Burden and Standard of Proof.docx

*[Burden and Standard of Proof -- 2 Q's]* *What are the two types of burden?* - There are two principal kinds of burden, the legal burden and the evidential burden. The legal burden is a burden of proof, i.e. a burden imposed on a party to prove a fact or facts in issue. In some case...

*[Burden and Standard of Proof -- 2 Q's]* *What are the two types of burden?* - There are two principal kinds of burden, the legal burden and the evidential burden. The legal burden is a burden of proof, i.e. a burden imposed on a party to prove a fact or facts in issue. In some cases the legal burden in relation to some of the facts in issue will be on one party, and the legal burden in relation to another (or others) will be on the other party. 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. - Any statutory provision imposing a legal burden on the accused may be open to challenge on the basis of incompatibility with Article 6(2) of the ECHR. What is a legal burden? - The legal burden is sometimes referred to as the persuasive burden or the risk of non-persuasion, phrases which indicate 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, 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. *What is evidential burden?* - The evidential burden is not a burden of proof but 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. - 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. - 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. Thus, 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 and 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. - Although 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. *How to discharge burden 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. *How to discharge burden 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'. - In no case is the accused called upon to prove a fact beyond reasonable doubt: the standard of proof is proof on the balance of probabilities. What is the general rule on the legal burden? - The general rule is that the prosecution bear the legal burden of proving all the elements in the offence necessary to establish guilt. - Swift J directed the jury that, once it was proved that D shot his wife, D bore the burden of disproving malice aforethought. The House of Lords held this to be a misdirection. - But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner 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 averments. Thus, in a case of rape the prosecution bear the burden of proving that the complainant did not consent. - Furthermore, if capacity to consent is in issue, the prosecution will also bear the burden of proving incapacity. *Mandry* also illustrates that there is a limit to what can reasonably be required of the prosecution when seeking to prove a negative. There are only three categories of exception to the general rule as laid down in Woolmington v DPP -- a. insanity; b. express statutory exceptions; and c. implied statutory exceptions. Statutory exceptions are sometimes referred to as reverse onus provisions. *What is the exception in the 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). - 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 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. *What about express statutory exceptions?* Statute may expressly cast on the accused the burden of proving a particular issue or issues. The legal burden in relation to all other issues in such cases will remain on the prosecution, in accordance with the general rule. In appropriate circumstances the words 'to prove' may be read down under the HRA 1998, s. 3, so as to impose on an accused no more than an evidential burden. On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder. (statutory exception) - Crim LR 424). Section 2(2) does not contravene the ECHR, Article 6(2), and should not be read down as imposing on the defence only an evidential burden Where the defence of diminished responsibility is raised, the onus is on the defence to prove it on a balance of probabilities. Section 2(2) leaves it to the defence to decide whether the issue of diminished responsibility should be raised; if, therefore, 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. In the case of an offensive weapon per se, 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, the onus is on the accused to prove on a balance of probabilities lawful authority or reasonable excuse for the possession. In the case of an article not made or adapted for use for causing injury to the person, the onus is on the prosecution to prove that the accused carried it with the intention of using it to injure; and if the jury are satisfied as to this, and the issue of lawful authority or reasonable excuse has been raised, the onus is on the accused to prove on a balance of probabilities such authority or excuse. 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. *What about the Human Rights Act?* - Any reverse onus provision is open to challenge on the basis of incompatibility with the ECHR, Article 6(2), which provides that 'everyone charged with a criminal offence shall be presumed innocent until proved guilty according to the law'. However, a reverse onus provision will not inevitably give rise to a finding of incompatibility 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. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. But 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. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case. The Court of Appeal, reversing the decision of Aikens J, held that the Official Secrets Act 1989, ss. 2(3) and 3(4), could be 'read down' so as to impose only an evidential burden on the accused, on the basis that a reverse burden was not a necessary element in the operation of ss. 2 and 3, it being 'practicable' to require the prosecution to prove that the accused knew or had reasonable cause to believe that the information disclosed related to such matters as 'defence', and that its disclosure would be damaging. *What is the general rule on evidential burden?* A party bearing the legal burden on a particular issue will also bear the evidential burden on that issue. Thus, as a general rule, the prosecution bear both the legal and evidential burden in relation to all the elements in the offence necessary to establish guilt; and 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 Although, concerning insanity, in rare and exceptional cases the judge may of his or her own motion raise the issue and leave it to the jury. numerous common-law and statutory defences, however, "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. - 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. Where D was acquitted of rape, the defence being consent, but convicted of buggery, 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, notwithstanding that there was no evidence that the penetration, if it had occurred, was accidental". The above principles relate to the foregoing defences -- Self Defence -- - D was convicted of wounding with intent to cause grievous 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. - 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"; but when there was sufficient evidence to raise a prima facie case, the issue should be left to the jury. - 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. Duress -- - The 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. Alibi -- - 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, that 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 and ideally it should be given. - 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. What is the standard of proof? *General guidance when it\'s on the prosecution --* - 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. - In a prosecution under the Mental Capacity Act 2005, s. 44, for ill-treatment or neglect of a person who lacks capacity (see B2.161), the prosecution must prove lack of capacity only on a balance of probabilities. The directions when the burden is on the 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. - The time-honoured formula was that the jury must be satisfied beyond reasonable doubt (*Ferguson v The Queen \[1979\] 1 WLR 94* per Lord Scarman), a phrase approved by the House of Lords (*Woolmington v DPP).* - The favoured phrase is that before the jury can return a verdict of guilty, they must be sure that the accused is guilty. - 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. - It is axiomatic that a jury cannot be 'sure' of guilt if there is a possibility that the accused may not be guilty. - 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. - In cases of historic allegations of sexual abuse, although delay creates difficulties for both the prosecution and the defence, it is inadequate to suggest to the jury that the disadvantages apply equally; 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. What about directions when legal burden is on the defence? - In the exceptional cases in which the legal burden of proving an issue is borne by the defence (see F3.8 et seq.), it is discharged by proof on a balance of probabilities. - The trial judge directed the jury that the burden on D was as heavy as that normally resting on the prosecution. Humphreys J, quashing the conviction, said (at p. 612) that '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'. Definition -- '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.'