Burden and Standard of Proof Flashcards
What are the two types of burden?
Legal (of proof) and evidential (provide enough evidence to prove it an issue of fact)
What is the burden of proof when borne by the prosecution?
Beyond a reasonable doubt
What is the burden of proof when borne by the defence?
On a balance of probabilities.
Accused NEVER has to prove beyond a reasonable doubt.
What is always grounds for challenging an accused’s burden of proof?
Article 6(2) ECHR - right to a fair trial.
What is the evidential burden?
to provide enough evidence on fact/s in issue to satisfy the judge that the matter should be left to the jury.
What is the most common allocation of legal and evidential burdens?
Frequently, e.g. in self-defence trials, defence bear evidential burden and legal burden re defence is on the prosecution.
Bianco [2001]?
If there is not evidence to prove a legal defence such as self-defence, the choice of concluding such will be withdrawn from the jury - this is fair.
What happens if there is enough evidence to prove a legal defence?
Disproving the defence falls to the prosecution, and even if the judge thinks it is unlikely to succeed the matter can’t be withdrawn from the jury as it becomes a matter of fact.
What happens if the prosecution bear both the legal and evidential burden?
Where they satisfy evidential burden, the jury must still determine whether the legal burden was met.
What happens if prosecution bear legal and evidential burden but don’t satisfy evidential?
If the prosecution bear and fail to satisfy the evidential burden their case will fail as the issue will be withdrawn from the jury.
What happens if defence bear legal and evidential burden and satisfy the latter?
The matter goes to the jury who decide whether the legal burden is satisfied
What is an example of when the defence bears both burdens?
Insanity pleas
What is the standard of proof when the defence bear the evidential burden?
To create reasonable doubt
What is the standard of proof when the defence bear both legal and evidential burdens?
To prove on a balance of probabilities against prosecutions case
What is the general rule of legal burden?
Usually, the prosecution bear the legal burden of proving all elements in the offence necessary to establish guilt.
What is meant by proving all elements of an offence?
The prosecution must prove even negative elements e.g. that there was an absence of consent, incapacity or falsity of statements.
Mandry [1973]?
There is a limit of what can reasonable be required of prosecution when seeking to prove a narrative.
What are the 3 exceptions to the general rule that the prosecution prove elements of an offence?
(1) insanity (2) express statutory exceptions (3) implied statutory exceptions (i.e. reversed onus)
What is the insanity exception?
If the accused raises insanity defence they must prove it (on a balance of probabilities)
How does the burden of proof fall when an accused claims unfitness to plead?
If defence allege, they must prove disability on a balance of probabilities; if prosecution, beyond a reasonable doubt.
What are examples of express statutory exceptions where the accused assumes the burden of proof?
Defence must prove murder defences of diminished responsibility; carrying an offensive weapon with reasonable excuse;
Who raises the issue of diminished capacity in murder trials?
The defence, so even if the judge is aware of its applicability they aren’t bound to direct the jury about it.
Homicide Act 1957 s.2
The defence must prove no liability for murder - example of express statutory exception to burden of proof.
Prevention of Crime Act 1953 s. 1?
If prosecution prove possession of an offensive weapon in public, defence have the burden to prove reasonable excuse for this on balance of probability.
