Burden Of Propf In Criminal Cases

Question 1

Burden of proof is

Answer 1

The obligation of a party to produce evidence that will prove the claims they have made against the other party beyond reasonable doubt

Question 2

2 kinds of burdens

Answer 2

Persuasive/legal burden

• burden of satisfying court to appropriate standard of prove on particular issue. In criminal, beyond reasonable doubt in criminal

Evidential burden

• burden of offering enough evidence on issue to warrant court to consider it

Question 3

General rule

Answer 3

Crown bears both evidential and persuasive burden

This is due to presumption of innocence
(Mackenzie v HMA)

Must prove that a crime has been committed and that accused committed it

Question 4

4 exceptions to general rule

Answer 4

Special defences

Statutory exceptions

Doctrine of recent possession

Facts peculiarly within knowledge of accused

Question 5

Special defences

Answer 5

Insanity and diminished responsibility - both burdens on accused to rebut presumption of sanity

S51 A and B CP(S)Act 1995

Alibi and self defence place evidential burden on accused but persuasive remains with crown
- (Lambie v HMA)

Question 6

Statutory exceptions reverse onus of proof

Answer 6

Typically require accused to show they had some lawful justification for doing what they did

RTA 1988 - offence to be in charge of vehicle when under influence, A bears burden off proving no likelyhood of driving

Impositioned of reverses burden been challenged under ECHR art 6

Sheldrake
Argued burden in RTA breached art.6

Held: risk of death, injury and damage to property made limitation on presumption of innocence justified. More approach for him to prove on B of Prob

Question 7

Facts peculiarly within knowledge of accused

Answer 7

Generally contrary to presumption of innocence to require an accused to prove innocent in face of merely primary facie evidence from crown

However, may be unwise for accused to remain silent in face of events which demand explanation

Can be said there arises a presumption of guilt where accused opts for silence and therefore does not raise any evidence to raise reasonable doubt

Where courts consider silence relates to facts PKA, there may be no protection for accused who offers no explanation

Question 8

HMA
V
Hardy

Answer 8

Facts within knowledge of accused

Accused charged with fraud after pretending to be husband of deceased so as to gain legal rights

Didn’t go to stand to give evidence of where they married etc

In absence of explanation where they are only one who can know truth, entitled to draw inference of guilt

Question 9

Fox
V
Patterson

Answer 9

Possession of recently stolen good will in the absence of innocent explanation, support inference that the possessor knew they were stolen

1. Stolen goods must be found in possession of accused
2. Interval between theft and discovery of good in possession must be short
3. Should be other incriminating circumstances over bare fact of possession

Question 10

HMA
V
Rolley

Answer 10

Where something belonging to accused is found at crime scene, accused bears burden of proving it was deposited there in Covent as the facts peculiarly within knowledge of accused

Accused plan prince found on furniture at scene of break in