Principles and procedures to admit and exclude evidence

Question 1

What is the legal burden?

Answer 1

the burden to prove a matter (or fact) in issue between the parties

Question 2

What is the evidential burden?

Answer 2

the burden to make an issue ‘live’ i.e to make an issue one that can be considered by the arbiter of fact

Question 3

Who bears the burden to prove a defendant’s guilty and which burden is it?

Answer 3

The prosecution and the legal burden

Question 4

Who bears the burden to raise sufficient evidence to make an issue live, for example to demonstrate the defendant may have acted in self defence and which burden?

Answer 4

The defence and the evidential burden

Question 5

Who bears the burden to disprove any relevant defences and which burden?

Answer 5

The prosecution and the legal burden

Question 6

Who bears the burden to prove a confession was obtained reliably/not through oppression and which burden?

Answer 6

The prosecution and the legal burden

Question 7

When does the defence bear a reversed legal burden?

Answer 7

For the partial defence to murder of diminished responsibility

Question 8

What are the two standards of proof which apply in criminal proceedings?

Answer 8

Beyond reasonable doubt and balance of probabilities

Question 9

When does the standard ‘beyond reasonable double’ apply?

Answer 9

When the prosecution bears a burden of proof

Question 10

When does the standard ‘balance of probabilities’ apply?

Answer 10

Anytime when the defence bears a burden of proof

Question 11

Can the prosecution invite a witness to identify the defendant through dock identification if that particular witness has not previously identified the defendant at an identity procedure?

Answer 11

No unless it was impractical or unnecessary for the witness to carry out and ID procedure or in exceptional circumstances

Question 12

Where there is a dispute between the prosecution and defence as to visual identification evidence which direction may be given?

Answer 12

The Turnbull direction

Question 13

In assessing the quality of the identification evidence what circumstances should the judge consider?

Answer 13

• the length of time the witness had the defendant under observation
• was the observation impeded by anything
• the conditions of the identification (distance, lighting, weather)
• the length of time between the witness’ original observation and further identification to the police
• whether the defendant was known to the witness previously
• whether there are any significant discrepancies between the witness’ description and the defendant

Question 14

When is a Turnbull direction required?

Answer 14

When the prosecution’s case depends wholly or substantially on visual identification evidence.

Question 15

What statute governs inferences from silence?

Answer 15

Criminal Justice and Public Order Act 1994

Question 16

Which section deals with silence when being questioned or charged?

Answer 16

s34 CJPOA 1994

Question 17

Which section deals with silence at trial?

Answer 17

s35 CJPOA 1994

Question 18

What does s36 CJPOA 1994 deal with?

Answer 18

Silence in respect of objects, substances or marks

Question 19

What does s37 CJPOA 1994 deal with?

Answer 19

Silence as to the defendants presence at a particular place

Question 20

Which section deals with statutory interpretation matters?

Answer 20

s38 CJPOA 1994

Question 21

What conditions need to be met for adverse inferences to be drawn where the defendant is arrested and questioned under caution, fails to answer and then later puts forward a fact or account at trial that could have been given in response to the original question?

Answer 21

The Argent factors:
1. criminal proceedings have started
2. the alleged failure occurred before or on charge
3. the alleged failure occurred when being questioned
4. the constable’s questioning was for the purpose of discovering how or who committed the alleged offence
5. the defendant relied on a fact as part of their defence that was not mentioned when questioned
6. it was reasonable in the circumstances for the defendant to have mentioned the fact when questioned

Question 22

When can adverse inferences be drawn at the trial?

Answer 22

If the defendant does not testify at all or chooses to give evidence but refuses to answer a question put to them ‘without good cause’