Criminal Evidence

Burden and Standard of Proof

What is the distinction between the legal and evidence burden of proof?

The legal burden of proof is where an issue must be proven ‘beyond reasonable doubt’ or ‘on the balance of probabilities’.

An evidential burden of proof merely requires the party to bring enough evidence to raise the issue.

Where does the legal standard of proof lie in criminal cases?

The legal burden of proof is on the prosecution to prove all the elements of the offence ‘beyond reasonable doubt’.

Where this burden is on D, the standard is the ‘balance of probabilities’.

What are the exceptions where the legal burden is on the defence?

In what circumstances is the evidential burden of proof on D?

Where D raises the defence of insanity, the legal burden rests on D.
There are a number of express statutory exceptions that reverse the burden (legal burden) of proof onto D – (eg murder, abnormality of mind, possession of offensive weapon, where D has to show good reason or lawful authority for its possession)
There are also a number of implied exceptions where a statute impliedly reverses the burden of proof onto D.

When attempting to use a number of common law defences, e.g.:

self-defence;
duress;
non-insane automatism;
intoxication;
provocation.
Alibi

In addition certain statutory defences impose an evidential burden:

Use of reasonable force in preventing crime
The defence of loss of control when charged with murder
Consent to sexual intercourse, when there exists a rebuttable presumption of no consent;
Reasonable excuse to be in possession of certain materials.

Witnesses

What is the general rule with regards to competence of witnesses and whether they are compellable?

The general rule is that all persons are competent to give evidence and all persons are compellable to give evidence.

What are the exceptions to the general rule in relation to competence and compellability?

Children and people of unsound mind:

Are not competent is they are unable to:

Understand questions put to him, or
Give comprehensible answers.

D and any co-accused:

D is not competent to give evidence in his own trial for the prosecution, unless:

Pleads guilty;
Acquitted
Separate trials have been ordered;
Following an order of nolle prosequi by AG (do not prosecute).

However, D competent to give evidence on his own behalf, but not compellable

Spouse or civil partner of D:

A spouse or civil partner is competent to give evidence for any party, but not compellable to give evidence for the prosecution in most circumstances. However, a spouse/civil partner is compellable for P in circumstances where D is charged with an offence that:

Includes an assault on, or injury or threat of injury to, the spouse or civil partner;
Includes an assault on, or injury or threat of injury to, a person under the age of 16; or
Consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of any of the above offences.

These rules do not apply to those who merely co-habit, or to former spouses. These rules also only apply where spouse is not herself a Co-D.

Who must gives sworn evidence?

Generally everyone who gives evidence must be sworn. However a W may not give sworn evidence unless:

He has attained age of 14; and
He has sufficient understanding of the solemnity of the occasion and the responsibility created by the oath to tell the truth.

If a W is not permitted to give sworn evidence, then the evidence must be unsworn. The weight of this evidence is a matter for the tribunal of fact.

If W is under 17, he may make a promise instead.

What is a witness summons?

Where it is anticipated that a witness will not attend the court voluntarily, a witness summons can be applied for whereby the witness must attend or be in contempt of court.

TEST: The witness must be likely to give/provide material evidence, but will not do so voluntarily, and it is in the interests of justice to grant the summons.

XIC

What form of questioning is permitted during XIC?

Only non-leading questions. However, there are 3 exceptions to this rule:

Introductory questions - questions about name and occupation;
Undisputed issues;
Hostile witnesses - a witness that is hostile to the party who called him and shows an unwillingness to tell the truth.

Can a witness refresh their memory from their W/S?

Prior to giving evidence a witness may refresh their memory.

Once they have begun giving evidence, a witness may refresh their memory from a previous statement if:

He states in evidence that the document records his recollections of the matter at that earlier time; and
His recollection of the matter is likely to have been significantly better at that time than it is now he is giving evidence.

What must happen with any documents used to refresh the memory of witnesses?

They must be made available to the other parties and the jury. The other parties may then cross examine on their contents.

Having been cross examined on them, the documents may then be admitted as evidence (even though they are technically hearsay).

Can evidence of previous consistent statement be adduced at trial?

The general rule is no. However, there are exceptions:

To prove a previous ID;
To prove a previous complaint (witness must give evidence prior to adducing the document);
To rebut an allegation of fabrication.

What questions may be asked during re-examination?

Only non-leading questions and only questions that relate to matters that arose in cross examination.

What form of questioning should be used in XX?

A witness may be asked leading questions about matters in issues, relevant facts, and issues of credibility. Questions are not restricted to matters raised in examination in chief (‘XIC’).

Are previous inconsistent statements admissible as evidence?

Yes. Where a witness’s evidence is inconsistent with a previous statement, the document may be adduced. The procedure set down in the CPA is:

The inconsistency must first be put to the witness;
The witness must then be given a chance to read the document and confirm whether it is true of not.
If they agree with it, it becomes part of their evidence insofar as it corrects it; if not, it can be put into evidence.

What is the rule of finality?

Where a witness is being cross examined on a collateral issue and has given an answer, no further questions can asked or evidence adduced on that issue. However, there are 4 exceptions to this rule:

Previous convictions;
Bias;
Reputation for untruthfulness; and
Disability affecting reliability.

When and what are special measures available?

In circumstances where a vulnerable or intimidated witness is going to give evidence, the court can order special measures to be taken. The categories for such witnesses are:

Children under the age of 17 at the time of hearing;
The quality of the witness’s evidence is likely to be diminished due to:

A mental disorder;
A physical disability or disorder; or
A significant impairment of intelligence or social functions;

The quality of the witness’s evidence is likely to be diminished because of fear or distress; and
The witness is the complainant in respect of a sexual offence.

Special measures can include:

Wigs and gowns not worn;
Pre-recorded XIC;
Evidence given through video link;
Witness prevented from seeing D;
Exclusion of specified person from court.

Hearsay

What is the definition of ‘hearsay’?

There are four elements that made a statement hearsay:

Statement (must be made by a person);
Not made in oral evidence in the proceedings;
Relied on at trial for the truth of the matter stated; and
Intended to cause someone to believe or cause another person or machine to operate on the basis of the statement.

What are the consequences of something being hearsay?

It is inadmissible in proceedings unless it satisfies one of the exceptions.

When is a hearsay statement original evidence and therefore admissible?

When it is adduced to show:

The state of mind or knowledge or belief of the statement-maker;
The state of mind or knowledge or belief of the hearer;
The statement was made; or
The statement was false.

What are the exceptions that made hearsay admissible?

What is the procedure for adducing hearsay evidence?

Excluding hearsay evidence

S114(1)(c) - all parties agree

S114(1)(d) - in the interests of justice

In considering whether evidence should be admitted in this way, 9 factors may be considered by the judge:

Probative value of the statement/its value to understanding other evidence;
What other evidence has been/can be given on the matter;
Its importance to the case as a whole;
The circumstances in which the statement was made;
The reliability of the statement-maker;
The reliability of the evidence of the making of the statement;
Whether oral evidence can be given, and if not, why not;
The amount of difficulty in challenging the evidence;
The extent to which that difficulty will prejudice the party facing it.

S116 - witness unavailability

Requirements for this exception:

Statement, if made in oral evidence, would have been admissible;
Statement-maker is identified to the court; and
The statement-maker is:

dead;
unfit to be a witness due to a bodily or mental condition;
Outside the UK (reasonable steps must have been taken to secure his attendance);
Cannot be found (reasonable steps must have been taken to find him);
Unwilling to testify through fear (fear is widely defined and includes fear of death or injury of...

#13728 - Criminal Evidence - BPC Criminal Litigation (formerly BPTC) 2024/2025

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