11. Burden and standard of proof. Standard of proof when the legal burden rests on the defence Flashcards
Direction where Legal Burden on Defence
In the exceptional cases in which the legal burden of proving an issue is borne by the defence it is discharged by proof on a balance of probabilities.
In Carr-Briant D, who was convicted of an offence under the Prevention of Corruption Acts 1906 and 1916 (now repealed), was considered at that time to bear the legal burden of proving that money given or lent to an employee of a government department was not paid or given corruptly. The trial judge directed the jury that the burden on D was as heavy as that normally resting on the prosecution. Humphreys J, quashing the conviction, said that ‘the jury should be directed that … the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt, and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish’.
The classic definition of proof on a ‘balance of probabilities’ is that of Denning J in Miller v Minister of Pensions ‘If the evidence is such that the tribunal can say: “We think it more probable than not”, the burden is discharged, but, if the probabilities are equal, it is not.’
