Evidence Part 2
The burden and standard of proof relates to what must be proved, to what standard, and who must prove it. It is an area which can give rise to some difficulties and complexities, but the overall outline of the legal landscape is relatively clear.
The starting point is that the burden is on the party which is bringing the case. Thus in a civil case a claimant will bring the proceedings. It is up to the claimant to prove that the case being put forward is correct. (To the standard required as to which see hereafter). If the claimant does not prove the case then the claimant loses. Therefore the burden is on the claimant.
That does not apply in all circumstances. Let us take a claim in defamation. Someone sues because a newspaper accuses them of being a paedophile. That is plainly a most damaging allegation, difficult to think of anything more damaging. However of course it is only defamatory if it is untrue. The defendant can seek to say that it is true and claim a defence of "justification". However if the defendant pleads justification, it has to prove that that is true. Therefore the claimant will have to prove that the allegation was made (presumably by producing copies of the newspaper) and that it was an allegation likely to lower the reputation of the claimant in the minds of right-thinking people (which would go without saying on an accusation of being a paedophile). However it would be for the defendant to prove that the claimant was a paedophile, not for the claimant to disprove it. That shows how different sides can have the burden of proof in a case.
In a criminal case the burden of proof is usually on the prosecution. That will be on all issues. However sometimes on parts of the case the burden of proof may be on the defendant. Let us take a charge of murder. Obviously proof that the defendant killed the deceased with the requisite intent is on the prosecution. However, if the defence wishes to say that notwithstanding all of that the defendant should be acquitted on the ground of insanity or alternatively on the ground of diminished responsibility, then the defendant has to prove that. As it happens, in those circumstances the standard of proof on the defendant is a different standard of proof from that operating on the prosecution.
Another example is where defendants rely upon exemptions or qualifications. Thus for example (although this can lead to difficult questions) it means in some circumstances if an offence is made out unless the defendant has a licence, if all the elements of the offence are proved it is then for the defendant to show he had a licence to do it rather than for the prosecution to show that he didn't.
The impact of the burden of proof cannot properly be understood without knowing what the standard of proof is. This differs between civil and criminal cases, and indeed within civil cases although technically the standard of proof remains the same for all practical purposes some charges require more convincing proof than others. We shall look at the burden of proof next week.