Adducing sufficient evidence to raise an issue

[Nicholas Bohm]

The RIP stuff on "adducing sufficient evidence" was an attempt to
express in statute the position that already exists at common law in
relation to defences.

Take self-defence as a defence to a charge of a crime involving the use
of force.  The burden of proving the charge is on the prosecution.  But
they do not have to prove in every case that the accused was not acting
in self-defence.  The issue may just not arise at all.  For example in a
case where a lone gunman in a tower shoots into a crowd of tourists, the
only issue may be whether the accused was in fact the gunman
(disregarding sanity issues).

How do you decide whether the issue arises?  It depends on whether
sufficient evidence is adduced to make it into an issue.  In the case of
a brawl in a pub, it surely takes no more than an assertion by the
accused to raise the issue and put the prosecution to the burden of
negativing it.  The lone gunman in the tower might have to do a little
more than say "They were trying to kill me."

What does it take to raise an issue about being in possession of a key?
 Not a lot, I suspect.  Probably just the evidence of the holder that he
doesn't have it.  It's difficult to see what other evidence there could
be, though a few messages saying "I'm sorry I can't read your message as
I've lost my key" might help.  If the evidence shows you used a key
yesterday, your claim to have forgotten it today might raise the issue
by amounting to sufficient evidence, but of course it may leave it
fairly easy to convince a jury you did have it unless you can explain
the disappearance.  "I saw the police on the doorstep so I swallowed the
rice-paper before they could serve the notice" might still get you home,
of course.  Better keep some rice-paper about, though.

I'm not sure why the CoP should deal with this - it's surely supposed to
say how the authorities will exercise their powers rather than how the
courts will decide the resulting cases.

Nicholas
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