Burden of Proof and Standard of Proof

In any case it must be determined upon whom the burden to prove facts within the case lies.

Civil Cases

The legal burden of proof in civil cases is on the balance of probabilities. In essence means that if one side can prove something is more likely to be true that not, then it will have been successful in asserting that which it seeks to prove. Thus in proving any fats the burden will be discharged as long as the tribunal can say "we think that it is more probable then not" but if the probabilities are equal than the burden will not have been discharged.

In civil cases the basic rule is that the burden of proof lays with the party that is seeking to assert the existence of the fact. So, for example, if a party is trying to assert that there was an oral contract in existence, then that party will ordinarily have to prove that there was indeed an oral contract. If the other party is denying that there was an oral contract it will not be for them to prove that there wasn't one, unless they are trying to assert the existence of other facts.

An example of this would be if one party seeks to rely on the fact that there was a contract for the sale of 1,000 blue socks for July the 26th 2002, but the other party denies this and seeks to rely on the fact that there was a contract for the sale of 1,000 red socks to be delivered on the July the 28th. Therefore it would be for both parties to prove that the facts they rely on existed.

The burden of proof also applies to negative assertions, for example if a landlord tries to assert that the tenant had not being taking care to repair the premises, as stipulated in the lease, then he will bear the burden of proof. It will not be for the tenant to prove that he had been repairing the premises.

In some cases it may be unclear whom the burden of proof lies with. For example in the case of Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation there was a fire on a ship, yet there was no evidence to show it came about. The Defendants claimed that the event was a frustrating event and occurred through no fault of their own, but the Claimant claimed that it arose due to the negligence of the Defendants. In the case the court held that it was for the Claimants to prove that the Defendants had caused the fire. Yet this can be contrasted with bailment cases where it has been of the Defendant to prove that the loss or damage was not down to his actions. Therefore, as yet, there is no hard and fast rule in such a situation.

Criminal Cases

The legal standard of proof in criminal cases is that of proving facts beyond reasonable doubt. As stated in the case of Miller v Minister of Pensions, if there is a remote possibly that the accused is innocent that he must be given a verdict of not guilty.

In the case of Woodrington v DPP it was set out that the basic rule in criminal cases is that the legal burden of proof lies with the prosecution. Thus if the prosecution alleges that the Defendant is guilty of murder then it will be for them to prove. If the Defendant denies the charge it will not be for him to prove that he did not commit the offence. If the Defendant goes beyond a mere denial and seeks to rely on other facts then the legal burden of proof will still rest with the prosecution, however the burden of bringing evidence of these facts will lay with the Defendant. Thus if the Defendant is charged with Assault and seeks to deny the charge and raises the issue that he was attacked then the Defendant will have to bring evidence of such facts to show that self defence can be used.

There are some exceptions to this rule, for example if the accused seeks to rely on the defence of insanity then he will bear the legal burden of proving this, as per McNaghtens case. Another common exception is section 2(2) pf the Homicide Act 1957 the defence of provocation. In these situations the defence must be proved by the Defendant on the balance of probabilities.

There also exist several presumptions. A presumption of fact - for example in the absence of contrary evidence it will be presumed that a person in possession of stolen goods knew that they were stolen. Unrebuttable presumptions of law, and rebuttable presumptions of law. An example of the latter is the presumption of marriage where two people are cohabiting with the repute of husband and wife.

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