Lecture 2– Burden and Standard of
Proof
Recap - Relevant Evidence is Admissible
Relevant Evidence Can However be Excluded Using Judicial Discretion Under s.78
or s.82(3) PACE 1984
Exclusionary Rules May Also Make Relevant Evidence Inadmissible and the
‘Galbraith Test’ means weak evidence can lead to the case being thrown out.
The Judge Decides the Question of Admissibility at a Voir Dire
Relevant Evidence Even If Admitted is Still Subject to Weight Attached by the Jury
Common Terminology:
‘Defendant’ – the person accused of an offence who is standing trial in a criminal
case or defending a claim in a civil case
‘Prosecution’ – represents the state to bring evidence against the defendant in a
criminal case.
, ‘Claimant’ – the Individual/company/partnership bringing an a action against
another in a civil claim.
‘Proof’ – establishing that something is true by meeting a particular standard in
order to convince
‘Facts in Issue’ – disputed points between the parties that needs to be
established at the trial.
Burden of Proof
Legal’ or ‘Persuasive Burden’ – burden to prove a fact in issue – see e.g. R v
Ewing [1983] 3 WLR 1 and judge must make this clear in summing-up – see R v
Bentley (Deceased) [2001] 1 Cr App R 307
Legal burden generally rests with prosecution in criminal proceedings (see
Woolmington v DPP [1935] AC 462) and the claimant in civil proceedings
seeJoseph Constantine Steamship Line v Imperial Smelting Corporation [1942]
AC 154
‘Evidential burden’ – burden of adducing evidence – see Jayasena v R [1970] AC
618
Adducing means bringing forward evidence to the court
However it is possible for the burden of proof to ‘reverse’ on to the opposing
party in certain circumstances as laid down in Woolmington v DPP namely 1)
where there is a defence of insanity or 2) where statutory exceptions apply see R
v Lambert [2001] 3 WLR 206
Reverse Burden (falls onto the defendant to prove fact in issue)
Statutory exception for reverse burden:
Some statutes will expressly state where the burden of proof lies – e.g. s.2(2)
Homicide Act 1957, s.161 Highways Act 1980, S.137 Highways Act 1980
Proof
Recap - Relevant Evidence is Admissible
Relevant Evidence Can However be Excluded Using Judicial Discretion Under s.78
or s.82(3) PACE 1984
Exclusionary Rules May Also Make Relevant Evidence Inadmissible and the
‘Galbraith Test’ means weak evidence can lead to the case being thrown out.
The Judge Decides the Question of Admissibility at a Voir Dire
Relevant Evidence Even If Admitted is Still Subject to Weight Attached by the Jury
Common Terminology:
‘Defendant’ – the person accused of an offence who is standing trial in a criminal
case or defending a claim in a civil case
‘Prosecution’ – represents the state to bring evidence against the defendant in a
criminal case.
, ‘Claimant’ – the Individual/company/partnership bringing an a action against
another in a civil claim.
‘Proof’ – establishing that something is true by meeting a particular standard in
order to convince
‘Facts in Issue’ – disputed points between the parties that needs to be
established at the trial.
Burden of Proof
Legal’ or ‘Persuasive Burden’ – burden to prove a fact in issue – see e.g. R v
Ewing [1983] 3 WLR 1 and judge must make this clear in summing-up – see R v
Bentley (Deceased) [2001] 1 Cr App R 307
Legal burden generally rests with prosecution in criminal proceedings (see
Woolmington v DPP [1935] AC 462) and the claimant in civil proceedings
seeJoseph Constantine Steamship Line v Imperial Smelting Corporation [1942]
AC 154
‘Evidential burden’ – burden of adducing evidence – see Jayasena v R [1970] AC
618
Adducing means bringing forward evidence to the court
However it is possible for the burden of proof to ‘reverse’ on to the opposing
party in certain circumstances as laid down in Woolmington v DPP namely 1)
where there is a defence of insanity or 2) where statutory exceptions apply see R
v Lambert [2001] 3 WLR 206
Reverse Burden (falls onto the defendant to prove fact in issue)
Statutory exception for reverse burden:
Some statutes will expressly state where the burden of proof lies – e.g. s.2(2)
Homicide Act 1957, s.161 Highways Act 1980, S.137 Highways Act 1980
