Principles and procedures to admit and exclude evidence - Burden and standard of proof

Learning Outcomes

After studying this article, you will be able to explain and apply the principles of the burden and standard of proof in criminal proceedings, including the distinction between legal and evidential burdens, the meaning of "beyond reasonable doubt" and "balance of probabilities," and the circumstances in which the burden may shift to the defence. You will also be able to identify how these rules affect the admissibility and evaluation of evidence for SQE1.

SQE1 Syllabus

For SQE1, you are required to understand the allocation of the burden of proof and the required standard in criminal cases, including how these affect the admissibility and assessment of evidence. Focus your revision on:

• The difference between the legal burden and the evidential burden of proof.
• The standard of proof required in criminal versus civil proceedings.
• When and how the burden of proof may shift to the defendant (reverse burdens).
• The impact of these principles on the admissibility and exclusion of evidence.
• The relationship between the burden of proof and key defences (e.g., insanity, diminished responsibility).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Who bears the legal burden of proof in a criminal trial, and what is the required standard?
2. What is the evidential burden, and how does it differ from the legal burden?
3. In which circumstances might the defendant bear the legal burden of proof, and what standard applies?
4. What is meant by "beyond reasonable doubt" and "balance of probabilities"?

Introduction

In criminal litigation, the burden and standard of proof are central to the fairness and outcome of proceedings. These rules determine which party must prove particular facts and how convincing that proof must be. For SQE1, you must be able to distinguish between the legal and evidential burdens, understand the required standards in criminal and civil cases, and recognise when the burden may shift to the defence. These concepts are fundamental to the admissibility and assessment of evidence.

The Burden of Proof

The burden of proof refers to the responsibility to prove or disprove a fact in issue. It is essential to distinguish between the legal burden and the evidential burden.

Key Term: legal burden The obligation to prove a fact in issue to the required standard. Also called the "persuasive burden." In criminal cases, this usually rests on the prosecution.

Key Term: evidential burden The obligation to produce sufficient evidence to make an issue "live" so that it must be considered by the court. This burden may shift between parties during a case.

The Legal Burden in Criminal Cases

The prosecution bears the legal burden of proving the defendant's guilt. This means the prosecution must prove every element of the offence charged.

Key Term: presumption of innocence The principle that a defendant is considered innocent until proven guilty by the prosecution to the required standard.

The legal burden may exceptionally fall on the defence, for example, where a statutory provision or a specific defence (such as insanity) requires the defendant to prove a fact.

The Evidential Burden

The evidential burden is the duty to produce enough evidence to raise an issue for the court's consideration. For example, if a defendant raises self-defence, they must provide some evidence to support it. Once this is done, the prosecution must disprove the defence beyond reasonable doubt.

The Standard of Proof

The standard of proof is the level of certainty required to satisfy the court that a fact has been established.

Key Term: standard of proof The degree of certainty required to prove a fact in court. In criminal cases, this is "beyond reasonable doubt" for the prosecution and "balance of probabilities" for most defence burdens.

Criminal Standard: Beyond Reasonable Doubt

In criminal trials, the prosecution must prove the defendant's guilt "beyond reasonable doubt." This means the court or jury must be sure of the defendant's guilt before convicting.

Key Term: beyond reasonable doubt The standard of proof in criminal cases. The court or jury must be sure of the defendant's guilt; if there is a reasonable doubt, the defendant must be acquitted.

Civil Standard: Balance of Probabilities

In civil cases, and for most defence burdens in criminal cases, the standard is the "balance of probabilities." This means the fact is more likely than not to be true.

Key Term: balance of probabilities The standard of proof in civil cases and for most defence burdens in criminal cases. The fact must be more likely than not (i.e., over 50%) to be true.

Reverse Burdens and Shifting the Burden of Proof

In some situations, the burden of proof may shift to the defendant. This is known as a reverse burden.

Key Term: reverse burden A situation where the legal burden of proof is placed on the defendant, usually by statute, to prove a particular fact or defence.

Reverse burdens are most commonly found in statutory defences (e.g., diminished responsibility in murder, certain drug offences). When the legal burden is placed on the defendant, the standard is usually the balance of probabilities.

Evidential Burden Shifts

Even where the legal burden remains with the prosecution, the evidential burden may shift to the defence to raise a particular issue (e.g., self-defence, alibi). Once raised, the prosecution must disprove the defence to the criminal standard.

Human Rights and Reverse Burdens

Reverse burdens must be compatible with the presumption of innocence under Article 6(2) of the European Convention on Human Rights. Courts will interpret statutes to impose only an evidential burden on the defendant where possible, unless Parliament's intention to impose a legal burden is clear.

Worked Example 1.1

Scenario:
Sophie is charged with possession of a controlled drug with intent to supply. She claims the drugs were for personal use.

Question:
Who bears the burden of proof, and what standard applies?

Answer:
The prosecution must prove possession and intent to supply beyond reasonable doubt. If Sophie raises evidence that the drugs were for personal use, the prosecution must disprove this beyond reasonable doubt. The evidential burden is on Sophie to raise the issue; the legal burden remains with the prosecution.

Worked Example 1.2

Scenario:
David is charged with murder but raises the defence of diminished responsibility.

Question:
Who bears the burden of proof for diminished responsibility, and what standard applies?

Answer:
David (the defendant) bears the legal burden to prove diminished responsibility on the balance of probabilities. The prosecution must still prove the elements of murder beyond reasonable doubt.

Exam Warning

In SQE1, pay close attention to whether a question is asking about the legal burden or the evidential burden. The legal burden is rarely on the defence, except where statute or a specific defence (like insanity or diminished responsibility) requires it.

The Role of the Burden and Standard of Proof in Admitting and Excluding Evidence

The allocation of the burden and standard of proof is essential in determining whether evidence is admissible and how it is assessed.

Worked Example 1.3

Scenario:
A defendant is charged with theft. At trial, the defendant raises an alibi.

Question:
What must the defendant do, and what is the prosecution's obligation?

Answer:
The defendant must provide some evidence (evidential burden) to make the alibi a live issue. Once raised, the prosecution must disprove the alibi beyond reasonable doubt (legal burden).

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The legal burden of proof in criminal cases is usually on the prosecution, who must prove guilt beyond reasonable doubt.
• The evidential burden is the duty to raise enough evidence to make an issue "live" for the court.
• The standard of proof in criminal cases is "beyond reasonable doubt" for the prosecution, and "balance of probabilities" for most defence burdens.
• In some cases, statute or specific defences (e.g., insanity, diminished responsibility) place the legal burden on the defence.
• Reverse burdens must be compatible with the presumption of innocence and are interpreted restrictively.
• The allocation of the burden and standard of proof affects the admissibility and assessment of evidence at trial.

Key Terms and Concepts

• legal burden
• evidential burden
• presumption of innocence
• standard of proof
• beyond reasonable doubt
• balance of probabilities
• reverse burden