#15006 - The Burden And Standard Of Proof - Criminal Procedure and Evidence

Supervision 4 – The Burden and Standard of Proof

The burden of proof

• In criminal case, legal burden normally rests with the Crown. Who will have to prove the accused’s guilt beyond reasonable doubt.

• In civil case, party bearing legal burden need only establish the case on a balance of probabilities (51%).

• Governing principle is that onus lies on prosecution to prove all elements of the offence (Woolmington).

• In civil proceedings where defendants rely on criminal defences, burden of proof is on defendant (Ashley).

• Exceptions to the general rule:

  • If accused raises insanity defence, it is for him to establish on a balance of probabilities the required elements (M’Naghten).

  • Statute may expressly place legal burden on defence.

    • For example, defence of diminished responsibility.

  • Statute may impliedly cast burden on defence.

    • Summary offences: “Where the defendant … relies for his defence on any exception, exemption, proviso, excuse or qualification … the burden of proving [that defence] … shall be on him” (Magistrates Court Act 1980, s.101)

    • Often down to the court to interpret the legislation.

    • Policy factors need to be considered (Hunt). Reversed approach in Edwards whereby offences with an exception (as a defence) can justify reversal of burden.

The evidential burden

• Evidential burden for prosecution involves establishing a prima facie case.

  • Use Galbraith test.

• Defence burden discharged by showing evidence that is beyond ‘fanciful or speculative’ (Ciccarelli).

The tactical burden

• In Schama v Abramovich, held that if you are in possession of recently stolen property, jury can infer that D knew or believed that the property was stolen.

  • D can rebut the evidential burden by bringing some evidence to the contrary. If he does not do so, he is liable to be convicted.

  • It is about trying to avoid losing a case.

• Once defence have satisfied their evidential burden, prosecution have legal burden to disprove the defence.

The judge’s ‘invisible burden’

• If there is evidence to support a defence, judge must be alert to place that defence before the jury (Calvert).

• But there may be some cases where it would undermine the fairness of the trial if an alternative verdict were left to the jury.

  • Test is what an ordinary, knowledgeable and alert trial judge would do (Coutts). Option should be left to jury even if counsel disagree.

The standard of proof

• If a case involves a jury, neither the expression ‘beyond reasonable doubt’ nor ‘balance of probabilities’ ought to be employed in any judicial instructions.

• Recommended formula for ‘balance of probabilities’ is to say that D must show that it is ‘probable’ which means more likely than not.

• For ‘beyond reasonable doubt’, judge often advised to instruct jury that they must be ‘sure’ that D is guilty.

  • In Walters, PC approved direction that invited jurors to equate reasonable doubt with one such as might influence them in dealing with important matters in their own affairs.

• Legal burden for defence is balance of probabilities (Carr-Briant).

Admissibility of evidence

• Generally, if prosecution seek to have evidence admitted the admissibility of which turns on any issue of fact, it will have to establish any such matter to the criminal standard of proof.

• But PACE, s.78 allows a judge to exclude otherwise admissible evidence.

Reversal of the burden of proof

• Duff and Roberts argue why prosecution bear legal standard of proof (lecture).

• Common law rule that an accused must prove defence of insanity held not to contravene Article 6(2) in H v UK.

• Salabiaku v France made clear that not all reverse burdens of proof would breach Article 6(2).

• In Kebilene (decided before HRA), Lord Hope was well on his way to justifying a reverse legal burden. He devised three stage test:

  • Is there a legal burden on D?

  • Is presumption mandatory or discretionary?

  • Is the burden proportional?

• In Lambert, HoL overturned CoA decision, holding that a provision in Misuse of Drugs Act 1971 was incompatible with Article 6(2).

  • Difference between Lambert and Kebilene was that maximum penalty was life imprisonment, compared to 10 years. Also, prosecution did not have to prove any moral wrongdoing in Lambert (as argued by Steyn).

• In Johnstone, despite 10 year sentence, legal burden still applied to D.

  • Facts: easy for prosecution to prove – justify reverse burden.

  • Lord Nicholls emphasised intention of Parliament, arguing that courts should only find breach of Article 6(2) if Parliament has attached insufficient importance to the latter.

• In A-G’s Reference (No 1 of 2004), disagreement between Lambert (against legal burdens) and Johnstone (for legal burdens) resolved.

  • The only case that should be cited is Johnstone. Legal burdens should generally be compatible with Article 6.

  • Sheldrake reined this attitude of deference in. Each case needs to be looked at individually.

    • No conflict between Lambert and Johnstone.

• Courts have employed distinction between ‘truly criminal’ acts and regulatory offences. More willing to allow reverse burdens in latter (Davies).

  • But nothing to suggest that ECtHR will endorse this reasoning.

  • Dennis argues against employing this distinction. There is no relation between degree of difficulty of a reverse onus for defence and the type of crime involved.

• Current approach:

  • Does impugned statutory provision actually reverse the burden of proof?

  • Is the...