1 - Law of evidence and proof

Question 1

Explain the Woolmington principle

Answer 1

The fundamental principal in criminal law is the presumption of innocence known as the Woolmington principal. The burden of proof lies clearly with the prosecution in relation to all of the elements of the offence. Does not mean that the defence need not put forward any sort of case at all.

Question 2

Explain an evidential burden on defence

Answer 2

The defendant may wish to put up a defence to the charge.

Having an evidential burden means that a defence cannot be left to the jury or judge unless it has been made a live issue by the defence. It is not a burden of proof, and once it is made a live issue then the prosecution must destroy the defence, because the burden of proof remains where that case puts it - with the prosecution.

Question 3

Exceptions to the Woolmington principal

Answer 3

There are exceptions where the legal burden of proof is placed on the defendant. The most common example is a defence of insanity.

Furthermore, the principal can be overridden by Parliament by express statutory exceptions. Some offence provisions shift the burden of proof of specific defences to the defendant.

In summary

• defence of insanity is claimed
• specific statutory exceptions exist
• the offence is a public welfare regulatory offence

Question 4

What are the standards required for discharging the burden of proof - difference between prosecution and defence

Answer 4

In general, where the legal burden is on the prosecution it must be discharged beyond reasonable doubt. Any element which the defence bears the burden of proving need only be proved on the balance of probabilities.

Question 5

Explain beyond reasonable doubt and the name of the case law

Answer 5

R v Wanhalla:

Reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful and impartial consideration to all of the evidence.

The starting point is the presumption of innocence. You must treat the accused as innocent until the Crown has proved his or her guilt. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his or her innocence.

Question 6

Explain balance of probabilities

Answer 6

Where the defence is required to prove a particular element, such as insanity, on the balance of probabilities, it must simply show that it is more probable than not. If the probabilities are equal, the burden is not discharged.

Question 7

3 ways that evidence may be given

Answer 7

• the ordinary way
• the alternative way such as by video link
• any other way provided for by the Evidence Act 2006 or any other enactment