Published: Wed, 07 Mar 2018
The Burden of Proof
The legal burden of proof is that the prosecution has the responsibility of proving the defendants guilt. So the presumption is that the defendant is innocent until proven guilty Woolmington v DPP 1935 AC 463. This also complies with Art 6 ECHR. It is when the jury return a guilty verdict that the prosecution can say that they have in fact fulfilled this burden. There are however exceptions to Woolmington where the defendant has the legal burden of proof in one or more facts in the case eg. McNaghten Rules (1843) 10 C & F 200:
Express Statutory reverse burden
S139 CJA 1988 prohibits a person from possessing a knife in a public place but the accused has a defence if he can show good reason or lawful authority for possessing a knife. Also in ss2&4 of the Homicide Act parliament has provided that it is the accused that has the legal burden of proving the defence of diminished responsibility.
Implied statutory reverse burden clauses
S 101 of the Magistrates court Act 1980 where the defendant relies on an excuse or exception he must prove it. An example of this would be driving without insurance contrary to s 143 of the Road Traffic Act 1988. After the prosecution has proven that the defendant was driving the vehicle, it is for the defence to prove that at the time the vehicle was being driven, he was insured. Where the legal burden falls on the defence the standard of proof is not beyond reasonable doubt but on the balance of probabilities. Re H (1996) 1 All ER 1
The party who bears the legal burden also bears the evidential burden and this will be discharged by calling witnesses to give oral evidence, putting documentary evidence before the court, putting photographic evidence before the court presenting real evidence and expert opinion.
In some cases the court will accept existence of the issue without any proof. Judicial notice without inquiry is taken where facts are so much part of common knowledge that they require no proof at all. Judicial notice after enquiry is where the facts are not part of common knowledge and the judge or magistrates have to make appropriate enquiries. Under s10 CJA 1967 either side can make admissions to the court.
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