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 plaintiffs case in chief will conclude. But whether the
plaintiff has discharged his legal burden of proof could only be
determined after the defendants 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 plaintiffs 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
defendants 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
claimants 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
claimants witnesses. As a matter of sensible tactics, however, the
defendant will normally do all that he can to rebut the claimants case,
where appropriate both cross-examining the claimants 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 claimants 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 plaintiffs 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 defendants 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 defendants
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 plaintiffs case is more probable than
an
explanation
advanced
by
the
defendants,
but
whether
the
plaintiffs 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 prisoners 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 prosecutions 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
prosecutions 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 prosecutions
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 accuseds 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 (McNaghtens 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 accuseds evidence
may cast the prosecutions 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 witnesss 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
accuseds 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 accuseds 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
doesnt 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 accuseds 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 Parliaments 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 accuseds 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