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) 12th ed pp 96-102.
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 12 ed at pp 96-97.
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 12th ed at pp101
4. Attorney General’s Reference (No 4 of 2002) involved two appeals. In the first, 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 the second, 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 12th ed at p102.
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 12th ed pp 102-104.
6. A key criticism of 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 12th ed p104.
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 flexible then not in the degree or level 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 12th ed at pp 112-114.
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 MLE12th ed at pp 112-116.
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 12th ed at pp112-118.
4. 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 MLE12th ed at p115-116.
5. The analysis in Re B is 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 12th ed at pp 114-116.