Burden and standard of proof

Question 1

Whom holds the burden of proof of Qs of construction?

Answer 1

Qs of construction are Qs of law - no burden lies on either party

Question 2

What’s legal burden?

Answer 2

burden imposed on party to prove fact(s) in issue

• If party fails to discharge burden to the required standard of proof, they lose on that fact in issue

Question 3

Who decided whether legal burden has been discharged?

Answer 3

Tribunal of fact (jury or mags) after all evidence has been presented

Question 4

What’s evidential burden? (Burden of adducing evidence)

Answer 4

Whether sufficient evidence on fact(s) in issue satisfy the judge that the issue should be left before the tribunal of fact

• Usually the party bearing legal burden on an issue also bears evidential burden

Question 5

What are the exceptions where the evidential burden must be displaced by the other party (the one not bearing the legal burden)?

Answer 5

For many defences (duress, self-defence etc) the evidential burden is on A and the legal burden on P (to disprove)

• If insufficient evidence adduced tho prove defence = it will be withdraw from jrut
• If sufficient evidence adduced = P has the legal burden to disprove beyond reasonable doubt
• Judge will normally wait until conclusion of evidence before leaving defence to jury (may make this indication earlier and may be persuaded (if she changes her views) to leave it to the jury where D wishes to give more evidence)

Question 6

Re: Discharge of burdens borne by D - What’s D standard of proof in relation to legal burden? And to the evidential burden?

Answer 6

Legal burden - on the balance of probabilities

Evidential burden depends on whether D bears legal burden or not:

D = evidential + legal (e.g. insanity/ DR) → sufficient evidence that might satisfy the jury on the PROBABILITY of what A wants to establish

D = evidential - legal (e.g. self-defence) → sufficient evidence as might leave a jury in reasonable doubt

Question 6

Re: Discharge of burdens borne by P - What’s the standard of proof in relation to legal burden? And to evidential burden?

Answer 6

Legal burden - beyond reasonable doubt

Evidential burden - sufficient evidence that could be accepted by jury was proof (most important)

Where P fails evidential burden = fails legal burden

Where P succeed on evidential burden = jury to decide if legal burden met

Question 6

Evidential burden depends on whether D bears legal burden or not. What are the options of discharge of evidential burden?

Answer 6

D = evidential + legal (e.g. insanity/ DR) → sufficient evidence that might satisfy the jury on the PROBABILITY of what A wants to establish

D = evidential - legal (e.g. self-defence) → sufficient evidence as might leave a jury in reasonable doubt

Question 7

What’s the general rule concerning the incidence of the burden of proof in criminal cases?

Answer 7

P bears burden of proving all elements of offence beyond reasonable doubt

Includes proving negatives:
1) absence of consent
2) lack of capacity to consent

• P is limited to what can be reasonably required to prove a negative

Question 8

When does D bears both legal and evidential burdens? As to what standard? (‘reverse onus provisions’)

Answer 8

D bears both legal and evidential burdens (On the Balance of Probabilities):

1) Insanity
- A charged with murder and contents insanity or DR = P can adduce evidence to prove the other (unpleaded defence BRD)

• A unfitness to plea may be raised by P/D:
  a) If P (& disputed by D) = BRD
  b) If D = OBP

2) Express statutory exceptions
a) Diminished Responsibility → D: Legal + evidential = OBP

b) P proves possession of offensive weapon in public, item not offensive (per se), and that A carried w/intent to use to injury:

i) D: Legal + evidential = OBP D carried w/ lawful authority/ reasonable excuse

NB: not offensive per se? p: burden of proving that A carried w/ intention

3) Suicide Pact → D: legal + evidential = OBP

Question 9

What’s the impact of the Human Rights Act 1998 in the Incidence of the legal burden?

Answer 9

The reverse onus provision open to challenge (right to a fair trial)

• Will not inevitable give rise to a finding of incompatibility

Why?
- Court must focus on particular circumstances of case and strike a reasonable balance between general interest of community & protection of fundamental rights of individual

Question 10

What’s the general rule within incidence of evidential burden?

Answer 10

Evidential burden follows legal burden

Question 11

What are the exceptions where evidential burden DOES NOT follow legal burden?

Answer 11

Offences that place evidential burden on D and legal burden on P to disprove BRD:

1) self-defence
2) duress
3) alibi (directions that burden is on P to disprove)

NB: evidential burden on D is discharged whenever sufficient evidence arrises ( may be during any stage like XiC, XX, P W etc)

• D discharges evidential burden = judge MUST leave to jury
• D does not adduce sufficient evidence = judge may withdraw from jury

Question 12

What are the judge direction where the legal burden is P?

Answer 12

“sure that A is guilty”

• if turns on whether someone’s telling the truth = jury must be SURE that A is telling the truth

Question 13

What are the judge direction where the legal burden is on D?

Answer 13

“more probable than not”

Question 14

Judge must make clear in summing-up to jury what standard of proof P is required to meet - is this statement true?

Answer 14

Yes

Question 15

Tina is charged with theft of a bass guitar. She admits she took the instrument but denies she intended to permanently deprive the owner of it.

In relation to the issue of intention to permanently deprive, where do the burdens fall?

Answer 15

This is the usual situation where P bears both evidential and legal burdens of proving everything,

Legal burden = beyond reasonable doubt
Evidential burden = suficient evidence

Question 16

David is charged w/ causing GBH w/ intent and claims NG by reason of insanity.

In relation to the issue of insanity, where do the burden fall?

Answer 16

Both burdens on the Defence

Legal burden = On the balance of Probabilities
Evidential burden = sufficient evidence

• A never has to prove anything to the criminal standard only to the civil standard

Question 17

David is charged w/ causing GBH w/ intent.

In relation to the elements of the offence charged, where do the burden fails?

Answer 17

P has to raise and prove all elements of the offence to the criminal standard

Evidential burden = sufficient evidence
Legal burden = Beyond reasonable doubt

Question 18

Jerry is charged w/ assault occasioning ABH. He claims that he acted in lawful self-defence when he was attacked.

In relation to the issue of self-defence, where to the burden fall?

Answer 18

A who wishes to defence of self-defence be left to the tribunal of fact must:

Evidential burden = D on ‘sufficient evidence’
Legal Burden = P on BRD

A does not has to prove that he acted in self-defence, just has to adduce sufficient evidence as to leave a jury in reasonable doubt