Criminal Law. Mark Thomas
burden, is the obligation placed on a party to prove a fact in issue (see 1.7.2.1). In the majority of cases, the prosecution bears the burden of proving the legal burden, ie it has the burden of proving all of the facts necessary to establish the defendant’s guilt. This is so even if this involves proving negative elements; for example, in a case of rape, the prosecution bears the burden of proving that sexual activity took place (a positive element) and that the complainant did not consent (a negative element) (R v Horn (1912) 7 Cr App R 200). Whether the legal burden is discharged is a matter of fact for the arbiters of fact.
The legal burden can be compared with the evidential burden, which is merely an obligation on a party to adduce sufficient evidence to raise a fact in issue, ie to make an issue live. Such examples may be the need to raise sufficient evidence of the existence of a defence, such as self-defence. Whether the evidential burden is discharged is a matter of law for the judge. Where the evidential burden has been discharged, the judge can place the evidence before the arbiters of fact who can use it in determining whether the legal burden has been discharged.
As explained above, the golden rule (or ‘thread’ as it is also known) is that in all criminal proceedings, the prosecution bears the legal burden of proof. This is, however, subject to a number of exceptions which Doak, McGourlay and Thomas, Evidence: Law and Context, 5th edn (Routledge, 2018) argue have ‘tarnished’ the golden thread. These exceptions are more likely to concern the requirement to prove the existence of a defence, as opposed to disproving an element of an offence. The ways in which such exceptions come about are detailed briefly in Table 1.6.
Table 1.6Tarnishing the golden thread
| Exceptions to the golden rule | Explanation |
| Common law | The only common law rule which reverses the burden of proof involves the defence of insanity, where the defendant bears the burden of proving that the defence exists (M’Naghten’s Case (1843) 10 Cl & Fin 200). |
| Statute (express) | In many cases, legislation will stipulate quite clearly that there is a reverse burden and the defence must prove certain circumstances to be in existence in order to make use of an available defence. For example, s 2(2) of the Homicide Act 1957 provides that the defendant must prove the defence of diminished responsibility. |
| Statute (implied) | In other cases, the legislation will not prescribe that a reverse burden exists, but, as a result of s 101 of the Magistrates’ Courts Act 1980, where the defendant intends to rely on any ‘exception, exemption, proviso, excuse or qualification’ in the statute, it is his obligation to prove such exception. This rule only applies to cases tried in the magistrates’ court but the common law has extended the principle to cases tried in the Crown Court also (R v Edwards [1975] QB 27). |
These reverse burdens are controversial given the potential effect they may have on a defendant’s right to a fair trial. It is contended that such reverse burdens do not affect a defendant’s right to a fair trial as they affect only the requirement to prove the existence of a defence and not to disprove an element of the offence. The presumption of innocence remains intact by requiring the prosecution to prove that an offence took place; it is only fair that the defence bears a limited burden of proving the existence of a defence. In circumstances where the reverse burden appears to require the defendant to disprove an element of the offence, the courts have been quick to ‘read down’ the provision under s 3(1) of the HRA 1998, such that it merely imposes an evidential burden. This was evident in the case of R v Lambert [2001] UKHL 37 concerning a charge of possession of drugs.
In AG’s Reference (No 4 of 2002) [2005] 1 AC 264, the House of Lords held that in order for a reverse burden of proof to be legitimate, there must be compelling reasons justifying why it is fair and reasonable to deny the accused person the protected right under the ECHR. See Dennis, ‘Reverse Onuses and the Presumption of Innocence’ [2005] Crim LR 901 for a discussion of the lawfulness of such reverse burdens.
Standard of proof
In criminal cases, the standard of proof refers to the level or degree of proof that must be established. Two standards of proof exist, namely:
•the criminal standard: ‘beyond a reasonable doubt’; and
•the civil standard: ‘on the balance of probabilities’.
The criminal standard is expressed as a requirement to satisfy the burden of proof ‘beyond a reasonable doubt’. This standard is quite often expressed as ‘a’, ‘all’ or ‘any’ reasonable doubt and has been defined by Lord Denning in Miller v Minister of Pensions [1947] 2 All ER 372 as follows:
It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it admitted of fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt but nothing short of that will suffice.
This criminal standard applies in all criminal trials, whether before magistrates or on indictment before a jury, and if there is a reasonable doubt created by the evidence adduced either by the prosecution or by the defence, the prosecution has not made out its case and the burden is not satisfied. The criminal standard has also been expressed over the years in terms of ‘so that the jury are “sure”’ (R v Majid [2009] EWCA Crim 2563). In R v Folley [2013] EWCA Crim 396, the Court of Appeal expressed these two terms as synonymous with each other.
The civil standard is expressed as a requirement to satisfy the burden of proof ‘on the balance of probabilities’. Lord Denning offered a definition of this term, also in the Miller case, as: ‘If the evidence is such that the tribunal may say “we think it is more probable than not” the burden is discharged, but if the probabilities are equal it is not.’ In a similar vein, the Court of Appeal in R v Carr-Briant [1943] KB 607 reasoned that the burden of proof will be discharged where the arbiters of fact conclude that it is ‘more likely than not’ that the fact existed.
The correct ‘use’ of the standard of proof depends on the party who bears the particular burden of proof. This is detailed in Table 1.7.
Table 1.7The appropriate standard of proo f
| Where the burden is on the … | The standard is… |
| Prosecution | ‘Beyond a reasonable doubt’ |
| Defence | ‘On the balance of probabilities’ |
1.7.3 Sentencing
The law on sentencing in criminal cases is detailed and complex. Textbooks, both academic and practitioner, are available solely dealing with the topic of sentencing. This section is aimed at giving you a brief overview of sentencing powers, the rationale for sentencing and the procedure involved.
1.7.3.1 Purposes of sentencing
Sentencing is best described as the manner in which the court deals with an offender who has been convicted of an offence. As a starting point, the ‘purposes’ of sentencing can be identified by reference