Proving the case -

Introduction to
evidence
The Legal Burden of Proof -
The Golden Thread
 “Throughout the web of the English criminal law one
golden thread is always to be seen, that it is the duty of
the prosecution to prove the prisoner's guilt … No matter
what the charge or where the trial, the principle that the
prosecution must prove the guilt of the prisoner is part of
the common law of England and no attempt to whittle it
down can be entertained”
 “The general rule at common law is that the prosecution
must establish the guilt of the defendant beyond
reasonable doubt”
 Woolmington v DPP [1935] AC 462,
The Legal Burden
 The Prosecution is required to prove all elements of the
offence:
 The actus reus and mens rea
 Theft – five elements
 AR – appropriates/ property/ belonging to another
 MR dishonestly and /with the intention of permanently
depriving the owner
 Mens rea – usually explored in interview
 Where the defendant is pleading not guilty and is not
putting forward a defence, the defence has neither a legal
nor an evidential burden to prove anything.
Defence Burden
 In most cases the burden of proof is on the prosecution but in some cases it
falls on the defence. This usually happens when the information required is
in the defendant’s exclusive knowledge or control.
 Examples include:
 Defences such as Insanity and Diminished Responsibility
 “it is certainly plain that the burden in cases in which an accused has to
prove insanity may fairly be stated as not being higher than the burden
which rests upon a plaintiff or defendant in civil proceedings” Sodeman v R
[1936] 2 All ER 1138,
 So the defence standard in criminal matters is on the balance of
probabilities.
The rationale behind the
different standards
 Prosecution beyond reasonable doubt – any doubt
should lead to an acquittal
 Defence – balance of probabilities
 “It is better that ten guilty persons escape than that one
innocent suffer” as per William Blackstone in
his Commentaries, dating from the 1760s.

 This is justified on the basis that the consequences of

conviction and punishment are so severe that the state
prefers to run the risk of acquitting those who may have
committed crimes rather than convicting the innocent.
Plus the state has greater resources compared to the
individual.
Evidential Burden
 The prosecution or defence will discharge its legal burden
by putting evidence before the court to support its version
of the facts and interpretation of the law.
 The prosecution are required to satisfy the court that all
elements of the alleged offence are made out by
adducing sufficient evidence.
 Evidence may be:
 Oral testimony
 Documentary
 Real evidence
 Sometimes a jury can be expected to infer a required
state of mind from the circumstances – direct intent for
example.
The evidential burden and the
defence
 If the defendant pleads not guilty but does not put forward a defence,
the defence may cross examine the witnesses to instigate reasonable
doubt in the mind of the jury about the accused’s guilt.
 However where the defendant raises an affirmative defence such as
self defence or duress, it has an evidential burden to put forward
some evidence in support of the defence before the court.
 Thereafter the prosecution has the legal burden to disprove the
defendant’s defence.
 Example: your client accepts punching the victim of an ABH but says
she did so as she believed the victim was about to strike her (a pre-
emptive strike). Your client will have to provide evidence such as oral
testimony to substantiate her defence. This will discharge her
evidential burden.
 Once she has done this the prosecution will have to disprove the
client’s version of events by providing evidence to show the
defendant was the aggressor and it was not necessary to use force or
alternatively the force used by the defendant was not reasonable in
the circumstances (excessive self defence).
 Requirements of evidence

 There are two basic requirements which need to be

satisfied if the jury or the magistrates are to take a piece
of evidence into account in deciding what the facts of the
case are:
 (a) Evidence must be relevant to the facts in issue in the
case.
 (b) Evidence must be admissible. This means that the
rules which comprise the law of evidence must permit
such evidence to be used in a criminal trial.
 Evidence that is both relevant and admissible may be
either direct evidence of a defendant’s guilt, or
circumstantial evidence from which a defendant’s guilt
may be inferred.
Oral testimony
 A witness is competent if he can lawfully be called to
give evidence and compellable if he can be ordered to
give evidence even if he is unwilling to do so.
 A witness can give evidence of fact, i.e. of anything
perceived by his or her own senses, unless they are
called as an expert in which case their opinion is
required.
 Evidence is usually given on oath, unless the witness is
under 14. Note there is no minimum age for competency.
 R. v Powell (Michael John) [2006] EWCA Crim 3 The
Court of Appeal confirmed that the fact that a child
witness who was aged only three and a half was not in
itself a necessarily insurmountable obstacle for the
prosecution.
Competence
 Youth Justice and Criminal Evidence Act 1999
 53. - (1) At every stage in criminal proceedings all persons
are (whatever their age) competent to give evidence.
(2) Subsection (1) has effect subject to subsections (3) and
(4).

 (3) A person is not competent to give evidence in criminal

proceedings if it appears to the court that he is not a person
who is able to-
 (a) understand questions put to him as a witness, and
 (b) give answers to them which can be understood.
 (4) A person charged in criminal proceedings is not
competent to give evidence in the proceedings for the
prosecution (whether he is the only person, or is one of two
or more persons, charged in the proceedings).
Exception – the spouse/civil partner
 Section 80 PACE 1984 - Competence and compellability of accused's spouse.
 R V Pearce [2002] 1 W.L.R. 1553 clarified that this provision does not extend
to cohabitants.
 (2) In any proceedings the spouse or civil partner of a person charged in the
proceedings shall, subject to subsection (4) below, be compellable to give
evidence on behalf of that person.
 (2A) In any proceedings the spouse or civil partner of a person charged in the
proceedings shall, subject to subsection (4) below, be compellable--
 (a) to give evidence on behalf of any other person charged in the proceedings
but only in respect of any specified offence with which that other person is
charged; or
 (b) to give evidence for the prosecution but only in respect of any specified
offence with which any person is charged in the proceedings.
Specified Offences
 (3) In relation to the spouse or civil partner of a person charged in
any proceedings, an offence is a specified offence for the purposes
of subsection (2A) above if--
 (a) it involves an assault on, or injury or a threat of injury to, the
spouse or civil partner or a person who was at the material time
under the age of 16;
 (b) it is a sexual offence alleged to have been committed in
respect of a person who was at the material time under that age;
or
 (c) it consists of attempting or conspiring to commit, or of aiding,
abetting, counselling, procuring or inciting the commission of, an
offence falling within paragraph (a) or (b) above.
 Example: Your client is alleged to have assaulted a male aged 35
years and his step daughter aged 15 years. Both separate
offences.
 If his wife had witnessed both incidents then she would only be a
compellable prosecution witness in relation to the assault on her
daughter.
Documentary evidence
 Documents form part of the evidence because of the
information they contain
 Examples:
 Official documents such as birth certificates, contracts
 Phone records, bank statements, emails, text
messages, correspondence, medical reports, expert
reports
 Can include photographs or recordings (audio and/or
visual such as 999 calls or CCTV)
 OR
 The statement of a witness standing in place of them
giving live evidence
 Hearsay – rules on admission
Real evidence

 Real evidence is
usually some material
object, the existence,
condition or value of
which is in issue or
relevant to an issue,
produced in court for
inspection by the
tribunal of fact.
Admissible evidence
 Evidence of a fact is not admissible unless that fact is
relevant, i.e. it is directly or indirectly logically probative of
a fact in issue.
 If evidence is admissible it may be used unless it is
excluded by a mandatory rule or is excluded under some
statutory provision or by the court exercising a discretion.
 The criteria when exercising the discretion – the right to a
fair trial (Article 6)
 A prescribed procedure must be followed before certain
forms of evidence will be admitted, for example:
 Expert Evidence
 Hearsay Evidence
 Evidence of Bad Character
Examples of evidence which may be excluded
 Improperly Obtained Evidence
• A confession obtained in breach of the safeguards under PACE.
• Evidence obtained after an unlawful search/surveillance
• Evidence obtained by entrapment – usually involving
undercover police officers inducing a person to commit an
offence that the person would otherwise have been unlikely to
commit.
 Opinion Evidence
• The general rule is that opinion evidence is inadmissible – “he
was up to no good”. This is a matter for the jury to determine
based on the facts.
• Expert evidence is opinion evidence but is admissible if the
experts give an opinion that goes beyond the ordinary
competence of the court e.g ballistics, forensics, accident
investigation etc. reference to competence will be decided by
the court.
 Evidence where the prejudicial effect outweighs probative value
• The prejudicial effect of bad character/hearsay
Private Privilege
 A witness may refuse to answer a question in court by
relying on:
 The privilege against self incrimination
 or
 Legal professional privilege
 In all other cases a refusal by a witness to answer
questions may result in a penalty for contempt of court,
including imprisonment – for example:
 The obligation for medical practitioners to maintain
patient confidentiality is overridden when the law compels
the disclosure of a patient’s medical record.
The privilege against self
incrimination
 This is a right enjoyed by all UK citizens.
 The right to silence in the police station and at trial.
 If a defendant has chosen to give evidence on oath
in support of his defence he cannot refuse to
answer questions in cross examination on the
ground it would self incriminate him as to the
offence charged.
 However no witness need answer any
question/produce documents or items at trial which
would expose him to the possibility of future
prosecution.
Legal Professional Privilege
 Legal advice privilege (confidential
communications between lawyers and their clients
made for the purpose of seeking or giving legal
advice).
 Litigation privilege (confidential communications
between lawyers and their clients, or the lawyer
or client and a third party, which come into
existence for the dominant purpose of being used
in connection with actual or pending litigation).
 The policy rationale behind this is that clients
should be able to openly discuss their cases with
their solicitors without being compelled to
disclose the contents of those discussions in court.
Disclosure of Evidence
 In 1974, the then 20-year-old Belfast-born Gerry Conlon was
arrested over the IRA pub bombings in Guildford which killed five
people. He had never been to Guildford. But along with the three
other members of the group that became known as the Guildford
Four, Conlon was sentenced to life in prison on the basis of false
confessions made after days of mistreatment by Surrey police.
 In 1989 the Court of Appeal quashed the convictions of the
Guildford Four when it was found that crucial alibi evidence -
proving Conlon could not have planted the bombs - had not been
shown to the defence.
 Failure to disclose vital evidence is the biggest single cause of
miscarriages of justice and the problem is getting worse, the
outgoing chairman of the Criminal Cases Review Commission
(CCRC) has said. Guardian 11th October 2018
Evidence collected by police
 The police are subject to duties under the Code of
Practice issued under Section 23 of the Criminal
Procedure and Investigations Act (CPIA) 1996.
 They have a duty to record and retain all material
relevant to the investigation and the appointed ‘disclosure
officer’ will undertake responsibility for disclosure and will
be required to certify that he/she has followed the Code
of Practice. He/she must draw up a schedule of unused
material which is forwarded to the CPS.
 The duties relating to disclosure remain on the police
rather than the prosecutor throughout the procedure
because although it is the prosecutor who will review the
evidence it is the police who in reality control the material
available to the prosecutor.
 Sensitive material may be withheld.
Prosecution Duties of
Disclosure
 Advancedisclosure of evidence to
be used against the defence at trial.

 Disclosure of unused material –

material they have collected and
retained but are not using at trial.

 Expert evidence
Human Rights
Disclosure of the Prosecution Case is essential to a fair trial
under Article 6
A party to the proceedings must have the possibility to
familiarise itself with the evidence before the court hearing,
as well as the possibility to comment on its existence,
contents and authenticity in an appropriate form and within
an appropriate time.
The right of access to the case file is not absolute. In some
cases it may be necessary to withhold certain evidence from
the defence so as to preserve the fundamental rights of
another individual or to safeguard an important public
interest such as national security or the need to protect
witnesses or safeguard police methods of investigation of
crime.
However, only such measures restricting the rights of the
defence which are strictly necessary are permissible under
Article 6.
Evidence the prosecution will
be using at trial
 There are different rules as to when the
prosecution must disclose the evidence
they propose to use at trial depending
upon whether the trial will take place in the
Magistrates or Crown court.
 The defence is entitled to know the case
against them before they enter a plea.
 We saw in the introductory lecture that
over 70% of defendants plead guilty so
there is no trial.
Evidence the CPS do not propose
to use in order to prove the case

 Section 3 of the CPIA1996 (as amended) provides:

 s 3 Initial duty of prosecutor to disclose
 (1) The prosecutor must--
 disclose to the accused any prosecution material which
has not previously been disclosed to the accused and
which might reasonably be considered capable of
undermining the case for the prosecution against the
accused or of assisting the case for the accused…
AG Guidelines
 Any material casting doubt upon the accuracy of any
prosecution evidence.
 ii. Any material which may point to another person,
whether charged or not (including a co-accused) having
involvement in the commission of the offence.
 Any material which may cast doubt upon the reliability of
a confession.
 Any material that might go to the credibility of a
prosecution witness.
 Any material that might support a defence that is either
raised by the defence or apparent from the prosecution
papers.
 Any material which may have a bearing on the
admissibility of any prosecution evidence.
7A Continuing duty of prosecutor to disclose

 (1) This section applies at all times--

 (a) after the prosecutor has complied with section 3 or
purported to comply with it, and
 (b) before the accused is acquitted or convicted or the
prosecutor decides not to proceed with the case
concerned.
The main defence duties

 Requirement to serve details of any

witnesses the defence will call in support
of the defendant.
 Requirement to give defence statement
setting out the general nature of the
defence – ie alibi or self-defence
 (Not mandatory in Magistrates court)
 Comply with rules relating to expert
evidence