with every piece of evidence the prosecution wishes to adduce. That would be counter-intuitive and, tactically speaking, it isn’t great to get on the wrong side of the judge for no good reason.”

These statements downstate the sphere of influence can go beyond the defined relevance test, noting they are “examples of themes that emerged from interviews and are no means exhaustive of the factors that guide and influence legal decision-making on relevance.”

Conclusion

The unique look into how relevance is viewed and applied by practitioners provided valuable understanding of factors influencing the decision-making process. It was found that a prominent relevance myth exists: the myth of relevance as a “well-settled” evidential matter that poses few problems in the criminal courts.

The barristers interviewed identified the relevance test as “settled and dependable” and it is anticipated that this viewpoint will be fed back to the Law Commission consultation paper on sexual behaviour evidence. However, the research data clearly demonstrates “significant inconsistencies in barristers’ approaches to, and understandings of, relevance”, with understanding and application of thresholds varying in practice.

The article details that the Law Commission’s proposal to enhance the relevance test, assumes that the relevance and probative nature of evidence testing is clear, understood, specific and consistent. However, the research demonstrates that this is not the case. It has therefore been suggested that “additional guidance on the enhanced relevance test may be a useful addition to the Law Commission proposal to further assist barristers in the decision-making process”. This would support a step change towards consistency and clarity. Read the full article in the Criminal Law Review Journal