Evidence - Burden & Standard of Proof - Questions (1)
Q1. Consider burden and standard of proof in the following cases:-
(a) Brian is charged with an offence under a statute, the relevant part of which reads:-
“It shall be an offence for a person to fish for salmon in one of the rivers designated in the schedule to this Act unless the person has a current licence.”
(b) Clive is charged with an offence under section 1 of the Abduction Act 2006, which reads:-
“It shall be an offence for a person to take an unmarried girl under the age of 16 out of the care of her parent or guardian without the consent of the latter.”
Clive wishes to raise the issue that the girl in question is over 16; married; and that he ahd the relevant consent.
Answers:
Q1a) Prosecution has to prove:
- It’s Briand (Identity)
- Designated river
- Brian is fishing
- Fishing for salmon
Who has got to prove ‘has a current licence’?
- Apply AG reference no.4 of 2004
- Less serious crime, switch burden of proof
- Likely that defendant has to prove
Q1b) Elements of crime:
- Unmarried
- Girl
- Under 16
- Out of care (for how long?)
- Without consent
Prosecution has to prove:
- Girl, not boy
- Under 16
- Unmarried
Who prove consent?
- Apply AG reference no.4 of 2004
- Serious crime, burden on prosecution
Q3. Consider burden and standard of proof in the following cases:-
(a) “Now the words “beyond reasonable doubt” mean just that. You shouldn’t be deflected from convicting by slight or fanciful doubts and you should treat the decision about guilt as you would treat a decision of reasonable importance in your own lives, such as for example whether you would take out a bank loan for home improvement.”
(b) “Now as we have heard this murder took place in 1996 and the accused, who agrees that he is an alcoholic vagrant, was not charged with it until 2004. At the police station he said that he couldn’t explain where he was at the time of the murder because he had no idea so long afterwards. However, he has chosen not to give evidence before you and in the circumstances it is up to you what you make of that refusal to testify.”
(c) “Now as we know on this rape charge, the defence is that the victim consented. Of course if that is established, then the defendant is entitled to an acquittal. There are no longer any technical rules about the value of the evidence of victims in this kind of case and it is simply a case of whose word you believe, so that you are completely sure.”
(d) “As we know this defamation case turns on the allegation in the Daily Bugle that the complainant had been stealing from her employers. As we have heard she was acquitted of any such charges in the Crown Court two years ago, but you must of course bear in mind the higher standard of proof there. All the defendant has to establish is that the plaintiff was really guilty in this case, whatever the decision the criminal jury came to.”
Answers:
Q3a) CA’s direction is never try to explain ‘beyond reasonable doubt’.
Q3b) The subject matter is the right of silence: judge can, not must, direct jury to make adverse inferences to silence
- S35 CJPOA: if defendant has nothing to answer, judge cannot direct jury to make adverse inferences
Q3c) Prosecution has to prove absence of consent
- The word ‘established’ = proved: this is completely WRONG to say something like this
- It is not clear just should be sure about defendant’s defence or prosecution’s version: the jury should be sure of HIS GUILT
Q3d) For defamation case, the burden of proof is on the defendant
- The last sentence is completely RIGHT
(a) Brian is charged with an offence under a statute, the relevant part of which reads:-
“It shall be an offence for a person to fish for salmon in one of the rivers designated in the schedule to this Act unless the person has a current licence.”
(b) Clive is charged with an offence under section 1 of the Abduction Act 2006, which reads:-
“It shall be an offence for a person to take an unmarried girl under the age of 16 out of the care of her parent or guardian without the consent of the latter.”
Clive wishes to raise the issue that the girl in question is over 16; married; and that he ahd the relevant consent.
Answers:
Q1a) Prosecution has to prove:
- It’s Briand (Identity)
- Designated river
- Brian is fishing
- Fishing for salmon
Who has got to prove ‘has a current licence’?
- Apply AG reference no.4 of 2004
- Less serious crime, switch burden of proof
- Likely that defendant has to prove
Q1b) Elements of crime:
- Unmarried
- Girl
- Under 16
- Out of care (for how long?)
- Without consent
Prosecution has to prove:
- Girl, not boy
- Under 16
- Unmarried
Who prove consent?
- Apply AG reference no.4 of 2004
- Serious crime, burden on prosecution
Q3. Consider burden and standard of proof in the following cases:-
(a) “Now the words “beyond reasonable doubt” mean just that. You shouldn’t be deflected from convicting by slight or fanciful doubts and you should treat the decision about guilt as you would treat a decision of reasonable importance in your own lives, such as for example whether you would take out a bank loan for home improvement.”
(b) “Now as we have heard this murder took place in 1996 and the accused, who agrees that he is an alcoholic vagrant, was not charged with it until 2004. At the police station he said that he couldn’t explain where he was at the time of the murder because he had no idea so long afterwards. However, he has chosen not to give evidence before you and in the circumstances it is up to you what you make of that refusal to testify.”
(c) “Now as we know on this rape charge, the defence is that the victim consented. Of course if that is established, then the defendant is entitled to an acquittal. There are no longer any technical rules about the value of the evidence of victims in this kind of case and it is simply a case of whose word you believe, so that you are completely sure.”
(d) “As we know this defamation case turns on the allegation in the Daily Bugle that the complainant had been stealing from her employers. As we have heard she was acquitted of any such charges in the Crown Court two years ago, but you must of course bear in mind the higher standard of proof there. All the defendant has to establish is that the plaintiff was really guilty in this case, whatever the decision the criminal jury came to.”
Answers:
Q3a) CA’s direction is never try to explain ‘beyond reasonable doubt’.
Q3b) The subject matter is the right of silence: judge can, not must, direct jury to make adverse inferences to silence
- S35 CJPOA: if defendant has nothing to answer, judge cannot direct jury to make adverse inferences
Q3c) Prosecution has to prove absence of consent
- The word ‘established’ = proved: this is completely WRONG to say something like this
- It is not clear just should be sure about defendant’s defence or prosecution’s version: the jury should be sure of HIS GUILT
Q3d) For defamation case, the burden of proof is on the defendant
- The last sentence is completely RIGHT
posted by pompom at 6:56 AM
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