A more recent version of these The Burden And Standard Of Proof notes – written by Oxford students – is available here.
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Supervision 4 - The Burden and Standard of Proof The burden of proof
? In criminal case, legal burden normally rests with the Crown. Who will have to prove the accused's guilt beyond reasonable doubt.
? In civil case, party bearing legal burden need only establish the case on a balance of probabilities (51%).
? Governing principle is that onus lies on prosecution to prove all elements of the offence (Woolmington).
? In civil proceedings where defendants rely on criminal defences, burden of proof is on defendant (Ashley).
? Exceptions to the general rule: o If accused raises insanity defence, it is for him to establish on a balance of probabilities the required elements (M'Naghten). o Statute may expressly place legal burden on defence.
? For example, defence of diminished responsibility. o Statute may impliedly cast burden on defence.
? Summary offences: "Where the defendant ... relies for his defence on any exception, exemption, proviso, excuse or qualification ... the burden of proving [that defence] ... shall be on him" (Magistrates Court Act 1980, s.101)
? Often down to the court to interpret the legislation.
? Policy factors need to be considered (Hunt). Reversed approach in Edwards whereby offences with an exception (as a defence) can justify reversal of burden. The evidential burden
? Evidential burden for prosecution involves establishing a prima facie case. o Use Galbraith test.
? Defence burden discharged by showing evidence that is beyond 'fanciful or speculative' (Ciccarelli). The tactical burden
? In Schama v Abramovich, held that if you are in possession of recently stolen property, jury can infer that D knew or believed that the property was stolen. o D can rebut the evidential burden by bringing some evidence to the contrary. If he does not do so, he is liable to be convicted. o It is about trying to avoid losing a case.
? Once defence have satisfied their evidential burden, prosecution have legal burden to disprove the defence. The judge's 'invisible burden'
? If there is evidence to support a defence, judge must be alert to place that defence before the jury (Calvert).
? But there may be some cases where it would undermine the fairness of the trial if an alternative verdict were left to the jury. o Test is what an ordinary, knowledgeable and alert trial judge would do (Coutts). Option should be left to jury even if counsel disagree. The standard of proof
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