In criminal cases

• The presumption of innocence is specifically enshrined in Art 6 European Convention on Human Rights (ECHR) but it is not recognised as an absolute since legislatures may reverse the burden of proof within reasonable limits which take account of the importance of what is at stake and of maintaining the rights of the defendant.

• In English law the principle of placing the burden of proof on the prosecution was acknowledged under the common law, although it was not until Woolmington v DPP (1935) that the courts fully acknowledged that this applied to the mens rea as well as the actus reus.

• A criminal offence may contain several elements and there may be therefore several different allocations of the burden of proof.

• Where the prosecution bears the burden of proof, the standard is beyond reasonable doubt. If the defence bears the burden the standard is the balance of probabilities.

• The term burden of proof should strictly be reserved for the legal or persuasive burden which is determined at the end of the trial when the jury decides whether to convict or not. The party that has the legal burden usually has the evidential burden, ie is the burden of adducing sufficient evidence to make the issue a live one at the trial. (It also known as the burden of passing the judge.) Exceptions to this are certain common law defences where the defendant has the evidential burden before the judge will allow them to be considered by the jury.

• Misdirection by the judge on burden or standard of proof is likely to lead to an appeal.

• The Human Rights Act 1998 has had considerable influence in this area. Reverse burdens will only be acceptable if they are proportionate and preserve the interest of the defendant. The court may read down a statutory provision in order to comply with Art 6.

In civil cases

• The principle in civil cases is he who asserts must prove. The placing of the burden of proof would therefore be apparent from the statement of claim and any counterclaim or specific defence, such as reference to an exclusion clause in contract or to contributory negligence.

Presumptions

• Presumptions work on occasion to remove the need for proof. They are mostly of significance in relation to civil cases.

• Factual presumptions are common sense logical inferences from a state of affairs.

• Irrebuttable presumptions of law are provisions of the substantive law, such as the provision that a child of 10 and over has criminal liability.

• Rebuttable presumptions of law cover situations where, once foundational facts have been proved by a party, a particular state of affairs will be assumed to exist.