1.

a)
Legal burden and evidential burden are two proportions of establishing a criminal case. Burden is
the weight of persuading the court to establish the fact in issue or a relevant fact. The party who
bear the burden must prove that in order to establish that fact or escape liability.1

The standard of proof of a criminal case is beyond reasonable doubt and it bearing by the
prosecution. Therefore establishing overall case according to this standard is the obligation of the
prosecution and it is referred as the legal burden.2 The duty of the prosecution is establishing a
prima facie case by adducing sufficient evidences to be answered by the accused.

The evidential burden of the prosecution will be discharged and cross over to the accused
afterward the prima facie case is established.3 The evidences can be adduced to disprove the fact
in issue or relevant facts to convince that prosecutions case is improbable. Nevertheless the legal
burden sticks at the prosecution all the way through the case. 4
According to the decision of Woolmington v DPP 5 it is clear that establishing the reverse burden
with the accused is a misdirection of jury. Therefore the accused must not prove he is innocent.
This concept further entrenched by the Article 6 (2) of the ECHR. It states that the presumption
of innocence is an essential element of a fair trial.

If the accused rely upon a defence such as insanity or any of the statutory exceptions he must bear
the burden of establishing such. Therefore it is clear that in exceptional situations the reverse onus
may shift to the accused.

However Choo7 states that the reverse burden may arise a risk of

infringing the convention. In R v Johnstone

the court held that the reverse burden not impede

always a fair trial which has entrenched by the ECHR.

Numerous arguments put forward against imposing legal burden on the prosecution stating that it
has torn the shield of law making a loophole which allows the defendant the escape through. 9 This
observation must be enunciated by comparing with the presumption of innocence. It seems having
a conflict of the interest of the society and the accused.
1

P. Murphy, and R. Grover, Murphy on evidence, (Oxford University Press; Oxford, 2011) 70
Ibid 71
3
Ibid 73
4
ibid
5
(1935) AC 462
6
Martin, J., and Storey, T., Unlocking Criminal Law, (Hodder Education; London, 2010) 19
7
A. Choo, Evidence, (Oxford University Press; Oxford, 2012) 32
8
[2003] All ER (D) 323
9
Martin, J., and Storey, T., Unlocking Criminal Law, (Hodder Education; London, 2010) 84-85
2

b)
Self defence, statutory defences such as diminished responsibility which is established by Homicide
Act 1957 and the defence under s.28 of the Misuse of Drugs Act are exceptions to the wolminton rule.
The defendants who rely upon these defences must prove them balance of probability.

Grace claims that she suffered from diminished responsibility and did not know what she is doing in the
given scenario. Therefore she must prove this defence in order to escape her criminal liability of murder
of her husband. The theory behind the aforesaid Homicide Act is a person who suffering from
abnormality of mind will not convict for murder. If Grace proves this defence she can mitigate her
liability to manslaughter from murder which she has alleged, which would reduce the punishment.

According to the section 2 of the Homicide Act 1957 Grace bear the burden of proof the defence
of diminished responsibility. In Lambert10 the Court of Appeal held that the burden which imposed
on the defendant by the Act must read with the section 6 of ECHR and in the way to give effect to
the presumption of innocence of the accused. In R v Dunbar11 which decided prior to Lambert the
court held that the legal burden of proof must bear by the accused. Therefore the present view is
the accused only bear the evidential burden.12 Grace must prove the defence by adducing sufficient
evidence and the standard of proof is balance of probability.

The other defence which Grace claims is self defence which gives inference that she attacked Kyle, her
husband to protect herself. R v Lobell13 held that the defendant bear only evidential burden to
establish the self defence. Grace can escape her criminal liability if she proves that as self defence
is a general defence. Therefore she can escape from the alleged murder by proving that she acted
to protect herself and in with criminal intention. Once the defence is raised a fresh burden transfer
to the prosecution to prove that she did not acted to protect herself or acted with criminal
intention.14 It is noticeable here that the legal of the case bear by the prosecution. This is an
additional burden acquired by the prosecution. The case Ashley v Chief Constable of Sussex
Police15 show an instance where the prosecution unsuccessful, as they were unable to disprove the
self defence by adducing sufficient evidences.

Jordan has jointly charged with his mother for the murder of his father. He relies upon the partial
defence legislated by the section 54 of the Coroners and Justice Act 2009, loss of control. The

10

[2001] UKHL 37
[1958] CA
12
P. Murphy, and R. Grover, Murphy on evidence, (Oxford University Press; Oxford, 2011) 93
13
[1957] 1 All ER 734
14
P. Murphy, and R. Grover, Murphy on evidence, (Oxford University Press; Oxford, 2011) 72-73
15
[2007] 1 WLR 398 (CA)
11

Act further states that it does not matter whether or not the loss of control was sudden.16 The Act
has introduced a subjective test in order to establish the defence.17 The test scrutinize whether a
man with same status with the defendant would act similarly under similar conditions. The defence
would not apply in acts of revenge. Jordan has loss his control by witnessing his fathers ferocious
attack on his mother. The prosecution can lead evidences to show commitment of any revenge in
order to disprove the defence. The Section 54(5) states that burden of proving the defence is bear
by the defendant. He can do that by adducing sufficient evidences. If the defendant succeeded in
here then the jury must assume that the defence is satisfied unless the prosecution disproves the
defence beyond reasonable doubt by adducing the evidences.18 Hence Jordan can mitigate his
liability to manslaughter if he can adduce sufficient evidences.19

2. a)

The opinion evidences are generally inadmissible in law of evidence. Permitting such evidences in a
proceeding is an exception to this general rule, whether the witness is an expert or non-expert. 20

Suspicious receipt is to be adduced by the prosecution as an evidence to prove that the fraudulent
of Afnan. Here the prosecution must prove that the signature of the receipt belong to Afnan. A
handwriting expert, Keith is called for that purpose. Keith has no formal qualification as per in the
scenario. Same time the technique he uses is not widely accepted by the handwriting experts.
Therefore the issue is whether his evidence can be adduced as an experts opinion to prove that the
handwriting belongs to Afnan. It is further states that NDC group, his company has provided
forensic handwriting evidences to court.
In the case of Sherlock21 a solicitor, who had made a study of handwriting has given permission to
adduce evidence on handwriting. In R v Oakley22 it was held that a police officer who has
experiences in road traffic accidents is a competent witness to give opinion how the accident
occurred. Hence it is clear that an expert is not always one with formal qualifications. The
expertise may gain through knowledge, skill, experience, training or education. 23 The law may

16

Section 54(2)
Section 54(1)(c)
18
Section 54(5)
19
Section 54(7)
20
Keane, A., Griffiths, J., and McKeown, P., The modern law of evidence, (Oxford University Press; Oxford,
2010) 524
21
(1894) 2 QB 766
22
(1979) 70 Cr App R 7, CA
23
P. Murphy, and R. Grover, Murphy on evidence, (Oxford University Press; Oxford, 2011) 393
17

even permit a non-expert evidences in circumstances where particular expertise is not requisite.24
The both cases R v Beckett25 and R v Davies26 insist the admissibility of non-expert evidences.
Therefore Keith may allow giving his opinion on Afnans handwriting, notwithstanding his lack of
formal qualification on the subject.27

The second issue arises from the scenario is whether he is permitted to refer a journal and a
research the both are not published by him. In common law such evidences can be identified as
hearsay and the hearsay evidences would not admissible under general rule. The statutory
enactments have mitigated the harshness of this rule and have allowed referring such materials in
both civil and criminal matters under certain restrictions. The Section 127 of the Criminal Justice
Act 2003 permits an expert to base his opinion on statements made by someone else for the
purpose of the proceedings. R v Silverlock 28 held that even unpublished materials may be referred
by an expert. However the weight or evidential value of such expert opinion must be decided by
the judge in order to establish the prosecutions case. In nutshell the competence of the expert,
admissibility of the evidence and the weight of the evidence must be assessed by the judge and
jury in an instance where an expert is produced by the prosecution.

b) A witness may states a person, a thing or a document he has seen previously while he is giving
evidences.29 The prosecution can arrange an identification of such person thing or document
which is mentioned by the witness in order to cement the credibility of the witness.
The Court of Appeal has lain down important set of guidelines in the case Turnbull30 with the
intention of prevent potentially misleading evidences being given of identification. The judge must
warn the jury regarding the caution of convicting the accused relying upon identification. Same
time the judge must direct the attention of the jury toward the circumstances such as the closeness,
physical status, condition of the surrounding light etc. which the identification is made. The
guideline established by the case shows the strict approach of the court with intention of
preventing any mistake.

The issue has arisen in this part of the scenario is the admissibility of identity of an accused,
whether the prosecution has followed the proper procedure in order to identify the accused. They
24

Keane, A., Griffiths, J., and McKeown, P., The modern law of evidence, (Oxford University Press; Oxford,
2010) 524
25
(1913) 8 Cr App R 204
26
[1962] 3 All ER 97
27
P. Murphy, and R. Grover, Murphy on evidence, (Oxford University Press; Oxford, 2011) 393
28
(1894) 2 QB 766
29
P. Murphy, and R. Grover, Murphy on evidence, (Oxford University Press; Oxford, 2011) 415
30
[1977] QB 224

have shown the accused to some of the witnesses who is ready to be testified at the court that he is
the one bought car from them. The suspect was known to the police and under their custody at the
time the police arrange an observation in despite of the formal procedure.

Identification parade which is conducted according to the established procedure may be a vital
evidence for the prosecution. Such identity can be used to corroborate the testimony of the witness
which will make the evidence more credible. However the procedure has followed by the police in
the given scenario cannot ascertain as a proper identification with an evidential value.
Code D of the Police and Criminal Evidence Act 1984 is introduced the Code as a code of
practice for the identification of persons by police officers in its title. The Act set the proper
procedure of an identification parade. Accordingly it is clear that the police and the prosecution
have not followed the proper procedure in order to identify Afnan.

The section 3.3 of the PACE 1984 states that a photograph or similar thing which would aid to
reveal the identity of the suspect must not be shown to the witness until the identification parade,
group identification or video identification is held if the identity of the suspect is known to the
police but unknown to the witness. Police has arranged an opportunity to observe Afnan, the
suspect in here. This is a prima facie violation of the rule set out by the PACE and would make
inadmissible such identification.

According to the section 78 of Police and Criminal Evidence Act the court may deny admissibility
of any evidence if it seems unfair to the proceeding. Therefore the prosecution cannot expect any
admissibility regarding admissibility of the identification done by the buyers, who may probably
be adduced as witness.

Bibliography
1. Choo, A., Evidence, (Oxford University Press; Oxford, 2012)
2. Keane, A., Griffiths, J., and McKeown, P., The modern law of evidence, (Oxford University
Press; Oxford, 2010)
3. Martin, J., and Storey, T., Unlocking Criminal Law, (Hodder Education; London, 2010)
4. Murphy, P. and Grover, R., Murphy on evidence, (Oxford University Press; Oxford, 2011)