Burden and standard of proof - Syallabus area 11

Question 1

what are the two principle kinds of burden?

Answer 1

the legal and evidential burden.

The legal burden is a burden of proof, i.e burden imposed on a party to prove facts or a fact in issue.
in some cases the legal burden in relation to some of the facts will be on one party, and the legal to another i.e If insanity is raised by the

Question 2

what is the legal burden on the prosecution and where necessary defence?

Answer 2

Prosecution: beyond reasonable doubt
defence: balance of probabilities

the question whether legal burden has been discharged is decided by the tribunal of fact. jury or magistrates, after evidence has been presented

Question 3

is the evidential burden a burden of proof?

Answer 3

no it is not. It is the burden of adducing evidence or ‘the duty of passing the judge’

it is the duty imposed on a party to adduce sufficient evidence on a fact or facts in issue to satisfy the judge that the issue should be left to be decided by the tribunal of fact

Question 4

in some cases the evidential burden will be on one party and the evidential on another. true or false?

Answer 4

true. such as in case of self-defence, defendant has evidential burden while the legal burden is on prosecution.

if there is no sufficient evidence before the jury to conclude that defence is established, the issue will be withdrawn from them. it will not amount to be a breach of ECHR article 6

Question 5

what happens when evidential burden on a particular issue is borne by the prosecution?

Answer 5

it is discharged by the addution of sufficient evidence to justify as a possibility a finding by the tribunal of fact that the legal issue has been discharged

Question 6

what happens when prosecution bears the legal and evidential burden?

Answer 6

If they discharge evidential burden, It does not mean they will succeed as it goes to the jury to decide. However, if they fail to discharge the evidential burden, they will fail on the issue as it will be withdrawn from jury. This may cause a submission of no case to answer

Question 7

if accused bears the evidential and legal burden, what happens?

Answer 7

In insanity evidential burden is discharged by adducing evidence to satisfy the jury on the balance of probabilities.

If they bear the evidential burden like self-defence, it is discharged by adducing evidence which might leave a jury in reasonable doubt.

Accused always bears burden on balance of probability

Question 8

3 exceptions to where prosecution bear legal burden of proving elements of the offence?

Answer 8

insanity
express statutory exceptions
implied statutory exceptions

Question 9

if the accused is charged with murder and raises insanity or diminished responsibility, what happens?

Answer 9

the court shall allow prosecution to adduce evidence to prove other issues.

if the accused alleges to be under a disability which makes them unfit to plead and stand on trial on indictment, the issue may be raised by prosecution or defence.

if prosecution contend the accused is under a disability and defence disputes it, the prosecution must prove it

if defence contend the disability and prosecution disputes it, defence proves it

Question 10

statute may cast on the accused the burden of proving certain issues. true or false?

Answer 10

True. the legal burden of the other issues will remain with prosecution

Question 11

if possession in a public place is proved, who bears the onus?

Answer 11

defence. if it involved an article not made for use for causing injury to the person, prosecution must prove it was carried with intention to cause injury

Question 12

any reverse onus is open to challenge on the basis of incompatibility with the ECHR, Art 6. true or false?

Answer 12

true. but it will not inevitably give rise to a finding of incompatibility - F3.18

Question 13

Who generally bears the legal and evidential burden?

Answer 13

prosecution

Question 14

where defence bears legal burden of proving insanity or by express or implied statutory exception, some other issue, they also bear evidential burden. True or false?

Answer 14

true

Question 15

in self-defence once there is sufficient evidence to leave the issue before the jury, prosecution bears the burden. true or false

Answer 15

true. the question where there is sufficient evidence to leave before the jury is a question for the trial judge to answer by applying common sense to the evidence. when there is sufficient evidence to raise a prima facie case, it is left to the jury

Question 16

the crown are not called upon to anticipate a defence of duress and disprove it in advance. true or false?

Answer 16

true. if it is placed before the court such material as makes duress a live issue, fit and proper to be left to the jury, the crown must disprove it in a manner to leave in the jury’s mind no reasonable doubt that the accused cannot be absolved on the grounds of the alleged compulsion

Question 17

it is the duty of the judge to give a direction in relation to an alibi if there is a danger of the jury thinking that an alibi because it is called a defence, raises some burden on the defence to establish it. true or false?

Answer 17

true

Question 18

for ill treatment or neglect of a person who lacks capacity, what is the prosecution standard of proof?

Answer 18

balance of probabilities F3.47

Question 19

It is the duty of the judge when summing up to make it clear to the jury the standard of proof that prosecution must meet. true or false?

Answer 19

true. there is no standard formula for this direction, but judges are required to adopt one.

the jury before they return a verdict must be sure that the accused is guilty. jury should be directed that beyond reasonable doubt is the same as being sure.

it is inadequate the jury decide who to believe. they must be sure of the guilt accused

Question 20

jury must be directed that when defence bears burden of proof it is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt. true or false?

Answer 20

true