CLP WK 5

Question 1

What is the burden of proof in criminal law?

Answer 1

The responsibility to prove the elements of a case. In criminal cases, the burden is on the prosecution.

Question 2

On whom does the burden of proof rest in criminal cases?

Answer 2

The prosecution.

Question 3

What is the standard of proof in criminal cases?

Answer 3

Beyond reasonable doubt.

Question 4

Which landmark case established the burden and standard of proof in criminal law?

Answer 4

Woolmington v DPP

Question 5

Does the burden of proof ever shift to the defendant?

Answer 5

Yes, in limited circumstances when the defendant raises a specific defence, such as insanity.

Question 6

What is the standard of proof for a defendant who bears the burden of proof for a defence?

Answer 6

On the balance of probabilities.

Question 7

What is the legal burden of proof?

Answer 7

The requirement to prove certain facts to a specific legal standard.

Question 8

What is the prosecution’s legal burden?

Answer 8

To prove all elements of the offence beyond reasonable doubt.

Question 9

What is the evidential burden of proof?

Answer 9

The requirement to raise enough evidence to allow an issue to be considered by the jury.

Question 10

Does the defence typically have an evidential burden?

Answer 10

No, unless they raise an active defence, such as self-defence.

Question 11

Which case established the concept of evidential burden?

Answer 11

R v Lobell

Question 12

Provide an example of when the legal and evidential burdens might detach.

Answer 12

Self-defence: the defence has the evidential burden to raise some evidence, but the prosecution retains the legal burden to disprove it beyond reasonable doubt.

Question 13

What case clarified that the prosecution must disprove self-defence beyond reasonable doubt?

Answer 13

R v Williams (Gladstone)

Question 14

Which case provides the legal framework for assessing visual identification evidence?

Answer 14

R v Turnbull

Question 15

What are the Turnbull Guidelines?

Answer 15

Judicial guidelines to ensure the reliability of visual identification evidence in criminal trials.

Question 16

What is the purpose of the Turnbull Guidelines?

Answer 16

To address concerns about the potential for mistaken identification, even by convincing witnesses.

Question 17

What are the three key components of a Turnbull direction?

Answer 17

1. Warning the jury about mistaken identification. 2. Directing them to examine the identification circumstances. 3. Highlighting weaknesses in the identification evidence.

Question 18

What factors might the judge consider when assessing the need for a Turnbull direction?

Answer 18

Lighting, distance, duration of observation, and the witness’s eyesight or experience.

Question 19

What should the judge do if the identification evidence is poor and unsupported by other evidence?

Answer 19

Withdraw the case from the jury.

Question 20

What mnemonic is used to assess the quality of identification evidence?

Answer 20

ADVOKATE

Question 21

What does the “A” in ADVOKATE stand for?

Answer 21

Amount of time under observation.

Question 22

What does the “D” in ADVOKATE stand for?

Answer 22

Distance between the witness and the accused.

Question 23

What does the “V” in ADVOKATE stand for?

Answer 23

Visibility: whether it was clear or obstructed.

Question 24

What does the “K” in ADVOKATE stand for?

Answer 24

Known or seen before: whether the witness had encountered the accused previously.

Question 25

What does the first “A” in ADVOKATE stand for?

Answer 25

Any reason to remember: whether the witness had a specific reason to recall the accused.

Question 26

What does the “T” in ADVOKATE stand for?

Answer 26

Time lapse between the event and the identification.

Question 27

What does the “E” in ADVOKATE stand for?

Answer 27

Error or material discrepancy in the witness’s description.

Question 28

Is dock identification encouraged in UK courts?

Answer 28

No, it is generally discouraged as it can be prejudicial and unreliable.

Question 29

What is a confession in legal terms?

Answer 29

Any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not.

Question 30

Which section of PACE defines a confession?

Answer 30

s.82(1)

Question 31

Provide examples of what might be considered a confession.

Answer 31

Unequivocal admissions (“I did it”), mixed statements (“I didn’t do it, but I was there”), and non-verbal admissions (nodding or pointing).

Question 32

Are wholly exculpatory statements considered confessions?

Answer 32

No, statements claiming innocence (“It wasn’t me”) are not confessions.

Question 33

Which section of PACE governs the admissibility of confessions?

Answer 33

s.76.

Question 34

Under what two conditions can a confession be excluded under s.76 PACE?

Answer 34

1. The confession was obtained through oppression.
2. The confession was made in consequence of something said or done that was likely to render it unreliable.

Question 35

What is the definition of oppression under PACE?

Answer 35

Torture, inhuman or degrading treatment, and the use or threat of violence.

Question 36

Which case clarified the meaning of oppression under PACE?

Answer 36

R v Fulling

Question 37

What factors might make a confession unreliable?

Answer 37

Promises, inducements, threats, denial of legal advice, failure to provide an appropriate adult.

Question 38

What is the test for unreliability of a confession?

Answer 38

Objective: considering all circumstances surrounding the confession.

Question 39

Once an issue of oppression or unreliability is raised, what is the burden on the prosecution?

Answer 39

To prove beyond reasonable doubt that the confession was not obtained improperly.

Question 40

Can evidence discovered as a result of an excluded confession be admitted?

Answer 40

Yes, under s.76(4)(a) PACE, facts discovered as a result of the confession are admissible even if the confession is excluded.

Question 41

What is the purpose of a voir dire?

Answer 41

To resolve disputed facts about how a confession was obtained.

Question 42

Who decides whether a confession is admissible after a voir dire?

Answer 42

The judge

Question 43

In the Crown Court, does a voir dire take place in the presence of the jury?

Answer 43

No, it takes place without the jury present.

Question 44

What happens if a judge excludes a confession?

Answer 44

The prosecution may have to offer no evidence, leading to an acquittal.

Question 45

What is s.78 PACE concerned with?

Answer 45

Excluding evidence if its admission would adversely affect the fairness of the proceedings

Question 46

What is the key difference between s.76 and s.78 PACE in relation to confessions?

Answer 46

s.76 focuses on the reliability of the confession, while s.78 focuses on the overall fairness of the trial.

Question 47

Which case illustrated that s.78 PACE could exclude confessions even if they were not unreliable under s.76?

Answer 47

R v Keenan

Question 48

What are the potential consequences for the prosecution failing to comply with disclosure obligations?

Answer 48

Abuse of process applications, quashed convictions, delays, wasted costs, and exclusion of evidence.

Question 49

If a defendant refuses to answer any questions in a police interview for an indictable offence, can the court later draw adverse inferences?

Answer 49

Yes, the court can draw adverse inferences if the defendant relies on a fact at trial that they did not mention in the interview

Question 50

Does a defendant in a criminal trial for the offence of malicious wounding under s.20 OAPA 1861 have a legal or evidential burden to discharge?

Answer 50

No. The burden of proof lies with the prosecution to prove all elements of the offence beyond reasonable doubt.