The English legal system is an adversarial system, the judge is considered to be a “constitutional monarch”. In order to win a case, you have to be able to convince the tribunal that their versions of the facts of the events are correct. In civil cases, it is for the judge to make amendments to the pleadings and to maintain overall control. In criminal cases, accepting a guilty plea or discontinuance of the prosecution is dependent on the judge’s consent. The significant role of the judge will be based on the question of law; it is for the judiciary to decide the question of evidential admissibility.
There are stages in a case where the trial judge would need to consider issues of fact. A similar approach is taken when we are deciding whether or not a witness is competent enough to be able to testify. Judicial power is limited when it comes to questioning witnesses. The judge can clear up ambiguities by asking questions during a trial, but must ensure that he/she does not “enter the arena”. It is clear that asking too many questions would be inappropriate.
What is also relevant is the nature of the case, in Mitchell (2010) where during cross examination the judge intervened indicating that the judge was placing his own thoughts to the jury about the issues of the case. In criminal cases it is encouraged that judges should be more willing to call witnesses as in R v Haringey Justice ex parte DPP (1996). In order to allow for case management, the judge has the power to impose time limits when it comes to cross examination and questioning, as part of their role. As in the case of R v B (2006), valuable time was spent on repetition and immaterial matters.
Admissibility: The judge must consider whether there was sufficient evidence on self-defence, for example. In Accott (1997), the prosecution suggested D had lost self-control and attacked his mother, but denied this. The judge left it for the jury to decide on the basis that the appellant was either guilty or not guilty of murder without leaving any issue of provocation to the jury, the prosecutions questions are not evidence (Followed by Serrano (2006)). If there is dispute over admissibility, the judge must decide whether conditions for admissibility are satisfied.
A significant role of a judge when deciding on admissibility would be to consider the relevance of the evidence. Before determining if the evidence admitted by the parties is admissible it must meet certain conditions. Firstly that it is relevant, it holds substantial weight and that it maintains fairness within the court process. In criminal cases, the prosecution can depend on confessions and incriminating statements made out by the defendant. These would only be admissible if they have satisfied the conditions made by s76 PACE 1984.
The court must be satisfied by the crown that these specific conditions have been met. It is for the judge to consider whether these conditions exist to allow the evidence to be admitted. Lord Denman CJ in Jenkin v Davies (1847) stated that “the judge alone has to decide whether the condition has been fulfilled. If the proof is by witnesses, he must decide on their credibility. If counter-evidence is offered, he must receive it before he decides and he has no right to ask the opinion of the jury on the fact of a condition precedent”.
When there is an issue that has to be decided by the jury, the judge needs to come to a prima facie decision of whether there is sufficient evidence and whether there are well founded objection. Nonetheless, the jury is one who will have to make a decision about the central question (Stowe v Querner (1870)). In some cases the judge will have to determine whether or not the evidence is admissible or not, at this stage in the absence of the jury (Hampshire (1995), Winter (2007)), the judge would hold a Voir Dire meaning trial within a trial.
The rules of admissibility conform under both statute and common law. Nowadays, the issue may have been settled prior to trial in preliminary hearing under the Criminal Procedure and Investigations Act 1996. Factual inquiry would also have to be carried out by the judge. In the case, R v Reynolds (1950) Lord Goddard CJ expressed that in an absence of a jury, preliminary facts should only be limited to exceptional case such as when determining the admissibility of a contested confession.