Fay is a prisoner serving a sentence of life imprisonment for murder.

It is alleged that she

attacked a prison officer, causing the officer to sustain a minor cut to her face and some bruising.
Prison staff then searched Fay's cell and discovered a quantity of heroin in a bag and some
small bags containing cannabis. The next day, in an apparently paranoid state of mind, Fay
attacked and killed her cellmate. Fay was interviewed about all matters and subsequently
charged with murder, assault occasioning actual bodily harm and possession of both Class A and
Class B controlled drugs with intent to supply, contrary to s.5 of the Misuse of Drugs Act 1971.
Fay asked to consult a solicitor before she was interviewed on all the matters. However, the
police stated that this would delay the interview and put pressure on Fay to be interviewed
without a solicitor. Fay agreed because, having been interviewed by the police many times
before, she felt that she was well able to handle the interviews. She stated in the interviews that
she acted in self-defence in respect of the assault on the prison officer. She admitted supplying
the bag to her cell mate, but also stated that she thought there were only mobile phones in the
bag. That is, she neither knew nor suspected nor had reason to suspect that the bag contained
heroin, which is a potential defence under s.28 of the Misuse of Drugs Act 1971. In addition, a
number of small bags of cannabis were found in the cell. Fay admitted that those belonged to her
but stated that they were for her own use and not to supply to other prisoners
The case has proceeded to trial. In relation to the murder, Fay will plead the defence of
diminished responsibility and intends to call Dr Williams to give evidence as to her mental health.
In respect of the drug offences, Mr Taswir, a retired police officer, will give evidence for the
prosecution that he has never known a drug user sub-divide drugs in this way and that this
practice is invariably associated with dealing in drugs. Mr Taswir has long and extensive
experience working in a police drugs squad and will rely on unpublished internal Police Force
articles to substantiate his opinion.
Before the trial, Fay met with a probation officer in the prison and made certain admissions in
relation to the offences with which she has been charged. Fay will seek to exclude this evidence
along with the statement that she produced and sent to her solicitors, which her solicitors sent
mistakenly to the prosecution. Fay claims that the statement is protected by legal professional
privilege. The prosecution wishes to rely on it at the trial because it contains certain damaging
admissions.
a) Explain how legal and evidential burdens will apply to the prosecution at trial.
Burden of proof refers the weight of persuading some fact or fact in issue sufficiently before
the court. A party who must prove something in order to establish or escape liability is said
to have the burden of proof. (Murphy et al., 70)
Legal burden and evidential burden show two dimensions of burden of proof. Legal burden
is the obligation of establishing the overall case according to the required standard of proof.
(Murphy, 71) In a criminal case standard of proof is beyond reasonable doubt. The
prosecution has the legal burden of proof and he must prove it beyond reasonable doubt.
When prosecution presents the case each element of the offence must be proven with
credible evidences. Then only the party can establish a prima facie case. Otherwise there will
be no case to answer by the defendant. Then the defendant will win the case as weight

proving the allegation is with the prosecution.

Once the prosecution established the case the evidential burden of persecution discharge and
the defendant acquire the evidential burden. (Murphy et al., 73) Then the defendant must
prove that the claimants case is improbable. He can admit evidences to oppose the case. But
it is not a must to present evidences. Because of the legal burden of the prosecution persist
until the end of the case (Murphy et al., 73) and it is the obligation of prosecution to prove
the guilt of accused.
According to the Article 6(2) of the Human Right Act presumption of innocence is an
essential element of a fair trial.
But there are some exceptional situations where the burden of proof imposes on the accused.
Woolmington rule - insanity and statutory exceptions
b) Explain how legal and evidential burdens apply to Fay's defences of self-defence, diminished
responsibility and the defence under s.28 of the Misuse of Drugs Act 1971.

c) In relation to the defence of diminished responsibility only, discuss briefly whether the current law on
the burden of proof is contrary to the European Convention on Human Rights.

2.
a) Discuss whether any evidence should be excluded from consideration by the court because Fay was
not permitted to consult a solicitor.
Police and Criminal Evidence Act (PACE) 1984 states, A person arrested and held in
custody in a police station or other premises shall be entitled, if he so requests, to consult a
solicitor privately at any time (S58 (1)).
Fay is not a person who arrested or detained under the terrorism provisions and therefore s
58(12) exceptions are not apply to her. Sub sections 6, 8 and 8(A) of the Act refer some
grounds for delaying the legal representation. But in the given scenario there are no clear
grounds which cover under the aforesaid sections. Same time the reason given to her by the
police was consulting a solicitor will delay the interview and it is not a ground of exempt the
s58 (1) requirement. According to above discussion it is very clear that Fays right has infringed
by breaching the s58 (1).
S78 of PACE states that the court can exclude evidence proposed by the prosecution in a
proceeding if they seem unfair. The section further enunciates that the court can emphasize
the circumstances, in which the evidence was obtained, when consider their admissibility.

b) Consider the admissibility of Fay's admissions to the probation officer;

c) Consider the admissibility of Fays statement, which was sent accidentally to the prosecution.
There are two kinds of legal professional privilege; legal advice and litigation. (Murphy et
al., 497) Police and Criminal Evidence Act 1984 states the meaning of items subject to legal
privilege (S10). Legal advice privilege refers the communications between a professional
legal adviser and his client or any person representing his client made in connection with the
giving of legal advice to the client (S10 (1) (a)). Litigation privileges cover such
communications in connection with or in contemplation of legal proceedings (S10 (1) (b)).
According to the S10 (1) (c), the items enclosed with or referred to in such
communications, are covered under the above provision.
It is very clear that the section cover the communication between the parties. In the given
scenario Fay sent the statement that she produced to her solicitors. The intention of such procedure
can consider as communication between the client and lawyer. Therefore it comes under the ambit of
the section.
Fay will seek to exclude this evidence along with the statement that she produced and sent to her
solicitors, which her solicitors sent mistakenly to the prosecution. Fay claims that the statement is
protected by legal professional privilege. The prosecution wishes to rely on it at the trial
because it contains certain damaging admissions.
According to the S 10(2) items held with the intention of furthering a criminal purpose are
not items subject to legal privilege. But in the above scenario such intention is not admitted
and therefore does not lose the privilege under the section.

The Queen v Cox and Railton (1884) 14 Q.B.D. 153

3. Consider the admissibility of the evidence of both Dr Williams and Mr Taswir.

Admitting opinion evidences is an exception to the general rule. (Keane et al., 524) General
rule is the opinions, beliefs and inferences of witnesses are inadmissible. (Murphy et al., 389)
However there are exceptions to this general rule. According to those a qualified expert
opinion or a non-expert opinion (only in certain occasions) can be admitted. (Keane et al.,
524)
In the above scenario Dr Williams may fall under the category of expert.
Mr Taswir who is a retired police officer is a non expert. In Silverlock case (The Queen v
Silverlock [1894] 2 Q.B. 766) a solicitor who was not a professional expert, but had
experiences through substantial study to handwriting permitted to give evidences in order to
recognize handwriting. In another case Fryer non-expert opinions have been admitted to
prove the publication of a libellous pamphlet (Fryer v Gathercole (1849) 18 LJ Ex 389). In
Beckett (R v Beckett (1913) 8 Cr App R 204) and Davies (R v Davies [1962] 3 All ER 97)
also at was stated that non-expert evidences are admissible. In above cases though they were

non-experts had load of experiences in fields where they were called upon to express their
opinions. Mr Taswir also has long and extensive experience working in a police drugs squad.
So his opinion can be admitted as an opinion of a non-expert who has noteworthy experiences
regarding dealing in drugs.
In the Abadom case (R. v. Abadom [1983] 1 W.L.R. 126) an expert rely on statistical evidences
compiled by other expert which were not published. According to general rule such evidences
must be categorised under hearsay evidences and are inadmissible before courts. But court
allowed the admissibility by stating that it is a part of their function to be aware of the work of
others in his field and hence, he was entitled to employ such knowledge gathered by the
others. In the above scenario Mr Taswir rely on unpublished internal Police Force articles to
substantiate his opinion. According to above case it was clear that Mr Taswir has no obstacle to
rely on such material as they are related to his subject.

BIBLIOGRAPHY
1. Keane, A., Griffiths, J., and McKeown, P. (2010) The modern law of evidence,
Oxford: Oxford University Press.
2. Murphy, P. and Grover, R. (2011) Murphy on evidence, Oxford: Oxford University
Press