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His Lordship summarised the approach as follows :-
"It therefore seems to me that although a judge has no discretion to exclude admissible
evidence, his ruling on admissibility may involve a balancing of the degree of relevance of
the evidence against other considerations which is in practice indistinguishable from the
exercise of a discretion. It is in my view essential, if judges are to be able to keep the length
of trials within bounds and conduct the proceedings with due sensitivity to the interests of
third parties and the wider public interest, that they should have the same latitude in deciding
how the balance should be struck as this court would accord to the exercise of a
discretion."
Such a power may usefully be kept in reserve to be used, for instance, to stop what has
been demonstrated to be an unjustifiably prolix examination or cross-examination of a
witness. While the evidence might initially have been relevant and admissible,
repetitions and reiterations may take further evidence along the same lines across the
"insufficiently relevant" line and justify intervention by the court. Such an approach
would be consonant with existing principle and authority and would be reactive rather
than proactive. It would not involve the court in any attempt at delimiting beforehand
the issues on which it requires evidence, the nature of the evidence required, or how it
is to be placed before the court. A practice direction giving notice of the court's
intention to adopt this approach should be issued.
Recommendation 98: Proposals 35 and 36 (for the introduction of legislation
and rules empowering the court to give directions defining the issues on which
it requires evidence; what evidence it requires; and how the evidence is to be
placed before the court) should not be adopted.
Notes
Ibid.
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