11. Burden and standard of proof. Legal burden of truth and evidential burden

Question 1

Legal and Evidential Burdens

Answer 1

There are two principal kinds of burden, the legal burden and the evidential burden. The legal burden is a burden of proof, i.e. a burden imposed on a party to prove a fact or facts in issue.

In some cases the legal burden in relation to some of the facts in issue will be on one party, and the legal burden in relation to another (or others) will be on the other party. For example, if insanity is raised by way of defence, the legal burden on that issue is on the defence, whereas the legal burden on the other facts in issue is on the prosecution.

Any statutory provision imposing a legal burden on the accused may be open to challenge on the basis of incompatibility with Article 6(2) of the ECHR.

Questions of construction are questions of law in respect of which no burden lies on either party.

Question 2

Legal Burden

Answer 2

The legal burden is sometimes referred to as the persuasive burden or the risk of non-persuasion, phrases which indicate that a party bearing the legal burden on a fact in issue will lose on that issue if the burden is not discharged to the required standard of proof. The standard of proof required to discharge the legal burden varies according to whether the burden is borne by the prosecution or defence. If the legal burden is borne by the prosecution, the standard required is proof beyond reasonable doubt.

If the legal burden is borne by the accused, the standard required is proof on a balance of probabilities the accused never bears the heavier burden of proof beyond reasonable doubt.

The question whether a party has discharged a legal burden is decided by the tribunal of fact, whether jury or magistrates, at the end of the trial after all the evidence has been presented.

Question 3

Evidential Burden

Answer 3

The evidential burden is not a burden of proof but the burden of adducing evidence or ‘the duty of passing the judge’, in other words the burden imposed on a party to adduce sufficient evidence on a fact or facts in issue to satisfy the judge that such issue or issues should be left before the tribunal of fact. In some cases, the evidential burden on some of the facts in issue will be on one party and the evidential burden on another (or others) will be on the other party. Very often a party bearing the legal burden on an issue also bears the evidential burden on that issue. However, in the case of many defences (including, for example, self-defence), the evidential burden in relation to the defence is on the accused and the legal burden in relation to the defence is on the prosecution.

Thus, if there is no evidence sufficient to justify a jury concluding that the defence is established, the issue will be withdrawn from them, and such withdrawal will not amount to a breach of the ECHR, Article 6.

However, if there is sufficient evidence for the defence to be put before the jury, the legal burden of disproving it will be on the prosecution and this will be the case even if the judge takes the view that the evidence is most unlikely to be of sufficient cogency or strength to be accepted by the jury.

Although normally a judge will not leave a particular defence to the jury until the conclusion of the evidence, in rare cases in which the precise nature of the evidence to be called is clear it may be appropriate for the judge to indicate at an earlier stage what the ruling is likely to be.

If, during a trial, a judge indicates that a particular defence will be left to the jury, but later changes that view, the judge should inform the defence, because they may then wish to give more evidence on the matter and the defence advocate may wish to seek to persuade the judge not to withdraw the issue

Question 4

Discharge of Burdens Borne by the Prosecution

Answer 4

If the evidential burden on a particular issue is borne by the prosecution, it is discharged by the adduction of sufficient evidence to justify as a possibility a finding by the tribunal of fact that the legal burden on the same issue has been discharged, in other words ‘such evidence as, if believed and if left uncontradicted and unexplained, could be accepted by the jury as proof’.

If the prosecution bear both the evidential and legal burden on a particular issue and discharge the evidential burden, it does not necessarily follow that they will succeed on that issue — the issue in question will go before the jury for them to determine whether or not the legal burden has been discharged. However, if the prosecution bear both the legal and evidential burden on an issue and fail to discharge the evidential burden, they will necessarily fail on that issue, since the judge will withdraw that issue from the jury.

Questions relating to the sufficiency of the evidence adduced by the prosecution may be raised by the judge of his or her own motion, but usually arise on a defence submission of no case to answer after the prosecution have closed their case.

Question 5

Discharge of Burdens Borne by the Defence

Answer 5

If the accused bears both the evidential and the legal burden on a particular issue, for example, insanity, the evidential burden is discharged by the adduction of such evidence as might satisfy the jury on the probability of that which the accused is called upon to establish.

If the accused bears the evidential but not the legal burden on a particular issue, for example, self-defence, the evidential burden is discharged by the adduction of such evidence as ‘might leave a jury in reasonable doubt’.

In no case is the accused called upon to prove a fact beyond reasonable doubt: the standard of proof is proof on the balance of probabilities.