burden and standard of proof

• Legal burden of proof (BOP)


  • AKA probative burden, onus of proof, or simply BOP
  • It Is the legal obligation that's on a party to satisfy the factfinder that certain facts are true, to the specified standard of proof
  • Generally refers to facts in issue, but can also apply to related matters e.g how a confession was obtained
• If the party who bears BOP fails to discharge it to required standard and satisfaction of factfinder, the issue will be decided in favour of the other party
• Where the BOP rests

  • Criminal cases - NORMALLY rests with prosecution, the Crown
  • Civil cases - general rule that "he who asserts must prove" applies, normally lies with claimant
• Evidential BOP


  • Merely a provisional burden and its of a lower standard of legal BOP
  • Its an obligation on a party to adduce enough evidence to satisfy the judge that the issue should be left to the trier of fact for consideration
  • No obligation to prove anything, its just meeting this lower standard
• Scholars/Judges have argued evidential burden isn't a BOP at all due to its much lower BOP and it is not really a burden to prove anything
• Tactical Burden


  • May arise if enough evidence appears to be introduced to prove their case (Prima facie)
  • Doesn't shift legal BOP on D, but in those circumstances it may be sensible to D to try introduce their own evidence to counter other evidence
  • NOT THE SAME AS LEGAL BOP
• The 'Golden Thread' of criminal law


  • It's a central feature that the prosecution bears the burden of proving the guilt of the accused person beyond reasonable doubt
  • Prosecution must prove all elements of the offence (actus reus, mens rea, absence of defence)
• Woolmington v DPP set out this new principle


  1935
• Presumption of Innocence (POI)


  • Innocent until proven guilty beyond reasonable doubt
  • Practical implications of placing BOP of prosecution if wrong decision is made
  • Liberal societies considers its better to let guilty person go free that wrongfully convict innocent
• POI is protected under article 6 (2) ECHR
• Exceptions to the Woolmington rule are known as 'reverse onuses'
• Insanity defence


  • If D wishes to raise this defence, they bear burden of proving (M'Naghten rule)
  • Accused must establish on the balance of probabilities he was suffering from defect of reason, disease of mind, as to not know the nature and quality of his act, or if he did know, not to know it was wrong
• Statutory Provisions (SP)


  • Can either be express SP or implied SP
  • Meaning expressly or imply the burden on D
• Prosecution still have BOP on all other issues e.g mens rea even if SP places burden on D
• Express Statutory Provisions


  • e.g. diminished responsibility, regulatory offences
  • Usually justifies on basis that it would be hard for prosecution to obtain evidence, while its an issue that would be easy for D to prove
• Implied Statutory Provisions


  • Many of these arise from s.101 Magistrates Court Act 1980
  • R v Hunt 1987 affirmed the use of implied SP, depending on circumstances in each case
• Scholars argue a significant tarnishing of the goals of the golden thread from Woolmington, because of a significant increase in the numbers of these statutory exceptions
• Research shows 40% of serious offences also departed from Woolmington rules – suggesting BOP is departing from POI too easily
• Reverse Onus Provisions (ROP) and the HRA

  • Article 6 ECHR provides "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law"
  • Placing legal burden on accused will not always be incompatible with article 6 (2) as POI is not an absolute right under the convention and it can be qualified with certain conditions
• Salabiaku v France and Janosevic v Sweden 2004 demonstrate that the Strasbourg court gave further guidance on what constitutes a valid restriction on POI
• Domestic courts' consideration of ROP and HRA

  • Its all about consideration of the appropriate balance to be stuck between legitimate aim pursued by the state in preventing some crime, and the rights of the defence
  • Kebilene case - 3 questions to determine the balance being fair: 1) how much did the crown have to prove before onus was transferred to the defence? 2) what is the burden of the accused? 3) what is the nature of the threat faced by society that the provision is designed to combat?
• Section 3 HRA requires legislation to be read, insofar as possible, in a manner compatible with ECHR obligations