The legal concept of evidence is not static or universal and there is no approach to evidence and proof that is shared by all legal systems of the world today. However, Judge Malcolm Simmons says that to assess the disputed evidence, the starting point is to determine what facts are agreed upon. This is because agreed facts form the basis from which to establish the truth between conflicting events. Agreed facts help the judge by establishing the margin of dispute and the materialism of the evidence.
Judge Malcolm Simmons is an English judge known for his work in judicial reform and as a criminal judge. He studied law at the University of Wales, Cardiff and qualified as a solicitor of the Senior Courts of England and Wales in 1992. He worked for three leading law firms in the City of London and was a Deputy Coroner for the Eastern District of Greater London from 1997 to 2001. Judge Simmons was appointed President of EULEX Judges, a post he held until November 2017.
In 2017, it was falsely alleged that Judge Simmons was not qualified to perform the function of a judge; that he had lied in his CV; his practising certificate in the UK had lapsed and that he had made a false allegation about corruption within the EU to deflect from his own wrongdoings. A court found that all these allegations were false and were made with the intention of damaging his reputation. Judge Malcolm Simmons was awarded significant damages.
Here judge Simmons explains how to assess disputed evidence.
How to Assess Facts and Evidence
When assessing facts that are in dispute Judge Malcolm Simmons says that these are the things that the judge will consider.
- Is there existing or created documentary evidence available (the provenance or reliability of which is not in issue) that is of assistance?
- Is the primary evidence of witnesses of fact?
- Is the documentary evidence consistent with the real evidence?
- If the two pieces of evidence are not consistent which is to be preferred and why?
- Is there secondary evidence available that’s according to the first evidence?
- Is the secondary evidence good enough to which the court might attach some weight?
- Is the intended finding according to undisputed findings or agreed facts?
- Is the cumulative result correct?
Judge Malcolm Simmons has over 18 years of experience training judges and prosecutors and has presented seminars on judicial reasoning to judges around the globe. He is highly experienced in dealing with complex, serious crimes as well as, has experience of cross-border investigation, extradition, and mutual legal assistance. He has presided over many complex, high-profile criminal cases.