Burdens Flashcards
(14 cards)
What is the burden of proof
The Legal burden is for the prosecution to prove guilt beyond reasonable doubt (actus reus and mens rea) Sometimes this shifts over to the defence for certain crimes like possession of drugs or firearms, licencing crimes etc. When this occurs the standard of proof is on balance of probability.
The evidential burden shifts back and forth throughout. The Prosecution must provie evidence for every aspect of a crime. When raising a defence the defendant must provide evidence for it. The legal burden remains with the prosecution to disprove a defence beyond reasonable doubt.
What is the standard of proof
The jury must be sure (beyond reasonable doubt)
when the burden is reversed the burden of proof for the defendant is on balance (more likely than not)
In what circumstances does the burden reverse?
Common law defences, statutory defences and implied statutory defences
M’Naughten - Defendant must prove factors of insanity
Statutory
R v Lambert - drug possession
Sheldrake v DPP - Drunk driving
R v Edwards - Producing licences or ID
R v Davies - Provocation defence to murder
Woolmington v DPP 1935
D killed his wife, he claimed it was an accident. The prosecution claimed that once they had proven that D killed his wife, the burden shifted to him to prove that it was accidental. The HoL found this to be wrong. The burden of proof stays with the prosecution throughout, and only in certan circumstances flips to the defence.
‘It is the golden thread that runs through criminal law that the prosecution must prove guilt.’ - Viscount Sankey.
However from this case it is clear that there is no absolute
M’Naughten
When raising the defence of insanity at trial, the legal burden flips to the defence who must prove through the narrow insanity tes that the defendant was insane.
Shelldrake v DPP
When charged under the road traffic act of being drunk and in charge of a vehicle the legal brden rested with the defence to show that there was no liklihood of D driving while he was drunk
The word SHOW is important. statutes that demand D to show some evidence will impose a legal burden.
R v Edwards
When charged with selling alcohol without a licence D claimed that he did have a licence. The legal burden rested with the defence to prove that D did have a licence. - producing a licence is considerd easy enough to warrant the burden flipping.
R v Davies
When raising the partial defence of provocation to murder, the legal burden rests with the defence to prove provovation. (loss of control under Coroner and Justice Act)
Glover (2008)
In this article, Glover critiques the decision in the CA case of R v Malinina. In this case the court found that the evidential burden could be assessed by the jury and discharged on the balance of probability.
This is wrong! For the prosecution, the judge decides that an evidential burden is met by assessing the evidence as being able to defeat a defence submission of no case to answer.
The defence simply has to raise enough evidence for an arguable case that might prevent the jury from being convinced beyond a reasonable doubt.
In neither instance does a jury have to be persuaded on balance of probability
Glover’s idea is that the true function of the evidential burden should be codified to promote clarity and consistency.
Test of reverse burdens (necessity?)
AG’s ref 4 of 2002 (and Shelldrake) reverse burden should pursue a legitimate aim and be proportionate
Shifting th burden cannot be unduly (Salabaiku)
Procedural vs Substantive approach to burden of proof, presumption of innocence and reverse burdens
The procedural approach suggests that the right to be presumed innocent is a note on how a trial should be conducted. Simply that the prosecution should prove certain legal elements of a case.
Hamer exclaims that this can lead to a gutting of article 6(2) ECHR as certain elements of an offence can simply be labelled in such a way that forces the defence to prove them.
The Substantive approach sees the presumption of innocence as a moral doctrine rather than the legal element that forces the prosecution to prove beyond reasonable doubt.
Hamer endorses the striking of a fair balance between the defendant’s right to not be wrongly convicted and the public interest of effective law enforcement. Reasonable proportionality of reverse burdens must be maintained. (Janosevic v Sweden 2004 and Salabaiku v France 1988)
Implied statutory reversal burdens
(s.101 Magistrates Act 1980 and R v Hunt) The courts are clear that the more penal in nature the statute the more likley they are to impose an evidential burden on D. If the statute is more regulatory, then the burden may be legal.
R v Lambert
The MDA placed the onus on D to prove he had no knowledge of his posession of drugs. the Court found this violated article 6 and read down the MDA to only subject D to an evidential burden. placing the legal burden on the prosecution.
