Government Reports: Many government agencies produce evidence reports on various topics, such as healthcare, education, or criminal justice. These reports often present findings from research studies, evaluations, or data analysis.
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Introduction
Year after year, the core advice on exam success remains the same: the key to
examination achievement is to answer the examination questions as they are
actually posed. As stated in the 2017 Examiners’ report, one important aspect of
this in relation to essay questions is that they frequently have a descriptive element
and a prescriptive/evaluative element. The descriptive element asks for a correct
account of the law as it currently stands. This may not always be straightforward as
the law may adopt broad legal principles that are not borne out in actual practice as
shown in cases. Answers that engage with such subtleties will be rewarded with
higher marks. The prescriptive/evaluative element in a question often involves
asking students to offer a view assessing whether the current law is
adequate/satisfactory. This can also be found in problem questions tailed with
‘adding critical comment where you think the law is unsatisfactory’. Failing to
engage with such invitations to address with the prescriptive/evaluative element in
an essay question may be particularly costly in terms of marks. Answering this
aspect well involves identifying some standard, legislative aim, or risk against which
to measure the satisfactoriness of existing legal provisions.
A related limitation in answering the question posed occurs with problem
questions, including questions on judicial directions, where here the lack is the
failure to apply knowledge of law to the actual fact matrix in the question. Reciting
rules and case law irrelevant to the fact matrix in the question is pointless. Reciting
relevant rules and case law without applying them to the actual facts in the question
is only half an answer.
Again reiterating a familiar point: students should pay attention to the Pre-exam
updates, not only because mention of recent relevant cases (or new academic
articles) gains marks but because examiners also often frame examination
questions with an eye to such cases, although not necessarily in identical terms. It
can also be highly beneficial to read the University of London website blog posts.
In questions involving the Human Rights Act 1998, students should take care not to
confuse section 2 (on the need for the courts to ‘take into account’ judgments of the
European Court of Human Rights and related sources) and section 3 (on the
interpretive obligation of the courts to read and give effect to domestic legislation in
a way that is compatible with the rights contained in the European Convention on
Human Rights).
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Comments on specific questions
Question 1
‘The presumption of innocence is important but terrorism and drug dealing
are such serious current threats to the community, and pose such problems
of proof for the prosecution, that reverse burdens are justified. ’
Discuss with reference to case law.
General remarks
Answering this question successfully required focusing on two of the key factors
identified by the courts (and Dennis) as justifying reverse burdens and in turn
considering how they have in fact figured, in conjunction with other factors, in the
relevant case law.
Law cases, reports and other references the examiners would expect you to use
This question relates to Chapter 3 of the module guide. Key cases: Woolmington v
DPP [1935] AC 462 ; Salabiaku v France (1988) 13 EHRR 379; R v DPP ex p.
Kebilene [2000] 1 Cr App R 275; R v Lambert [2001] 3 All ER 577; R v Johnstone
[2003] UKHL 28; Sheldrake v DPP and AG’s Ref (No 4 of 2002) [2004] UKHL 43.
An understanding of s.3 of the Human Rights Act 1998, especially the possibility of
reading down a reverse legal burden to an evidential burden, is vital.
Dennis ‘Reverse onuses and the presumption of innocence: in search of principle’
(2005) Criminal Law Review 901.
Hamer ‘The presumption of innocence and reverse burdens: a balancing act’ (2007)
66(1) CLJ 142–71.
The Criminal Law Revision Committee, 11th Report (1972) might be referred to for
the view that the defence should only ever bear an evidential burden.
Common errors
Students too often characterised reverse burdens as complete abandonment of the
presumption of innocence. Also, many answers erroneously stated that reverse
burdens were always a violation of ECHR Article 6(2).
A good answer to this question would…
discuss the broad principles involved in determining the proportionality of reverse
burdens, mentioning at least some of the following: ‘balancing’ community interests
against individual rights (ideally with reference to Lord Hope’s speech in Kebilene);
Salabiaku v France on ‘reasonable limits’; Lord Hutton’s dissent in Lambert.
Good answers engaged with the decisions in the specific cases on drug dealing and
terrorism ; very good answers would explore why the cases seem to contradict the
claim in the question.
Poor answers to this question…
ignored the actual terms of the question and just gave a general recital of all the
factors considered by the courts in respect to reverse burdens.
Question 2
EITHER
a) ‘The threshold of impropriety for deciding whether there has been an
abuse of process, or whether evidence should be excluded, is
ambiguous and difficult to satisfy; it endangers the legitimacy of the
criminal justice system.’
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