Burden and standard
of proof; presumptions
The allocation of the burden of proof in both civil and criminal trials turns on the decision as to who should bear the risk of losing the case. That allocation is decided by common law and by statute. In criminal trials the ‘presumption of innocence’ means that the burden of proof will be on the prosecution, unless this is reversed by some express or implied statutory provision. Here the law of evidence safeguards what in some other jurisdictions is a matter of individual civil rights backed up by a tenet of the constitution.
In answering questions in this area, you must understand the difference between the legal and the evidential burden and the occasions where they are separately allocated. It is helpful to see the evidential burden primarily as an aspect of the sensible proposition that there must be a degree of evidence on asserted issues before they can be a matter for the trial. It is for the judge then to decide whether the assertion can go before the jury. Thus the prosecution has to adduce enough evidence of the guilt of the accused for the judge to be satisﬁed that there is a case to answer. In other words, it has the evidential burden. Here, the prosecution also has the legal burden on the same matter and this is the normal state of affairs directed at convincing the jury of the defendant’s guilt beyond reasonable doubt (the criminal standard). The tricky areas are those where there is a divorce of the legal and evidential burden. These arise primarily in situations where the prosecution cannot be expected to put up evidence to anticipate every speciﬁc defence the accused may present. Thus in order to plead self-defence the accused will have to provide some evidence to enable the court to consider the matter. The legal burden stays with the prosecution.
It is somewhat misleading to refer to a single burden of proof in a trial. The burden may relate to several different speciﬁc facts in issue. Burdens may be allocated
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Burden and Standard of Proof; Presumptions
between the parties in relation to these different facts in issue. This is particularly so in civil cases but may also occur in criminal cases. In civil cases the principle ‘He who asserts must prove’ means that the burden may shift according to who is trying to establish a relevant fact in issue. In criminal cases the presumption of innocence means that as a general principle the burden of proving actus reus and mens rea lies on the prosecution. Statutes may impliedly or expressly shift that burden, however. The enactment of the Human Rights Act 1998 has affected the allocation of the burden of proof in criminal cases. It is arguable that to place the burden on the accused violates the presumption of innocence in art. 6(2) of the European Convention on Human Rights. The Strasbourg case-law suggests, however, that placing the burden on the prosecution is not an absolute rule. For example, in Salabiaku v France (1988) 13 EHRR 379 the European Court of Human Rights found that there was no principled objection to the imposition of strict liability in criminal cases. However, it stressed that this should be applied ‘within reasonable limits’ meaning that the test of proportionality will apply. One consideration would be the seriousness of the offence in question. The House of Lords and the Court of Appeal have considered the impact of the Human Rights Act on the allocation of the burden of proof in several cases: see Table 1, page 6.
The standard of proof is a less complex topic. In this area, as in all areas of evidence, you must be careful to apply the appropriate rules according to whether the case is a civil or a criminal one. You will be unlikely to have questions which mix the two. In problem questions you may be asked to comment on the possible ﬂaws in a judge’s summing-up. You will then have to see if the legal burden has been...
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