Standard of Proof

Question 1

What are the standards of proof?

Answer 1

1) Proof beyond reasonable doubt

2) Proof on the balance of probabilities.

Question 2

Is there a third standard?

Answer 2

See Lennon v Co-operative Insurance Society 1986 SLT 98 “There is in my judgment a higher onus on the defenders where an allegation of wilful rife-raising is made. I am not able to state in words the extent of that onus, but it is enough that I consider that it is higher than on a balance of probabilities, somewhere half-way between that and beyond reasonable doubt.”.

Question 3

What is the standard of proof in criminal cases?

Answer 3

The Crown must prove the accused committed the offence beyond reasonable doubt.
⁃ A ‘reasonable doubt’ is something that would cause the jury in the course of their ordinary lives to pause before making a decision.

E.g. if in a criminal case the Crown must prove a certain case beyond reasonable doubt, enough evidence must be put forward before the jury/judge[ Depending on whether summary or solemn.] to satisfy that trier of fact that the crime was committed beyond reasonable doubt. But this standard does not apply to every single piece of evidence; it simply means that cumulatively the case itself has to be proved beyond reasonable doubt.]

Question 4

Irving v Ministry of Pensions 1945

Answer 4

The court held that the tribunal needed to be satisfied beyond reasonable doubt; in other words it must be a reasonable doubt, it must not be a strained or a fanciful acceptance of remote possibilities.

Question 5

In which instances is the burden of proof placed on the accused?

Answer 5

In some instances (covered earlier e.g. Sheldrake, Lambert) the persuasive burden of proof is placed on the accused. If there is a persuasive burden of proof on the accused then this must be displaced on the balance of probabilities.
⁃ Two examples of this - criminal responsibility of people with mental disorders and diminished responsibility both specify precisely that while the burden is borne by the accused, the burden of proof must be satisfied on the balance of probabilities (CP(S)A 1995 ss 51A, 51B)

Question 6

What is the burden of proof in civil actions?

Answer 6

The party on whom lies the persuasive burden (usually the pursuer) must discharge it by proof on the balance of probabilities.

Question 7

Wardlaw v Bonnington Castings 1956

Answer 7

pursuer suing employer. Held that the burden of proof was on the pursuer and this had to be discharged on the balance of probabilities.

Question 8

Watters v Masters Gold Club Ltd [2013]

Answer 8

a case where a party failed to discharge the burden of proof on the balance of probabilities

Question 9

What are statutory standards of proof?

Answer 9

In relation to civil matters there will often be a statutory articulation of the standard of proof as being on the balance of probabilities.

(i) proof of grounds of divorce: Divorce (Scotland) Act 1976, s 1(6); 4(1);
(ii) declarator of death: Presumption of Death (Scotland) Act 1977, s 2(1);
(iii) paternity: Law Reform (Parent and Child) (Scotland) Act 1986, s 5(4).

Question 10

What are the other cases and their burden of proof? [Learn this list and the cases as authority for the rules, but don’t learn the facts of the cases.]

Answer 10

In some circumstances the proof is not on the balance of probabilities in civil cases.

⁃ (i) breach of interdict: proof beyond reasonable doubt (Gribben v Gribben 1976 SLT 266);

⁃ (ii) failure to obtemper a decree ad factum praestandum: proof beyond reasonable doubt (Nelson v Nelson 1988 SCLR 663):

⁃ (iii) contravention of lawburrows: proof beyond reasonable doubt (Morrow v Neil 1975 SLT (Sh Ct) 65);

⁃ (iv) proceedings under the Taxes Management Act 1970: proof beyond reasonable doubt (Lord Advocate v Ruffle 1979 SC 371) but not as regards purely civil penalties (1st Indian Cavalry Club Ltd v Commissioners of Customs and Excise 1998 SC 126 (balance of probabilities) ;

⁃ (v) reduction of probative deed: proof beyond reasonable doubt (Anderson v Lambie 1954 SC(HL) 43, 62, 69);

⁃ (vi) rectification of defectively expressed deed: proof on balance of probabilities (Rehman v Ahmad 1993 SLT 741);

⁃ (vii) proof of crime in civil action: proof on balance of probabilities (Mullan v Anderson 1993 SLT 835);

⁃ (viii) ground of referral to children’s hearing under Children’s Hearings (Scotland) Act 2011. If ground is offence committed by the child (s 67), proof beyond reasonable doubt (s 102(3)); all other grounds (including offence committed by someone else) proof on balance of probabilities (Harris v F 1991 SLT 242)

⁃ (ix) breach of ECHR: proof on balance of probabilities (Napier v Scottish Ministers 2005 1 SC 307).