Flashcards in Standard of Proof Deck (10):
What are the standards of proof?
1) Proof beyond reasonable doubt
2) Proof on the balance of probabilities.
Is there a third standard?
See Lennon v Co-operative Insurance Society 1986 SLT 98 "There is in my judgment a higher onus on the defenders where an allegation of wilful rife-raising is made. I am not able to state in words the extent of that onus, but it is enough that I consider that it is higher than on a balance of probabilities, somewhere half-way between that and beyond reasonable doubt.".
What is the standard of proof in criminal cases?
The Crown must prove the accused committed the offence beyond reasonable doubt.
⁃ A 'reasonable doubt' is something that would cause the jury in the course of their ordinary lives to pause before making a decision.
E.g. if in a criminal case the Crown must prove a certain case beyond reasonable doubt, enough evidence must be put forward before the jury/judge[ Depending on whether summary or solemn.] to satisfy that trier of fact that the crime was committed beyond reasonable doubt. But this standard does not apply to every single piece of evidence; it simply means that cumulatively the case itself has to be proved beyond reasonable doubt.]
Irving v Ministry of Pensions 1945
The court held that the tribunal needed to be satisfied beyond reasonable doubt; in other words it must be a reasonable doubt, it must not be a strained or a fanciful acceptance of remote possibilities.
In which instances is the burden of proof placed on the accused?
In some instances (covered earlier e.g. Sheldrake, Lambert) the persuasive burden of proof is placed on the accused. If there is a persuasive burden of proof on the accused then this must be displaced on the balance of probabilities.
⁃ Two examples of this - criminal responsibility of people with mental disorders and diminished responsibility both specify precisely that while the burden is borne by the accused, the burden of proof must be satisfied on the balance of probabilities (CP(S)A 1995 ss 51A, 51B)
What is the burden of proof in civil actions?
The party on whom lies the persuasive burden (usually the pursuer) must discharge it by proof on the balance of probabilities.
Wardlaw v Bonnington Castings 1956
pursuer suing employer. Held that the burden of proof was on the pursuer and this had to be discharged on the balance of probabilities.
Watters v Masters Gold Club Ltd 
a case where a party failed to discharge the burden of proof on the balance of probabilities
What are statutory standards of proof?
In relation to civil matters there will often be a statutory articulation of the standard of proof as being on the balance of probabilities.
(i) proof of grounds of divorce: Divorce (Scotland) Act 1976, s 1(6); 4(1);
(ii) declarator of death: Presumption of Death (Scotland) Act 1977, s 2(1);
(iii) paternity: Law Reform (Parent and Child) (Scotland) Act 1986, s 5(4).