Burden (Onus of Proof)

Question 1

What is the general rule?

Answer 1

The general rule is that if the burden of proof lies on one party, and if he fails to lead evidence on this point, then he has failed to discharge the burden of proof and thus fails on the particular issue.

Question 2

What are the types of burden of proof?

Answer 2

1. **Persuasive (legal) burden
2. Evidential (provisional) burden
3. A tactical burden

Question 3

What is persuasive (legal) burden?

Answer 3

This is the burden on a party to prove a particular fact in issue. If the party has this burden of proof and fails to convince the court then they have failed to discharge the burden of proof and lose on this particular point.

Question 4

Brown v Rolls Royce 1960

Answer 4

Pursuer working in industrial setting suffering from dermatitis due to employer’s negligence, sued employer. The pursuer’s action was based on alleged negligence on the part of his employer’s, thus the burden of proof lay upon him to prove that they were negligent.

Question 5

What is evidential (provisional) burden?

Answer 5

This is not strictly speaking a burden of proof since it doesn’t place a duty on a party to do anything. This is the burden on a party to adduce enough evidence to make some matter a fact in issue (to require an issue to be left to the jury). So a failure to do this will not result in failure on the point, like in the persuasive burden.

Question 6

*Earchshaw v HMA 1981

Answer 6

Case of reckless and dangerous driving. Court held that while there might be an evidential burden on the individual (about the provision of a laboratory specimen), the legal burden will always rest on the Crown (to prove that the individual was guilty of the charge).

Question 7

What is a tactical burden?

Answer 7

If one individual has discharged an evidential burden, there is a ‘tactical burden’ on the opposing party to respond in turn by adducing contrary evidence.

Question 8

Does a burden of proof ‘shift’?

Answer 8

For useful discussion see GH Gordon, 1968 SLT (News) 29 & 37.

Question 9

What is the persuasive burden of proof in civil actions?

Answer 9

This depends on written pleadings. In general the pursuer must prove all essential facts not admitted by the defender, with a burden on the defender to prove any additional facts as part of his own defence.
⁃ There is generally a burden on a party who makes a positive or affirmative averment.
⁃ At times there is a statutory allocation of the burden of proof (e.g. Unfair Contract Terms Act section 24(4) [“The onus of proving that it was fair and reasonable to incorporate a term in a contract or that it is fair and reasonable to allow reliance on a provision of a notice shall lie on the party so contending.”]).
⁃ Sometimes there is statutory provision which confers a right/duty/onus on a party without stating on whom the burden lies

Question 10

Nimmo v Alexander Cowan 1967

Answer 10

There is no general rule in persuasive burden of proof in civil actions. It requires an interpretation of each statutory provision.

Question 11

What is the persuasive burden of proof in criminal cases?

Answer 11

In general terms the burden is on the Crown to prove all aspects of the case against the accused: Lennie v HMA 1946

Question 12

What are the exceptions of when a burden is on the individual rather than the Crown?

Answer 12

1) Insanity and diminished responsibility
⁃ Under s 51A(4) 1995 Act, the special defence of criminal responsibility of persons with mental disorder may be stated only by the person charged with the offence and it is for that person to establish it on the balance of probabilities.
⁃ Under s 51B(4) 1995 Act, it is for the person charged with murder to establish the diminished responsibility defence.

2) Other special defences (i.e. alibi, self defence, incrimination)
⁃ The burden that lies on the accused in terms of raising these special defences is an evidential one only: *Lambie v HM Advocate 1973. So the person who is pleading one of these special defences, they must put forth enough evidence for the matter to be considered by the court, he does not bear the burden to prove this to a requisite standard (the persuasive burden is still on the Crown to prove that that defence is not established).
- Cp position of automatism; coercion; consent in sexual offences: Criminal Procedure (Scotland) Act 1995 s 78(2)

3) Facts peculiarly within the knowledge of the accused
⁃ This applies to statutory offences[ It is not a rule in relation to common law crimes.] which state as an exception facts which would only be known to the accused.
⁃
4) Statutory burdens on the accused
- Where there is a persuasive burden on the accused based on statute, no corroboration is required for this evidence[ Whereas when there is a burden on the Crown they always need to corroborate it.].

The following provision is obscure (I don’t understand; it seems just to say that an evidential burden can be placed on the accused).
⁃ 33. Criminal Procedure (Scotland) Act 1995, Sch 3, para 16:
⁃ “Where, in relation to an offence created by or under an enactment any exception, exemption, proviso, excuse, or qualification, is expressed to have effect whether by the same or any other enactment, the exception, exemption, proviso, excuse or qualification need not be specified or negatived in the indictment or complaint, and the prosecution is not required to prove it, but the accused may do so.”

Question 13

*Irving v Jessop

Answer 13

3) Facts peculiarly within the knowledge of the accused:

the accused had been charged with using a TV without a license. It was held that the possession of a licence was peculiarly in the knowledge of that particular individual, so all the Crown needed to do was to adduce a prima facie case against the accused which would need to be displaced by the accused since he would have peculiar knowledge as to whether he had a licence.

Question 14

King v Lees 1993

Answer 14

an individual was charged with the statutory offence of drink driving and his response to the charge was that while he had drunk a little bit before driving, he then had gone for a drive and drunk more afterwards, so there was nothing to establish that he had driven while having a certain level of alcohol in his blood. The statutory provision placed a persuasive burden on the accused to prove that he did not drive with this particular level of alcohol in his blood, the court held that there was no requirement that this must be corroborated.

Question 15

What is a reverse burden of proof?

Answer 15

Generally speaking a reverse burden of proof places an onus on the accused to provide a lawful excuse / justification.

[NB the Crown must first set out a prima facie case (by calling witnesses) before a reverse burden applies. When the Crown thinks they have led enough evidence then they must conclude the case for the Crown.]

Question 16

What can the accused do if they think not enough evidence has been led?

Answer 16

If the accused thinks enough evidence has not been led then they can admit a ‘no case to answer’. If the Sheriff is satisfied then he can acquit at this stage.

If he repels this then the accused has a number of options. He can do nothing if he chooses to. Or (more likely) he will plead his case. Then they can call witnesses and finally conclude the case for the defence]
⁃ Examples include drink driving as in King v Lees[ Accused argued that he’d not been drink driving - he had only been drinking after the event.], or being caught in possession of controlled drugs and the accused is required then to prove that he or she did not know they were in possession of them.

Question 17

R v Lambert [2002]

Answer 17

Lambert had been convicted of possession of class A drugs. There was no obligation on the Crown under the Misuse of Drugs Act to prove that he knew he was in possession of the drugs. However, s 28 of the Act provides a defence, but it places the burden on the accused: the accused needs to prove that he neither knew, suspected or had any reason to suspect the nature of the contents of the bag. He was convicted and appealed that he should not have borne the onus to prove this defence since it conflicted with the presumption of innocence (under Article 6(2) ECHR) The House of Lords read down the statute, holding that while the statute may appear to place a persuasive burden on the accused, in fact all it placed was an evidential burden on the accused. Therefore, the accused only had to produce enough evidence for the matter to be contested before the court but his failure to satisfy the defence would not automatically lead to conviction.

Question 18

*Sheldrake v DPP [2005] [ Likely this will come up in an exam - read this case and learn 7/8 principles.]

Answer 18

• this involved appeals from two individuals. Sheldrake had been charged with drink driving and had put forward a similar argument to Lambert. The other individual was charged and convicted with two offences under the Terrorism Act[ This was for being a member of a terrorist organisation - they had to prove that they weren’t a member of a terrorist organisation. Since it is very difficult to prove this, it is not fair and if it were a persuasive burden it would contravene Article 6(2).] (again which had placed the onus on the accused in terms of establishing the defence).
  ⁃ 1) In relation to the first appeal (Sheldrake) the House of Lords acknowledged that this was a persuasive burden, but it served a legitimate aim and didn’t go beyond what was necessary and reasonable: to ensure a successful prosecution of drink driving cases (and the facts were peculiarly in the knowledge of the particular individual).
  ⁃ 2) In relation to the individual convicted of terrorism offences, the court held that the provision had to be read down from a persuasive burden to an evidential burden (like in Lambert)

Question 19

*Glancy (Kevin) v HMA 2012

Answer 19

case about an individual found carrying a knife in a public place. A statutory defence placed the onus on him to prove the requisite burden of proof (that he had a legitimate reason for carrying a knife in a public place.) The court held that putting a persuasive burden on the accused served a legitimate aim and was necessary and proportionate (like in the first aspect of Sheldrake).