Codifying the Law on Evidential Burdens
| DOI | 10.1350/jcla.2008.72.4.305 |
| Author | Richard Glover |
| Published date | 01 August 2008 |
| Date | 01 August 2008 |
| Subject Matter | Article |
Codifying the Law on Evidential
Burdens
Richard Glover*
Abstract This article examines the concept of the evidential burden
and argues that the decision in R v Malinina illustrates that the concept of
the evidential burden is in desperate need of clarification. It will be
contended that, ultimately, codification would be the best means of
achieving that end.
Keywords Burden of proof; Lambert; Criminal Codes; Misuse of
drugs; Judicial Studies Board specimen directions
The purpose of this article is to examine the recent case of R v Malinina1
and the concept of the evidential burden, which was an important
feature of the judgment. The law on evidential burdens can appear both
confusing and unclear particularly where, as in Malinina, a defendant
bears an evidential burden (but not a legal burden) in relation to a
defence.
There are very few discussions of the burden of proof that do not refer
to the Criminal Law Revision Committee’s Eleventh Report on Evid-
ence.2In its report, the Criminal Law Revision Committee3stated that it
was ‘strongly of the opinion’ that when an onus of proof was imposed
on a defendant that burden should be evidential only. An important
reason for this recommendation was to avoid the potential for juries to
become confused by, what could be regarded as, a complicated direction
on the different standards of proof.4This recommendation has fre-
quently been referred to in the case law and is transparent in the leading
case of R v Lambert.5
In Lambert6this desire to avoid confusing juries was considered to be
a sound reason for ‘reading down’, in accordance with s. 3(1) of the
* Senior Lecturer, University of Wolverhampton, School of Legal Studies; e-mail:
R.Glover@wlv.ac.uk.
I am most grateful to Roderick Price, counsel for Malinina, and Steve Griffin, for
their assistance with this article. Responsibility for the finished piece and for the
ideas expressed in it is, of course, mine alone.
1 [2007] All ER (D) 341 (Dec), [2007] EWCA Crim 3228.
2Evidence (General), Cm 4991 (1972).
3 Hereafter ‘CLRC’.
4 CLRC, Evidence (General), Cm 4991 (1972) para. 140(v). That is, that the
prosecution must prove matters ‘beyond reasonable doubt’, while the defence
proves matters ‘on the balance of probabilities’: Miller vMinister of Pensions [1947] 2
All ER 372 at 373–4, per Lord Denning.
5 [2001] UKHL 37, [2002] 2 AC 545.
6 [2002] 2 AC 545 at 586, per Lord Hope.
305The Journal of Criminal Law (2008) 72 JCL 305–312
doi:1350/jcla.2008.72.4.512
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