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GLOSSARY

Legal burden of proof definition

What does Legal burden of proof mean?

A party has the legal burden where the onus is on that party to prove a fact or issue in a case to the required standard of proof.

The legal burden is generally on the prosecution (subject to certain exceptions). This means that where the defendant pleads not guilty, the prosecution have the burden of proving all the elements of the offence, eg the identity of the defendant, the nature of the act, the existence of any necessary knowledge or intent, and the negativing of any defences which are in issue. It includes proving negative elements of an offence, eg lack of consent in a rape or assault case. It is for the jury or magistrates to determine whether the burden has been discharged.

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Burden and standard of proof in criminal proceedings

There are two kinds of ‘burden’ in criminal proceedings:•the legal burden, and•the evidential burdenThe legal burdenA party has the legal (sometimes called ‘the persuasive’) burden where the onus is on that party to prove a fact or issue in a case to the required standard of proof.The legal burden is generally on the prosecution (subject to certain exceptions as explained below). This means that where the defendant pleads not guilty, the prosecution have the burden of proving all the elements of the offence (eg the identity of the defendant, the nature of the act, the existence of any necessary knowledge or intent and the negating of any defences which are raised). It includes proving negative elements of an offence (eg lack of consent in a rape or assault case). It is for the jury or magistrates to determine whether the burden has been discharged.Whichever decision making tribunal is responsible for making this decision, it must be clear that it has applied the correct test. Failures in this regard can give...

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