27.1 Burden of Proof, Identification and Silence
Key Takeaways
- The prosecution usually bears the legal burden of proving guilt so that the court is sure; a few defences place a legal burden on the defendant on the balance of probabilities.
- A new alibi advanced at trial after a no-comment interview at which the defendant had access to legal advice is the classic section 34 situation.
- The right to silence survived the 1994 Act: an inference is permitted only in the defined statutory situations, and never as a substitute for a case to answer.
A competent newly qualified solicitor must decide, in real time, whether a piece of material can go before the magistrates or the jury and, if it can, on what terms. This independent OpenExamPrep chapter covers the remainder of the SRA SQE1 FLK2 Criminal Law and Practice topics on evidence, trial, sentencing, appeals, and youth court, for assessments from 1 September 2026. The court is not collecting every fact that exists. It is applying a set of inclusionary gateways and exclusionary duties so that the trial remains fair. Get the gateway wrong and a conviction can become unsafe; miss a mandatory exclusion and you have led a client into an unlawful trial.
Burden and standard of proof
The legal burden of proving guilt sits on the prosecution. The classic statement is that the defendant is presumed innocent until the prosecution makes the court sure of guilt: beyond reasonable doubt. That standard is not a mathematical percentage. Directions tell magistrates and juries that they must be sure; anything less is not enough.
Two further distinctions matter on FLK2 questions.
Evidential burden. Some issues do not arise unless there is enough evidence to put them in play. Self-defence, duress, alibi, and loss of control are typical. Once the issue is properly raised, the prosecution must disprove it so that the court is sure. The defendant does not have to prove the defence.
Reverse legal burdens. A small class of issues places a legal burden on the defendant, proved on the balance of probabilities. Insanity is the common law example. Statute can do the same, for example where the defendant must prove that a licence or other authority existed. Exam questions often tempt you to apply the criminal standard to a defence legal burden, or the civil standard to the prosecution case. Do neither.
| Issue | Who bears the legal burden | Standard |
|---|---|---|
| Elements of the offence | Prosecution | Sure / beyond reasonable doubt |
| Self-defence, duress, alibi once raised | Prosecution (to disprove) | Sure / beyond reasonable doubt |
| Insanity and some statutory exceptions | Defendant | Balance of probabilities |
| Oppression or unreliability of a confession once raised | Prosecution (to disprove) | Sure / beyond reasonable doubt |
| Disputed aggravating facts after a guilty plea | Prosecution | Sure / beyond reasonable doubt |
Visual identification and the Turnbull guidelines
Eyewitness identification is powerful and fragile. In R v Turnbull the Court of Appeal required a special warning whenever the prosecution case depends wholly or substantially on visual identification that the defence disputes. The judge (or the legal adviser in the magistrates' court) must tell the fact-finder of the special need for caution, explain that a convincing witness can still be wrong, and invite close attention to the quality of the identification.
Quality is assessed in a practical way: how long did the witness watch the person; at what distance; in what light; was anything obstructing the view; had the witness seen the person before; was there a particular reason to remember; how long elapsed before the witness identified the suspect; and are there material discrepancies between the first description and the person in the dock. A convenient memory aid is ADVOKATE (Amount of time, Distance, Visibility, Obstruction, Known or seen before, Any reason to remember, Time elapsed, Error or discrepancy). It is a teaching aid, not a statute.
If the quality is poor and there is no other supporting evidence, the case should be withdrawn from the jury. If the quality is good, the case may still go to the jury, but the warning remains. Supporting evidence can include a proper identification procedure under PACE Code D (video identification is the default), scientific evidence, or admissions. A dock identification with no prior Code D procedure is a classic section 78 fairness problem as well as a Turnbull problem.
Inferences from silence: Criminal Justice and Public Order Act 1994, sections 34 to 38
The right to silence survived 1994, but the court may, in defined situations, treat silence as something a jury or bench can take into account. None of these sections allows a conviction solely on an inference. Section 38 is the safeguard: there must be a case to answer on other evidence, and the inference is only part of the picture.
| Section | Situation | Typical FLK trap |
|---|---|---|
| 34 | Failure to mention, when questioned under caution or on charge, a fact later relied on in the defence that the defendant could reasonably have been expected to mention | No inference if the defendant was at an authorised place of detention and was not allowed an opportunity to consult a solicitor (s.34(2A)) |
| 35 | Failure to give evidence at trial, or refusal without good cause to answer a proper question | No inference if the defendant's physical or mental condition makes it undesirable to give evidence |
| 36 | Failure to account for an object, substance, or mark on the person, clothing, or in a place at the time of arrest | The officer must reasonably believe the item is attributable to participation and must tell the suspect so |
| 37 | Failure to account for presence at a place at or about the time of the offence | Same explanation-and-belief conditions as section 36 |
| 38 | Interpretation and savings | No conviction, sending, or case to answer based solely on the inference |
A prepared statement can reduce the sting of section 34 if it mentions the facts later relied on. A new alibi sprung at trial, after a no-comment interview with access to a solicitor, is the classic section 34 invitation. The jury is never told that silence equals guilt. They are told they may draw an inference that the new account is untrue, if they think it is fair to do so.
A pub fight is captured on grainy CCTV. A customer who saw the attacker for two seconds, from 25 metres, in poor light, picks the defendant out at a video identification procedure. There is no other supporting evidence. What should the defence submit?