Burden and Standard of Proof — SQE1 FLK2 Criminal Law and Practice

A man shot and killed his wife. At his trial he said the gun had gone off accidentally. The judge directed the jury that once the prosecution had proved the killing, it was for the defendant to prove it was an accident. He was convicted. The Court of Criminal Appeal upheld it. Was that direction right?

No. The House of Lords reversed it, and in doing so laid down the principle that organises this entire topic. This is Burden and Standard of Proof, and there are only ever two questions. Who has to prove this issue? And to what standard? Get those two right and the rest follows. Keep our man and his gun in mind. He comes back.

Here is the route. The golden thread first, and its exceptions. Then the difference between a legal burden and an evidential burden, which is the heart of the topic. Then the two standards of proof. Then statutory reverse burdens, and how to spot one in the wording. Then presumptions and Article 6(2). And last, what to do when the prosecution has not discharged its burden at all.

That case is Woolmington, from 1935, and it is the most important decision on burden of proof in criminal law. Viscount Sankey put it like this. Throughout the web of the criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt. The prosecution must prove every element of the offence. The defendant proves nothing.

But Viscount Sankey named two exceptions in the same breath. The defence of insanity. And any statutory exception. Those are the only two, and they are worth memorising as a pair, because a favourite question simply asks you to name them. Everything else in this topic is either an application of the thread or an argument about how far an exception reaches.

Now the distinction that does most of the work. There are two kinds of burden. The legal burden, also called the persuasive burden, is the obligation to prove a fact to the required standard. Carry it and fail to discharge it, and you lose on that issue. The evidential burden is different. It is only the obligation to put enough evidence before the court to make the issue a live one.

Think of the evidential burden as getting your foot in the door. Raise enough evidence on self-defence, and the issue goes to the jury. But the legal burden has not moved anywhere. It is still on the prosecution, who must now make the jury sure that the defendant was not acting in self-defence. The defendant has proved nothing and does not have to.

And the evidential burden can be discharged from any source, including the prosecution's own material. If the Crown plays door-camera footage that shows the other man moving in with his arm raised, that raises self-defence, even if the defendant called no witnesses at all. You do not have to give evidence yourself to raise an issue.

Contrast the legal burden landing on the defence. Now the client must actually prove the thing, and if the evidence leaves the jury unpersuaded, the defence simply fails. That is the difference between a conviction for murder, with a mandatory life sentence, and a conviction for manslaughter. So when you read a defence, the first question is always: which burden is this?

Standards next, and there are two. The prosecution must prove guilt beyond reasonable doubt. Modern practice is to tell juries they must be sure. The Crown Court Compendium, issued by the Judicial College, directs judges to use that word rather than the older phrase. Why? Because beyond reasonable doubt invites juries to argue about which doubts count as reasonable. Sure captures it better.

But the two formulations describe the same standard, so a direction is not defective merely because one or the other is used. And the second standard is the balance of probabilities. More likely than not. Above 50%. That is what a defendant has to reach whenever a legal burden lands on the defence, and it is a great deal lower than sure.

Hold that pairing, because it is examined constantly. Prosecution legal burden: sure. Defence legal burden: balance of probabilities. A defendant is never required to prove anything so that the jury are sure. If an answer option says that, it is wrong on its face.

Now statutory reverse burdens. Parliament sometimes places the legal burden of proving a fact on the defence. Because that cuts across the golden thread, courts read these provisions strictly and impose a legal burden only where the language clearly requires it. So the skill being tested is reading the words.

Here is the rule of thumb. If the statute says it is a defence to prove that something is so, the legal burden is on the defence, and the standard is the balance of probabilities. If it says that where the defendant raises evidence of something the prosecution must disprove it, only the evidential burden is on the defence. The precise wording decides it.

Take offensive weapons. Section 1(1) of the Prevention of Crime Act 1953 makes it an offence to have an offensive weapon in a public place without lawful authority or reasonable excuse. And then these words: the proof whereof shall lie on him. The prosecution proves the weapon and the public place. Those express words then put the legal burden on the defendant to prove lawful authority or reasonable excuse.

The same pattern runs through section 19 of the Firearms Act 1968, a firearm in a public place. And section 101 of the Magistrates' Courts Act 1980 does it generally in summary trials: a defendant who relies on an exception, exemption, proviso, excuse or qualification must prove it. The classic example is a driving licence. The prosecution proves the driving. You prove the licence.

Two more to know. Insanity, under the M'Naghten Rules, where the defence must prove it on the balance of probabilities. That is Viscount Sankey's first exception. And diminished responsibility, where section 2(2) of the Homicide Act 1957 puts the legal burden squarely on the defendant. In both, the prosecution disproves nothing.

Now the mirror image, because the exam likes it just as much. Sometimes there is no reverse burden at all, and the scenario is built to make you think there is. Section 8 of the Misuse of Drugs Act 1971 makes it an offence for an occupier to knowingly permit drug activity on the premises. Knowingly permitted is an element. The prosecution must prove it. The defendant proves no lack of knowledge.

Same with belief in consent. Under section 1 of the Sexual Offences Act 2003 the prosecution must prove that the defendant did not reasonably believe the complainant consented. The defendant bears only the evidential burden of raising the issue. Raising is not proving. Watch for options that quietly upgrade an evidential burden into a legal one.

Which brings in human rights. Article 6(2) of the European Convention on Human Rights says everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. That is the presumption of innocence, and it is the foundation the golden thread sits on. So how do reverse burdens survive it?

Start with what Article 6(2) does not do. It does not ban presumptions. The European Court of Human Rights has held that presumptions of fact and of law are not prohibited in principle. But states must confine them within reasonable limits, taking account of what is at stake and maintaining the rights of the defence. So the question is never whether presumptions are allowed. It is whether this one stays within reasonable limits.

Then two decisions of the House of Lords that you should hold as a pair. Take R v Lambert, from 2001. A reverse burden under the Misuse of Drugs Act was compatible with Article 6(2) only if read as imposing an evidential burden rather than a legal one. The court used section 3 of the Human Rights Act 1998 to read the provision down and preserve its compatibility.

In R v Johnstone, from 2003, the House refined the approach. It distinguished reverse burdens that go to elements of the offence, which are harder to justify, from those that go to exceptions and defences, which are less problematic. Parliament can impose a legal burden on a defence, provided it is proportionate. And in Sheldrake the reverse burden in section 5(2) of the Road Traffic Act 1988, no likelihood of driving, was upheld as a true legal burden.

So how does a court decide? A proportionality test. What is the provision trying to achieve. How important is the thing the defendant must prove. How difficult would it be for the defendant to prove it. And how serious is the offence. If the provision is proportionate, it can survive even though it imposes a legal burden.

Last piece, and it is the practical one. What if the prosecution has simply not discharged its burden? You make a submission of no case to answer. That is R v Galbraith, from 1981. The judge should uphold it where there is no evidence on which the jury could properly convict, or where the evidence is so weak that a conviction would be unsafe. Do not save it for the closing speech.

A word on how SQE1 tests this. You will not be asked to recall a case name or a section number. You get a scenario, five answers, and one instruction: pick the best. So learn which burden attaches to which defence, and learn the two standards as a pair. The names are memory pegs, nothing more.

If you keep only three pegs. Woolmington, the golden thread, subject only to insanity and statutory exception. R v Lambert, where a reverse burden was read down to an evidential burden to keep it compatible with the Convention. And R v Galbraith, which tells the judge when to stop the case.

Four traps. One: raising an issue is not proving it. Most defences carry only an evidential burden, and once it is discharged the legal burden stays exactly where it was, on the prosecution, to the criminal standard.

Two: a defendant is never held to the criminal standard. Where a legal burden does land on the defence, it is discharged on the balance of probabilities. An option that asks a defendant to make the jury sure of something is wrong before you read the rest of it.

Three: accident, and denials generally, are not defences carrying a burden. Saying it was an accident is a denial that the act was deliberate, so the prosecution must still make the jury sure of the very thing being denied. That was the misdirection in our opening case.

Four: read the statute, not the summary. It is a defence to prove means a legal burden on the defence. Language about the defendant raising evidence means an evidential one. And if the fact is an element of the offence rather than a defence, expect the court to read it down.

Quick check. A woman is tried for unlawful wounding after a fight outside a nightclub. She accepts that she struck a man in the face with a glass, but says he came at her first, swinging a bottle at her head. She calls no witnesses of her own. Door-camera footage played by the prosecution shows the man moving towards her with his arm raised. Her counsel asks the judge to leave self-defence to the jury.

What must she do before self-defence is left to the jury, and who must then disprove it? Three candidates. One: point to evidence raising self-defence as a live issue, and the prosecution must then disprove it. Two: prove self-defence on the balance of probabilities, and the prosecution need disprove nothing. Three: nothing at all, because the prosecution must disprove self-defence whenever violence is admitted. Pause here if you want a moment.

The answer is one. Self-defence carries only an evidential burden. She must point to evidence capable of raising the issue. The legal burden then rests where it always did, on the prosecution, to make the jury sure she was not acting in lawful self-defence. And it can be discharged from any source, so the prosecution's own footage raises it even though she called nothing.

Why the others fail. Option two states the position for a statutory reverse burden, and nothing puts the persuasive burden on a defendant relying on self-defence. Option three goes too far the other way. The issue must first be raised on the evidence. A judge is not obliged to leave a defence that no evidence supports.

Five things to take away. One: the golden thread. The prosecution proves every element, subject only to insanity and statutory exception. Our man with the gun did not have to prove his accident, and the direction that said otherwise was quashed. Two: the legal burden is proving; the evidential burden is only raising, and discharging it moves nothing.

Three: prosecution to the criminal standard, sure. Defence, where it carries a legal burden, to the balance of probabilities. Never the other way round. Four: reverse burdens turn on the statutory wording, and courts read them down where they can, applying a proportionality test under Article 6(2). Five: if the prosecution has not discharged its burden, submit no case to answer. Next time, Identification Evidence and Inferences from Silence.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.