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Burden and Standard of Proof Notes
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Burden and Standard of Proof Notes - BPTC, Criminal Litigation In conjunction with BPP Criminal Litigation Manual and Blackstone's Criminal Practice 2021.
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PRIVILEGE NOTES
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Disclosure of unused material and defence statements
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ANCILLARY ORDERS AND COSTS ON CONVICTION NOTES
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BURDEN OF PROOF NOTESa. The distinction between the legal burden and the evidential burden of proof
F3.1-3.3 Legal and Evidential Burden
LEGAL BURDEN= burden of proof on a party to prove a fact/s in issue. Sometimes LB in
relation to some facts on one party and LB in relation to another will be on the other e.g.
legal burden of insanity on defence and other facts in issue on P. Any stat provision
imposing a legal burden on the accused on the accused may be open to challenge on the
basis of incompatibility with Art 6 ECHR. Questions of construction are questions of law in
respect of which no burden lies on either party. A party bearing the legal burden on a fact in
issue will lose on that issue if the burden is not discharged to the required SOP. The SOP
required varies according to who bears the burden. If P→ beyond reasonable doubt. If D→
balance of probabilities. Whether a party has discharged the LB is decided by the tribunal of
fact (jury/Mags) at the end of trial.
EVIDENTIAL BURDEN= burden of adducing sufficient evidence of fact/s in issue to satisfy
the judge that such issue/s should be left before the tribunal of fact. Often the party
bearing the LB on an issue bears the EB on that issue. BUT defences e.g. SD→ the EB is on
the accused and the LB is on the P in relation to the defence. So if no evidence sufficient to
justify a jury concluding that defence is established, the issue will be withdrawn from them.
But if sufficient evidence for the defence to put before the jury, the LB of disproving it will
be on the P (even if J takes view evidence unlikely to be sufficient cogency to be accepted). J
not normally leave a defence to the jury until the conclusion but where the nature of the
evidence is clear, may be appropriate to indicate at earlier stage what his ruling likely to be.
If J indicates he will leave a defence to jury but changes his mind, should inform the defence
(they may want to give more evidence on the matter or persuade J not to withdraw the
issue).
F3.4 Discharge of Burdens Borne by the Prosecution → questions relating to the sufficiency
of evidence P have adduced may be raised by the J but usually arise on defence submission
of no case to answer.
If EB on a particular issue borne by P→ discharged by adducing sufficient evidence to
justify, as a possibility, a favourable finding on that issue (such evidence as if believed and
left uncontradicted and unexplained could be accepted by the jury as proof).
If P bear EB and LB on a particular issue→ if discharge the EB, does not necessarily follow
they will succeed on that issue; will go before jury for them to determine. If P fail to
discharge EB they will necessarily fail on that issue so J will withdraw the issue from jury.
F3.5 Discharge of Burdens Borne by the Defence
If both EB and LB e.g. insanity→ the EB is discharged by adducing evidence as might satisfy
the jury on the probability of what the accused is called upon to establish.
, If EB but not LB on a particular issue e.g. SD→ the EB discharged by adducing evidence as
'might leave a jury in reasonable doubt'. No case required to standard beyond RD.
b. General rule concerning the incidence of the BOP in criminal cases and the exceptions
F3.6-3.7 Incidence of Legal Burden → general rule: P bear the LB of proving all the
elements in the offence necessary to establish guilt. Duty of P to prove prisoner’s guilt, no
burden on prisoner to prove his innocence (Woolmington v DPP [1935]). All the elements
includes the negative averments e.g. rape- p bear burden of proving complainant did not
consent. Often b/c of difficulties of proving negative propositions, statutes may require
accused to bear burden of proving certain facts.
Three categories of exception to the general rule as laid down in Woolmington:
(a) insanity;
(b) express statutory exceptions; and
(c) implied statutory exceptions.
NOTE: statutory exceptions are sometimes referred to as reverse onus provisions.
F3.8 (a) Defence of Insanity
If the accused raises the defence of insanity, he will bear the burden of proving it on BOP. s6
Criminal Procedure (Insanity) Act 1964 provides if the accused charged with murder and
raises one of two issues (insanity or diminished responsibility) P allowed to adduce evidence
tending to prove the other of those issues. The burden on the P is to prove the other of
those issues beyond RD. 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 P or D (s4). If p
contend A is under such disability and this is disputed by defence, BOP on P to satisfy the
court beyond RD. If defence contend A is under such disability, burden on defence is BOP.
F3.9-3.10 (b) Express Statutory Exceptions
Statutes may expressly cast on the accused the burden of proving a particular issue/s. The
LB in relation to all other issues remains on the P. In light of HRA, provisions of this kind
must be read subject to Lambert [2002] that where appropriate the words 'to prove' or akin
to this e.g. ‘show’ may be read down under s3 HRA so as to impose on an accused no more
than an EB.
Examples:
• s2 Homicide Act 1957; on murder charge it is for the defence to prove the person
charged is not liable to be convicted of murder. Where diminished responsibility is
raised – onus on defence to prove on BOP. S2 does not contravene ECHR and should not
be read down as only imposing on the defence an EB. S2 leaves it to the defence to
decide whether the issue of DR should be raised; if J detects evidence of DR but defence
do not raise it, J not bound to direct jury to consider the matter but at most should in
the absence of the jury draw the matter to attention of defence.
• s1 Prevention of Crime Act 1953→ P not required to prove that the accused had
offensive weapon with him with the intention of causing injury to the person; if
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