11: Burden of proof

Question 1

Legal burden =

Answer 1

obligation to prove fact in issue to standard of proof.

Question 2

Who has the legal burden?

Answer 2

Legal burden borne by prosecution, = beyond reasonable doubt.

Legal burden borne by defence, = balance of probabilities.

Gen rule = pros bears burden of proving every element of offence.

D NEVER bears heavier burden of proof. Question whether party discharged a legal burden decided = tribunal of fact.

Question 3

Two burdens:

Answer 3

1. Legal burden
2. Evidential burden

Question 4

What is the

Evidential burden?

Answer 4

obligation to point to sufficient evidence on facts in issue to satisfy judge such issue should be left before tribunal of fact.

It is NOT a BOP. Party with legal burden usually bears evidential. But some defences (self-defence) = evidential burden – D. But BOP (to disprove def) on pros. If sufficient evidence for def to put before jury, legal burden on pros even if evidence unlikely to be sufficiently cogent or strong to be accepted by jury.

Question 5

Is the evidencial burden a burden of proof?

Answer 5

NO

Question 6

What is the

Reverse burden?

Answer 6

legal burden on D to prove aspect of defence. This only applies for defence of insanity!

Question 7

Discharge of burdens by pros.

In context of:

evidential

legal burden

Answer 7

– evidential burden on pros = discharged by sufficient evidence to justify poss of tribunal of fact finding legal burden discharged. Just because pros discharged evidential burden, doesn’t mean they succeed in legal burden. BUT if pros fail to discharge evidential burden, they fail on legal burden because judge WILL withdraw issue from jury. Judge MAY raise Q. on sufficiency of evidence by pros.

Question 8

Discharge of burdens by defence.

In context of:

evidential

legal burden

Answer 8

Where D has legal + evidential burden (e.g. insanity), evidential burden discharge = adduction of evidence which might satisfy jury. If D bears evidential but NOT legal (e.g. self-defence), evidential burden discharged = adduction of evidence as “might leave jury in reasonable doubt”. D only needs to prove on balance of probabilities.

Question 9

LEGAL BURDEN

Gen rule:

Answer 9

pros bears legal burden of proving all elements necessary to establish guilty. Pros must also prove negative statements, e.g. that V did not consent.

Question 10

LEGAL BURDEN

Gen rule: pros bears legal burden of proving all elements necessary to establish guilty. Pros must also prove negative statements, e.g. that V did not consent. Three exceptions to general rule:

Answer 10

1. Insanity
2. Express statutory exceptions
3. Implied statutory exceptions

Statute may cast on D the burden on proving an issue. It an exception that pros must prove everything.

Question 11

Insanity legal burden?:

Who has it?

Answer 11

If D raises insanity def, he bears evidential + legal burden (on balance of probabilities).

Where D charged with murder and contents he was: insane or diminished responsibility, the court MUST allow pros to adduce evidence. If pros contend C under disability rendering him unfit to plead, BOP on pros to prove beyond reasonable doubt. If def contend this, burden = on balance of probabilities.

Question 12

Legal Burden + HRA- If a reverse burden infringed Art 6, it might be read down to impose an evidential, not legal burden. In deciding whether to “read down”:

FACTORS

Answer 12

1. Whether “compelling reason” for denying D norm standard of protection
2. Seriousness of punishment flowing convic
3. Extent + nature of factual matters + importance
4. Difficulty for D to prove: are matters within his knowledge; and
5. How pressing the social problem which legislation seeks to address
6. Is it fair to impose a BOP

Question 13

EXPRESS STATUTORY EXCEPTIONS:

Some statutes place legal burden on D = “reverse burden”. E.g.

Answer 13

s2 Homicide Act makes it a defence to murder for D to prove = suffering from abnormality of mind. Legal burden on D.

• Defence of diminished responsibility (reducing murder to manslaughter)

Question 14

READING DOWN

What is it?

and what are the examples?

Answer 14

If court thinks a reverse BOP would be incompatible with Art 6 ECHR, the court can lessen the obligation so only an evidential burden is imposed= Reading down statute.

E.G. Homicide Act – if judge has evidence of diminished responsibility but def don’t raise issue, judge = NOT bound to direct jury to consider, at most should draw def’s attention to this.

E.G2 – in offensive weapon, D must prove on balance of probabilities there was reasonable excuse for possession

EXAMPLES of common law:

1. Insanity
2. Loss of self-control
3. Alibi

Question 15

What is the general rule for self-defence?

Answer 15

Only sufficient evidence adduced = pros MUST disprove this beyond reasonable doubt. So can give evidence in chief to rebut suggestion.

Question 16

STANDARD OF PROOF =

What is it?

Answer 16

degree to which proof must be established by party bearing burden. Jury must be “sure” for pros. Def = balance of probs.

Question 17

What is the Usual direction where legal burden on pro =

Answer 17

In summing-up, judge MUST make clear to jury standard. NO particular formula – it is the effect. MUST be “SURE”. Judges don’t use “beyond reasonable doubt”. Where its used, jury MUST be directed that it’s the same as “sure”. Cannot be “sure” if possible D may not be guilty.

Question 18

What is the Direction where legal burden on def?

Answer 18

should be directed that burden is on balance of probabilities.

“Standard of proof” only relates to burden of proof, NOT evidential burden!!