11. Burden and standard of proof. Incidence of the burden of proof and exceptions Flashcards
Incidence of Legal Burden: General Rule
The general rule is that the prosecution bear the legal burden of proving all the elements in the offence necessary to establish guilt.
In Woolmington, D was charged with the murder of his wife, who had left him to return to her mother. He visited her with a sawn-off shot gun concealed under his coat, and when they met she was killed by a shot from the gun. D said that while attempting to induce his wife to return to him by threatening to kill himself, the gun went off accidentally. Swift J directed the jury that, once it was proved that D shot his wife, D bore the burden of disproving malice aforethought. The House of Lords held this to be a misdirection.
But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence …
Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception … No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained … It is not the law of England to say, as was said in the summing-up in the present case: ‘if the Crown satisfy you that this woman died at the prisoner’s hands then he has to show that there are circumstances to be found in the evidence which has been given from the witness-box in this case which alleviate the crime so that it is only manslaughter or which excuse the homicide altogether by showing it was a pure accident’.
The prosecution bear the burden of proving all the elements in the offence, even if this involves proving negative averments. Thus, in a case of rape the prosecution bear the burden of proving that the complainant did not consent.
Similarly, the prosecution bear the burden of proving absence of consent on a charge of assault.
Furthermore, if capacity to consent is in issue, the prosecution will also bear the burden of proving incapacity.
For the former offence of obtaining by deception, the prosecution bore the burden of proving the falsity of the statement, even if that involved proving a negative (Mandry in which the statement, made by street traders selling scent for £1, was ‘You can go down the road and buy it for two guineas in the big stores’).
Mandry also illustrates that there is a limit to what can reasonably be required of the prosecution when seeking to prove a negative. A constable gave evidence that he had visited four shops in the area and that the scent was not sold at any of them. In cross-examination, he admitted that he had not visited a well-known department store. The judge directed the jury that the police could not be expected to visit every shop in London in order to prove that the scent was not being sold for two guineas in any shop; and that if D knew of any shop where it could be bought at that price, they were perfectly entitled to adduce such evidence. The Court of Appeal held that no criticism could be made of this direction. In many cases, however, because of the difficulties of proving a negative proposition, statute may, exceptionally, require the accused to bear the burden of proving certain facts.
There are only three categories of exception to the general rule as laid down in Woolmington v DPP:
(a) insanity;
(b) express statutory exceptions; and
(c) implied statutory exceptions.
Statutory exceptions are sometimes referred to as reverse onus provisions.
Exception in Case of Defence of Insanity
If the accused raises the defence of insanity, the accused will bear the burden of proving it (on a balance of probabilities).
Under the Criminal Procedure (Insanity) Act 1964, s. 6, if the accused is charged with murder and raises one of two issues, either insanity or diminished responsibility, the court shall allow the prosecution to adduce evidence tending to prove the other of those issues. The burden on the prosecution will be to prove the other of those issues beyond reasonable doubt.
Criminal Procedure (Insanity) Act 1964, s. 6
Where on a trial for murder the accused contends—
(a) that at the time of the alleged offence he was insane so as not to be responsible according to law for his actions; or
(b) that at that time he was suffering from such abnormality of mental functioning as is specified in subsection (1) of section 2 of the Homicide Act 1957 (diminished responsibility),
the court shall allow the prosecution to adduce or elicit evidence tending to prove the other of those contentions, and may give directions as to the stage of the proceedings at which the prosecution may adduce such evidence.
If an accused is alleged to be under a disability rendering the accused unfit to plead and stand trial on indictment, the issue may be raised by either the prosecution or defence.
If the prosecution contend that the accused is under such a disability and this is disputed by the defence, the burden of proof is on the prosecution to satisfy the court beyond reasonable doubt.
If the defence contend that the accused is under such a disability, the burden is on the defence on a balance of probabilities.
Express Statutory Exceptions
Statute may expressly cast on the accused the burden of proving a particular issue or issues. The legal burden in relation to all other issues in such cases will remain on the prosecution, in accordance with the general rule as laid down in Woolmington v DPP.
Prior to the coming into force of the HRA 1998, it could be said with confidence that statutory provisions which put on the accused an obligation to ‘prove’ a particular matter, had thereby cast a legal burden on the defence. However provisions of this kind and the decisions pertaining to them must now be read subject to the decision of the House of Lords in Lambert that in appropriate circumstances the words ‘to prove’ may be read down under the HRA 1998, s. 3, so as to impose on an accused no more than an evidential burden. The same applies in the case of ‘show’ (see, e.g., the defence in the Explosive Substances Act 1883, s. 4(1), and the commentary relating to its proof but only if that word is interpreted as synonymous with ‘prove’, which depends upon the precise statutory context.
Homicide Act 1957, s. 2
(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.
Where the defence of diminished responsibility is raised, the onus is on the defence to prove it on a balance of probabilities. Section 2(2) does not contravene the ECHR, Article 6(2), and should not be read down as imposing on the defence only an evidential burden
Section 2(2) leaves it to the defence to decide whether the issue of diminished responsibility should be raised; if, therefore, the judge detects evidence of diminished responsibility but the defence do not raise the issue, the judge is not bound to direct the jury to consider the matter, but, at most, should in the absence of the jury draw the matter to the attention of the defence so that they may decide whether they wish the issue to be considered by the jury.
Another example of an express statutory exception is the Prevention of Crime Act 1953, s. 1. In the case of an offensive weapon per se, the prosecution are not required to prove that the accused carried it with the intention of using it to cause injury to the person; if possession in a public place is proved, the onus is on the accused to prove on a balance of probabilities lawful authority or reasonable excuse for the possession. In the case of an article not made or adapted for use for causing injury to the person, the onus is on the prosecution to prove that the accused carried it with the intention of using it to injure; and if the jury are satisfied as to this, and the issue of lawful authority or reasonable excuse has been raised, the onus is on the accused to prove on a balance of probabilities such authority or excuse.
A final example is the Homicide Act 1957, s. 4(2) (‘Where it is shown that a person charged with the murder of another killed the other or was a party to his … being killed, it shall be for the defence to prove that the person charged was acting in pursuance of a suicide pact between him and the other’).
Incidence of the Legal Burden: the Human Rights Act 1998
Any reverse onus provision is open to challenge on the basis of incompatibility with the ECHR, Article 6(2), which provides that ‘everyone charged with a criminal offence shall be presumed innocent until proved guilty according to the law’. However, a reverse onus provision will not inevitably give rise to a finding of incompatibility.
It is now well settled that, in deciding the issue, the court should focus on the particular 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.
The relevant principles to be found in the jurisprudence of the ECtHR were summarised by Lord Bingham in Sheldrake v DPP:
The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the 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 and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case.
The obvious drawback to a test so reliant on notions of fairness, reasonableness and proportionality is that views may reasonably differ so that in many cases it will be as possible to reach a rational conclusion of compatibility as incompatibility. A good example, in this respect, is furnished by Keogh where the Court of Appeal, reversing the decision of Aikens J, held that the Official Secrets Act 1989, ss. 2(3) and 3(4), could be ‘read down’ so as to impose only an evidential burden on the accused, on the basis that a reverse burden was not a necessary element in the operation of ss. 2 and 3, it being ‘practicable’ to require the prosecution to prove that the accused knew or had reasonable cause to believe that the information disclosed related to such matters as ‘defence’, and that its disclosure would be damaging.
Incidence of the Evidential Burden: General Rule
Generally speaking, a party bearing the legal burden on a particular issue will also bear the evidential burden on that issue.
Thus, as a general rule, the prosecution bear both the legal and evidential burden in relation to all the elements in the offence necessary to establish guilt; and where the defence bear the legal burden of proving insanity or, by virtue of an express or implied statutory exception, some other issue, they will also bear the evidential burden in that regard (although, concerning insanity, in rare and exceptional cases the judge may of his or her own motion raise the issue and leave it to the jury.
In relation to numerous common-law and statutory defences, however, the evidential burden is on the defence, and, if it is discharged so that the defence in question is put before the jury, the legal burden is then on the prosecution to disprove such defence. Although it is said in these cases that the evidential burden is on the defence, that burden will be discharged whenever there is sufficient evidence in relation to the defence to leave it to the jury; the evidence may be adduced by the defence (or elicited by them in cross-examination), or it may be given by a prosecution witness (or a co-accused) giving evidence-in-chief or it may be given in any other way.
Where such a defence arises upon the evidence called by any party, then whether or not it has been mentioned by the defence, the judge must leave it to the jury.
If there is no evidence to support the defence upon which an accused seeks to rely, the judge is entitled to withdraw it from the jury.
However, in Watson where D was acquitted of rape, the defence being consent, but convicted of buggery, which he denied, an appeal against conviction was allowed on the grounds that the judge had omitted to direct the jury that accidental penetration would not suffice, notwithstanding that there was no evidence that the penetration, if it had occurred, was accidental. The defences to which the foregoing principles relate are as follows.
Self-defence
In Lobell D was convicted of wounding with intent to cause grievous bodily harm. There was some evidence to support his defence of self-defence. The trial judge directed the jury that it was for the defence to establish that plea to their satisfaction. The conviction was quashed on the grounds that this was a misdirection. Although the prosecution are not obliged to give evidence-in-chief to rebut a suggestion of self-defence before the issue is raised, once there is sufficient evidence to leave the issue before the jury, it is for the prosecution to disprove it beyond reasonable doubt.
There may be evidence of self-defence even if the defence of the accused is one of alibi.
In Bonnick a case of stabbing in which the defence was one of alibi, it was held, rejecting the contention that the evidence of the Crown witnesses had raised the issue of self-defence, that the question whether there was sufficient evidence to leave an issue before the jury was a question for the trial judge to answer by applying common sense to the evidence; but when there was sufficient evidence to raise a prima facie case, the issue should be left to the jury.
In Dickens it was held that since, in the particular circumstances of the case, it was extremely difficult to disentangle the defences of self-defence and accident and unwise to approach the facts as if they fell within mutually exclusive compartments, both defences should have been left to the jury.
Duress
The Crown are not called upon to anticipate a defence of duress and disprove it in advance, but if the accused places before the court such material as makes duress a live issue, fit and proper to be left to the jury, it is for the Crown to disprove that defence in such a manner as to leave in the jury’s mind no reasonable doubt that the accused cannot be absolved on the grounds of the alleged compulsion
Alibi
Although there is no general rule of law that in every case where alibi is raised the judge must specifically direct the jury, quite apart from the general direction on burden and standard of proof, that it is for the prosecution to negative the alibi, it is the clear duty of the judge to give such a direction if there is a danger of the jury thinking that an alibi, because it is called a defence, raises some burden on the defence to establish it.
It is a common and good practice to give such a specific and additional direction in any event and ideally it should be given.
In Mussell it was held that a special direction is necessary if the nature of the alibi is that the accused was at a specific place elsewhere, raising the question why the accused did not call witnesses in support, but is unnecessary if the evidence amounts to little more than a denial that the accused committed the crime.
