The Burden And Standard Of Proof Notes

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:

  • If accused raises insanity defence, it is for him to establish on a balance of probabilities the required elements (M’Naghten).

  • Statute may expressly place legal burden on defence.

    • For example, defence of diminished responsibility.

  • 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.

  • 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.

  • 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.

  • 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.

  • 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

• If a case involves a jury, neither the expression ‘beyond reasonable doubt’ nor ‘balance of probabilities’ ought to be employed in any judicial instructions.

• Recommended formula for ‘balance of probabilities’ is to say that D must show that it is ‘probable’ which means more likely than not.

• For ‘beyond reasonable doubt’, judge often advised to instruct jury that they must be ‘sure’ that D is guilty.

  • In Walters, PC approved direction that invited jurors to equate reasonable doubt with one such as might influence them in dealing with important matters in their own affairs.

• Legal burden for defence is balance of probabilities (Carr-Briant).

Admissibility of evidence

• Generally, if prosecution seek to have evidence admitted the admissibility of which turns on any issue of fact, it will have to establish any such matter to the criminal standard of proof.

• But PACE, s.78 allows a judge to exclude otherwise admissible evidence.

Reversal of the burden of proof

• Duff and Roberts argue why prosecution bear legal standard of proof (lecture).

• Common law rule that an accused must prove defence of insanity held not to contravene Article 6(2) in H v UK.

• Salabiaku v France made clear that not all...

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