Burden and Standard of Proof

Question 1

What are the evidential and legal burdens of proof?

Answer 1

The legal burden is the obligation of a party to prove a fact in issue.

The evidential burden is the obligation of a party to show that there is sufficient evidence to raise an issue.

In most cases, if the party bears the legal burden, they also have the evidential burden.

Question 2

Which party bears the legal burden in Criminal Cases?

Answer 2

The prosecution has the legal burden of proving guilt - both negative and positive assertions.

This was determined in Woolmington v DPP [1935] (see case list)

Question 3

How does claiming insantity change the legal burden of proof?

Answer 3

• Everybody is presumed to be sane unless the contrary is proved.
• The onus is on the defendant to prove that they are insane.
• At the time of the offence, he was labouring under such a defect of reason, from disease of mind, as not to know the nature and quality of his act.
• See M’Naghten’s Case (1843)

Question 4

What are statutory exceptions to the legal burden of proof?

Answer 4

Statutory exceptions are where Parliament expressly provides that the defence bears the legal burden of proving a fact in issue.

Question 5

How does claiming diminished responsibility reverse the legal burden and what statute is this found?

Answer 5

Section 2(2) of the Homicide Act:

On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder

This was mentioned in Wilcocks (2017).

Question 6

How does carrying an offensive weapon reverse the legal burden of proof, and in what legislation is this mentioned?

Answer 6

Section 139 Criminal Justice Act 1988:

(1) Subject to subsections (4) and (5) below, any person who has an article to which this section applies, with him in a public place shall be guilty of an offence.
(4) It shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article with him in a public place.

Question 7

How does cultivating Cannabis reverse the legal burden of proof and what statute is this expressed under?

Answer 7

Section 6 Misuse of Drugs Act 1971:

It is an offence to cultivate any plant under the genus Cannabis

S.28 (2) provides that it is a defence for the accused to prove that he neither knew nor suspected nor had reason to suspect the existence of some fact alleged by the prosectuion and which it is necessary for the prosecution to prove to secure the conviction.

Question 8

What are implied statutory exceptions?

Answer 8

Parliament impliedly provides that the defence bears the burden of proving a fact in issue.

They tend to be statutes creating offences subject to exceptions, provisos etc.

They often involve phrases like ‘…provided that…’ and ‘…other than…’

Question 9

What cases were there complications with the reversed legal burden?

Answer 9

Edwards 1975

Hunt 1987

Question 10

How does Article 6 of the European Convention of Human Rights interfere with the legal burden being placed on the defence?

Answer 10

Article 6(2) ECHR says that everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law.”

Question 11

What was Lord Hope’s solution to the breaching of Article 6, proposed in R v DPP ex p Kebilene [2000]?

Answer 11

Lord Hope said to ask 3 questions when considering Article 6(2):

1. What do the prosecution have to prove to transfer the onus to the defence?
2. Does the burden imposed on the defence relate to something which is difficult to prove?
3. What is the nature of the threat faced by society which the provision is designed to combat?

And what if it does create a reverse burden which breaches Art 6.

Question 12

What was suggested in Lambert if Article 6 is in breach by placing the legal burden on the defendant??

Answer 12

If in breach, then section 3 of the Human Rights Act is applied, downgrading the burden to an evidential one.

Diminished responsibility and insanity remain unchanged.

Question 13

On whom is the onus of the evidential burden placed?

Answer 13

Aside from when the legal burden gets downgraded to an evidential one, there are 2 categories where the defendant bears the evidential burden:

1. Presumptions
2. Defences:

• Self defence
• Loss of Self Control
• Drunkeness
• Non-insane automatism

Question 14

What is the Standard of Proof?

Answer 14

The Standard of Proof is the degree of cogency or persuasiveness required of the evidence adduced by a party in order to discharge a burden borne by him or her.

To determine whether a legal burden is discharged, there must be a standard against which the likelihood of his version being true can be assessed.

Question 15

What is the Standard of Proof in criminal cases, specifically for the Prosecution?

Answer 15

In criminal cases, the standard of proof depends on whom the burden rests:

Prosecution: beyond reasonable doubt [Woolmington v DPP].

Question 16

Which case defines Beyond Reasonable Doubt and is the accepted Authority?

Answer 16

Summers [1952] 1 All ER 1059

Question 17

What Standard of Proof is on the Defence when they bear the legal burden?

Answer 17

When the defence has the legal:

“It is less than that required at the hand of the prosecution…and the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called to establish”: Carr-Briant [1943]

It is a balance of probabilities, or, more likely than not.

Question 18

What is the standard of proof for evidential burdens?

Answer 18

The prosecution must adduce such evidence as would be sufficient to justify as a possibility a finding by the jury in their favour.

The defendant must adduce such evidence that induces a reasonable doubt in the mind of the jury as to whether his version might be not be true.