BURDEN AND STANDARD
OF PROOF
IN
CRIMINAL 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
Fred is charged with murder and relies upon
the defence of diminished responsibility.
Which is/are true
(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
ANSWER
(ii), (iii) and (iv) are true
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)
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?
[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?
ANSWER
[b] is true
Evidential burden
in 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
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) 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?
ANSWER
(i) and (ii) are true
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.]
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?
[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?
ANSWER
[b] is true
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
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?
(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?
ANSWER
They are both true