Burden of proof

Principle of criminal law is that the accused is initially presumed innocent, the prosecution must prove guilt beyond reasonable doubt.

The term burden of proof is used to refer to the standard of proof and other obligations when making out a case in the courts. The duty or obligations fall on the parties to the litigation. As a general rule the burden of proof rests with the party who contends that a certain position or set of facts are true. This may be the prosecution or claimant.


The standard of proof of the evidence depends upon the nature of the legal proceedings and distinction is normally made between criminal proceedings and civil cases. The burden of proof is different in criminal and civil matters.


In civil matters the burden of proof is 'on the balance of probabilities' in other words 'is it likely'. The burden of proof in civil cases is not so onerous as in criminal cases. This is because the consequences for the accused in criminal cases can be extremely serious such as a custodial sentence and loss of employment. An award, such as damages, in civil proceedings can be important and significant but the consequences are not nearly so serious and potentially life changing as those in criminal convictions.


In criminal proceedings the burden of proof is 'beyond all reasonable doubt'. In modern language this means that each member of the jury 'must be sure that the defendant is guilty'. The burden of proof is on the prosecution. This is because the starting point is that everyone is innocent until proven guilty. The burden of proof is not on the defendant to prove their innocence but rests with the prosecution to prove that the accused is guilty.


This presumption of innocence was propounded by the House of Lords in the famous case of DPP v Woolmington (1935). The case is all the more poignant as the death penalty applied at the time. The defendant claimed that he had taken a gun with him to the house of the victim’s mother to show his estranged wife that he planned to commit suicide if she failed to return to him. He alleged that the gun had gone off by accident, i.e. while he was showing it to her. Despite this claim the defendant was convicted of murder. At the trial, the Judge directed the jury and suggested that the defendant had to prove it was an accident. The defendant appealed. The House of Lords accepted the defendant’s claim that the trial judge had misdirected the jury and led to the establishment of two points. Firstly, that the burden of proof rests with the prosecution and secondly that the standard of proof is beyond all reasonable doubt.


At the time, Viscount Sankey delivered his 'golden thread' speech using the following words "Throughout the web of the 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..." “If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. 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 of England and no attempt to whittle it down can be entertained.”


The trial judge is trained and experienced in criminal cases and will take considerable care to remind the members of the jury about the burden of proof and that it rests with the prosecution. The jury of course are unlikely to have any training as to the law.


If the starting point in criminal proceedings is that everyone is innocent until proven guilty, it follows that the burden is on the prosecution to prove the necessary elements of the crime including the appropriate state of mind. This is sometimes referred to as the persuasive or legal burden which rests with the party that will lose the case if the matter in issue is not made out. The evidential burden or burden going forward amounts to the prosecution's obligation to adduce evidence which shows that there is sufficient evidence of the existence of a fact in issue to convince the trier of fact of all elements of his or her case. This entitles the matter to be put to the jury for consideration in criminal cases. If the trial judge is not satisfied that this burden has been met it is open to him to direct that there is no case to answer and to direct the jury to acquit.


There are a number of statutory exceptions to the normal rules on the burden of proof. In some statutes the legislation places the legal burden of proving specific issues on the accused. An example, is the Homicide Act 1957 which puts on the accused the burden of making out the statutory defence of diminished responsibility on a charge of murder. It is for the defence to prove that the person is not liable to be convicted of murder as a result of their diminished responsibility. The evidential burden is on the defence on the balance of probabilities.


Woolmington v DPP [1935] UKHL 1 (23 May 1935)

Call to review burden of proof in child sex abuse cases .

Law and Lawyers: Criminal cases: burden and standard of proof

Presumed guilty? Ministry of Justice is forced to withdraw advice leaflet - The Guardian









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