LS3025: Burden and Standard of Proof in Criminal Cases

Vocabulary practice flashcards covering Scots criminal law on the burden and standard of proof, special defences, statutory exceptions, and relevant judicial authorities.

Burden of proof

The legal device that addresses the question of which party in legal proceedings must prove the case.

Persuasive burden (Legal burden)

The burden allocated to the party who must satisfy the court on a particular issue in order for the relevant facts to be found proven.

Evidential burden

The burden placed on a party of producing sufficient evidence of a fact to enable the court to begin considering it as a live issue; evidence brought to satisfy it does not need to be corroborated.

Tactical burden (Provisional burden)

A practical situation referenced in legal literature where a party feels compelled to lead evidence, though it is not strictly speaking a legal rule or burden.

Presumption of innocence

A fundamental tenet of criminal procedure, affirmed under Mackenzie v HM Advocate 1959 JC 32 and ECHR Art 6(2), establishing that the Crown carries the burden of proof to displace the presumption that the accused is innocent until proven guilty according to law.

No case to answer submission

A procedural submission made when the Crown fails to discharge its persuasive burden of proof before the defence leads any evidence.

Special defence of mental disorder

A defence defined under s 51A of the CP(S)A 1995 (replicating HM Advocate v Mitchell 1951 JC 53) where the accused is acquitted if unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct, which the accused must establish on the balance of probabilities.

Special defence of diminished responsibility

A defence defined under s 51B of the CP(S)A 1995 (reflecting Carraher v HM Advocate 1946 JC 108) where a person charged with murder is convicted of culpable homicide if their ability to determine or control conduct was substantially impaired by abnormality of mind, established by the accused on the balance of probabilities.

Splitting of the burden

The procedural division in special defences such as alibi, self-defence, or incrimination (Lambie v HM Advocate 1973 JC 53), whereby the accused bears an evidential burden to lead initial evidence, while the persuasive burden remains with the Crown to disprove the defence.

Salabiaku v France (1991) 13 EHRR 379

The ECHR authority establishing that reverse presumptions of fact or law are not prohibited in principle, provided Contracting States confine them within reasonable limits that balance what is at stake with the rights of the defence.

Sheldrake v DPP [2005] 1 AC 264

Case upholding a statutory reverse persuasive burden on the accused under s 5(2) of the Road Traffic Act 1988 (to prove no likelihood of driving), holding it compliant with Art 6(2) because the matter was closely conditioned by the accused's own knowledge and state of mind.

Glancy v HM Advocate 2012 SCCR 52

Case holding that requiring the accused to prove a reasonable excuse or lawful authority for carrying a blade under s 49(4) of the Criminal Law (Consolidation) (Scotland) Act 1995 on the balance of probabilities did not breach the presumption of innocence.

Adam v HM Advocate 2013 JC 221

Case holding that requiring an accused under s 3(2) of the Dangerous Dogs Act 1991 to prove on the balance of probabilities that control of dogs was transferred to a person reasonably believed to be fit and proper was compliant with the ECHR.

Doctrine of recent possession

The common law rule established in Fox v Patterson 1948 JC 104 which raises a presumption of guilt requiring the accused to redargue it if stolen goods are found in their possession, the interval between theft and discovery is short, and there are other criminative circumstances.

Other criminative circumstances

The third required element under Fox v Patterson 1948 JC 104, beyond the bare possession of stolen goods and a short interval, needed to trigger the doctrine of recent possession.

Facts peculiarly within the knowledge of the accused

A legal principle recognized in cases like HM Advocate v Hardy 1938 JC 144 whereby a jury may draw an adverse inference of guilt if an accused fails to offer an explanation for suspicious conduct or evidence when they are the only person who knows the truth.

Mochan v Herron 1972 SLT 218

Authority establishing that while an accused in suspicious circumstances is entitled to remain silent, they take a risk; failure to challenge evidence entitles the court to draw the most unfavourable and adverse inferences supported by the circumstances.

Standard of proof

The measure of evidence in terms of quality and quantity required to discharge the persuasive burden of proof in legal proceedings.

Beyond reasonable doubt

The standard of proof required of the Crown to discharge its persuasive burden in criminal cases; if the trier of fact holds a reasonable doubt as to guilt, the accused must be acquitted.

Standard formulation of reasonable doubt

The traditional Scottish direction explaining that a reasonable doubt is one that would cause a juror or judge to hesitate or pause in the conduct of their own affairs before taking a decision.

MacDonald v HM Advocate 1996 SLT 13

Case establishing that defining a reasonable doubt as one leading to 'stopping' rather than 'hesitating' or 'pausing' amounts to a fatal misdirection.

Buchanan v HM Advocate 1998 SLT 13

Case establishing that defining a reasonable doubt as a doubt that would 'dissuade' rather than cause one to 'pause' or 'hesitate' amounts to a fatal misdirection.

Robertson v Watson 1949 JC 73

Authority establishing that where a statute places a reverse burden of proof upon an accused person, the applicable standard of proof is the balance of probabilities.

Johnston v HM Advocate 2014 HCJAC 27

Authority establishing that when an accused offers an exculpatory explanation, the trial judge must direct the jury to acquit if they believe the explanation or if it leaves a reasonable doubt, and failing to do so may constitute a misdirection.