Chapter 3 Selected guidance on approaching questions

The burden and standard of proof

Question 1

  1. A statutory provision which places a burden on the accused may be incompatible with Art 6(2) of the European Convention on Human Rights where it interferes with the presumption of innocence (an important part of an accused’s right to a fair trial). The test for deciding this is contained in the key authorities of R v Lambert, R v Johnstone, and Attorney General’s Reference (No 4 of 2002). See The Modern Law of Evidence (MLE) 13th ed pp69-75.
  2. In Lambert, Lord Steyn provided a three stage test: has there in fact been an interference with the presumption of innocence?; is there an objective justification for it?; is it proportionate? See MLE 13th ed at pp69-71.
  3. In Johnstone, Lord Nicholls approach was (i) ‘…A sound starting point’ is to remember that a burden on the accused to prove a fact on the balance of probabilities meant that he could be convicted in spite of the fact finding tribunal having a reasonable doubt as to his guilt; (ii) consider the seriousness of the punishment; (iii) consider the nature and extent of matters that the accused is required to prove and their importance relative to the matters the prosecution must prove; (iv) consider whether the matters which must be proved by the accused are within his knowledge; (v) defer to parliament’s intention and only ‘read down’ a statutory provision where it is apparent that parliament has not given due weight to the importance of the presumption of innocence. See MLE 13th ed at pp72-73
  4. In Sheldrake v DPP [2005] 1 AC 264, HL, it was held that the important matter to be proved was well within the accused’s knowledge and it was more appropriate for him to do this on the balance of probabilities than for the prosecution to prove it to the criminal standard. In Attorney General’s Reference (No 4 of 2002) a conjoined appeal, various principles were referred to, including the uncertainty and breadth of the provision, the difficulty for the accused to prove his defence under the provision on a balance of probabilities and the severity of the punishment. See MLE 13th ed at p75.
  5. The position of ‘regulatory’ offences should also be considered. Such offences are not truly criminal, often attract only a monetary penalty and carry little or no social stigma (see R v Lambert). Provisions which place a legal burden on a person in respect of a regulatory offence may be less likely to be incompatible with Article 6(2) for these reasons. See MLE 13th ed pp69 -71.
  6. A criticism concerning provisions which place a legal burden on the accused to prove his defence on the balance of probabilities – especially in cases where the accused could go to prison - is that a jury or a magistrate will be under a legal duty to convict even if there is a doubt about the accused’s guilt or his version of events is as likely to be true as the version presented by the prosecution. See MLE 13th ed p77.
  7. The main problem with the tests for deciding incompatibility is that many of the factors said to be relevant are not weighted and therefore different judges can legitimately reach different views in relation to the same provision. For example: how much importance should be attached to Lord Nicholls’ ‘sound starting point’?; there is no precise point at which it can be said that a punishment is so severe that it ought to be taken into account or ought to be conclusive; there is no clear tipping point in relation to the nature and extent of the things to be proved by the accused compared to the nature and extent of things to be proved by the prosecution; to what extent should one defer to Parliament’s intention?; there is no clear dividing line between crimes and regulatory offences that are ‘not truly criminal’.

Question 2

  1. The standard of proof in civil cases is the balance of probabilities. Although it is a single standard, the courts have applied it in a flexible way. What this means is that, depending on the nature and seriousness of the case, the courts may require stronger or better quality evidence before being satisfied that a case is proved on the balance of probabilities. The standard is not flexible in the degree of probability which must be reached, but in the strength or quality of the evidence required (see R(N) Mental Health Review Tribunal). See MLE 13th ed at pp86-90.
  2. A number of cases have stated the principle that, when applying the civil standard, the more serious the allegation, the more cogent the evidence required to overcome the unlikelihood of what is alleged (see, for example, Re Dellow’s Will Trust). See MLE 13th ed at p90.
  3. The courts may also take into account, when considering the strength or quality of evidence required to satisfy the civil standard in any particular case, the seriousness of the consequences flowing from an allegation if proved, even if what is alleged is not something which is inherently improbable (see, again, R(N) Mental Health Review Tribunal). Examples include allegations of a crime in civil proceedings, findings on paternity and civil recovery proceedings under the Proceeds of Crime Act 2002. See MLE 13th ed at pp92-93.
  4. However, in the key authority of Re B, it was stated that there was no logical or necessary connection between the seriousness of an allegation and the probability that what was alleged had in fact occurred. The seriousness of an allegation and probability that it had happened were only factors to be taken into account when applying the civil standard, which is the simple balance of probabilities. See MLE 13th ed at pp88, 90 and 93.
  5. The analysis in Re B is particularly useful in those cases where there is undisputed other evidence that has a bearing on the probability of a serious allegation, as in the example of undisputed evidence of multiple fractures and injuries to a child while in the care of parents. In such a case, it ceases to be improbable that one of the parents has inflicted the injuries – the issue is which parent did it and the test is the ordinary balance of probabilities. However, in the absence of any such evidence, questions of seriousness and probability remain relevant, as does the reasoning of Morris LJ in Hornal v Neuberger Products Ltd, in relation to allegations of crime in civil cases, that the issues may involve questions of reputation which can transcend in importance even questions of personal liberty. See MLE 13th ed at pp88-90.
  6. All of the examples above, and the reasoning applied, though, must be seen in the light of Baroness Hales’ dictum in Re B that there is only one single standard for proof. In Re B, she announced ‘… loud and clear that the standard of proof. . . is the simple balance of probabilities, no more no less.’ And see, to similar effect, the dictum of Baroness Hale in Braganza v BP Shipping [2015] 1 WLR 1661, SC. See MLE 13th ed pp90 & 93

Question 3

  1. In a criminal trial, the prosecution bears the legal burden of proof in respect of all the facts in issue (Woolmington v DPP [1935] AC 462 HL). To discharge the burden, the prosecution must prove facts in issue to the criminal standard of proof, which is described as making the tribunal of fact ‘sure’ of guilt (see The Crown Court Compendium, Part 1, 5). The facts in issue which the prosecution must prove are identity and all the elements of the offence of murder (the actus reus and mens rea), that Jim was not acting in self-defence, and if it becomes a fact in issue, that Jim did not lose his self-control. See generally, MLE 13th ed pp 62, 85-86.
  2. In his trial, Jim will rely on the defence of self-defence because he says he took the knife from Asif and used it to defend himself. The defence is a common law defence which imposes an evidential burden on an accused who relies on it (R v Lobell [1957] 1 QB 547, CCA). This means that in order to be able to rely on the defence, Jim must discharge an evidential burden. This is a question of law resolved by the tribunal of law, the judge: indeed discharging the evidential burden is sometimes described as ‘getting past the judge’. To do this, the accused must adduce sufficient evidence to justify, as a possibility, a finding by the tribunal of fact that he acted in self-defence. In this case the evidence that Jim acted in self-defence comes from his oral testimony to this effect. Since self-defence affects the crucial mens rea element of the offence of murder, a fact in issue in respect of which the prosecution bears a legal burden to prove to the criminal standard, they will need to make the jury sure Jim was not acting in self defence (assuming the judge – the tribunal of law – concludes that Jim has discharged the evidential burden). See MLE 13th ed pp60 & 80
  3. During his evidence, in addition to saying that he acted in self-defence, Jim said that he felt he was ‘losing it a bit’. The question arises then, whether the defence of loss of control might be available to Jim. Loss of control is a statutory defence which replaces the common law defence of provocation (which was less restrictive). Under the Coroner’s and Justice Act 2009, s 54(5) the defence of loss of control can apply if ‘sufficient evidence is adduced to raise the issue and the jury must assume the defence is satisfied unless the prosecution disprove it beyond a reasonable doubt. Whether there is sufficient evidence of loss of control is a matter of law to be resolved by the judge (the tribunal of law). The judge has to reach the conclusion that, considering the evidence, a properly directed jury could reasonably conclude that the defence might apply (see s 54(6) of the 2009 Act). The leading authority on the approach that should be taken is R v Gurpinar [2015] 1 WLR 3442, CA. In deciding whether there is sufficient evidence of loss of control, the evidence should be analysed in a rigorous way. See MLE 13th ed pp81-83
  4. In R v Goodwin [2018] 4 WLR 165, CA, it was held that where there is sufficient evidence of loss of control, the defence should be left to the jury even if the accused has not expressly relied on it, for example, where the accused relies on the defence of self-defence, but the facts of the self defence also raise the issue of loss of control. In R v Martin [2017] EWCA Crim 1359, the court considered whether the accused relying on self defence should also have been able to rely on loss of control and said that self defence could carry with it an element of loss of control (see also R v Skilton [2014] EWCA Crim 154). The court considered this question because the accused said that he had been panicky, scared and in shock, even though, at trial, he had not relied on the defence of loss of control. The court held that on the particular facts of the case the judge was right to conclude that there was not sufficient evidence of loss of control. Jim’s position in respect of whether loss of self-control might be available, seems a little stronger than in R v Martin. Jim explicitly says he lost it a bit and his mind went blank. It would be appropriate for his advocate to assert loss of control on his behalf. However, it is hard to know whether a judge would, in the exercise of judgment, rule that the defence of loss of self control should go to the jury. See MLE 13th ed pp82-83.

Question 4

  1. This question concerns civil proceedings instigated by the local authority, who seek a care order to remove 5 year old Millie from her parents’ home because her 8 year old brother Archie was found dead there. The circumstances of Archie’s death suggest Millie is at serious risk. The authority’s proceedings involve making a serious allegation that Archie’s death was not an accident and that a crime has been committed. This is a fact in issue in respect of which the local authority bears the burden of proof (because the local authority is the party asserting: see MLE 13th ed pp 58-59). The judge, acting as the tribunal of fact, must determine whether the burden is discharged.
  2. The judge said that she was unable to make a finding of fact ruling whether Archie’s death was non-accidental and so had to resort to applying the civil standard of proof (see Stephens v Cannon 2005] CP Rep 31, CA at [46] for the relevant principles in respect of findings of fact and resorting to the civil standard). The civil standard of proof has been described as ‘the balance of probabilities’ (see Miller v Minister of Pensions [1947] 2 All ER 372). See MLE 13th ed pp59, 86-87.
  3. Although the standard of proof is fixed, it may be flexible in its application in the sense that the more serious the allegation, the stronger the evidence which may be required by the courts in order to meet the standard (R (D) v Life Sentence Review Commissioners (Northern Ireland) [2008] 1 WLR 1499, HL). However, this should not be analysed just in terms of probability i.e. a more serious allegation being less probable, means that more proof is required (see the dicta of Baroness Hale in Re B (children) (care proceedings: standard of proof [2009] 1 AC 11, HL at [72]: there is no logical or necessary connection between seriousness and probability, factors which can vary according to the other evidence in the case; the seriousness and improbability of allegations are simply matters to be taken into account). See MLE 13th ed at pp86-90.
  4. Where, in civil proceedings, a crime is alleged to have been committed, an issue arises as to whether on the facts in issue which would constitute a crime, the criminal standard should apply. In Hornal v Neuberger Products Ltd [1957] 1 QB 247 it was held that the simple civil standard should apply, namely the balance of probabilities. This has been followed by subsequent authorities. In Re B (Children) (Care Proceedings: Standard of Proof) [2009] 1 AC 11, for example, which involved allegations of grave crimes of sexual abuse against children, the House of Lords made it clear that there was only one standard of proof in civil cases regardless of their seriousness, and that was the simple standard of the balance of probabilities. MLE 13th ed at pp86-90.
  5. Returning to the facts of the question, the judge has been correct to apply the civil standard of proof in circumstances where she cannot make findings of fact. However, she has made an error by attempting to apply the standard by attributing and aggregating percentages of probability to the likelihood of facts in issue.
  6. This approach – attribution and aggregation of percentages - was disapproved of in Re A (Care Proceedings: Burden of Proof) [2018] 4 WLR 117. In Re A the local authority applied for care orders in respect of children in circumstances where their sister was found dead with an injury to her neck. The judge was unable to make a finding of fact on whether the sister had died non-accidentally and so resorted to the civil standard of proof i.e. the balance of probabilities. However, in applying it, he analysed probability by giving percentage values to the different issues. He decided that the probability of the sister committing suicide was 10% and her death by an accident was 45%. Adding the percentages together – 55% - meant that the local authority had not proved its case on a balance of probabilities (on the judge’s analysis there was only a 45% probability of a crime having been committed). The Court of Appeal held that this was not the proper approach to the simple application of the balance of probabilities. MLE 13th ed at pp87-88.
  7. Why is evaluating probability in terms of percentages not acceptable as an approach when fact finding? After all, it seems to be quite a simple and straightforward way of analysing probability. However, precise percentage values are only rarely of any use when fact finding (for example, in respect of the likelihood of DNA matching). Judgements made from broad assessments of the evidence cannot be reliably expressed in precise percentages. For example, how could the judge in this question really have arrived at a figure of 10% probability of suicide or self-harm? For more on the issue of using percentage values see Zuckerman, Principles of Criminal Evidence (Oxford 1989) at p 132 (considered in the context of the criminal standard of proof, in Keane and McKeown, ‘Time to abandon ‘beyond reasonable doubt’ and ‘sure’: the case for a new direction on the criminal standard and how it should be used’, [2019] Crim LR 505).
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