1. Burden of Proof

Doc slides provided by Dr Sanjeetha

Criminal Burden and Standard
Woolmington v DPP (1935)

In general rule, Viscount Sankey created Persumption of innocence (POI) that D need NOT prove his defence

[GENERAL RULE] Criminal Burden and Standard for Prosecution

Has Legal Burden to prove D guilt (AR/MR) and disprove defences
-true burden

Standard: able to attach a standard, Beyond Reasonable Doubt

[GENERAL RULE] Criminal Burden and Standard for Defendant

Has Evidential Burden to raise defences
-not a true burden

Standard: no standard for evidential burden
D have to raise defence(s) by adducing facts

Eg of Evidential Burden: alibi, raise alibi (expect him to adduce facts into court)
Facts could be: cinema ticket. Then the prosecution will have to “disprove” alibi

[EXCEPTION] Criminal Burden and Standard

No more Presumption of Innocence= No more Evidential Burden, replaced by Legal Burden to prove the burden

R v Carr-Briant
Criminal Burden: Legal Burden shifted to D to prove his defence
Standard: Balance of Probabilities

2 circumstances which the “[EXCEPTION] Criminal Burden and Standard” will be activated: Express Reversal

When D has LB to prove the defence of insanity on a BOP

Clear and concise word were clearly listed, specified, indicate, written in the statute.
Eg: “…D to prove…” on a civil standard

Such as:
Misuse of Drugs Act (MDA) 1971
Offence: s5(3)- possession (AR) and intend to supply (MR)
Defence: s28(2) it is for the defendant to prove that he had no knowledge of the substance in his possession 

2 circumstances which the “[EXCEPTION] Criminal Burden and Standard” will be activated: Implied Reversal

When D has LB to prove the defence of insanity on a BOP 

Parliament is silent, no indications nor specifications
Thus the Legal Burden could go to Prosecution or Defendant.

Judges will be the one who interpret the silence and make decision via tools of interpretation

There are 4 Tools of Interpretations
Purpose: for Judge to interpret silent

1. S101 Magistrates’ Courts Act (MCA) 1980

2. Lawton Formula

3. Rules of Convenience (ROC) 

4. Policy Considerations

Tools of Interpretations: S101 Magistrates’ Courts Act (MCA) 1980

-applies only to summary offences (minor offences)
This tool is made by the Parliament, so it’s a narrow tool since they are not the ‘organ’ to make tool

Condition to apply: D must have a Defence, and the defence must match one of the forms below:
-exceptions
-exemptions
-proviso (provided) (condition)
-excuse
-qualification

Eg case: Gatland v MPC- S140 Highways Act 1959
It is an offence without lawful authority or excuse to deposit anything on the highway
Offence: “Depositing anything”
Defence: “Lawful authority” and “Excuse”

outcome/consequence: Legal Burden automatically shifted to D to prove the defence

Tools of Interpretations: Lawton Formula

It is a modification of S101 Magistrates’ Courts Act (MCA) 1980
-applies to serious offence

Eg: S160(1) Licensing Act 1964
It is an offence to sell intoxicating liquor without license unless the D is of a specified qualification or is of a specified class.
Defence: “specified qualification” or “specified class”

“Defence” must take in one of the forms below:
-exceptions
-exemptions
-proviso
-excuse
-qualification

outcome/consequence: legal burden automatically shifted to Defendant to prove the defence

Tools of Interpretation: Rule of Convenience (ROC)

It is one of the sections under Policy Consideration

“Ease of proof vs difficulty in discharging the burden”
For example if it is easy for Prosecution then logically speaking it will be difficult for D, so the P will have to bare the burden as D is already in a hard time

Eg: Gaming Act 1845, 10 exceptions (defences) to the gambling offence
Because D can choose 1 defence to use which is easier meanwhile prosecution has to disprove all ten (DIFFICULTY)

Tool of Interpretation: Policy Considerations

Has 2 sections under this tool:
1. Seriousness of the offence
If the offence is not serious, the punishment will be less severe, the Legal Burden will go to the Defendant

The more serious the offence, the more severe the punishment and the law is uncertain (parliament is silent), Legal Burden will go to the Prosecution

2. Ease of proof/ the difficulty of discharging an element (ROC) [3rd tool]
If it is easier for Prosecution to test the drugs, Legal Burden will go to the Prosecutor to prove that it contained more than 0.2% morphine. R v Hunt, L.Griffiths

Note: You must let the Defendant to bare the LB, because we want the Defendant to challenge, which we can bring out discussion about the statutory reversal

Reversal of Legal Burden and A6(2) ECHR

A6(2) ECHR: right to a fair trial, Presumption of Innocence

They may have raise A6(2) to claim that POI is giving Evidential Burden, which is NOT COMPATIBLE with what the court give (shift the Legal Burden to Defendant)

R v Lambert (2001)
Question: is it proportionate/justified?

Lord Steyn: “LB always on D”, but this will in result conflicting A6(2) ECHR. Is this proportionate?

s5(3) Misuse Drugs Act 1971

Defence: s28(2)- Defendant to prove LB that he had no knowledge (express reversal)

Majority- no A6, pre HRA=LB=D

Obiter: What if A6(2) was applicable? (There are 2 ways) 1st

Brown v Stott- POI is not absolute, can be modified.

Salabiaku v France- A6(2) must be examined in light of margin of appreciation (MOA)

Obiter: What if A6(2) was applicable? (There are 2 ways) 2nd

UK court has this available option: Test the reversal against A6(2)

Test the reversal (defence) against of the test of proportionality (T.O.P)
“Is the LB on the D justified against the aim of the Act/ would LB on the D serve public interest” (R v DPP ex parte Kebeline)

PART 1: testing the reversal of LB against T.O.P, there can be 2 outcomes:

i. LB is justified on the defendant (LB=D, no infringement of A6)

ii. LB is disproportionate on the D (to give LB would infringe A6, and thus there are 2 options)
-s4HRA,dec