Starting off with a paragraph taken from an article written by John H. Langbein: “…the main work of a legal system is deciding matters of past fact. Blackstone remarked that “experience will abundantly show that above a hundred of our lawsuits arise from disputed facts, for one where the law is doubted of.” Was the traffic light red or green? Was it O.J. Simpson or somebody else who wielded the dagger? Find the facts and the law is usually easy…”1 Adrian Keane and Paul McKeown have noted down that evidence is merely information by which facts tend to be proved, and that the law of evidence is the body of law and discretion managing the means by which facts may be proved in court of law, tribunals, and even arbitrations where strict rules of evidence apply.2 Ian Dennis has also a very similar view regarding the definition for evidence, he is also stating that evidence is information, he goes on stating that the information provides grounds for belief that a particular fact is true, moreover he states that there is nothing “legal” about the concept of evidence and its function because many people tend to use evidence to find out whether facts put out are true or false, for example; scientists, historians, detectives, journalists and even doctors daily work involves accumulating and evaluating evidence.3 Charanjit Singh Landa and Mohamed Ramjohn have noted down their definition on the law of evidence as given below: “…law of evidence involves a rigorous examination of the lexicon of rules and exceptions, both in the civil and criminal law of evidence, set against the judicial discretion to exclude…these rules and exceptions co-exist, like pieces in a jigsaw puzzle, complementing each other and thereby creating an image of ‘what happened’ in a greater context…it would be salient to say that all lawyers, regardless of whether they are solicitors or barristers, need a sound appreciation of the substantive law of evidence govern: how facts are proven in court, the rules on how evidence should be put to and presented in court along with rules on which evidence should be excluded from the court altogether…”4 Now, however we narrow it down to a specific topic under the law of evidence – ‘burdens and standards of proof’; under this topic we are about to consider the assignment question on how does the six factors laid down by Ian Dennis would facilitate a judge in determining whether a reversal of legal burden onto the accused in a criminal case is compatible with Article 6(2) of the ECHR. Under the following chapter - burdens and standards of proof, there are two principal kinds of burden of proof, the legal burden and the evidential burden.5 Emma Washbourne defines legal burden as the burden where you have to prove or disprove a fact that arises in an issue whereas evidential burden is just a burden to produce evidence.6 In criminal trials the prosecution would bear the legal burden of proving every element.7 The basic rule was laid down by Viscount Sankey LC in the case of Woolmington v DPP; following was what stated by Viscount Sankey LC in the case: “…throughout the web of the English criminal law, one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt…”8 Basically it means that in criminal proceedings, the burden is on the prosecution to prove the elements of the offence beyond reasonable doubt; here are a few examples of case laws for this part: Mancini v DPP (provocation)9; R v Lobell (self-defence)10; R v Gill (duress)11; Bratty v A-G for Northern Ireland (sane automatism)12.
As we would be aware that, every general rule comes with an exception; it is the same here too; Viscount Sankey LC had acknowledged that there were exceptions to the rule he created, therefore it means that at times the accused may tend to have legal burden- firstly he stated down that a legal burden may be placed on the accused if he raises insanity as a defence and secondly, where statute places...
Dennis, I, The Law of Evidence (4th edn Thomson Reuters, London 2010)
Keane, A, and McKeown, P, The Modern Law of Evidence (9th edn OUP, Oxford 2012)
Landa, C S, and Ramjohn, M, Unlocking Evidence (Hodder Education, Oxford 2009)
Washbourne, E, Key Facts Evidence (3rd edn Hodder Education, Oxford 2010)
Table of Cases
Attorney-General’s Reference (No 4 of 2002)  3 WLR 976,  All ER (D) 169
Bratty v A-G for Northern Ireland  AC 386
Salabiaku v France (1988) 13 EHRR 379
Sheldrake v DPP; Att-Gen’s Reference (No.4 of 2002), Re  UKHL 43;  1 A.C
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