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Published: Fri, 02 Feb 2018
Principle of criminal law
A fundamental principle of criminal law, with regards to the common law is that the prosecution has the element of proving the defendant’s guilt in every aspect.
This was mention in DPP v Woolmington by Lord Sankey as ‘throughout the English criminal law one golden rule thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt’
This essay will illustrate both the burden of proof and the standard of proof with regards to both parties and the defences available to them.
The burden of proof is also know as the ‘onus of proof’, which refers to ‘the legal obligation on a party to satisfy the fact finder, to a specified standard of proof, that certain facts are true.’
The standard of proof is then the degree of standard that is required to establish the burden of proof, which is different depending on the facts of each case.
There are however two distinct burdens of proof and these are the evidential burden and the legal burden.
The concept of the burden of proof and the standard of proof, will both be taking into account in the following scenario.
The first incident involves the defendant Kojak who has been charged for two offences.
The First of these offences being the importation of diseased trees/timber in the UK which falls within S4 (1) of the importation of diseased Trees act 2009 (IDTA) and the second being the possession of diseased trees/timber with intent to supply to others which falls under S8 (5) of the importation of diseased (non-indigenous) Trees Act 2006 (fictitious) ID (NI) TA, and as this is a criminal case it will be the crown (R) v the defendant (Kojak).
It will be the role of the prosecution to produce both the evidential and the legal burden of the defendant ‘Kojak’ for importing the diseased trees/timber into the UK and for possessing the diseased trees with intent to supply to others.
The prosecution will firstly raise the evidential burden, which is also known as ‘the burden of adducing evidence, which obliges the party on whom the burden rests to adduce sufficient evidence for the issue to go before the tribunal of fact.’
The legal burden which is also known as the ‘persuasive or ultimate burden’ is then considered as this obliges the party to prove a fact in Issus.
As the offence is one of a criminal nature, the standard of prove will be beyond reasonable doubt.
With matters regarding Kojak, the prosecution will need to adduce sufficient evidence to establish that Kojak had indeed imported the diseased trees/ timber in the UK and possessed the diseased trees with intent to supply to others, breaching therefore S4 (1) of the (IDTA 2009) and S8 (5) of the Importation of diseased (Non- Indigenous) Trees Act 2006.
Whether the prosecution has established a prima facie and produced sufficient evidence to pass the evidential burden will be decided accordingly by the judge.
The prosecution then has the legal burden of proving that Kojak has indeed imported the diseased trees in the UK and for possessing the diseased trees with intention to supply to others.
The prosecution needs to illustrate this by the required standard burden of proof.
What is meant by the required standard proof means ‘the extent to which the burden of proof must be discharged’.
With the situation regarding Kojak being that of a criminal nature the standard of proof set for the prosecution which will be one of ‘beyond reasonable doubt’.
Beyond reasonable doubt was described in the case of Miller v Minister of Pensions and Lord Denning had stated’ It need not reach certainty, but it must carry a high degree of probability.’ He then went further on to explain that anything less then beyond reasonable doubt will not be enough to convict.
Kojak can thereupon produce a defence under section 4 (3) of the (IDTA 2009) for his first offence, whereby it instructs him to produced a licences.
It would then be accordingly up to the defence to raise the evidential burden, which is to adduce sufficient evidence to illustrate that Kojak, when importing the diseased trees into the UK had held a licence.
When the judge had yet again decided that there was sufficient evidence to raise this defence the legal burden will then need to be proved.
The legal burden in most sense will always be on the prosecution and this is confirmed in the case of DPP v Woolmington, where Lord Sankey has emphasis the notion of the presumption of innocent, explaining into detail that the legal burden will always be on the prosecution.
Regardless of Lord Sankey’s principle of the golden threat, he did also outline three exception whereby the legal burden will be upon the defendant and this will be in cases of insanity, implied or expressed situation.
So if the defendant raises a defence which fall within any of these exceptions, the legal burden will lie on them.
S4 (3) of the (IDTA 2009), shows that there is an implied reverse burden and in order to understand this concept what needs to be taken into consideration is s101 of the Magistrates Courts Acts 1980 which states that “…relies for this defence on any exception, exemption, proviso, excuse or qualification, whether or not it accompanies the description of the offence… in the enactment creating the offence… the burden of proving this exception, exemption, proviso, excuse or qualification shall be on him…”
A case which clearly illustrate this notion is R v Edward this is where the defendant was charged for selling alcohol without a licence and although the defendant had argued that it was up to the prosecution to call up any evidence to show that he had not in fact held a licence the courts stated that the burden of proof would actually remain the on the defendant.
The courts believed that the situation was ‘limited to an offence arising under enactment which prohibits the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with licences or permission of specified classes.’
It was therefore strongly held that the legal burden should be on the defendant, the reason for this being that it was compatible with s81 of the Magistrate’s Courts Act 1952 which was still in force at the time.
However this concept was not widely agreed upon and had caused some problems.
In the case of R v Hunt  the defendant was charged under s5 (2) of the Misuse of Drugs Act 1971 for possessing an illegal drug.
It involved the defendant having the legal burden of proving that the substances he possessed was greater than 0.2% under para3 of sch.1 of the misuse of drug regulation 1973.
Hunt had argued that the legal burden should have remained on the prosecution, and although the Court of Appeal had dismissed this, the House of Lords had agreed with him.
Lord Griffith in Nimo v Alexander Cowan & Sons LTD had held that applying Edwards directly and completely had been wrong.
He then went further on to say that Edwards was seen as a guide rather than a binding decision, so the decision was not overruled and could therefore still be held applicable.
The courts continued to explain that there were certain factors which needed to be taken into account when placing the burden of prove on the defendant and if ignored could result in unpractical and unfair decisions.
This included the seriousness of the offence, the resources and the practically of placing the burden of proof on the defence.
They were also disinclined to interfere with a statute imposed by parliament.
Hunt also however held that each statutes which does not contain an expressed provision must be constructed individually, by the ‘necessary implication it imposes on the accused’
It was therefore held, taking the situation into account that it would be not proportional and unfair to place the burden of proof on the defendant.
The courts therefore had made a decision which led to the creation of the concept of reading down, and which enabled them to interpret everything accordingly and compatible with Section 6 of the European Convention on Human Rights .
This provides the notion of the presumption of innocence, especially with regards to section 6 (2)’ a right to a fair trial’ which states that ‘everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.’
With matters regarding Kojak, the wording used in S4 (3) ‘without’ shows a clear implied reverse burden, taking Edwards into account ,licence is a form of qualification under Section 101 of the Magistrates court act 1980 which lays out the definition of any exception, proviso, excuse or qualification.
Kojak has to prove this by the standard of burden of proof and this will be on the balance of probability, which is a lower standard than that of the prosecution.
The balance of probability was described in the case Carr v Brain as ‘not higher than the burden which rests upon plaintiff or an accused in civil proceeding’
If kojak does not prove this more than on the on the balance of 50% then his defence will fail.
It would therefore be reasonable for Kojak to bear the legal burden, because it only inclines him to produce a licence, which is a form of qualification.
The facts given also state that, Kojak has imported the diseased trees into the UK in November 2009 and he had then been charged under s4 (1) of the Importation of diseased trees act 2009.
With matters regarding Kojak first offence the act may not have been enacted and fully enforced by November 2009, and that would result in Kojak not being charged under this act.
Kojak for his second offence had raised a defence under s.11 (2) of the IDTA 2006, which is a matters regarding the element of mens rea, the evidential burden will therefore be on Kojak.
However what now needs to be considered is whether the legal burden will also be on him.
The wording used in s11 (2) ‘the proof whereof would lie on him, seem to create an express burden of proof by placing the legal burden on the defendant.
This was one of three exceptions used by Lord Sankey in Woolmington, which states that although normally the burden of prove shall lie on the prosecution in cases where it is expressly stated by statute, it could in fact be reversed and therefore be placed upon the defendant.
The very wording used in s11 (2) seems to be a breach of Article 6 of the European Convention on Human Rights and Section 3 of the Human Rights Act 1998, which outlines the same notion as Article 6, however s3 (1) directly explains the concept of reading down stating that ‘primary legislation and subordinate legislation must be read and given effect in a way which is compatible with convention rights.’
So placing the legal burden on Kojak could in effect be a breach of his human rights.
R v Lambert had in effect reintroduced the concept of the presumption of innocence in the light of the Human Rights Act 1998.
This involved the case whereby the defendant was charged under s28 (3) (b) (i) of the misuse of drugs act, with possession with the intent to supply.
It was decided that the legal burden would lie on the defendant to prove that he did not know the substance was cocaine.
House of Lords however held that the decision in the Courts of Appeal was in breach of Article 6 (2) and that only the evidential burden could be placed upon the defendant.
The decision in Lambert did yet again emphasis the notion of innocent until proven guilty, by stressing the importance of the right balance on matters regarding proportionality, explaining that the interest of individual is more important than that of society and justice.
The case of R v DPP ex parte Kebilene also illustrated the courts interpretation of certain acts which only places the evidential burden on the defendant.
The concept of the presumption of innocence was also stated in Hobson stating ‘It is a maximum of English law that ten guilty men should escape rather than one innocent man should suffer’.
So with matters regarding Kojak the expressed reversed burden in placed by statute will not compel him to have the legal burden.
The legal burden will remain on the prosecution to prove that Kojak was in possession of the diseased trees with intent to supply to others.
The second part to this essay is the offence arising from Stavros who is charged for murder under the Homicide Act  which can be reduced to manslaughter if he successfully discharges his defence.
With the situation given, Stavros can apply for the partial defence of provocation which falls under s3 of the Homicide Act  and the absolute defence of self defence which is a common law offence.
The prosecution will firstly raise the evidential burden of adducing sufficient evidence to show that Stavros has caused ‘unlawful homicide with malice aforethought and the intent to kill or cause GBH’
The prosecution will then have the legal burden of proving this and as this a criminal offence it will decided beyond reasonable doubt.
Stavros as the defence will then be able to raise his defences of self defence or provocation by adducing sufficient evidence to discharge the evidential burden.
Although the evidential burden will be on Stavros to raise sufficient evidence with regards to any of the defences, the legal and final burden will remain on the prosecution.
A case which illustrates the key elements of self- defence is R v Lobell.
In this particular case the defendant was convicted on the basis that the judge had misdirected the jury by placing the legal burden on the defendant.
The House of Lords and Lord Goddard had explained the legal burden could never be placed on the defendant, except in cases of insanity implied or expressly stated by statute.
The case of Mancini v DPP states that with matters regarding provocation, the legal burden of proof with the standard of proof being beyond reasonable doubt, will remain on the prosecution.
This seems to reiterate the concept that was held in Woolmington by Lord Sankey.
Confirming that if Stavros decided to raise a defence of either self defence or provocation, there will not be a reverse burden of proof and the prosecution will remain to have the legal burden.
So with matters regarding Stavros the prosecution will still need to disprove any of his defences, which would either be self-defence or provocation.
Article 6 of the European Convention on Human Rights 
Magistrates Courts Act, s81, 952
S101 of the Magistrates’ Courts Act, 1980
s1 Homicide Act 
s3 of the Homicide Act 
S3 of the Human Rights Act 
S3 of the Human Rights Act 
- s5 (2) of the Misuse of Drugs Act 1971
S28 (3) (b) (i) of the Misuse of drugs Act 
DPP v Woolmington  AC 462
Mancini v DPP  AC 1,  3 ALL ER 272
Miller v Minister of Pensions 2 All ER 372
Nimmo v Alexander Cowan & Sons Ltd  AC 107
R v DPP Ex Parte Kebilene
R v Edwards  1QB 27
R v Hunt  AC 352
R v Lambert  2 AC 545
R v Lobell  1 QB 547,  3 ALL ER 734
Evidence, Roderick Munday Third Edition Oxford University press 2007
Murphy on Evidence, Eleventh Edition Oxford press 2009
The Common Law Library, Phipson on Evidence, Sixteenth Edition, Sweet & Maxwell 2005
The law Of Evidence, Third Edition Professor Ian Dennis, Thomas Sweet & Maxwell 2007
The Modern Law of Evidence, Seventh Edition, Adrian Keane LLB
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