topic 2 -> burden and standard of proof

What are the key issues in relation to burden and standard of proof?

·       In trial, which party has/should have obligation to prove facts and why?

·       Should D have obligation to prove facts in his/her defence?

·       What are exceptions to general rule on burden of proof?

How does burden of proof operate in a criminal trial?

·       Standards to uphold = legal and evidential burdens

·       Each party has burden of proving actus reus, mens rea and defences

·       Distinction between legal and evidential burden

Define a legal burden?

·       Obligation imposed on party by rule of law to prove fact in issue (K + M)

·       Prosecution bears legal burden of proof

·       Prove AR and MR to tribunal of fact on standard of reasonable doubt = must be proven beyond reasonable doubt that D committed offence -> satisfied so they’re sure

·       Legal burden of proof determined by tribunal of fact, jury

Contrast a legal burden with an evidential burden?

·       Obligation to adduce sufficient evidence to show non/existence of fact in issue

·       Person w/ evidential burden only needs to point to evidence raising reasonable doubt on fact in issue but does not need to prove fact

·       Determined by tribunal of law (judge)

What case is authority for evidential burden?

·       AG’s reference (No. 4 of 2002)and Sheldrake v DPP ->

o   LJ Bingham – EB isn’t burden of proof, burden of raising on evidence in case, issue on matter in question fit for consideration by tribunal of fact

o   If issue is properly raised, it’s for prosecutor to prove beyond reasonable doubt that ground of exoneration doesn’t avail D

What stages of trial do legal and evidential burden come into play?

a.   At close of prosecution case, prosecution bear evidential burden to satisfy judge that there’s a case for D to answer

defence submission of no case to answer succeeds where prosecution failed to adduce some evidence to establish prima facie case (Jayasena v. R [1970])

b.   At close of defence case, defence bear evidential burden to satisfy judge that jury can properly consider issues

c.    At close of trial, prosecution bear legal burden of proof to satisfy jury that D is guilty of offences charged and any defences D has raised don’t apply

How does the evidential burden relate to the Modern Slavery Act (MSA) 2015?

·       R v MK and Gega v R [2018] -> CA – if D who claims to have been trafficked tries to rely on s45 MSA, what standard of proof applies?

·       S45 = defence for slavery or trafficking victims who commit offence

·       Each of 2 appeals concerned Albanian national who claimed to have been victim of trafficking and sought to rely on s45 MSA

·       Both convicted of different criminal offences (paras 4-6)

·       CA -> D seeking to raise s45 MSA defence bears evidential burden only (para 45):

o   D only has to adduce evidence for each of s45 ingredients

o   D doesn’t have to prove ingredients of defence on balance of probabilities

o   Once D has raised evidence in support of ingredients of s45 MSA, burden falls on prosecution to disprove beyond reasonable doubt existence of ingredients

·       CA -> para 67 - quashed MK’s convictions as unsafe given misdirection by trial judge

·       In Gega, evidence against Ms G was overwhelming and conviction was safe

·       MK clarifies s45 defence and has wide application, benefitting trafficking victims charged with criminal offences as they’ll only be required to raise

What is the classic presumption of the presumption of innocence?

·       D is innocent until proven guilty

·       To what extent, legal burden of proving every element of offence lies on prosecution

·       To do otherwise would violate presumption of offence

What case is authority for the presumption of innocence?

·       Woolmington v. DPP [1935]-> VC Lankey L.C. -

o   Throughout web of criminal law, 1 golden thread is always seen, duty of prosecution to prove prisoner’s guilt

o   No matter the charge or where trial, principle that prosecution must prove guilt of prisoner is part of common law of England and no attempt to whittle it down can be entertained

What act in ECHR crystallises presumption of innocence?

·       Art 6 (2) ECHR enacted into English Law by HRA 1998: everyone charged with criminal offence shall be presumed innocent until proven guilty according to law

What case is authority for application of art 6 (2) ECHR in relation to POI?

·       Salabiaku v. France (1988)-> strict liability customs laws which presume possession equates to smuggling don’t violate art 6 (2) of ECHR if court retains discretion to assess all evidence rather than applying presumption of guilt

What circumstances exist where D may be required to bear reverse legal burden of proof?

i.            At common law

ii.          Expressly and

iii.         Impliedly in statute

Outline the first exception in as much detail as possible?

·       Express common law defences – insanity:

o   D bears legal burden of proof

o   Presumption of sanity is made regarding D’s state of mind

o   If D wishes to claim insanity, they’ll have to adduce evidence of insanity but also prove it via legal burden

What authority looks at presumption of sanity?

·       R v. McNaghten (1843)-> every person is presumed to be sane until contrary is proved

·       Burden of proof for defence of insanity falls on D established on BOP

·       Inner workings of D’s mind are easier for D to establish than prosecution

·       Contrast w/ legal burden of proving mens rea falling on prosecution in usual course of events, considering whether these are mutually consistent positions for law to take:

o   ECHR in H v UK [1990] ruled that insanity exception didn’t concern presumption of innocence, but rather presumption of sanity

o   Although, reforms to defences of insanity and automatism were considered by Law Commission in 2013

What case and secondary source compares the defences of insanity and automatism?

·       If D is charged w/ murder and wishes to raise insanity, prosecution may raise diminished responsibility Criminal Procedure (Insanity) Act 1964, s. 6.

·       Foye –> LJ Hughes in CA – defence depends on D’s internal functioning of mental processes

·       Impractical if Crown had to bear onus of disproving diminished responsibility whenever it was raised on evidence

 

Outline the 2^nd exception in as much detail as possible?

·       Express/purported statutory exceptions:

o   Statutes expressly or purportedly provide that D should bear legal burden of proving defence

o   E.g. partial defence to murder of DR (Homicide Act 1957, s. 2(2))

o   On charge of murder it shall be for defence to prove person charged isn’t liable to be convicted of murder

o   If D is charged with murder and wishes to raise DR, prosecution may raise insanity instead (Criminal Procedure (Insanity) Act 1964, s. 6)

Which statutes expressly provide that D isn’t to bear legal burden of proving particular defence?

·       Burden = evidential

·       E.g. partial defence to murder of loss of control

·       S54 (5) Coroners and Justice Act 2009 -> on murder charge, if sufficient evidence is adduced to raise issue with respect to defence, jury must assume that defence is satisfied unless prosecution proves beyond reasonable doubt that it’s not

Outline exception 3 in as much detail as possible

·       Where statute requires D to bear legal burden of proving exemption etc. by way of defence

·       Reverse burdens as to such defences are usually by necessary implication and uncontroversial

·       Usually, legal burden stands

·       S101 Magistrates’ Courts Act 1980 ->

o   Where D to information or complaint relies for his defence on any exception, exemption, proviso, excuse or qualification, whether or not it accompanies description of offence or matter of complaint in enactment or on which complaint is founded, burden of proof shall be on him

What act looks at statutory exceptions?

·       Road Traffic Act 1988:

·       s. 143(1)->

o   Person mustn’t use motor vehicle on road unless there’s in force policy of insurance

·       S143 (2) ->

o   If person acts in contravention of ss1 he’s guilty of offence

What statutes give rise to difficulty and why?

·       Statutes in exceptions 2 and 3 have divided courts on whether legal burden should be permissible

·       Problem has arisen where statutes appear to reverse offence elements (AR and MR) onto D, disguising these as defences

What is the impact of incorporation of art 6 (2) ECHR into domestic law by HRA?

·       Reverse burdens considered above in 2 and 3 are now subject to post-HRA guidance from courts in interpreting art 6 (2) ECHR

·       S3 HRA = power of interpretation

·       S4 HRA = declaration of incompatibility

What criteria is there to consider?

·       Reverse burden must be pursuing legitimate aim in public interest and must be reasonable relationship of proportionality between means employed to achieve reverse burden and aim sought to be realised

What can be inferred from case law?

·       Whilst reverse legal burdens as to defence factors may sometimes be accepted by courts, reverse legal burdens as to offence elements should be re-interpreted as being merely evidential burdens

What does ECHR say in relation to POI?

·       ECHR doesn’t establish presumption of innocence as absolute right ->  Salabiaku v France (1988)- any derogation from presumption of innocence should be applied within reasonable limits and subject to test of proportionality in that courts would balance harm to community and rights of accused

Is there a clear distinction between pre and post HRA cases?

·       Clear distinction between pre and post HRA cases dealing w/ issues

·       In pre-HRA cases, courts in Hunt in 1987 and Edwards 1975 established that judges should examine what mischief statute was addressing

·       Consider practical problems in allocating burden of proof and look at seriousness of offence, resolving any ambiguity in favour of D

·       After HRA came into force, courts applied more robust approach to upholding POI through apportioning legal burden

What case is authority for distinction between HRA?

·       Lambert -> obiter = majority held it wasn’t justifiable to reverse legal burden onto accused w/ LJ Clyde stating that if any error is to be made in weighing of scales of justice it should be to effect that guilty should go free rather than innocent wrongly convicted

·       Despite strong dissent from LJ Hutton who formulated test of legitimate aim in public interest pursued reasonably proportionately

what case and academic articles can be discussed?

·       Re MK [2018] – CA -> unanimously found legal burden of proof rests wholly on prosecution where D raises defence under s45 MSA 2015, emphasising importance of specific analysis of statutory language

reference some of academic articles, particularly Iain Dennis’ 2005 article that suggests 3 stage test for courts to examine in determining whether legal burden of proof exists

Who bears the evidential burden and when?

·       If burden falls in defence to dis/prove something, it’ll usually be evidential burden, where defence must raise enough evidence to get past judge or prima facie evidence

What is the exception for an evidential burden?

·       If legal burden does fall on defence to dis/prove something, standard will be on balance of probabilities – civil standard of proof, i.e. D must prove that whatever s/he is arguing was more probable than not