A well written and detailed Law of Evidence lecture notes containing outstanding explanation of each particular area of land. Extremely descriptive approach allows you to understand the Law of Evidence more effectively, providing tremendous fundaments for achieving the best possible grade. Apart o...
Burden of Proof - The job of proving or disproving certain facts
Standard of Proof - The degree of cogency or persuasiveness of evidence needed
to discharge the burden of proof
LEGAL AND EVIDENTIAL BURDEN
Legal – The burden of proving a fact in issue
Evidential – The burden of putting forward sufficient evidence to make a fact a ‘live’
issue
CRIMINAL PROCEEDINGS
General Rule - The prosecution bears the overall legal burden of proving the
defendant’s guilt.
It will also usually bear the evidential burden.
Woolmington v DPP [1935]
- Did D have to prove accident?
- Did P have to disprove accident?
DEFENCE BEARING LEGAL BURDEN
- Problems with the defence being required to bear a legal burden?
- Conflict with the presumption of innocence
- Conflict with the tenet that the prosecution must prove its case
- A-G’s Ref (4 of 2002) [2005]
There are some situations where the defence may bear a legal burden in a criminal
case – remember that this will mean that the defence must do more than just put
forward enough evidence to make it a live issue, the defence must actually prove the
matter in issue to the required standard of proof.
Why might this be a problem?
Article 6(2) states that there is a presumption of innocence. Making the D prove his
innocence means that we may effectively be starting from the position that he has to
account for and explain away his guilt. There is also potentially a conflict with the
‘golden thread’ which holds that the P must prove its case (although note that
Viscount Sankey did envisage that there might be exceptions).
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