Burden and Standard of Proof

Question 1

What is the legal burden?

Answer 1

The burden placed on a party to adduce sufficient evidence to prove a fact in issue - to the appropriate standard to satisfy the jury

Question 2

What is the evidential burden?

Answer 2

Burden resting on a party to adduce sufficient evidence to make the issue ‘live’ i.e. worthy of consideration

Question 3

Who bears the legal burden in criminal cases?

Answer 3

Woolmington v DPP: Lord Sankey: golden thread speech - burden rests upon the prosecution to prove the prisoner’s guilt (exceptions: statutory and insanity)

Question 4

Case which held that if the legal burden rests upon the defendant, the standard is that of the balance of probabilities

Answer 4

R v Carr-Briant

Question 5

R v Edwards

Answer 5

Defendant bore the legal burden to prove he had a licence - as he was relying upon an exception

Question 6

R v Hunt

Answer 6

Burden on the prosecution, as they were in a better position to discharge such a burden - Parliament does not presume a burden upon the defendant easily

Question 7

What is the impact of the ECHR Act

Answer 7

Art 6(2): presumption of innocence

Question 8

Are legal burdens compatible with the ECHR?

Answer 8

Salabiaku v France: this right is not an absolute right, so reverse burdens are not automatically incompatible - question of degree, provided the reverse burden is legitimate and proportionate

Question 9

R v Lambert

Answer 9

smuggling cocaine, but argued he though he was smuggling diamonds - Lord Steyn: 3 stage approach:
Statutory interpretation - Parliament not presumed to impose a legal burden easily
Why was the burden placed? Pressing social need?
Is the burden proportionate.
Reasonable and proportionate response to the mischief.

Question 10

L v DPP

Answer 10

Burden not disproportionate - burden on the defendant to show he had the knife for a lawful purpose

Question 11

Johnstone

Answer 11

Selling counterfeit DVDs - burden on the defendant to show he did not know they were counterfeit - burden was legal - proportionate, because piracy is a pressing social problem - overall, whether fair and reasonable to impose

Question 12

Sheldrake

Answer 12

Pressing social problem - legal burden, and even if it did contravene Art 6, it was directed towards a legitimate objective

Question 13

What is the general rule for the legal burden in civil cases

Answer 13

He who asserts, must prove: Joseph Constantine Steamship.
Some exceptions, where it is easier for one party to prove the issue than the other: Levison v Patent Steam Carpet Cleaning
Soward v Leggatt: despite the words used