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Why hasn’t Michael Gove been arrested?

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A question on many people’s lips since the former Justice Secretary admitted to using cocaine several times earlier in his career.

So, could he face the legal consequences of this?

Cocaine is a Class A drug, the most serious category. Drug offences are governed by the Misuse of Drugs Act 1971 and whilst buying a controlled drug in this scenario is not an offence, possession is. It carries up to seven years in prison.


Is Michael Gove’s confession enough?

Possibly. The Prosecution will usually have to prove that a substance is in fact a controlled drug, and the most convenient way to do that is through a forensic report.

In this case, though, the drugs are long gone and can’t be analysed. The prosecution would have to rely on his public confession.

A confession was relied on in R v Chatwood [1980] 1 All ER 467 where the Court of Appeal said that a confession could amount to evidence that, on the face of it, the defendant had been in possession where he was expressing an informed opinion.

Whether Michael Gove’s opinion could be described as ‘informed’ will be the key question and would likely depend on how often he used the drug.

His confession could be used as evidence, however, if he were to be charged with attempted possession under the Criminal Attempts Act 1981.

The prosecution could accept that Gove did not actually possess cocaine but allege instead that he had tried to possess it. The maximum sentence is the same.


Has it been too long to charge Michael Gove with a drugs offence?

No. There is no general ‘Statute of Limitations’ in England and Wales. Offences only triable in the Magistrates’ Court usually have a limit of six months, but possession of a drug is not one of those.

He could, theoretically, still be charged.


Will Michael Gove be prosecuted?

The Crown Prosecution Service would make a decision as to whether a prosecution should proceed.
To do this, they apply the Full Code Test set out in the Code for Crown Prosecutors. This is the same for every offence.

The Full Code Test has two stages which need to be met. These are the evidential stage, and the public interest stage.

In short, there needs to be enough evidence for a realistic chance of conviction, and it must be in the public interest to bring a case. If a case fails either test, it will not be prosecuted.

The confession is potentially enough evidence for a case to be brought. A Crown Prosecutor would have to be satisfied that it, and any other evidence, is admissible and leads to a realistic prospect of conviction.

Any evidence from Owen Bennett, the City AM political journalist who outed Gove’s cocaine use in his unauthorised biography of the Environment Secretary, or Gove’s political advisors to whom he confessed would need to be carefully considered, and a prosecutor may have grave doubts as to its admissibility.

In the event there was enough evidence, the case would also have to pass the public interest stage. A case will usually pass this stage unless there are factors against the prosecution that outweigh those in favour.

This stage takes into account a lot of factors, including the seriousness of the offence, the circumstances, any harm caused, impact on any victims, and whether a prosecution is proportionate.

The likely penalty would be a small fine or community punishment at most.

Therefore, Gove could be prosecuted but it is unlikely in all of the circumstances. Reputationally and politically, this admission could exact a great cost.


How we can assist

If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case.

Does Imprisonment Lead to Re-offending? Farmer Review for Women Highlights the Problems They Face

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Prison is supposed to be hard. It is, after all, a punishment. But it’s also designed to help people address their behaviour and stop them re-offending. When imprisonment leads to more offending, it isn’t working.

The specific problems faced by women have been highlighted recently by the Farmer Review for Women. Lord Farmer hopes to improve women’s experience within the criminal justice system with the aim of reducing re-offending.

But it isn’t just about prisoners. A previous study by Lord Farmer on male prisoners found 63% of male prisoners’ sons went on to offend themselves and adult children of imprisoned mothers are even more likely to be convicted.

The problems revolve mainly around the breakdown of family relationships, particularly as women are often primary carers, that flow from a spell in custody, whether on remand or in prison.

The Report found that women who receive family visits are 39% less likely to reoffend, and so the importance of alleviating these problems is obvious.

What are the problems?

Any custodial stay, whether the first night in the cells or five-year prison sentence, can have a devastating effect on several areas of a person’s life.

Relationships with all family members, particularly with children and partners, suffer badly when one member of that unit is taken away for an extended period.

This is made worse by the fact that women are held on average 63 miles from home, increasing the difficulty of prison visits.

Anxiety of mothers and primary carers in custody is increased due to separation from the children, especially where the mother is the sole carer. Children are the first priority in this situation, and the Report found that little progress can be made with the prisoner until this anxiety is dealt with.

Domestic violence also is recognised for its huge impact on women’s lives, tying in to relationships and possible causes of offending.

What can be done to help?

The Report recognises that the early intervention in a wide range of circumstances including mental health, relationship breakdown, substance misuse, education and debt can all help to prevent offending.

It makes a number of recommendations to strengthen female offender’s family and other relationships to prevent re-offending and reduce intergenerational crime.


Earlier intervention to address the vulnerabilities of some women which can lead to them coming into contact with the criminal justice system and diverting them from it. If women had ready access to services and good peer support networks, it could prevent offending and the repetition of the cycle by children.

A specific recommendation is to create a personal circumstances file for a woman so that information can be shared through trusted organisations such as the police and local authority, NHS and Victim Support.

A renewed focus on alternative accommodation is required, bail hostels are currently geared towards men and prohibit children living there or visiting them. These restrictions need to be reviewed by the government and women in hostels need to be referred to services to assist with parenting or relationship issues where appropriate.

Pre-sentence reports should be mandatory for all women (and male primary carers) if a custodial sentence is a possibility. The report would clarify the repercussions of a custodial sentence on dependants and put forward detail of mitigating factors such as domestic abuse.

Women sentenced to custody or remanded must be given the opportunity to make telephone contact with dependents and organise childcare before being put onto transport. Consideration should be given to primary care or other relationships before a woman is remanded as even a short remand can have devastating effect on families, tenancies and the ability to provide for family.

The development of custodial centres should be a long-term strategy, used for women whose crime is serious enough to merit a custodial sentence but who are low enough risk to retain care of their children.

Where a custodial term is inevitable there are many recommendations to enhance rather than break down family ties. Such recommendations as improvements to the Assisted Prison Visits scheme and space for private family visits.

Some of the most frequent issues raised by women prisoners were access to release on temporary licence (ROTL) and child resettlement licence (CRL).To address this ROTL could be used far more frequently and creatively to help women fulfil caring responsibilities and aid resettlement, CRL could be widened to include other family circumstances and not just rest on sole carer status.

To aid communication during sentences the operation of prisoner email schemes needs to be consistent and all female prisons to develop an email reply system so that children do not think they are being ignored if no reply is received. Virtual visits and in cell telephony should be utilised to supplement face to face visits.


The cost of the recommendations is balanced throughout, for example, by the savings from keeping women out of the prison system and the cost saved by children not being cared for by social services. There are certainly a number of interesting recommendations, but it remains to be seen whether they are put into place.

In the meantime, our advocates will ensure that a comprehensive picture is presented to any sentencing court.

How we can assist

If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case.

Prosecuting Sexual Offences – Time for a rethink?

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Justice, the renowned human rights organisation, has published a significant report that examines the prosecution of sexual offences, and in some areas calls for a radical overhaul.

Among the authors of the report is Judge Peter Rook QC, a senior Judge at the Central Criminal Court (‘Old Bailey’) and considered an expert authority on this area of law.

Two of the areas examined were preventing and reducing offending. Turning its attention to those who view indecent images of children (‘IIOC’), the report recommended as follows:

“Police-led diversion schemes have recently been developed. These seek to address the factors that may lead to offending behaviour without the need for prosecution. We have been inspired by the success of these programmes to develop our own proposal for a Conditional Diversion Scheme, for individuals who have viewed IIOC. We consider that this scheme will provide the correct intervention to these individuals as quickly as possible, helping to both save prosecution and court resources and ensure reoffending rates remain low. Our proposed scheme has been developed together with experts in the field and we consider it to be a sensible response to the volume of reports that the police receive each month.”

The authors also had much to say concerning rehabilitative programmes and the effect of protective/preventative orders:

“When it comes to sentencing, this working party believes that lessons should be learned from the skills-based approach to rehabilitation, which has shown this to be an effective way to reduce reoffending rates. There should be a shift in focus to rehabilitation and more flexibility should be given to sentencers to allow them to make suitable orders that allow the individual to rehabilitate effectively. This is especially the case for Sexual Harm Prevention Orders, where we have heard that overly restrictive orders can isolate an individual from society once released from prison, hindering them from getting their lives back on track and risking further offending.”

Our work brings us into contact with a great many people who commit offences at all level of seriousness, and of course, many that have committed no crime at all. We know that criminal investigation and proceedings can have a devastating effect on those accused and their wider families.

In all cases, we work sensitively and diligently to prepare a robust defence case when that is required and to work hard with others to ensure outcomes that work for our clients and the wider community when it comes to sentencing.

We welcome this report and its mature examination of such complex societal issues.

How we can assist

If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help, we deal with all manner of criminal offences on a daily basis and have the expertise to get you the best result possible.

Sally Challen – An Issue of Coercive Control

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In February 2019 the Court of Appeal quashed Sally Challen’s conviction for the murder of her husband and ordered a retrial.

Last week the prosecution accepted a plea to the lesser offence of manslaughter and Challen received a sentence that meant she would serve no further time in custody.


Why was the appeal allowed?

Challen advanced two grounds of appeal:

  1. The fresh evidence on coercive control and the fresh psychiatrist evidence support the proposition that at the time of killing the appellant was suffering from an abnormality of mind. Had expert evidence on coercive control been available at the time of the trial, the jury may have reached a different conclusion on diminished responsibility.
  2. The fresh evidence also goes to the issue of provocation in that it helps establish the appellant was provoked to kill the deceased because of his controlling and coercive behaviour.

The foundation for both lines of the challenge was her husband’s controlling and coercive conduct, conduct which is now a criminal offence in itself. Section 76 of the Serious Crime Act 2015 criminalises a pattern of abusive behaviour, the individual elements of which are not necessarily unlawful in themselves. This is designed to better protect victims of domestic abuse.

Counsel for Challen argued that the courts have recognised the concept of battered person syndrome, but that syndrome focuses on the psychological impact of repeated physical abuse, whereas coercive control focuses on systemic coercion, degradation and control.

The lack of knowledge about the theory of coercive control at the time of the appellant’s trial, meant that the partial defence of diminished responsibility was not put as fully as it could have been and the defence of provocation was not advanced at all by counsel then representing the appellant.

The appellant’s actions were not, therefore, put into their proper context.


Did the court agree?

The court held:

“We were not persuaded that had it stood alone the general theory of coercive control on the facts as presented to us would have afforded the appellant a ground of appeal. However, it did not stand alone. We have focused on [the Doctor’s] post-conviction diagnosis that the appellant suffers from borderline personality disorder and a severe mood disorder, probably bipolar affective disorder, and suffered from those disorders at the time of the killing. If that is correct, it is in that context that the theory of coercive control may be relevant.

We express no view on whether the appellant was the victim of coercive control and no view, if she was a victim, on the extent to which it impacted upon her ability to exercise self-control or her responsibility for her actions. However, because expert evidence was not available to defence counsel at trial, neither the possibility that she was suffering from these two disorders, nor the issue of the impact upon her of the abusive relationship were explored at trial in any detail. The issue of provocation was not advanced at all.”

Accordingly, a retrial was ordered.

In the end the prosecution accepted the plea to a lesser charge of manslaughter in light of overwhelming evidence as to the husband’s behaviour and the effect on Challen’s state of mind at the time of the killing.


What does this case tell us?

From a legal perspective it tells us two things:

  1. Coercive control is now a relevant factor to be taken into account when considering what defences might be available; and
  2. That as medical and other disciplines evolve, we have to take stock of older cases to see whether those advances might support a fresh appeal.


How we can assist

If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help, we deal with all manner of criminal offences on a daily basis and have the expertise to get you the best result possible.

Finn’s Law – What It Means

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With much fanfare, ‘Finn’s Law’ came in to force on 8th June 2019, following the implementation of the Animal Welfare (Service Animals) Act 2019.

The 2019 Act makes a straightforward amendment to section 4 of the Animal Welfare Act 2006.


What was the problem?

Section 4 of the Animal Welfare Act creates the criminal offence of ‘unnecessary suffering’ in relation to animals.

There is however a defence in the Act, namely that the suffering is ‘necessary’. In several cases where Service Animals (typically police dogs) had assisted in the capture of suspects, the suspect injured the dog and later claimed self-defence.

In Finn’s case, Finn sustained severe stab wounds to the chest and head, but only criminal damage charges could be brought against the suspect.


What has changed?

The Animal Welfare Act has been amended in the following way:

In determining for the purposes of subsection (1) whether suffering is unnecessary in a case where it was caused by conduct for a purpose mentioned in subsection (3)(c)(ii), the fact that the conduct was for that purpose is to be disregarded if –

(a) the animal was under the control of a relevant officer at the time of the conduct,

(b) it was being used by that officer at that time, in the course of the officer’s duties, in a way that was reasonable in all the circumstances, and

(c) that officer is not the defendant.

In basic terms this removes the self-defence argument.


Could this lead to unintended consequences?

Some people have asked what would happen if a police dog attacked an innocent person (either a bystander or an innocent suspect) – would they too be denied the opportunity to defend themselves lawfully?

The Act does on the face of it suggest that there would be no ‘self-defence’ defence available. But, in the explanatory notes to the bill that passed through parliament, it was observed:

‘…a person would be able to use the self-defence consideration at section 4(3)(c)(ii) if the animal attacked them unduly.’

It could therefore easily be argued that a police dog attempting to apprehend an innocent person would be judged to be acting ‘unduly’.

The wording of the Act does, however, leave a lot to be desired and our lawyers will be carefully scrutinising the use of this Act over the coming months to ensure defendants are not deprived of critical legal safeguards.


How we can assist

If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help, we deal with all manner of criminal offences on a daily basis and have the expertise to get you the best result possible.

Driving Bans – Not Just for Traffic Offences

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Most people know that a driving ban may follow for serious road traffic offences or a series of lower-level traffic crimes as a result of ‘totting up’. Few of our client’s know that disqualifications can follow in other cases if a vehicle is used to facilitate the commission of an offence.


What is the relevant law?

There are two relevant provisions in the Powers of Criminal Courts (Sentencing) Act 2000.

Section 146 provides for a general power to disqualify a person from driving following a conviction for any offence. There is no requirement for a vehicle to have been used during the crime.

In Cliff [2004] EWCA Crim 3139, the court held:

‘In our judgment, it is not necessary for the offence to be connected to the use of the motor car. The section provides an additional punishment available to the court. That is not to say that a court can impose a period of disqualification arbitrarily. There must be a sufficient reason for the disqualification. The reasons will, of course, be open to scrutiny by an appellate court, as they are in this case.’

The disqualification period can be ‘…for such period as it thinks fit’.

The case law is now always consistent (see for example Bye [2005] EWCA Crim 1230 and compare with Cornell-Gallardo [2010] EWCA Crim 3151), so an advocate must always be careful to scrutinise the facts of each case and challenge the making of such orders if appropriate.

The provisions under section 147 of the Act are much better known and can only be used where the offence is punishable on indictment with imprisonment of 2 years or more or is an offence involving an assault. The magistrates’ only have power in relation to the latter.

The court must be:

‘…satisfied that a motor vehicle was used (by the person convicted or by anyone else) for the purpose of committing, or facilitating the commission of, the offence in question’, or

concerning assault offences ‘…satisfied that the assault was committed by driving a motor vehicle’.

Again, the disqualification period can be ‘…for such period as it thinks fit’.

Some Judges appear to be particularly eager on using this power, while it rarely seems to occur to others, so it can be very much a lottery so far as the sentencing process is concerned.

The case law concerning this provision is complex and voluminous, so all advocates need to ensure that they are not taken by surprise when it is mentioned (often with no notice) as part of the sentencing process.

All of our advocates are highly trained and able to respond appropriately to all sentencing and other issues.


How we can assist

If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help, we deal with all manner of criminal offences on a daily basis and have the expertise to get you the best result possible.

Private Prosecutions – ‘Doing a Boris’

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A District Judge sitting at Westminster Magistrates’ Court last week authorised that a summons be issued against the prominent conservative member of parliament, Boris Johnson.

The allegations relate to alleged conduct during the Brexit referendum campaign and in particular the £350m per week for the NHS slogan that adorned the side of campaign buses.

Unless other steps are taken to the stop this prosecution, Johnson will have to appear in court to answer these charges and face trial at the crown court.


So what?

The unusual aspect of this case is that this is a private prosecution crowdfunded by individuals who support the prosecution.


Is that unusual?

In England and Wales, the vast majority of prosecutions are undertaken by the Crown Prosecution Service. Also, there are also a large number of other public bodies that regularly prosecute cases, generally of a specialist nature, before the courts, such as the Environment Agency, Serious Fraud Office, Local authorities, Civil Aviation Authority etc.

There are also very few well-known organisations that regularly privately prosecute cases, most notably the RSPCA in respect to allegations of animal cruelty.

But private individuals prosecuting cases are relatively rare.


Are private prosecutions always allowed?

The Supreme Court has reiterated quite recently that private citizens have a constitutional right to prosecute alleged crimes before the courts.

Some companies and individuals’ resort to private prosecution when they feel that the State has failed to act.

There are many safeguards to prevent vexatious prosecutions, such as:

  • Scrutiny before a summons is issued
  • Abuse of Process remedies
  • The ability of the Crown Prosecution Service to take over a private prosecution
  • A new proposed code for private prosecutors drafted by specialist firms who conduct this type of work
  • Risk of adverse costs orders if the prosecution is unwarranted

Despite these safeguards, there are still some concerns, and we are particularly alert when a private prosecutor is involved to ensure defendant rights, particularly concerning disclosure and fair prosecution practice, are protected. We will not hesitate to seek full costs recovery on behalf of a client if the prosecution ought not to have been brought in the first place.


How we can assist

If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help, we deal with all manner of criminal offences on a daily basis and have the expertise to get you the best result possible.

Release on Temporary Licence

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The government has conducted a review of the process for prisoners to be released on temporary licence (ROTL); the drive behind the changes being the rehabilitation of offenders.

Research has shown that working in the community prior to release significantly reduces the likelihood of re-offending, and ex-offenders in employment are up to nine percentage points less likely to commit further crime.

Re-offending currently costs the country £15 billion per year.

Previous changes focussed on support for ex-offenders when they leave prison with changes to the probation service and a move away from short, ineffective, prison sentences and to allow more effective treatment of issues such as addiction and mental health problems.

Now a number of changes have been made to the previous policy on ROTL, for adults, to assist in preparation for resettlement in the community once released.

The changes include:

  • The threshold for Restricted ROTL is changed so that it is focussed on the most serious offenders.
  • The current restriction on ROTL in the first three months after transfer to open conditions is removed, subject to a risk assessment.
  • Those serving indeterminate sentences are eligible to be considered for unaccompanied day release (RDR) from the point of entry to an open prison or reaching open status in a women’s prison.
  • In order to streamline the process agencies are consulted and boards only sit where necessary, with a focus on the right information and reducing paperwork.
  • Greater use of workplace ROTL is encouraged; paid work will be allowed as soon as a prisoner is eligible for day release and the requirement for a prisoner on ROTL to spend at least one 24-hour period per week in prison is removed.
  • Primary and sole carers will be allowed to apply for Childcare Resettlement Licence.
  • Prisoners with a prior history of absconding will be allowed to be risk assessed for open conditions and ROTL if the history is more than two years ago and happened only once in the current sentence.
  • Directors of contracted prisons will be allowed to take ROTL decisions whilst the Controller will continue to monitor the Director’s compliance in this area.

Any temporary release will always be balanced with the need for maintaining public safety and the public’s confidence in the judicial system, for example, the risk assessment will consider the impact of any release on identified victims and their whereabouts. More serious offenders will be subject to Restricted ROTL which includes a number of elements over and above Standard ROTL such as enhanced monitoring.

The use of ROTL was restricted in 2013 following a murder committed by a prisoner on day release but the new changes mark a shift in attitude. Allowing prisoners to spend time in the community is a vital part of reintegration and 99% of all temporary releases are completed successfully.

How we can assist

If you need specialist advice, then get in touch with us on 0113 247 1477 and let us help, we deal with all manner of criminal offences on a daily basis and have the expertise to get you the best result possible.

Sentencing – Breaking the Code

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Few people would disagree with the suggestion that sentencing law in England and Wales is a complete mess. The provisions that govern how a defendant is to be sentenced are both complex and disparate and to be found across a significant number of statutes.

Why does this matter?

Research has shown that thousands of sentencing errors are made each year, with many going completely undetected. Sometimes the mistakes make little difference in practice, but often the failure leads to unlawful sentences being imposed.

The complexity of the statutory provisions is only one consideration, and we also must take note of a large body of case law. Again, we see many errors, most notably concerning protective orders where conditions imposed are often draconian and unnecessary.

Sentencing errors can lead to a failure to protect victims, unlawful or inappropriate sentences for defendants, and very costly appeal proceedings that are often necessary to correct the mistakes. Ironically the Court of Appeal often makes mistakes itself.

So, what is being proposed?

The Law Commission has proposed a ‘Sentencing Code’; this will be a single Act of Parliament that will place all sentencing provisions in one place.

To achieve this, a two-stage process will take place:

  1. Minor amendments to existing statutes will be made to ‘tidy up’ the statute book.
  2. Immediately afterwards the provisions will be consolidated into one Act of Parliament (‘the sweep’).

This clean sweep of law will then lead to a single consolidated statutory provision that can be further amended in the future.

It is important to note that this procedure is a consolidating procedure, so apart from minor changes to legislation, there is no material change to existing law. There will be no increases to existing sentences.

Will this make a difference?

Given the effect of this is merely to move sentencing law into one single statute, it is a reasonable question to ask whether this will make a difference.

The Law Commission carried out extensive testing of the proposals, and it was demonstrated that having a single reference point for sentencing leads to fewer errors. Errors will continue to be made, for all manner of reasons, but we should see a massive reduction.

When will these changes happen?

The first piece of legislation was laid in the House of Lords last week, and the provisions could be law in a matter of months. Much will depend on the legislative timetable and the uncertainty of the political situation at the present time.

When the relevant legislation is enacted, there will need to be a period of training for lawyers and judges before the new statute takes effect, so we are looking at mid-2020 in all likelihood.

What happens until then?

Until that time, we will continue to be alert on your behalf. Our lawyers take great care to ensure lawful and proportionate sentences are passed and will not hesitate to take corrective action where that is required. We prefer to work hard to avoid mistakes in the first place, and all our advocates are highly trained in the complexities of sentencing law. Our ethos is a ‘get it right first-time’ one.

How we can assist

If you need specialist advice, then get in touch with us on 0113 247 1477 and let us help, we deal with all manner criminal offences on a daily basis and have the expertise to get you the best result possible.

On the Balance of Probabilities – But What Does That Mean?

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In criminal law, we use two different standards of proof, the most well known is ‘beyond reasonable doubt’ (although these days expressed as ‘so that you are sure’), and the balance of probabilities.

The latter standard of proof gets less attention but is nonetheless of critical importance in criminal cases. Whilst we hear the term bandied about in courts up and down the land on a daily basis, we hardly ever hear lawyers articulating its meaning to the court, which may well be a serious error of judgement if a magistrates’ court is hearing the case.

In Miller v Minister of Pensions [1947] 2 All ER 372 (a civil case) Lord Denning expressed the legal test in this way [374A-B]:

‘…the case must be decided according to the preponderance of probability. If at the end of the case the evidence turns the scale definitely one way or the other, the tribunal must decide accordingly, but if the evidence is so evenly balanced that the tribunal is unable to come to a determine conclusion one way or the other, then the man must be given the benefit of the doubt. This means that the case must be decided in favour of the man unless the evidence against him reaches the same degree of cogency as is required to discharge a burden in a civil case. That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: “We think it more probable than not,” the burden is discharged, but, if the probabilities are equal, it is not.’

In Pope v General Dental Council [2015] EWHC 278 (Admin) the following assistance can be derived:

‘In a civil case, the burden of proof is fixed at the beginning of the trial by the state of the pleadings and remains there never shifting. Similarly, in criminal cases, the burden of proof lies on the same party (in practice usually, but not always, the prosecution) throughout.

The general practical impact of this is that at no stage of the proceedings is the fact finder entitled to say that the evidence on any given issue has accreted to the extent that the persuasive burden of proof has, as a result, been effectively shifted from one party onto the other party.

This point was authoritatively and emphatically made by Viscount Sankey L.C. in Woolmington [1935] AC 462 at page 481:

‘If at any period of a trial it was permissible for the judge to rule that the prosecution had established its case and that the onus was shifted on the prisoner to prove that he was not guilty and that unless he discharged that onus the prosecution was entitled to succeed, it would be enabling the judge in such a case to say that the jury must in law find the prisoner guilty and so make the judge decide the case and not the jury, which is not the common law. It would be an entirely different case from those exceptional instances of special verdicts where a judge asks the jury to find certain facts and directs them that on such facts the prosecution is entitled to succeed. Indeed, a consideration of such special verdicts shows that it is not till the end of the evidence that a verdict can properly be found and that at the end of the evidence it is not for the prisoner to establish his innocence, but for the prosecution to establish his guilt. Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence.’

The importance of applying the burden of proof on any issue by taking into account all of the evidence at the end of the case was also stressed by Viscount Sankey in Woolmington at page 483 deploying a metaphor the vividness of which has been long since been rewarded with the status of cliché:

“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt … If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”

And, with respect specifically to the facts of that case in which the charge was one of murder:

“If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted.”

The time at which the burden of proof must be applied is, therefore, at the end of the case without either attenuation or reversal as a result of the ebb and tide of evidential fortunes in the hearing which had preceded it.

The evidence in favour of one party is put in one pan of the scales and that of the other in the other pan. As the case progresses, one pan may rise as the other falls and vice versa. When the evidence has concluded, the scales will have tipped in one direction or another or will have ended up evenly balanced. The fact that one party bears the burden of proof means that he will lose not only if the pan has fallen in favour of the other party but also if the scales end up evenly balanced.

The application of the burden of proof does not, however, involve putting some unspecified weight into the pan of the party who does not bear the burden of proof before any evidence is called. The burden of proof and the standard of proof comprise the criteria which are to be applied to all of the evidence after it is complete in order to determine how any given issue is to be resolved. As such, the burden of proof has no “weight” either in the scale analogy or, literally, in the context of a contested issue as a piece of evidence in itself. To say that the burden remains on one party throughout is merely to make the point that, however imbalanced the scales may appear to be at any given stage in the proceedings, the test to be applied remains unchanged throughout.’


So, Not So Simple After All?

As you can see, the issue of burdens and standards of proof has exercised the courts on a great many occasions in the past (there are at least another dozen or so important judgments dealing with these issues). We understand that these issues lie at the heart of almost all criminal cases and leave nothing to chance. It is essential that all tribunals deciding cases correctly understand the underlying framework of criminal evidence.


How we can assist

If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help, we deal with all manner criminal offences on a daily basis and have the expertise to get you the best result possible.