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Burden and Standard of Proof - Coggle Diagram
Burden and Standard of Proof
The legal burden is a burden of proof, imposed on a party to prove a fact or facts in issue
For example, if insanity is raised by way of defence, the legal burden on that issue is on the defence,
Whereas the legal burden on the other facts in issue is on the prosecution
Incidence of the Evidential Burden: General Rule
The party bearing the legal burden on a particular issue will also bear the evidential burden on that issue
The general rule, the prosecution bear both the legal and evidential burden in relation to all the elements in the offence necessary to establish guilt
Where the defence bear the legal burden of proving insanity or, by virtue of an express or implied statutory exception, some other issue, they will also bear the evidential burden in that regard
The evidential burden is on the defence, and, if it is discharged so that the defence in question is put before the jury, the legal burden is then on the prosecution to disprove such defence
Although it is said in these cases that the evidential burden is on the defence, that burden will be discharged whenever there is sufficient evidence in relation to the defence to leave it to the jury;
The evidence may be adduced by the defence (or elicited by them in cross-examination), or it may be given by a prosecution witness (or a co-accused) giving evidence-in-chief or it may be given in any other way
Where such a defence arises upon the evidence called by any party, then whether or not it has been mentioned by the defence, the judge must leave it to the jury
If there is no evidence to support the defence upon which an accused seeks to rely, the judge is entitled to withdraw it from the jury
However, in a case where D was acquitted of rape, the defence being consent, but convicted of buggery (anal sexual intercourse), which he denied, an appeal against conviction was allowed on the grounds that the judge had omitted to direct the jury that accidental penetration would not suffice
There was no evidence that the penetration, if it had occurred, was accidental
Discharge of Burdens Borne by the Prosecution
If the evidential burden on a particular issue is borne by the prosecution, it is discharged by the adduction of sufficient evidence to justify as a possibility a finding by the tribunal of fact that the legal burden on the same issue has been discharged,
In other words 'such evidence as, if believed and if left uncontradicted and unexplained, could be accepted by the jury as proof'
If the prosecution bear both the evidential and legal burden on a particular issue and discharge the evidential burden, it does not necessarily follow that they will succeed on that issue
The issue in question will go before the jury for them to determine whether or not the legal burden has been discharged.
However, if the prosecution bear both the legal and evidential burden on an issue and fail to discharge the evidential burden, they will necessarily fail on that issue, since the judge will withdraw that issue from the jury
Questions relating to the sufficiency of the evidence adduced by the prosecution may be raised by the judge of his or her own motion, but usually arise on a defence submission of no case to answer after the prosecution have closed their case
Express Statutory Exceptions Statute
An example of an express statutory exception is the Homicide Act 1957, s. 2
On a charge of murder, it shall be for the defence to prove that the person charged not liable to be convicted of murder
Where the defence of diminished responsibility is raised, it is on the defence to prove it on a balance of probabilities
If the judge detects evidence of diminished responsibility but the defence do not raise the issue
The judge is not bound to direct the jury to consider the matter, but, at most, should in the absence of the jury draw the matter to the attention of the defence so that they may decide whether they wish the issue to be considered by the jury
Another example of an express statutory exception is the Prevention of Crime Act 1953, s. 1
In the case of an offensive weapon, the prosecution are not required to prove that the accused carried it with the intention of using it to cause injury to the person
If possession in a public place is proved, it is on the accused to prove on a balance of probabilities lawful authority or reasonable excuse for the possession
In the case of an weapon not made or adapted for use for causing injury to the person, it is on the prosecution to prove that the accused carried it with the intention of using it to injure
If the jury are satisfied as to this, and the issue of lawful authority or reasonable excuse has been raised, it is on the accused to prove on a balance of probabilities such authority or excuse
A final example is the Homicide Act 1957, s. 4(2) Where it is shown that a person charged with the murder of another killed the other or was a party to his … being killed, it shall be for the defence to prove that the person charged was acting in pursuance of a suicide pact between him and the other'
Usual Direction where Legal Burden on Prosecution
It is the duty of the judge in the summing-up to make it clear to the jury what standard of proof the prosecution are required to meet
It is not a matter of some precise formula or particular form of words being used; what matters is the effect of the summing-up
If a judge fails to give a direction, it is no answer that jurors know about 'beyond reasonable doubt' or that the standard was stressed by the advocates in their speeches
Although the law requires no particular formula, judges are wise, as a general rule, to adopt one
The time-honoured formula was that the jury must be satisfied beyond reasonable doubt
The favoured phrase is that before the jury can return a verdict of guilty, they must be sure that the accused is guilty
This direction is designed to avoid the difficulties juries encounter with the concept of beyond reasonable doubt
In the normal case, the judge should not explain that 'sure of guilt' is the same as proof of guilt beyond reasonable doubt and not the same as absolute certainty
However, such an explanation will not make a conviction unsafe if the judge made it sufficiently clear that the jury had to be sure of guilt before they could convict
Where the phrase 'beyond reasonable doubt' has been used in the trial, e.g., by counsel in their speeches, the jury should be directed that it is the same as being sure
In cases which turn on whether the accused or the complainant is telling the truth, it is important for the judge not to give the impression that the jury simply have to decide who to believe;
The jury must be told that, in order to convict, they must be sure that the complainant was telling the truth
Similarly, in cases of historic allegations of sexual abuse
The judge should emphasise that, if the defence may have been prejudiced, the jury should have regard to that fact when considering whether the prosecution had made them sure of the guilt of the accused
Evidential Burden
The evidential burden is the burden of adducing evidence or 'the duty of passing the judge',
In other words, the burden imposed on a party to adduce sufficient evidence on a fact or facts in issue to satisfy the judge that such issue or issues should be left before the tribunal of fact
In some cases, the evidential burden on some of the facts in issue will be on one party and the evidential burden on another (or others) will be on the other party
Very often a party bearing the legal burden on an issue also bears the evidential burden on that issue
However, in the case of many defences (including, for example, self-defence), the evidential burden in relation to the defence is on the accused and the legal burden in relation to the defence is on the prosecution
If there is no evidence sufficient to justify a jury concluding that the defence is established, the issue will be withdrawn from them, and such withdrawal will not amount to a breach of the ECHR, Article 6
However, if there is sufficient evidence for the defence to be put before the jury, the legal burden of disproving it will be on the prosecution
This will be the case even if the judge takes the view that the evidence is most unlikely to be of sufficient cogency or strength to be accepted by the jury
Normally a judge will not leave a particular defence to the jury until the conclusion of the evidence, in rare cases in which the precise nature of the evidence to be called is clear it may be appropriate for the judge to indicate at an earlier stage what the ruling is likely to be
If, during a trial, a judge indicates that a particular defence will be left to the jury, but later changes that view, the judge should inform the defence, because they may then wish to give more evidence on the matter and the defence advocate may wish to seek to persuade the judge not to withdraw the issue
Self-defence
For example, where the D was convicted of wounding with intent to cause a bodily harm
There was some evidence to support his defence of self-defence
The trial judge directed the jury that it was for the defence to establish that plea to their satisfaction
The conviction was quashed on the grounds that this was a misdirection
Although the prosecution are not obliged to give evidence-in-chief to rebut a suggestion of self-defence before the issue is raised, once there is sufficient evidence to leave the issue before the jury, it is for the prosecution to disprove it beyond reasonable doubt
There may be evidence of self-defence even if the defence of the accused is one of alibi
For example, in a case of stabbing in which the defence was one of alibi, it was held, rejecting the contention that the evidence of the Crown witnesses had raised the issue of self-defence, that the question whether there was sufficient evidence to leave an issue before the jury was a question for the trial judge to answer by applying common sense to the evidence
It was held that since, in the particular circumstances of the case, it was extremely difficult to disentangle the defences of self-defence and accident and unwise to approach the facts as if they fell within mutually exclusive compartments, both defences should have been left to the jury
Incidence of Legal Burden: General Rule
The general rule is that the prosecution bear the legal burden of proving all the elements in the offence necessary to establish guilt
While the prosecution must prove the guilt of the accused
There is no such burden laid on the accused to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence
The prosecution bear the burden of proving all the elements in the offence, even if this involves proving negative statements
For example, in a case of rape the prosecution bear the burden of proving that the complainant did not consent
Similarly, the prosecution bear the burden of proving absence of consent on a charge of assault
Furthermore, if capacity to consent is in issue, the prosecution will also bear the burden of proving incapacity
There are only three categories of exception to the general rule:
Insanity;
Express statutory exceptions; and
Implied statutory exceptions-which means that a statute can place the legal burden of proof on the accused not only expressly but also by implication, i.e. on its true construction
Alibi
An Alibi is a claim or piece of evidence that one was elsewhere when an act, is alleged to have taken place:
Although there is no general rule of law that in every case where alibi is raised the judge must specifically direct the jury, quite apart from the general direction on burden and standard of proof,
It is for the prosecution to negative the alibi, it is the clear duty of the judge to give such a direction if there is a danger of the jury thinking that an alibi, because it is called a defence, raises some burden on the defence to establish it
It is a common and good practice to give such a specific and additional direction in any event
It was held that a special direction is necessary if the nature of the alibi is that the accused was at a specific place elsewhere, raising the question why the accused did not call witnesses in support, but is unnecessary if the evidence amounts to little more than a denial that the accused committed the crime
Legal Burden
The legal burden is sometimes referred to as the persuasive burden or the risk of non-persuasion
Which indicates that 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 standard of proof
The standard of proof required to discharge the legal burden varies according to whether the burden is borne by the prosecution or defence
If the legal burden is borne by the prosecution, the standard required is proof beyond reasonable doubt
If the legal burden is borne by the accused/ defence, the standard required is proof on a balance of probabilities
The accused NEVER bears the heavier burden of proof beyond reasonable doubt
The question whether a party has discharged a legal burden is decided by the tribunal of fact, whether jury or magistrates, at the end of the trial after all the evidence has been presented
Standard of Proof: General Rule
The standard of proof means the degree to which proof must be established by a party bearing a burden of proof
The standard required of the prosecution before the tribunal of fact can find the accused guilty is proof such that the jury are sure of the accused's guilt
This means that the jury must be sure on all the evidence and does not mean that a single item of evidence will not be admissible unless it is capable, by itself, of proving the case against the accused
The prosecution must prove lack of capacity only on a balance of probabilities
Where the legal burden on a particular issue is borne by the accused, the standard required of the defence before the tribunal of fact can find in favour of the accused on that issue is proof on a balance of probabilities
Discharge of Burdens Borne by the Defence
If the accused bears both the evidential and the legal burden on a particular issue
For example, insanity, the evidential burden is discharged by the adduction of such evidence as might satisfy the jury on the probability of that which the accused is called upon to establish
If the accused bears the evidential but not the legal burden on a particular issue
For example, self-defence, the evidential burden is discharged by the adduction of such evidence as 'might leave a jury in reasonable doubt'
The accused is called upon to prove the standard on the balance of probabilities
Incidence of the Legal Burden: the Human Rights Act 1998
ECHR, Article 6(2), which provides that 'everyone charged with a criminal offence shall be presumed innocent until proved guilty according to the law'
The court should focus on the particular circumstances of the case and strike a reasonable balance between the general interest of the community and the protection of the fundamental rights of the individual
A trial should be fair, and the presumption of innocence is a fundamental right directed to that end
The substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable
Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption.
Security concerns do not absolve member states from their duty to observe basic standards of fairness
Duress
The Prosecution/Crown are not called upon to anticipate a defence of duress and disprove it in advance
But if the accused places before the court such material as makes duress a live issue, fit and proper to be left to the jury
It is for the Crown to disprove that defence in such a manner as to leave in the jury's mind no reasonable doubt that the accused cannot be absolved on the grounds of the alleged compulsion
Direction where Legal Burden on Defence
The classic definition of proof on a 'balance of probabilities' is If the evidence is such that the tribunal can say: “We think it more probable than not”, the burden is discharged, but, if the probabilities are equal, it is not
In the exceptional cases in which the legal burden of proving an issue is borne by the defence it is discharged by proof on a balance of probabilities
The jury should be directed that … the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt, and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish'
Exception in Case of Defence of Insanity
If the accused raises the defence of insanity
The accused will bear the burden of proving it on a balance of probabilities
Under the Criminal Procedure (Insanity) Act 1964, s. 6, if the accused is charged with murder and raises one of two issues, either insanity or diminished responsibility,
The court shall allow the prosecution to adduce evidence tending to prove the other of those issues
The burden on the prosecution will be to prove the other of those issues beyond reasonable doubt
Where on a trial for murder the accused contends—
That at the time of the alleged offence he was insane so as not to be responsible according to law for his actions; or
That at that time he was suffering from such abnormality of mental functioning
The court shall allow the prosecution to adduce or elicit evidence tending to prove the other of those contentions, and may give directions as to the stage of the proceedings at which the prosecution may adduce such evidence
If an accused is alleged to be under a disability rendering the accused unfit to plead and stand trial on indictment, the issue may be raised by either the prosecution or defence
If the prosecution contend that the accused is under such a disability and this is disputed by the defence, the burden of proof is on the prosecution to satisfy the court beyond reasonable doubt
If the defence contend that the accused is under such a disability, the burden is on the defence on a balance of probabilities