Law of Evidence – Fact SheetsBurden of Proof

INTRODUCTION

The burden of proof is the obligation on a party to establish the facts in issue
in a case to the required degree of certainty (the standard of proof) in order to
prove their case.

LEGAL BURDEN OF PROOF - CRIMINAL CASES

The general principle, laid down in Woolmington v DPP is that the burden is
on the prosecution to prove the facts essential to their case.

(The Golden Thread of English Criminal Law).

The exceptions to this general principle are where a statute expressly places
the legal burden on the accused (e.g.“it shall be for the defendant to prove
....”) or where on interpreting the statute, it implies that the burden is on the
accused.

This will usually be the case only in minor offences, where the defendant
relies on some form of exemption, or permission to do something, such as
licensing matters.

Where it is difficult for the defendant to provide evidence in his defence, or

where the offence alleged is a serious one, the courts will generally take the
view that the burden is too onerous, and it will rest with the prosecution.

If a defendant does have the legal burden he will only have to discharge it on
the balance of probabilities (the civil standard of proof - see below).

LEGAL BURDEN OF PROOF - CIVIL CASES

The general rule is that “he who asserts must prove”, i.e., the burden rests
with the plaintiff (the party bringing the action).

The exceptions to this rule include an allegation of frustration where a plaintiff

sues for breach of contract. In this situation a defendant would have the legal
burden of proving that he was unable to complete the contract due to the fault
of another person, or another act, e.g., fire etc.

EVIDENTIAL BURDEN

This is the burden on a party to adduce enough evidence of an allegation to

enable the magistrate or judge to allow the issue to be heard and examined in
court (i.e., some evidence supporting the contention other than simply the
legal representative coming up with a story off the top of his head).

Copyright Dr Richard Jones 1999 -1-

 Law of Evidence – Fact SheetsBurden of Proof

This rule mainly refers to the burden on a defendant to put forward evidence
of provocation, self defence or alibi etc.

When enough evidence has been raised, the prosecution would then have to
disprove that evidence to the required standard of proof.

STANDARD OF PROOF - CRIMINAL CASES

The criminal standard of proof on the prosecution is proof beyond all

reasonable doubt, which means proof to a high degree of probability but not
proof beyond a shadow of a doubt. (Miller v Minister of Pensions).

The criminal standard of proof on a defendant is the same as the civil

standard, i.e., proof on the balance of probabilities.

STANDARD OF PROOF - CIVIL CASES

The standard of proof on both parties is proof on the balance of probabilities,

i.e., that an allegation is more probable than not.

REFERENCES:

Miller v Minister of Pensions (1947) 2 All ER 372.

Woolmington v DPP (1953) AC 462.

Copyright Dr Richard Jones 1999 -2-