Discussion of Select Scenarios under Criminal Law

This document provides a discussion of select scenarios under criminal law, including the burden of proof borne by the prosecution and defendants, the admissibility of silence in police interviews, and the application of various laws and rules. It explores the issues and provides expert analysis on criminal law topics.

DISCUSSION OF SELECT SCENARIOS UNDER CRIMINAL LAW
Type of Assignment
May, 9, 2019
2576 words
Name of Student
Name of Institution
1

Table of Contents
Table of Contents.............................................................................................................................2
Table of Cases..................................................................................................................................3
List of Statutes/Instruments.............................................................................................................4
List of Abbreviations.......................................................................................................................4
Introduction......................................................................................................................................5
Burden of proof borne by the prosecution, defendants....................................................................5
MR’s silence at the police interview...............................................................................................8
The admissibility of EA’s Admissions in her police interview.....................................................10
Admissibility of identification, search evidences against CW......................................................11
References and Bibliography.........................................................................................................13
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Table of Cases
Woolmington v DPP 1935] 25 Cr App 72, HL.
R v Vickers [1957] 2 QB 664, Civ.
Miller v Minister of Pensions [1947] 2 All ER 372.
Rex v Summers [1952] 1 All ER 1059.
Johnson v Bennet [1968] 393 US 253.
Boateng v R [2012] EWCA Crim 1146.
R v Clarke 2014 EWCA Crim 854.
R v Fulling [1987] All ER 65.
Boyd v United States [1886] 116 US 616.
Singh v Singh [2016] EWCH 1432.
AB v Crown Prosecution Service [2017] EWCH 2963.
T v DPP [2007] EWCH 1793.
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List of Statutes/Instruments
The Homicide Act 1957.
The Criminal Justice and Public Order Act 1994.
The European Convention on Human Right 1953.
The Police and Criminal Evidence Act 1984.
The International Covenant on Civil and Political Rights.
Data Protection Act 1998.
The Coroners and Justice Act 2009.
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List of Abbreviations
PACE – the Police and Criminal Evidence Act
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Introduction
Criminal law applies differently to situations depending on the facts of each scenario.1 In
responding to the questions posed, this study will use an approach of looking at the issues under
each question, a discussion of the rules or laws that apply to the said issues, application of the
rules to the facts of the case and finally a conclusion in response to the issues raised.
The burden of proof is borne by the prosecution, defendants.
Most legal systems around the world for centuries have adopted the legal principle that ‘he who
alleges must prove,’ as McBaine asserts.2 ‘Affirmati Non Neganti Incumbit Probatio’ is a Latin
maxim to that effect; that the burden of proof lies with the party that alleges and not the one
which denies.3 It is only reasonable to make a party alleging something to prove that claim
instead of asking the same of an accused. This is also because the defendant is presumed
innocent until proven guilty4. All of the prosecution’s claims against each of Mike Rule (‘MR’),
Clive Wilcocks (‘CW’) and Eva Ali (‘EA’) have to be proved by not the defendants or the court,
but the prosecution.
Harmonizing facts of the case.
A man is murdered in cold blood and the dead body is found in his room. Three suspects are
arrested and charged with the murder. The first suspect is accused of severally stabbing the
deceased. He exercises his right to remain silent at the police station. He plans to claim that he
suffers from a form of insanity that was made severe by the actions of the deceased. This
defendant also intends to raise diminished responsibility and loss of control in defense. The
second suspect is accused of inflicting serious injury to the deceased’s head using a hammer. He
plans to raise an alibi defense and is ready to call his mother as a witness in court. However, a
witness claims to have seen someone matching the suspect's description leaving the crime scene
at about the time the murder is thought to have been committed. This witness picks him out in a
parade, but the defendant claims bias in the way that the test was conducted. Sometime after
1 ‘Theories of Criminal Law’ (Stanford Encyclopedia of Philosophy 2018)
<https://plato.stanford.edu/entries/criminal-law/#Bib> accessed 8 May 2019.
2 James McBaine, ‘Burden of Proof: Degrees of Belief’ (1944) 32 CLR 242.
3 ‘Affirmati Non Neganti Incumbit Probatio Law and Legal Definition’ (Us Legal.com)
<https://definitions.uslegal.com/a/affirmati-non-neganti-incumbit-probatio/> accessed 8 May 2019.
4 Woolmington v DPP [1935] 25 Cr App 72, HL.
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receiving legal counsel, the police seize files relating to his case while performing a legal search.
The prosecution also alleges that the third suspect held the deceased down while the first suspect
did the stabbing, despite being frail both physically and mentally. This (third) defendant plans to
deny any involvement in the murder but goes ahead to admit committing it to the police during
questioning. At trial, she claims to have been unlawfully influenced by the police by coercion
and denied her right to legal counsel to make her admit committing the offense.
Issues
 What burden of proof does the prosecution bear?
 What burden of proof do the defendants bear?
Rules/law
The offence of murder like many others under criminal law has two elements, actus reus which
is the causation of death and mens rea5 which is malice aforethought as stipulated in the
Homicide Act of 1957.6 Malice aforethought has more recently been described as the intention
to kill, in the case of R v Vickers.7
The general rule is usually that the prosecution bears the burden of proof in any criminal case8.
This it has to do to a certain standard, which is; beyond reasonable doubt as was held in Miller v
Minister of Pensions9. Lord Denning in this case however made it clear that reasonable doubt
does not mean beyond a shadow of a doubt, O’Connor and co-authors also confirm.10 The
prosecution has to convince the jury such that the jury becomes almost ‘sure’ that the defendant
committed the said crime.11 The rationale for this is that an accused person is presumed innocent
until proven guilty, as asserted by Fletcher.12
Under the Coroners and Justice Act13 the defense of loss of control was clarified and is, in
essence, replacing tradition defense of provocation. The general rule is that the defendant does
not have to prove anything but to create a doubt in the court’s mind over substantial issues raised
5 Rollin Perkins, ‘Rationale of Mens Rea, A’ (1938) 52 HLR 905.
6 Homicide Act 1957, s.1.
7 R v Vickers [1957] 2 QB 664, Civ.
8 [1935] 25 Cr App 72, HL.
9 Miller v Minister of Pensions [1947] 2 All ER 372.
10 Kieron O’Connor, Frederick Aardema, Marie Pelissier, ‘Beyond Reasonable Doubt: Reasoning Processes in
Obsessive-Compulsive Disorder and Related Disorders’ (2005) JWS.
11 Rex v Summers [1952] 1 All ER 1059.
12 George P Fletcher, Rethinking Criminal Law (OUP 2000).
13 Coroners and Justice Act 2009.
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by the prosecution14. Depending on different defenses, however, the defendant may have a legal
or evidential burden of proof.15 Insanity is an exemption from the Woolmington rule at common
law, and as such a defendant raising this bears the burden of proving so. For the defence of
diminished responsibility the accused has a legal buof proof according to the Homicide Act.16
For loss of control the statute puts an evidential burden on the defendant.17 Alibi places a legal
burden of proof on the defendant as was held in Johnson v Bennet.18 The defendants, in contrast
to the prosecution, have to prove their defenses to favour them on a balance of probabilities.
Application
The prosecution, in this case, claims that all three suspects MR CW and EA murdered the
deceased. This means that the prosecution alleges that all three suspects did an act that caused
the death of PS, and that all three had malice aforethought, they intended to kill PS. The burden
of proof as described in the Woolmington case requires that the prosecution proves all that it
alleges. McBaine in his article on burden of proof and presumptions, agrees.19 So it has to prove
that all the three defendants conducted the act that led to the deceased’s death, and that they had
the intention of doing so.
The defendants have different burdens of proof depending on their defenses. MR plans to use
insanity which under common law bears a legal burden of proof. He is backing this up with
diminished responsibility and loss of control. For the latter two he will have to bring evidence to
convince a jury. CW is raising an alibi which bears an evidential burden…he has to prove to the
court that he was elsewhere. EA is legally raising a defense an alibi by denying involvement. He
may also have to adduce proof of being elsewhere on the fateful day, though it is the
responsibility of the prosecution to prove her involvement.
Conclusion
The prosecution bears the burden to prove that all the three MR, CW and EA are the people who
caused the injuries of PS, and that it is the injuries that caused the death. This will prove the
actus reus. It also has to prove that they had that intention (malice aforethought), the mens rea
and both these elements it has to prove beyond a reasonable doubt.
14 ‘Burdens of Proof in Criminal Cases’ (NOLO) <https://www.nolo.com/legal-encyclopedia/burdens-of-proof-
criminal-cases.html> accessed 8 May 2019.
15 Andrew Ashworth, Jeremy Horder, Principles of Criminal Law (OUP 2013).
16 Homicide 1957 s2.
17 Homicide 1957 s54.
18 Johnson v Bennet [1968] 393 US 253.
19 James P McBaine, ‘Burden of Proof: Presumptions’ (1954) 2 ULR 13.
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MR bears a legal burden of proof to prove that he was insane at the time of committing the
murder. CW bears an evidential one to prove alibi while EA though technically raising an alibi
through denying involvement, has no burden apart from proving that she was indeed harassed
into admission. It is upon the prosecution to prove its case against her.
MR’s silence at the police interview
Issues
The defendant makes no comment to the police relying on advice from his solicitor but mentions
in the statement that he was under a provocation that made him lose control. What inference then
can be drawn over the accused’s silence at the police station?
Rules/Law
According to the Criminal Justice and Public Order Act, where there is evidence that an accused
person assumed silence in a police interview, the court may ‘draw inferences from the failure as
appear proper'.20 This does not apply, however, where the accused is in legal custody and has
been denied his right to legal counsel. In AB v Crown Prosecution Service (CPS)21 Justice
Whipple J relied on a three stage criterion drawn from T v DPP22 in determining what inference
could be incurred by the court for case of silence in police stations. “…the Justices should…ask
these questions:
1. Has the defendant relied in his defense on a fact which he could reasonably have been
expected to mention in his interview, but did not? If so, what is it?
2. What is his explanation for not having mentioned it?
3. If that explanation is not a reasonable one, is the proper inference to be drawn that he is
guilty?”
In Boateng v R23 the defendant remained silent in the police interview. He, however, gave
information at cross-examination. He stated that he assumed silence at the police interview on
legal counsel. The judge gave the jury a go-ahead on section 34. The court of appeal maintained
this decision. As was held in R v Clarke, the strongest inference that can be drawn from an
20 Criminal Justice and Public Order Act 1994, s.34.
21 AB v Crown Prosecution Service [2017] EWCH 2963.
22 T v DPP [2007] EWCH 1793.
23 Boateng v R [2012] EWCA Crim 1146.
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accused's silence arises when he later offers a fact which at the time of questioning was obvious,
for example, consent in a case of rape.24
Application
In analyzing the weight of MR's silence at the police station it is important to put into
consideration Justice Whipple's first two questions of the three-stage criterion. The court would
have to ask whether the defense of insanity is one which he should have mentioned at the
questioning by police and also get his explanation for the choice not to mention it. Section 34
does apply to this case because MR has not been denied his right to a solicitor. This leaves the
biggest question for this scenario to be the rule in R v Clarke, are the latter facts offered by MR,
that he suffers insanity and went under loss of control, those which can be considered as
obvious?
Conclusion
In conclusion, the court may not infer guilt on MR based on his silence at the police questioning.
This could depend, however, on the reason he gives for the silence, but looking at the rule in
Clarke25, insanity and loss of control may not be a very obvious defense that an accused person
under legal advice would raise in police station custody. It is more ‘obvious,’ probably, for the
accused to talk to the police if his defense is an affirmative one such as alibi.
The admissibility of EA’s Admissions in her police interview.
Issues
The defendant is charged with murder. She plans to deny being involved in the murder in any
way. In contradiction, she does admit involvement at police questioning but at trial alleges being
bullied into doing so. She also claims to have been denied the right to legal counsel. Do her
admissions remain admissible in a court of law anyway?
Rules/Law
The European Convention on Human Rights has it that the evidence must not be admissible if
obtained through torture or inhuman or degrading treatment.26 The freedom from any forms of
coercion or duress, threats or torture is the right of any individual under the International
24 R v Clarke 2014 EWCA Crim 854.
25 [2014] EWCA Crim 854.
26 Council of Europe, European Convention on Human Right (adopted 3 September 1953, entered into 4 November
1950) ETS 5.
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Covenant on Civil and Political Rights.27 Furthermore, according to the Police and Criminal
Evidence Act (PACE) the court is not supposed to admit confession evidence obtained by
coerced submissions or oppression of any kind.28 Oppression in this act means “torture, inhuman
or degrading treatment and the use or threat of violence.” 29Also included are confessions made
in circumstances which make the confession unreliable as were outlined in R v Fulling.30 Where
admissibility of evidence comes under any such scrutiny the prosecution must be convincing
beyond reasonable doubt that there was no such illegal influence, if the court is to admit the
evidence in question.
Application
EA is relying on section 76 of PACE and she seeks to have the admission evidence scrapped off.
In addition, she has been denied legal counsel which strengthens her claim, as Kamisar agrees in
his article on the right to legal advice.31 It is upon the prosecution, therefore, to prove beyond a
reasonable doubt that the admissions were in fact made without any form of oppression as
defined in PACE.
Conclusion
If at all EA's claims are proven to be true then they are not going to be admissible because they
violate the PACE and the rights against self-incrimination. The prosecution may make them
admissible though if it can prove otherwise but on a standard of beyond reasonable doubt.
Admissibility of identification, search evidence against CW
Issues
A suspect is accused of murder. He claims an alibi. He is put on an identification parade of seven
where a witness confirms his identity. He claims bias – one of the volunteers in the parade
appears to be of African origin and another appears to be African-Caribbean descent yet he, the
accused is white and British. Later he gets legal counsel. The police whilst conducting a legal
search on the legal advisor picks out all files relating to the case.
 Is the identification evidence admissible anyway?
 What is the admissibility of the seized evidence?
27 This is categorically stipulated for in Article 14(3) of the International Covenant on Civil and Political Rights.
28 Police and Criminal Evidence Act 1984, s.76.
29 Police and Criminal Evidence, s.76.
30 R v Fulling [1987] All ER 65.
31 Yale Kamisar, ‘The Right to Counsel and the Fourteenth Amendment: A Dialogue on “The Most Pervasive Right”
of an Accused’ (1962) 30 UCLR 77.
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Rules/law
The rules regulating the visual identification evidence of suspects is contained in PACE code of
practice known as Code D and its annexes.32 Annex B concerns itself with identification parades.
It stipulates that the parade should include at least eight people (including the suspect) who must
all be similar in appearance. Where the police fail to follow procedures set out in code D it may
lead to exclusion of identification evidence at trial under the statute.33 There is also a requirement
that the suspect should not stand out from the rest of the people in the parade, according to the
PACE codes of practice.34
In relation to searches, a variety of laws apply. In Boyd v United States there was a question
before the Supreme Court on whether evidence seized by illegal seizure could be used in
criminal proceedings.35 The decision of the court as delivered by Justice Bradley was that it
could be inadmissible because it violated the right of an accused not be ‘witness in their own
case.’ A recent case of Singh v Singh36 has however demonstrated that there is no guarantee that
the courts will always reject such evidence, a fact that Smit and colleagues seem to be dejected
with.37 It is both a civil wrong and a criminal offense however to disclose personal data without
the consent of whoever is in control of it, according to the Data Protection Act.38
There is a legal advice privilege in English law that protects the confidentiality of
communication between a lawyer and his client as asserted by Sharpe39. However, recent
applications by the high court of England affirm that there must be a legally qualified lawyer for
this to apply.40
Application
Analyzing the scenario of CW’s case Vis a Vis code D of PACE, if the defendant’s claims are
true then he has been subjected to a parade of seven, while the minimum should be eight. There
32 Police and Evidence, s.78.
33 Police and Evidence, s.78.
34 Police and Evidence.
35 Boyd v United States [1886] 116 US 616.
36 Singh v Singh [2016] EWCH 1432.
37 Nadine M Smit, Ruth M Morgan, David A Lagnado, ‘A Systematic Analysis of Misleading Evidence in Unsafe
Rulings in England and Wales’ (2018) 58 SJ 128.
38 Data Protection Act 1998.
39 Sybil Sharpe, Search and Surveilance: The Movement from Evidence to Information (Routledge 2018).
40 ‘Legal Advice Privilege: Important Protection, Narrow Application’ (3 January 2017)
<https://www.walkermorris.co.uk/publications/legal-advice-privilege-important-protection-narrow-application/>
accessed 8 May 2019.
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is also a requirement that the suspect should not stand out in the parade. It seems like an injustice
because the inclusion of two people who have a very different appearance from him leaves only
four members of the parade to be compared to him. This remains at the court’s discretion as seen
in the recent Singh case.
On the issue of the documents seized from Legal & Strong offices, the search is a legal one so it
brings this analysis to the question of whether the legal advice privilege applies. It seems not to,
because CW has no legally qualified lawyer. Such are not employed by Legal & Strong.
Conclusion
In conclusion, the identification evidence may not be admissible by the court because of the
illegality, but this is not a surety. On the other hand, the evidence raised by the prosecution from
the search is very much relevant because it does not enjoy the legal advice privilege.
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Bibliography
Books
Fletcher GP, Rethinking Criminal Law (OUP 2000)
Ashworth A, Horder J, Principles of Criminal Law (OUP 2013)
Sharpe S, Search and Surveilance: The Movement from Evidence to Information (Routledge
2018)
Journal Articles
McBaine J, ‘Burden of Proof: Degrees of Belief’ (1944) 32 CLR 242
Perkins R, ‘Rationale of Mens Rea, A’ (1938) 52 HLR 905
O’Connor K, Aardema F, Pelissier M, ‘Beyond Reasonable Doubt: Reasoning Processes in
Obsessive-Compulsive Disorder and Related Disorders’ (2005) JWS
McBaine JP, ‘Burden of Proof: Presumptions’ (1954) 2 ULR 13
Kamisar Y, ‘The Right to Counsel and the Fourteenth Amendment: A Dialogue on “The Most
Pervasive Right” of an Accused’ (1962) 30 UCLR 77
Smit NM, Morgan RM, Lagnado DA, ‘A Systematic Analysis of Misleading Evidence in Unsafe
Rulings in England and Wales’ (2018) 58 SJ 128
Electronic Sources
‘Affirmati Non Neganti Incumbit Probatio Law and Legal Definition’ (Us Legal.com)
<https://definitions.uslegal.com/a/affirmati-non-neganti-incumbit-probatio/> accessed 8 May
2019
14

‘Theories of Criminal Law’ (Stanford Encyclopedia of Philosophy 2018)
<https://plato.stanford.edu/entries/criminal-law/#Bib> accessed 8 May 2019
‘Burdens of Proof in Criminal Cases’ (NOLO)
<https://www.nolo.com/legal-encyclopedia/burdens-of-proof-criminal-cases.html> accessed 8
May 2019
‘Legal Advice Privilege: Important Protection, Narrow Application’ (3 January 2017)
<https://www.walkermorris.co.uk/publications/legal-advice-privilege-important-protection-
narrow-application/> accessed 8 May 2019
15