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Law of Evidence - Lecture 5 - The Standard of Proof
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Lecture notes for the Law of Evidence module linked to Raitt on Evidence. Author achieved a first-class grade for the module.

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  • June 3, 2024
  • 6
  • 2020/2021
  • Lecture notes
  • Dr lesley-anne barnes macfarlane
  • Lecture 5

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Lecture 5 – The Standard of Proof
1. The Standard of Proof:

Standard of Proof: is concerned with the nature, quality and quantity of evidence required to persuade
a Court that a decision can be reached on either the balance of probabilities (Civil cases) or beyond
reasonable doubt (Criminal case).

If a Court is satisfied that the evidence produced renders a party’s case more likely than not, then it
will determine whether the relevant (civil or criminal) standard of proof has been reached. If so, the
Court will make a decision on a matter notwithstanding a degree of uncertainty remains.

NOTE:

The Standard of Proof is applied to evidence as a whole, not each adminicle (i.e. piece) of evidence

** A degree of uncertainty may remain even after standard reached.



2. Civil Cases – Probabilities and degrees of certainty:

Standard = on the balance of probabilities. Not as high or so exacting a standard as that required of
the Crown in a criminal case.

The theory is that that particular standard applies to every substantive issue which is necessary in
order to prove your case.

Mallett v McMonagle 1970 AC 166

A case involving an accident at work – it was negligence claim.

(per Lord Diplock at 176)

‘in determining what did happen in the past, a court decides on the balance of probabilities. Anything
more probable than not it treats as certain.’



A general rule:

Hendry v Clan Line Steamers 1949 SC 320

Also, a negligence action, an accident at work case. It illustrates the general rule in civil cases, which,
of course, is that the standard of proof is on the balance of probabilities.

In this case (it was a civil jury case, which is unusual), the judge was giving a direction to a civil jury and
he directed them that the pursuer had to satisfy them 'beyond reasonable doubt', that the defenders
were to blame for the accident. And of course, that was an error. And of course, that was an error.
That was a misdirection. He had taken the criminal standard of proof and applied it in a civil context.
And in the appeal, of course, that matter was put right by the Inner House, which said:

(per Lord Jamieson at 328): *

‘It is well settled that proof beyond reasonable doubt is the burden which lies on the Crown in criminal
prosecutions, and the reason for that high standard is that the Crown must displace the presumption

, of the accused's innocence. In a civil action no such presumption arises, and the standard necessary
for success is not so rigid.’

Civil Evidence (Scotland) Act 1988

Gives some guidance to courts when they're dealing with civil cases – Handout 10.



3. Criminal cases – General approach: ‘Beyond reasonable doubt’: but what does this mean?

R v Ching 1976 63 Cr App R 7 * 18 (Old English Case)

It was a trial for theft by shoplifting. And Mr Ching didn't actually shoplift an awful lot. He was seen to
put various items, three packets of chicken, a cucumber, a packet of bacon and a lemon totalling £2.20
into plastic shopping bag. When he reached the door, he was stopped by the store detective. He was
tried and convicted of theft at first instance.

He was fined £50 and told that if he defaulted on payment, he would face a three month prison
sentence. That seems like it might be fairly straightforward. But he appealed.

Why did he appeal? Well, interestingly, during the course of his trial (there was a jury there) the trial
judge issued a direction to the jury about the standard of proof.

Off they went to consider the case. The foreman of the jury came back after some time saying that
they were a bit puzzled by just what a criminal standard of proof actually meant. The judge issued
them with a further direction. So he said this:

At first instance (Lawton LJ, quoting, at 8):

‘Perhaps I can give you this further direction. It is the duty of the prosecution to prove the charge on
the whole of the evidence beyond a reasonable doubt. A reasonable doubt, it has been said, is a doubt
to which you can give a reason as opposed to a mere fanciful sort of speculation such as 'Well, nothing
in this world is certain, nothing in this world can be proved.' As I say, that is the definition of a
reasonable doubt; something to which you can assign a reason. It is sometimes said the sort of matter
which might influence you if you were to consider some business matter. A matter, for example, of a
mortgage concerning your house, or something of that nature. Does that assist?’

'Well, yes,' said the jury, 'Thank you very much. That does assist.' And off they went, and four minutes
later they came back with a verdict that the accused was guilty. The accused appealed on the basis
that the judge's direction to the jury had the effect of actually lowering the standard of proof and
actually had made easier for them to convict. Is beyond reasonable doubt a doubt to which you can
assign a reason? Probably not, that’s probably lowering the standard of proof. The appeal court was
not happy to have an appeal on this matter and brought before them. This is what they said:

On appeal (Lawton LJ at 10; 11):

‘… judges would be well advised not to attempt any gloss upon what is meant by ‘sure’ or what is
meant by ‘reasonable doubt.’ In the last two decades there have been numerous cases before this
Court, some of which have been successful, some of which have not, which have come here because
judges have thought it helpful to a jury to comment of what the standard of proof is. Experience in
this Court has shown that such comments usually create difficulties. They are more likely to confuse
than help.’

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