A legal burden is one where there is an obligation to prove, which is a heavy responsibility and would generally reside on the prosecution. A judge would direct a jury as to the burden of proof and failing so or giving an incorrect direction would result in a quashed conviction. An evidential burden on the other hand is a much lighter burden, where it requires the accused to merely raise the defense, rather than to prove it.
As well as the general rule created by Viscount Sankey, there were exceptions as well, where the legal burden has been shifted to the accused to prove his defense on a balance of probabilities.
The two exceptions given by Viscount Sankey are that the defense of insanity and statutory reversals. The defense of insanity will require the application of the McNaghten Rules if it is alleged by the accused, which will have to prove the rules in McNaghten with a legal burden on a balance of probabilities. If insanity is being purported by the prosecution, the case on point would be Robertson , where the accused was said to have punched his mother to the ground and stamped on her head and thigh whilst wearing heavy boots or shoes. Here, the burden on the prosecution is a legal one, to satisfy the jury be...
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...narily favor the defendant and the burden of proof carried by the prosecution is heavy, but not absolute. The reverse persuasive burden requires the defendant to prove his innocence. It strongly shifts the balance in favor of law enforcement. It can be expected to bring more convictions, but also more convictions that are possibly erroneous. To be compatible with the presumption of innocence, this readjustment must be justified.
It can be said that the rule in Woolmington and Art 6(2) of the ECHR carry the same meaning – the presumption of innocence. However, Art 6(2) seems to outweigh the rule in Woolmington as it is apparent that it had made a bigger impact. It is submitted that the difference between both authorities are that Woolmington carries a common law rule whereas Art 6(2) carries a more statutory value as it is reinforced by the Human Rights Act 1998.
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