F3.5 – Discharge of burdens borne by the defence

Question 1

If the accused bears both the evidential and the legal burden on a particular issue e.g. insanity, how is the evidential burden discharged?

Answer 1

By the adduction of such evidence as might satisfy the jury on the PROBABILITY of that which the accused is called upon to establish (Carr-Briant [1943] KB 607, per Humphreys J at p. 612).

Question 2

If the accused bears the evidential but not the legal burden on a particular issue e.g. self-defence, how is the evidential burden discharged?

Answer 2

By the adduction of such evidence as ‘might leave a jury in reasonable doubt’ (Bratty v A-G for Northern Ireland [1963] AC 386, per Lord Morris at p. 419).

Question 3

In which case is the accused called upon to prove a fact beyond reasonable doubt?

Answer 3

In NO case.

The standard of proof is on the balance of probabilities (Carr-Briant).