11. Burden and standard of proof

Question 1

what is the legal burden?

Answer 1

burden of proving facts/facts in issue

Question 2

standard of legal burden?

Answer 2

prosecution - beyond reasonable doubt
defence - balance of probss

Question 3

who decides whether legal burden has been discharged?

Answer 3

jury or mags at end of trial after all evidence has been adduced

Question 4

what is an evidential burden?

Answer 4

burden of adducing sufficient evidence to show judge that issue can be left for tribunal of fact

Question 5

if evidential burden for an issue not satisfied what happens?

Answer 5

issue will be withdrawn from tribunal of fact

Question 5

who bears evidential burden?

Answer 5

party bearing legal burden often has evidential burden for that issue.

Question 6

if judge changes mind on leaving issue to jury they should…

Answer 6

inform defence so that they can make submissions or give more evidence on the matter

Question 7

sufficient evidence means?

Answer 7

such evidence as, if believed and if left uncontradicted and unexplained, could be accepted by the jury as proof

Question 8

accused evidential burden is discharged by?

Answer 8

evidence as might leave a jury in reasonable doubt

Question 9

general rule of who bears legal burden?

Answer 9

prosecution - burden of proving all elements of the offence to establish guilt

Question 10

what are the 3 exceptions to the general rule that pros bear burden of proof?

Answer 10

insanity
express statutory exceptions - lawful carrying of weapon, diminished responsibility
implied statutory exceptions

Question 11

balancing reversed legal burden and HRA 1998 consider….

Answer 11

circumstances of the case and strike a reasonable balance between the general interest of the community and the protection of the fundamental rights of the individual.

Question 12

evidential burden general rule?

Answer 12

whoever has legal burden also has evidential burden

Question 12

principles to be taken into account when deciding whether reverse burden is fair

Answer 12

• the opportunity given to D to rebut the presumption,
• maintenance of rights of the defence,
• flexibility in application of the presumption,
• retention by the court of a power to assess the evidence,
• the importance of what is at stake
• the difficulty which a prosecutor may face in the absence of a presumption

Question 13

evidential burden exceptions (defences)

Answer 13

where there are defences, ev burden is on defence, if Q put before jury - pros have legal burden to disprove defence

Question 14

examples of when the pros must disprove defences?

Answer 14

self-defence
duress
alibi

Question 15

when is the standard of proof balance of probs?

Answer 15

• when defence has burden or
• pros have to prove lack of capacity MCA 2005

Question 15

what does beyond reasonable doubt mean?

Answer 15

jury to be sure on all evidence.

Question 16

usual direction where legal burden is on the prosecution?

Answer 16

judge has duty to make it clear to the jury what standard of proof the pros are required to meet - usually jury must be sure he is guilty

Question 17

direction where burden on defence?

Answer 17

juey must be able to say it is more probable than not