Burden of and Standard Proof PDF

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Professor Davidson and Professor Maher as well as own personal readings....

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Burden of Proof The burden of proof is a device that deals with the following question: which party must prove the case? The standard of proof deals with a different question: to what extent must that party prove the case? Three types of Burdens exist: (1) The persuasive burden  Most important burden.  It is attached to a particular burden by law and never moves.  Where a particular party requires to satisfy the court on a particular issue (bears the burden of proof on that issue), in order to succeed in the case, that party has the persuasive burden on the issues. (2) The evidential burden  This is the burden on a party of producing sufficient evidence on an issue in order to allow the court to begin considering it.  Sometimes the persuasive burden and evidential burden falls on different parties.  Where this happens: one party has to produce evidence on an issue and once this happens, the other party must persuade the court that the issue is established.  This most often happens in cases of criminal charge where the accused bears the evidential burden but the persuasive burden of disproving the defence lies on the crown.  *Crawford v HM Adv 1950 JC 67, at 69:  Lord J Cooper: If an accused provides or points to some evidence of alibi even though its flimsy and/or ambiguous then the evidential burden is met and the court will direct the jury to take the possibility of alibi into account in deciding whether the case against the accused is proved beyond reasonable doubt (3) The tactical burden  This is not really a formal burden but it allows for the practical application of burdens to be understood.  The tactical burden is the only one that shifts during the course of a court case. It mirrors the changing dynamics of a case.  For example: once the pursuer in a civil case has completed leading his evidence, the tactical burden shifts to the defender; he is now expected to establish his defence. When we deal with burdens in criminal and civil cases, we will see the operation of the persuasive and evidential burdens in action. While those burdens apply in both civil and criminal; they play a more important role in criminal cases. Why are burdens necessary?

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The main reason is to ensure that in any particular case, there will be a winner. In most cases, the court will be in no doubt as to which party has made out his case but sometimes evidence and legal argument can be well balanced.  In this case the court can rely on the burden of proof to decide the case - it tilts the scales in one direction or the other in narrow cases. It is also useful in ensuring the parties know what points they must provide evidence for. They know which facts to concentrate on when preparing for the case

CIVIL CASES: In order to determine which party bears the burden of proof on which issue in a civil case, there is a simple rule. Where a party relies upon a fact and where it is essential to the establishment of his case, he will bear the legal burden of proving that fact. If he fails to prove it: it will be deemed not to have been established and he will lost the case. In summary - The party who raises the issue must prove it which means the main burden will usually lie on the pursuer. However, where the defender asserts a positive defence (not just a denial of the claims) he will then bear the legal burden of establishing that defence. What about if it is not clear upon which party a particular burden lies?  The court can intervene and apply a general rule:  The party who would require to prove a positive fact will be the party to bear the burden  The court does not require to find out what did happen, instead it only decides if the pursuer has established that the defenders are to blame. Where there is no direct evidence?  Indirect evidence can be produced, in the hope that the gap in the evidential chain will be bridged by a process of inferring that if A and B and C happened, it must lead to the conclusion that D is the case.  In some cases the inference sought to be drawn is too much and the court will not draw it leading to the failure of a claim  Pearson v McDermott Diving (2009)

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Please note: pursuer normally runs case before the defender but sometimes defender will be allowed to present his case first. If the order is altered, this does not alter where the burden lies.

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A presumption when relied upon does not alter the burden from one party to another it is simply a way in which the burden can be discharged.

CRIMINAL CASES: In general terms persuasive and evidential burden is on the Crown to prove all aspects of the case against the accused. This is a natural consequence of the presumption of innocence (McKenzie v HMA)  It is crucial that the burden of proof and the consequences of that burden are properly explained to the jury to avoid misdirection.  Lennie v HM Adv: Court insisted that it was for an accused to prove an alibi where they asserted that they had one.  Soon came to be acknowledged, however, that this made no sense. It makes more sense for the prosecution to prove aspects of the case against the accused. However there are exceptions to this general rule: 1. Special defences. It depends upon which defence is used.  An accused person who seeks to establish either of the special defences of insanity or diminished responsibility bears the evidential and persuasive burdens of doing so. (HMA v Mitchell 1951 and Carraher v HMA 1946)

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Statutory provisions: Insanity and diminished responsibility: 1995 Act: S 51A(4): Criminal responsibility of persons with mental disorder.  The special defence may be stated only by the person charged with the offence and it is for that person to establish it on the balance of probabilities. S 51B(4): Diminished responsibility  It is for the person charged with murder to establish, on the balance of probabilities, that the condition set out in subsection (1) is satisfied.

Where one of the other special defences is pled (self defence, alibi) the evidential burden is on the accused but the persuasive burden remains with the crown (Lambie v HMA 1973). This means that the accused has to initially adduce some evidence of the special defence and the crown then requires to establish that the defence does not apply.  The fact that the persuasive burden remains with the Crown will mean that the accused will be given the benefit of the doubt. 2. Statutory exceptions: These consist mainly of offences to which there is a statutory defence of reasonable excuse or justification. In such cases, the onus often shifts to the accused ( Criminal Procedure (Scotland) Act 1995, Sch 3, para 16)

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For example: the Road Traffic Act 1988 - defence of no likelihood of driving. Sheldrake v DPP [2005] 1 AC 264; Provision of Road Traffic Act said if caught in car over the limit, have a defence if you can show there’s no possibility of you driving that car – persuasive burden on accused

3. Facts in knowledge of the accused. In some cases where there are facts in knowledge of the accused the court will require a prima facie case from the crown and then the persuasive burden of proof will shift to the accused. In such cases a presumption of guilt arises which the accused must successfully counter. Example: the main example of this is the doctrine of recent possession of stolen goods. Leading case is Fox v Patterson. In this case involving a charge of theft of some metal alloy, Lord JG Cooper set out the conditions that apply in such cases: "If the rule is to shift the onus from the prosecution to the accused and the presumption of guilt arises which the accused fails, three conditions must concur: (a) that the stolen goods should be found in possession of the accused. (b) that the interval between the theft of the goods and their discovery in the accused's possession should be short and (c) that there should be other criminative circumstances." This was applied in the high court case of Cassidy v McLeod: In this case the accused were convicted of theft by housebreaking of bottles and cans of beer and cider and some crates. The day after the break in they were found in possession of odd quantities of alcohol, brands which matched the brands of the stolen goods. There was also a trail from the scene of the crime heading in the general direction of where the goods were found. All three conditions were met here. Other criminative evidence is the trial and the brands matching up.

'Reverse' burdens and the ECHR: The reversal of the burden of proof in a statutory provision can, in some cases, lead to the legislation being in conflict with the provisions of the ECHR.  Art 6(2) presumption of innocence.  Sometimes the view is taken that imposing a legal burden on the accused is contrary to the presumption of innocence  The basic test appears to be to ask whether the departure from the presumption of innocence is justified when balancing the interests of the public with the fundamental rights of the individual.  If court thinks that statutory provision imposing a persuasive (legal) burden is against presumption of innocence, it may seek to reinterpret that provision in order to only confer an evidential burden.

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R v Lambert [2002] 2 AC 545: One of provisions of Misuse of Drugs Act is that accused has a defence if they can show they were not aware that they were carrying drugs. That provision had always been interpreted as obliging the accused to prove the defence (persuasive burden) but in this case because of impact of ECHR, UKSC said that provision now had to be read down so that it only imposed an evidential burden. All they need to do is point to evidence that might show that they were unaware of the drugs and then it is up to the crown to disprove beyond reasonable doubt Glancy (Kevin) v HM Advocate 2012 SCCR 52: G caught with knife in public place and court felt that it was with scheme of the statute to continue to insist that G had to prove he had reasonable authority to have that knife – persuasive burden s48 Criminal Law Consolidation (Scotland) Act 1995 - reasonable excuse to be in possession of an offensive weapon in a public place.

STANDARD OF PROOF Only 2 standards of proof, (1) Beyond reasonable doubt (criminal cases) (2) On balance of probabilities (civil cases) Is there a third standard? See Lennon v Co-operative Insurance Society 1986 SLT 98 "There is in my judgment a higher onus on the defenders where an allegation of wilful rife-raising is made. I am not able to state in words the extent of that onus, but it is enough that I consider that it is higher than on a balance of probabilities, somewhere half-way between that and beyond reasonable doubt."

CRIMINAL CASES The standard of proof in criminal cases is proof "beyond reasonable doubt". The interaction of the burden and the standard of proof in criminal cases means that the crown must establish the guilt of the accused beyond reasonable doubt. What does beyond reasonable doubt mean? The Scottish courts are reluctant to disclose a detailed definition. Likely because it is a concept which has to be flexible in order to apply to all criminal prosecutions.

However, the following points are clear from the case law: (1) where the evidence raises a reasonable doubt in the mind of the juror or judge as to the guilt of the accused, the standard has not been attained. (2) A reasonable doubt arises if it is a doubt in the mind of the juror or judge to hesitate or pause in the conduct of his own affairs before taking a decision. This formulation has been approved in the Jury Manual 2012. It has been made clear that even the slightest deviation from this definition of "reasonable doubt" in a jury direction may well be fatal to a conviction. For example: MacDonald v HMA : it was held that the sheriff had misdirected the jury when he defined a reasonable doubt as one that would cause the jurors, in the conduct of their own affairs, to stop doing something. By referring to stopping doing something as opposed to hesitating or pausing before doing it, the sheriff had misdirected the jury on the standard of proof. The appeal was allowed and the conviction was quashed. Although in some cases, appeals are refused and some definitions do not amount to a complete deviation: it is clear that parties should avoid trying to define any legal concepts to the jury because if the definition of reasonable doubt is questionable and it is not corrected by the judge in charge to the jury, this could represent a miscarriage of justice (DA v HMA). Irving v Ministry of Pensions – if there is any doubt, have to acquit. But, the doubt must be of reasonable and not of strained or remote possibilities. .

PRESUMPTIONS IN CRIMINAL CASES: There are four main presumptions exclusively applicable in criminal cases: 

The presumption of innocence o For centuries it has been accepted that the accused in a criminal trial is presumed to be innocent. The accused is presumed to be innocent unless

the crown proves otherwise. This is linked to the placing of the burden of proof in all criminal cases on the crown. o This presumption has recently been enshrined in statute following the o

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enactment of the HRA 1998. Article 6(2) contains such a right. This presumption qualifies as an irrebuttable presumption of law.

The presumption of recent possession of stolen goods o See previous lecture for more notes on this. o

It is classed as a presumption because once the elements identified in Fox v Patterson have been established by the crown, it is presumed that

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the accused is guilty and he must provide an innocent explanation. This type of case is sometimes described as an example of the

reversal of the burden of proof. o This is an example of a rebuttable presumption of fact. 

The presumption of non-age as a bar to a criminal trial o Section 41 of the Criminal Procedure (Scotland) Act 1995 states "it shall be conclusively presumed that no child under the age of eight years can be guilty of any offence" o A child under eight is deemed not to be capable of possessing the mens rea necessary to commit an offence. This is an irrebuttable presumption of law.

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The presumption of lack of sexual consent by a female under 12 o A female who is under 12 years old is deemed incapable of giving o

consent to sexual intercourse. This is a common law presumption. The practical application of it is any sexual intercourse between a male

and female, where the latter is under the age of 12, is technically rape, whether or not the female in fact consented. o Alternative charges: Under s18 of the Sexual Offences (Scotland) Act 2009, penetration of any child under 13 is to be regarded as rape of a young adult. All other presumptions are primarily applicable in civil cases.

CIVIL CASES

The standard of proof in civil cases in Scotland is that the essential facts must be established on the balance of probabilities. What does the balance of probabilities mean? Lord Denning in Miller v Minister of Pensions: "If the evidence is such that the tribunal can say "we think it more probable than not" the burden is discharged - but if the probabilities are equal, it is not. o This could mean that various possible explanations are put for a particular occurrence and the court might reject them all as improbable, leaving the party bearing the burden of proof to lose the case. This happened in Rhesa Shipping Co SA v Edmunds This case is about a ship that sank. There were various possible explanations and thus the burden of proving this, on a balance of probabilities lay on the plaintiffs. All explanations were rejected for being improbable/almost impossible. Party with a persuasive burden, proof of balance of probabilities needed. 1986 act s5(4) – this is the standard required to overcome the presumption that a woman’s husband is the father of any children conceived during the marriage. statutory standards of proof: (i) proof of grounds of divorce: Divorce (Scotland) Act 1976, s 1(6); 4(1); (ii) declarator of death: Presumption of Death (Scotland) Act 1977, s 2(1); (iii) paternity: Law Reform (Parent and Child) (Scotland) Act 1986, s 5(4).

PRESUMPTIONS IN CIVIL CASES: Presumptions play a more prominent role in civil than in criminal cases. Irrebuttable of law: Such presumptions are irrebuttable since they cannot be challenged. If fact A is proved, conclusion B is inevitably reached by the courts. They are presumptions of law since they originate from statute or case law. Examples: 

Capacity in the law of contract

A person of or over 16 years old is deemed to have the legal capacity

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to enter into a contract o Age of Legal Capacity (Scotland) Act 1991 

Prescription of legal rights o This is a legal device which allows for the creation or extinction of legal rights by the simple passage of time. o Negative or positive prescription. Negative is where an obligation becomes unenforceable for example a contract action prescribes after 5 years. With positive prescription, a registered title to land followed by 10 years continuous possession will give a good, unchallengeable title. o Prescription and Limitation (Scotland) Act 1973

Rebuttable of law: these also arise from statutory provisions or case law but they are able to be challenged and disproved. Examples: 

Presumption against donation o Where A gives something to B, the courts will presume that A did not intend to gift/donate it. This is based on the assumption that people do not o o

normally just give something away from nothing in return. It only applies to moveable property Where there is no alternative explanation for why A gave something to B other than by gift: this absence in itself could provide sufficient rebuttal.

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Age of child bearing woman o The maximum age of a child bearing woman is presumed to be 53 years old - G's Trustees v G . However, this could be rebutted easily in any particular case due to the possibility of a woman who is older than 53 giving birth.

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Presumption of legitimacy o Section 5 of the Law Reform (Parent and Child) (Scotland) Act 1986 sets up two presumptions: 

A man is presumed to be the father of a child if he is married to the child's mother at any point during the pregnancy; and

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If this is not the case, he is still the presumed father if both he and the mother have acknowledged that he is and if he has been registered as such on the child's birth certificate. These presumptions can be rebutted by proof on the balance of

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probabilities. 

Presumption of continuance of life o Life is presumed to continue, unless evidenced to the contrary, until at least 18 years. Two statutory exceptions to this:

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Presumption of death o A "common calamity" under the Succession (Scotland) Act 1964 s31 

Common Calamity: where two people die in circumstances suggesting they died at the same time/ it is uncertain which survived the other. Under this section, they died in order of seniority. Eldest first. Unless two are husband and wife then they died at the same time. Where a person is presumed to be dead under the Presumption of

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Death (Scotland) Act 1977 

This act allows a person with an interest to apply to the court for a declarator of death in respect of a missing person. Person has to have not been known to be alive for 7 years.

Rebuttal of fact: this type of presumption allows a fact to be presumed once a certain threshold of evidence has been met. They are less certain than presumptions of law because their application varies from case to case. The presumptions can arise from case law. There are two main types of presumption: 

Possession of mo...