11 Burden and Standard of Proof

Question 1

What are the two principle kinds of Burden?

Answer 1

Legal Burden and Evidential Burden

Question 2

What is Legal Burden?

Answer 2

Burden of proof imposed on a party to prove a fact or facts in issue

Question 3

What is Evidential Burden?

Answer 3

Burden of adducing sufficient evidence to satisfy the issue

Question 4

Who decides whether or not a party has discharged a legal burden?

Answer 4

Tribunal of Fact

Question 5

Name two ways an issue can be withdrawn?

Answer 5

1. No sufficient evidence to justify a jury concluding that the defence is established
2. Judge takes view that evidence is unlikely to be sufficient

Question 6

What is the General Rule of Burden of Proof?

Answer 6

Prosecution bear the Legal burden of proving all the elements in the offence is necessary to establish guilt

Question 7

What are the Statutory exceptions to the General Rule of Burden of Proof?

Answer 7

1. Insanity
2. Express Statutory Exceptions
3. Implied Statutory Expressions

Question 8

Why are there Statutory exceptions to the General Rule of Burden of Proof?

Answer 8

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

Question 9

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?

Answer 9

True

False, the legal burden in relation to other issues remains on the prosecution.

Question 10

What are Implied/Expressed Statutory Exceptions?

Answer 10

Statute can place the legal burden of proof on the accused, not only expressly but also by implication.

Question 11

Why is the Human Rights Act 1988 important in Burden and Standard of Proof?

Answer 11

Because the ECHR Article 6 provides that anyone charged with a criminal offence is innocent until proven guilty

Question 12

Who bears the burden and standard of proof for insanity ?

Answer 12

Where accused bears legal burden of proving insanity = also bears evidential burden in that regard

Question 13

What is the Legal Burden standard of proof for the Prosecution?

Answer 13

Beyond a Reasonable doubt

Question 14

What is the standard of proof for the Defence?

Answer 14

Balance of Probabilities

Question 15

What happens to the burden of proof when there is a Defence? (murder/assault/ABH/GBH)

Answer 15

The accused now bears the evidential burden

Question 16

What happens if accused discharges evidential burden?

Answer 16

Prosecution bear the legal burden to disprove the defence

Question 17

What happens where a defence arises from the evidence?

True or False: The accused must also raise the defence or it does not count

Answer 17

Judge leaves it to Jury whether or not it has been raised by the accused

False ^

Question 18

How can the court ensure the jury knows the standard of proof?

Answer 18

Duty of Judge in summing-up to make clear to jury what standard of proof the prosecution is required to meet

Question 19

to enforce the Overriding Objective, what must the jury be before returning the verdict?

Under what circumstances?

Answer 19

Sure

Both: if accused guilty or innocent

Question 20

What happens if Prosecution bear evidential burden and adduce sufficient evidence for it?

Answer 20

If believed and left un-contradicted = could be accepted by the jury as proof

Question 21

What happens if Prosecution bears both burdens on an issue and discharges only the evidential burden?

Answer 21

Issue will go to Jury to decide if legal burden is also discharged

Question 22

True or False: if Prosecution bears both burdens on an issue and discharges the evidential burden, they succeed on the issue? Why?

Answer 22

False. Must also discharge the legal burden

Question 23

What happens if Prosecution bears both burdens on an issue and fails to discharges the evidential burden?

Answer 23

Judge will withdraw the burden from that issue

Question 24

True or False: if Prosecution bears both burdens on an issue and fails to discharges the evidential burden, they fail on the issue? Why?

Answer 24

False. Judge will withdraw the burden from that issue

Question 25

True or False: Defence can only prove on the balance of probabilities?

Answer 25

True

Question 26

What happens if Defence bears both burdens?

Answer 26

Evidential burden is discharged by adduction of such evidence that satisfy jury on the probability

Question 27

What happens if Defence bears evidential burden only?

Answer 27

Evidential burden is discharged by adduction of such evidence as might leave a jury in reasonable doubt (about Prosecution case)

Question 28

Who bears the evidential burden in proving self defence?

Answer 28

The defence

Question 29

TRUE OR FALSE: Where the defence carry the evidential burden in relation to a defence the prosecution still retain the legal burden?

Any exceptions?

Answer 29

TRUE

Insanity: Defence carry both the evidential and legal burden

Question 30

TRUE OR FALSE: A statute can place the legal burden on the defence expressly?

Answer 30

TRUE

Question 31

Which defences to murder impose on the defence both the evidential and legal burden?

Answer 31

Insanity

Diminished responsibility