Law of evidence

Subject: Law
Type: Informative Essay
Pages: 10
Word count: 2517
Topics: Criminal Justice, Human Rights, Justice
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Question 1


The principle of “presumption of innocence” is among the oldest and most significant rights embodied in the English criminal justice framework, as well as, those of many other systems around the world (De Jong and Van Lent, 2016, p. 34). The principle originated from the Latin expression “ei incumbit probatio qui dicit, non qui negat,” which means that the burden for proofing guilt is for the one that declares, and not the accused party (Bhatia, 2010, p. 371). The principal guides that an individual accused of a crime or offence shall be deemed innocent until they are proven guilty beyond reasonable doubt. The principle was fashioned to protect innocent people accused of crimes or offences from being prosecuted and successfully convicted when the person that committed the crime escapes the punishment. The legal burden is in some cases called “risk of non-persuasion,” and the failure to provide enough evidence that the crime or offence was committed ends with the acquittal of the accused person. The principle is a crucial aspect of English common law, although there are some cases where it is not observed. The principle was well articulated during the case Woolmington vs DPP, during which Lord Sankey claimed that in a criminal case, the golden principle of the justice system is proving that the accused is guilty beyond doubt (Ross, 2011, p. 110). By imposing the strict standard, the failure to prove the guilt of the accused beyond doubt, the burden will not be served.

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Analysis of the Question’s Subject

The question of whether the reverse burden of proof erodes the principle of the presumption of innocence is broad reaching because it requires assessing whether the principle is observed in English law. In essence, the question explores whether there has been a shift from the principle that the prosecution should provide the burden of proof, especially in the cases of severe crimes and offences. The focus of the question will be whether English law demonstrates the high significance of Sachs J channels to the constitutional protection of an accused person. In a criminal trial process, there are various elements to the burden of proof needed to provide evidence that the accused committed the offence (Keane and McKeown, 2016, p. 86). Unfortunately, the courts have never taken the position that the defendant cannot use some defences. The critical question is whether it is justifiable for the courts to claim that the defendant cannot use any of the defences to refute the evidence presented against them. The legislative provisions that indicate the issues include Article 6.2 of the “European Convention on Human Rights,” which emphasises that anyone charged for any crime or offence must be considered innocent until they are proven guilty based on relevant laws (Fitzmaurice and Merkouris, 2013, p. 86). The article expresses the principle that during the court hearings, the prosecution bears the burden of providing the required proof (burden of proof). Unfortunately, in English laws, the principle is not absolute because of questions such as whether it allows for the shift of the “burden of proof” in some cases.

Different scenarios demonstrate the ways English law allows the parties to a case to shift the burden of proof during the prosecution of severe cases. One example that illustrates that the reverse burden of proof wears away the presumption of justice is Woolmington vs. Director of Public Prosecutions (Ross, 2011, p. 110-111). The case involved Woolmington, a 21-year-old man from Castleton that married 17-year-old Violet. Three months after the marriage, Violet left him and moved to her mother’s place. On December 10, he stole a gun from his employer, cut off the barrel and went to Violet’s place, where he shot her accidentally, killing her. On the 23rd of January the coming year, he was arrested and was charged with wilfully killing Violet. The issue in the case was that Woolmington was not allowed to argue out his case, and his right to the presumption of innocence was violated until it was proven that he was guilty. The decision in the case during the appeal was that he was allowed to plead not guilty (Ross, 2011, p. 111). The reason for the position by the House of Lords was that the court violated the principle of presumption of innocence in prosecuting the case. At the core of the court’s argument was that the prosecution should have been based on whether Woolmington killed the wife, and whether he did it intentionally or not. To explain the thinking behind the decision, the court held that the principle of presumption of innocence should be the primary foundation for criminal law and that it should be given all accord in every case. In essence, the court should have prosecuted the trial to start by establishing that Woolmington murdered the wife, and then went ahead to prove that he did it intentionally, beyond any reasonable doubt.

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The arguments suggesting the erosion of the principle of presumption of innocence in the English law include that by Spencer and Spencer (2017, p. 27). The argument is that allowing reverse burden as a defence during court hearings, which are morally deficient based on the principle of “acceptance of risk,” works against the defences enshrined in common law for serious offences, wherever the burden is evidential (Spencer and Spencer, 2017, p. 27). Another argument suggesting the erosion of the principle is that English courts do not have any rule in place imposing a burden to plead for their innocence. The indication is that the court system may not satisfy the intent of the principle by Sachs J. The alternative to controlling or stopping the erosion of the principle is decriminalising the denial of defendants the right, towards ensuring that the presumption of innocence plays out in every criminal prosecution. Spencer and Spencer (2017, p. 27) explored the decision by the Court of Appeal and reaffirmed the view that in many instances, the only evidential burden is required from the defendant. In essence, the argument is that the presumption of innocence should take a central role in criminal prosecutions, and the reverse legal burden should be guaranteed as mentioned in article 6 of the European Convention.

The arguments suggesting that the reverse burden of proof does not erode the principle of presumption of innocence includes that English courts use a structured approach to reverse onus, and there are well laid out guidelines for the process. One case that demonstrates that the presumption of innocence is Sheldrake v DPP in which the House of Lords determined that an evidential burden does not qualify as a burden of proof (Fenwick, Phillipson and Masterman, 2007, p. 407). Instead, the court should consider the burden of presenting evidence-based issues, and if it is raised properly, the prosecutor should prove that the grounds for exoneration do not apply to the defendant (Fenwick, Phillipson and Masterman, 2007, p. 407). The indication of the court’s position in the case is that a defendant’s presumption of innocence allows them to present the evidence showing that they are not guilty, which can lead to their acquittal. Further, the case demonstrates that although the burden of proof may have eroded the principle, it remains a central aspect of any criminal prosecution in the English court system.


The question on the erosion of the principle of presumption of innocence is one of the most important issues raised on the law of evidence. Sachs J proposed the categorisation of severe and other criminal cases, but that does not justify challenging the principle on the presumption of innocence. The analysis of the evidence based on evidence, legal directives, and case briefs showed that the erosion of the brief is real, but not as glaring as some scholars present it. The analysis of the case Woolmington vs DPP demonstrated the erosion of the principle, which ended in the expulsion of the case. In contrast, the determination made in Sheldrake v DPP indicates that the principle is used in everyday instances in English courts. The evidence gathered through the analysis showed the need to investigate the erosion further to formulate a detailed way forward towards ensuring the rights of accused parties.

Question 2

According to the website, the Evidence Act of 1995 gives directives on the admissibility of hearsay evidence. The above case involving the murder of Siobhan is primarily founded on and built upon the hearsay evidence provided by Lee, against Arthur, who is the accused (U.K Government, n.d). The main evidence for the case is the information provided to the police by Lee, a swimming teacher at the Arden Swimming pool. Due to the non-clarity of all the evidence presented to justify the case against Arthur, the case is affected by many evidential issues (Hostettler, 2009, p. 430).

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Evidential Issues in the Case

The evidential issues in the case include the admissibility of the hearsay evidence (out-of-court) explanation of the murder of Siobhan by Arthur, according to Lee. According to Slapper and Kelly (2013, p. 102), hearsay evidence including oral information is admissible in civil cases. In the current case, there is no first-hand witness with compellingly clear information on the murder. Therefore, the hearsay evidence provided after the incidence can be admitted in a court hearing. The reason is that the account given to the police was made immediately after Lee witnessed the incident, which indicates that the event was still fresh in his mind. However, in the case of Siobhan’s murder, the factuality of the information provided by Lee is questionable. The first and main evidential issue is that all the evidence pointing towards the fact that Arthur murdered Siobhan is hearsay and that no other evidence is supporting it. As an example, Lee stated convincingly that he knew the person he saw murdering Siobhan and went on to explain that it was a short and lean man about 5ft 7 inches tall. Lee further added that he was sure that it was Arthur because he had confronted him about the payment of pool rental fees. Unfortunately, the hearsay evidence is not supported by the CCTV recording, noting that it shows that the attacker is taller than Lee explained and that the man is of a stocky build, which disapproves the oral account given to the police. On the basis of the difference between the information given by Lee, and that visible from the CCTV coverage, it is clear that Arthur may not be successfully prosecuted.

The second evidential issue is that the admission of the evidence provided by Lee and that contained in the CCTV footage will amount to undue prejudice, confuse issues, and mislead the prosecuting jury. The issue is evident from the fact that the evidence provided by Lee and that in the CCTV camera are conflicting, despite his expression of confidence that Arthur murdered Siobhan. During the case, the prosecuting court may argue that Arthur may have removed the hat and changed the red tracksuit. However, it is impossible to claim that he changed from being short to relatively tall and from lean to stocky between the times of murder and the arrest. Based on the differences between the evidence available from the two sources, the prosecuting court will act in prejudice if it went on to prosecute Arthur based on Lee’s conviction that Arthur committed the murder.

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The third evidential issue is the negative credibility of Lee, as a source of evidence to prosecute Arthur. In the statement, it is mentioned that Lee wears glasses to see distances and that he may not have seen the attacker well. Contrary to that, he went on to explain details the hat and tracksuit that he was wearing and then pointed out that it was Arthur. In addition to the information on the look of the attacker, Lee added that he knew it was Arthur because earlier in the day, he had confronted him over the non-payment of pool rental fees. The expression of faith that the attacker was Arthur, and that the earlier confrontation justifies he committed the murder depicts that Lee’s account is probably misinformed and based on prejudice. If the evidence were objective, Lee would most likely not point out the colours of the clothes the attacker was wearing, and note that Arthur was at the pool earlier, instead of justifying that their confrontation proofs that he committed the murder. The implication of the fact that the account by Lee was misinformed and based on personal vendetta renders him less credible as a witness, which disproves the case.

Evaluation of Identification Evidence

The first piece of identification evidence is that Arthur, the accused suspect worked as a lifeguard at the Arden Swimming pool, which is the site of the murder. More importantly, during the day that Siobhan was murdered, Arthur was at the swimming pool and even confessed that he was there during the particular day. The evidence makes him a potential suspect in the case and paves the way for further identification. The second piece of evidence is that Siobhan was a frequent visitor at the swimming pool, and during the previous contact and exchange between her and Arthur, he had developed a motive to murder her. Moreover, it is possible that the two had disagreed over something. Thirdly, the height of the attacker and that of Arthur were almost the same at 5 feet 7 inches and 5feet and 10 inches, which places the two within the same height range. Fourthly, due to the confrontation between Lee and Arthur during the day of the murder, it is likely that he took offence and went on the rampage that ended with the murder of Siobhan later in the day.

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Admissibility of the CCTV evidence

In the case, it is written that the CCTV video is of a very low quality that it cannot identify the attacker. Due to the poor quality, the CCTV evidence cannot be admitted as the primary evidence for the case. However, it can be admitted as secondary evidence to support or challenge the primary evidence for the case (Monaghan, 2015, p. 401). In the current case, the courts can use the video to confirm whether the attacker has a similar body height and build to that of Arthur.

Analysis of Arthur’s Statement and whether it is an Admissible Confession

According to Monaghan (2015, p. 137), voice confessions are admissible as evidence in a court of law. In the case of Arthur, the court can use his admission that he was at the pool as evidence, particularly during cross-examination where the juries will question his coming and exit from the swimming pool area. If the video footage were clear and the attacker looked like him, he would be questioned whether he was at the swimming pool at the time of the murder. However, the court can dismiss the oral confessions, depending on whether he made it under undue pressure (Monaghan, 2015, p. 137). At the time of arrest, if the officers forced him to accept that he was at the swimming pool, the statement will not be admissible.

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  1. Bhatia, K. L., 2010. Textbook on legal language and legal writing. New Delhi: Universal Law Publishing.
  2. De Jong, GF and Van Lent, L., 2016. The Presumption of Innocence as a Counterfactual Principle. Utrecht Law Review, 12(1), pp. 32-49.
  3. Fenwick, H., Phillipson, G. and Masterman, R., 2007. Judicial Reasoning under the UK Human Rights Act. Cambridge: Cambridge University Press.
  4. Fitzmaurice, M. and Merkouris, P., 2013. The interpretation and application of the European Convention of Human Rights: Legal and practical implications. Leiden: Martinus Nijhoff Publishers.
  5. Hostettler, J., 2009. A history of criminal justice in England and Wales. Hook, Hampshire: Waterside Press.
  6. Keane A. and McKeown P., 2016. The Modern Law of Evidence. 11th Edition. Oxford: OUP Oxford.
  7. United Kingdom Government (n.d). Civil Evidence Act 1995: Admissibility of hearsay evidence. [online] Available at: <> [Accessed 11 Nov 2017].
  8. Monaghan, N., 2015. Law of Evidence. Cambridge: Cambridge University Press.
  9. Ross, D., 2007. Advocacy. Cambridge, UK: Cambridge University Press.
  10. Slapper, G. and Kelly, D., 2013. Q&A English Legal System 2013-2014. Abingdon, Oxon: Routledge.
  11. Spencer, M. and Spencer, J., 2017. Evidence.Oxford: Oxford University Press.
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