F3.2 Legal Burden

Question 1

(i) What is the legal burden sometimes referred to as?

(ii) why?

Answer 1

(i) the persuasive burden or the risk of non-persuasion.

(ii) these phrases indicate that the party bearing the legal burden on a fact in issue will lose on that issue if the burden is not discharged to the required standard of proof.

Question 2

What is the standard of proof required to discharge the legal burden borne by the prosecution?

Answer 2

Must be ‘sure’.

(Proof beyond a reasonable doubt (Woolmington v DPP [1935] AC 462 — see further F3.48)).

Question 3

What is the standard of proof required to discharge the legal burden borne by the accused?

Answer 3

Balance of probabilities (Carr-Briant [1943] KB 607)

Question 4

(i) Who decides whether a party has discharged a legal burden?

(ii) at what point?

Answer 4

(i) the tribunal of fact.

(ii) at the end of the trial after all the evidence has been presented.