Criminal Practice 3 Flashcards
(12 cards)
Burden and standard of proof
Burden on the prosecution to prove guilt beyond reasonable doubt.
Burden can be on the defendant when they raise a defence of insanity or duress to prove it on the balance of probabilities.
When the defendant raises a specific defence (alibi or self-defence) they do not have the burden of proving it. They must have the evidential burden however to raise it. Burden on prosecution to disprove it.
Evidential burden
Prosecution present their case first and they must discharge their evidential burden - meaning they must show that the D has a case to answer.
D’s solicitor will otherwise be entitled to make a submission that there is no case to answer and ask the court to dismiss the case.
Defence has no obligation to produce evidence to show their innocence. However if they raise a specific defence, they must raise some evidence for it to be considered and have the onus then fall on the prosecution to disprove it beyond reasonable doubt.
S78 PACE 1984
Gives the court discretion to exclude evidence the prosecution seek to rely on if the admission of such evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.
Raised by defence solicitors when the methods employed by the police in obtaining evidence constitute a significant and substantial breach of PACE or the Codes of Practice.
What should a defence solicitor do to dispute visual identification evidence?
First they should ask the court to apply its discretion using s78 to exclude the evidence if they believe there was a significant and substantial breach of PACE or the Codes of Practice.
If refused, only then should they seek to undermine the evidence by making representations during cross-examination and referring to the Turnbull guidelines.
What makes a Turnbull witness?
If the witness picks out the D informally, the witness identifies the D at a formal identification procedure at the police station or the witness claims to recognise the D as someone previously known to him.
Turnbull guidelines only apply if the D disputes the evidence.
What does the judge do first after they have been identified as a Turnbull witness?
The judge assesses the quality of the identification evidence by considering a large range of factors.
What if the identification is good quality?
The judge will sum up the case to the jury before they retire and give a Turnbull warning. This is about the dangers of relying on witness evidence due to unreliability and directs the jury to take into account the circumstances of the original sighting and factors regarding its quality.
What if the identification is poor quality but there is supporting evidence?
A Turnbull warning similar to that for a good quality sighting is given. As well as a caution, the judge will draw the jury’s attention to the weaknesses in the identification evidence.
Supporting evidence is other evidence which suggests the identification evidence is more reliable. Will warn about dangers of convicting on identification evidence alone and to look for other evidence. Directed on what constitutes supporting evidence.
What if the identification is poor quality and there is no supporting evidence?
The judge should stop the trial at the end of the prosecution case and direct the jury to acquit the D.
This will normally follow a submission of no case to answer being made by the D’s solicitor.
Turnbull guidelines in the Magistrates’ Court
The D’s solicitor will make a submission of no case to answer if he believes the identification evidence is poor and there is no supporting evidence.
If there is supporting evidence or it is of good quality, he will address the Turnbull guidelines and point out any weaknesses in the identification evidence that has been given.
S35 Criminal Justice and Public Order Act 1994
Allows the court to draw adverse inferences from silence at trial when deemed they had no good reason to refuse to answer questions put to them at trial.
Entitled to infer they had no explanation or not one that would withstand cross-examination.
Cannot on its own prove guilt. Cannot be drawn unless only sensible explanation is that he had no explanation that could have withstood cross-examination. Has to be satisfied there was a case to answer.
Limited statutory exception where should not be used if it appears to the court that the physical or mental state of the accused makes it undesirable for him to give evidence.
Evidence obtained by abuse of process
Invite the court to exercise its common law power to stop the case on the basis that it would represent an abuse of power to allow such a prosecution to continue.
