Examiners’ reports 2019

Examiners’ reports 2019

LA3007 Evidence – Zone B

Introduction
Year after year, the core advice on exam success remains the same: the key to
examination achievement is to answer the examination questions as they are
actually posed. As stated in the 2017 Examiners’ report, one important aspect of
this in relation to essay questions is that they frequently have a descriptive element
and a prescriptive/evaluative element. The descriptive element asks for a correct
account of the law as it currently stands. This may not always be straightforward as
the law may adopt broad legal principles that are not borne out in actual practice as
shown in cases. Answers that engage with such subtleties will be rewarded with
higher marks. The prescriptive/evaluative element in a question often involves
asking students to offer a view assessing whether the current law is
adequate/satisfactory. This can also be found in problem questions tailed with
‘adding critical comment where you think the law is unsatisfactory’. Failing to
engage with such invitations to address with the prescriptive/evaluative element in
an essay question may be particularly costly in terms of marks. Answering this
aspect well involves identifying some standard, legislative aim, or risk against which
to measure the satisfactoriness of existing legal provisions.
A related limitation in answering the question posed occurs with problem
questions, including questions on judicial directions, where here the lack is the
failure to apply knowledge of law to the actual fact matrix in the question. Reciting
rules and case law irrelevant to the fact matrix in the question is pointless. Reciting
relevant rules and case law without applying them to the actual facts in the question
is only half an answer.
Again reiterating a familiar point: students should pay attention to the Pre-exam
updates, not only because mention of recent relevant cases (or new academic
articles) gains marks but because examiners also often frame examination
questions with an eye to such cases, although not necessarily in identical terms. It
can also be highly beneficial to read the University of London website blog posts.
In questions involving the Human Rights Act 1998, students should take care not to
confuse section 2 (on the need for the courts to ‘take into account’ judgments of the
European Court of Human Rights and related sources) and section 3 (on the
interpretive obligation of the courts to read and give effect to domestic legislation in
a way that is compatible with the rights contained in the European Convention on
Human Rights).

1
Comments on specific questions
Question 1
Does the law offer sufficient protection against the potential unreliability of
identification evidence?
General remarks
This is a fairly straightforward question, expecting students to show familiarity with
the risks associated with eyewitness identification, to discuss the available legal
safeguards and assess the extent to which these are adequate in dealing with the
risks.
Law cases, reports and other references the examiners would expect you to use
This question relates to Chapter 6 in the module guide. The Devlin Report (Report
of the Committee on Evidence of Identification in Criminal Cases (1976)) remains
an important point of reference and students might also refer to the Criminal Law
Revision Committee, ‘Evidence: general’ 11th Report (1972). On safeguards,
Turnbull [1977] QB 224 is key re eyewitness identification while s.78 PACE and
Forbes [2001] 1 All ER 686 are vital in relation to breaches of PACE Code D (latest
edition December 2017). Answers might also refer to articles by:
Roberts ‘Eyewitness identification evidence: procedural developments and the ends
of adjudicative accuracy’ (2008) 6(2) International Commentary on Evidence.
Davies and Griffiths ‘Eyewitness identification and the English courts: a century of
trial and error’ (2008) 15(3) Psychiatry, Psychology and Law 435.
Common errors
In respect of Turnbull, there was a frequent failure to identify the conditions when a
Turnbull warning is required and instead, simply assuming that it was always
necessary when there were potential weaknesses in identification evidence or even
simply where identification evidence was used. A minor point: answers often
referred to the courts issuing Turnbull ‘guidelines’: in fact the guidelines are for
judges when issuing a Turnbull warning or direction to the jury.
In respect of Forbes, it was often not appreciated that giving a Forbes warning is an
alternative to excluding the evidence under s.78 PACE; also PACE Code D,
especially paragraph 3.12 (i) and (ii), was frequently poorly discussed or not
discussed at all.
A good answer to this question would…
not only show detailed knowledge of the safeguards provided by Turnbull, s.78
PACE and Forbes but would also respond to the evaluative element in the question
by offering a view on the adequacy of these protections. Good answers discussed
the risks of eyewitness identification evidence, drawing on the Devlin Report and/or
other readings and possibly mentioning historic miscarriages of justice. Good
answers on Turnbull specified the preconditions, the possibility of staying a trial and
the consequences of omitting a Turnbull direction. Good answers also discussed
Code D breaches and Forbes, with better answers engaged with why it is seen as
preferable to s.78 PACE exclusion and offering a view as to whether this is good
practice.
Poor answers to this question…
did not offer any discussion of the risks of identification evidence and merely recited
what was involved in a Turnbull direction and a Forbes direction, similarly without
offering any evaluation of the adequacy of these measures in combating the risks of
identification evidence.

2
 Examiners’ reports 2019

Question 2
What is the purpose of judges’ directions to the jury and to what extent do
they provide a satisfactory safeguard?
Discuss with reference to directions on good and bad character of the
defendant.
General remarks
While there was potential for students to offer general remarks on the overall
purpose of judicial directions, this was not necessary in order to answer the
question well. With respect to good character directions, reasonable familiarity with
the structure of a Vye direction; knowledge of Hunter (2015), which has now had
sufficient time to bed in, would also be expected. With respect to bad character
directions, it was recognised that there was less coverage in the course materials
beyond the Hanson guidelines. Some familiarity with issues of prejudice could be
expected and the alternative of evidentiary exclusion under the Criminal Justice Act
2003, ss.101(3) and 103.
Law cases, reports and other references the examiners would expect you to use
This question relates to Chapter 8 of the module guide but very good answers could
draw on concepts from Chapter 2.
On good character directions, Vye (1993) 97 Cr App R 134 continues to provide the
basic structure, while Hunter (Nigel) [2015] EWCA Crim 631 offers considerable
clarification, especially in light of the changed definition of bad character in the
Criminal Justice Act 2003.
Monaghan’s article, ‘Reconceptualising good character’ (2015) 19(3) International
Journal of Evidence and Proof 190–95 is an excellent exposition of the changes
introduced in Hunter and the reasons. Campbell [2010] UKPC 26, [2011] 2 WLR
983 remains important on the effects of omitting good character directions.
On bad character directions concerning the defendant, Hanson [2005] 1 WLR 3169
offers important guidelines in respect of propensity evidence while the Law
Commission Report on bad character evidence (No. 273), para.11.46 discussion of
the dangers of reasoning prejudice and moral prejudice remains an important point
of reference. Highton [2005]1 WLR 3472 (also cited in Campbell [2007] 1 WLR
2798) is important: where judges may direct that bad character evidence
concerning the defendant admitted under one gateway may be applied by the jury
to a different gateway. Consider also the safeguards in CJA 2003, ss.101(3) and
103.
Common errors
Re good character: that the Hunter distinction between absolute good character and
effective character meant that only the former warranted a direction on relevance to
credibility as well as propensity (whereas Vye continues to be authority on the
preconditions).
A good answer to this question would…
On good character directions:
show knowledge of both limbs of a Vye direction and the precondition for giving the
credibility limb direction.
discuss the reformed classification in Hunter, while very good answers would
explain the background need for these reforms, ideally drawing on Monaghan’s
article, and possibly relating to what Lord Steyn had to say in Aziz (1996) on
‘meaningless or absurd directions’.
On bad character directions:

3
outline the Hanson guidance on directions concerning propensity evidence, with
very good answers identifying what two questions the jury need to ask themselves.
discuss the problems of prejudice, with very good answers distinguishing reasoning
prejudice from moral prejudice.
discuss the alternative of evidentiary exclusion, particularly referencing ss.101(3)
and 103 of the Criminal Justice Act 2003.
Very good answers would discuss the evaluative element of the question on
whether such directions provided an effective safeguard.
On jury directions generally, very good answers might talk about the division of
labour between judge and jury, legitimacy of the verdict, fairness or rectitude of
decision-making.
Poor answers to this question…
somehow thought that defendants with criminal records were automatically entitled
to good character directions.
provided extensive descriptions of the rules on admissibility of bad character
evidence concerning the defendant but said nothing on directions to the jury.
Question 3
‘The existing law on the admissibility of expert evidence is satisfactory, but
unfortunately insufficient use is made of it by the courts, who, quite wrongly,
seem happy for the jury to make their own minds up about its probative
value.’
Discuss.
General remarks
Answers were expected to demonstrate familiarity with the common law rules on
admissibility of expert evidence and also, to a lesser extent, the revised Criminal
Procedure Rules and Practice Direction; and also to support their arguments with
cases. Answers were also expected to engage with the evaluative element in the
question by offering some assessment of whether the existing law is satisfactory, or
would be if fully applied.
Law cases, reports and other references the examiners would expect you to use
This question relates to Chapter 8 of the module guide. The Law Commission report
(Expert Evidence in Criminal Proceedings (2011) Law Com. No.325) is a key
touchstone, especially on the laissez-faire approach on the part of the judiciary. The
report is helpfully reviewed in Roberts and Edmond ‘The Law Commission’s report
on expert evidence in criminal proceedings’ (2011) Criminal Law Review 844. Ward,
‘Expert evidence and the Law Commission: implementation without legislation’
(2013) 7 Criminal Law Review 561 is especially helpful on the existing common law
rules.
Relevant cases include: Doheny [1997] 1 Cr App R 369; Bonython (1984) 38 SASR
45; Robb (1991) 93 Cr App R 161; Dallagher [2003] 1 Cr App R 12; Cannings
(Angela) [2004] EWCA Crim 1, [2004] 1 WLR 2607; Luttrell [2004] EWCA Crim
1344; Barry George [2007] EWCA Crim 2722; Kempster (No 2) [2008] EWCA Crim
975; Reed [2009] EWCA Crim 2698; Dlugosz [2013] EWCA Crim 2; Pora v The
Queen [2015] UKPC 9. Hamilton [2014] EWCA Crim 1555 remains important as
indicative of the new regime.
Common errors
Insufficient knowledge of the rules on admissibility of expert evidence.

4
 Examiners’ reports 2019

A good answer to this question would…

show a good grasp of the rules of admissibility on expert evidence.
focus especially on the issue of reliability and whether the tests as described in
Lutterell and Robb are sufficient.
consider whether greater use could be made of s.78 PACE.
make ample use of the critical arguments of Edmonds and Ward and the Law
Commission report.
Very good answers would discuss issues with the role of judges as gatekeepers.
Poor answers to this question…
merely recited pre-prepared text that did not engage directly with the question as
posed.
showed very weak understanding of the existing rules.
Student extract
The statement has some truth to it especially after amendments to the
Criminal Procedure Rules (Part 19). There is a possibility that in regard to
complex forensic science judges prefer to use the traditional path of letting
the jury decide. Dennis in ´Tightening the Law of Expert Evidence´ remarked
that …judges have an activist role as gatekeepers of expert evidence. But at
times, in dealing with complex forensic evidence, judges rely on the jury to
decide. Judges are not obliged to enquire into the reliability factors but are
actively encouraged to do so. The new Rules and a Practice Diction results in
a shift towards the Law Commission recommendations, but substantial
judicial training is needed to maintain the shift. In Hamilton (2014) it was
explained that the Rules require the adoption of new and rigorous approach
to handling expert evidence.
Judges who are happy to let the jury decide especially in regard to complex
forensic science evidence also rely on trial safeguards such as cross-
examination, rebuttal witness, judicial guidance (Luttrell) opposing experts,
defence lawyers, not to admit evidence…
…In Atkins v Emperor, the judge allowed incriminating evidence provided the
limitations of the image quality and lack of statistical database were made
crystal clear to jury. The expert used the expression ‘lends strong support’
which could be potentially misleading since he was not supposed to give
positive identification that the man on camera was Atkins. Other fields in
which judge would be happy to let jury decide would be in DNA evidence as
in Doheny, Reed, Dlugosz. In Doheny, the judge allowed mere speculations,
which could have usurped the role of the jury...
Comments on extract
This is part of a much longer answer and it was awarded first class marks. This
does not mean it was a perfect answer, and there were several areas that could
have been improved or better phrased. The student demonstrated familiarity with
the CPR and Practice Direction as well as recent case law. The student was also
able to demonstrate they had done further reading (beyond the textbooks) and to do
so in a way that answered the question directly and supported their argument. The
student did well to spell out what is meant by traditional trial safeguards, even
providing the example of Luttrell for judicial directions. It was not clear what the
student meant by adding ´not to admit the evidence´ at the end of the list of trial
safeguards. The student could have been referring to a traditional safeguard such

5
as s.78 of PACE and it is a shame the student did not spell out what they were
referring to.
More in-depth discussion and examples were included with the student using cases
to illustrate their points. The student also discussed and evaluated the Law
Commission recommendations in depth and gave examples of miscarriages of
justice and the specific errors that have been made including examples of the
admission of evidence of no or unknown probative value. The student also
discussed Gary Edmond´s criticisms of the heuristics used by the judiciary for
gauging reliability.
The answer was particularly strong because of the apt use of cases and
commentary to illustrate each point made. The answer concludes: ‘In conclusion
judges should attempt to have an activist role of being gatekeepers of expert
evidence instead of relying on trial safeguards.’ The conclusion was supported by
illustration of risks and weaknesses of traditional safeguards.
Question 4
‘The English Courts were right to reject the suggestion by the European Court
of Human Rights that a conviction should never be secured on the basis of
hearsay evidence alone.’
Discuss.
General remarks
The way this question is posed clearly calls for students to take a position.
However, there is no right answer; rather what is being looked for are arguments
one way or the other, supported by reasoning that shows familiarity with the key
cases, Al-Khawaja and Tahery and Horncastle, the safeguards provided by the
Criminal Justice Act 2003 and differing takes on Article 6 of the European
Convention on Human Rights.
Law cases, reports and other references the examiners would expect you to use
This question relates to Chapter 9 of the module guide. Relevant cases include:
Luca v Italy (2003) 36 EHRR 46; Al-Khawaja and Tahery v UK [2009] All ER (D)
132, [2011] ECHR 2127; Horncastle [2009] UKSC 14, [2014] ECHR 1394.
Key articles and chapters:
Redmayne ‘Confronting confrontation’ (2012) in Roberts and Hunter (ed.) Criminal
evidence and human rights: reimagining common law procedural traditions.
Ormerod ‘Worth the wait?’ (2012) 2 Criminal Law Review 79–80.
Dennis ‘The right to confront witnesses: meanings, myths and human rights’ (2010)
Criminal Law Review 255–74.
O’Brian ‘Confrontation: the defiance of the English courts’ (2011) 15 International
Journal of Evidence and Proof 93.
Common errors
The most common error was not mentioning the Grand Chamber decision in Al-
Khawaja and Tahery v UK (2011) or confusing it with the 2009 decision. There was
also some confusion as to the chronological order in which the major cases
occurred.
A good answer to this question would…
demonstrate a clear background understanding of the risks associated with hearsay
evidence, as well as the arguments in favour of its admission in circumstances
where it is prima facie reliable or its reliability may be tested.

6
 Examiners’ reports 2019

show knowledge of the safeguards offered by the Criminal Justice Act 2003
including specifically ss.124, 125 and 126.
describe the course of the ‘dialogue’ between the UK Supreme Court and the
European Court of Human Rights in terms of the key cases and the progression of
the arguments.
Very good answers would describe the evolution of the approach to Article 6 ECHR
as to whether Article 6(3)(d) is a ‘standalone’ right of the defence or merely an
aspect of the overall Article 6(1) right to a fair trial.
Very good answers would also consider whether there are other aspects besides
reliability at stake in an accused’s right to confrontation with witnesses, drawing on
texts by Redmayne, Dennis and O’Brian (see the student extract below).
Poor answers to this question…
did not discuss Article 6 ECHR at all but merely recited the traditional reasons for
the exclusion of hearsay and early common law cases. Other answers were poor
because of a disjointed structure, making no connection between an account of the
CJA 2003 safeguards and subsequent discussion of the major cases.
Student extract
Among the minimum rights of a defendant in a criminal trial is the right to
examine or have examined witnesses against him under Article 6(3)(d) of the
European Convention of [sic] Human Rights (ECHR). It is also a right long
established by common law (R v Davis). The right to confrontation is
important because it promotes factual accuracy: it may bring out material in
favour of the defendant; it may expose lies and mistakes and can attack the
credibility of a witness, argues Ian Dennis in ‘the right to confront: myths and
human rights’. Apart from this epistemic account there is a value in
confrontation as a way of respecting defendants’ dignity, which Mike
Redmayne in ‘Confronting confrontation’ termed as a non-epistemic right.
The right under Article 6(3)(d) is not absolute and the European Court of
Human Rights (ECrtHR) have recognised its value in determining the overall
fairness of the trial. Thus, it has interfered when a proper balance between a
state’s legitimate objective and a defence right was not struck. One such
occasion arose in Al Khawaja & Tahery v UK where the court considered the
hearsay provisions of the Criminal Justice Act (CJA 2003).
Comments on extract
This extract shows an extremely sophisticated understanding of the potentially
different rationales behind ECHR Article 6(3)(d) and its common law analogues,
drawing on articles by Dennis, Redmayne and O’Brian in a focused way that
manifests true comprehension. Although it is hard to improve on this extract in
terms of marks, reference might also have been made to the famous US case of
Crawford v Washington 541 US 36 (2004). ‘Epistemic’ aspects could have been
linked to rectitude of decision-making (Chapter 2 of the module guide).
Another point to make is how this extract worked in relation to the overall answer.
As can be seen in the last sentence, these general observations functioned as a
prelude to discussing the ‘dialogue’ between the UKSC and the European Court of
Human Rights. The answer was exceptionally well structured.
Question 5
Donald is on trial for rape. At trial, Stephanie, the complainant, testifies that
she and Donald had met earlier that evening when she was out with a group
of women friends at a pub near where she lives. Donald came over and was

7
flirting with her and the other women. Stephanie says she got bored with
Donald’s attention and left around 10 p.m. Noticing that Donald had come out
of the pub and seemed to be following her, she rushed quickly home. Later
that night she woke up and found Donald leaning over her with his hands
around her neck. She began to scream but he increased the pressure on her
neck and said to her ‘I’ll kill you if you don’t let me do what I want.’ She says
that after that she remained passive while he had sex with her because she
was afraid.
Fidelma is Stephanie’s downstairs neighbour. She rang the police that night
and told them that she could hear Stephanie screaming ‘Please don’t’. The
police arrived and arrested Donald. He admits to following Stephanie home
but says she willingly let him in and they had consensual sex. He says her
scream was part of some sex play between them.
The prosecution lead medical evidence that Stephanie had bruises on her
neck consistent with being strangled.
Donald wishes to cross-examine Stephanie about what she and her friends
were doing in the pub. He says they were having a ‘sex toys’ party, with a lot
of loud and lewd talk and they were giving each other presents of sex toys.
He also claims Stephanie flirted back at him.
Donald also seeks to adduce evidence from Dick and Harry, whom Donald
had met after the incident when he was complaining loudly in the same pub
about his upcoming trial. They would testify that they have each had sex with
Stephanie and that she enjoys being strangled while having sex and often
shouts out ‘Please don’t’ as part of sex games.
Fidelma is prepared to testify as to having heard Stephanie’s screaming
‘Please don’t’ from her flat downstairs from Stephanie.
Donald has two past convictions, one from five years ago for strangling his
pet cat and another from six months earlier year for strangling his
neighbour’s dog.
Discuss the evidential issues arising, adding critical comment where you
think the law is unsatisfactory.
General remarks
The main set of issues raised by this question concern the admissibility of a
complainant’s extraneous sexual behaviour in trials of sexual offences and the
Youth Justice and Criminal Evidence Act 1994, s.41 but there are also issues of
defendant’s and non-defendant’s bad character under the Criminal Justice Act
2003, ss.101 and 100 respectively.
Law cases, reports and other references the examiners would expect you to use
The question related primarily to Chapter 7 of the module guide but also Chapter 8.
Key cases: R v A [2001] UKHL 25; Hamadi [2007] EWCA Crim 3048; Evans [2016]
EWCA Crim 452; Gjoni (Kujtim) [2014] EWCA Crim 691; R v T [2004] 2 Cr App R
551.
Especially in relation to critical commentary, the following articles are of note:
McGlynn ‘Rape trials and sexual history evidence: reforming the law on third-party
evidence’ (2017) Journal of Criminal Law 81(5), 367–92.
McGlynn ‘Challenging the law on sexual history evidence: a response to Dent and
Paul’ (2018) 3 Criminal Law Review, 216–228.
Hoyano ‘Cross-examination of sexual assault complainants on previous sexual
behaviour: views from the barristers’ row’ [2019] Criminal Law Review 75.

8
 Examiners’ reports 2019

Common errors
YJCEA, s.41(3)(c) was often wrongly taken as placing a time constraint in respect
of the questioning or evidence that the defence seeks to introduce. A variation on
this confusion was that one or other of (c)(i) or (c)(ii) has such a time constraint but
that the other subsection does not. This is also an error.
A second confusion in respect of YJCEA, s.41(3)(c) was that either (c)(i) or (c)(ii)
applies only to defendants but that the other subsection allows evidence concerning
third parties. In fact, both subsections apply to either defendants or third parties.
Another error in respect of YJCEA, s.41(3)(c) was that the judgments in R v A
(2002) stated that s.41(3)(c) did not apply to third parties; rather, the view
expressed in R v A was that it would ‘rarely’ be relevant to third parties.
A different error was the assertion that Renda (specifically Ball, reported with Renda
[2005] EWCA Crim 2826) is authority for stating that merely offering a defence of
consent constitutes an attack on the complainant’s character, thus licensing the
admissibility of any bad character evidence concerning the defendant. In Ball, the
defendant called the rape complainant a 'slag' in a pre-trial interview, which is
entirely different from offering a defence of consent as such. Renda itself has
nothing to do with sexual offences or the YJCEA.
A good answer to this question would…
(a) identify YJCEA 1994, s.41(3)(c) as the relevant gateway and discuss Hamadi, R
v T and Evans, while particularly good answers would draw on articles by McGlynn
in their critical evaluation.
(b) identify gateway (a) (in respect to belief in consent) and apply by reference to
case law, notably Gjoni (Kujtim), while particularly good answers would discuss the
commentary by Hoyano in their critical evaluation.
(c) discuss the admissibility of this under s.100 (1) of CJA 2003 and good answers
would raise the importance of the complainant’s credibility in the case and also
relevance of gateway (g) in s.101(1) regarding the admissibility of the defendant’s
bad character if this questioning or evidence concerning the complainant is
admitted. There is scope for critical evaluation here also.
(d) discuss both gateway (a) and gateway (c) and draw on R v A in relation to the
latter.
(e) discuss YJCEA gateway (b) but also first consider whether this is actually sexual
behaviour and the implications if it is not.
Poor answers to this question…
did not systematically consider whether items of proposed questioning or evidence
would count as sexual behaviour before considering their admissibility.
did not focus on individual items of proposed questioning or evidence but simply
discussed the rules and/or case law without applying to the facts.
did not understand what is meant by ‘relevant to an issue of consent’ or ‘not
relevant to an issue of consent’, which had a particular impact in poor answers on
the (b) item (‘Evidence from Damien that Damien had informed Arnold, on the
morning of the alleged incident ...’).
did not recognise that the credibility of complainants in sexual offence trials might
be challenged on grounds that did not involve sexual behaviour and hence fall
under CJA, s.100.
thought that students were expected to assess the likely outcome of the trial or
whether the complainant or accused was correct in their respective claims.

9
Question 6
Concerned about the easy availability of information likely to assist the
committing of acts of terrorism, Parliament passes the (fictitious) Anti-
Terrorism Act 2010.
Section 1 states: ‘It is an offence to possess information of a kind likely to be
useful to a person preparing to commit an act of terrorism’.
Section 2 states: ‘It is a defence for a person charged with the offence in
Section 1 to prove that he had a reasonable excuse for possessing the
information’.
Section 3 states that the penalties on conviction are a maximum of ten years’
imprisonment or a fine in an unlimited amount.
Adil’s house is raided by the police, authorised by a search warrant, and they
remove his computer and some DVDs, including one five gigabyte DVD. The
next day he is arrested and cautioned on a charged under section 1 of the
Act.
When he is interviewed by the police, they tell him that their experts have
found many documents with instructions for the use of explosives on the
large DVD, as well as a number of training manuals with the names of terrorist
organisations on them. Adil tells the police he was interested in the
explosives information because he wanted to improve his skills as a
professional safe-cracker [i.e. someone who breaks into safes for criminal
purposes]. He says he had no idea that the training manuals were on the large
DVD and that he does not support terrorism of any kind.
At trial Adil will seek to call Biggs as an expert on information technology to
explain that a five gigabyte DVD holds a vast amount of information, so that it
is possible for someone to make use of a small part of it without knowing
anything about what other material is on the rest of the DVD. Biggs has no
formal qualifications but has followed developments in information
technology as a hobby for many years.
Discuss the evidential issues arising, adding critical comment where you
think the law is unsatisfactory.
General remarks
This is a familiar fictive statute type of question concerning burden and standard of
proof and an additional issue relating to expert evidence. The core is whether s.2
imposes a legal burden on the defendant in respect to the specified ‘reasonable
excuse’ and, if so, would it be read down under s.3 HRA 1998 (by reference to
compatibility with Article 6(2) ECHR) to impose only an evidential burden. A fuller
account would also discuss what the prosecution needs to prove and to what
standard. The other issue in the question was the admissibility of the proposed
expert evidence.
Law cases, reports and other references the examiners would expect you to
use
This question relates to Chapters 3 and 10 in the module guide. Relevant cases
include: Woolmington v DPP [1935] AC 462; Salabiaku v France (1988) 13 EHRR
379; DPP ex p. Kebilene [2000] 1 Cr App R 275; Lambert [2001] 3 All ER 577;
Johnstone [2003] UKHL 28; Sheldrake v DPP and AG’s Ref (No 4 of 2002) [2004]
UKHL 43.
Articles and other texts useful in providing critical commentary:
Dennis ‘Reverse onuses and the presumption of innocence: in search of principle’
(2005) Criminal Law Review 901.

10
 Examiners’ reports 2019

Hamer ‘The presumptions of innocence and reverse burdens: a balancing act’

(2007) 66(1) Criminal Law Journal 142–71.
Ashworth and Blake ‘The presumption of innocence in English criminal law’ (1996)
Criminal law Review 306.
The Criminal Law Revision Committee, 11th Report (1972) might be referred to for
the view that the defence should only ever bear an evidential burden.
On expert evidence: Turner [1975] QB 834; Silverlock [1894] 2 QB 766; Luttrell
[2004] EWCA Crim 1344; Robb (1991) 93 Cr App R 161.
Common errors
Failing to recognise that the word ‘prove’ in s.2 makes this an express legal burden
placed by the statute on the defence. Many answers wrongly thought this was an
implied burden.
Failing to realise that the judicial remedy for finding that a reverse burden is
disproportionate is to use s.3 Human Rights Act 1998 to read down the legal burden
on the defendant to an evidential burden. Many answers utterly wrongly thought
that the remedy was to place the burden on the prosecution.
A good answer to this question would…
discuss what the prosecution need to show and to what standard.
identify that s.2 places an express legal burden on the defence and discuss what
facts the defendant needs to prove and to what standard. Very good answers would
recognise the similarity with the Terrorism Act provision in Kebilene.
discuss whether that burden is disproportionate, ideally drawing on Dennis’s
discussion of the effect of various factors (especially judicial deference, ease of
proof and harshness of sentence).
Very good answers would break down the defence into two questions: (a) the
defendant’s claim that it was reasonable not to know about the presence of the
instruction manuals – and relate this to the relevance of the expert evidence – and
(b) his alternative explanation for possessing the disk and discuss how reasonable
this is given that it relates to unlawful activity.
discuss the admissibility of the expert witness with respect to relevance (see
previous point), necessity and his lack of formal qualifications. A number of answers
raised the interesting question whether the jury is now so computer literate that the
expert was not necessary (Turner).
Poor answers to this question…
did not address the question as posed and instead provided a standard essay-type
answer on factors relevant to considering the justifiability or otherwise of reverse
burdens.
Student extract
On the facts, the issue arising is whether the legal burden is placed on
prosecution or Adil (defence). In deciding this, we have to see that in the
case of Woolmington v DPP.... Prior to the Human Rights Act, the reversal is
automatic... However, after s.3 of Human Rights Act 1998, to shift the burden
it must go under test of proportionate.
The test is laid down by Lord Steyn in the case of ex parte Kebilene.
Therefore, to see whether the reversal will infringe Article 6(1) of ECHR right
to a fair trial, we must go through the test to see whether to shift the burden
or not. ....We can see on the statute, it expressly say it was for the defendant

11
 to prove. However, before shift, we have to go through the test of
proportionate.
In decide whether to see it proportionate, Ian Dennis’s 6 cardinal principles
can be used as a guidelines to decide. [....]
First was the classification of offence, whether there is a mala in se which
means an incriminatory offence or a mala prohibita which means a regulatory
offence. On the facts, it was clearly a mala in se offence, which concern of
terrorism, Hence it was unlikely to shift.
Secondly, judicial deference. In the case of Sheldrake, Lord Nichols stated
the court role was to follow the parliament. Therefore if parliament say
reverse, they should follow. The case of L v DPP, Sheldrake is follow
parliament intention. If found out it was incompatible to ECHR (Art 6), court
can use s.3 of the Human Rights Act to read down and make it compatible or
use s.4 Human Rights Act 1998 to declare of incompatibility. Applying
Sheldrake, it was likely to shift the burden to Adil.
Thirdly, distinction between offence and defence. In a decided case, it was
held that offence and defence must be separate, prosecution must prove the
harm [legibility?] and defence prove the other side. In that case, it is on mens
rea issue that require defendant to prove, hence court held not to reverse. On
our facts, it can be distinguish by that case while in this case it is for Adil to
prove that he has a reasonable excuse. Therefore, it does not seem like an
element in offence (actus reus or mens rea), it does seem like what states in
the statute, defence. Hence it was highly like to shift the legal burden to Adil
to prove.…
After analysis/guideline of six cardinal principles, it will be submitted that legal
burden is highly likely to shift to Adil and he has to prove it on the balance of
probability.
Comments on extract
This answer overall was extremely competent – but it has a one important flaw
arising from the confusing expression ‘shift’ the legal burden. First, what is good
about this answer overall, as evidenced in this extract, is its systematic approach,
excellent structure and knowledge about the meaning of terms (including
recognising that s.2 of the fictitious Act is an express statutory reversal), case law,
the significance of the Human Rights Act 1998 and the importance of
proportionality. The knowledge, and application of Dennis’s six principles in
calculating proportionality was considerable and considered, as can only partly be
seen in the extract here. The essay is also fluently written (with some minor English
language mistakes).
However, where the answer goes adrift is the seeming, and entirely erroneous,
belief that, in cases of statutory reverse burdens, the court is potentially involved in
changing what Parliament has decided as to which party should bear a burden on a
particular matter – specifically that a court might, of its own power, ‘shift’ a burden
from defence to prosecution. This is a widespread student misunderstanding. In
fact, it is Parliament that has, through the legislation, ‘shifted’ the burden onto the
defence in respect to some specific issue. Even in the case of implied statutory
reversals, the court is determining on which party Parliament intended to place the
burden. It is certainly true that s.3 HRA 1998 gives the court the new power to ‘read
down’ a legal burden placed on the defence by Parliament merely to an evidential
burden in order to make a statute compliant with Article 6(2) ECHR if it finds a
reverse burden not to be proportionate. This is true whether that burden is express

12
 Examiners’ reports 2019

or implied or indeed at common law). However, just as before the HRA 1998, the
court will never ‘shift’ a burden onto the prosecution.
To be fair to this particular answer, many correct elements are in place but they
have been somewhat skewed by this central misperception. For example, the last
sentence in the first paragraph in the extract is partly correct and partly incorrect,
since the outcome of the court testing proportionality will not be a decision about
shifting the burden but about reading down. A different part of the extract above
states ‘hence court held not to reverse’, which evidently should have been ‘the court
decided not to read down the legal burden...’. Finally, where the answer in the
extract concludes ‘the legal burden is highly likely to shift to Adil’, rather it should
say ‘the court is highly unlikely to read down the burden on Adil to a merely
evidential burden’.
In the answer as a whole, reading down was mentioned but given little attention.
The overall conclusion of the answer was that the reverse burden was not
disproportionate, so the substance of the answer was not absolutely affected by the
error. However, the reiterated emphasis on the possibility of the court shifting the
burden did have an adverse effect on the (still quite high) mark.
As this extract also mentions (in the discussion of offence and defence) that there
are deeper underlying issues about what the prosecution ought to have to prove
and these views partly explain what is meant by saying that Parliament has ‘shifted’
the burden through legislation. While this is not the place to go into those debates
about the law of evidence, future students are encouraged to explore the
‘substantivist’ versus the ‘proceduralist’ positions.
The lesson to be learned here is that it is better on the whole to avoid using the
term ‘shift the burden’ altogether and speak instead of Parliament ‘placing’ a legal
burden on the defence.
Question 7
PC Plod is infuriated when he hears that Arnold Cragg has been released
early from his sentence for burglaries and decides that the best he can do on
behalf of the community is ensure he is put back behind bars before
committing further crime. PC Plod convinces the owner of a local antiques
shop to fill his shop window with fake jewellery and to leave the door open
one night. PC Plod’s superiors reluctantly agree to the plan because of how
difficult it was to catch Arnold in the past and the seriousness of the offence.
PC Plod waits outside the shop and watches whilst a man enters the shop. As
soon as the man exits, carrying a bag of jewellery, PC Plod arrests him. Much
to PC Plod’s disappointment, the man is not Arnold Cragg, but John Smith,
who lives next door to the shop and who has severe learning difficulties and
no previous convictions. PC Plod feels he has no choice but to charge John
Smith with burglary. To PC Plod’s amazement, John Smith denies any guilt
and claims in the interview that he was walking past the shop when PC Plod
threw a bag at him, which he, John, caught, only to find himself arrested and
charged with burglary. In a foul mood, PC Plod locks John Smith in his cell
for several hours and refuses his request for legal advice. He then re-
interviews him for three hours, shouting at him throughout and threatening to
have him locked up for the rest of his life if he does not confess. John Smith
confesses. PC Plod recovers CCTV imagery of the burglary, clearly showing
John Smith entering the shop and leaving with a bag of goods.
John Smith is due to stand trial, accused of burglary.

13
Discuss the evidential issues arising, adding critical comment where you
think the law is unsatisfactory.
General remarks
Students were expected to discuss both the potential exclusion of the confession
under ss.76 or 78 of the Police and Criminal Evidence Act 1984 and the likelihood
of the proceedings being stayed as an abuse of process. A good character direction
and a Lucas warning were also relevant.
Law cases, reports and other references the examiners would expect you to use
This question relates primarily to Chapter 4 in the module guide but Chapters 6 and
8 were also relevant. Looseley [2001] 4 All ER 897 is the key case on the potential
entrapment issues in the first part of the question. On the defendant’s confession:
s.77 PACE and McGovern (1990) 92 Cr App R 228; Delaney (1988) 88 Cr App R
338; and Everett (1988) Crim LR 826 should be borne in mind, as well as Samuel
[1988] QB 615. On the defendant’s good character: Vye (1993) 97 Cr App R 134
and Hunter (Nigel) [2015] EWCA Crim 631, [2015] 2 Cr App R 9.
Common errors
Thinking that providing an opportunity to commit a crime in itself constituted
unlawful activity by the police/state agent.
A good answer to this question would…
show familiarity with Looseley guidelines and apply them clearly to the facts in the
problem question.
raise several points in relation to the confession, including the relevance of the
defendant’s learning difficulties, the refusal of legal advice and the significance (if
any) of the likely truth of the confession (given the CCTV evidence).
discuss how the possibility of a Lucas direction would interact with the credibility
limb of a good character direction and how that might be resolved.
Poor answers to this question…
did not identify the potential significance of the defendant’s learning difficulties and
the related case law.
Question 8
Consider, in each case, the following extracts from summings-up to a jury. On
the basis that a conviction resulted, advise whether there are grounds for an
appeal:
a) Janet Rice has been charged with a most serious offence, assault
occasioning grievous bodily harm. The more serious the offence,
the heavier the burden on the defence. Has she persuaded you that
she acted in self-defence? In order to decide this question, you will
need to take into consideration that she made no mention of this
defence when interviewed by the police. When she gave evidence,
she told you that she did not mention it to the police because she
was in a state of shock at the time. Perhaps there is some truth in
that but if you suspect that the truth of the matter is that it had only
occurred to her after being interviewed that this would be a clever
defence, then you are welcome to draw what we call an inference of
recent fabrication.
b) Douglas Monk has been identified by a total of seven independent
witnesses. The defence is right to have pointed out that the robbery
Douglas Monk was accused of took place at night and in the
absence of street lighting but surely the fact that all seven

14
 Examiners’ reports 2019

witnesses identified the same person suggests that each of them is

probably right. We are also aware that the defendant has a long
record of committing robbery in the past, and this adds even more
weight to the prosecution case. Lastly we have heard evidence from
Joel Shepherd, who shared a cell with the defendant whilst both
were awaiting trial, that Douglas Monk confessed his guilt to him,
and laughed, when doing so, at the yelps of his victim. True, Mr
Shepherd is accused of grave crimes himself, but he remains
innocent until proven guilty and we have no reason to doubt his
word.
c) It is hard to imagine a more heinous crime than murdering a police
officer, and that is what the defendant stands accused of. His
defence is alibi, at first he said he was in the pub with friends at the
time, but he admitted on the stand that actually he was at the house
of his mistress. He says he lied to protect his marriage. Can we
believe the word of such a man? He has pointed out that he has no
previous convictions. Unfortunately, as we all know, many offences
go undetected and so this is not proof that the defendant has not
committed an offence before.
General remarks
This type of question on a judge’s summing up to the jury requires a focused
approach. Answers should concentrate on the specific legal issues raised and the
relevant aspects of the rules and – this is especially important – apply these to the
facts as given in the question. General expositions of law or speculation on other
possible facts are not appropriate. Above all, this is not the place to discuss the
admissibility of evidence. Students should also remember to identify where
misdirections clearly warrant an appeal.
Law cases, reports and other references the examiners would expect you to use
(a) The issues here are burden and standard of proof (Chapter 3 of the module
guide) and inferences from silence (Chapter 5 of the module guide). On the first
issue, the relevant cases are Woolmington v DPP [1935] AC 462 and Lobell [1957]
1 QB 547. On the second issue, s.34 Criminal Justice and Public Order Act 1994 is
the key point of reference, with attention to the requisite jury directions as per
Argent (1997) 2 Cr App R 27.
(b) Warnings to the jury are needed on the eyewitness identification evidence
(Turnbull [1977] QB 224) and the cell confession, which requires a Makanjuola
warning (Benedetto and Labrador (2003); Stone [2005] EWCA Crim 105) (all
discussed in Chapter 6 of the module guide). The third issue is the need for a
direction on the bad character of the defendant in respect to his past convictions,
drawing on Hanson (Chapter 8 of the module guide).
(c) The lack of a proper good character direction (see Vye (1993) 97 Cr App R 134
and Hunter (Nigel) [2015] EWCA Crim 631, [2015] 2 Cr App R 9 (discussed in
Chapter 8 of the module guide) invites comparison with Campbell [2010] UKPC 26.
The other issue is a Lucas direction on the defendant’s lie (Chapter 6 of the module
guide).
Common errors
(a) Not recognising the misdirection in respect to self-defence, which in fact carries
an evidential burden only.
(b) There were no common errors.
(c) A surprising number of answers worked on the premise that a Vye direction is
only warranted when a defendant is of bad character.

15
A good answer to this question would…
(a) identify the different ways that the judge has wrongly suggested that the defence
bears a legal burden and point out that the direction on inference from silence has
failed to make it plain to the jury that they can only draw such an inference if they
are sure that the defendant failed to mention facts because she did not have any
explanation. Very good answers would underline that serious misdirections on
burden of proof almost invariably lead to successful appeals.
(b) comment on the inadequacy of the direction by contrast to Turnbull guidelines,
especially the direct conflict in respect to directing that even a number of identifying
eye witnesses might all be mistaken, and also explain the need for a Makanjuola
warning on the cell confession. Good and above answers would outline the possible
direction on the defendant’s bad character.
(c) lay out the terms of the good character direction that should have been given
and very good answers would draw on Campbell [2010] to emphasise the likelihood
of a successful appeal. Good answers would also discuss how a Lucas direction
would frame the issue of innocent explanations for lies in relation to the particular
facts in the question.
Poor answers to this question…
(all three parts) failed to apply the relevant law to the facts.

16