Burden & standard of proof
The general rule is that the prosecution bears the legal burden of proving guilt to the criminal standard. Limited exceptions place a burden on the defendant, usually to the civil standard.
What "Burden & standard of proof" covers
- The prosecution bears the legal (persuasive) burden of proving all elements of the offence (Woolmington v DPP - the 'golden thread').
- The criminal standard is proof so that the tribunal is sure (beyond reasonable doubt).
- The defendant generally bears only an evidential burden to raise a defence (e.g. self-defence), which the prosecution must then disprove.
- Certain defences impose a legal burden on the defendant, discharged on the balance of probabilities (e.g. insanity, and diminished responsibility under s.2 Homicide Act 1957).
- Statutory reverse burdens exist but must be compatible with the presumption of innocence in Article 6 ECHR; courts may read an apparent legal burden down to an evidential one (Lambert; Sheldrake).
- Where the defendant bears a legal burden the standard is the balance of probabilities, never the criminal standard.
- The tribunal must be directed clearly on who bears the burden and to what standard for each issue.
Key cases & statutes
The authorities and provisions most likely to matter for this subtopic:
How it's tested in SQE1
SQE1 uses single best answer questions: a short factual scenario, one precise question, and five options of which only one is the best answer on the law applied to the facts. For burden & standard of proof, expect to be asked what the correct legal position is, what a party may or must do, or which outcome follows — with more than one option looking arguable. Reading the facts carefully and eliminating the near-misses is the skill that earns the mark.
Where candidates lose marks
- Applying the criminal standard to a defence burden — where the defendant bears a legal burden it is discharged on the balance of probabilities.
- Confusing the evidential burden (raising an issue) with the legal burden (proving it).
- Assuming every statutory reverse burden is a full legal burden — courts may read it down to an evidential burden under Article 6.
Learn this subtopic in the course
A video lesson, notes and exam-style practice on burden & standard of proof.
FAQ
Is burden & standard of proof tested on SQE1?
Yes — burden & standard of proof is part of the SQE1 Criminal Litigation syllabus (FLK2) and can appear in single best answer questions.
How is burden & standard of proof examined in SQE1?
SQE1 tests it by application: you're given a realistic scenario and choose the single best answer from five options. The focus is on using the law correctly, not reciting it — knowing the leading authorities (Woolmington v DPP, s.2 Homicide Act 1957) helps.