A more recent version of these Burden And Standard Of Proof notes – written by City Law School students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our Criminal Evidence Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
BURDEN & STANDARD OF PROOF 2 principal burdens
1. Legal burden - obligation on a party to prove the fact-in-issue
Whether discharged - Question for tribunal of fact
2. Evidential burden - obligation to adduce sufficient evidence to put a fact into issue.
Whether discharged - Question for tribunal of law
* will decide whether the amount and quality of evidence is sufficient to put the fact-inissue before the tribunal of fact.
"Burden" of proof - Which party must prove the fact-in-issue "Standard" of proof - Degree of cogency/persuasiveness required of the evidence in order to discharge the burden. Burden of Proof in Criminal Cases Rule: Prosecution bears the legal burden of proving all facts-in-issue to the standard: beyond all reasonable doubt (make sure)
Defence bears evidential burden of proving any defence (facts-in-issue (elements) of defence)
If Defence discharges this (ie. defence put before jury) - Prosecution has legal burden of disproving the defence beyond all reasonable doubt
Crown Court Bench Book - Direction on Standard of Proof "The prosecution proves its case if the jury, having considered all the evidence relevant to the charge they are considering, are sure that the defendant is guilty. Further explanation is unwise. If the jury are not sure they must find the defendant not guilty." Burden of Proving Preliminary Facts Where the admissibility of evidence (eg. confession) depends on certain facts - generally party seeking to admit the evidence has the burden of proof in accordance with the standard imposed by the rule of evidence. s76(2) PACE - Prosecution must prove confession was obtained without oppression beyond all reasonable doubt s76A PACE - Defendant, who wishes to adduce Co-Defendant's confession - prove obtained without oppression on balance of probabilities Burden of Proof on Defendant Evidential Burden Obligation to adduce sufficient evidence:
to create possibility of Jury finding the particular fact(s), if left uncontradicted, or
to induce reasonable doubt in the mind of the jury as to whether the facts put forward might
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