burden of proof

Question 1

brown v rolls Royce

Answer 1

persuasive legal burden is a burden on party to prove particular fact in issue
persuasive burden remain with the party they were imposed on
more than one legal burden proved in a case employee burden of proof if suing an employer. employee ultimately has legal burden

Question 2

Crawford v HM adv

Answer 2

evidential burden: burden on the party to adduce enough evidence to make some matter in fact in issue
L J Cooper
accused allaby not subject to legal burden but subject to evidential burden to justify the court in considering the evidence in the first place. alby must be persuaded beyond all reasonable doubt.
s.78 1995 act instruct a notice to the crown that the def will run an alby

Question 3

tactical burden

Answer 3

when one party has discharged an evidential burden other party needs to adduce contrary evidence.
A sue B a has a tactical burden to prove, if neg emerged on B then burden shift and B would have to show how it could be As fault.
one party tender all the evidence then the other tender all the evidence
crim crown will tender the def if it feels it needs to
not got a formal burdern of proof
fact finder will at the end of the case have both sides discharged
lecturer: NO TACTICAL BURDEN IF ONE SIDE LEADS THEN THE OTHER

Question 4

persuasive burdens CIVIL actions

Answer 4

depends on written pleadings. pursuer must prove ALL essential facts not admitted by def with burden on the def to prove anything additional:
s.51A/B1995 act for persuasive burden an accused must prove mental disorder/ diminished resp

Question 5

(persuasive) burden CIVIL

Answer 5

A.Generally on a party who makes a +ve averment
B.unless stat assign burden s.24(4) unfair contract terms 1977 for the party contending unfair contract.
C.stat prov which confers a right subject to qual. of who has burden = factories act s.29(1) 1961 as reasonably practicable be provided a safe means of work (employer has to prove that they have a safe place of work as far as is reasonably practible)

Question 6

Nimmo v Alexander Cowan &sons

Answer 6

HL split 3/2 worker right of action had to prove work place unsafe. if discharge burden employer had to show it was as safe as reasonably practible

Question 7

Lennie v HM adv

Answer 7

old law insisted that accused had allaby they had to prove it. NOW crown have to prove all aspects AGAINST the accused

Question 8

s. 51A(4)

S.51B(4)

Answer 8

A)disorder balance of probs
dimished resp balance of probs
B)the burden of proof is on the def to prove the special def are applicable

Question 9

Lambie v HM Adv

Answer 9

evidential but not persuasive on the accused. Most special defences proved = factor that they take into account in relation to their guilt only defence is accused has to prove is insanity

Question 10

irving v jessop

Answer 10

facts peculiarly within the knowledge of the accused. Ludicrous that the pros should have to prove whether the accused has licence
crown has a prima facie case only the accused can speak to certain matter failing to do so = strong INFERENCE of guilt

Question 11

King V LEES

Answer 11

V.IMPORTANT statutory burden on the accuse. statute allows for escape route for the accused. the accused must prove that they have access to the escape route accused mused must demonstrate they have a reasonable excuse. Schedule 3 para 16 1995 Act reverse burden of proof where a persuasive burden is imposed on the accused to establish a stat def the def can be proved on balance of probs and no need for COROB
same stand for special def. but COROB required
persuasive rather than evidential

Question 12

r v lambert

Answer 12

reverse burdens L. hope imposing burden on the accused does not conflict with ECHR.
drugs accused, in pos drugs. if they could show that they were unaware they were carrying the drugs they could impose a persuasive burden. supreme court READ DOWN stat to impose only an evidential burden on the accused
the accused can point to evidence that points to possibility. They might not know they were carrying drugs crown has to PROVE BEYOND ALL REASONABLE DOUBT to exclude that evidence
social objective is important persuade by the stat will be sufficient important be persuasive burden be imposed on accused.

Question 13

DPP V SHELDRAKE

Answer 13

art 6 fair trial subsidiary rights presumption of innocence imposing a legal burden on the accused = contrary to the presumption of innocence.
courts where possible to interpret provision to make them compatible with article 6
imposing s burden is contrary to presumption of innocence takes the view that it may interpret stat EVIDENTIAL burden only.

Question 14

Glancy v HMA

Answer 14

accused defence you have lawful authority for carrying a it (knife with no reasonable excuse)
Held accused that CLAIMS THAT THEY HAVE A DEFENCE HAS TO PROVE IT

Question 15

fox

Answer 15

accused found in recent possestion of stolen goods. provisional burden on them to prove that they are not guilty 3 circumstances must ALL concur for presumption of guilt to be applied
1. stolen goods found in pos of accused
2. interval between theft and discovery pos short
3. other criminitve circumstances
if above satisfied then burden of proof shifts to the accused to prove that they did not steal goods
v. thin line due to ECHR presumption of innocence

Question 16

Macdonald v HMA

Answer 16

accused prove innonce. appeal accused prove how they came to be in pos of the goods. depends on the items and how fast they can be shifted/ disposed.
avoid use of SUSPICIOUS must be CRIMINITVE circumstances.
A. if stolen goods found in possession of accused AND
B. interval was short between theft and pos AND
C. in Crim circumstances