SA11 The Burden and Standard of Proof Flashcards
What is the evidential burden?
The obligation to adduce sufficient evidence of a fact/facts in issue to satisfy the judge that the issue should be considered by the tribunal of fact.
What happens when the evidential burden is discharged?
The issue becomes ‘live’. Left to the tribunal of fact to determine.
What happens when the evidential burden is not discharged?
The issue must be withdrawn from the jury.
What is the legal burden?
Obligation to prove facts in issue to the appropriate standard of proof.
Burden of proof: what should the jury be told if an advocate refers to ‘beyond a reasonable doubt’.
That this means the same thing as ‘sure’.
In a criminal trial, who bears:
a) the evidential burden.
b) The legal burden.
Prosecution (both).
Who may raise a question as to the sufficiency of the prosecution’s evidence?
a) The judge of his own motion or
b) By the defence through an application to dismiss if evidence of an essential element of the case is missing.
Which evidential burdens are borne by the accused?
Many defences at common law e.g. self-defence.
What happens if the accused meets the evidential burden to a common-law defence?
The prosecution will bear the legal burden of disproving that defence.
What is the only common law legal burden borne by the accused?
a) The common law defence of insanity
b) Diminished responsibility under the Homicide Act 1957, s2(2).
Where D bears the legal burden, he also bears the evidential.
Standard = balance of probabilities.
What is an example of the statutory burden borne by the accused?
a) Diminished responsibility under the Homicide Act 1957, s2(2).
Where D bears the legal burden, he also bears the evidential.
Standard = balance of probabilities.
What happens where a reverse burden is found to be incompatible with Art 6 ECHR?
MUST be ‘read down’ – only evidential burden imposed on the accused.
In deciding whether to read down a statute, what does the court consider?
The courts try to strike a reasonable balance between the general interests of the community and the protection of individuals’ fundamental human rights.
Overriding concern is the trial should be fair.
- There must be a compelling reason for denying the accused the normal protection of the presumption of innocence.
- The courts should consider the seriousness of punishment that may flow from conviction.
- The courts should consider the nature and extent of the factual matters that the accused is required to prove and their importance relative to the matters that the prosecution must prove.
- Consideration should be given to how difficult it is for the accused to prove matters – are they readily within the accused’s knowledge?
- And finally, the courts should consider the particular social problem that the legislation is seeking to address.
