F1.1 – Facts in Issue

Question 1

The facts in issue comprise

Answer 1

(a) the facts which the prosecution bear the burden of proving or disproving (to establish the guild to the accused.

(b) in exceptional cases, the facts which the accused bears the burden of proving (in order to succeed in the defence; see F3.6 and F3.36

Question 2

What is in issue/what the prosecution have to prove when there is a plea of not guilty

Answer 2

Everything is in issue, the prosecution have to prove the whole of their case, including:

• the identity of the accused
• the nature of the act
• the existence of any necessary knowledge or intent (Sims [1946] KB 531, per Lord Goddard CJ at p. 539).

Question 3

How is the nature of the facts in issue determinable in any given case?

(i) And (ii)

Answer 3

(i) By reference to the legal ingredients of the offence charged

And

(ii) any defence raised

Question 4

What system does the law operate concerning the proof of facts in issue?

Answer 4

A binary system.

If the required standard of proof is met, the fact is taken to have happened.

If it is not met, it is taken not to have happened.

There is no room for a finding that it might have happened (Re B (children) (sexual abuse: standard of proof) [2008] UKHL 35, [2009] 1 AC 11 at [2] and [32])

Question 5

How is any fact to be taken which is formally admitted under the s10 CJA 1967?

Answer 5

It must be taken to have been proved (it ceases to be in issue).

It is not open to contradictory proof.

(see Drummond [2020] EWCA Crim 267 and cf. written statements admissible under the CJA 1967, s. 9; see D22.41).

Question 6

Under s10(1) of the CJA 1967, what can a formal admission be made in relation to?

Answer 6

‘Any fact of which oral evidence may be given in any criminal proceedings’.

These words make it clear that the section cannot be used to admit what would otherwise fall to be excluded because, say, it is inadmissible hearsay (Coulson [1997] Crim LR 886).

Question 7

Under which condition can s10(1) CJA 1967 apply to the opinion of an expert?

Answer 7

A party who accepts another party’s expert’s conclusions may admit them as fact under s10 (CrimPR 19.3 (see Supplement, R19.3); considered at F11.46).

In other circumstances, it is held that s10(1) covers only facts and therefore cannot apply to the opinion of an expert (Naylor [2010] EWCA Crim 1188).