F3.1 – legal and evidential burdens

Question 1

What are the two principle kinds of burden?

Answer 1

(i) legal burden

(ii) evidential burden

Question 2

What is the legal burden?

Answer 2

Burden of proof

i.e. a burden imposed on a party to prove a fact or facts in issue.

Question 3

Is the legal burden solely on on party or the other for all of the facts in issue?

Answer 3

Not always. Legal burden in relation to some of the facts in issue can be on one party, and the legal burden in relation to another/others on the other party.

e.g. legal burden for some defences are on the defendant, whereas legal burden on other facts is on the prosecution (M’Naghten’s Case (1843) 10 Cl & F 200; Smith (Oliver) (1910) 6 Cr App R 19).

Question 4

Any statutory provision be imposing a legal burden on the accused by open to challenge on the basis of what?

Answer 4

Incompatibility with Art 6(2) of the ECHR.

Question 5

What are questions of construction?

On whom does the burden lie in respect to questions of construction?

Answer 5

Questions of law in respect of which no burden lies on either party.