Burden and standard of proof in criminal proceedings

The following Corporate Crime practice note provides comprehensive and up to date legal information covering:

  • Burden and standard of proof in criminal proceedings
  • The legal burden
  • Exceptions to the principle that the legal burden lies on the prosecution
  • Implied statutory provisions
  • Whether the reverse burden infringes a defendant’s human rights
  • The neutral burden on questions of law
  • The evidential burden
  • Evidential burden on the defence
  • Standard of proof

Burden and standard of proof in criminal proceedings

There are two kinds of burden:

  1. the legal burden, and

  2. the evidential burden

The legal burden

A party has the legal (sometimes called ‘the persuasive’) burden where the onus is on that party to prove a fact or issue in a case to the required standard of proof.

The legal burden is generally on the prosecution (see below: subject to certain exceptions). This means that where the defendant pleads not guilty, the prosecution have the burden of proving all the elements of the offence (eg the identity of the defendant, the nature of the act, the existence of any necessary knowledge or intent and negating of any defences which are in issue). It includes proving negative elements of an offence, (eg lack of consent in a rape or assault case). It is for the jury or magistrates to determine whether the burden has been discharged.

Whichever decision making tribunal is responsible for making this decision, it must be clear that it has applied the correct test. Failures in this regard can give rise to a ground of appeal against conviction. In the Crown Court, the evidence that the correct test has been applied derives from the judges summing up of the evidence and the directions given to the jury to help it apply the law to the facts (see Practice Note:

Popular documents