Burden Of Proof In Criminal And Common Law

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“He who asserts must prove”. This statement of law allows us to understand that in criminal cases the onus of proof rests with the prosecution and that the standard of proof is one that must be satisfied beyond a reasonable doubt [1] . However, there are exceptions to this in the form of both statutory exceptions and within case law [2] . The statement also allows us to see that in civil cases the onus of proof rests with the party who raises the issue and the standard of proof is lessened to on the balance of probabilities [3] . There are two types of burdens of proof: the first is the persuasive burden which is when a party satisfies the court to the appropriate standard [4] . It is possible for both parties to bear the persuasive burden depending on the case in hand [5] . The second is the evidential burden which is when a party has to bring enough evidence in order for the court to at least consider the issue in hand [6] . These burdens are matter of law and will apply in each issue which is raised within the court [7] . In criminal cases the basic rule is that the burden of proof rests with the prosecution in order to win their case [8] . In the case of Slater v HMA [9] it was stated that: The jury was told that what is familiarly known as the presumption of innocence in criminal cases applied to the appellant (in light of his ambiguous character) with less effect than it would have applied to a man whose character was not open to suspicion. This amounted, in our opinion, to a clear misdirection in law. The presumption of innocence applies to every person with a criminal offence in precisely the same way, and it can be overcome only by evidence relevant to prove the crime with the commission of which he is charged. The evidential burden is important when it comes to criminal matters due to the presumption of innocence. It used to be the case that it was thought that the accused was required to prove “special defences” however the case of Lambie v HMA [10] stated that this is not the case and stated that it is for the prosecution to disprove the defence beyond a reasonable doubt [11] . The only thing which the accused has to do is meet the minimal requirements of pointing at some evidence which allows the defence to be raised – the evidential burden [12] . The accused must also give notice when wishing to use a “special defence”. There are exceptions to the general rule that it is for the prosecution to bear the burden of proof in criminal cases. There are four exceptions in which the burden of proof will shift [13] . The first is when the accused pleads a special defence of either insanity or diminished responsibility (which is not technically a special defence as it does not result in the accused being acquitted) [14] .

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