Professional Documents
Culture Documents
Faculty of Law
Evidence
The Burden and Standard of Proof
Burden of Proof
2015-16
Dr Arthur McInnis
Introduction
A Legal Burden is a burden of proof, i.e. to prove
a fact
If on the prosecution, the standard is beyond
reasonable doubt
If on the defence, the standard is on a balance of
probabilities
The issue for the House of Lords then became whether to uphold the
reading down?
Conclusion
The general rule is that the P bears the legal burden of proving
all the elements of an offence
If an offence contains exemptions, properly construe it to
ascertain whether the burden of proof remains on the P, or
whether a persuasive (legal) burden is imposed on the D
If the provision imposes a legal burden on the D, consider
whether it may violate the Basic Law and Bill of Rights, such
that it must be read down or declared unconstitutional
Bear in mind that a D must sometimes discharge an evidential
burden in order to raise certain defences
Conclusion
The modern approach on this question is to construe the
provision to see whether it may properly impose a legal
burden on an accused or whether it must/might be read
down
Relevant factors when reading down are policy, fairness,
necessity, reasonableness and proportionality
The trend is that provisions raising this question are
construed as imposing only an evidential burden on
defendants