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. The burden of proof is the obligation which rests on a party in relation to a particular issue of fact in a civil or criminal case, and which must be discharged, or satisfied, if that party is to win on the issue in question.
A. Civil Proceedings:
2. The party who raises an issue bears the legal burden of proof:
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). For example, if the claimant asserts that he and the defendant formed a contract and that he suffered loss in consequence of the defendant’s 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 in consequence of that breach.
3. Defendant’s bear the burden of proof:
If the defendant merely denies the claimant’s assertions, this does not impose a burden of proof upon the defendant. Where the defendant puts forward a defence which goes beyond a mere denial of the claimant’s case and actually raises new issues which the claimant did not raise, then the defendant does bear the burden of proving the relevant facts in issue.
4. Legal burden bears under the statute:
Statute may order which party bears the legal burden: Under s 98 of the Employment Rights Act 1996, where an employee claims unfair dismissal he has the legal burden of proving only that he was dismissed; the legal burden lies with the employer to prove that the dismissal was fair. Under s 171 (7) of the Consumer Credit Act 1974, where a debtor claims that a credit bargain is high the legal burden lies with the creditor to prove the contrary.
5. General guidelines:
There are two general guidelines to resolve doubtful cases in the absence of precedent or statutory provision. The first is that the burden should lie on the party who affirms a proposition rather than on the party who denies it. The second is that the burden of proof in any particular case depends on the circumstances under which the claim arises.
6. The affirmation or denial test:
However, the courts have avoided a mechanical approach to the affirmation or denial test. In Soward v. Leggatt, Where it was not apparent from the papers which of the parties was making the positive assertion. But the court decided that, despite the form of the pleadings, the burden of proof was on the C to prove breach by the defendant of the covenants in the lease.
7. Depends on the circumstances:
However the courts often decide about where the burden of proof lies will depend on the circumstances of the particular claim. In The Glendarroch, where the shippers denied liability on the ground that the ship had become stuck and the cement damaged by reason of perils of the sea. The trial judge ruled that in order to excuse themselves they had to show not just a peril of the sea, but that the peril had not been occasioned by their negligent navigation. The shippers thereupon called no evidence and the Cs were awarded judgment. In the Court of Appeal, Lord Esher MR said that the judge had been wrong. The onus had been on the Cs to prove negligence; it had not been for the shippers to prove absence of negligence on their part.
8. The Glendarroch was not used blindly:
However, later cases showed that The Glendarroch was not to be used blindly as a precedent in different contractual circumstances. In Hurst v. Evans, where the judge said that looking at the policy it is impossible to hold that the onus is on the defendant. To do so would produce absurd results. To avoid such a situation, the burden was on the C to prove that the loss was one against which the insurers had agreed to indemnify him. In other words, he had the burden of proving that the loss had not been occasioned by the dishonestly of his servant Mason. Although Lush J did not explicitly say so, his decision was clearly influenced by the consideration that it would be easier for the C to prove that his servant had not been involved than for the insurers to prove that he had.
9. Reliance was placed on The Glendarroch:
Another case in which reliance was placed on The Glendarroch was Constantine SS Line Ltd v. Imperial Smelting Corp Ltd. The House of Lords was required to consider If the burden of proving absence of fault fell on the defendant, then it would be difficult or impossible for defendants to maintain the defence in such circumstances. Conversely, if the burden of proving fault in order to negate the defence of frustration fell on the C, then, in such circumstances, the defence of frustration would, potentially, be available to defendants. The House of Lords, for a variety of reasons, held that the burden of proving fault lay on the C.
10. The courts approach to problems:
These cases show that the courts’ approach to problems about the burden of proof in civil actions is likely to be determined on the basis referred to by Viscount Maugham in the Constantine case: it depends on ‘the circumstances under which the claim arises’. The only hard and fast conclusion that can be made is that ‘where the burden of proof should rest is merely a question of policy and fairness based on experience in the different situations’. In looking at those situations it is likely that a court will be chiefly concerned with the question of which of the parties will find it easier to discharge a burden of proof, even if sometimes that may involve proving a negative.
11. To prove a negative:
That ‘he who asserts must prove’ may involve having, in effect, to prove a negative can be seen from the decision of the House of Lords in Pickford v. Imperial Chemical Industries Plc. Where the trial judge said that he was neither satisfied that the Ds’ explanation was correct nor the C’s explanation that the disease was organic in origin. He therefore found for the Ds. However, a majority of the H/Ls held that the trial judge’s approach had been right. The basis of the C’s claim was that her disease was organic in origin, and so foreseeable. The Court of Appeal had effectively reversed the burden of proof. It had been open to the Ds to adduce evidence to rebut the C’s claim about the cause of her disease, but they did not have to prove any particular psychogenic explanation. Failure to prove the explanation that they did put forward still left open the question of whether the C had proved that her disease was organic in origin. The burden of proving this remained with the C and, since she had failed to discharge it, the trial judge’s decision in favour of the defendants had been correct.
B. Criminal proceedings:
The general rule was laid down by Sankey LC in Woolmington v. DPP: that it is the duty of the prosecution to prove the prisoners guilt. But is it supported by any principle? 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 than if an accused person has to prove his innocence. It is also possible to justify the rule by appeal to principle.
2. Subject to exceptions:
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.
3. Evidential burdens on the defence:
The best starting point is that put forward by Paul Roberts: placing the burden of proof on a defendant in relation to any issue, means he must be convicted even though the magistrates or jury are left undecided about facts that are relevant to that issue. The Criminal Law Revision Committee was strongly of the opinion that burdens on the defence should be evidential only.
4. Statute applies legal burden on the Prosecution:
Statute has already adopted this principle to a limited extent. Under the pre-Theft Act 1968 law, a person charged with the statutory offence of possession of housebreaking implements had the legal burden of proving lawful excuse. But s 25 (3) of the Theft Act 1968 provides that the legal burden of proving the offence remains with the prosecution. Consistency suggests that existing statutory provisions placing a legal burden on defendants should be amended so as to place on them an evidential burden only. Such a change would also be in general accordance with the common law, which, with the sole exception of insanity, has not found it necessary to impose any legal burden on the defence.
5. No case to answer situation:
The Criminal Law Revision Committee thought that the real purpose of casting burdens on the defence in criminal cases was to prevent the defendant from submitting that he had no case to answer in a situation where, his conduct called for explanation, but where the prosecution had not adduced evidence to negative the possibility of an innocent explanation. This applied especially to cases where the defence related to a matter peculiarly within the knowledge of the defendant. The Committee thought it entirely justifiable to impose a burden on the defence for this purpose, but said that the purpose was sufficiently served by making the burden an evidential one. Further, a change would remove the existing need for the judge to give a complicated direction to the jury on the different standards of proof.
6. Easier for the prosecution to discharge the legal burden of proof:
Another reason for placing only an evidential burden on the defence is that it is easier for the prosecution to discharge the legal burden of proof. The prosecution dictates the nature of the proceedings, and it has far greater resources than the defendant to further them and bring them to a successful conclusion. The prosecution employs professional investigators to detect crime and gather evidence; it has scientific resources unavailable to most defendants and the manpower to conduct detailed and lengthy inquiries. It has legal advisers to shape the charges to fit the evidence. Innocent people are not generally concerned to prove their innocence until called upon to do so, and by then it may be too late to collect the necessary evidence. The defendant’s access to physical evidence may be restricted, as where the prosecution has destroyed all available samples during testing or has failed to collect samples at all. To know that your state of mind was an innocent one is not the same as being able to prove that that was the case.
7. Legal burdens on defendants in the light of the ECHR:
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. After noting that Art 6(2) is wholly consistent with the common law as stated by Viscount Sankey in Woolmington, he added that 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.
8. Margin of appreciation:
However, Lord Hope emphasised 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 ECHR 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. Instead, its application may vary according to local needs and conditions. National courts should see the Convention as an expression of fundamental principles rather than as a set of mere rules. Application of these principles will involve balancing competing interests: those of the individual and those of society.
9. The effect of HRA 1998 on R v. Lambert:
The potential effect of the Human Rights Act 1998 on reverse burdens in criminal cases was first shown in R v. Lambert. In R. v. Lambert, the House of Lords, applying section 3(1) of the Human Rights Act 1998, held that the burden imposed upon the accused by the defence created by section 28(2) of the Misuse of Drugs Act 1971, concerning the accused’s 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.
10. Followed R v. Lambert:
The problem presented by an apparent reverse burden was considered by the Court of Appeal in R v. Carass. By s 206 (4) of the Insolvency Act 1986 it was a defence for a person so charged to prove that he had no intent to defraud. The Court of Appeal, relying on Ex p Kebilence and on R v. Lambert, held that this provision did not impose a legal burden on the defendant, and that only an evidential burden was imposed. If a legal burden is to be imposed, it must be demonstrated why that burden, rather than an evidential burden, is necessary.
11. Lambert was not followed in L v. DPP:
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) the Criminal Justice Act 1988 provides a defence for the charge. The district judge held that this sub-section imposed a legal burden of proof on the defendant, but that this did not infringe Art 6(2) of the Convention. 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 s28 of the 1971 Act.
12. Comment on L v. DPP:
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.
13. Lower courts follow R v. Johnstone:
In R v. Johnstone the House of Lords again considered, the general problem presented by reverse burdens. Lord Nicholls said that the primary decision on where the burden should lie is for Parliament, and that the courts should take a different view only when it is obvious that Parliament has attached insufficient importance to the presumption of innocence. The House of Lords recognised that its approach in Johnstone different in emphasis from that in Lambert, and suggested that until the position was clarified by a further decision of the House, lower courts should follow the Johnstone approach if they were in doubt as to what should be the outcome of a challenge to a reverse burden.
14. Implied overridden the Woolmington principle:
Subject to the Convention, there is at least no problem in seeing where the burdens lie if a statute provides, for example, that an accused person shall be guilty of an offence unless the contrary is proved. However, the question of whether Parliament in any given case has impliedly overridden the Woolmington principle is more difficult to resolve.
15. S 101 of the Magistrates’ Courts Act 1980:
A convention starting point for discussion of this topic is s 101 of the Magistrates’ Courts Act 1980. it provides that where the defendant relies for his defence on any exception, exemption, proviso, excuse or qualification, whether or not it is part of the description of the offence, the burden of proving such a defence shall be on him. In R v. Edwards, the Court of Appeal held that this principle was not limited to cases heard in magistrates’ courts; the provision was a statutory statement of a common law rule applicable in all criminal courts.
16. The importance of s101:
The importance of s101 is that it places a legal burden on the defendant where he relies upon a defence provided by statute to a limited class of people, for example, licence holders. The scope of the exception was widened by R v. Edwards, where it was held that s 101 of the Magistrates’ Court Act is merely declaratory of the English law and applies both to summary trials and trials on indictment.
17. Guidelines of s 101:
The House of Lords in R v. Hunt offered guidelines to courts charged with construing statutes in accordance with s101: It should not easily be inferred that Parliament intended to impose a legal burden on the accused; Courts should have regard to the intention of Parliament and the mischief at which the section is aimed; Courts should have regard to the ease or difficulty a party would have in discharging the legal burden; The more serious the offence, the less likely that Parliament would have intended to impose a legal burden on the accused; Where the statute is ambiguous, the accused should be given the benefit of the doubt.
18. The task of interpretation:
The task of interpretation is a difficult one. There are at least four reasons for this. First, the question whether a given statutory provision falls within the class of any exception, exemption, proviso, excuse or qualification is inherently problematic, as Nimmo v. Alexander Cowan and Sons Ltd shows.
The second difficulty of interpretation arises from the fact that s 101 has been only arbitrarily applied. In cases involving offences on highways, for example, two very similar statutory provisions have been differently construed. Gatland v. Metropolitan Police Comm was concerned with s 140 of the Highways Act 1959, which made it an offence if a person, without lawful authority or excuse, deposits any thing whatever on a highway. The Divisional Court held that the effect of a s 101 of the Magistrates’ Courts Act was that it was for the accused to prove that he had lawful authority or excuse. Nagy v. Weston was concerned with s 121(1) of the Highways Act 1959. This made it an offence if a person without lawful authority or excuse, in any way wilfully obstructs’ a highway. In this case, the Divisional Court held, without reference to the Magistrates’ Courts Act, that it was for the prosecution to prove the absence of lawful authority or reasonable excuse.
A third reason for difficulty in interpretation is that the project of distinguishing between rules and exceptions for s 101 purposes may be logically faulty. Glanville Williams has argued that the courts have allowed themselves to become attentive by words. There is no intrinsic difference between the elements of an offence and an exception, or defence, to that offence. All the exceptions or defences can be stated in negative form as part of the definition of an offence instead of as something outside the offence. A rule that is subject to an exception is only partly true if stated without the exception. The exception is, rationally regarded, part of the rule. There are no characteristic features of exceptions-they are just linguistic constructs.
Finally, the reliance on policy that was authorised by the Law Lords in Nimmo and R v. Hunt makes for uncertainty in interpretation. There are pointers: for example, the ease or difficulty that the respective parties would encounter in discharging the burden may be significant. But this is a question of fact on which there may be different opinions in different cases. In R. v. Hunt itself the Court of Appeal, unlike the House of Lords, thought that the burden should be on the defendant to prove that a preparation of morphine in his possession was in a form permitted by the statute.
19. Easier for a defendant to discharge the burden:
Their reason was that sometimes it would be easier for a defendant to discharge that burden than for the prosecution to prove that the preparation was in a form not permitted by the statute, for example, where there was evidence that the defendant had possessed the substance but where he had refused to surrender it for examination.
The evidential burden in civil cases:
- The Claimant, who makes a positive assertion and bears the legal burden at the start of the trial, also has the evidential burden.
- At the close of the Claimant’s case the evidential burden passes to the defendant.
- At the end of the trial the court must decide whether the legal burden has been discharged.
The standard of proof:
- There are two standards of proof, the criminal standard and the civil standard.
- The standard of proof necessary to discharge the burden of proof relates to the legal, not the evidential burden.
- The party who bears the legal burden on a particular issue will lose on that issue if the tribunal of fact considers the required standard of proof has not been reached.
The civil standard of proof:
Lord Denning, in Miller v. Minister of Pensions, said of the civil standard: ‘If the tribunal of fact thinks it more probable than not, the burden is discharged’. A 51% probability is sufficient to discharge the civil burden of proof. There are recognised exceptions to the general rule in civil cases where either the criminal standard or a standard higher than the normal civil standard of proof will be applied:
- The standard of proof in committal proceedings for civil contempt of court is beyond reasonable doubt (Dean v. Dean).
- By virtue of a statutory requirement: for example under the Royal Warrant Act 1949, where an application is made for a war pension, the Minister must be satisfied beyond reasonable doubt that the C’s application is not supported by the evidence (Judd v. Minister of Pensions and National Insurance.
- Where a serious allegation of crime is made in the context of civil proceedings, it has been suggested that a higher standard of proof is appropriate (Thurtell v. Beaumont). Hornal v. Neuberger Products Ltd is today regarded as more authoritative. That case suggests that the civil standard will always be the appropriate one, however serious the allegation.
- It has been held that evidence capable of rebutting the presumption of the validity of a marriage must be strong, distinct and satisfactory (Piers v. Piers) or even evidence which satisfies beyond reasonable doubt (Mahadervan v.Mahadervan).
The criminal standard of proof:
- where the legal burden lies with the prosecution, the criminal standard of proof, beyond reasonable doubt, applies.
- where, exceptionally, the defendant bears a legal burden by raising a defence such as diminished responsibility or insanity, he need only discharge that legal burden to the civil standard, proof on a balance of probabilities (R v. Carr-Briant).
- Lord Denning, in Miller v. Minister of Pensions, explained both standards of proof. Of the criminal standard he said: ‘If the evidence is so strong against a man as to leave only a remote possibility in his favour……the case is proved beyond reasonable doubt’.
- Judges must be careful in directing juries as to the meaning of the term proof beyond reasonable doubt. The prudent judge will adopt the wording in R v. Summers that the jurors must be satisfied so that they feel sure where they feel an explanation of the term is necessary.
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’. Do our politicians, or even our judges, recognise a basis of principle rather than policy for this rule? The story of the exceptions to it does not provide an encouraging answer.
They pointed out that in the typical case under the existing law, where the essence of the offence is that the offender has acted with blameworthy intent and the defence that the defendant must prove is that he acted innocently, it was disgusting to principle that a court, left in doubt as to the defendant’s intent, should be bound to convict.
Although a just result appears to have been reached on the facts in R. v. Hunt, the decision has been criticised for the effect that it may have had on the Woolmington principle. One problem is its assumption that an implied allocation of an issue to the defendant involves a legal, rather than an evidential, burden. But the main thrust of the criticism is that it failed to establish a clearly defined rule of limited application to allow for implied statutory exceptions to Woolmington. Instead, it established a broad rule that allows an uncertain range of policy criteria to be adopted by the courts in their interpretation of legislation. The effect has been to authorise judicial policy making under the appearance of statutory interpretation. This significantly undermines Woolmington, because it makes it possible for judges to adopt utilitarian policies that ignore, or at any rate give less weight to, the principles that justify placing the burden of proof on the prosecution.
The strength of this criticism has been weakened by the way in which the European Convention has been interpreted. The European Court of Human Rights, the House of Lords and the Court of Appeal have accepted that where a reverse burden question arises, judges may have to take into account such considerations as the threat faced by society that the legislation was designed to correct, and the right balance to be struck between the interests of the individual and those of society. The suggestion that judges ought not to concern themselves with public policy sounds increasingly like an argument from another world, but there is at least one argument that can be used to enforce the principle contained in Art 6(2). The effect of s 35 of the Criminal Justice and Public Order Act 1994 has been to put defendants under greater pressure to offer an explanation where prima facie evidence of an offence has been adduced. The former disadvantage of the prosecution where the defendant had special knowledge may now have been substantially reduced, if not removed altogether. If a reverse burden is thereby made unnecessary, it is difficult to see how it could be supported if a breach of Art 6(2) is alleged.