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Flashcards in Week 6 Materials Deck (18):
1

Legal burden

Evidential burden

What is the legal burden of proof?
The legal burden is the obligation to prove a fact in issue to the appropriate standard of proof. (BCP 2015, F3.1-3.3)

What is the evidential burden? The evidential burden is the obligation to adduce sufficient evidence on a fact or facts in issue to satisfy the judge that such issue(s) should be left before the tribunal of fact i.e. to raise a prima facie case.

2

What is the standard of proof? BCP 2015 F3.48

What is the standard of proof? BCP 2015 F3.48
The degree to which proof must be established by a party bearing that burden of proof.
The general rule in a criminal case is that the legal burden of proving all the elements in the offence necessary to establish guilt lies with the prosecution (Woolmington v DPP [1935] AC 462) This upholds the principle of the presumption of innocence. BCP 2015, F3.6

3

Where the prosecution bear a legal burden, what is the standard of proof?

“The prosecution proves its case if the jury, having considered all the evidence relevant to the charge they are considering, are sure that the defendant is guilty. Further explanation is unwise.
If the jury are not sure they must find the defendant not guilty.” Crown Court Bench Book, Direction on the standard of proof.
http://www.judiciary.gov.uk/Resources/JCO/Documents/Training/benchbook_criminal_2010.pdf

4

What is a reverse burden of proof? Why might this be incompatible with Art 6 ECHR?

Statute law has sometimes sought to impose a legal burden on the accused to prove his defence, known as a ‘reverse burden’. This was, and remains, highly controversial as it arguably offends the presumption of innocence and the right to a fair trial (article 6(2) of the European Convention on Human Rights).
What is the standard of proof where D bears legal burden? Balance of probabilities. (BCP F3.54)

5

Instances of reverse burdens on the Defendant:
BCP F3.9 ff.

Statute may expressly or impliedly cast on the accused the burden of proving a particular issue. We will look at this in a few moments in Q1, case 3 and case 4.
express exception: e.g., Murder: defence of diminished responsibility
implied exceptions: e.g., certain road traffic offences, such as driving without a licence

6

What is meant by ‘reading down’ a reverse burden of proof?


This is where the court can decide that the legal burden on the D should be ‘read down’ to impose only an evidential burden on the defendant.

7


AG Ref (No 4 of 2002)[2005] 1 AC 264, HL.
In deciding whether to ‘read down’, courts will
Have regard to:

whether there is a compelling reason for denying a defendant the normal standard of protection of the presumption of innocence;
the seriousness of the punishment flowing from conviction;
the extent and nature of factual matters the burden requires the accused to prove, and their importance;
how difficult it will be for the accused to prove matters: are the matters requiring proof readily within his knowledge, or to which he has ready access; and
how pressing is the social problem which the legislation seeks to address.


8

R v M [2007] EWCA Crim 3228, CA. Longmore LJ


WRONG

Says evidential burden for pros to decide

“At a minimum, [a] direction [on the burden and standard of proof where the defence bear an evidential burden] must explain the difference between an evidential burden and a legal burden of proof in terms that a jury can understand. It must then also explain that the evidential burden can be discharged on a balance of probabilities, but the legal burden on the Crown has to be discharged to a criminal burden of making the jury sure…”

9

Directions of Goddard CJ examined in R v Bentley (Deceased) [1998] EWCA Crim 2516, CA.

“…the prosecution have given abundant
evidence…” -

“...if you find good ground for convicting them, it is your duty to do it if you are satisfied with the evidence for the prosecution…”

“…the prosecution have given abundant
evidence…” - shifted the burden of proof

“...if you find good ground for convicting them, it is your duty to do it if you are satisfied with the evidence for the prosecution…” - not sufficient on standard.

10

Q1 Case 2

Facts in Issue:
Identity
Elements of offence
Self-defence
Legal Burden:
Prosecution: Identity, elements of offence, disproving self-defence
Evidential Burden:
Prosec: Identity and elements of the offence
Defence: Self-defence
Standard of proof
Prosecution (LB): Sure
Prosecution (EB): Prima facie case
Defence (EB): Sufficient evidence as might leave jury in reas. doubt

11

Q1 case 3 Express stat exception

Facts in Issue
Identity
Elements of offence (s.1(1) Prevention of Crime Act 1953)
Reasonable Excuse
Legal Burden:
P: Identity and elements of offence (including that the sheath knife was an offensive weapon)
D: Defence
Evidential Burden:
P: Identity and elements of the offence
D: Defence
Standard of proof:
LB (P): Sure
LB (D): Balance of Probabilities

12

Case 4 - implied stat exception

Facts in Issue
Identity
Elements of offence (s.87 Road Traffic Act 1988)
Legal Burden:
P: Identity, drove motor vehicle on a road
D: In accordance with a licence
Evidential Burden:
P: Identity, drove motor vehicle on a road
D: In accordance with a licence
Standard of proof:
LB (P): Sure
LB (D): Balance of Probabilities

13

Reverse burden

AG Ref (No 4 of 2002)[2005] 1 AC 264, HL.
In deciding whether to ‘read down’, courts will

Have regard to:
whether there is a compelling reason for denying a defendant the normal standard of protection of the presumption of innocence;
the seriousness of the punishment flowing from conviction;
the extent and nature of factual matters the burden requires the accused to prove, and their importance;
how difficult it will be for the accused to prove matters: are the matters requiring proof readily within his knowledge, or to which he has ready access; and
how pressing is the social problem which the legislation seeks to address.

14

1. Where do trials on indictment take place?

2. Where do summary trials take place?

3. In what three ways are offences classified?

1. Answer: In the Crown Court (BCP D6.1)

2. Answer: In the magistrates’ court (BCP D6.1)

3: Answer:
(a) triable only on indictment
(b) triable only summarily
(c) triable either way (BCP D6.2)

15

4. Where you see the phrase ‘indictable offence’ what offences does it encompass?


5. What three principal categories of Crown Court judge exist?


6. If a person pleads not guilty and is convicted in the magistrates’ court, to which court can they appeal against the conviction?

4. Answer: Indictable-only and either-way offences (BCP D6.3)

5. Answer: High Court, Circuit and Recorders (BCP D3.4)
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6. Answer: The Crown Court (BCP D3.14). [On points of law, appeal may also be possible to the High Court, through an appeal 'by way of case stated' or judicial review – we will return to this later in the course].

16

7. Who are the decision-makers in the magistrates’ court?

8. Which court has jurisdiction to determine an appeal against conviction in the Crown Court?

9. On what basis can a party appeal a decision of the Court of Appeal to the Supreme Court?

7. Answer: Justices of the peace (lay justices) and salaried District Judges (legally qualified) (D3.20)

8. Answer: The Court of Appeal (Criminal Division) (BCP D26.1)

9. Answer: If the Court of Appeal certifies that the appeal involves a question concerning a point of law of general public importance (BCP D30.3). Leave to appeal must also be given by the Court of Appeal or the Supreme Court.

17

10. What is the test for determining whether an individual qualifies for a legal representation order (formerly known as legal aid)?

11. In the majority of cases, who is responsible for the granting of a representation order?

10. Answer: It is a two- stage test involving an assessment of means and ‘according to the interests of justice' (BCP D32.4)

11. Answer: The representation authority (BCP D32.6)

18

James is charged with Criminal Damage. The value involved is £200. He is contesting the matter and the trial will take place in the magistrates’ court. He is in receipt of state benefit, and is unable to read or write.

Consider which of the following statements are CORRECT:
(i) The fact that James is in receipt of state benefit will be taken into account when
determining whether he should be granted a representation order.
(ii) The fact that James is in receipt of state benefit is irrelevant.
(iii) The fact that James is unable to read or write is irrelevant.
(iv) The fact that James is unable to read or write will be taken into account when
determining whether he is able to understand the proceedings, and this is relevant
to the interest of justice test.
Which one of the following is correct?
[A] All four statements are correct.
[B] (i) and (iv) are correct.
[C] (ii) and (iii) are correct.
[D] (iv) only is correct.

ANSWER: [B] is the correct answer
(i) Correct: The fact that James is in receipt of state benefit means that he automatically satisfies the financial eligibility test.
(ii) Incorrect: The fact that James receives state benefit is relevant.
(iii) Incorrect: James’ inability to read and write will be considered when determining whether he is able to understand the proceedings or to state his case.
(iv) Correct: His ability to understand proceedings is one of the factors that must be taken into account in the interests of justice test.
BCP D32.4