Legal burden of proof


Any student of the law of evidence soon becomes familiar with the dictum of Viscount Sankey LC in Woolmington v DPP where he said:

‘Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to ...the defence of insanity and subject also to any statutory exception'.

The Viscount statement of the nature of the legal burden of proof in criminal trials is, simply a restatement of a fundamental presumption, that a person is presumed to be innocent until proven guilty. Historically Blackstone (1753-1765) maintained that:

"the law holds that it is better that ten guilty persons escape than that one innocent suffer."

The presumption of innocence has evolved as a principle at common law from McKinley's case to the present, including Human Rights Convention protections. The dictum of Lord Gillies in McKinley's case said that:

"It is impossible to look at it without suspecting, and thinking it probable, it imports an obligation to commit a capital crime. That has been and is my impression. But the presumption in favor of innocence is not to be reargued by mere suspicion. I am sorry to see, in this information, that the public prosecutor treats this too lightly; he seems to think that the law entertains no such presumption of innocence. I cannot listen to this. I conceive that this presumption is to be found in every code of law which has reason, and religion, and humanity, for a foundation. It is a maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman; and I was happy to hear from Lord Hermand he is inclined to give full effect to it. To overturn this, there must be legal evidence of guilt, carrying home a decree of conviction short only absolute certainty."

In English jurisprudence this presumption was explained in McIntosh v Lord Advocate , Lord Bingham of Cornhill referred to the judgment of Sachs J in State v Coetzee where the significance of this presumption was explained. The learned judge said:

“...the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become. The starting point of any balancing inquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences, massively outweighs the public interest in ensuring that a particular criminal is brought to book...Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system”.

The Application Of These Principles In Irish Law

Firstly to define the Burden of Proof by definition in Ireland:

The obligation of proving facts. The obligation, in the sense of establishing a case, generally rests on the party who asserts the affirmative of the issue and it does not shift, being fixed at the beginning of the case e.g. in a criminal case, the burden of proving the guilty of the accused rests on the prosecution; in a negligence case, the onus of proving negligence rests on the plaintiff and of proving contributory negligence rests on the defendant.

The burden of proof, in the sense of adducing evidence, rests on the party who would fail if no evidence at all, or no more evidence, as the case may be, were given on either side. This Burden will rest on the party substantially asserting the affirmation of the issue at the start of the case, but as evidence is presented, the Burden may shift constantly throughout the case, but also because of presumption of the law, or statutory requirements which sometimes put proof of Authority, consent or Lawful excuse on the accused (e.g. Road Traffic Act 1961, s38) or which put the onus of proof on the defendant (e.g. on an employer to justify a dismissal: Unfair Dismissals Act 1977)…

A number of Irish case law will show how the principle of the burden of proof enshrines the presumption of innocence of the accused not only in criminal cases but in civil cases to and it will be shown that the presumption is not only a provision within the Irish Constitution but a provision within the E.C.H.R Act, 2003. The Presumption can shift depending on the circumstances of the case or within the wording of any Statute. It should be noted that the Legal Burden of Proof should not be mistaken by the Evidential Burden of Proof, the Evidential Burden can and often shifts to the accused and this principle is acceptable in Irish Law and subsequently in International Law as well. Both circumstances have to maintain the principles of the “Fair Trial” and “Procedures”.

Civil Procedure

A procedure for confiscating the proceeds of crime, this nature could be available to the prosecution after the conviction of a person for a “enterprise crime” or a “scheduled offence”. Alternatively, it could take the form of a civil procedure operating independently of the commission of any criminal offence. In the case of drug trafficking offences, the Dail Committee recommended a provision to be applied to “any person who is suspected by law enforcement agencies of being engaged in drug trafficking and who is unable to prove that he acquired his assets through legitimate means”.

Legislation could provide that the onus of proving that specific items were innocently acquired was on the defendant. Alternatively, the onus is placed on the applicants for such an order who presumably would have to meet the lower standard applicable in civil proceedings, i.e. proof on the balance of probabilities. It would seem that this would be the appropriate standard of proof in a forfeiture proceeding of this nature, although the matter is not free from doubt.

While civil procedure of this nature is in itself presents serious constitutional difficulties. The court would be depriving someone of their property on the basis of allegations of criminal activity, where there has been no conviction or proof. The procedural safeguards surrounding a criminal trial leading to confiscation are absent in civil proceedings. As was seen in Gilligan v Criminal Assets Bureau the Supreme Court held:

“the provisions of the Proceeds of Crime Act, 2006 requires the respondent to show that the property was not the proceeds of crime was constitutional, the respondent was in a unique position to account for it”.

In a more recent case where the Burden has shifted from the defendant to the Prosecuting party in a civil case based on the principle that the one whom asserts must prove. As it is in civil cases on the balance of probabilities, in Mc Cann -v- Judges of Monahan District Court & Ors the prosecuting parties had to prove beyond reasonable doubt, Justice Lafoy held:

“The burden of proof that failure to pay is not due to his or her wilful refusal or culpable neglect is, effectively, imposed on the debtor, so that there is no onus on the creditor to establish that the failure to pay the debt is not due to lack of means or inability to pay on the part of the debtor. Such onus should be borne by the creditor and should only be discharged by the application of the standard of proof in a criminal matter, proof beyond reasonable doubt. . . the burden of disproving that the default in payment of the instalments was not due to his wilful refusal or culpable neglect and, if so, whether paragraphs (b) and (c) can be interpreted in such a way that the burden of proving wilful refusal or culpable neglect is on the creditor”.

The provisions of the Constitution if it purported to put the onus of disproving the offence on the debtor. As was recognised by the Supreme Court in Hardy v. Ireland, the “well-established criminal law jurisprudence in regard to having trials in due course of law” applies to a statutory offence with the following consequences as per Hederman J. at p. 565 were it was held:

“It protects the presumption of innocence; it requires that the prosecution should prove its case beyond all reasonable doubt; but it does not prohibit that, in the course of the case, once certain facts are established, inferences may not be drawn from those facts and I include in that the entitlement to do this by way even of documentary evidence. What is kept in place, however, is the essential requirement that at the end of the trial and before a verdict can be entered the prosecution must show that it has proved its case beyond all reasonable doubt.”

It has been shown that even in civil cases where the wording in legislation can cause the Burden to shift but this principle only applies when there is a criminal element to the charge in a civil case. As was pointed out in the Supreme Court in Abbey films v Attorney General dictum of Kenny J. at page 170 held:

“In the action for a declaration in the High Court, the onus is on the person resisting the entry (or not complying with the requirement) to prove that the exigencies of the common good do not warrant the exercise by the examiner of the powers conferred on him. . . Since the legislature may impose on an accused in a criminal prosecution an onus to establish a limited and specified matter, it follows that such an onus may be imposed in a civil action even if this is connected with criminal proceedings. This is not an instance of a general onus being placed on an accused to establish his innocence of a charge preferred against him. The section merely enables the person to whom it applies to resist a prosecution by showing that the exigencies of the common good did not warrant the exercise by the examiner of the powers conferred on him by the section. Therefore, it is not a breach of any of his personal rights under the Constitution”.

In other disciplines of civil actions were no criminality is shown, like in a tort action, the general rule is that the plaintiff must prove all the ingredients of the tort and it is not for the defence to prove anything. So in negligence, the plaintiff must prove, Duty of Care, Breach of that duty, Damage and causation. The doctrine of res ipsa loquitur may automatically shift the burden of proof onto the defendant to show that he took reasonable care in negligence actions.

The right to a “fair hearing” is the other notion which applies to civil cases which differs from its application to criminal cases. As the ECHR Court has said in Dombo Beheer B.V v. The Netherlands

“the contracting States have a greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases”

As it has been pertinently stated by the doctrine:

“... although certain of the guarantees listed in Article 6 (3) may in principle be inherent in a “fair hearing” in civil as well as in criminal cases, they may not apply with quite the same rigour or in precisely the same way in civil proceedings as they do in criminal ones. The same is true of such rights as the right to be present at the trial and to “equality of arms” that flow exclusively from Article 6 (I) in both criminal and civil cases. We therefore propose to have a close look at certain instances of the Strasbourg case- law in order to delineate the limits of protection afforded by the organ(s) of the Convention in civil cases on the issue of “fair hearing”.

The traditional approach of the European Court on this matter is that Article 6, incorporating procedural guarantees, is not designed to be the legal basis for a review of the facts and of the substantive law upon which the national judge decided the case. The European Court is not a “fourth instance” court, called upon to re-examine, under Article 6, the merits of a case or the interpretation of the applicable domestic law. The Court only reviews errors which are relevant to the procedure followed errors “in procedendo”, not errors “in judicando”.

Criminal Proceedings

In the US the presumption of innocence is part of the due process clause of the 14th Amendment, and is strictly observed in criminal proceedings.

In Oakes, a recent Canadian case, a statutory provision which imposed the burden on a defendant to prove that he or she was not in possession of drugs for the purpose of trafficking was held to violate the presumption of innocence guaranteed by the Charter of Rights. Although the court (at p.229) stated that “the objective of protecting our society from drug trafficking ... is ... one of sufficient importance to warrant overriding a constitutionally protected right or freedom in certain cases” nevertheless the burden-shifting presumption in s8 did not satisfy the “proportionality test” of being rationally connected to the objective and impairing as little as possible the right in question.

More recently this topic was considered by Costello J in Donal O'Leary v Attorney General, where the constitutionality of s24 of the Offences Against the State Act 1939 and s3(2) of the Offences Against the State (Amendment) Act, 1972 was in issue. The first of these sections provides that, where a person is charged with being a member of an unlawful organisation, proof to the satisfaction of the court that an incriminating document relating to the organisation was found on him or on premises owned or occupied by him is to be evidence that he was a member until the contrary is proved. The second section provides, in relation to the same charge, that where a specified officer of the Garda Siochana in giving evidence states that he believes that the accused was at a material time a member, the statement is to be evidence that he was such. It was argued on behalf of the plaintiff, who had been charged with being such a member, that the sections were unconstitutional because they deprived the accused of his right to the presumption of innocence. Costello J said that he had little difficulty in construing the Constitution as conferring on every accused in every criminal trial “a constitutionally protected right to the presumption of innocence”. The learned judge, having pointed to the widespread recognition of the presumption of innocence as a fundamental human right, said that a trial held otherwise than in accordance with the presumption would, prima facie, be one which was not held “in due course of law” as required by Article 38 of the Constitution. In the instant case, however, he concluded the impugned legislation did not remove the presumption of innocence. Oakes was distinguished on the ground that the sections in that case were entirely different.

Presumption of Innocence under the ECHR Act, 2003 Article 6 (2) refers to the presumption of innocence representing the first of all a procedural guarantees for the conduct of a criminal trial: courts are not to proceed on the assumption that the accused committed the act charged. The presumption of the accused innocence is crucial for the evidence-taking process, in that it places the burden of proof on the prosecution and allows the accused the benefit of the doubt.

The hundredth judgment delivered by the Strasbourg Court had at its origin a complaint by a Viennese butcher convicted of an offence under the Austrian Food Hygiene Code. The convicting court in Austria had appointed as an expert the very same person who had drafted for the food hygiene inspector - that is the prosecutor - the report which had set in motion the criminal proceedings against the complainant. The Strasbourg Court referred to the principle of equality of arms, which is inherent in the concept of a fair trial. It held that there had been unequal treatment of prosecution and defence and thus an unfair hearing. In the context of criminal proceedings what the principle of “equality of arms” means is that the defendant must have “a reasonable opportunity of presenting his case to the court under conditions which do not place him at a substantial disadvantage vis-à-vis [the prosecution]”.

Evidence under Article 6 (1) does not require the adoption of any particular rules of evidence: this is a matter for domestic law. The defence of insanity is one of the exceptions where the Burden of proof shifts to the accused asserting this defence. At common law in McNaughten [1843] it was not for the prosecution to disprove the defence, this principle was approved in AG v Boylan Now, in charging the jury the learned Judge directed the particular attention of the jury to the evidence of the three doctors, which he dealt with in great detail, and this Court is satisfied that that evidence and the case made on behalf of the accused was most fully and fairly put before the jury. But it is contended that the Judge misdirected the jury as to the test that they should apply in determining whether the accused was insane on the night in question. The Judge directed the jury in accordance with what is called "the rule in

McNaughton's Case” that in order to establish the defence of insanity it must be proved that at the time the act was committed the accused was labouring under such a defect of reason, from disease of the mind, that he did not know the nature and quality of the act he committed, or, if he did, that he did not know that what he was doing was wrong. The direction given by the Judge on that matter was as follows:

“Gentlemen, I told you that the onus of proving the crime rests upon the State, but insanity is a matter of defence, and the onus of proving that rests upon the accused. The State must prove the facts of the crime, but where the defence is insanity it is the accused who must prove it, and must prove it to your satisfaction. When you are considering the question of insanity you are considering, of course, the state of mind of the accused at the time this act was committed. . . . And, gentlemen, when I tell you that the onus of proof rests upon the accused, that he must prove that defence to your satisfaction. . .”


  Having regard to the European Convention on Human Rights (ECHR). Article 6(2) of ECHR states that:

“Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law”.

Now that the Human Rights Act 2003 is in force in Ireland, the court has power to make a declaration that provisions in legislation are incompatible with a right under the Convention in conjunction with the Irish Constitution , which the ECHR Article 6 is inline with Article 34, Article 38 and Article 40 of the BUNREACHT NA hÉIREANN, 1937. Strasbourg case-law with reference to Article 6 of ECHR is not alien to the Irish Legal tradition. In the United Kingdom however Article 6 of ECHR cannot simply be slotted into domestic law on criminal procedure without some adaptation of the existing rules. The basic conclusion is therefore that the introduction of the ECHR Act 2003 into Irish Law does not pose any great difficulties, in principle or in practice, for the Irish courts. As noted by the Human Rights Committee in General Comment No.13, the principle of presumption of innocence means that:

“the burden of proof of the charge is on the prosecution and the accused has the benefit of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt. Further, the presumption of innocence implies a right to be treated in accordance with this principle. It is, therefore, a duty for all public authorities to refrain from prejudging the outcome of a trial”.

In concluding this paper of the “Presumption of Innocence” to which is the “Legal Burden of Proof”, the historical and current principles have been set out, whereas the safeguards and provisions of the accused is by principle strictly adhered to.


  1. Office of the High Commissioner for Human Rights in Cooperation with the, International Bar Association, Professional Training Series No. 9, Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, UNITED NATIONS, New York and Geneva, 2003.

  1. Murdoch's Dictionary of Irish Law 4th ed., Henry Murdoch, Dublin, Tottel, 2004.

  1. The Law Reform Commission, (LRC 35-1991) Report on the Confiscation of the Proceeds of Crime, First Published January 1991.

  1. Right to a Fair Trial in Criminal Matters Under Article 6 E.C.H.R. Paul Mahoney, 2004.

  1. The Right to a Fair Trial in Civil Cases, Christos Rozakis, 2004.

  1. Evidence, Declan McGrath, Thomson Round Hall, Dublin, 2006.

  1. European Convention on Human Rights Act, 2003.



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