Law of Evidence

There has to be a standard of proof and there are two types in criminal law. Firstly if the prosecution has to prove something then they must do it ‘beyond reasonable doubt’ therefore they would have to prove that Frederick’s careless driving was due to drinking alcohol. Secondly if the defence has to prove something they do it on a lower standard ‘on the balance of probabilities’, this would mean proving that Frederick drunk alcohol after the incident. The standard of proof necessary to discharge the burden of proof relates to the legal and not evidential burden. If a standard of proof is not reached then the party holding the legal burden will lose. It is put in place for the prosecution for a sense of assurance, which is illustrated by the case of Miller v Minister of Pensions whereby Lord Denning stated “If the evidence is so strong against a man as to leave only a remote possibility in his favour … the case is proved beyond reasonable doubt”. It is put in place for the defence on the balance of probabilities, which is illustrated in the case of Carr-Briant. It is arguable whether there is enough proof to state whether Frederick was intoxicated or not prior to the incident. However Frederick has to prove he was not intoxicated as this case is very similar to Drummond as it is a reverse burden case. Although Lambert was a reverse burden case but was unsuccessful.

The legal and evidential burden as well as the standard of proof in this case would have to be decided by the jury as Frederick’s defence looks to be arguable on whether he had alcohol prior or after the incident. S.15(3) states ‘the proportion of alcohol should be no less in the accused’s breath, blood or urine than the specimen provided’ However it seems that the legal burden would be for the prosecution to prove and the evidential burden would be for the defence to disprove.

2. The defence of provocation is governed by S.3. It is a defence to murder whereby the defendant loses total self control by things said or done to him/her. With regards to the defence of provocation the legal burden in Suraya’s case would be for the prosecution to prove that Suraya committed murder. The prosecution would also have to disprove the defence of provocation and prove that the cause of Imran’s death was not one where Suraya was provoked to do so, such as in the case of Duffy.

The standard of proof for provocation is unclear on the prosecution’s part. The standard of proof for the prosecution with regards to murder is strong as the actus reus and mens rea can easily be proven. However it is unclear as Imran is deceased; there is only one side to the story. She will bear the legal burden; she doesn’t have to prove her defence as it is not a common law exception or a statutory exception to Woolmington. This is illustrated in the case of Mancini v DPP

The defence of diminished responsibility is governed by S.2. It causes an abnormality of the mind which causes a substantial impairment of mental responsibility. The legal burden in this case would be for the defence to prove as shown by ‘the golden thread rule’ which states that diminished responsibility is an express statutory exception. This is illustrated by the case of Dunbar. Therefore Suraya would have to prove that she had an abnormality of the mind which caused a substantial impairment of mental responsibility.

The standard of proof here would rely on the defence and they would have to prove it on a lower standard “on the balance of probabilities”. Lord Denning, in Miller v Minister of Pensions said “If the tribunal of fact thinks it more probable than not, the burden is discharged.” A 51% probability is sufficient to discharge the civil burden of proof. Therefore if the jury believes the diminished responsibility is more probable than not even if it is just 51% that would discharge Suraya’s civil burden of proof.

The defence of insanity is whereby “at the time of the committing of the act, the party accused was laboring under such a defect of reason, arising from a disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong.". This definition derives from the case of McNaughton. The legal burden with regards to the defence of insanity would be on the defence as ‘the golden thread rule’ states that insanity is an exception for the prosecution and the legal burden would be placed on the defence.

The standard of proof would be the same for insanity as it is for diminished responsibility as explained above.

        

        Q2

1. Sylvia was an eye witness for the theft crime that was committed by Gurinder. Evidence of an eyewitness identifying a defendant is highly probative; however it may be prejudicial because it is difficult to doubt a clear identification by a credible witness. Therefore safeguards are set in place to protect the defendant from prejudice. This would impact how the courts will approach Sylvia’s evidence.

It is unclear whether Sylvia made a clear sighting of Gurinder committing the theft as at the time of the offence the street lamp outside the store was not working and it is also clear that Sylvia has poor eyesight. This would pose a question on the courts on how strong Sylvia’s evidence can be. As Gurinder has disputed the identification Code D would have to be used. This would put a mandatory obligation on the police to hold and ID procedure unless it is not practicable or would serve no purpose in proving or disproving suspect’s involvement; however this is not the case here. Therefore the police should have offered Gurinder a video identification unless not suitable, which would then result in an ID parade or a group ID, which is practicable and more suitable. However for some reason the police chose not to do this. This would make it difficult for the court to approach Sylvia’s evidence as the code D procedure was not followed by the police. The case of Poplar highlighted that ID evidence maybe excluded if there is a  breach of code D. This is governed by S.78. However the case of Forbes highlighted that the breach of code does not necessarily mean evidence should be excluded into S.78. If the evidence is not excluded, the judge must warn the jury to consider the impact of the breach. However the jury is not reliable in this factor as they do not have the skills or knowledge to determine which breaches should be tolerated. It would be difficult for the court to approach this situation.

No. 1 from the Turnbull guidelines states that if a case against the accused depends wholly on ID evidence and the defence alleges it’s mistaken, the judge must warn jury of the special need for caution, even if an ID parade has been held. The judge must explain that the ID evidence is vulnerable to error, even by honest and impressive witnesses and that it has resulted in wrongful convictions. The judge must also explain that the need for special caution is rooted in the courts experience of miscarriages of justice. Bearing all this in mind the court will approach Sylvia’s case with careful caution especially as the code D was not followed.

No. 2 from the Turnbull guidelines also has to be taken into account. The judge must direct the jury to closely examine circumstances in which the identification is made and remind them of any specific weaknesses in evidence, in Sylvia’s case it would be poor eyesight.

However No. 5 from the Turnbull guidelines states that when the quality of the ID evidence is poor, the judge must withdraw the case from the jury and direct an acquittal unless there is other evidence.

In conclusion it would be difficult for the court to approach Sylvia’s evidence as the code D was breached. However not all breaches are put into S.78 and it will be in the discretion of the court whether the evidence provided will be valid enough for a conviction.

2. Gurinder has the right to silence at trial under S.35. The case of Cowan set certain guidelines which have to be followed. The judge must tell the jury that the legal burden remains on the prosecution and the defendant is entitled to remain silent, inference from silence alone cannot prove guilt, there must be a case to answer before inference can be drawn and the jury may only draw adverse interference if they conclude that silence is only attributable to the defendants having no answer or none that would stand up to cross examination. However fact could reasonably be expected to be mentioned. This is illustrated in the case of Howell. The case of Condron breached Article 6 because the Court of Appeal did not examine whether the trial was fair, which led to Condron v UK. The case of Betts highlighted that it is genuineness of belief that matters. However Howell disagrees with Betts and it is argued that there must be sound objective reasons for silence. Hoare & Pierce highlighted that “The question in the end, which is for the jury, is whether regardless of advice, genuinely given and genuinely accepted, an accused has remained silent not because of that advice, but because he had no or no satisfactory explanation to give’. If so inference may be drawn.

However under S.38(3) Gurinder cannot be convicted solely on the basis of an adverse inference. Failure to give reason to why she was silent in court may lead to a conviction.

In conclusion it is up to the judge as to what the consequences would be for the silence as there are numerous different decisions that can be made either from statute or common law as explained above.

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Bibliography

1. Hopkins, B, Evidence Key Facts, Second Edition

2. Keane, A, The Modern Law of Evidence, Sixth Edition

3. Roberts, P & Zuckerman, A Criminal Evidence,

 

 

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