F3.7 Flashcards
Who bears the burden of proving negative averments?
The prosecution bear the burden of proving all the elements in the offence, even if this involves proving negative averments
e.g. that the complainant did not consent in cases of rape (Horn (1912) 7 Cr App R 200) and assault (Donovan [1934] 2 KB 498).
If capacity to consent is in issue, who will bear the burden of proof?
The prosecution will bear the burden of proving incapacity (A (G) [2014] EWCA Crim 299, [2014] 2 Cr App R 5 (73)).
What does Mandry [1973] 3 All ER 996 illustrate in terms of what is required of the prosecution when seeing to prove a negative?
[In this case, proving the falsity of statement made by street traders selling scent for £1 & stating ‘You can go down the road and buy it for two guineas in the big stores’].
That there is a limit to what can reasonably be required of the prosecution when seeking to prove a negative.
A constable gave evidence that he had visited four shops in the area and that the scent was not sold at any of them. In cross-examination, he admitted that he had not visited a well-known department store. The judge directed the jury that the police could not be expected to visit every shop in London in order to prove that the scent was not being sold for two guineas in any shop; and that if D knew of any shop where it could be bought at that price, they were perfectly entitled to adduce such evidence. COA held no criticism could be made of this direction.
In cases where there are difficulties of proving a negative proposition, what might statute do?
Statute may, exceptionally, require the accused to bear the burden of proving certain facts (see F3.9 to F3.17).
Statutory exceptions are sometimes referred to as reverse onus provisions.
What are the three categories of exception to the general rule as laid down in Woolmington v DPP [1935] AC 462?
(a) insanity;
(b) express statutory exceptions; and
(c) implied statutory exceptions.
