Burden of Proof in Criminal cases Flashcards
in which circumstances is there a burden of proof on the accused in criminal cases? As usually it is on the Crown.
there is a burden of proof in insanity and diminished responsibility. seen in sections 51(A) and (B) of the Criminal Procedure Scotland Act 1995
HMA v Mitchell
what are the statutory exceptions for when the accused has the burden of proof in criminal cases?
for when someone has an offensive weapon in public to have a reasonable excuse to have one.
the misuse of drugs act and terrorism
facts within the knowledge of the accused.
this is where the accused is assumed to be guilty and so the burden of proof shifts to the accused to prove on evidence that this is not the case.
this is seen in HMA v Hardie- charged with fraud of being someone else, failed to say who was at his wedding
what is the standard of proof.
the measure of quality and quantity of evidence required to discharge the burden of proof. if reasonable doubt has been raised by the jury or the judge then this standard has not been obtained. SO BEYOND REASONABLE DOUBT. certainty may never be reached but must be very close to this.
sufficiency in criminal cases
the defence could say that there is no case to answer through there not being enough evidence after the prosecution have given their evidence. this is a question for the judge to answer.
insufficiency arguments usually come under lack of proof of sufficient elements and lack of corroberation
facta probanda- that the main issues of the crime being commited by the accused
the crime was actually commited.
caraway review- what was it about?
came from the Cadder case.
that corroboration should be abolished in a bill. passed without the provision of corroboration.
Bosomy review suggested other safeguards to be put into place and scottish government took a step back.
the crime was committed
what is a crucial fact?
so for example in rape that the penetration needs to be corroborated and lack of consent.
If a fact is not crucial then it can be proved by one witness alone. it is only the crucial facts which need to be corroborated.
seen in Yates v HM Advocate. - threatened her with a knife, held that use of knife was not crucial fact of rape and so could be proved by one witness.
the crime was committed by the accused
identification of the accused as the perpetrator of the crime must be established, must be corroborated and must be of sufficient quality. so for example DNA evidence that it was them or a witness with another witness.
