UNIT 3 : EVIDENCE Flashcards
Evidential burden
- Who bears it? - in all criminal cases, the prosecution bear the legal/persuasive burden of proving the defendant’s guilt
o Standard of proof - prosecution must prove beyond a reasonable doubt that D is guilty of the offence with which they have been charged.
D should only be convicted if the magistrates or jury are sure of guilt (Woolmington v DPP) - When does it fall on D? - where D pleads not guilty and raises the defence of insanity or duress, they will be required to prove those facts.
o Standard of proof - balance of probabilities, i.e., ‘more probable than not’ - Special defence: where D raises a specific defence, e.g,. an alibi or self-defence, no burden of proving it
o D: evidential burden to raise it
o Prosecution: burden to disprove the defence.
Legal burden of proof
-
on prosecution
- Standard of proof - prosecution must prove beyond a reasonable doubt that D is guilty of the offence with which they have been charged
- When does it fall on D? - only if D pleads not guilty and raises defence of insanity or duress
- Standard of proof - BALANCE OF PROBABILITIES
Evidential burden on CPS
- At trial, the prosecution presents their case first
- At the conclusion of its case, the prosecution must have presented sufficient evidence to:
- justify a finding of guilt; and
- show that D has a case to answer.
- If the prosecution fails to do this, D’s solicitor/counsel will be entitled to make a submission of no case to answer, and ask the court to dismiss their case.
- ## In such circumstances, the prosecution is said not to have discharged their evidential burden.
Evidential burden on D
- D is not obliged to place any evidence before the court to show that they are innocent.
- D’s evidential burden - If D raises a specific defence (e.g., alibi or self defence), they must place some evidence of that defence before the court if they want it to be considered when deciding the verdict
-
How to satisfy the burden - all D needs to do is enter the witness box and give details of the defence.
- Onus then falls on the CPS to prove BEYOND REASONABLE DOUBT hat the defence is not true.
Circumstantial evidence
if a case depends on circumstantial evidence (and not direct evidence) there will only be no case to answer where the evidence is not capable in law of supporting a conviction
s78 provision
‘the admission of such evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit i
Examples of breach of ID evidence
- police show witnesses images that do not resemble the suspect in age, general appearance, and position in life
- police do not segregate witnesses attending ID parade from each other and from the suspect before and after the parade
- police failed to hold an ID procedure where such a procedure should have been held whilst D was detained at police station
If challenging under s78 fails?
- how to undermine the quality of the evidence of the original sighting of D
- what representations to make in respect of the Turnbull guidelines
Turnbull guidelines in Crown Court
- Turnbull guidelines in Crown Court:Applies where = witness gives evidence for CPS and visually identifies D as the offender + D disputes that identificationAcceptable forms of identification:
- witness picks out D informally
- witness identifies D at a formal ID procedure at police station
- witness claims to recognise D as someone previously known to them
- Factors affecting quality of identification evidence (assessed by trial judge in CC)
- length of observation
- distance
- lighting
- conditions
- how much of the suspect’s face witness actually saw
- connection with the suspect
- accuracy
Identification is good quality
judge will give a ‘Turnbull warning’ (i.e., warn jury of dangers of relying on ID evidence and the special need for caution, easy for honest witness to be mistaken, and the factors above to consider when assessing quality of evidence)
Identification is poor but supported by other evidence
judge will give a Turnbull warning and draw specific attention to the weaknesses in the ID evidence, and tell the jury to look for other supporting evidence that suggests reliability of the identification made by the witness
Identification is poor and unsupported
judge should stop the trial at end of CPS case and direct jury to acquit D (normally after submission of no case to answer by D’s advocate)
Turnbull guidelines in Mags Court
- Onus is on D’s solicitor to address Mags on the Turnbull guidelines:
If D’s solicitor considers the identification evidence to be:
- Poor + unsupported → make **submission of no case to answer after CPS case
- Good/poor + supported → address Turnbull guidelines in closing speech and point out that visual ID evidence is notoriously unreliable and mags should exercise caution; also highlight any weaknesses
Exclusion of evidence - s78 ground
Applies → to any evidence on which CPS seeks to rely
The ground → having regard to all of the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it
-
Limitations on s78?
Even if police breached PACE or Codes of Practice when obtaining evidence, as long as nothing exists to cast doubt on its reliability, it is unlikely to be excluded under s78
