SA11 - Burden and Standard of Proof Flashcards Preview

Evidence > SA11 - Burden and Standard of Proof > Flashcards

Flashcards in SA11 - Burden and Standard of Proof Deck (47)
Loading flashcards...

What are the two principal kinds of burden?

The legal burden, and the evidential burden.


What is the legal burden?

The legal burden is a burden of proof, i.e. a burden imposed on a party to prove the facts in issue.


What is the legal burden sometimes referred to as?

The legal burden is sometimes referred to as the persuasive burden or risk of non-persuasion.


What is the general rule with regard to the legal burden?

The general rule is that the prosecution bear the legal burden of proving all elements of the offence necessary to establish guilt (including negatives).


When might the prosecution have to prove a negative?

In a rape case, that the victim did not consent; absence of consent on a charge of assault; if capacity to consent is an issue, the prosecution will bear the burden of proving incapacity.


Example of when the legal burden in relation to some facts will be on one party and in relation to other facts will be on another party

If insanity is raised by way of defence, the legal burden on that issue is on the defence, whereas the legal burden on the other facts in issue is on the prosecution.



Any statutory provision imposing a legal burden on the accused may be open to challenge on the basis of incompatibility with Art 6(2) ECHR (presumption of innocence). However, it will not inevitably give rise to a finding of incompatibility.


How should the court determine whether a legal burden on the accused is incompatible with the ECHR? What is a drawback of this test?

The court should focus on the particular circumstances of the case and strike a reasonable balance between the general interest of the community and the protection of the fundamental rights of the individual. Such burdens should be kept within reasonable limits and should not be arbitrary. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case.

An obvious drawback to this test is that views may reasonably differ so that in many cases it will be as possible to reach a rational conclusion of compatibility as incompatibility.


What is meant by standard of proof?

The standard of proof means the degree to which proof must be established by a party bearing a burden of proof.


Standard of proof on prosecution vs on defence

If the legal burden is borne by the prosecution, the standard required is proof beyond reasonable doubt. If the legal burden is borne by the accused, the standard required is proof on the balance of probabilities; the accused never bears the heavier burden of proof beyond reasonable doubt.


Who decides whether a party has discharged the legal burden?

The question whether a party has discharged a legal burden borne by him is decided by the tribunal of fact, whether jury or magistrates, at the end of the trial after all the evidence has been presented.


What is the evidential burden?

The evidential burden is not a burden of proof but the burden of adducing evidence or 'the duty of passing the judge', in other words the burden imposed on a party to adduce sufficient evidence on a fact in issue to satisfy the judge that such issue should be left before the tribunal of fact.


Who adduces the evidence to satisfy the evidential burden?

This evidence may be adduced by any party (i.e. if the defence have the evidential burden, they may adduce it or elicit it in cross examination, or it may be given by a prosecution witness giving his evidence in chief, and vice versa).


What will normally be the case in terms of who bears the burdens?

It is very often the case that the same party bears both burdens.


When will one party bear the evidential burden and the other the legal burden?

In the case of many defences (including self-defence) the evidential burden is on the defence and the legal burden is on the prosecution.


If the defence bears the evidential but not the legal burden, how is the evidential burden discharged?

If the defence bears the evidential but not the legal burden on a particular issue, for example, self-defence, the evidential burden is discharged by the adduction of such evidence as might leave a jury in reasonable doubt.


What happens if there is not sufficient evidence to justify a jury concluding that the defence is established?

The issue will be withdrawn from them (and will not amount to a breach of ECHR Art 6).


What if the judge takes the view that the evidence is most unlikely to be of sufficient cogency or strength to be accepted by the jury?

If there is sufficient evidence for an issue to be put before the jury, it will ‘pass the judge’, even if this is the case.


If the prosecution bears the evidential burden, how is it discharged?

By the adduction of sufficient evidence to justify as a possibility a finding by the tribunal of fact that the legal burden on the same issue has been discharged, in other words such evidence as, if believed and if left uncontradicted and unexplained, could be accepted by the jury as proof.


When are questions relating to the sufficiency of the evidence adduced by the prosecution raised?

Questions relating to the sufficiency of the evidence adduced by the prosecution may be raised by the judge of his own motion, but usually arise on a defence submission of no case to answer after the prosecution have closed their case.


If the defence bears both the evidential and the legal burden, how is the evidential burden discharged?

By the adduction of such evidence as might satisfy the jury on the probability of that which the accused is called upon to establish.


At which stage of the trial will a judge leave a defence to the jury?

Although normally a judge will not leave a particular defence to the jury until the conclusion of the evidence, in rare cases in which the precise nature of the evidence to be called is clear it may be appropriate for the judge to indicate at an earlier stage what his ruling is likely to be.


What should happen if a judge during trial indicates that he will leave a particular defence to the jury but later changes his view.

He should inform the defence, because they may then wish to give more evidence on the matter and the defence advocate may wish to seek to persuade the judge not to withdraw the issue.


Burdens in relation to questions of construction

Questions of construction are questions of law in relation to which no burden lies on either party.


Limit as to what can reasonably be required of the prosecution when seeking to prove a negative

Case where an issue was whether D (street seller)’s statement that you could buy perfume for a higher price than he was selling it in a big department store was true.

Constable gave evidence that he had visited four shops in the area, and that the scent was not sold at any of them. In cross examination, he admitted that he had not visited a well-known department store. The judge directed the jury that the constable could not be expected to visit every shop in London in order to prove that the scent was not being sold for the higher price in any shop; and that if the accused knew of any shop where it could be bought at that price, they were perfectly entitled to adduce such evidence.


Scenarios where legal burden lies on the defence (what are these called, and some examples)

Reverse onus provisions; the accused must prove on the balance of probabilities.

• Insanity
• Express statutory exceptions e.g. diminished responsibility; offensive weapons; suicide pact
• Implied statutory exceptions


'Reading down' of statutes

In appropriate circumstances, the words ‘to prove’ in a statute may be read down under HRA 1998 s.3 so as to impose on the accused no more than an evidential burden. The same applies in the case of ‘show’ (e.g. Explosive Substances Act), but only if synonymous with ‘prove’, which depends on the precise statutory context.


Insanity and diminished responsibility as alternatives

If the accused runs insanity or diminished responsibility, the court will allow the prosecution to adduce evidence tending to prove the other of those contentions. The burden will be on the prosecution to prove the other one beyond reasonable doubt.


Fitness to plead

If an accused is alleged to be under a disability rendering him unfit to plead and stand trial on indictment, the issue may be raised by either the prosecution or defence. If the prosecution contend that the accused is under such a disability and this is disputed by the defence, the burden of proof is on the prosecution to satisfy the court beyond reasonable doubt. If the defence contend that the accused is under such a disability, the burden is on the defence on a balance of probabilities.


Deciding whether a defence should be raised

As a general rule, if a defence arises upon the evidence called by any party, then whether or not it has been mentioned by the defence, the judge must leave it to the jury

However, the statute leaves it to the defence to decide whether the issue of diminished responsibility should be raised. Therefore, if the judge detects evidence of diminished responsibility but the defence do not raise the issue, the judge is not bound to direct the jury to consider the matter but should, at most, in the absence of the jury draw the matter to the attention of the defence so that they may decide whether they wish the issue to be considered by the jury.

In rare and exceptional cases the judge may of his own motion raise the issue of insanity and leave it to the jury.