F4.37 – The standard of proof required in criminal cases when the legal burden rests on the prosecution

Question 1

What does the standard of proof mean?

Answer 1

The degree to which proof must be established by a party bearing a burden of proof

Question 2

What is the standard required of the prosecution before the tribunal of fact can find the accused guilty?

Answer 2

Such that the jury are sure of the accused’s guilt.

Question 3

Which evidence must the jury be sure on?

Answer 3

All the evidence as a whole.

The requirement for the jury to be sure does not mean that a single item of evidence will not be admissible unless it is capable, by itself, of proving the case against the accused (Myers v R [2015] UKPC 40, [2016] AC 314 at [45]).

Question 4

In a prosecution under the Mental Capacity Act 2005, s. 44, for ill-treatment or neglect of a person who lacks capacity (see B2.178), what is the standard of proof required of the prosecution in relation to lack of capacity?

Answer 4

The prosecution must prove lack of capacity only on a balance of probabilities (s. 2(4) of the 2005 Act.

Hopkins [2011] EWCA Crim 1513; Dunn [2010] EWCA Crim 2935, [2011] 1 Cr App R 34 (425)).

Question 5

Where the legal burden on a particular issue is borne by the accused, what is the standard required of the defence before the tribunal of fact can find in favour of the accused on that issue?

Answer 5

Proof on a balance of probabilities.