Burden of Proof

Question 1

Earnshaw v HM Advocate 1981 JC 11, at 15

evidential burden

Answer 1

 Court in this case held that there was a legal burden on the crown but the evidential burden was on the accused.
 Accused refused to provide a breath test. Legislation says it is an offence to not provide a sample “without reasonable excuse”.
 Court held that it was not something that the defence had to prove.
 The persuasive onus was on the crown throughout.

Question 2

Lambie v HM Advocate 1973 JC 53

Answer 2

 In this case the defendant raised a special defence that was not listed in the 1995 Act.
 Held that the burden that lies on the accused when raising the defence is evidential only.
 So the evidential burden is on the accused BUT the persuasive burden is still on the crown.

Question 3

Irving v Jessop 1987 SCCR 505;

facts peculiar to the accused.

Answer 3

 Accused was charged with watching his TV w/o a valid TV license.
 Whether Jessop had a T.V. license was knowledge that was peculiar to Jessop.
 So the crown had to argue a prima facie case against the accused, and then the burden was switched to the defendant to prove otherwise.

Question 4

King v Lees 1993 SCCR 28

Answer 4

 The court took the view that where the law imposed a burden on an accused to establish a defence, the standard of proof required was on a balance of probabilities and did not require corroboration. In the present case, however, the court was satisfied that the sheriff had not considered K’s evidence to be reliable and that it had not overturned the assumption in s.15. The conviction was correct.

Question 5

Sheldrake v DPP [2005] 1 AC 264;

ECHR and reverse Burden

Answer 5

 2 issues were raised in the Sheldrake case
 First issue;
 HOL acknowledged that the persuasive burden was placed on the defendant in a drunk driving case.
 HOL held that for policy and practicality issues there were legitimate reasons for placing the persuasive burden of proof on the defendant and it did not breach the presumption of innocence.
 Second issue;
 In the question regarding whether the reverse burden imposed on a defendant by the Terrorism Act 2000 s.11(2) was incompatible with Art.6(2) the court held that it was only compatible, IF they read it down to mean that only the evidential burden was placed on the accused.
 In deciding this they looked at the possible time imprisonment (10 years)