Burden of Proof

It is a basic principle of the law of England and Wales that a person is innocent until proven guilty. If a person who is prosecuted for a crime pleads not guilty the Prosecution will have to prove that he did what he has been accused of. In most cases this will involve the Prosecution proving both that the individual carried out the physical acts that make up the crime and that his mental state was such that he intended to carry out those acts.

Has a Crime been Committed?

Tom Brown was out late one night when he got into a fight with another man. Tom punched the other man three times in the face and the man's jaw was broken. The police arrive while Tom is standing over the man and he is arrested for assault. Tom protests that it is not fair because the other man had chased him, and said that he had a knife and was going to use it.

The Charge - GBH

Because the man's jaw was broken, Tom is charged with an offence under section 18 of the Offences Against the Person Act 1861. This states that an offence is committed where a person unlawfully causes grievous bodily harm to someone else and that they intended to cause some grievous bodily harm.

Tom pleads not guilty and insists that he was acting in self-defence.

The Prosecution Case

In order to secure a conviction the Prosecution will have to prove that:

• Tom unlawfully did something which lead to another person suffering grievous bodily harm; and,
• When Tom carried out the act he intended to cause grievous bodily harm.

The Prosecution will have to provide the jury with enough evidence to prove both elements of the offence: that Tom did what he is meant to have done and that when he did it he meant to hurt the other person.

The Burden of Proof

In criminal cases the Prosecution has to prove that the accused is guilty "beyond reasonable doubt".

Precisely what "beyond reasonable doubt" means has been the subject of much argument in the courts. The usual definition is that it means that a jury must be sure, or satisfied that they are sure, before finding an accused guilty. It is sometimes said that the jury should not find someone guilty unless they are as sure as they would want to be before making a decision relating to their personal finances.

If the Prosecution fails to provide enough evidence for a jury to be sure that an accused is guilty they should be found not guilty. However, there may be cases where the Prosecution does provide enough evidence of an accused's guilt but there is a defence available which either excuses them from the offence or renders lawful what would have been unlawful.

The Case against Tom

The Prosecution quite easily prove that Tom did something that caused grievous bodily harm - several witnesses saw him punch the other man and Tom admitted it himself. In his statement to the police Tom also said that he wanted to hit the man until he was in no state to fight back. This should make the jury sure that both elements of the offence have been satisfied.

Evidence of Self-Defence

Tom has always insisted that he acted in self-defence. To rely on this, Tom will have to give a version of events that suggest that he was acting in self-defence.

Tom says that he was on his way home from the station when the other man shouted at him. Tom says that the other man started shoving him and threatening him. The other man said that Tom should hand over his wallet because he had a knife and would use it.

Tom has done enough simply by setting out a series of facts that could, in law, amount to self-defence. He does not have to prove that he was acting in self-defence.

Disproving Self-Defence

To ensure a guilty verdict the Prosecution will now have to disprove the defence. The jury cannot find someone guilty unless they are sure that:

• Tom did what the Prosecution said that he did; and, that
• Tom was not acting in self-defence when he did it.

If the jury have any real doubts on either of these points they should find Tom not guilty. Therefore even if the jury just thinks that Tom might have been acting in self-defence the burden of proof will not have been satisfied by the Prosecution and he must be found not guilty.

Self-defence has the effect of making an unlawful act, such as assault, lawful or excusable. Therefore, as a matter of law, GBH has not been committed.