F3.53 – the standard of proof required when the legal burden rests on the defence

Question 1

What is the standard of proof required where the legal burden of proving an issue is borne by the defence?

Answer 1

The balance of probabilities.

See, in the case of insanity, Sodeman v The King [1936] 2 All ER 1138; in the case of the Prevention of Crime Act 1953, s. 1, an express statutory exception, Brown (Daniel William) (1971) 55 Cr App R478; in the case of the Homicide Act 1957, s. 2(2), another express statutory exception, Dunbar [1958] 1 QB 1; and in the case of implied statutory exceptions under the MCA 1980, s. 101, Islington London Borough Council v Panico [1973] 3 All ER 485.

Question 2

What is the classic definition of proof on a ‘balance of probabilities’ given by Denning J in Miller v Minister of Pensions [1947] 2 All ER 372, at p. 374.

Answer 2

‘If the evidence is such that the tribunal can say: “We think it more probable than not”, the burden is discharged, but, if the probabilities are equal, it is not.’