Burden and standard of proof in criminal proceedings



Burden and standard of proof in criminal proceedings

Michael Stockdale

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Burden and standard of proof in criminal proceedings

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Essentially, the facts in issue are those issues that the prosecution must prove in order to establish the accused’s guilt, and in addition those issues that the defence must prove in order to establish a defence that they have raised. You should note however that where a defence merely amounts to a denial of issues already raised by the prosecution, this defence does not raise any new facts in issue. Moreover, you should also note that, as is demonstrated below, the fact that the accused, that the defence, has raised a fact in issue does not mean that the defence will be required to prove the relevant fact in issue, and indeed, as you will see, the general rule is that issues raised by the defence must be disproved by the prosecution.

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The general rule in criminal proceedings which is sometimes known as the Woolmington principle, as being derived from the House of Lords decision in Woolmington v DPP, is that the legal burden of proving all of the issues in a criminal trial is borne by the prosecution, so effectively this means that the prosecution, as a general rule, will both have to prove the actus reus and mens rea of the offence, with which the accused is charged, and will also have to disprove facts in issue that are raised by the accused’s defences, i.e. defences which go beyond mere denial of elements of the prosecution case.

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Where the prosecution bear the legal burden of proving a fact In issue, the standard of proof which the law requires in order to discharge the legal burden is that of proof beyond reasonable doubt. This does not require absolute certainty, but what it does mean is that if there is more than a remote or fanciful possibility that the accused is not guilty, the jury should not convict. Whilst in statutes the criminal standard is normally referred to in terms of proof beyond reasonable doubt, in practice judges tend to direct juries that they must be satisfied so that they feel sure, as it’s thought that this is a more straightforward way of conveying the requisite standard of proof to the jury. It is of course crucial that judges do not misdirect juries by using a form of words which convey too low a standard of proof, so a judge for example should not merely direct the jury that they must be satisfied as to the accused’s guilt, or reasonably sure thereof, as these would both be examples of misdirections that could well result in a conviction being quashed.

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Here’s an example of the principles that we have just considered. We have an accused who is charged with murder and relies upon the defence of provocation. Here the prosecution have raised the offence of murder, including obviously the actus and mens rea of that defence, and they must prove that the accused committed the actus reus of murder whilst possessing the requisite mens rea and must do so beyond reasonable doubt. The defence relied upon by the accused, that of provocation, does raise issues not raised by the prosecution, and therefore does raise new facts in issue. Even so, it is an ordinary common law defence. The only common law defence that puts a legal burden of proof on the accused is insanity, therefore the defence must be disproved by the prosecution, and they must do so once again to the criminal standard of proof, namely proof beyond reasonable doubt.

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There are a number of exceptions to the Woolmington principle, i.e. situations in which the defence, the accused, does bear a legal burden of proving a defence. We can divide these into three categories. First, there is only one common law defence that imposes a legal burden of proof on the accused, and that is the defence of insanity. The House of Lords decided in the 1840s in M’Naghten’s case that where the accused relies upon the defence of insanity, the legal burden of proving that defence is born by the accused, but all other common law defences should as provocation, duress or self-defence must be disproved by the prosecution. Secondly, statute may expressly provide that the accused bears the legal burden of proving a defence. For example, as you’ll see in the text book, where the accused relies on the defence of diminished responsibility, statute expressly requires the accused to prove that defence. In the final category, implied statutory exceptions, situations where statute has not expressly placed legal burden of proving a defence upon the accused, but where the implication from the statutory words or statutory scheme as parliament does in fact intend the accused to prove a particular defence. As you will see in the text book, the position in this regard is governed in the context of summary trial by the Magistrates Court Act 1980 section 101, and in the context of trial and indictment by equivalent common law rules. We take this further on the following slide.

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It’s often difficult to determine when Parliament implicitly intends a legal burden of proof to be placed upon the accused. Essentially, this may be the case in circumstances where a statute prohibits conduct of a certain type, but then allows it to take place in certain limited circumstances, for example, where a person possesses a licence to do so. In deciding whether a statute does in such circumstances place a legal burden of proof on the accused, the court will have to consider matters such as how difficult it would be for the accused to discharge the burden placed upon him, how serious the consequences of being found guilty would be, i.e. how serious is the penalty, a small fine on the one hand, or perhaps a long period of custodial imprisonment on the other, and looking at factors such as these, the courts will tend to be more ready to infer that Parliament intends the accused to prove a defence which is easy for him to prove in the context of a less serious offence. It will be less likely to take the view that Parliament intends the accused to bear a legal burden in circumstances in which the accused would have to prove something, which he would find difficult to prove in the context of a serious offence with a potentially serious penalty. Moreover, as you will see below, human rights issues may also be of considerable significance when the court is trying to determine whether an express provision in a statute places a legal burden of proof upon the accused, or whether, by implication, Parliament intends this to be the case.

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Article 6 2 of the convention provides that everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law. This means that where a statute requires the accused to prove a matter in his defence, this does have the potential to give rise to a violation of Article 6. But it will not necessarily do so. What the court must consider is whether requiring the accused to prove the relevant matter is a requirement that falls within reasonable limits and whether it takes into account the importance of what is at stake and maintains the rights of the accused.

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Thus it is possible for statute to derogate from Article 6 2 by placing a legal burden of proof upon the accused where such derogation is justified and reasonably proportionate to Parliament’s legitimate aim. So the court has to consider whether the balance between the public interest and the accused’s interests is reasonable. There has to be a compelling reason for imposing a legal burden of proof on the accused, and the greater the penalty that the accused potentially faces if he is found guilty, the more compelling the reason must be for placing a legal burden of proof upon the accused.

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On this slide I list the sorts of factor that the court would consider when determining whether imposing a legal burden of proof upon the accused violates Article 6 2. So for example if statute requires the accused to prove a matter that he would find difficult to prove in the context of a serious offence with a potentially serious penalty at stake, it being the sort of offence which would carry moral stigma in the eyes of the public, it is very likely that requiring the accused to prove a matter in such a context would violate Article 6. On the other hand, where for some good reason statute requires the accused to prove a matter, which it is easy for him to prove in the context of a fairly minor offence with a relatively low maximum penalty and perhaps an offence of a merely regulatory nature, i.e. one that the public at large would not regard as truly criminal, wouldn’t really carry any moral stigma, it is much more likely that the court would be prepared to find that requiring the accused to prove the relevant matter did not give rise to a violation of Article 6.

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Where the court decides that statute, by imposing a legal burden of proof on the accused, would give rise to an Article 6 violation, the effect of Section 3 subsection 1 of the Human Rights Act 1998 may be that the court should read the provision down as merely imposing an evidential burden on the accused. In other words, if it would violate Article 6 to make the accused prove a particular defence, the effect of reading the provision down under section 3 of the Human Rights Act would be that once that accused had adduced some evidence to raise the particular defence, or indeed once evidence before the court had that effect of raising the defence, the legal burden of disproving the defence would then be born by the prosecution. And this is the solution the courts have come to when faced with statutes which appear to place a legal burden of proof upon the accused but also appear in so doing to violate Article 6.

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Where the accused does exceptionally bear the legal burden of proving an issue, the standard of proof is not the criminal standard of proof beyond reasonable doubt, but rather is that of proof on the balance of probabilities, which, as you will see in a different presentation, is also the defence which is applicable in the context of civil proceedings. So essentially, where the accused is required to prove a matter, he must show that it is more probably true proof than not on the balance of probabilities.

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Here’s an example of what we’ve just been discussing. Take an accused who is charged with murder and who relies upon the defence of diminished responsibility. That is the defence which Parliament have expressly indicated imposes a legal burden of proof upon the accused. So in this situation the prosecution will be required to prove the actus reus and mens rea of murder and must do so beyond reasonable doubt, i.e. the jury must be satisfied so that they feel sure. But if the defence wants to rely upon the defence of diminished responsibility, it will be for the accused to prove that defence and it must do so on the balance of probabilities.

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Consider which of the following propositions are true.

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You will see that in this question the accused is charged with murder., and is relying upon diminished responsibility. As we know, it’s for the prosecution to prove the elements of the offence, but exceptionally, this is a defence which Parliament has decreed must be proved by the accused himself. So therefore, proposition 1 in suggesting that the prosecution must disprove that defence is clearly wrong. Proposition 2, suggesting that the prosecution must prove the actus reus of the offence beyond reasonable doubt and proposition 3, that they must prove the mens rea beyond reasonable doubt, are clearly correct. And also proposition 4, suggesting that the defence must prove responsibility on the balance of probabilities, that is also correct.

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Here an example of the implied imposition of legal burden of proof upon the accused, a simple example, the offence of selling liquor without a licence, one of those which imposes the legal burden of proving the sale of liquor upon the prosecution, which they must do beyond reasonable doubt. But if the accused wishes to rely upon the defence of possessing a licence, it will be for the accused to prove this defence on the balance of probabilities. In further examples of cases, in which the courts have held that the accused, by implication, bears the legal burden of proving defences can be found in the text book.

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Which one of these two propositions is true?

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Proposition A must be incorrect because, if the prosecution did bear the burden of proving this issue, they would have to do so beyond reasonable doubt, and suggesting that they must be reasonably satisfied would be a misdirection as suggesting too low a standard of proof to the jury. In fact, however, as you will see in the text book, this particular offence is one which imposes a legal burden of proof upon the accused to show that he possessed the requisite licence. But proposition B is also incorrect because it suggests that the accused must discharge this burden to the criminal standard of proof, proof beyond reasonable doubt, whereas the correct answer would be that the accused, the defence must do so on the balance of probabilities.

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The prosecution must establish a prima facie case, a case to answer, against the accused. If they fail to do so, the effect of a defence submission of no case to answer at the end of the prosecution case will mean that the accused will be that the accused will be acquitted without the defence being required to call any evidence. So essentially the effect of the Galbraith test in the case of Crown v Galbraith is that there is no case for the accused to answer either if the prosecution fail to adduce any evidence in relation to a fact in issue or if a properly directed jury could not convict upon the evidence that the prosecution have in fact adduced.

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Consider which one of the following two propositions is true.

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Clearly, proving that the necklace belonged to someone other than the accused forms an essential ingredient of the offence of theft. Therefore, since there is no evidence to prove that the necklace did belong to someone other than the accused, it must be proposition B that is correct, that there is no case for the accused to answer.

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Where the accused relies on a defence which raises new issues but does not fall into a Woolmington exception, in other words a defence which raises new issues and which must be disproved by the prosecution beyond reasonable doubt, the judge is only required to leave such a defence to the jury if there is some evidence before the court to raise it, essentially there must be evidence which would be sufficient, if viewed at its highest, to put a reasonable doubt in the mind of the jury. It’s important to note that, where there is evidence before the court to raise such a defence, like provocation, duress or self defence, it must be left to the jury, even though the accused does not wish to rely upon the defence, and even though the evidence which raises it does not come from one of his witnesses. This is so because, since the legal burden of disproving such a defence is born by the prosecution, if the prosecution fail to disprove the defence beyond reasonable doubt, the accused is not guilty. And so, for example, if the accused wishes to rely in a murder trial upon self-defence, and his witnesses give evidence of self-defence, but evidence of provocation emanates from prosecution witnesses, both defences must be left to the jury, even though the accused did not intend to rely on provocation, and they must both be disproved by the prosecution.

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So, as you will see here, in the case of a murder trial where the defence is reliant upon the defence of provocation, the prosecution will bear the legal burden of proving the actus reus and the mens rea of murder beyond reasonable doubt, and moreover, if there is evidence of provocation before the court, the prosecution will also bear the legal burden of disproving that defence, again, beyond reasonable doubt.

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Which of these three propositions are true?

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The accused is charged with murder, He is relying on self-defence. There is defence evidence of self-defence. Prosecution witnesses have testified in terms of provocation. So the first proposition, that the prosecution must disprove self-defence beyond reasonable doubt, is correct. The evidence raises the defence and it’s an ordinary common law defence and all of those except insanity must be disproved by the prosecution beyond reasonable doubt, so that is correct. The second proposition suggests that the prosecution must disprove provocation beyond reasonable doubt. Again that is correct. The defence is raised by the evidence. The fact that it isn’t raised by defence evidence doesn’t matter. It is raised by the evidence. It’s again a defence which doesn’t fall within a Woolmington exception , so it must be disproved by the prosecution, and again they operate to the standard of proof, proof beyond reasonable doubt. But the final proposition is false because it suggests that it is for the accused to prove the defence of self-defence, and, as we have seen, it’s an ordinary common law defence and all of those other than insanity must be disproved by the prosecution beyond reasonable doubt.

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Where a so-called defence does not raise any new issues but merely amounts to a denial of the actus reus or mens rea of the offence, with which the accused is charged, this does not even impose an evidential burden upon the accused, i.e. regardless of the evidence that is adduced by the accused or emanates from other witnesses, the legal burden of proving the relevant matter will be on the prosecution, because it will be for them to prove that the accused created the actus reus of the relevant offence whilst possessing the requisite mens rea. So, for example, the so-called defence of reasonable belief in consent in the context of a rape charge, it will be for the prosecution to prove that the accused did not have such a reasonable belief because the so-called defence merely amounts to a denial that the accused possesses the requisite mens rea.

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Which one of these two propositions is true?

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The answer is of course that it’s proposition B that is true, because, even though the accused has offered no evidence and has not suggested that he had a reasonable belief in consent, the issue concerns the mens rea of the offence, with which he is charged and the prosecution bear the legal burden of proving the actus reus and the mens rea, which, amongst other matters, requires them to disprove reasonable belief in consent beyond reasonable doubt.

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Where exceptionally, an defence does fall within an exception to the Woolmington principle, in other words, where it’s one of those exceptional defences, which the accused does bear the legal burden of proving, either because statute expressly or implicitly has placed the legal burden on the accused and these days has done so in a context, where so doing does not result in a potential Article 6 violation and therefore in the reading down of the provision as merely imposing an evidential burden on the accused. In these exceptional cases, the accused will bear the legal burden of proving the defence and of course the evidential burden of producing some evidence to raise it. So therefore these defences are truly optional defences in the sense that with offences of this type, if the accused chooses not to raise a defence, not to rely on a defence which he bears the legal burden of proving, it should not be left to the jury, even if there’s evidence from other sources, i.e. from prosecution witnesses, which would be capable of raising the defence if the accused did want to rely upon it.

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At times the admissibility of evidence may depend upon resolving a question of fact. In such circumstances, the burden of proving the fact will be born by the party who wishes to adduce the evidence in question. Where does the prosecution, who wish to adduce the relevant evidence, the standard of proof will be the criminal standard of proof beyond reasonable doubt, whereas when it is defence evidence, the defence will operate to the lower balance of probabilities standard. You will see however in a later presentation that in the case of the competence of witnesses to give evidence, the prosecution also exceptionally operate to the lower balance of probabilities standard.

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Consider which of the following two propositions are true.

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Section 116 of the 2003 Act creates a hearsay exception that we will consider in a later presentation. For this exception to operate, the party who wishes to adduce the hearsay evidence will be required to prove any one of a number of reasons for the unavailability of the witness. In our example the prosecution are asserting that X is unavailable through fear. The defence are asserting that their witness, Y, is unavailable because he’s outside the UK and it isn’t reasonably practicable to secure his attendance. The first proposition suggests that the prosecution must prove the unavailability of their witness through fear beyond reasonable doubt, which is correct. The second proposition, that the defence must prove on the balance of probabilities that their witness is outside the UK, which is also correct because in both cases the party that wishes to adduce the evidence bears the burden of proving its admissibility to the standard of proof that applies to the respective party.

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