Burden and Standard of Proof Flashcards
What is the legal burden?
The burden placed on a party to adduce sufficient evidence to prove a fact in issue - to the appropriate standard to satisfy the jury
What is the evidential burden?
Burden resting on a party to adduce sufficient evidence to make the issue ‘live’ i.e. worthy of consideration
Who bears the legal burden in criminal cases?
Woolmington v DPP: Lord Sankey: golden thread speech - burden rests upon the prosecution to prove the prisoner’s guilt (exceptions: statutory and insanity)
Case which held that if the legal burden rests upon the defendant, the standard is that of the balance of probabilities
R v Carr-Briant
R v Edwards
Defendant bore the legal burden to prove he had a licence - as he was relying upon an exception
R v Hunt
Burden on the prosecution, as they were in a better position to discharge such a burden - Parliament does not presume a burden upon the defendant easily
What is the impact of the ECHR Act
Art 6(2): presumption of innocence
Are legal burdens compatible with the ECHR?
Salabiaku v France: this right is not an absolute right, so reverse burdens are not automatically incompatible - question of degree, provided the reverse burden is legitimate and proportionate
R v Lambert
smuggling cocaine, but argued he though he was smuggling diamonds - Lord Steyn: 3 stage approach:
Statutory interpretation - Parliament not presumed to impose a legal burden easily
Why was the burden placed? Pressing social need?
Is the burden proportionate.
Reasonable and proportionate response to the mischief.
L v DPP
Burden not disproportionate - burden on the defendant to show he had the knife for a lawful purpose
Johnstone
Selling counterfeit DVDs - burden on the defendant to show he did not know they were counterfeit - burden was legal - proportionate, because piracy is a pressing social problem - overall, whether fair and reasonable to impose
Sheldrake
Pressing social problem - legal burden, and even if it did contravene Art 6, it was directed towards a legitimate objective
What is the general rule for the legal burden in civil cases
He who asserts, must prove: Joseph Constantine Steamship.
Some exceptions, where it is easier for one party to prove the issue than the other: Levison v Patent Steam Carpet Cleaning
Soward v Leggatt: despite the words used