Burden and Standard of Proof - Case Study Example

Topic: The Burden and Standard of Proof Preferred language style: English (U.K Answer: In order to answer this question it is necessary to discuss the burden of proof in civil and criminal cases, Standard of Proof of civil and criminal cases, and relevant case laws. The law recognizes two principle burden these are legal burden and evidential burden. The legal burden or burden of proof is the obligation placed on a party to prove a fact in issue. Whether a party discharged the legal burden is a question to be determined by the tribunal of fact at the end of the trial. The burden of proof in civil cases: In civil cases, at common law, the general rule is that the legal; burden of any fact in issue is borne by the party asserting and not denying: he who asserts must prove not he who denies (Joseph Constantine Steamship line Ltd v Imperial smelting Corporation Ltd1; Re H (Minors) (Sexual Abuse: Standard of proof)2. Accordingly, the claimant usually bears the legal burden (and by necessity an evidential burden) of proving all the elements of his claim. Similarly, the defendant bears the legal (and evidential) burden of proving any defence and/or counter claim against the claimant. The burden of proof in criminal cases: The basic rule was laid down by Viscount Sankey LC in Woolmington v DPP3, '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 prisoners guilt4'. It would be possible to justify the rule as part of a policy to avoid embarrassing criticisms of the administration of justice by minimising wrongful convictions. These are more likely to be avoided if the burden is fixed in this way then if an accused person has to prove his innocence. It is also possible to justify the rule by appeal to principle. For example, it would be a necessary feature of the law if it were accepted that, in Dworkin's words, people have a profound right not to be convicted of crimes of which they are innocent. Viscount Sankey said that the rule was subject to exceptions in the case of the defence of insanity and subject also to any statutory exception. But there have been Challenges to the idea that it is ever just to place a legal burden of proof on defendants. Standard of Proof of civil and criminal cases: In criminal cases the standard of proof to which the prosecution must prove its case has been variously described as 'beyond reasonable doubt' (Woolmington v DPP5). In Miller v Minister of pensions6, Denning J described the standard of proof in civil cases as follows: 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. There are, however, some exceptional cases where the criminal standard of proof is required: (a) Contempt of court (Re Bramble vale Ltd7; Dean v Dean8) (b) Where a person's livelihood is a stake (R v Milk Marketing Board, ex p Austin the Times, 21 March 1987). (c) Allegations of misconduct amounting to a criminal offence in disciplinary hearings (Re A Solicitor9, R (on the application of s) v Governing Body of YP School10). (d) Where statute requires the criminal standard of proof (Judd v Ministers of Pensions and National Insurance11). Presumption of innocence: Legal burdens on defendants may have to be considered in the light of the European Convention on Human Rights, which is now incorporated into English law Under the Human Rights Act 199812. The ECHR, Article 6(2) provides that every one with a criminal offence shall be presumed innocent until provided guilty according to law. The leading authority is Attorney-General's Reference (No 4 of 2002)13, from which the following principle may be distilled. a) The Defendant has a right to a fair trial, b) The Presumption of innocence is an important but not an absolute right and so derogations from the principle are permitted. c) The ECHR require a balance to be struck between the rights of the individual and wider interests of the community, d) There is an obligation on the state to justify any derogation from the Presumption of innocence. e) For a reverse burden of proof to be acceptable there must be a compelling reason why it is fair and reasonable to deny the accused person the protection normally guaranteed to everyone by the presumption of innocence. f) In determining whether the imposition of a reverse burden is justified, the courts should have regard to the seriousness of the punishment, which may flow from conviction. Legal burdens on defendants may have to be considered in the light of the European Convention on Human Rights, which is now incorporated into English law Under the Human Rights Act 1998. By Art 6(2), everyone charged with a criminal Offence shall be presumed innocent until proved guilty according to law. The effect of this provision was considered by Lord Hope in R v DPP ex p kebilene and Others 14. After noting that Art 6(2) is wholly consistent with the common law as stated by Viscount Sankey in Wilmington, he added that, as Viscount Sankey had recognised, it has always been open to parliament, by way of a statutory exception, to transfer the Burden of proof on a particular issue from the prosecution to the defendant. Until recently the only check on Parliament's freedom to do so was political. However, the Human Rights Act changes this, and it applies to all legislation, whether before or after The Act. If a statutory provision is incompatible with Art 6(2) it is necessary to see what it says. Some provisions encroach more on the presumption of innocence than others. Broadly speaking, there kinds are possible; (a) A mandatory presumption of guilt as to an essential element of the offence inconsistent with the presumption of innocence. (b) A discretionary presumption of guilt as to an essential element of the offence15. (c) Presumptions that relate to an exemption or proviso, which the defendant must establish if he wishes to avoid conviction, but which is not an essential element of the offence. Examples are the provisions that the courts had to consider in R v Edwards16 and R v Hunt17. However, Lord Hope emphasized that even if the court decides that a particular provision breaches the presumption of innocence, this will not lead inevitably to Incompatibility with Art 6(2). The decisions of the European Court of Human Rights show that other factors have to be considered. By what is known as the margin of appreciation, the European court has acknowledged that national authorities are better placed to evaluate local needs and conditions than an international court. For this Reason, the Convention does not have to be applied uniformly by all states. In some circumstances, The courts should recognise that there is an area of judgment within which they Should defer, on democratic grounds to the considered opinion of the elected body or Person whose act or decision is said to be incompatible with the Convention and this will be the case even where the convention states a right in Unqualified terms. The cases decided by the European Court show that although Art 6(2) is expressed in absolute terms, it is not regarded as imposing an absolute Prohibition on reverse burden provisions. 18 In order to consider whether a provision is Reasonable in balancing the interests of the individual and those of society, it may be Useful to consider these questions: What does the prosecution have to prove in order to transfer the burden to the defendant' What is the nature of the burden on the defendant' Or does it relate to something that is Likely to be within his knowledge, or to which he readily has access' What is the nature of the threat faced by society that the provision is designed to combat' The potential effect of the Human Rights Act 1998 on reverse burdens in criminal cases was first shown in R v Lambert19, a decision of the House of Lords Lambert had been arrested in possession of big containing cocaine. He was charged with possession of a controlled drug with intent to supply; contrary to s 5(3) of the misuse of drugs Act 1971. He relied on a defence provided by s 28 of that Act. On the traditional interpretation of the 1971 Act, where a Defendant was in possession of a package that in fact contained drugs, the burden was initially on the prosecution to prove that the defendant had, and knew that he had, a package in his control and that the package contained something. That was enough to prove possession. Once those matters were proved, there was a legal burden on the defendant to bring himself within the defence available under s 28(2). The HLs, where it was argued that to interpret s.28 in this way violated the presumption of innocence contained in Art 6(2) of the ECHR. The main question to be decided on the appeal was whether the Human Rights Act 1998, which gave statutory force to the Convention, operated retrospectively. The House of Lords held that it did not. Nevertheless, the Law Lords took the opportunity to discuss the effect of the act on s.28 while all that was said on this point was, therefore, strictly speaking obiter, it is Inconceivable that it would not be followed in future cases20. What was said is, therefore, worth examination. The majority, relying on s 3(1) of the Human Rights Act 1998, held that it was possible to read s 28(2) as imposing only an evidential burden, and that it should be read in this way because to read it as imposing a legal burden would be to violate the Presumption of innocence contained in Art 6(2) of the Convention. To appreciate the full significance of Lambert it is, of course necessary to study the speeches of the Law lords in one of the law reports, but it may be helpful when doing so to bear in mind the following Summary of points that were made; The 1998 Act was accepted as being potentially radical in its effect. As Lord Styen said, it is clear that it must be given its full import and that long or well-entrenched ideas may have to be put aside, sacred cows culled. The imposition of a legal burden on a defendant will not inevitably be Incompatible with art 6(2) it is vital to remember this. Lambert is emphatically not authority for the proposition that in future wherever a statute appears to have imposed a reverse burden, it should always be read as imposing only an evidential Burden. According to Lord Steyn, the burden is On the State to show that the legislative means adopted were not greater than necessary, and there must be pressing necessity to impose a legal burden on the Accused21. A reverse burden may be acceptable where a statute prohibits the doing of an act except in specified circumstances, or by specified persons or with some licence or Permission. This is particularly likely to be the case where the statute has been enacted to regulate a particular activity in the public interest, for example, to Promote health and safety or to avoid pollution. Such offences are to be distinguished from those, which are truly criminal and involve moral fault. The problem presented by an apparent reverse burden was considered by the Court of Appeal in R v Carass22. The defendant was charged with concealing the debts of a company in anticipation of a winding -up contrary to s 206(1)(a) of the insolvency Act 1986.by s 206(4) of that Act it was a defence for a person so charged, to prove that he had no intent to defraud. Now the question arises whether this provision impose a legal burden on the defendant. The Court of Appeal, relying on R v DPP ex p kebilene and Others 23 and on R v Lambert24. In delivering the judgment of the court, Waller L J followed Lord Steyn in R v Lambert and said that although it may be possible to justify imposing a legal burden on a defendant, the onus on those seeking to persuade the court that it is necessary in any case is a high one. If a legal burden is to be imposed, it must be demonstrated why that burden, rather than an evidential burden, is necessary. The same type of problem arose for the Divisional Court in Sheldrake v DPP. Clarke LJ following Lord Steyn in R v Lambert said that there should be a pressing necessity, to impose a legal burden on the accused before such a response could be proportionate. He also adopted the view of Waller LJ in R v Carass25 that the onus of persuading a court of the necessity for a reverse burden was a high one. In Sheldrake v DPP, the defendant was charged with being in charge of a motor vehicle after consuming so much alcohol that the proportion of alcohol in his breathe exceeded the limit prescribed by the road traffic Act 1988. Under s 5(2) of the Act it was a defence for him to prove that at the time he was alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath remained likely to exceed that limit. In a Divisional court of three judges, the majority held that this provision did prima facie; interfere with the presumption of innocence contained in art 6(2). A case producing a different interpretation was L v DPP. The defendant was charged with having a lock-knife in his possession in a public place, contrary to s 139 of the Criminal justice act 1988. Section 139(4) provides that it shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article with him in a public place. The district judge held that this sub -section imposed a legal burden of proof on the defendant, but that this did not infringe Act 6(2) of the Convention.26 On appeal the Divisional court accepted the principles laid down in Lambert, but the court regarded s 139 of the 1988 Act as readily distinguishable from s 28 of the 1971 Act in six respects. In Sheldrake v DPP Clarke LJ commented that it was not easy to see where in L v DPP the court had considered the crucial question, which is not whether a reverse onus can be justified but whether, that being the case, it is necessary to provide for a legal and not simply an evidential burden. Nevertheless, in R v Matthews the Court of Appeal reached the same conclusion on the interpretation of s.139. At last it can be said that the truth of a proposition can be held with varying degree of confidence is not always true. 27 Rather it depends on circumstance legal issues are therefore needed to establish not only the allocation of the probative burden, but also the requisite standard of proof. Bibliography: Allen, C. Practical Guide to Evidence. (London: Cavendish Publishing, 2004) third edition [ISBN: 978-1-859-41899-4] Roberts, P. and Zuckerman: Criminal Evidence. (Oxford: Oxford University Press, 2004 P. 332) [ISBN: 0198764979] Keane, A., The Modern Law of Evidence. (Oxford: Oxford University Press, 2005), 6th edition, [ISBN: 0406975795]. Munday, R. Evidence. (Oxford: Oxford University Press, (2005) third edition [ISBN: 0199285101]. Murphy, P. Murphy on Evidence. (Oxford: Oxford University Press, 2005) ninth edition [ISBN: 0199281130]. Read More