Case Management and Pre-Trial Hearings

Introduction

This chapter draws together three of the most heavily examined topics in the law of criminal **evidence**: the **burden and standard of proof**, **visual identification evidence** under the **Turnbull guidelines**, and the **evidential operation of adverse inferences from silence** at trial. The unifying theme is the **golden thread** of English criminal law — that the **prosecution** must prove the defendant's guilt **beyond reasonable doubt** — and the limited circumstances in which that principle is qualified by **reverse burdens**, by cautionary directions on unreliable identification, or supplemented by inferences drawn from a defendant's failure to account for himself.

Assessment focus

For the SQE1 FLK2 assessment, you must be able to distinguish the **legal burden** (the burden of proof) from the **evidential burden** (the burden of raising an issue), and to identify which party bears each on the elements of an offence and on common defences. You must know the **Woolmington** principle and its exceptions — **insanity**, **diminished responsibility (s. 2 Homicide Act 1957)** and **statutory reverse burdens** — together with the **Article 6(2) ECHR** analysis under **R v Lambert** and **R v Johnstone**. You must be able to apply the **Turnbull guidelines** and the **ADVOKATE** factors to assess the quality of identification evidence, and to state when a case must be withdrawn from the jury. Finally, you must understand that an **adverse inference** under **ss. 34–37 CJPOA 1994** does **not** shift the burden of proof and cannot, by **s. 38(3)**, be the sole basis for a conviction. Questions are single best answer questions (SBAQs) set in realistic scenarios; you will be expected to **apply** these rules, not merely recall them. This is a closed-book assessment.

Study tips

1) Memorise the **Woolmington** 'golden thread': the prosecution proves guilt **beyond reasonable doubt** ('so that you are sure'); the burden **never shifts** save for the recognised exceptions. 2) Lock in the two exceptions placing a **legal burden** on the defendant — **insanity** (M'Naghten) and **statutory reverse burdens** (e.g. **s. 2 HA 1957**) — proved on the **balance of probabilities**. 3) Distinguish **legal burden = burden of proof** from **evidential burden = burden of raising the issue** (e.g. **self-defence**: D raises it, then P disproves it beyond reasonable doubt). 4) Remember the **Article 6(2)** reading-down power: **Lambert** read a burden down to evidential; **Johnstone** upheld a legal burden — the test is **fact-sensitive and proportionate**. 5) Learn the **ADVOKATE** mnemonic and the **good vs poor quality** rule: poor quality + **no supporting evidence** = **withdraw the case**; a missing Turnbull direction = conviction **quashed**. 6) For silence: an inference is **circumstantial evidence** that supplements the case; by **s. 38(3)** it can never be the **sole or main** basis for conviction and **does not shift the burden**.