A more recent version of these Burden Of Proof notes – written by Oxford students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our Criminal Procedure and Evidence Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
BURDEN OF PROOF "Legal Burden" = party who has this burden must prove their case to the standard stipulated by law. In criminal cases, the legal burden normally rests with the Crown who must prove guilt beyond reasonable doubt. "Evidential Burden" = not really a burden at all, it is discharged by raising an issue as to the matter in question to be considered - discharged by evidence short of proof.
- Basically by discharging this burden the judge will not dispose of an issue without leaving it to the jury to decide upon.
- Cicarelli: fanciful/speculative evidence does not discharge the evidential burden "Tactical/Provisional Burden" = strategic, essentially the best thing to do when A has satisfied the evidential burden, because if B does not adduce evidence in rebuttal then the court can find against him on that issue.
- Most clear in cases in which presumptions of fact operate
- E.g. Handling stolen goods, needs stolen goods + D handled them + requisite MR. Common law rule exists that where P shows D recently handed the stolen goods the jury can presume guilty knowledge and convict. o D isn't under a burden to prove an absence of guilty knowledge but can be said to have a provisional burden in that he runs the risk of a presumption being made against him if he doesn't call evidence.
Prosecution's Legal Burden in Criminal Cases Principle of criminal law is that the accused is initially presumed innocent and it is for the prosecution to prove guilt beyond reasonable doubt.
- Woolmington v DPP: for the P to prove all elements of the crime and to negative any defence raised by the accused. Rationale
? Fitzjames Stephen: "society...is so much stronger than the individual, and is capable of inflicting so very much more harm on the individual than the individual as a rule can inflict upon society, that it can afford to be generous".
? Wrongful conviction risk = legitimises the crim justice system to have a heavy burden.
? Inequality in resources
? Enhances gravity/moral force of criminal offences.
CASES IN WHICH THE DEFENDANT BEARS THE BURDENPretty rare on the face of it, but Ashworth and Blake study in 1996 noted all indictable offences in which at some point the legislature put the burden on D, discovering D could bear the burden in 40% of indictable offences. o 'golden thread' of criminal law not as strong as it appears.
Level of onus on the defendant = balance of probabilities (Carr-Briant). Instances in which D bears the burden
? Insanity defence - M'Naghten's case: advisory opinions set out that where D raises insanity defence it is for him to establish on the balance of probabilities that at the time of the offence he was labouring under such a defect of reason, from disease of mind, as not to know the nature or quality of his act of, If he did know it, not to know what he was doing was wrong
? Statutory reversal o Homicide Act 1973 s2(3) = for the defence to prove diminished responsibility o PACE s74 = evidence of previous convictions - person presumed to have committed the offence unless contrary is proven. o Terrorism Act 2006 s1 = defence to encouraging terrorism
? Implied statutory reversal o Hunt - HL held statutory exceptions to the general rule can be implied. o Summary offences - Magistrates' Courts Act 1980 s.101: "Where the D relies for his defence on any exception, exemption, proviso, excuse or qualification...the burden of proving that defence shall be on him".
? Edwards, Lawton LJ explained this rule as applying to offences under statute where the act is prohibited subject to particular circumstances/people of certain classes or qualifications /permission
? If court finds statute does prohibit certain acts subject to some exceptions then: o No need for prosecution to prove prima facie case of lack of excuse/qualification/etc o Onus shifts to D to prove they were entitled to do the act.
? Gatland v MPC: G charged with depositing hopper on highway "without lawful authority" ? burden on G to establish lawful authority.
? Nimmo v Alexander Cowan: Lord Pearson said you need to construe each statute individually. Some are easy to detect (e.g. exception =
'except', proviso = 'provided that', then excuses bear no set formula, things like licences. o Has been accepted that 101 applies to indictable offences at common law
? Hunt: HL said the wording of the statute would show what Parliament intended but that other considerations must also be taken into account before the burden is reversed. o Concerned possession of morphine contrary to Misuse of Drugs Act 1971, Act only criminalised morphine prep of over 0.2%
o HL found no reversal of burden - if the statute is unclear courts should be slow to infer reversal, and should keep policy considerations in mind. Here, the offence was serious and D would not necessarily have scientific equipment to analyse the substance himself. Said you must distinguish between exceptions etc and essential ingredients of the offence. o Court took into account the location of the provision in the legislation and the form of the provision. If those were not conclusive said to look at the mischief at which the Act was aimed, practical considerations on achieving the burden and the seriousness of the offence.
? Critics of Hunt have agued that ease of proof should not be a criterion for the allocation of the burden - violates the spirit of the Woolmington rule. Also, Lord Templeman in Hunt seemed to think the Woolmington
?principle was not relevant to the issue - thought to be surprising. In SL offences we assume MR and then look for rebuttal in the legislation, so here we should presume burden on pros and look for rebuttal. This would place emphasis in the right places. Cf. w/ Clarke where the burden was put on D to prove he was qualified to provide immigration service - difficult to prove for P, but not onerous for D. Also, R v Halton Mag Court: offence to fell without a licence, held that an exception was created and D had the burden of showing he had a licence. This was b/c the structure of the statute was clearly to criminalise acts subject to exemptions or exceptions and it would be hard here for P to negative all possibilities of licence.
*** USE MCA 1980 for summary offences and then Hunt and Edwards for indictable ones. All have to be under statute ***,
"Balance of probabilities" - JSB formula that D must show 'that it is probably, which means more likely than not' "Beyond reasonable doubt" is more difficult o Trial judge generally avoids using the expression, instructing juries that they must be 'sure' that D is guilt, and if they are not then they must find him not guilty. o Still open to judge to use the phrase beyond reasonable doubt. There have been accepted formulae in explaining it if the judge chooses to:
? Walters: PC approved direction that invited jurors to equate a finding of reasonable doubt with one such as might influence them in dealing with matters of importance in their own affairs.
? Gray: CA disapproved of trial judge saying reasonable doubt was the sort of doubt that might affect you in the conduct of your everyday affairs.
Evidential Burden Burden to adduce sufficient evidence to put a matter in issue.?
For the prosecution, there is an obligation to establish a prima facie case. o Galbraith: if D makes submission of no case to answer, in order to decide whether to direct acquittal the judge must look at the evidence, and taking it at its highest, decide that no properly directed jury could reasonably acquit. D will have evidential burden when he invokes a defence o E.g. by pleading alibi - must give sufficient evidence that judge is obliged to leave the issue to a jury. o Gill: make the defence 'a live issue' + then judge is obliged to leave it to the jury. o Jayasena: D discharges evidential burden if there is evidence of a reasonable possibility of the existence of the relevant defence (mere speculative possibility not enough).
o Seen in statutory defence of loss of self-control: states that 'sufficient
evidence' must be raised of the defence, defined in s.54(6) as evidence upon which the jury could reasonably conclude the defence might apply.
? Hui Maiou: not sufficient evidence so judge didn't leave provocation to the jury.
Judge's Invisible Burden Sometimes evidence emerges suggesting defence which the defence has not actually put forward. Has been said that the judge has an 'invisible burden' to place such issues before the jury.??
Conviction quashed in Calvert because there was possibility of honest mistaken believe and the judge did not put it to the jury = duty to put every possible conclusion to them based on the evidence, even if not canvassed by either side. Coutts: HL said this duty existed in all circumstances. o Here, prosecution and defence had decided not to put manslaughter to the jury even though the testimony of D pointed towards it. Defence was acting for tactical reasons. o HL said the outcome shouldn't depend on the strategies of either side. The range of verdicts shape the deliberations, so the judge's duty to put it forward applied.
? Based on the decision being affected by the choices available - Lord Bingham
? Lord Hutton: "the interests of justice require...that the jury should be able to reach a sound conclusion on the facts in the light of a complete understanding of the law applicable to them". Though note sometimes might be prejudicial: (1) parties conducted submissions in particular way, or (2) alternative verdict might be so trivial that it would not mislead the jury & public interest wouldn't suffer in D not being convicted. Qualified Coutts in Foster (Practice Note): judge not automatically required to leave alternative verdict to a jury if it wouldn't properly reflect the facts of the case, when judged realistically, or when it does not do justice to the gravity of the case. o Need to examine all the evidence.
*** ASK Whether a reasonably alert and knowledgeable judge would identify it ***.
Burden of proof in establishing the admissibility of evidence?
Burden of establishing admissibility generally w/ the party seeking to adduce the evidence Except o PACE s76 - prosecution must establish admissibility of a confession BRD if the admissibility is contested by the accused or court. o YJCEA 1999 s54(2) - when required a party calling a witness must satisfy the court on the BOP that its witness is competent.
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