Accordingly, the claimant usually bears the legal burden (and by necessity an evidential burden) of proving all the elements of his claim. Similarly, the defendant bears the legal (and evidential) burden of proving any defence and/or counter claim against the claimant.
The burden of proof in criminal cases: The basic rule was laid down by Viscount Sankey LC in Woolmington v DPP3, 'Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoners guilt4'.
It would be possible to justify the rule as part of a policy to avoid embarrassing criticisms of the administration of justice by minimising wrongful convictions. These are more likely to be avoided if the burden is fixed in this way then if an accused person has to prove his innocence. It is also possible to justify the rule by appeal to principle. For example, it would be a necessary feature of the law if it were accepted that, in Dworkin's words, people have a profound right not to be convicted of crimes of which they are innocent.
Viscount Sankey said that the rule was subject to exceptions in the case of the defence of insanity and subject also to any statutory exception. But there have been Challenges to the idea that it is ever just to place a legal burden of proof on defendants.
Standard of Proof of civil and criminal cases: In criminal cases the standard of proof to which the prosecution must prove its case has been variously described as 'beyond reasonable doubt' (Woolmington v DPP5). In Miller v Minister of pensions6, Denning J described the standard of proof in civil cases as follows:
If the evidence is such that the tribunal can say; 'we think it more probable than not,' the burden is discharged, but, if the probabilities are equal, it is not. There are, however, some exceptional cases where the criminal standard of proof is required:
(a) Contempt of court (Re Bramble vale Ltd7; Dean v Dean8)
(b) Where a person's livelihood is a stake (R v Milk Marketing Board, ex p Austin the Times, 21 March 1987).
(c) Allegations of misconduct amounting to a criminal offence in disciplinary hearings (Re A Solicitor9, R (on the application of s) v Governing Body of YP School10).
(d) Where statute requires the criminal standard of proof (Judd v Ministers of Pensions and National Insurance11).
Presumption of innocence:
Legal burdens on defendants may have to be considered in the light of the European Convention on Human Rights, which is now incorporated into English law Under the Human Rights Act 199812. The ECHR, Article 6(2) provides that every one with a criminal offence shall be presumed innocent until provided guilty according to law.
The leading authority is Attorney-General's Reference (No 4 of 2002)13, from which the following principle may be distilled.
a) The Defendant has a right to a fair trial,
b) The Presumption of innocence is an important but not an absolute right and so derogations from the principle are permitted.
c) The ECHR require a balance to be struck between the rights of the individual and wider interests