Burden Of Proof (student Version)

Burden of proof In legal proceedings, whether civil or criminal, it is necessary to determine which party has the burden of proving the facts in issue and what standard of proof is required. Every claim, charge or defence has certain essential elements, the proof of which is necessary to the success of the party asserting it. For eg, a plaintiff who asserts a cause of action for negligence assert: (1) that the defendant owed the plaintiff a duty of care (2) that the defendant, by some act or omission, was in breach of that duty of care; and (3) that as a result of that breach, the plaintiff suffered injury or damage for which the law permits recovery. These elements (facts in issue) derive from substantive law applicable to the cause of action, in this case, the law of negligence. The proof of these facts in issue depends on the detailed facts of the individual case, which are referred to as “evidential facts”. Thus, for example, in order to prove the fact in issue, negligence, the plaintiff might set out to prove the evidential facts that the defendant drove while drunk, too fast, on the wrong side of the road, and knocked the plaintiff down, breaking his leg.

The term “burden of proof” may refer to the obligation to prove a fact in issue to the required standard of proof. It is generally held that there are two distinct burden of proof; (1) the ‘legal’ or ‘persuasive’ burden and (2) ‘evidential’ burden. The two burdens not always lie on the same party. The legal or persuasive burden of proof It may be defined as the burden of persuading the tribunal of fact, to the required standard of proof, and whole of the evidence, of the truth or sufficient probability of every essential fact in issue. Assume in our negligence case that the plaintiff will bear the legal burden of proving each element of his cause of action. This entitles him to call his evidence first. The plaintiff and his witness will give evidence and will be cross-examined, and the plaintiff’s case in chief will conclude. But whether the plaintiff has discharged his legal burden of proof could only be determined after the defendant’s case has been presented and after the assessing in the light of the proper standard of proof all the evidence given in the case.

The evidential burden of proof At the conclusion of the plaintiff’s case the judge will decide whether the plaintiff has discharged his evidential burden of proof. Unless the plaintiff has presented at least some evidence in support of each fact in issue, the defendant will be entitled to make a submission of no case to answer, which if successful, entitles the defendant to judgment without being called to present a case. What the judge is doing in ruling a no case to answer is simply assessing whether the plaintiff has established a prima facie to each essential element of the claim. A prima facie case is established when there is enough evidence to entitle, though not compel the tribunal of fact to find in favour of the plaintiff, if there were to be no further evidence given.When the plaintiff established his prima facie case, he has discharged his evidential burden of proof. At this point, the defendant (who bears no legal burden of proof) acquires an evidential burden. But the defendant is fully entitled to refuse to adduce evidence; because the plaintiff has the entire legal burden of proof. In a criminal case there may be good tactical reason for taking this course since the standard required of the prosecution is that of beyond reasonable doubt. But in a civil case it would be to court disaster.

The effect of presumption on the burden of proof There are certain rules of evidence known as presumptions, which have an effect on the normal incidence of the burden of proof. A presumption is a rule of law which provides that if a party proves a certain fact (know as the primary fact) then another fact ( the presumed fact) will also be taken to be proved, unless evidence is adduced by the opponent to rebut the presumption, or contradict the presumed fact. For eg. H and W went through an apparently legitimate ceremony of marriage (primary fact) the validity of marriage will be (presumed) proved unless another party adduces evidence to show that despite the apparent regularity the marriage was not valid (eg lack of capacity to marry or bigamy). In criminal cases if the prosecution could use a presumption against the accused, the accused would acquire at the most an evidential burden of proof as to the presumed fact (and not legal burden of proof)

LEGAL BURDEN IN CIVIL CASES In civil proceedings, the position is essentially that the party who raises an issue bears the legal burden of proof, i.e. the burden of proving the facts in issue (Wakelin v London and South Western Railway(1886). Thus, for example, if the claimant asserts that he and the defendant formed a contract and that he suffered loss in consequence of the defendant’s breach, it is for the claimant to prove that the contract was formed, that it was breached by the defendant and that he did suffer loss in consequence of that breach. Mere denial by defendant- If the defendant merely denies the claimant’s assertions, this does not impose a legal burden of proof upon the defendant. Thus, for example, if the defendant claims that no contract was ever formed between himself and the claimant it is still the claimant who is required to prove the existence of the contract and not the defendant who is required to establish its non-existence. The claimant may fail to satisfy the burden of proof imposed upon him even though defence counsel does not cross-examine the claimant’s witnesses. As a matter of sensible tactics, however, the defendant will normally do all that he can to rebut the claimant’s case, where appropriate both cross-examining the claimant’s witness and calling his own.

The defendant raises a defence ( raises an issue)? Where the defendant puts forward a defence which goes beyond a mere denial (sometimes referred to as ‘affirmative defence’) of the claimant’s case, the defendant must assume the legal burden of proving such defence. Affirmative defence is most easily recognized by the fact that it raises facts in issue which do not form part of the plaintiff’s claim. For example, if the defendant claims that the contract which he made with the claimant was frustrated, it is for him to prove that a frustrating event made its performance illegal or impossible. In such circumstances the defendant’s assertion does not impose a burden of proof on the claimant, though, again, as a matter of sensible tactics, the claimant will normally do all that he can to negate the defendant’s defence.

Legal burden of proof (in civil cases) with regard to where there is little or no evidence in relation to the issue? Every party must prove each necessary element of his claim or defence. Where there is little or no evidence in relation to an issue, the court may be unable to determine which version of the facts is correct. In such circumstances, the party who bears the legal burden of proof in relation to the relevant issue must have failed to satisfy it.

There are cases where it is not easy to determine to whose case a fact in issue is essential, and who should be held to fail if the fact in issue is not proved. In such cases the courts have inclined to require proof of the party to whom the least difficulty or embarrassment will be caused by the burden, and in deciding this would be useful to require proof of a positive rather than a negative proposition. For example, in Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd (1942) AC 154. In the view of unsatisfactory state of evidence, the question of who bore the burden of proving or disproving fault was of crucial importance. The HoL held that to require the defendants to prove a negative (the absence of fault) would be unduly onerous. The reality was that the plaintiffs asserted the existence of fault and should be required to prove it.

Similarly, in Levison v Patent Steam Carpet Cleaning Ltd [1978] QB 69. It was necessary to determine where the burden of proof on the latter issue lay. The Court of appeal held that the defendants would find the burden far less onerous, the circumstances of the loss being within their presumed sphere of competence, and accordingly they bore the burden of proof.

• Burden (in civil cases) is to prove case more probable than not – If the plaintiff bears the burden of proof, and fails to persuade the court that his case has been proved on the balance of probabilities, judgment should be given for the defendant. The test is not whether the plaintiff’s case is more probable than an explanation advanced by the defendant’s, but whether the plaintiff’s case is more probably true than not true.

CRIMINAL PROCEEDINGS Burden of Proof In criminal cases the rule is that the legal burden of proving every element of the offence charged, and therefore the guilt of the accused, lies from first to last on the prosecution. This means that the prosecution must disprove any defence or explanation properly raised by the accused. Thus, in criminal proceedings, the position is essentially that, subject to important exceptions, the legal burden of proof lies on the prosecution (Woolmington v DPP [1935] Ac 462). In this case the accused was charged with murder of his wife by shooting her. His defence was that the gun had discharged accidentally. The jury was directed that once the prosecution proved that the deceased was killed by the accused, it was for the accused to show that the killing was not murder. This was held by HoL to be a misdirection. In this case it was stated that that “ through out the web of 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… No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law England and no attempt to whittle it down can be entertained”

• Mere denial by accusedIf the accused merely denies part or all of the prosecution’s case, this does not impose a legal burden of proof upon the accused. Thus, for example, if the accused claims that he did not kill the victim, it is still the prosecution who is required to prove that the accused did kill the victim and not the accused, who is required to prove that he did not. The prosecution may fail to satisfy the burden of proof imposed upon it even if the accused adduces no evidence and even though his counsel does not cross-examine prosecution witnesses. As a matter of sensible tactics, however, the accused will normally do all that he can to rebut the prosecution’s case, where appropriate both crossexamining prosecution witness and calling his own witnesses.

• Where the accused raises an issue? Where the accused puts forward a defence which goes beyond mere denial of the prosecution’s case and actually raises new issues which the prosecution did not raise, then even so, the accused will not normally bear the legal burden of proving the relevant facts in issue. Rather, provided that there is some evidence before the court upon which a properly directed jury would be entitled to find that the accused’s defence was established, the normal rule is that the legal burden of rebutting the defence lies on the prosecution. In other words, in such circumstances, the accused may be said to bear the “evidential burden” of adducing sufficient evidence to raise the defence, but if sufficient evidence to raise the defence is before the court then the prosecution bears the legal burden of disproving it. In reality, however, even if the evidence adduced by the accused fails to raise such defence, the trial judge should still leave the defence to the jury if it is raised by evidence adduce by other parties (e.g. evidence given by the prosecution witness) ( R. v Bullard)(1957)). Thus, for example, if, upon a charge of murder, the accused claims that he was provoked, if the evidence before the court raises the ‘defence’ of provocation, it is for the prosecution to prove that the accused was not provoked, not for the accused to prove that he was (R. v Mancini (1942)).

•In what circumstances does the accused bear the burden of proving facts in issue? The accused bears the legal burden of establishing the common law defence of insanity (McNaghten’s Case (1843)). Otherwise, the accused only bears the legal burden of proving facts in issue if this is imposed upon him by statute. For example, s.2(2) of the Homicide Act 1957 expressly places the legal burden of proving diminished responsibility on the accused. Where a statute does not expressly place the legal burden of proving facts in issue upon the accused, it may do so by implication, though a judge should not readily infer that a statutory provision is of this effect (R. v Hunt (1987). Essentially, it appears that where statute prohibits conduct of a certain type other than in specified exceptional circumstances, it will be for the accused to prove that he falls within the relevant exception (R. v Edwards (1975)).

Thus, for example, where an accused is charged with selling liquor without a licence, the prosecution, in order to succeed, are merely required to prove that, at the time of the sale, the accused did not posses a licence (R. v Edwards). Rather, if the accused wishes to rely upon the possession of a licence in answer to the case against him, it is for him to prove that he did possess one at the relevant time. [Note: s. 101 of the Magistrates’ court Act 1980 provides, essentially, that where an accused relies upon such an exception, the burden of proving the exception lies upon him. This provision effectively equates with the common law position encountered in relation to trial on indictment (R. v Hunt)

In Hunt, HoL held that a statute might place the burden of proving a defence on the accused expressly or by necessary implication. That each case must turn on the construction of the particular statute, but the courts should be extremely slow to infer that a burden of proof was imposed by statute. On the facts of the case the HoL held that the prosecution had failed to prove an essential element of the offence, namely that the accused had possessed a substance whose possession was proscribed by s. 5 of the Act, and quashed the conviction.

• Burden of proof where there is little or no evidence in relation to an issue? Where there is little or no evidence in relation to an issue, the court may be unable to determine which version of the facts is correct. In such circumstances, the party who bears the legal burden of proof in relation to the relevant issue must have failed to satisfy it. In R. v Edwards (consider above), -the Court of Appeal held that it was for the accused to prove that he did possess a licence if he wished to rely upon such possession in answer to the case against him.

EVIDENTIAL BURDEN General rule in criminal cases and civil cases The evidential burden of proof involves the obligation to adduce evidence legally sufficient to justify a favourable finding as to a given fact in issue. The evidential burden of proof coincides with the legal burden since there can be no discharge of legal burden of proof without discharge of the evidential burden. However, this situation does not necessarily remain unaltered as the trial proceeds. Let us assume that he prosecution succeed in establishing a prima facie case of guilt against the accused in a criminal case. The accused will not succeed on a submission of no case to answer. The legal burden can only be discharged only on the whole of the evidence, and the accused’s evidence may cast the prosecution’s evidence in a different light.

•New issues introduced by defence (in criminal cases): The accused may bear the burden of proving certain affirmative defences. But the accused may introduce a factual issue which does not involve an affirmative defence. Eg: alibi. Although often described as a ‘defence’, an alibi is no more than a denial that the accused was at the scene of the crime; a denial that the accused committed the offence charged. The accused has, therefore, no legal burden of proof of the alibi. But as a practical matter the accused must have some evidential burden in such a situation. Since unless the accused takes some steps, by cross-examining prosecution witness, giving evidence himself, or calling alibi witness, to bring it to their attention the jury will never learn of the alibi and will be unable to consider it. Unless the accused offers some evidence of the alibi the prosecution have no duty even to refer to it. If the accused wishes to rely on some issue or explanation which does not amount to a affirmative defence, he bears an evidential burden of raising that issue to justify a finding in his favour on the issue. Once he discharges this burden it follows that the prosecution must then rebut his case beyond reasonable doubt in order to prove guilt. If the accused fails to discharge the evidential burden, the prosecution need not deal with it.

It is vital to distinguish cases where the accused bears evidential burden of raising the issue from exceptional cases in which the legal burden of proving some issue is cast on the defence. In cases where evidential burden only is involve, for eg. provocation or self defence, the use of the term ‘defence’ has been rightly criticized as tending to suggest a legal burden of proof which the accused does not bear; it would be preferable to refer to “explanations involving new issues’, so as to stress that like any other explanation offered, the prosecution must rebut them in order to prove guilt; nonetheless they are always referred to as defence. The most common cases in which the accused raises explanations involving new issue areprovocation, selfdefence, non-insane automatism, drunkenness, duress, mechanical defect.

•New issues introduced by defence in civil cases, the same rules of evidential burden applies. Thus, if a plaintiff in an action for possession for unauthorized sub-letting makes out a prima facie case by showing that a person other than the lessee is in possession, as a tenant an evidential burden lies on the defendant to prove the occupier is there in another capacity. Where it was proved that the statutory precautions had not been observed in relation to a mine, the owner of the mine bore evidential burden of proving that an explosion which might have occurred because of the lack of precautions, had not been caused by his lack of care for the safety of those working at the mine.  

• Secondary fact (in criminal cases)An evidential burden lies also upon the asserter of a secondary fact eg: that the relationship between his opponent and a witness is such as to give rise to bias in the witness’s evidence, that a witness is competent, secondary evidence is admissible of a lost document- here the asserter bear the burden of adducing evidence to support the assertion. •The same rule regarding evidential burden of secondary facts applies in civil cases thought the standard of proof varies.

CIVIL CASES Standard of proof The standard of proof required of any party to civil proceedings for the discharge of the legal burden of proof is proof on the balance of probabilities. Thus, the evidence adduced by the party who bear the legal burden of proof must persuade the judge (or the jury where, exceptionally, the claim is tried by jury) that it is more probable than not the facts were as that party asserts (Miller v Minister of Pensions (1947)). Consequently, where the evidence before the court equally supports the version of the facts put forward by the party who bears the legal burden of proof and the version put forward by the other party, the party who bears the legal burden of proof has failed to satisfy it (Wakelin v London and South Western Railway). Equally, even though the evidence adduced by the party who bears the legal burden of proof is more persuasive than that adduced in rebuttal by the other party, the party who bears the legal burden of proof still fails to satisfy it if the evidence which he adduces does not persuade the judge that his version of the facts is more probably true than not. If the probabilities are equal, i.e. the tribunal of fact is wholly undecided, the party bearing the burden of proof will fail(Rhesa Shipping Co SA v Edmunds (1985).  

•Where criminal or quasi-criminal conduct is alleged in civil proceedings the requisite standard of proof remains the civil standard, not the criminal standard (In Re H and Others (Minors) (Sexual Abuse: Standard of Proof)[1996] AC 563, a local authority applied for a care order in respect of a girl who had alleged that her stepfather had abused her sexually over a considerable period of time. The issue arose whether, despite the fact that the stepfather had been acquitted, the evidence justified the making of a care order under the terms of this subsection. This issue, in turn, raised the question of the appropriate standard of proof in such a case. The majority of HoL held that the standard of proof should be the ordinary civil standard, but subject to the observation that, the more serious or improbable the allegation of abuse, the stronger should be the evidence adduced to support it. (For eg. A step father is usually less likely to have repeatedly raped his under aged stepdaughter than on some occasion to have lost his temper and slapped herso stronger evidence has to be adduced to support the former) .  

•In matrimonial cases grounds for divorce (eg. Adultery, cruelty, desertion) like any other allegation made in a civil case, may be proved by the ordinary civil standard. In Blyth v Blyth [1966] AC 643- this case involve petition for divorce on the grounds of adultery. HoL held that since divorce was a civil proceeding, the civil standard of proof would apply. •Exceptionally, the standard of proof required in civil proceedings may be the criminal standard of proof, i.e.proof beyond reasonable doubt. This may be the case either where this higher standard of proof is required in civil proceedings by statue or where the common law exceptionally so requires. Thus, for example, it appears that the criminal standard of proof is required in order to prove contempt of court in civil proceedings (Re Bramblevale Ltd (1970).

CRIMINAL CASES Standard of proof Standard required of prosecution:-Where the legal burden of proof lies on the prosecution, the standard of proof in criminal proceedings is proof beyond reasonable doubt. In other words, if there is more than a remote possibility of the accused’s innocence, then he should be found not guilty (Miller v Minister of Pensions). Another way of expressing this standard of proof is to state that the jury must be “satisfied so that they feel sure” of the accused’s guilt (R. v Summers (1952)). In Miller, Dennning J elaborated on the nature of proof beyond reasonable doubt as: It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt doesn’t mean proof beyond the shadow of doubt. Standard required of defence: In the exceptional cases where the defence bears some legal burden of proof on an issue affecting guilt, the standard of proof in criminal proceedings is proof on the balance of probabilities (R. v Carr-Briant [1943]).

Secondary facts: In criminal cases where the prosecution must prove secondary facts in order to demonstrate the admissibility of a piece of evidence, the standard required is beyond reasonable doubt. •Where the question is one of authenticity or originality the party proffering the evidence has to establish a prima facie case of authenticity or originality. In R v Robson [1972] 1WLR 651 the prosecution sought to introduce into evidence certain tape recordings. The defence objected on the grounds that the recordings had not been shown to be originals or at least true copies and that they were prejudicially unreliable and misleading because of their poor quality. Holding the tape recordings to be admissible, it was contended that the standard applied is beyond reasonable doubt. It was further said that a prima facie case of originality is established by evidence which defines and describes the provenance and history of the recordings up to the moment of production to court. In R v Anjeli [1979] 1 WLR 26 the CoA held that civil standard of prove, on a balance of probabilities, to be applied to secondary fact of the genuineness of the writing to be used for comparison with the disputed writing. The court professed that at common law, the standard of proof in a criminal case on question of admissibility was beyond reasonable doubt, but in the instant case the matter was governed by an express statutory provision.

Human Rights The presumption of innocence is embodied in Art. 6(2) of the European Convention on Human Rights. Thus, where the statute or the common law imposes a legal burden of proof upon the accused, this is capable of giving rise to a violation of Art.6(2). The only common law defence which imposes a legal burden of proof upon the accused is the defence of insanity, and the Commission of Human Rights held (in H v UK (1990) that requiring the accused to prove this defence did not give rise to a violation of Art.6(2). In relation to the statutory imposition of legal burden of proof upon the accused, whether or not this results in a violation of Art. 6(2) will depend upon whether the statutory requirement, requiring the accused to prove the relevant facts in issue, falls within reasonable limits (Salabiaku v France (1988)).

In considering whether a statutory requirement which imposes a legal burden of proof upon the accused does fall within reasonable limits, it is necessary to consider matters such as: whether the statutory requirement requires the accuse to disprove an essential element of the offence with which he is charged; the purpose of requiring the accused to prove the relevant fact in issue; how difficult it will be for the accused to prove the relevant fact in issue; the potential consequences for the accused if he is found guilty of the offence with which he is charged; the accused’s rights; whether requiring the accused to prove the relevant fact in issue achieves a fair balance between the public interest and the protection of the human rights of the individual; and Parliament’s view concerning what is in the public interest (R. DPP Ex p. Kebilene (1994)). Thus, for example, in R. v Ali; R. v Jordan (2000), the Court of Appeal held that the statutory imposition of the legal burden of proving the defence of diminished responsibility on the accused, by s. 2 (2) of the Homicide Act 1957, did not give rise to violation of Art. 6(2) because s. 2(2) did not require the accused to disprove an element of the offence of murder and it would be very difficult for the prosecution to disprove that defence if the legal burden of so doing was borne by the prosecution.

In contrast, in R. v Lamber, the House of Lords, applying s. 3(1) of the Human Rights Act 1998, held that the burden imposed upon the accused by the defence created by s.28(2) of the Misuse of Drugs Act 1971, concerning the accused’s knowledge of matters alleged by the prosecution, was only an evidential burden, the prosecution bearing the legal burden of disproving the defence if evidence sufficient to raise it was before the court. The s. 28(2) “defence” concerned an essential element of the offence with which the accused was charged (his knowledge of the matters alleged against him), if the accused was found guilty the maximum sentence was life imprisonment and , whilst it might be difficult for the prosecution to disprove the defence, requiring the accused to prove the defence was a disproportionate response to this