SA11 - Burden and Standard of Proof

Question 1

What are the two principal kinds of burden?

Answer 1

The legal burden, and the evidential burden.

Question 2

What is the legal burden?

Answer 2

The legal burden is a burden of proof, i.e. a burden imposed on a party to prove the facts in issue.

Question 3

What is the legal burden sometimes referred to as?

Answer 3

The legal burden is sometimes referred to as the persuasive burden or risk of non-persuasion.

Question 4

What is the general rule with regard to the legal burden?

Answer 4

The general rule is that the prosecution bear the legal burden of proving all elements of the offence necessary to establish guilt (including negatives).

Question 5

When might the prosecution have to prove a negative?

Answer 5

In a rape case, that the victim did not consent; absence of consent on a charge of assault; if capacity to consent is an issue, the prosecution will bear the burden of proving incapacity.

Question 6

Example of when the legal burden in relation to some facts will be on one party and in relation to other facts will be on another party

Answer 6

If insanity is raised by way of defence, the legal burden on that issue is on the defence, whereas the legal burden on the other facts in issue is on the prosecution.

Question 7

ECHR

Answer 7

Any statutory provision imposing a legal burden on the accused may be open to challenge on the basis of incompatibility with Art 6(2) ECHR (presumption of innocence). However, it will not inevitably give rise to a finding of incompatibility.

Question 8

How should the court determine whether a legal burden on the accused is incompatible with the ECHR? What is a drawback of this test?

Answer 8

The court should focus on the particular circumstances of the case and strike a reasonable balance between the general interest of the community and the protection of the fundamental rights of the individual. Such burdens should be kept within reasonable limits and should not be arbitrary. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case.

An obvious drawback to this test is that views may reasonably differ so that in many cases it will be as possible to reach a rational conclusion of compatibility as incompatibility.

Question 9

What is meant by standard of proof?

Answer 9

The standard of proof means the degree to which proof must be established by a party bearing a burden of proof.

Question 10

Standard of proof on prosecution vs on defence

Answer 10

If the legal burden is borne by the prosecution, the standard required is proof beyond reasonable doubt. If the legal burden is borne by the accused, the standard required is proof on the balance of probabilities; the accused never bears the heavier burden of proof beyond reasonable doubt.

Question 11

Who decides whether a party has discharged the legal burden?

Answer 11

The question whether a party has discharged a legal burden borne by him is decided by the tribunal of fact, whether jury or magistrates, at the end of the trial after all the evidence has been presented.

Question 12

What is the evidential burden?

Answer 12

The evidential burden is not a burden of proof but the burden of adducing evidence or ‘the duty of passing the judge’, in other words the burden imposed on a party to adduce sufficient evidence on a fact in issue to satisfy the judge that such issue should be left before the tribunal of fact.

Question 13

Who adduces the evidence to satisfy the evidential burden?

Answer 13

This evidence may be adduced by any party (i.e. if the defence have the evidential burden, they may adduce it or elicit it in cross examination, or it may be given by a prosecution witness giving his evidence in chief, and vice versa).

Question 14

What will normally be the case in terms of who bears the burdens?

Answer 14

It is very often the case that the same party bears both burdens.

Question 15

When will one party bear the evidential burden and the other the legal burden?

Answer 15

In the case of many defences (including self-defence) the evidential burden is on the defence and the legal burden is on the prosecution.

Question 16

If the defence bears the evidential but not the legal burden, how is the evidential burden discharged?

Answer 16

If the defence bears the evidential but not the legal burden on a particular issue, for example, self-defence, the evidential burden is discharged by the adduction of such evidence as might leave a jury in reasonable doubt.

Question 17

What happens if there is not sufficient evidence to justify a jury concluding that the defence is established?

Answer 17

The issue will be withdrawn from them (and will not amount to a breach of ECHR Art 6).

Question 18

What 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?

Answer 18

If there is sufficient evidence for an issue to be put before the jury, it will ‘pass the judge’, even if this is the case.

Question 19

If the prosecution bears the evidential burden, how is it discharged?

Answer 19

By the adduction of sufficient evidence to justify as a possibility a finding by the tribunal of fact that the legal burden on the same issue has been discharged, in other words such evidence as, if believed and if left uncontradicted and unexplained, could be accepted by the jury as proof.

Question 20

When are questions relating to the sufficiency of the evidence adduced by the prosecution raised?

Answer 20

Questions relating to the sufficiency of the evidence adduced by the prosecution may be raised by the judge of his own motion, but usually arise on a defence submission of no case to answer after the prosecution have closed their case.

Question 21

If the defence bears both the evidential and the legal burden, how is the evidential burden discharged?

Answer 21

By the adduction of such evidence as might satisfy the jury on the probability of that which the accused is called upon to establish.

Question 22

At which stage of the trial will a judge leave a defence to the jury?

Answer 22

Although normally a judge will not leave a particular defence to the jury until 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 his ruling is likely to be.

Question 23

What should happen if a judge during trial indicates that he will leave a particular defence to the jury but later changes his view.

Answer 23

He should inform the defence, because 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.

Question 24

Burdens in relation to questions of construction

Answer 24

Questions of construction are questions of law in relation to which no burden lies on either party.

Question 25

Limit as to what can reasonably be required of the prosecution when seeking to prove a negative

Answer 25

Case where an issue was whether D (street seller)’s statement that you could buy perfume for a higher price than he was selling it in a big department store was true.

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 constable could not be expected to visit every shop in London in order to prove that the scent was not being sold for the higher price in any shop; and that if the accused knew of any shop where it could be bought at that price, they were perfectly entitled to adduce such evidence.

Question 26

Scenarios where legal burden lies on the defence (what are these called, and some examples)

Answer 26

Reverse onus provisions; the accused must prove on the balance of probabilities.

• Insanity
• Express statutory exceptions e.g. diminished responsibility; offensive weapons; suicide pact
• Implied statutory exceptions

Question 27

‘Reading down’ of statutes

Answer 27

In appropriate circumstances, the words ‘to prove’ in a statute may be read down under HRA 1998 s.3 so as to impose on the accused no more than an evidential burden. The same applies in the case of ‘show’ (e.g. Explosive Substances Act), but only if synonymous with ‘prove’, which depends on the precise statutory context.

Question 28

Insanity and diminished responsibility as alternatives

Answer 28

If the accused runs insanity or diminished responsibility, the court will allow the prosecution to adduce evidence tending to prove the other of those contentions. The burden will be on the prosecution to prove the other one beyond reasonable doubt.

Question 29

Fitness to plead

Answer 29

If an accused is alleged to be under a disability rendering him unfit to plead and stand trial on indictment, the issue may be raised by either the prosecution or defence. If the prosecution contend that the accused is under such a disability and this is disputed by the defence, the burden of proof is on the prosecution to satisfy the court beyond reasonable doubt. If the defence contend that the accused is under such a disability, the burden is on the defence on a balance of probabilities.

Question 30

Deciding whether a defence should be raised

Answer 30

As a general rule, if a defence arises upon the evidence called by any party, then whether or not it has been mentioned by the defence, the judge must leave it to the jury

However, the statute leaves it to the defence to decide whether the issue of diminished responsibility should be raised. Therefore, if the judge detects evidence of diminished responsibility but the defence do not raise the issue, the judge is not bound to direct the jury to consider the matter but should, at most, in the absence of the jury draw the matter to the attention of the defence so that they may decide whether they wish the issue to be considered by the jury.

In rare and exceptional cases the judge may of his own motion raise the issue of insanity and leave it to the jury.

Question 31

Offensive weapons

Answer 31

In the case of an offensive weapon per se, the prosecution are not required to prove that the accused had it with him with the intention of using it to cause injury to the person; if possession in a public place is proved, the onus is on the accused to prove on a balance of probabilities lawful authority or reasonable excuse for the possession.

In the case of an article not made or adapted for use for causing injury to the person, the onus is on the prosecution to prove that the accused carried it with the intention of using it to injure; and if the jury are satisfied as to this, and the issue of lawful authority or reasonable excuse has been raised, the onus is on the accused to prove on a balance of probabilities such authority or excuse.

Question 32

Suicide pacts

Answer 32

Where it is shown that a person charged with the murder of another killed the other or was a party to his being killed, it shall be for the defence to prove that the person charged was acting in pursuance of a suicide pact between him and the other.

Question 33

Self-defence

Answer 33

Although the prosecution are not obliged to give evidence in chief to rebut a suggestion of self-defence before the issue is raised, once there is sufficient evidence to leave the issue before the jury, it is for the prosecution to disprove it beyond reasonable doubt.

Question 34

Self-defence and alibi

Answer 34

There may be evidence of self-defence even if the defence of the accused is one of alibi (i.e. prosecution witnesses might raise self-defence); when there was sufficient evidence to raise a prima facie case, the issue should be left to the jury.

Question 35

Self-defence and accident

Answer 35

Case where, in the particular circumstances of the case, it was extremely difficult to disentangle the defences of self-defence and accident and unwise to approach the facts as if they fell within mutually exclusive compartments, both defences should have been left to the jury.

Question 36

Duress

Answer 36

The prosecution do not have to anticipate a defence of duress and disprove it in advance, but if the accused places before the court such material as makes duress a live issue, fit and proper to be left to the jury, it is for the prosecution to disprove that defence in such a manner as to leave in the jury’s mind no reasonable doubt that the accused cannot be absolved on the grounds of the alleged compulsion.

Question 37

How should the judge direct the jury when alibi is raised?

Answer 37

Although there is no general rule of law that in every case where alibi is raised the judge must specifically direct the jury, quite apart from the general direction on burden and standard of proof, that it is for the prosecution to negative the alibi, it is the clear duty of the judge to give such a direction if there is a danger of the jury thinking that an alibi, because it is called a defence, raises some burden on the defence to establish it. It is a common and good practice to give such a specific and additional direction in any event, and ideally it should be given. A special direction is necessary if the nature of the alibi is that the accused was at a specific place elsewhere, raising the question why he did not call witnesses in support, but is unnecessary if the evidence amounts to little more than a denial that he committed the crime.

Question 38

What does standard of proof mean?

Answer 38

The standard of proof means the degree to which proof must be established by a party bearing a burden of proof.

Question 39

The standard of proof the prosecution must meet

Answer 39

The standard required of the prosecution before the tribunal of fact can find the accused guilty is proof such that the jury are sure of his guilt. This means that the jury must be sure on all the evidence and 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

Question 40

Exception to the standard of proof the prosecution must meet

Answer 40

In a prosecution under the Mental Capacity Act for ill-treatment or neglect of a person who lacks capacity, the prosecution must prove lack of capacity only on a balance of probabilities.

Question 41

Does the judge have to use particular words when making clear to the jury what standard of proof the prosecution have to meet?

Answer 41

It is not a matter of some precise formula or particular form of words being used; what matters is the effect of the summing-up. Although the law requires no particular formula, judges are wise, as a general rule, to adopt one.

Question 42

What if a judge fails to give a direction?

Answer 42

If a judge fails to give a direction, it is no answer that jurors know about ‘beyond reasonable doubt’ or that the standard was stressed by the advocates in their speeches.

Question 43

New vs old words used to direct jury about prosecution standard of proof

Answer 43

The time-honoured formula is that the jury must be satisfied beyond reasonable doubt, but the favoured phrase now is that before the jury can return a verdict of guilty, they must be sure that the accused is guilty. This direction is designed to avoid the difficulties juries encounter with the concept of beyond reasonable doubt.

Question 44

What if the phrase beyond reasonable doubt is used at trial?

Answer 44

When the phrase beyond reasonable doubt has been used in the trial, e.g., by counsel in their speeches, the jury should be directed that it is the same as being sure.

Question 45

It is axiomatic that a jury cannot be ‘sure’ of guilt if…

Answer 45

…if there is a possibility that the accused may not be guilty.

Question 46

Care to be taken in cases which turn on whether the accused or the complainant is telling the truth and sex abuse cases

Answer 46

In cases which turn on whether the accused or the complainant is telling the truth, it is important for the judge not to give the impression that the jury simply have to decide who to believe; the jury must be told that, in order to convict, they must be sure that the complainant was telling the truth. Similarly, in cases of historic allegations of sexual abuse, although delay creates difficulties for both the prosecution and the defence, it is inadequate to suggest to the jury that the disadvantages apply equally; the judge should emphasise that, if the defence may have been prejudiced, the jury should have regard to that fact when considering whether the prosecution had made them sure of the guilt of the accused .

Question 47

Judge’s direction to jury when legal burden is on the defence

Answer 47

The jury should be directed that … the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt, and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish

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.