SERIOUSLY GOOD ADVOCACY OF THE LAW OF EVIDENCE

 

by Phillip Taylor MBE, Malet Street Gazette, Barrister Desk Editor

Abbey and Richmond Chambers

 

Sidney Phipson’s work first appeared in 1892 around the time that Mrs Carlill was having trouble with her smoke ball.  The new, 15^th edition, maintains the very highest standards of the Sweet and Maxwell Common Law Library: the simple truth is that Phipson on Evidence is the best book available for both practitioners and academics.  Lawyers know that the ‘problem’ with evidence is the changing nature of the subjects with its massive case law and continual attempts at full codification by successive governments.

 

So, what changes have taken place in five years since the fifteenth edition?  Uncomfortably, for many people, rather too much as the pace of reform has finally quickened to a trot with the arrival of the Civil Procedure Rules (CPR) in 1999, and their criminal partners, the Criminal Procedure Rules 2005 (covered in an elegant and readable fashion by ‘Blackstone’s Guide to The Criminal Procedure Rules 2005’ by Duncan Atkinson and Tim Moloney: OUP – ISBN 0-19-928904-2). 

 

Hodge Malek says, in ‘Phipson’, that these new rules ‘open with overriding objectives which colour the interpretation of the procedural rules generally’. I found Blackstone’s Guide very helpful to the everyday practitioner but if you want more, then go to the fount of all evidentiary knowledge which is “Phipson” and use them in tandem. 

 

 

THE CRIMINAL JUSTICE ACT 2003

 

Readers of ‘The Barrister’ do not escape lightly this time because I must refer to the provisions of the CJA 2003 and the great changes we have seen with the implementation of the statute.  Malek writes that ‘by and large the changes … are intended to strengthen the hand of the prosecution’ but that really cements what both Labour and the previous Tory governments have been doing for many years which has been to meddle with criminal justice when what we really need is full codification which so many ‘Criminal Law Review’ readers have been expecting for the last twenty years. 

 

Well, we are now on this great adventure with the arrival of the new rules and some twenty-first century common sense to be found in the Phipson explanations of hearsay and character.  Life would not be quite right unless we had a mention of the Human Rights Act, and Phipson adds this extra layer of argument well.

 

Proof enough that, on the evidence, Phipson has no near contender for sheer depth and breadth of its task can be seen with what the book now contains.  The new edition has been completely re-written although the structure remains largely the same: it is the content which is fundamentally different, new and improved. 

 

There are 44 chapters, each chapter being written by an expert in his or her field.  I believe it is an essential reference tool for both the practitioner and the academic and I use it frequently as a lecture source at the University of London. It covers the complex mixture of rules, principles and practice directions which is rightly pitched at both the practical and intellectual level and which no other one competitor reaches.  It is right to say that Phipson helps you in every situation related to evidence. 

 

THE BEST TEAM OF AUTHORS

 

Whenever I am asked by my constituents on the Council I serve ‘where can I find the law’ as though there is one book which contains everything, I think of Halsbury, naturally.  Then, I think further and remember the individual gems which comprise “The Common Law Library”. 

 

With other leading Library titles already reviewed by ‘The Barrister’, I have turned to one of my own personal favourites which is Phipson.  I suspect most of us have our own ‘little favourites’ stemming from student days (‘Learning the Law’) to those dreary nights in November during the Bar course desperately trying to finish a practical training exercise on evidence and procedure.  That is when I really found The Common Law Library although I had known of the existence of Chitty since ‘A’ levels in 1960s. To me, Phipson is an island on its own when it comes to the wealth of material on evidence.  It is always a pity that it appears every five years or so, but Hodge Malek and his excellent team are to be congratulated on a serious piece of work which is of historic importance with the gratefully received civil and criminal rules and a CJA which seems to make some sense (even for Parliament). 

 

 

Robert Walker rightly says that this is a ‘venerable work’ in his generous foreword but he then spoils it by reminding us that there were other highly regarded textbooks on evidence in the nineteenth century.  The point is that Phipson has the lasting power and it does make it’s own contribution to the development of the law of evidence by bravely venturing into fields like equitable estoppel where no book has boldly gone before.  To me, the modernisation of the well-discarded Criminal Evidence Act 1898 now reflect the changing notions of fairness with the new CJA – Walker writes so well when he says: “evidence has ancient roots which are today barely discernible under the ramifications of centuries of common law development and statutory reform, some of it of a drastic nature”.  It is the drastic nature of this reform which I believe many would like to see develop so that in the not too distant future we have a workable system of codification of the law of evidence.