Burden of Proof and Standard of Proof

Burden of Proof and Standard of Proof

Explain and distinguish between the terms "burden of proof" and "standard of proof". Your answer should make reference to these terms in relation to both civil and criminal proceedings

Question concerns the issue of evidence in court proceedings. Evidence is the means by which facts in issue are proved .

(a) Burden of Proof

o Also known as the Onus of Proof

o Defines the party to the proceedings who has to adduce evidence to prove a fact in issue. ( civil : plaintiff/claimant v. defendant ; criminal :

o 2 types: (1) legal burden and (2) evidential burden

(1) Legal Burden : Describes the party to the proceedings having the burden of establishing their case. For example, in a criminal case the prosecution has the burden of proving the guilt of a person charged with the offence. This is due to the doctrine of "presumption of innocence" in criminal law according to which the accused is presumed to be innocent until proven guilty by the prosecution. All benefit of doubt must therefore be decided in the favor of the accused. It is enshrined in Article 6 - European Convention of Human Rights.

(2) Evidential Burden: describes the party having to adduce enough evidence so that their assertion becomes a fact in issue.

- Criminal proceedings

o legal burden is mostly on the prosecution

o The evidential burden of drawing certain facts into issue may shift. In the first instance this will reflect the legal burden.

o The prosecution must introduce sufficient evidence so that prima facie case of guilt is established. If this is not done then the case may be dismissed by the judge on the basis that there is no case to answer.

o The evidential burden of proof then passes to the accused who may then raise a defense. If the a defense is raised then the accused must raise a prima facie case establishing it. The burden then returns to the prosecution to disprove the defense.

o If the accused does not raise a denfense they may simply argue that the prosecution hasn't discharged its legal burden of proof.

o Exception s in which legal burden of proof is on the defense in criminal cases

(1) R v. Mc Naughton (1893) and Woolmington v. DPP (1935) - when the defendant argues that they are insane

(2) when the crime in question creates a prohibition subject to exceptions for example if a person may lawfully do something if they hold a license.

 R v. Edwards (1975) Putting the burden of proof on the accused is limited to offences where statute prohibits the doing of an act save in specified circumstances, or by persons of specified classes, or with specified qualifications, or with the licence or authority of specified authorities.

 Section 101 of the Magistrates' Act 1980- the person relying on any exception, exemption, proviso, excuse or qualification must prove its availability.

(3) Certain offences created by statute have certain provisions where the burden of proving certain matters is on the defense.

- Civil Proceedings

o The legal burden generally lies with the plaintiff to establish the basis of the claim.