1 (a) Woolmngton v DPP  1 stated that in any criminal offence ‘the duty of the

prosecution to prove the prisoner's guilt subject to …. the defence of insanity and

subject also to any statutory exception’ 2. Legal burden and evidential burden are the

two types of burdens in a legal proceeding. Legal burden refers the burden to prove

each element of the offence or defence to the recommended standard. 3 Evidential

burden is the burden adducing sufficient evidence to establish a particular fact. 4

The general rule is in a criminal proceeding legal burden of proving each issue; actus

rea, mens rea or lack of a defence imposes on the prosecution. 5 According to this

rule the alleged offences of Fay; murder, assault occasioning actual bodily harm and

possession of both Class A and Class B controlled drugs with intent to supply and lack

of the defences; self defence, diminished responsibility and defence under s. 28

must prove by the prosecution.

In Ashley v Chief Constable of Sussex Police 6 the prosecution failed on the

ground that there was no sufficient evidence to negate the self defence. This shows

that the burden of proof of defences lye on the prosecution to prove beyond

reasonable doubt.

But diminished responsibility and defence under s. 28 can be identified as the

statutory exceptions which were exempted by the case Woolmngton. Such

situations expressly impose the reverse burden of proof on defendant.

Imposing burden of proof on the prosecution is compliance with the presumption of

innocence under the European Convention on Human Right7. But reverse burden

has a threat of infringing the convention. 8

1 [1935] AC 462; [1935] UKHL 1 2 ibid3 P. Murphy, and R. Grover, Murphy on evidence, (Oxford University Press; Oxford, 2011) 69 4 Ibid 5 A. Choo, Evidence, (Oxford University Press; Oxford, 2012) 306 [2007] 1 WLR 398 (CA)7 Article 6 (2) European Convention on Human Right 19538 A. Choo, Evidence, (Oxford University Press; Oxford, 2012) 32

1 (b) Woolmngton v DPP 9 held that the defendant beard the legal burden of proof

only in the two exceptional situations; insanity and statutory exceptions. Later in

Lambert 10 it held that statutory provisions expressly impose legal burden on the

defendant inconsistent with the presumption of innocence under ECHR. Therefore

the court proposed to read down such provisions to impose evidential burden only.

The issue of Lambert was imposing burden of proof on accused in the defence under

s.28 of the Misuse of Drugs Act 1971. According to the House of Lords decision of

Lambert it is clear that imposing legal burden on accused is disproportionate and

unjustified. This decision explains the current position of law in such burdens.

In here Fay only bear the evidential burden after the prosecution disprove her

defence under s.28 of the Misuse of Drugs Act by adducing evidences. She must

adduce evidences to prove lack of knowledge about the drugs which was in her

possession.

Diminished responsibility also must explain in the light of Lambert. Homicide Act 1957

expressly imposes the legal burden of proving diminished responsibility to the

defendant. 11 If the court thinks imposing such burden on the defendant proportionate

and justifiable then Fay hold the legal burden to prove she neither knew nor suspected

nor had reason to suspect that the bag contained heroine. If the same decision apply

as Lambert then the provision of the Homicide Act must read down to impose only the

evidential burden on Fay.

In self defence not a exceptional situation and Fay do not bear legal burden. When

the defence raised it is the responsibility of the prosecution to negate it beyond

reasonable doubt by adducing sufficient evidences. If they show that Fay used

excess force or not acting depend himself then the prosecution discharge their legal

burden and Fey acquire evidential burden to create reasonable doubt in the mind of

jury. 12

1 (c) Diminished responsibility is an exculpatory defence which is established by the

9 [1935] AC 462; [1935] UKHL 110 R v   Lambert    [2001] UKHL 3711 Section 2 12 P. Murphy, and R. Grover, Murphy on evidence, (Oxford University Press; Oxford, 2011) 72-73

Homicide Act 1957 13 and the Act expressly imposes the reverse onus of proving on the

defendant. Other than these statutory exceptions there are common law defences as

well which relevant to this issue.

Right to a fair trial is awarded by the European Convention 14 and under that provision

any person must presume as innocence until he or she is proven guilty. The question

arise here is whether this right is infringe by the reverse onus.

After the Lambert the view of the law has changed and according to the present

approach the court refers whether or not it is justifiable and proportionate to impose

reverse burden of proof on the defendant. 15 Before the Lambert in Kebilene 16 the

view of the court was even it seems incompatible imposing reverse onus on

defendant, it can be justifiable according to the necessity of it in that particular case.

Public interest is one of justifiable ground for such reverse onus. 17 Even such burden

seems fair in public interest still the court should satisfy the proportional nature of such

action. 18 Diminished responsibility is a mitigatory defence which lowers a murder to

manslaughter. If Fay succeeds in her pleading under diminished responsibility it cause

to lower her punishment as then she may become guilty for manslaughter. The issue

is whether it is justifiable to ask the defendant to prove his defence. In a later case R v

Johnstone19 the court held that reverse burden will not preclude a fair trial in all the

instances. Here it further established the proportionate view and emphasized the

importance of public interest. There is an ongoing regarding eliminating legal burden

of proof from the defendant may make it harder to the prosecution to prove a case

beyond reasonable doubt and make more room to the defendant to escape from his

criminal liability. 20 This situation is clearly against the social interest and may lead to

a social dilemma.

13 Section 214 Article 6(2)15 A. Choo, Evidence, (Oxford University Press; Oxford, 2012) 3216 R v. DPP Ex Parte Kebilene and Others [1999] 3 WLR 97217 A. Choo, Evidence, (Oxford University Press; Oxford, 2012) 32-3318 Ibid 19 [2002] EWCA CRIM 19420 P. Murphy, and R. Grover, Murphy on evidence, (Oxford University Press; Oxford, 2011) 84-85

In much later cases Sheldrake v DPP 21 and A-G’s Reference (No 4 of 2002) 22 it

further established that the importance of complying with the presumption of

innocence entrenched by the ECHR must not disregard. If the reverse onus give

effect to prima facie breach of the presumption it should read down and only

evidential burden must be imposed on the defendant. The overall approach of these

case examples makes clear that the court currently follows a case-by-case

determination whether or not to impose the burden on a defendant. 23

In the defence diminished responsibility it seems not a reasonable ground to impose

the reverse burden on the accused. According to the justifiability and proportionate

rule follow by the court, if this situation may be found as unjustifiable and

impropotionate situation to impose such burden. Then the court may read down the

provision to lower the burden only to evidential burden of proof. If so there will be no

conflict with the ECHR. But there is certain ambiguity in this situation because if the

court let the imposing legal burden on the defendant as the statute expressly state

then there is a potential breach of the presumption of innocence under ECHR.

2 (a) Police and Criminal Evidence Act 1984 states ‘a person arrested and held in 21 [2003] EWHC 27322 [2004] UKHL 4323 A. Choo, Evidence, (Oxford University Press; Oxford, 2012) 36

custody in a police station or other premises shall be entitled, if he so requests, to

consult a solicitor privately at any time’.24 Putting pressure on Fay to be interviewed

without a solicitor is prima facie breach of this provision.

Police only can delay such request only on few grounds. 25 In indictable offences delay

is acceptable. 26 Fay has charged for few indictable offences and delay of allowing

legal assistance accepts on that ground. But there is no any provision which bar the

access to the legal assistance.

R v. Samuel 27 held the evidences which are taken by the police without allowing a

solicitor are not admissible in a criminal proceeding. It further stated such act of the

police infringe the human rights of the accused person. On this ground not allowing

the legal assistance in Fay’s case is infringe of human rights of Fay. The court will

not allow the admission of the evidence taken at the interview.

R v. Alladice 28 is a case held a different judgement. The defendant interviewed

without a solicitor. But the court allowed the admissibility of the evidences on the

ground he was well aware his rights. Here can argue on the same ground that Fay

had past experiences and well aware her rights before the interview. But according

to the facts of the case it seems she agreed upon the request of the police not

merely because she can face the interview successfully but the police pressured her.

In Aladice the defendant voluntarily faced the interview without the solicitor.

Finally it can argue the admissibility of these evidences depend on the view of the

court. The section 78 of Police and Criminal Evidence Act states ‘in any proceedings

the court may refuse to allow evidence ...if it appears to the court that, having regard

to all the circumstances, .... the admission of the evidence would have such an

adverse effect on the fairness of the proceedings that the court ought not to admit it’

If the court think it is unfair allowing the admission of Fay’s evidence may exclude

them.

24 Section 58 (1)25 Sections 58 (6) and 58 (8)26 Sections 58 (6)27 [1998] WLR 92028 [1998] CRIM LR 608

2 (b) Admissions are statements ‘in any form adverse to the interests of the person

who made it’29. According to the PACE ‘confession includes any statement wholly or

partly adverse to the person who made it, whether made to a person in authority or

not and whether made in words or otherwise’30. Confessions which are made by

accused persons against them at any proceedings are not excluded by the court. 31

All confessions can include in the category of admissions. If any oppression include

such confessions are inadmissible.32 Therefore the admissions of Fay in relation to the

offences may be admissible as they do not obtain by oppression.

Court may exclude evidences by reefing ‘circumstances in which the evidence was

obtained’ if it ‘would have such an adverse effect on the fairness of the

proceedings’.33 On this ground there is possibility to allow or refuse the admissibility

of the admissions by the court. There the court considers the fairness of admission

of such evidence.

2 (c) The admissibility of Fay’s statement depends on whether or not that statement is

29 P. Murphy, and R. Grover, Murphy on evidence, (Oxford University Press; Oxford, 2011) 31330 Police and Criminal Evidence Act 1984 c. 60 s 82 (1)31 Police and Criminal Evidence Act 1984 c. 60 s 76 (1) 32 Police and Criminal Evidence Act 1984 c. 60 s 76 (2)33 Police and Criminal Evidence Act 1984 c. 60 s 78

protected under the legal professional privilege. Legal professional privilege has two main

divisions. They are advice privilege and litigation privilege.34

‘Communications between a professional legal adviser and his client made in

connection with the giving of legal advice to the client’ 35 or ‘contemplation of legal

proceedings and for the purposes of such proceedings’ 36 are ‘items subject to legal

privilege’. Fey sent statements to her solicitors. This situation can identify as a

communication between professional legal adviser and the client made in

connection with for the purposes of legal proceedings. Any item produce for such

purpose has legal privilege. 37 Then the prosecution cannot rely on those statements

at the trial as they intend.

The only exception given under the statute is if the ‘Item held with the intention of

furthering a criminal purpose’ 38 then it does not subject to legal privilege. But this

incident does not have any relation with such criminal purpose. R v Cox and

Railton 39 held if any fraud involves in the communication it loses its privilege. The

statement in issue does not loss its privilege under these exemptions. According to

Waugh v British Railways Board 40 if apply the ‘dominant purpose test’ to Fay’s

statement it does not seem any harm to lose the privilege.

3. Allowing adducing expert or non expert evidences are exceptions to the general

34 P. Murphy, and R. Grover, Murphy on evidence, (Oxford University Press; Oxford, 2011) 497 35 Police and Criminal Evidence Act 1984 c. 60 s 10 (1) (a)36 Ibid s 10 (1) (b)37 Police and Criminal Evidence Act 1984 c. 60 s 10 (1) (c)38 Police and Criminal Evidence Act 1984 c. 60 s 10 (2) 39 (1884) 14 QBD 15340 [1980] AC 521

rule. 41 Dr Williams must give evidence under category of expert. Because the matter he

going to explain is an area where expertise knowledge include. According to R v Walker 42 a psychiatrist’s evidence may be admissible to explain paranoid state of mind of Fay

to assist the jury to decide whether a reasonable person who has the same conditions

as Fay will act in equal manner. But in R v Turner 43 held that expert evidence is

inadmissible to prove mental states like provocation which can conclude within

ordinary human experiences. Anyhow there are occasions where the court has taken

different views as well 44 and admissibility of Dr Williams evidence depend on whether

the jury need an expert’s assistance to understand that fact.

Only a psychiatrist can give evidence about someone’s mental health.45 The scenario

does not introduce Dr Williams as a psychiatrist. If he is a general practitioner his

evidence may not admissible regarding this fact.

Mr. Taswir, is a retired police officer. There is question whether he include in the

category of expert under law of evidence. Even non expert evidence may be admissible

in situations where it do not need a particular expertise. 46 Then he can give evidences

only about his personal perception regarding a particular matter. 47 Mr. Taswir gives

evidence on the practical difference of a drug user and a drug dealer. This is how he

personally perceives the practice of sub-dividing the drugs.

In R v Silverlock 48 allowed a non expert’s evidence on the ground of his experience

in that field. Mr. Taswir has long and extensive experience working in the police drugs

squad and therefore has the capability to explain the behavior of a drug dealer.

According to R v Abadon 49 an expert who has particular expertise in a certain field

can rely on unpublished materials of that field. Therefore Mr. Taswir can rely on

41 A. Keane, J. Griffiths, and P. McKeown The modern law of evidence, (Oxford University Press; Oxford, 2010)  524

42 [2003] EWCA Crim 183743 [1975] 1 All ER 7044 Lowrey v R [1974] AC 8545 R v. Morris [1998] Cr App R 38646 A. Keane, J. Griffiths, and P. McKeown The modern law of evidence, (Oxford University Press;

Oxford, 2010)  52447 Ibid48 [1894] 2 QB 76649 [1983] 1 All.E.R. 364

unpublished internal Police Force articles to substantiate his opinion if he include in the

category of expert. In the light of Silverlock50 it can argue that even a non expert with

sufficient experiences can call for the evidences in a particular area where it needs a

certain expertise. Therefore Mr. Taswir’s evidence may admissible under opinion

evidence.

Bibliography

50 R v Silverlock [1894] 2 QB 766

1. Keane, A., Griffiths, J., and McKeown, P., The modern law of evidence, (Oxford

University Press; Oxford, 2010) 

2. Choo, A., Evidence, (Oxford University Press; Oxford, 2012)

3. Murphy, P. and Grover, R., Murphy on evidence, (Oxford University Press;

Oxford, 2011)