BURDEN AND STANDARD OF PROOF

INCRIMINAL PROCEEDINGS

Facts in Issue

•These are the issues that the prosecution are required to prove (or disprove) in order to prove the guilt of the accused and the issues that the defence are required to prove in order to prove a defence they have raised.

•The defence do not raise a fact in issue where a defence merely amounts to a denial of the prosecution case

Legal Burden of Proof: general rule

•Subject to exceptions (considered below) the legal burden of proving (and disproving) all facts in issue in criminal proceedings is borne by the prosecution (Woolmington principle)

•Thus, the general rule is that the prosecution must prove the elements of the offence (actus reus and mens rea) and must disprove the facts in issue raised by the accused’s defences

Standard of Proof (legal burden on prosecution)

•The standard of proof which the prosecution must reach in order to discharge the legal burden is the criminal standard of proof, namely, “proof beyond reasonable doubt” •In practice, juries are often directed that they must be “satisfied so you feel sure”, this direction does convey the appropriate standard of proof•Whilst absolute certainty is not required, the jury should not convict if there is more than a remote or fanciful possibility that the accused is not guilty, and judges must avoid misdirections that convey too low a standard, such as “satisfied” or “reasonably sure”

Example: murder and provocation

Where the accused is charged with murder and the defence of provocation is in issue:

• prosecution must prove elements of murder beyond reasonable doubt and

• prosecution must disprove defence of provocation beyond reasonable doubt

Woolmington exceptions (where legal burden of proving

defence borne by accused)

•Insanity (the only common law defence which imposes a legal burden of proof on the accused); or•express statutory exceptions (i.e. where a statute expressly imposes the legal burden of proving an defence on the accused) (e.g. diminished responsibility, under s.2(2) HA 1957); or•implied statutory exceptions (i.e., where a statute implicitly imposes the legal burden of proving a defence on the accused), governed (Magistrates) by s.101 MCA 1980 or (Crown Court) by equivalent common law principle (e.g. selling liquor without a licence)

Implied statutory exceptions

•Essentially, implied statutory exceptions will exist where a statute prohibits a type of conduct but permits it in specified circumstances, or by a specified class of person or by a person with specified qualifications or by a person granted a licence or permission by a specified body but in determining whether a statute imposes a legal burden of proof on the accused by implication the court must construe the provision to determine the intention of Parliament, should not be too ready to construe a statute as having this effect and factor such as the difficulty of defence in proving or prosecution in disproving the issue may be relevant.

Human Rights

•Article 6(2) of the European Convention on Human Rights provides that “everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law”.•The imposition of a legal burden of proof upon the accused does not necessarily give rise to a violation of Article 6(2) •The question is essentially whether the requirement falls within reasonable limits which take into account the importance of what is at stake and maintain the accused’s rights

Human Rights Continued

• Derogation from Article 6(2) does not violate Article 6(2) if it is justified and is reasonably proportionate to Parliament’s legitimate aim (i.e. is there a reasonable balance between the public interest and the accused’s interests)

• There must be a compelling reason for imposing a legal burden of proof on the accused, and the greater the penalty the more compelling it must be

Human Rights Continued

• In determining whether imposing a legal burden of proof on D ( the accused) would violate Article 6(2), relevant factors appear to include: whether the requirement relates to an essential element of the offence; its purpose; whether the offence is merely “regulatory”; how difficult it is likely to be for D to satisfy the legal burden; the difficulty for the prosecution if D was not required to satisfy the legal burden; what D has at stake; the presumption of innocence; Parliament’s view as to what is in the public interest; whether the requirement infringes the principle of proportionality by interfering more than is necessary with the presumption of innocence

Human Rights Continued

• If imposing a legal burden of proof upon the accused expressly or by implication would violate Article 6 the court may be required to read the relevant statutory provision down under section 3(1) of the HRA 1998 as merely imposing an evidential burden thereupon.

Standard of Proof where accused bears legal burden

•Where the accused bears the legal burden of proving a fact in issue, the standard of proof is “proof on the balance of probabilities” (i.e. “more probable than not”)

Example: (express statutory exception) murder and diminished

responsibility

•Prosecution must prove elements of murder beyond reasonable doubt

•Defence must prove diminished responsibility (where the accused relies upon this defence) on the balance of probabilities

(i) The prosecution must disprove the defence beyond reasonable doubt.

(ii) The prosecution must prove the actus reus of the offence beyond reasonable doubt.

(iii) The prosecution must prove the mens rea of the offence beyond reasonable doubt.

(iv) The defence must prove the defence on the balance of probabilities.

Fred is charged with murder and relies upon

the defence of diminished responsibility.

Which is/are true

(ii), (iii) and (iv) are true

Fred is charged with murder and relies upon

the defence of diminished responsibility. Which is/are true

ANSWER

Example: (implied statutory exception) selling liquor without a

licence

•Prosecution must prove sale of liquor by accused beyond reasonable doubt•Defence must prove that accused possessed a licence (where the accused relies upon this defence) on the balance of probabilities

Rajeev is charged with felling trees without a licence where one was required by s.9 of the Forestry Act 1967. Neither

party adduces evidence to prove or disprove that Rajeev possessed a licence at the relevant time. Which one is true?

[a] The prosecution must make the tribunal of fact reasonably satisfied that Rajeev did not possess a licence.

[b] The defence must prove beyond reasonable doubt that Rajeev possessed a licence.

Rajeev is charged with felling trees without a licence where one was required by s.9 of the Forestry Act 1967. Neither

party adduces evidence to prove or disprove that Rajeev possessed a licence at the relevant time. Which one is true?

ANSWER:

Both are false

Evidential burden: no case to answer?

•Is there a case to answer? Prosecution evidence must raise a prima facie case of the accused’s guilt—(Galbraith test, i.e. no case to answer if no evidence on a fact in issue or if properly directed jury could not convict on the evidence)

[a] The defence have a case to answer.

[b] There is no case to answer.

Ayesha is charged with the theft of a diamond necklace. The prosecution fail to

adduce evidence to prove that the necklace belonged to someone other than

Ayesha. Which one is true?

[b] is true

Ayesha is charged with the theft of a diamond necklace. The prosecution fail to

adduce evidence to prove that the necklace belonged to someone other than

Ayesha. Which one is true?

ANSWER

Evidential burdenin relation to a defence which does not form a Woolmington

exception

• Where a defence does not form an exception to the Woolmington principle (e.g. provocation, duress, self-defence)

• then; there must be evidence before the court (not necessarily adduced by the accused) sufficient to raise the defence (this would appear the be the case if, viewed at its highest, the evidence would be capable of putting a reasonable doubt in the jury’s mind)

• in which case ; the prosecution bear the legal burden of disproving the defence and the judge must leave the defence to the jury even if the accused does not wish to rely upon it .

Example: murder and provocation

•Prosecution must prove elements of murder beyond reasonable doubt•Prosecution must disprove provocation (if there is evidence of provocation before the court to raise the defence, regardless of which party adduced the evidence) beyond reasonable doubt

(i) The prosecution must disprove the defence of self defence beyond reasonable doubt

(ii) The prosecution must disprove the defence of provocation beyond reasonable doubt

(iii) The accused must prove the defence of self defence on the balance of probabilities

Fred is charged with murder and relies upon the defence of self defence. A defence witness

testifies that Fred acted in self defence. A prosecution witness testifies that Fred was

provoked.

Which is/are true?

(i) and (ii) are true

Fred is charged with murder and relies upon the defence of self defence. A defence witness

testifies that Fred acted in self defence. A prosecution witness testifies that Fred was

provoked.

Which is/are true?

ANSWER

Evidential burden in relation to “defences” which do not raise

new issues• Where a “defence” (e.g. reasonable belief in consent

with rape) does not raise a new issue, then• the accused does not even bear an evidential burden,

because • the defence merely amounts to a denial of an issue

raised by the prosecution (e.g. in the case of reasonable belief in consent, the accused is merely denying that he possesses the requisite mens rea)

• [As was seen above, the prosecution will of course need to establish a case to answer in relation to the issues that they have raised.]

[a] The issue of reasonable belief in consent should not be left to the jury.

[b] The prosecution must disprove reasonable belief in consent beyond reasonable doubt.

Saul is charged with rape. He pleads not guilty but his defence is merely to offer no evidence and to put the prosecution

to proof.

Which one is true?

[b] is true

Saul is charged with rape. He pleads not guilty but his defence is merely to offer no evidence and to put the prosecution

to proof.

Which one is true?

ANSWER

Evidential burden in relation to defences which form Woolmington

exceptions

• The accused bears the evidential burden and the legal burden (in relation to a defence such as diminished responsibility or proving that he has a licence to sell liquor) and may decide not to rely upon the defence

• If the accused does not rely upon the defence it should not be left to the jury even if there is evidence before the court capable of raising it (if accused raises insanity or diminished responsibility, prosecution are entitled to raise (and prove) the other defence (s.6Criminal Procedure (Insanity) Act 1964))

Admissibility of Evidence

• Where the admissibility of evidence depends upon the resolution of a question of fact, the burden of proving the fact is borne by the party tendering the evidence

• The standard of proof (unless statute provides otherwise, e.g. in relation to the competence of a witness) is proof beyond reasonable doubt where the burden is borne by the prosecution and is proof on the balance of probabilities where the burden is borne by the accused

(i) The prosecution must prove beyond reasonable doubt that X does not testify through fear.

(ii) The defence must prove on the balance of probabilities that Y is outside the UK etc.

Under s.116 CJA 2003, the prosecution wish to rely on X’s hearsay statement and the defence wish to rely on Y’s hearsay statement. The prosecution assert that X does not testify through fear. The defence assert that Y does not testify because he is outside the UK and it

is not reasonably practicable to secure Y’s attendance.

Which is/are true?

They are both true

Under s.116 CJA 2003, the prosecution wish to rely on X’s hearsay statement and the defence wish to rely on Y’s hearsay statement. The prosecution assert that X does not testify through fear. The defence assert that Y does not testify because he is outside the UK and it

is not reasonably practicable to secure Y’s attendance.

Which is/are true?

ANSWER