Chapter 4 Multiple Choice Questions

. Which description best defines the legal burden of proof in general terms?

The burden of adducing sufficient evidence to satisfy the tribunal of law, as a matter of law, and to the required standard of proof, of the truth or sufficient probability of every essential fact in issue. This is determined at the end of the case.

The burden of persuading the tribunal of fact, to the required standard of proof and on the whole of the evidence, of the truth or sufficient probability of every essential fact in issue. This is determined after all parties have presented their cases.

The burden of persuading the tribunal of fact, to the required standard of proof and on the whole of the evidence, of the truth or sufficient probability of every essential fact in issue. This is always determined at the half-way point in a case.

The burden of adducing sufficient evidence to satisfy the tribunal of fact, as a matter of law, and to the required standard of proof, of the truth or sufficient probability of every essential fact in issue. This is determined at the end of the case.

. The discharge of the evidential burden by the claimant (in a civil case) or the prosecution (in a criminal case) means, which of the following?

That the claimant or the prosecution has adduced enough evidence for the tribunal of fact to find that, prima facie,there is a case to answer at the end of the trial. The tribunal of fact will then, accordingly, be able to come to a proper verdict or judgment on all the facts.

That the claimant or the prosecution has prima facie proved its case, on the whole of the evidence to the relevant standard of proof.

That the claimant or the prosecution has adduced sufficient evidence for the tribunal of fact to find the case prima facieproved at the end of the trial, when all the evidence has been before the court.

That the claimant or the prosecution has adduced enough evidence of evidential facts to establish a prima facie case as to the facts in issue, and thereby defeat a submission of no case to answer.

. An accused testifies that he acted under duress. Does he bear a legal or an evidential burden and how will the relevant burden be discharged?

He has a legal burden of proof, which he must discharge 'on the balance of probabilities'.

He has the evidential burden, and must adduce enough evidence to establish the defence 'on the balance of probabilities'.

He has a legal burden of proof, which he must discharge 'beyond reasonable doubt' or so that the jury is sure.

He has the evidential burden and must adduce enough evidence to establish a prima facie case for the defence.

. Under the Firearms Act 1982, s. 1(5) an accused has a defence to the offence of possessing an imitation firearm that is readily convertible into an illegal firearm. To avail himself of the defence he must 'show that did not know and had no reason to suspect' that the item was constructed or adapted to be readily convertible. Does the accused bear a legal burden or an evidential burden for this defence?

There are 'compelling reasons' for concluding that s. 1(5) imposes a legal burden on the accused and that this is 'necessary' and a 'proportionate derogation' from the presumption of innocence.

The defence is part of the gravamen of the offence of possessing an imitation firearm and, accordingly, followingLambert[2002] 2 AC 545, the legal burden must be 'read down' to an evidential burden.

FollowingLambert, as a matter of strict law, 'reverse burdens' must never be placed on defendants, as it is contrary to the presumption of innocence. Therefore, the statute here can only impose an evidential burden on the accused.

The defence relates to matters that are 'peculiarly within the accused's knowledge' and so, consequently, the accused must only bear an evidential burden in these circumstances. This alone will be justified as a 'reasonable and proportionate derogation' from the presumption of innocence.

. Some recent statutes have included a provision which states that an accused will be taken to have a defence if '(a) sufficient evidence of the facts is adduced to raise an issue with respect to them, and (b) the contrary is not proved beyond reasonable doubt'. Does that provision indicate that the Act imposes a legal or an evidential burden on the defendant?

It indicates that there is only an evidential burden.

Neither. It simply describes the standard of proof.

It indicates that there is a persuasive burden.

It indicates that there is a legal burden of proof.

. Why did the House of Lords in Lambert [2002] 2 AC 545 'read down' the legal burden imposed by s. 28 of the Misuse of Drugs Act 1971 to an evidential burden?

Because imposing a legal burden on the accused can never be properly justified, as it will always be contrary to the presumption of innocence as provided for by the common law the European Convention on Human Rights.

Because Parliament fell into error in imposing a legal burden on the accused. The difference between a legal and an evidential burden was not fully understood and the House of Lords was required to remedy this error.

Because legislative interference with the presumption of innocence could not be justified. Applying the 'principle of proportionality', there was not a pressing necessity for a legal burden, rather than an evidential burden, to be imposed on the accused.

Because legislative interference with the presumption of innocence could not be justified on the balance of probabilities. Therefore, imposing a legal burden on the accused, rather than an evidential burden, was not 'within the reasonable limits' that the European Court of Human Rights have referred to on numerous occasions.

. What is the meaning of a 'reverse legal burden of proof'?

A reverse legal burden means that the accused is required to provide sufficient evidence of a defence in order to persuade a judge that the defence can be left to the jury. Failure to persuade the judge is a setback for the accused and, therefore, this burden has come to be known as the 'reverse' legal burden that must be overcome if the defence is to progress.

A reverse legal burden means that the accused is required to provide enough evidence of a defence in order to persuade a judge 'on the balance of probabilities' that the defence can be left to the jury. Failure to persuade the judge is a setback for the accused and, therefore, this burden has come to be known as the 'reverse' legal burden that must be overcome if the defence is to progress.

A reverse legal burden means that the prosecution rather than the defence has a legal burden to prove a particular fact in issue. The usual rule is that the defendant has the legal burden to prove his/her innocence and disprove anything that the prosecution states to the contrary. Accordingly, we may say that the usual rule is reversed.

A reverse legal burden means that the defence rather than the prosecution has a legal burden to prove a particular fact in issue. The usual rule is that the prosecution must prove its case and disprove any defences raised, and the accused does not have a legal burden. Accordingly, we may say that the usual rule is reversed.

. The legal burden of proof as to any fact in issue in civil cases is on the party who affirmatively asserts that fact in issue, and to whose claim or defence, proof of the fact in issue is essential. The standard of proof is 'on the balance of probabilities', which in civil cases means…

That the claimant's case is more probably true than not true. This is measured by reference to an objective standard of probability.

That the claimant's case is more probably true than the defendant's case, even if both seem unlikely or less than probable. This is measured 'subjectively'. The courts are not interested in objectivity, they simply wish to establish which case is the most probable.

That the court can be 'sure' that the claimant's case is correct. Nothing more, nothing less than this will suffice.

That 'once the court has eliminated the impossible, whatever remains, has to be judged as to whether it is the most probable, even if it is improbable'.

. Is the following an adequate direction to the jury on the standard of proof? '…if you think the defendant's account is correct or may be correct, ladies and gentlemen, then you will find him not guilty. So the resolution to this case is which account in fact you consider to be the correct account. If you think that the girl's account is essentially correct, you will find the defendant guilty. If you think that this defendant's account is or may be correct, then it is not guilty'.

This is not an adequate direction. The jury must be certain of the defendant's guilt in order to convict, nothing less than that will do. It is never sufficient that the jury only 'thinks' that the prosecution's case is correct.

This is an adequate direction. The jury's starting-point in any case is that the complainant is truthful and deserving of belief until the contrary is proved by the defendant. Accordingly, if the jury thinks that the complainant's account is essentially correct they may properly convict the defendant.

This is an adequate direction. The usual direction on the discharge of the burden of proof in a criminal trial does not require proof 'beyond reasonable doubt'. The modern practice is for judges to direct the jury that 'if they think the defendant may be guilty' then their verdict must be 'guilty' and 'nothing less than that will do'.

This is not an adequate direction. The jury must be 'sure' of the defendant's guilt.

. In relation to the standard of proof, which of these judicial directions to a jury will be lawful?

'Members of the jury, 'being sure of guilt' is the same as 'being certain of guilt'. If you are sure of the defendant's guilt you are also certain of it and, accordingly, must find him guilty'.

'Members of the jury, you do not have to be satisfied beyond the shadow of a doubt, but you must be reasonably sure of the defendant's guilt'.

'Members of the jury if, having heard all the evidence, you are sure of the defendant's guilt, you must find him guilty. If you are not sure, you must find him not guilty'.

'Members of the jury if, on the balance of probabilities, you are sure of the defendant's guilt, you will find him guilty. Nothing less than that will suffice'.

Quiz Content