“He who asserts must prove”. This statement of law allows us to understand that in criminal cases the onus of proof rests with the prosecution and that the standard of proof is one that must be satisfied beyond a reasonable doubt [1] . However, there are exceptions to this in the form of both statutory exceptions and within case law [2] . The statement also allows us to see that in civil cases the onus of proof rests with the party who raises the issue and the standard of proof is lessened to on the balance of probabilities [3] .
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There are two types of burdens of proof: the first is the persuasive burden which is when a party satisfies the court to the appropriate standard [4] . It is possible for both parties to bear the persuasive burden depending on the case in hand [5] . The second is the evidential burden which is when a party has to bring enough evidence in order for the court to at least consider the issue in hand [6] . These burdens are matter of law and will apply in each issue which is raised within the court [7] .
In criminal cases the basic rule is that the burden of proof rests with the prosecution in order to win their case [8] . In the case of Slater v HMA [9] it was stated that:
The jury was told that what is familiarly known as the presumption of innocence in criminal cases applied to the appellant (in light of his ambiguous character) with less effect than it would have applied to a man whose character was not open to suspicion. This amounted, in our opinion, to a clear misdirection in law. The presumption of innocence applies to every person with a criminal offence in precisely the same way, and it can be overcome only by evidence relevant to prove the crime with the commission of which he is charged.
The evidential burden is important when it comes to criminal matters due to the presumption of innocence. It used to be the case that it was thought that the accused was required to prove “special defences” however the case of Lambie v HMA [10] stated that this is not the case and stated that it is for the prosecution to disprove the defence beyond a reasonable doubt [11] . The only thing which the accused has to do is meet the minimal requirements of pointing at some evidence which allows the defence to be raised – the evidential burden [12] . The accused must also give notice when wishing to use a “special defence”.
There are exceptions to the general rule that it is for the prosecution to bear the burden of proof in criminal cases. There are four exceptions in which the burden of proof will shift [13] . The first is when the accused pleads a special defence of either insanity or diminished responsibility (which is not technically a special defence as it does not result in the accused being acquitted) [14] . They are named special defences as they require the accused to give written notice to the court that these defences will be used in order for the prosecution to understand the line of evidence the defence will take [15] . Hume stated that when an accused wishes to plead insanity the persuasive burden will for that reason rest on the accused [16] . However, the evidential burden would also switch to the accused [17] . This is due to the fact that it would be very difficult for the prosecution to disprove this defence as the prosecution cannot force the accused to have psychiatric examinations to be done; therefore the burden is placed with the accused [18] . The second exception to the general rule is when other special defences are used – these include alibi, self-defence or incrimination [19] . There is no requirement for the accused to corroborate the evidence put forward [20] .
As well as common law exceptions to the general rule that the burden of proof lies with the prosecution in criminal case there are also statutory exceptions. These include Parliament switching the burden of proof through Acts of parliament in relation to defences plead by the accused to specific crimes [21] . An example of this can be seen in the Criminal Law (Consolidation) (Scotland) Act 1995 [22] which states that “Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence”. However, as it is unusual for a statute to make express provision as to where the burden of proof lies the Criminal Procedure (Scotland) Act 1995 [23] states that “Where, in relation to an offence create by or under an enactment any exception, exemption, proviso, excuse or qualification, is expressed to have effect whether by the same or any other enactment, the exception, exemption, proviso, excuse or qualification need not be specified or negative in the indictment or complaint, and the prosecution is not required to prove it, but the accused may do so”.
In civil cases, the burden of proof is said to lie with “he who asserts a right given to him by the law must prove the facts necessary to establish it” [24] which allows us to understand that the burden of proof will normally rest with the pursuer [25] . However, the burden of proof may switch between the parties when it comes to dealing with different issues, this will usually happen when the defender is pleading certain defences (for example contributory negligence) [26] . The reason for this is that the parties in a civil matter are not normally required to prove a negative therefore the burden of proof will rest with the defender to prove rather than the pursuer to disprove [27] .
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There are also statutory exceptions to the general rule that in civil cases the burden of proof will rest with the pursuer [28] . The leading case for statutory exceptions is Nimmo v Alexander Cowan & Sons Ltd [29] . The statute under consideration in this case was the Factories Act 1962 [30] and concerned safe working practices. It was held that the burden of proof rested with the purser in order to prove that the working conditions were not safe however, the pursuer was not required to prove that it was not “reasonably practicable” to make them safe and if the defender wished to rely on this then the burden of proof would switch [31] .
The standard of proof in any case depicts both the amount and the quality of evidence which has to be lead in order for the burden of proof to be released [32] . In criminal cases this standard is said to be one of beyond reasonable doubt [33] therefore, the prosecution must prove the accused’s guilt beyond a reasonable doubt [34] . There has been difficulty is defining what can be classed as beyond a reasonable doubt and that there can be no quantitative amount place on it [35] . However, it has been described as something “more than a merely speculative or academic doubt” [36] .
When the burden of proof switches to the pursuer in criminal cases the question of what standard of proof shall be used must be asked [37] . The case of HMA v Mitchell [38] states the common law position, in relation to the defences of insanity and diminished responsibility, with Lord Justice-Clerk Thomson’s charge to the jury stating that:
The burden of proof is on the defence, because in our law there is a presumption that a man is sane. But you must keep clearly in mind that the burden in the case of an accused person is not so heavy a burden as the burden which is laid on the Crown… the Crown has to prove its case beyond a reasonable doubt… Where, however, the burden of proof is on the accused, it is enough if he brings evidence which satisfies you of the probability of what he is called upon to establish… it is a question of the balance f probabilities.
Therefore, the standard of proof changes from on beyond a reasonable doubt to on the balance of probabilities [39] . In relation to all other common law issues, in criminal matters, the burden of proof will remain with the Crown and should there be a reasonable doubt in the mind of the trier then the accused should be acquitted as the Crown has failed in discharging the persuasive burden [40] . The standard of proof which is required when a statute places the burden of proof on the pursuer is also on the balance of probabilities [41] .
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