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1. The Burden and Standard of Proof
Law of Evidence (LAW6037)
Queen's University Belfast
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THE BURDEN AND STANDARD OF PROOF Standard of proof: what degree of proof is required? Burden of proof (aka ‘onus of proof’): The obligation to prove, who must prove the facts in issue? Determines the eventual outcome of proceedings, which party has the right to begin adducing evidence in court, in what circumstances a defendant or claimant may make a successful submission of no case to answer (there are no evidences that the defendant committed the crime or they are tenuous/inconsistent), and how the trial judges should direct the jury. Miller v. Minister of Pensions [1947] 2 All ER 372. ‘It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable,” the case is proved beyond reasonable doubt, but nothing short of that will suffice.’ (Denning LJ) - Legal burden (aka ‘probative’, ‘persuasive’ or ‘fixed’ burden): The obligation imposed on a party by the rule pf law to prove or disprove a fact in issue. If certain facts are essential to the claims of one of the parties, generally that party will have to prove them. `He who assets must prove´ (Wakelin v London and South Western Rly Co). The party bearing the burden on a particular fact in issue will lose on that issue if he fails to discharge the burden. The discharge of the burden is decided only once, by the tribunal of fact, at the end of the case when both parties have called all their evidence. To discharge the burden in criminal law, the standard required of the prosecution is proof which makes the tribunal of fact `sure´; in criminal law, the standard required is proof `on the balance of probabilities´. The legal burden relates to particular facts in issue, the different issues present in the case may be distributed between the parties to the action. Example: - Criminal case: where insanity is raised as a defence, the legal burden in relation to that issue is borne by the defendant 1 - Civil case: where the defendant alleges contributory negligence, the claimant bears the legal burden on the on the issue of negligence and the defendant on contributory negligence. In civil cases, the judge may find it impossible to make a finding one way or the other on a fact in issue, it falls to be decided by reference to which party to which party bears the legal burden: Stephens v Cannon [2005]: The claimants had purchased land from the defendants. The contract was conditional on a development which did not take place. The master had been presented with very different valuations of the property. Held: The master was not entitled to resort to the burden of proof in the manner in which he did so. The appeal was allowed and the award of damages was aside. The valuation and price issue was remitted for rehearing. Principles established: - the situation has to be exceptional but can arise in relation to any issue - the court is only entitled to have such resort to the legal burden if it cannot reasonably make a finding - the court should tell the parties that it has striven to make a finding and explain why it cannot do so - in a few cases the reasoning can readily be inferred from the circumstances Who bears the legal burden of proof is determined by the rules of substantive law. However, judges sometimes will shift the burden in the operation of a rebuttable presumption of law; once a primary fact is proved or admitted, in the absence of further evidence another fact must be presumed. The party relying on the presumption bears the burden of proving the primary fact. Once he has adduced sufficient evidence on the fact, in the case of a persuasive presumption his adversary will bear the legal burden of disproving the presumed fact. When judges shift the burden in circumstances other than the operation of rebuttable presumptions, it means that the burden may appear to have been satisfied by the party on whom it lied, the opponent will then bear the `tactical´ burden. - Evidential burden (aka ‘burden of adducing evidence’ or ‘duty to pass the judge’): the obligation of a party to show that there is enough evidence to raise an issue as to the existence of a fact. It is not technically a burden of proof. It can be discharged by the production of evidence that falls short of proof. Whether a party has discharged the burden is decided only once, and it is done 2 GENERAL RULE IN CRIMINAL PROCEEDINGS In criminal proceedings the legal burden of proving any fact essential to the prosecution case rests upon he prosecution and remains with the prosecution throughout the trial. Ex: prosecution must prove absence of consent on a charge of rape, R v Horn (1920). Woolmington v DPP [1935] AC 462: Woolmington was a 21-year-old farmer from Castleton, Dorset. On November 22, 1934, his wife left him and went to live with her mother. On December 10, Woolmington stole a double-barrel gotshun and cartridges from his employer, saw off the barrel, threw it into a river, and then cycled over to his mother-in-law's house where he accidentally shot and killed his wife. He was arrested on January 23 the following year and charged with the wilful murder of his wife Violet. The House of Lords hold that the jury instruction means that the onus is on Woolmington to prove that he did not intend to kill his wife. This seems to have obviously violated the presumption of innocence principle in criminal law. The judge got this definition from Halsbury's "Laws of England", however it came from a time before there was a criminal court of appeal, and before the accused was even allowed to testify. They state that the presumption of innocence is the "golden thread" that holds the criminal law together, and that it must be given the highest accord. In order to prove the charge, the Crown must prove both that he murdered his wife, and that he intended to do it beyond a reasonable doubt. ‘Throughout the web of 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 subject to … the defence of insanity and subject also to any statutory exception. If, at the end of the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’ (Lord Sankey L.) Rationale (i) 4 The presumption of innocence (Art. 6(2) ECHR) “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” When carrying out their duties, the members of a court should (1) not start with the preconceived idea that the accused has committed the offence charged; (2) the burden of proof is on the prosecution, and (3) any doubt should benefit the accused. (ii) The ‘adversarial deficit’ Highlights certain deficiencies with the English Legal System. Some of them being: disparity in adversary abilities, fallible judges, excessive confidence in the usefulness of the model, difficulty in framing issues, potential for the manipulation of results and excessive cost (Roberts and Zuckerman). Choo (2015) ‘the might of a strong state is ranged against a weak individual.’ Noting further that the ‘investigative resources to which the prosecution has access are greatly superior to those to which the defence has access.´ (iii) Allocating the risk of error (1) enhancement of accuracy in fact-finding or, in other words, minimization of the risk of error; (2) minimization of the expenses that fact-finding pro- cedures and decisions incur; and (3) apportionment of the risk of error with the consequent risk of misdecision between the parties to litigation. (Stein) EXCEPTIONS: PROVISIONS IMPOSING THE LEGAL BURDEN OF PROOF ON THE DEFENDANT A. The defence of insanity Where an accused raises the defense of insanity, he bears the legal burden to prove it. This is base don the difficulty to disprove false claims of insanity, sincec the acused might not cooperate in the investigation for his advantage. Criminal Justice Act (NI) 1966, ss 2(2) Murder Charge - 5(3) Criminal Justice Act (NI) 1966: 3)‘On a charge of murder, it shall be for the defence to prove that the person is by virtue of this section not liable to be convicted of murder; but the prosecution, with the leave of the court, may assume the burden of such proof and proceed accordingly.’ 5 R v Hunt [1987] 1 All ER 1. H was convicted of being in unlawful possession of a Class A drug, morphine. One issue at the trial was the composition of the alleged drug. The statute provided that if the proportion of mor- phine was not more than 0 per cent the substance was not unlawful under the regulations. The prosecution had not adduced evidence on the proportion of morphine; the judge would not allow a defence submission of no case to answer. The applicant pleaded guilty. The Court of Appeal upheld the conviction but the House of Lords allowed the appeal. On the facts, the composition of the morphine was an essential element of the offence, which it was for the prosecution to prove. Two basic questions were addressed by the House of Lords: 1. In what circumstances does the burden lie on the accused if it is not imposed expressly? 2. If D bears the burden, what is the nature of this burden, a legal or evidential one? ‘I would prefer to adopt the formula [in Edwards] as an excellent guide to construction rather than as an exception to a rule. In the final analysis each case must turn on the construction of the particular legislation to determine whether the defence is an exception within the meaning of [Art 124].’ (Lord Griffiths). Guidance in Hunt on policy and practical considerations to be taken into account in determining location of legal burden: How easy would it be for the accused to discharge the burden of proof? Would the purpose of the legislation be frustrated if burden were placed on prosecution? How serious was the offence? The more serious, the less inclined the court would be to place the burden on the accused. The burden should not lightly be placed on the accused. Any ambiguity should be resolved in the accused’s favour. 7 THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND ‘REVERSE ONUS’ PROVISIONS Human Rights Act 1998: Article 6(2) of the Convention: ‘Everyone charged with a criminal offence has the right to be presumed innocent until proven guilty according to law.’ It consideres repugnant to ordinary notions of fairness for a prosecutor to accuse an acccused of a crime and for the accused then to be required to disprove the acusation resulting in a punishment if he fails to do so. A. European and domestic jurisprudence Under domestic law, Parliament does not regard the presumption as an absolute or unqualified right. In reaching the decisión of such presumption, the test is whether the limitation or modification of Article 6(2) right pursues a legitimate aim and whther it satifies the principle of proportionality: a balance has to be struck between the general interest of the community and the rppotection of the fundamental rights of the individual (R v Lambert). Reverse onus clauses are not necessarily incompatible with Article 6(2): Salabiaku v France [1988] 13 EHRR 379. ‘Presumptions of fact or law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law … Article 6(2) does not … regard presumptions of fact or law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.’ [Emphasis added] R v Lambert [2001] 3 All ER 577 The case involves a man convicted of possession of a controlled drug, cocaine, with intent to supply, contrary to section 5 of the Misuse of Drugs Act 1971, sentenced to seven years imprisonment. The appellant argued on the basis of section 28 (3) (b) (i) of the Act that he had no knowledge or reason to belief that he was in possession of a controlled drug. 8 the defence in s11 (2) of the Terrorism Act 2000 requiring a defendant charged with belonging or professing to belong to a proscribed organisation to prove that the organisation was not proscribed on the last occasion on which he became a member and that he had not taken part in the activities of the organisation at any time while it was proscribed was incompatible with Art 6 and should be read as imposing only an evidential burden on the defendant. Although Parliament clearly intended to impose a legal burden and s 11 was directed at the legitimate aim of deterring people from becoming members and taking part in the activities of proscribed organizations, the imposition of a legal burden was not proportionate or justifiable. A breach of the presumption of innocence contained in Art 6 would occur if a defendant could only exonerate him/herself by establishing the defence on the balance of probabilities, a defence which would be very difficult to prove in practice. R v Drummond [2002] RTR 21.: The legislative interference with the presumption of innocence in s Road Traffic Offenders Act 1988, where the burden of proof was on the defendant to prove that he had consumed alcohol after the offence but before providing a specimen, amounted to an imposition of a persuasive burden on the defendant which was justified and was no greater than necessary. * Application for leave to appeal to the House of Lords pending. R v Williams (Orette) [2012] EWCA Crim 2162: D charged with an offence of possession of a readily convertible firearm under s(2) of the Firearms Act 1982 had a persuasive burden to prove that he did not know or had no reason to suspect that the firearm was readily convertible. Whether a provision giving rise to a reverse burden was justified as proportionate would depend on its statutory context and circumstances (Sheldrake). This burden encroached the presumption of innocence under art 6(2) but this encroachment was justified as necessary and proportionate. There were compelling reasons for concluding that s(5) imposed a legal burden – firearms offences were a very serious problem and where firearms were potentially lethal, as in this case, the need for public protection was obvious. DPP v Mahon [2012] NICA 50: a licence holder charged with selling alcohol or permitting the consumption of alcohol after hours contrary to the Licensing (NI) Order 1996, art 41, bore the burden of proving the exception under art 46 that the sale was to a guest or resident of the hotel. The relevant information lay within the particular knowledge of the licence holder and his staff and therefore he was well positioned to address the burden. The imposition of the persuasive burden in these circumstances did not infringe the presumption of innocence. 10 R v Foye [2013] EWCA Crim 475: The EWCA considered in depth whether, in a murder case, the defendant’s legal burden to prove diminished responsibility on the balance of probabilities was incompatible with art 6(2). Salabiaku applied. The EWCA held that s(2) of the Homicide Act 1957 provided an exception for a particular class of defendant against whom the elements of murder had been proved. In the absence of proof to the contrary, a defendant could be assumed by the law to be of ordinary mental condition. If he/she seeks to demostrate that the assumption does not apply to him/her, it is entirely reasonable that a matter so personal to the defendant should be for him/her to prove, albeit only on the balance of probabilities. It would be a practical impossibility in many cases for the prosecution to disprove (beyond reasonable doubt) an assertion that he was suffering from diminished responsibility. The prosecution would have to adduce evidence of the absence of abnormality in the defendant’s mental state. But the defendant was under no obligation to submit to a medical examination. If he did formally submit, he might fail to co-operate. This was a simple but fundamental reason why the reverse onus was essential to the working of the law of diminished responsibility. B. Summary of impact of Art 6 (2): see also Lord Bingham in Sheldrake: The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable.’ 11
1. The Burden and Standard of Proof
Module: Law of Evidence (LAW6037)
University: Queen's University Belfast
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