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Burden And Standard Of Proof Notes

BPTC Law Notes > Criminal Evidence Notes

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Syllabus 11: Burden and Standard of Proof Burden of Proof Two types of burden: legal burden and evidential burden
- Though misleading to term evidential burden as a 'burden of proof' because:

* When borne by D, discharged by any evidence regardless of whether adduced by D or P

* Can be discharged by production of evidence that falls short of proof Questions of construction are questions of law in respect of which no burden lies on either party: Scott v Martin [1987] 2 All ER 813 A. Legal Burden Obligation imposed on a party by a rule of law to prove a fact in issue Standard of proof:
- Criminal proceedings: 'sure' (beyond reasonable doubt)
- Civil proceedings: balance of probabilities In civil cases, where judge finds it impossible to make a finding one way or the other on a fact in issue, it will fall to be decided by reference to which party bears the legal burden on the issue
- Stephens v Cannon [2005] Cr Rep 31, CA: situation has to be exceptional but can arise in relation to any issue; only entitled to such resort if it cannot reasonably make a finding Shifting of burden only on the operation of a rebuttable presumption of law
- Party relying on the presumption bears the burden of proving the primary fact
- Once he has adduced sufficient evidence on that fact, in the case of a 'persuasive' presumption, his adversary shall bear the legal burden of disproving the presumed fact

B.Evidential Burden Obligation to adduce sufficient evidence for the issue to go before the tribunal of fact Can be discharged by the production of evidence that falls short of proof: Jayasena v R [1970] AC 618, 624 (PC), per Lord Devlin
- Discharged when there is sufficient evidence to justify, as a possibility, a favourable finding by the tribunal of fact Does not follow that a discharge of evidential burden necessarily results in a discharge of the legal burden Evidential burden borne by accused may be discharged by any evidence in the case, whether given by accused, co-accused or prosecution If evidential burden is discharged by D, P will bear legal burden of disproving defence in question
- If judge indicates he will leave defence to jury but later changes his mind, he should inform D as they may wish to adduce more evidence to persuade the judge: Wright [1992] Crim LR 596

C. Incidence of Legal Burden Which party bears the legal burden is determined by the rules of substantive law set out in precedents and statutes Useful (but not always accurate) starting point: 'he who asserts must prove' (ei incumbit probatio qui dicit,non qui negat)

1. Criminal cases Legal burden of proving any fact essential to P's case rests upon P and remains with P throughout trial
- P also bears burden of proving negative averments (eg. lack of consent under rape ( Horn [1912]), incapacity where capacity to consent is in issue (A(G) [2014])) unless exceptions below arise Woolmington v DPP [1935] AC 462 (HL), per Lord Sankey LC: 'Throughout the web of English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner 's guilt...and no attempt to whittle it down can be entertained...' Three exceptions to the general rule:
- Where accused raises defence of insanity
- Where statute expressly places legal burden on D
- Where statute impliedly places legal burden on D
* Statutory exceptions are known as reverse onus provisions, and may contradict Art 6(2) ECHR (i) Defence of insanity M'Naghten's case (1843): where D raises insanity as a defence, he bears the legal burden of proving it
- For practical reasons: if P bears burden, D can refuse to cooperate with the investigation of his state of mind Where accused charged with murder raises either insanity or diminished responsibility, P may adduce evidence to prove the other of those issues (per Criminal Procedure (Insanity) Act 1964, s 6)
- P bears legal burden If D alleges to be under disability rendering him unfit to plead and stand trial, issue may be raised under s 4 of 1964 Act by either P or D
- If P, prove beyond reasonable doubt; if D, prove on balance of probabilities (ii) Express statutory exceptions Eg. Homicide Act 1957, s 2(2) places legal burden on D to establish statutory defence of diminished responsibility
- s 2(2) does not contravene Art 6: R v Lambert; R v Ali; and R v Jordan [2001] 2 WLR 211 (CA) (iii) Implied statutory exceptions Magistrates' Court Act 1980, s 101: where D relies for his defence on any exception, exemption, provision, excuse or qualification, he shall bear the burden of proving the exception etc.
- R v Hunt [1987] AC 352 (HL): s 101 is a codification of common law rule

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