Burdens of Proof

Question 1

Mackenzie v Hma

Answer 1

Presumption of innocence

Lord justice clerk Thomson

The presumption of innocence is a fundamental tent of our criminal procedure. It follows that the burden of proof rests with the crown

Question 2

Lambie v HMA

Answer 2

Evidential burden

Special defence places evidential burden on the accused

If doubt, accused acquitted

Question 3

Sheldrake v DPP

Answer 3

Evidential burden

Conditioned by his own knowledge… more appropriate for him to prove on balance of probabilities than for the crown

Question 4

Attorneys generals references (no 4 or 2002)

Answer 4

Terrorism Act 2000

Parliament intended to place persuasive burden. Infringes. Evidential only.

Question 5

R v Keogh

Answer 5

Evidential burden

Placing reverse burden of proof against art 6

Question 6

Mcilhargey v Herron

Answer 6

Burden to explain

Risk of adverse/unfavourable inferences being drawn

Question 7

HMA v Hardy

Answer 7

Burden to explain

Absence of an explanation entitled the jury to draw the inference of guilt

Silence—inference least favourable

Question 8

Cunningham v HMA

Answer 8

Burden to explain

No case to answer

Question 9

Raitt

Answer 9

Standard of proof

Balance of probabilities still imposes a significant burden contrary to presumption of innocence

Question 10

Tallis v HMA

Answer 10

Evidential burden on accused

any suggestion that the accused in these cases must in some way prove their innocence is flawed

Question 11

Milne v Townsend

Answer 11

When the truth is clear the question of who had the duty to make it clear becomes unimportant

Question 12

Dunn v Normand

Answer 12

Acceptable to direct jury that evidence may raise an inference
Of guilt

Question 13

McLean v clamming

Answer 13

Court frown upon presumption of guilt