UNIT 6 STANDARD OF PROOF
THE STANDARD OF PROOF
One party has to prove the truth of the fact in issue. In other words he has to adduce more persuasive evidence than his opponent. If he only adduces evidence of an equivalent quality so that the judge of fact is left undecided, then the party who has the legal burden has not discharged it and will fail. So the Standard of Proof is concerned with how much more (or better quality) evidence has to be adduced by one party than his opponent in order to be successful.
Cases from the second half of the l9th Century show two standards of proof recognised:
(1) Proof on a preponderance of probabilities - the civil standard, and
(2) Proof beyond reasonable doubt - the criminal standard.
The words "beyond reasonable doubt" were at one time only one of a number of ways of explaining the criminal standard of proof to a jury. They were however approved in Woolmington versus DPP and may now be said to represent the usual definition. Another equally acceptable formula is
“You must be satisfied so that you are sure.”
Difficulties have arisen however where judges have sought to explain more fully to a jury what the words "Beyond reasonable doubt" mean. No particular set of words suffices - it is the summing-up as a whole that is important. This must be borne in mind when considering individual words or phrases in decided cases.
One formulation that has often been approved is by Denning J in Miller versus Minister of Pensions
"Proof beyond reasonable doubt need not reach certainty but it does carry a high degree of probability. Such proof does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible but not in the least probable’ the case is proved beyond a reasonable doubt but nothing short of that will suffice."
In Walters versus R the Privy Council held that the trial judge's attempt to explain "beyond reasonable doubt" by saying "A reasonable doubt is that quality and kind of doubt which when you are dealing with matters of importance in your own affairs you allow to influence you one way or the other" was unobjectionable.
In Ferguson versus R the composite formula "satisfied beyond reasonable doubt so that you feel sure of the defendant's guilt" was also approved.
However, the following words of explanation have been disapproved:
· "satisfied"
· "comfortably satisfied"
· "pretty certain"
· "reasonably sure"
Trial judges are encouraged to follow specimen directions when directing juries on the law. The Judicial College recommends in their Crown Court Compendium, that any question from the jury during deliberation about the burden and standard of proof must be shown to the advocates and discussed with them in the absence of the jury. If the jury ask for clarification of the standard, their question should be answered as shortly as possible. In the case of R versus Majid, Lord Justice Moses observed:
“[Any] question from the jury dealing with the standard of proof is the one that most judges dread. To have to define what is meant by 'reasonable doubt' or what is meant by 'being sure' requires an answer difficult to articulate and likely to confuse”.
No doubt this is why the Judicial College seeks to avoid it in the direction they give to judges that we will consider soon.
In the case of R versus JL the jury asked exactly such a question. Specifically whether the standard of proof was 100% certainty or ‘beyond reasonable doubt’, and if the latter, what ‘beyond reasonable doubt’ actually means. The trial judge explained that:
(1) the jury was not required to be 100% certain (relevant only because the question had been specifically asked);
(2) ‘sure’ and ‘beyond reasonable doubt’ meant the same thing; and
(3) a reasonable doubt was the sort of doubt that might affect the jurors’ minds if they were making decisions in matters of importance in their own affairs, their own lives.
The Court of Appeal said that each answer was correct and appropriate, given the specific questions that had been raised by the jury, and the final formulation as to reasonable doubt was ‘unexceptionable’.
However, this explanation should only be provided in exceptional cases and the Compendium stresses that it is unwise to attempt any further explanation, which echoes what had been said by the Court of Appeal in R versus Ching
“We point out and emphasise that if judges stopped trying to define that which is almost impossible to define, there would be fewer appeals.”
When (as is usual) the burden of proof is on the prosecution, the Crown Court Compendium goes on to state that the jury should be directed as follows:
(1) It is for the prosecution to prove that D is guilty.
(2) To do this, the prosecution must make the jury sure that D is guilty. Nothing less will do.
(3) It follows that D does not have to prove that he/she is not guilty. If appropriate: this is so even though D has given/called evidence.
Judges should therefore follow these directions, but what if they fail to do so? A graphic example of this can be seen from the case of R versus Bentley.
Bentley was convicted of the murder of a policeman and sentenced to death in 1952. Following the dismissal of his appeal, Bentley was executed in 1953. He was granted a royal pardon in relation to his sentence and execution in 1993, and Bentley's niece appealed on Bentley's behalf against his conviction. The appeal was brought in part on the grounds that the trial judge had given no direction on the standard of proof and that his direction on the burden of proof had been unclear and misleading. Consider what the trial judge said to the jury on this:
“Gentlemen of the jury, it is the prerogative of the jury in any case where the charge is of murder to find a verdict of manslaughter, but they can only do it if the evidence satisfies them that the case is properly reducible to one of manslaughter….… In that case the only possible way of reducing the crime to manslaughter is to show that the act was accidental, and not wilful…...”
The Court of Appeal allowed the appeal because of the many defects in the judge's summing up rendered Bentley's trial unfair and his conviction unsafe.
Here is the specimen direction that trial judge’s are encouraged to follow:
“The prosecution must prove that the defendant is guilty. The defendant does not have to prove anything to you. The defendant does not have to prove that he/she is innocent. The prosecution will only succeed in proving that the defendant is guilty if you have been made sure of the defendant’s guilt. If, after considering all of the evidence, you are sure that the Defendant is guilty, your verdict must be ‘Guilty’. If you are not sure that the defendant is guilty, your verdict must be ‘Not Guilty’.”
If reference has been made to “beyond reasonable doubt” by any advocate, the following may be added:
“You have heard reference to the phrase ‘beyond reasonable doubt’. This means the same as being sure.”
When the legal burden is on the accused in a criminal case the accused must prove matters to the extent of persuading the jury that they are more likely than not to be true.
So in R versus Carr-Briant the accused was charged with corruption under the 1906 Prevention of Corruption Act. It was proved that he had made a gift to a government employee. The trial judge, however, directed the jury that the onus of proving his innocence lay on the appellant beyond reasonable doubt. In quashing the conviction, the court held that although the appellant did have a burden of proof it was only to satisfy the jury of his defence upon the civil standard of balance of probabilities.
Moreover this phrase must be carefully explained. For example in R versus Swaysland, the court held that where a burden of proof was on the defendant it was not enough to tell the jury that he had to prove it on "the balance of probabilities" for this might confuse them into thinking that it was, say 75% probable. The phrase "more likely than not" was preferable.
So a defendant will succeed if his version of the facts is more probable than the prosecution’s. One formulation that has often been approved is by Denning J in Miller versus Minister of Pensions
"Proof on the civil standard must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say "we think it more probable than not" the burden is discharged but if the probabilities are equal it is not."
The following specimen direction is what trial judges are recommended to use when directing a jury in these circumstances:
“When you are considering {specify the specific defence raised}, this is for the defendant to prove. The defendant has to show that it is more likely than not that {specify what it is the defendant must prove}. The defendant does not have to make you sure of it.”