Burden and standard of proof Flashcards
The legal burden is…
The requirement on the prosecution to prove the defendant’s guilt.
The evidential burden is…
The requirement to adduce sufficient evidence to validly raise a question/doubt.
The burden of proof is…
The legal obligation to satisfy the factfinder of certain facts being true.
Reverse burdens can occur in three situations…
The defence of insanity
On an express assertion by statute
On an implied assertion by statute under s101 MCA 1980
The case of Edwards said that…
Reverse burdens can be implied by statute in trials on indictment as well as summary trials.
The case of Hunt said that…
Where there is doubt as to what Parliament intended, consider the mischief the legislation was designed to prevent, practical considerations and ease of proof to determine whether or not there should be a reverse burden.
What are the three steps to consider in a burden of proof problem question?
- The exception (insanity/implied/express)
- Is the reverse burden compatible with Art.6 ECHR presumption of innocence? Salabiaku says that reverse burdens are permitted by ECHR.
- Lambert test of objective justification (legitimate aim of law and proportionality (ease of proof, peculiar knowledge, classification of offences and penalties).
If the burden on the defence is proportionate, then…
They must prove the point on the balance of probabilities.
If the burden on the defence is disproportionate, then…
The legislation will be ‘read down’ (Keogh) to make it an evidential burden so that the defence only has to raise a question of a defence, which is for the prosecution to disprove.
What is the criminal standard of proof?
Beyond reasonable doubt.
What is the civil standard of proof?
On the balance of probabilities.
