Legal Burden Of Proof

Question 1 (1)

The burden of proof means obligation to prove. There are two principle kinds of burden in legal trial; they are

• legal burden

• evidential burden.

Legal Burden

The legal burden can be defined as the obligation imposed on a party by a rule of law to prove a fact in issue in order to convince the court. It is also known as persuasive burden. In criminal proceedings in relation to presumption of innocence provided by article 6(2) of European Convention on Human Rights states until proved guilty accused is presumed innocence. The golden thread principle stated by Woolmington v DPP states prosecution should prove the guilt beyond reasonable doubt and the legal burden remains there throughout the trial. . further Lord Sankey

Lak attended at the property harassed the tenants continuously, contrary to the terms of the order. So it can be said he is guilty of an offence. But the appellant case was that he went to collect the rent arrears.

Prosecution should prove that Lak breached the ASBO according to criminal standard beyond reasonable doubt. The legal burden lies with the prosecution then the standard of proof required is beyond reasonable doubt. Also prosecution has the evidential burden to establish a prima facie case.

Lak could be prosecuted for the breach of order under Section 1 (10). But if the defendant raises the evidential issue on defence of reasonable excuse then the legal burden was on the prosecution to prove that the defendant acted without reasonable excuse.

The case Charles held “applying the test in Edwards and Hunt when the defendant had raised the evidence of reasonable excuse the legal burden of disproving rests with the

Police and Criminal Evidence Act 1984 (PACE) section 82 (1) defines confession as “including ‘any statement wholly or partly adverse to the person who made it. Section 76 (1) states a confession made by an accused person may be given in evidence against him. Confession can be excluded on the grounds of mandatory or discretionary exclusions.

Section 76(2) which deals with mandatory exclusion provide that prosecution should prove, beyond reasonable doubt that the confession that was not obtained by Oppression or in circumstances of unreliability.

Section 76(8) defines oppression as including torture, inhuman or degrading treatment or the use of threat of violence. Torture, inhuman or degrading treatment is also prohibited by Article 3 of the ECHR. Saadi v Italy held ill treatment must attain a minimum level of severity to fall in the Article 3. It depends on all the situations of the case; duration of the treatment, its physical and mental effects and state of health of victim and it should go beyond the usual humiliation during the legal