11. Burden and standard of proof. Standard of proof in criminal cases and when it rests on the prosecution Flashcards
Standard of Proof
General Rule
The standard of proof means the degree to which proof must be established by a party bearing a burden of proof. The standard required of the prosecution before the tribunal of fact can find the accused guilty is proof such that the jury are sure of the accused’s guilt.
This means that the jury must be sure on all the evidence and does not mean that a single item of evidence will not be admissible unless it is capable, by itself, of proving the case against the accused.
In a prosecution under the Mental Capacity Act 2005, s. 44, for ill-treatment or neglect of a person who lacks capacity the prosecution must prove lack of capacity only on a balance of probabilities.
Where the legal burden on a particular issue is borne by the accused, the standard required of the defence before the tribunal of fact can find in favour of the accused on that issue is proof on a balance of probabilities.
Usual Direction where Legal Burden on Prosecution
It is the duty of the judge in the summing-up to make it clear to the jury what standard of proof the prosecution are required to meet. It is not a matter of some precise formula or particular form of words being used; what matters is the effect of the summing-up.
If a judge fails to give a direction, it is no answer that jurors know about ‘beyond reasonable doubt’ or that the standard was stressed by the advocates in their speeches.
Although the law requires no particular formula, judges are wise, as a general rule, to adopt one. The time-honoured formula was that the jury must be satisfied beyond reasonable doubt a phrase approved by the House of Lords but the favoured phrase is that before the jury can return a verdict of guilty, they must be sure that the accused is guilty.
This direction is designed to avoid the difficulties juries encounter with the concept of beyond reasonable doubt.
In the normal case, the judge should not explain that ‘sure of guilt’ is the same as proof of guilt beyond reasonable doubt and not the same as absolute certainty. However, such an explanation will not make a conviction unsafe if the judge made it sufficiently clear that the jury had to be sure of guilt before they could convict.
Where the phrase beyond reasonable doubt has been used in the trial, e.g., by counsel in their speeches, the jury should be directed that it is the same as being sure.
It is axiomatic that a jury cannot be ‘sure’ of guilt if there is a possibility that the accused may not be guilty.
In cases which turn on whether the accused or the complainant is telling the truth, it is important for the judge not to give the impression that the jury simply have to decide who to believe; the jury must be told that, in order to convict, they must be sure that the complainant was telling the truth.
Similarly, in cases of historic allegations of sexual abuse, although delay creates difficulties for both the prosecution and the defence, it is inadequate to suggest to the jury that the disadvantages apply equally; the judge should emphasise that, if the defence may have been prejudiced, the jury should have regard to that fact when considering whether the prosecution had made them sure of the guilt of the accused
