Basic Principles (W1)

Question 1

F1.1 - Facts in issue

Answer 1

(a) the facts which the prosecution bear the burden of proving or disproving (in order to establish the guilt of the accused)
(b) the facts which, in exceptional cases, the accused bears the burden of proving in order to succeed in the defence
- Determinable by reference to the legal ingredients of the offence charged and any defence raised.

Question 2

F1.1 - What is not a fact in issue?

Answer 2

Any fact which is formally admitted under s.10 CJA 1967 ceases to be in issue: it must be taken to have been proved.

Question 3

Proving a fact by means other than calling live evidence

Answer 3

(a) agreeing a witness statement as true by consent of the parties (CJA 1967, s 9)
(b) agreeing any fact between the parties (CJA 1967, s 10)
(c) a judge or jury take ‘judicial notice’ of the fact

Question 4

Agreeing any fact between the parties - CJA 1967, s 10

Answer 4

• Advocates in a case agree that the fact is so.

- The fact is reduced to writing, and both parties agree and sign the agreement.

Question 5

Agreeing a witness statement as true by consent of the parties - CJA 1967, s 9

Answer 5

• Witness statement can be agreed as accurate and true in its written form
• Statement is then read out and carries the same weight as if the witness had attended in person and given evidence from the witness box
• Only agreed this way if there is no challenge to the evidence.

Question 6

F1.3 - Rules for s 10 formal admissions

Answer 6

• In general, should be put before the jury, provided they are relevant to an issue before the jury and do not contain any material which should not go before the jury
• In court, a formal admission may be made by counsel or a solicitor orally (s.10(2)(b) and (d))
• What has been admitted should appear clearly on the shorthand note (Lennard)
• It is important that the jury are clear as to what has been formally admitted.
• Where a party introduces in evidence a fact admitted by another party, or parties jointly admit a fact, then unless the court otherwise directs, a written record must be made of the admission (CrimPR 24.6 in magistrates, 25.13 in the Crown Court)
• s 10 will apply in the case of relevant facts in a written schedule which the parties agree to put before the jury; and will also apply to any such facts that were removed from the schedule, pending a judicial ruling on their admissibility, on their reinstatement following a ruling in favour of admissibility (Lunkulu)

Question 7

F1.3 - Rules on going back on formal admissions

Answer 7

Leave to withdraw them is unlikely to be given under s.10(4) without cogent evidence from the accused and advisers that the admissions were made by reason of mistake or misunderstanding (Kolton)

Question 8

F1.4 - Judicial notice

Answer 8

• Allows the tribunal of fact to treat a fact as established, notwithstanding that no evidence has been adduced to establish it, e.g. where facts are generally and widely known.
• A judge is permitted to take judicial notice of a fact ‘on enquiry’, meaning they might not know a fact off the top of their head but could find it out very easily. The parties would have the option of asking the judge to take judicial notice on enquiry and let the judge look up the answer.
• Jurors are not allowed to do their own research at any time.
• Jurors cannot take notice on personal matters that they happen to know, but are not generally known. If a juror has personal knowledge on matters relevant to the case, they should let the court know and the judge can deal with any issues.

Question 9

Types of evidence

Answer 9

(a) Oral evidence given by witness in court
(b) Written evidence: agreed statements (s 9 CJA 1967) or admitted facts (s 10 CJA 1967)
(c) Real evidence
(d) Direct evidence
(e) Circumstantial evidence
(f) A ‘view’

Question 10

F8.45 - Real evidence

Answer 10

Objects/things brought to court for inspection, e.g. documents exhibited by a witness who can vouch for their origin.

• Little if any weight can attach to real evidence in the absence of accompanying testimony identifying the object and connecting it with the facts in issue. In some cases, the tribunal of fact must not draw its own unaided conclusion without expert testimony (Tilley, Hipson)
• There is no rule that an object must be produced before oral evidence may be given about it (Hocking)
• Non-production may give rise to an adverse inference (Armory)

Question 11

Direct evidence v circumstantial evidence

Answer 11

Direct - evidence that a witness gives of having had direct experience of a matter

Circumstantial - evidence from which facts are inferred

Question 12

F8.50 - A ‘view’

Answer 12

Sometimes juries can visit a scene of the crime or leave court to view an object that cannot be brought into court. Their observations become evidence in the case.

• A view should not take place after the summing up (Lawrence)
• Should be attended by the judge, the tribunal of fact, the parties, their counsel, and the shorthand writer.
• In magistrates: should take place before conclusion of evidence in the presence of the parties or their representatives
• CrimPD VI: a judge must produce ground rules for a view, after discussion with advocates. They should contain details of what a jury should be shown, in what order, who will be permitted to speak, what will be said, and should make provision for jury questions.

Question 13

F1.11 - Cardinal rule of the law of evidence

Answer 13

Subject to the exclusionary rules, all evidence which is sufficiently relevant to the facts in issue is admissible, and all evidence which is irrelevant or insufficiently relevant to the facts in issue should be excluded.

Question 14

F1.11 - When can evidence that is relevant nonetheless be excluded?

Answer 14

• If it is such that no reasonable jury, properly directed as to its defects, could place any weight on it (Robinson)
• An offence of strict liability involves no proof of mens rea, so evidence of motive, intention or knowledge is inadmissible, as it is irrelevant to what the Crown has to prove (Sandhu)

Question 15

F1.12 - The meaning of ‘relevance’

Answer 15

‘Evidence is relevant if it is logically probative or disprobative of some matter which requires proof…relevant evidence is evidence which makes the matter which requires proof more or less probable’ (DPP v Kilbourne)

Question of relevance typically to be determined by common sense and experience (Randall)

Question 16

F1.14 - Good character

Answer 16

• Evidence of good character of a prosecution witness is generally inadmissible to bolster the witness’ credibility, because it amounts to ‘oath helping’ (Robinson)
• May be admissible if relevant to an issue in the case (Amado-Taylor)
• If it is admitted because it is issue-relevant, judge should ensure the effect of admitting it is not to water down the burden of proof on the prosecution and any good character direction given for the accused.

Question 17

F1.36 - General rule as to law and fact in a trial on indictment

Answer 17

• Questions of law are for the judge
• Questions of fact are for the jury
• In trials on indictment without a jury, the judge decides all questions of both law and fact and, if the accused is convicted, must give a judgment which states the reasons for the conviction (CJA 2003, s 48(3) and (5))
• Lay magistrates, when sitting with a judge in the CC, are also judges of the court (Senior Courts Act 1981, ss. 8 and 73); they should participate in all questions to be determined by the court, incl. any factual aspect of any question relating to the admissibility of evidence, but must accept the ruling of the judge on questions of law (Orpin)

Question 18

F1.36 - Questions of law for the judge in jury trials

Answer 18

(a) where the court has determined that an accused is unfit to plead, whether the accused did the act or made the omission charged as the offence
(b) challenges to jurors
(c) discharge of a juror or the whole jury
(d) competence of persons to give sworn or unsworn evidence
(e) admissibility of evidence
(f) withdrawal of an issue from the jury
(g) submissions of no case to answer
(h) the issues on which the jury should be directed in the summing up e.g. the law governing the charge, the burden and standard of proof, the use which the jury is entitled to make of evidence, the operation of any presumptions, the nature of/any requirement for corroboration
(i) matters ancillary to the trial itself, e.g. questions of bail, costs and leave to appeal

Question 19

F1.36 - Questions of fact for the jury in jury trials

Answer 19

(a) whether the accused stands mute of malice or by visitation of God;
(b) the credibility of the witnesses called and the weight of the evidence adduced;
(c) whether, applying the burden and standard of proof applicable, they are satisfied as to the existence or non-existence of the facts in issue

Question 20

F1.36 - Questions of fact for the judge in jury trials

Answer 20

• whether the accused is fit to plead
• existence or non-existence of preliminary facts e.g. facts which must be proved/disproved as a condition precedent to the admissibility of evidence
• sufficiency of evidence (in deciding whether an issue should be withdrawn from the jury)
• evaluation of evidence adduced by the parties (for the purpose of commenting on its weight in summing up to the jury)

Question 21

F1.42 - Rules on law and fact in summary trials

Answer 21

• Lay justices decide all questions of both law and fact
• On questions of law, including the law of evidence, they should seek and accept the advise of the justice’s legal adviser.
• In theory, District Judges are in the same position but their need to ask for advice would be quite rare

Question 22

F2.7 - Most important discretionary power to exclude otherwise admissible prosecution evidence

Answer 22

• PACE 1984, s 78(1)
• ‘In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.’

Question 23

F2.7 - Important considerations about s.78(1) PACE 1984

Answer 23

• Applications to exclude evidence under the section should be made before the evidence is adduced (and, if reference is being made to it in the prosecution opening speech, before that speech)
• Generally regarded as conferring a discretionary power for the judge
• The Court of Appeal will intervene with a judge’s decision on s.78 only if they have not exercised the discretion at all or have done so but in a Wednesbury unreasonable manner.

Question 24

F2.9 - Excluding otherwise admissible evidence at common law

Answer 24

(a) any admissible evidence which is likely to have a prejudicial effect out of proportion to its probative value
(b) admissions, confessions and other evidence obtained from the accused after the commission of the offence by improper or unfair means and which might operate unfairly against the accused (Sang)

Question 25

F2.9 & 2.10 - Using the common law or s.78 to exclude evidence

Answer 25

• Evidence that comes under (b) i.e. is a confession/admission etc may be excluded either at common law or pursuant to s.78
• s.78 seems to just extend common law powers in that it applies to any evidence on which the prosecution propose to rely, whereas common law applies to admissions, confessions and evidence obtained from the accused after the commission of the offence.

Question 26

F2.36 - Judge discretion to exclude otherwise admissible evidence

Answer 26

As part of his/her inherent power and overriding duty to ensure the accused receives a fair trial, the judge always has a discretion to exclude otherwise admissible prosecution evidence if, in the judge’s opinion, its prejudicial effect on the minds of the jury outweighs its true probative value.

Question 27

F3.1 - Two principal types of burden

Answer 27

(1) Legal burden

(2) Evidential burden

Question 28

F3.1 - The Legal Burden

Answer 28

• A burden of proof, i.e. a burden imposed on a party to prove a fact or facts in issue
• The question of whether a party has discharged a legal burden is decided by the tribunal of fact at the end of the trial after all evidence has been presented.

Question 29

F3.1 - The Legal Burden standard of proof

Answer 29

• Borne by the prosecution: beyond reasonable doubt (Woolmington v DPP)
• Borne by the accused: on a balance of probabilities. The accused never bears the heavier burden of proof beyond reasonable doubt

Question 30

F3.1 - The Evidential Burden

Answer 30

• The burden of adducing evidence or ‘the duty of passing the judge’, i.e. the burden imposed on a party to adduce sufficient evidence on a fact/facts in issue to satisfy the judge that such issue(s) should be left before the tribunal of fact.

Question 31

F3.5 - Situations where the evidential and legal burden become detached (i.e. different parties have to satisfy them)

Answer 31

• Very rare and only happens with any regularity with self defence
• The judge requires some evidence to be raised in order to put the issue before the jury, but there is no actual standard of proof required: the courts simply require that the defence raise ‘some’ evidence to ‘pass the judge’ that the defendant did act in self defence.
• Mostly just means that the defence cannot make a speech to the jury calling on the jury to acquit on the basis of self defence without actually having raised some evidence of self defence earlier in the trial.

Question 32

F3.6 - General rule of the legal burden

Answer 32

The prosecution bear the legal burden of proving all the elements in the offence necessary to establish guilt (Woolmington v DPP)

Question 33

F3.7 - Three categories of exception to the general rule of the legal burden

Answer 33

(a) Insanity
(b) Express statutory exceptions
(c) Implied statutory exceptions

Question 34

F3.8 - Burden of proof in cases of insanity

Answer 34

• If the accused raises the defence of insanity, the accused will bear the burden of proving it on a balance of probabilities (M’Naghten’s Case)
• If the accused is charged with murder and raises one of two issues, either insanity or diminished responsibility, the court shall allow the prosecution to adduce evidence tending to prove the other of those issues. The burden on the prosecution will be to prove the other of those issues beyond reasonable doubt (Grant)

Question 35

F3.8 - If the accused is alleged to be under a disability rendering the accused unfit to plead and stand trial on indictment

Answer 35

• Issue may be raised by either the prosecution or defence (Criminal Procedure (Insanity) Act 1964, s 4)
• If the prosecution contends this and this is disputed by the defence, the burden of proof is on the prosecution to satisfy the court beyond reasonable doubt (Robertson)
• If the defence contend this, the burden is on the defence on a balance of probabilities (Podola)

Question 36

F3.9 - Express statutory provisions altering the burden of proof

Answer 36

• Statutory provisions which put on the accused an obligation ‘to prove’ a matter usually cast a legal burden on the defence.
• However, in appropriate circumstances, the words ‘to prove’ may be read down under the HRA 1998 s3 to impose no more than an evidential burden on the accused (Lambert)

Question 37

F3.10 - Burden of proof: examples of statutory exceptions

Answer 37

• Homicide Act 1957, s 2 Where the defence of diminished responsibility is raised, the onus is on the defence to prove it on a balance of probabilities (Dunbar)
• It is for the defence to decide whether to raise the issue of diminished responsibility. If they do not, the judge is not bound to direct the jury to consider the matter but should in the absence of the jury, draw the matter to the attention of the defence (Campbell)
• Prevention of Crime Act 1953, s 1 In the case of an offensive weapon, if possession in a public place is proved by the prosecution, the onus is on the accused to prove on a balance of probabilities lawful authority or reasonable excuse for the possession
• Homicide Act 1957, s 4(2) Defence has to prove that person charged was acting in pursuance of a suicide pact between himself and the other

Question 38

F3.18 - Impact of the Human Rights Act 1998

Answer 38

• A reverse onus of burden of proof is open to challenge on the basis of incompatibility with the ECHR, Article 6(2) which provides that ‘everyone charged with a criminal offence shall be presumed innocent until proved guilty according to the law.’
• The court should focus on the particular circumstances of the case and strike a reasonable balance between the general interest of the community and the protection of the rights of the individual.

Question 39

F3.37 - General rule of the evidential burden

Answer 39

Party bearing the legal burden on an issue will also bear the evidential burden on that issue.

Question 40

F3.41 - Defence of duress burden of proof

Answer 40

• Crown are not called upon to anticipate a defence of duress and disprove it in advance
• If the accused places material before the court that makes duress a live issue, it is for the Crown to disprove that defence beyond reasonable doubt.

Question 41

F3.44 - Alibis burden of proof

Answer 41

The judge should give a direction to the jury that it is for the prosecution to negative an alibi if there is a danger of the jury thinking than an alibi raises some burden on the defence to establish it (Wood)

Question 42

F3.48 - Usual direction where the legal burden is on the prosecution

Answer 42

• Duty of the judge summing up to make it clear to the jury what standard of proof the prosecution is required to meet.
• Favoured phrase now is that before a jury can return a verdict of guilty, they must be sure that the accused is guilty (Crown Court Compendium, July 2020)
• Where the phrase beyond reasonable doubt has been used in the trial, e.g. by counsel in speeches, the jury should be directed that it is the same as being sure (Adey)

Question 43

F3.53 - Direction where legal burden is on the defence

Answer 43

‘If the evidence is such that the tribunal can say: ‘We think it is more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not.’ (Denning, Miller v Minister of Pensions)