F3.3 Evidential Burden

Question 1

What is the evidential burden?

Answer 1

The burden of ADDUCING EVIDENCE or ‘the duty of passing the judge’.

i.e. the burden imposed on a party to adduce sufficient evidence on a fact or facts in issue to satisfy the judge that such issue or issues should be left before the tribunal of fact

Question 2

Is the evidential burden a burden of proof?

Answer 2

No

Question 3

Does the party that bears the legal burden on an issue also bear the evidential burden on that issue?

Answer 3

Very often the case.

Exception –many defences (inc e.g. self-defence). Evidential burden in relation to the defence is on the accused and the legal burden in relation to the defence is on the prosecution.

Question 4

What happens when there is no evidence sufficient to justify a jury concluding that the defence is established?

Answer 4

The issue will be withdrawn from them, and such withdrawal will not amount to a breach of the ECHR Article 6 (Bianco [2001] EWCA Crim 2516 at [15], approved in Batchelor [2013] EWCA Crim 2638).

Question 5

What happens when there is sufficient evidence for the defence to be put before the jury?

Answer 5

The legal burden of disproving it will be on the prosecution (see, e.g., Lobell [1957] 1 QB 547and see generally F3.37 to F3.46).

This will be the case even if the judge takes the view that the evidence is most unlikely to be of sufficient cogency or strength to be accepted by the jury (Hammond [2013] EWCA Crim 2709 at [6]).

Question 6

Normally, at what point in time will a judge leave a particular defence to the jury?

Answer 6

The conclusion of the evidence.

In rare cases in which the precise nature of the evidence to be called is clear it may be appropriate for the judge to indicate at an earlier stage what the ruling is likely to be (Pommell [1995] 2 Cr App R 607 at p. 612).

Question 7

What should be done if a judge indicates in trial that a particular defence will be left to the jury but later changes that view?

Why?

Answer 7

The judge should inform the defence.

They may then wish to give more evidence on the matter and the defence advocate may wish to seek to persuade the judge not to withdraw the issue (Wright [1992] Crim LR 596).