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Burden of Proof

By: Louise Smith, barrister - Updated: 8 May 2018 | comments*Discuss
 
Burden Of Proof innocent guilty

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.

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tina - Your Question:
Hi my boyfriend was arrested back in october for assult section 18. He is not on bail just pending further investigations. We are awaiting to hear from court.I was walking my dog when a drunk man started yelling and offending me and threatening to kill me and my dog told the guy to go home. when I got home I told my boyfriend about it and the next thing the drunk guy comes outside our rear garden with a huge kitchen knife swinging it around and yelling I will kill you now! When my boyfriend saw this he quickly told me to go inside the house and call the police. At this stage the guy swings the knife at my boyfriend. Scared for his and my life my boyfriend kicks the guy and apparently breaks 6 ribs of his. When the guy was on the floor my bf came back home and called for ambulance. We were waiting 45 mins for the police to arrive!! As far as I am aware the guy was also arrested for threats to kill and using a weapon.My boyfriend got a call from his solicitor stating that he has been charged with section 18 and we are awaiting trial. My bf never had any problems in the past and he did this to protect us.What are your views on this?

Our Response:
We can't really give an opinion on individual cases especially where we only have one version of events.
ProtectingYourself - 9-May-18 @ 11:21 AM
Hi my boyfriend was arrested back in october for assult section 18.He is not on bail just pending further investigations. We are awaiting to hear from court. I was walking my dog when a drunk man started yelling and offending me and threatening to kill me and my dog told the guy to go home. when I got home I told my boyfriend about it and the next thing the drunk guy comes outside our rear garden with a huge kitchen knife swinging it around and yelling I will kill you now! When my boyfriend saw this he quickly told me to go inside the house and call the police. At this stage the guy swings the knife at my boyfriend. Scared for his and my life my boyfriend kicks the guy and apparently breaks 6 ribs of his. When the guy was on the floor my bf came back home and called for ambulance. We were waiting 45 mins for the police to arrive!! As far as I am aware the guy was also arrested for threats to kill and using a weapon. My boyfriend got a call from his solicitor stating that he has been charged with section 18 and we are awaiting trial. My bf never had any problems in the past and he did this to protect us. What are your views on this?
tina - 8-May-18 @ 8:03 AM
The police can arrest someone if they suspect someone of committing an offence. The investigation following this is to prove or disprove your husbands involvement
Plant87 - 30-Nov-16 @ 12:35 PM
@lou - they will be investigating the details - he was there and he was involved in physical contact with the perptrator (even if it was only splitting them up).
ProtectingYourself - 4-Feb-15 @ 11:00 AM
My husband was arrested this morning for GBH. The fact of the matter is that his friend was being harassed and followed by a group of people who wanted a fight. His friend punched the person twice consequently knocking him out and he fell to the floor and hit his head on the curb. He is now in serious condition in the hospital. My husbands friend was arrested first (not sure of the charge) but approx an hour later police came back arrested my husband and another friend for GBH. He has now been in police custody for 12 hours. My husband told me that he did not hit the person, he was trying to keep the peace. So for what reason could the police have arrested my husband for GBH and are they allowed to do that knowing that he wasn't the one who threw the punches.
Lou - 31-Jan-15 @ 5:13 PM
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