11. Burden and standard of proof Flashcards
what is the legal burden?
burden of proving facts/facts in issue
standard of legal burden?
prosecution - beyond reasonable doubt
defence - balance of probss
who decides whether legal burden has been discharged?
jury or mags at end of trial after all evidence has been adduced
what is an evidential burden?
burden of adducing sufficient evidence to show judge that issue can be left for tribunal of fact
if evidential burden for an issue not satisfied what happens?
issue will be withdrawn from tribunal of fact
who bears evidential burden?
party bearing legal burden often has evidential burden for that issue.
if judge changes mind on leaving issue to jury they should…
inform defence so that they can make submissions or give more evidence on the matter
sufficient evidence means?
such evidence as, if believed and if left uncontradicted and unexplained, could be accepted by the jury as proof
accused evidential burden is discharged by?
evidence as might leave a jury in reasonable doubt
general rule of who bears legal burden?
prosecution - burden of proving all elements of the offence to establish guilt
what are the 3 exceptions to the general rule that pros bear burden of proof?
insanity
express statutory exceptions - lawful carrying of weapon, diminished responsibility
implied statutory exceptions
balancing reversed legal burden and HRA 1998 consider….
circumstances of the case and strike a reasonable balance between the general interest of the community and the protection of the fundamental rights of the individual.
evidential burden general rule?
whoever has legal burden also has evidential burden
principles to be taken into account when deciding whether reverse burden is fair
- the opportunity given to D to rebut the presumption,
- maintenance of rights of the defence,
- flexibility in application of the presumption,
- retention by the court of a power to assess the evidence,
- the importance of what is at stake
- the difficulty which a prosecutor may face in the absence of a presumption
evidential burden exceptions (defences)
where there are defences, ev burden is on defence, if Q put before jury - pros have legal burden to disprove defence
examples of when the pros must disprove defences?
self-defence
duress
alibi
when is the standard of proof balance of probs?
- when defence has burden or
- pros have to prove lack of capacity MCA 2005
what does beyond reasonable doubt mean?
jury to be sure on all evidence.
usual direction where legal burden is on the prosecution?
judge has duty to make it clear to the jury what standard of proof the pros are required to meet - usually jury must be sure he is guilty
direction where burden on defence?
juey must be able to say it is more probable than not
