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Question 1

What is the legal burden in a criminal case?

Answer 1

The legal burden in a criminal case refers to the requirement for the prosecution to prove the elements of the offense to a prescribed standard. The standard for prosecution proof is to convince the jury of guilt beyond reasonable doubt.

Question 2

What is the evidential burden in a criminal case?

Answer 2

The evidential burden in a criminal case is where the party must raise some evidence to satisfy the judge that a matter should be argued before the jury. It is the burden of ‘passing the judge’ with the same evidence as the legal burden.

Question 3

What is the difference between the legal burden and the evidential burden in a criminal case?

Answer 3

The legal burden in a criminal case is the requirement for the prosecution to prove an element of the case to a prescribed standard, usually beyond reasonable doubt. The evidential burden is the burden of raising some evidence to satisfy the judge that a matter should be argued before the jury.

Question 4

What is the standard of proof for the prosecution in a criminal case?

Answer 4

The standard of proof for the prosecution in a criminal case is to convince the jury of guilt beyond reasonable doubt.

Question 5

When does the defendant have a burden to prove something in a criminal case?

Answer 5

In some cases, such as defenses like insanity, the defendant has the burden to prove something. For example, the defendant may need to prove a lack of mens rea by virtue of insanity. However, in most cases, the defendant does not have a burden to prove anything.

Question 6

What is the balance of probabilities standard?

Answer 6

The balance of probabilities standard is the standard of proof for anything that the defense has to prove in a criminal case. It means that the defense must show that it is more likely than not that their assertion is true.

Question 7

What happens when the legal burden and the evidential burden become detached in a criminal case?

Answer 7

In rare cases, such as self-defense, the legal burden and the evidential burden become detached. This means that the defendant has the burden to raise some evidence to satisfy the judge that the matter should be argued before the jury, but there is no specific standard of proof required.

Question 8

What is the role of the judge in relation to the evidential burden in a criminal case?

Answer 8

The judge, as the tribunal of law, ensures that some evidence has been raised on an issue or fact before it is put before the jury, who are the tribunal of fact. The judge checks the sufficiency of the evidence to make it viable to argue that the fact or issue is proved.

Question 9

What is the significance of the burden and standard of proof in a criminal case?

Answer 9

The burden and standard of proof are crucial in a criminal case. The burden of proving the elements of the offense is always on the prosecution, and they must prove their case beyond reasonable doubt. The defense may have an evidential burden to raise some evidence, but the legal burden remains with the prosecution.

Question 10

What happens if the prosecution fails to discharge the evidential burden?

Answer 10

If the prosecution fails to discharge the evidential burden, the judge can intervene and the case may be dismissed. The evidential burden requires the prosecution to present sufficient evidence for the case to be argued before the jury.

Question 11

When does the defense acquire a burden in a criminal case?

Answer 11

The defense acquires a burden in a criminal case when they make positive assertions or run an active defense, such as automatism, insanity, or diminished responsibility. In these cases, the defense has the burden to prove something.

Question 12

What happens if the defense challenges the prosecution case without raising any evidence?

Answer 12

If the defense challenges the prosecution case without raising any evidence, it does not create any burden on the defense. The defense can contest issues that the prosecution has to prove without acquiring a burden.

Question 13

What is the difference between the legal burden and the evidential burden?

Answer 13

The legal burden refers to the requirement to prove an element of the case to a prescribed standard. The standard varies between prosecution and defense. The evidential burden, on the other hand, is where the party has to raise some evidence to satisfy the judge that the matter should be argued before the jury.

Question 14

What is the legal burden of proof in a self-defense case?

Answer 14

In a self-defense case, the defense must ‘raise’ self-defense and present evidence to support it. The prosecution then has the burden to disprove self-defense beyond a reasonable doubt as part of proving its case that the application of force was unlawful.

Question 15

What is the role of the defense in raising self-defense in a trial?

Answer 15

The defense must call some evidence before raising self-defense with the jury. This means that the defense needs to present evidence, such as the victim’s attack or any other relevant evidence, to support the claim of self-defense.

Question 16

What is the significance of the judge’s instructions regarding self-defense to the jury?

Answer 16

The judge instructs the jury that, because the defense has raised self-defense, the jury must be sure beyond reasonable doubt that the force used by the defendant was unlawful and not in self-defense. This instruction guides the jury in assessing the evidence and making a decision.

Question 17

What happens when the prosecution fails to discharge the evidential burden in a criminal case?

Answer 17

When the prosecution fails to discharge the evidential burden in a criminal case, it means that they have omitted to call evidence to prove a particular fact or element. This is a rare oversight in practice, and the judge may intervene by dismissing the case if there is no evidence to support the fact in issue.

Question 18

What is the legal burden of proof in a self-defense case?

Answer 18

In a self-defense case, the defense must ‘raise’ self-defense and present evidence to support it. The prosecution then has the burden to disprove self-defense beyond a reasonable doubt as part of proving its case that the application of force was unlawful.

Question 19

What is the legal burden of proof in a case of duress or alibi?

Answer 19

In a case of duress, if sufficient evidence is raised to leave it as a live issue, the prosecution must disprove it beyond a reasonable doubt. In a case of alibi, the prosecution retains the burden of disproving the alibi beyond a reasonable doubt.

Question 20

What is the purpose of the Turnbull guidelines in cases of disputed identification evidence?

Answer 20

The Turnbull guidelines provide guidance to judges on what to say to a jury when a case depends wholly or substantially on disputed identification evidence. The guidelines aim to ensure that identification evidence before a jury is as reliable as possible.

Question 21

When should a Turnbull direction be given in a trial?

Answer 21

A Turnbull direction should be given when the case against the accused depends wholly or substantially on the correctness of the visual identification. It should be given even in cases of alleged recognition or situations where the defendant was picked out in a formal identification procedure but maintains that the witness was mistaken.

Question 22

What factors should be considered in assessing the quality of visual identification evidence?

Answer 22

In assessing the quality of visual identification evidence, the judge should consider factors such as the amount of time the witness had the accused under observation, the distance between the witness and the accused, the state of light, any interference with the observation, whether the witness had seen the accused before, and any significant difference between the witness’s description and the appearance of the accused.

Question 23

What are the elements of a Turnbull warning given by the judge to the jury?

Answer 23

A Turnbull warning has three key elements: instructing the jury on the reason for the need for caution, directing the jury to examine the circumstances of the identification, and reminding the jury of any specific weaknesses in the identification evidence. The judge will also direct the jury to consider any other evidence supporting the identification.

Question 24

When should a dock identification be permitted in a trial?

Answer 24

A dock identification, where the defendant is identified by a witness for the first time in court, is exceptional and rare. The judge retains discretion to permit a dock identification, considering whether it would jeopardize the fairness of the accused’s trial.

Question 25

What are the pre-conditions for identification to be considered a live issue in a trial?

Answer 25

For identification to be considered a live issue, two pre-conditions must be met: the defendant disputes the identification evidence, and the identification evidence is wholly or substantially the only evidence implicating the defendant.

Question 26

What are the practical steps required to make an application to exclude evidence of a confession in a criminal trial?

Answer 26

In a magistrates’ court, the defense must provide advance notification of any application under Section 76 of the Police and Criminal Evidence Act 1984 (PACE) at least 10 business days before trial. The timing of the arguments and the consideration of evidence depend on the specific circumstances of the case.

Question 27

What happens if a confession is excluded from the trial?

Answer 27

If a ruling excludes a confession, the prosecution cannot refer to it during the trial. However, this does not prevent the defense from raising issues of oppression, unreliability, or unfairness before the jury to decide whether to rely on the confession.

Question 28

What are the key aspects to making an application to exclude evidence of a confession in a criminal trial?

Answer 28

The key aspects to making an application to exclude evidence of a confession in a criminal trial are advance notification, timing, voir dire, and submissions.

Question 29

What is the purpose of advance notification in relation to excluding evidence of a confession?

Answer 29

Advance notification is required in criminal trials to include any points of law, including any point as to the admissibility of evidence. It allows the judge to review the Defense Statement and order the defense to serve a skeleton argument in support of any arguments, as well as the prosecution to serve a response.

Question 30

When can the application to exclude a confession be made in the Crown Court?

Answer 30

The application to exclude a confession can be made at a pre-trial hearing listed specifically for this purpose or it can be dealt with just prior to opening the case to the jury (and in the absence of the jury).

Question 31

What is a voir dire and when is it required?

Answer 31

A voir dire is a hearing called a ‘trial within a trial’ where evidence is called. It is required when there is a dispute over the evidence founding the application to exclude a confession under section 76 (or both section 76 and section 78). The judge resolves the disputed facts before ruling on the admissibility of a confession.

Question 32

What is the purpose of submissions in relation to excluding a confession?

Answer 32

Submissions are made by the defense and prosecution to present their arguments regarding the admissibility of a confession. The judge considers the submissions and makes a ruling in open court. If the ruling is to exclude the confession, the prosecution cannot refer to it during the trial.

Question 33

What are the key differences between a trial in a magistrates’ court and a trial in the Crown Court?

Answer 33

Key differences between a trial in a magistrates’ court and a trial in the Crown Court include the presence of a jury in the Crown Court, the types of offenses tried in the Crown Court (indictable offenses), and the role of the judge and jury in determining guilt.

Question 34

What is the role of the judge in a Crown Court trial?

Answer 34

The judge in a Crown Court trial is the arbiter of the law. They make rulings about the admissibility of evidence, direct the jury about matters of law, and can direct a jury to find a defendant not guilty. However, they cannot direct a jury to find a defendant guilty.

Question 35

What is the role of the jury in a Crown Court trial?

Answer 35

The jury in a Crown Court trial is the sole decider/arbiter of facts. They decide whether the defendant is guilty based on the evidence they hear in court. The jury must accept and apply the judge’s directions about the law and reach their decision only based on the evidence presented.

Question 36

What happens if a judge fails to resolve disputed facts on a voir dire before ruling on the admissibility of a confession?

Answer 36

If a judge fails to resolve disputed facts on a voir dire before ruling on the admissibility of a confession, any resulting conviction is likely to be quashed because it is logically impossible for a judge to be satisfied that the prosecution has proved beyond reasonable doubt that a confession has not been or might not have been obtained by either of the means set out in section 76(2)(a) or (b) if the judge has heard no evidence either way.

Question 37

What is the role of the judge in a voir dire?

Answer 37

The role of the judge in a voir dire is to hear the evidence presented by both the prosecution and the defense, resolve disputed facts, and then rule on the admissibility of a confession. The judge’s ruling determines whether the confession can be referred to during the trial.

Question 38

What is the purpose of a voir dire in a legal argument?

Answer 38

A voir dire is a procedure for the judge to resolve a factual dispute that is relevant to a legal argument. It takes place in the absence of the jury. When a legal representative says that ‘a matter of law’ has arisen, the judge will ask the jury to briefly retire while the legal argument is dealt with

Question 39

How is the jury selected and sworn in a Crown Court trial?

Answer 39

A jury panel of about 16 people goes into court, from which 12 jurors are chosen at random. Each juror is called from the panel and takes their place in the jury box. Before each juror takes the jury oath or affirmation, the defendant is told by the court clerk that they have the right to object to any juror. Each jury member is then sworn.

Question 40

What instructions does the judge give to the jury at the beginning of a trial?

Answer 40

The judge will tell the jury that the evidence upon which they must decide the case is the evidence that will be presented to them in court. They must not discuss it with anyone else who may have a view but will not have heard the evidence. The judge will also explain that matters of law are for the judge alone, so if any legal applications are made during the trial, the jury will be asked to leave court while they are dealt with.

Question 41

What is the purpose of the prosecution’s opening speech in the Crown Court?

Answer 41

The prosecution’s opening speech in the Crown Court is focused on the facts and issues in the case. It explains what the case is about, what the areas of dispute are, and why the prosecution says the defendant is guilty of the offense or offenses with which they are charged. The prosecutor will also inform the jury about the counts the defendant faces and should avoid using overly emotive language.

Question 42

What role does the defence play in identifying matters in issue?

Answer 42

To help the jury understand the case, the judge can invite the defence to confirm or clarify what the issues in the case are. This helps to identify what precisely is in dispute.

Question 43

How does the prosecution present their evidence in a Crown Court trial?

Answer 43

The prosecution case has been served on the defence at the outset of the proceedings. The prosecution will start by calling all the prosecution witnesses that the defence asked to be called. The prosecutor will then take the witness through evidence in chief. The witness is then cross-examined by the defendant’s legal representative. When the defence has no dispute with the content of a prosecution witness’s statement, the prosecution can read the statements of prosecution witnesses to the jury.

Question 44

What happens when the defendant has made a ‘no comment’ interview?

Answer 44

When the defendant has made a ‘no comment’ interview, instead of presenting a record of taped interview (ROTI) to the jury, the prosecution will often present agreed written admissions stating what the defendant was asked about and that the defendant replied ‘no comment’ to all questions put. This allows the jury to consider whether it would be proper to draw an inference from the defendant’s silence.

Question 45

What happens at the conclusion of the prosecution case in a Crown Court trial?

Answer 45

At the conclusion of the prosecution evidence, on the defendant’s application or on its own initiative, the judge may direct the jury to acquit if the prosecution evidence is insufficient for any reasonable court properly to convict. This is known as a submission of no case to answer and is often referred to as a ‘half time’ submission.

Question 46

What are the two parts of a judge’s summing-up in a trial?

Answer 46

The judge’s summing-up in a trial consists of two parts: the law and the facts. The judge will first provide necessary legal directions and then proceed to summarize the prosecution and defense cases.

Question 47

What aspects does the judge cover when summing up a case to the jury?

Answer 47

When summing up a case to the jury, the judge covers various aspects including the burden and standard of proof, the ingredients of the offense and any defenses, a written route to verdict, other legal directions relevant to the case, electing a foreman, unanimity, and separate considerations of counts and defendants if needed.

Question 48

What should the judge provide to assist the jury during their retirement?

Answer 48

To assist the jury in focusing on the issues during their retirement, the judge should provide a reminder of the issues, a summary of the nature of the evidence relating to each issue, a balanced account of the points raised by the parties, and any outstanding directions.

Question 49

What is the purpose of appointing a foreman and what is the requirement for a verdict?

Answer 49

The jury is told to appoint a foreman who will deliver the jury’s verdict. The judge emphasizes that the only verdict that can be accepted is a unanimous verdict. If a majority verdict becomes possible, the judge will call the jury back into court and give them further directions.

Question 50

What are the responsibilities of the jury bailiffs during the jury’s retirement?

Answer 50

The jury bailiffs are sworn to keep the jury in a private and convenient place and not allow anyone to speak to them without the leave of the court. They are also responsible for passing any questions from the jury to the judge. The judge may give further directions during the jury’s retirement.

Question 51

Under what circumstances can a majority verdict be given by the jury?

Answer 51

The Juries Act permits a majority verdict to be given by a jury after deliberating for at least 2 hours. However, the court must consider what is reasonable based on the nature and complexity of the case. The minimum period is 2 hours and 10 minutes, accounting for time spent not deliberating.

Question 52

What happens once the jury reaches a verdict?

Answer 52

Once the jury reaches a verdict, they inform the jury bailiff. The court reassembles and the foreman is asked to stand. If the jury has not received a majority direction, the court clerk asks the foreman if the jury has reached a unanimous verdict. The foreman then states ‘Guilty’ or ‘Not guilty’.