11 Burden and Standard of Proof Flashcards
What are the two principle kinds of Burden?
Legal Burden and Evidential Burden
What is Legal Burden?
Burden of proof imposed on a party to prove a fact or facts in issue
What is Evidential Burden?
Burden of adducing sufficient evidence to satisfy the issue
Who decides whether or not a party has discharged a legal burden?
Tribunal of Fact
Name two ways an issue can be withdrawn?
- No sufficient evidence to justify a jury concluding that the defence is established
- Judge takes view that evidence is unlikely to be sufficient
What is the General Rule of Burden of Proof?
Prosecution bear the Legal burden of proving all the elements in the offence is necessary to establish guilt
What are the Statutory exceptions to the General Rule of Burden of Proof?
- Insanity
- Express Statutory Exceptions
- Implied Statutory Expressions
Why are there Statutory exceptions to the General Rule of Burden of Proof?
In cases due to it being difficult for Prosecution to prove a negative, statute may exceptionally require the accused to bear the burden of proving certain facts
True or False: Statute may expressly cast on the accused the burden of proving a particular issue or issues?
True or False: This would then mean that the accused has to prove the Legal Burden of Proof on all issues? Why?
True
False, the legal burden in relation to other issues remains on the prosecution.
What are Implied/Expressed Statutory Exceptions?
Statute can place the legal burden of proof on the accused, not only expressly but also by implication.
Why is the Human Rights Act 1988 important in Burden and Standard of Proof?
Because the ECHR Article 6 provides that anyone charged with a criminal offence is innocent until proven guilty
Who bears the burden and standard of proof for insanity ?
Where accused bears legal burden of proving insanity = also bears evidential burden in that regard
What is the Legal Burden standard of proof for the Prosecution?
Beyond a Reasonable doubt
What is the standard of proof for the Defence?
Balance of Probabilities
What happens to the burden of proof when there is a Defence? (murder/assault/ABH/GBH)
The accused now bears the evidential burden
What happens if accused discharges evidential burden?
Prosecution bear the legal burden to disprove the defence
What happens where a defence arises from the evidence?
True or False: The accused must also raise the defence or it does not count
Judge leaves it to Jury whether or not it has been raised by the accused
False ^
How can the court ensure the jury knows the standard of proof?
Duty of Judge in summing-up to make clear to jury what standard of proof the prosecution is required to meet
to enforce the Overriding Objective, what must the jury be before returning the verdict?
Under what circumstances?
Sure
Both: if accused guilty or innocent
What happens if Prosecution bear evidential burden and adduce sufficient evidence for it?
If believed and left un-contradicted = could be accepted by the jury as proof
What happens if Prosecution bears both burdens on an issue and discharges only the evidential burden?
Issue will go to Jury to decide if legal burden is also discharged
True or False: if Prosecution bears both burdens on an issue and discharges the evidential burden, they succeed on the issue? Why?
False. Must also discharge the legal burden
What happens if Prosecution bears both burdens on an issue and fails to discharges the evidential burden?
Judge will withdraw the burden from that issue
True or False: if Prosecution bears both burdens on an issue and fails to discharges the evidential burden, they fail on the issue? Why?
False. Judge will withdraw the burden from that issue
