Burden of Proof Criminal

Question 1

Burden and Standard of proof?

Answer 1

Usually given to same party, the crown. In which they must prove the

1) Commission of an offence
2) Accused committed it

It is for the crown to prove they did it, and the accused to prove they are innocent.

This is due to presumption of innocence
Mackenzie v HM Advocate - Fundamental tenet of our criminal procedure
ECHR Art 6

Must be beyond reasonable doubt

Question 2

Exceptions to the Crown having both burdens

Answer 2

Special Defences - Relate to assumption of sanity in law, as would be difficult to disprove them. Persuasive burden stays with the crown usually.

Can be statutory exceptions - - Sheldrake v DPP - Drink driving, held unfair to have burden on him, but not as only him would have known if likely to drive.

Adam v HMA - Owned dogs that got out of control, tried to change burden but wasn’t allowed

Question 3

Recent Possession burden

Answer 3

Fox v Paterson - If the shift is going to occur then

1) Stolen goods should be found in possession of the accused
2) Interval between the theft of the goods and their discovery in the accused’s possession should be short
3) There should be other criminative circumstances over and above the bare fact of possession

Question 4

Facts peculiarly within knowledge of accused

Answer 4

HM Advocate v Hardy - In absence of explanation by the accused then an inference of guilt can be made.

Mochan v Herron - Silence is a risk

Langan v HM Advocate - Fingerprint found in blood

Question 5

Standard of proof

Answer 5

Meaning of reasonable doubt:

It arises when doubt that would cause the juror to hesitates or pause in conduct of his own affairs.

MacDonald v HM Advocate - Stopping was a misdirection

A v HM Advocate - Reasonably sure is defective, but not overturned as also mentioned beyond reasonable doubt.

Exceptions - Statute balance of probabilities