7.2 An Introduction to Trials
The trial will involve the use of the different forms of evidence, real, oral, documentary and circumstantial. Witnesses will be called and will have to swear on oath or affirm before giving evidence (see Oaths Act 1978).
At the end of a trial the trial judge will normally start his/her summing-up by explaining to the jury where the burden of proof lies and the correct standard of proof.The procedure for conducting a criminal trial is contained in CrimPR Parts 24 (Magistrates’ Court) and 25 (Crown Court). Civil trial procedure is contained in CPR Part 32.
7.2.1 Burden of Proof
The prosecution (criminal) or claimant (civil) usually bears an obligation (sometimes known as the ‘legal’ or ‘persuasive burden’) to prove each and every fact in issue and an ‘ultimate burden’ to prove the case as a whole. For example, in a murder trial in the criminal courts there may be multiple issues to be proved such as: (1) did the defendant know the victim? (2) Did the defendant have a motive? (3) Was the defendant at the location of the murder? (4) Did the defendant have access to the murder weapon? (5) Did the defendant have an accomplice? These are facts in issue to be proved or disproved by the prosecution.
The prosecution or claimant will also have to produce enough evidence to prove those facts. This is known as the ‘evidential burden’. There is not however a standard of proof attached to an evidential burden (see the comments made by Lord Devlin in Jaysena v R [1970] AC 618).
The evidential burden rests initially with the party that bears the legal burden (usually the prosecution/claimant) and then there is a ‘tactical shift’ to the other party (usually the defence/defendant at the half-way point of the trial). When the evidential burden shifts onto the defendant it is usually a matter for them as to whether they take up the evidential burden and adduce evidence to counter the allegations made against them or simply sit back and let the other party establish their case.
In most circumstances, it would be dangerous and foolhardy for a defendant in a criminal trial not to produce evidence, for example, if they are relying on a defence of self-defence and the prosecution is seeking to disprove the defence.An evidential burden is also important where a presumption applies. This is where a state of affairs is assumed to exist. Some presumptions can be rebutted by producing evidence to establish the contrary. For example, the presumption of death applies where a person has been missing for seven years. This presumption can be rebutted by, for example, producing evidence of a sighting of the missing person. However, there are also some presumptions that are irrebuttable such as the presumption of innocence until proven guilty. Presumptions can also apply to admissible evidence. For example, in criminal proceedings, there is a legal presumption that an Evidential Breath Machine (‘EBM’) that is used to read levels of alcohol consumption is working properly and that the results are therefore correct. This is an example of the common law ‘presumption of regularity’. This is however a rebuttable presumption. This means that there is an evidential burden on the defendant to produce evidence to challenge this presumption. However, the burden of proof remains on the prosecution to prove that the machine was operating correctly, and the results are reliable and this is to be proved to the criminal standard of proof (see Cracknell v Willis [1988] AC 450).
The prosecution’s obligation to discharge the evidential burden is an important one because if at the close of the prosecution’s case the evidence they have produced is considered weak or unconvincing, it can lead to the defence making a ‘submission of no case to answer’. We will consider this later in this section.
7.2.1.1 Burden and Standard of Proof in Civil Proceedings
In civil cases the burden of proof will rest with the claimant because the general principle is whoever brings the claim must prove it and there is not usually a burden on the other party even when the mechanisms of the claim are expressed in a negative way.
For example, in a civil action for damages for negligence the claimant will have to prove that the defendant acted without care and disprove any defences raised.In Joseph Constantine Steamship Line v Imperial Smelting Corporation [1942] AC 154 Lord Maugham described the civil burden of proof as a rule, “founded on considerations of good sense [which] should not be departed from without strong reasons” [174]. However, there are some exceptions, e.g. a defendant must prove contributory negligence when raising it as a partial defence, if in a contract D asserts his/ her breach is covered by an exemption clause he/she will need to prove why he/she comes within the exemption clause.
The standard of proof in civil proceedings is ‘on a balance of probabilities’. According to Lord Denning in Miller v Minister of Pensions [1947] 2 All ER 372 this means it carries a reasonable degree of probability that might be expressed as ‘more probable than not’. However, in civil cases which have a quasi-criminal element the standard of proof can change from ‘on a balance of probabilities’ to ‘beyond reasonable doubt’ - see the decision in R vBriggs-Price [2009] UKHL 19 where the House of Lords held that a judge in confiscation proceedings who is considering whether the order should apply because a convicted person has benefited from a specific drug trafficking offence, should decide this based on the criminal standard of proof.
7.2.1.2 Burden and Standard of Proof in Criminal Trials
When a defendant appears in the criminal court for trial, the prosecution will present its case against the defendant before the defence makes its case. The legal burden of proof is therefore usually on the prosecution. The standard of proof is ‘beyond reasonable doubt’ which has been expressed by Lord Goddard in R vSummers (1952) 3 Cr App R 14 as the jury members asking themselves whether they are satisfied so that they are sure. This has become known as ‘the sure test’. The case of R v Miah [2018] EWCA Crim 563 confirms that the use of the word ‘sure’ is sufficient, but no particular words are needed.
Circumstantial evidence may be enough to satisfy proof but in R v Masih [2015] EWCA Crim 477 Pitchford LJ stated that if a jury is being asked to draw an inference of guilt from circumstantial evidence then the jury must be able to “exclude all realistic possibilities consistent with the defendant’s innocence” [3] in order to be sure of guilt.
Despite Viscount Sankey LC describing the burden of proof as the “one golden thread” of the “web of the English criminal law” in Woolmington v DPP [1935] AC 462, he also recognised that sometimes the burden of proof can rest with the defendant. This is known as a ‘reverse burden’. When this happens the burden of proof never leaves the prosecution or claimant but temporarily reverses to the other party. However, the prosecution will still have to prove the elements of the crime itself. Viscount Sankey identified three circumstances when a reversal would occur (1) plea of insanity, (2) where a statute expressly provides for a reversal of the burden of proof and (3) where there is the necessary implication that the burden will be reversed.
Examples of statutes that specifically reverse the burden of proof include s. 2(2) of the Homicide Act 1957 (as amended by s. 52 of the Coroners and Justice Act 2009) which places the burden of proving a defence of diminished responsibility upon the defendant. However, not all statutes expressly make clear whether a reverse burden applies and so s. 101 of the Magistrates’ Court Act 1980 provides some clarification by stating that wherever a defendant relies on an exception, exemption, proviso, excuse or qualification in a statute as his/her defence then the defendant has the burden of proving he/she comes under the exception, exemption, etc. An example of this can be seen in s. 137 of the Highways Act 1980 which does not expressly state where the burden of proof lies but states that a person will be guilty of obstructing the highway if they do not have lawful authority or excuse. It therefore includes a qualification as to when an offence will not occur.
It would therefore be for a defendant who has a lawful authority or excuse to prove this.An advocate should always read the provisions of a criminal statute carefully to determine whether a reverse burden exists. However, in certain situations, the court has intervened to remove reverse burdens where they have existed in statute but are regarded as unfair. For example, in R v Lambert [2001] UKHL 37 the House of Lords read down the words “for the accused to prove” in s. 28(2) of the Misuse of Drugs Act 1971 as imposing only an evidential burden on the defendant with the prosecution being obliged to prove the accused’s culpable state of mind beyond reasonable doubt. This means that s. 28(2) is altered by the decision in Lambert in terms of where the burden lies for proving lack of knowledge for offences to which the section applies. In R vJohnstone [2003] UKHL 28 the House of Lords gave guidance on the factors a judge should take into account when deciding whether or not to uphold a reverse burden. These include a consideration of the nature, extent and importance of the facts to be proved and whether they are matters within the defendant’s knowledge that he/she has ready access to prove.
When the burden of proof reverses on to a defendant in criminal proceedings the standard of proof becomes the civil standard of ‘on a balance of probabilities’ - see R v Carr-Briant [1943] 1 KB 607.
7.3