The Burden of Proof in English Law

If you are studying through the Institute of Legal Secretaries and PAs, you will learn that the burden of proof in Criminal Law cases is set considerably higher than in other areas of law. In fact, there is a requirement for the Crown to prove a case against the defendant beyond all reasonable doubt.

In contrast, with civil cases, which make up the vast majority of legal cases and work dealt with in England, the burden is on the claimant to prove his or her case on the balance of probabilities.

The wording really does say it all here, ‘On the balance of probabilities’ conjures up a vision of a pair of scales in one’s mind. If you could imagine placing a 49g weight on one side of the scales and then a 51g weight on the other, it is obvious which way the scales will eventually tip: just that tiny difference in weight means that the scales will tilt in favour of the 51g weight. Metaphorically speaking, this is a good way of picturing how our justice system works in the realm of civil law.

However, with criminal law, when an individual may face a criminal record, punitive sanctions and even the possibility of losing his or her freedom, would such a whimsical difference be fair? Our legal system believes not, and this is why the burden of proof to show that a defendant is guilty of the charge brought against them beyond all reasonable doubt is weighted at far more than the 1% difference you would need to prove in civil law. You would probably be talking about the Crown having to convince a jury by a figure of around 95% plus.

Whilst we accept the two classifications for the burden of proof and believe they tend to work pretty well in our legal system, it is interesting to note that there are certain areas of our law where these standards have become somewhat confused. In fact, the case of The Solicitors Regulation Authority v. Solicitors Disciplinary Tribunal [2016] EWHC 2862 (Admin) proved to us that two separate bodies, broadly connected with the same legal objectives, may be working on contrasting burdens of proof.

In this case, it was highlighted that the SRA (Solicitors Regulation Authority) works under the civil law standard; however, the SDT (Solicitors Disciplinary Tribunal) strangely works under the criminal law standard. It would appear that a number of judges have expressed their concern over this confliction and are calling for a re-evaluation to be made as soon as possible. They firmly believe that the contrasting burden of proof requirements between these two very similar bodies is unworkable.

For the most part, if you study Criminal Law through the Institute, you should not be too concerned with any conflictions in the burden of proof. Indeed, your chances of encountering such an issue will be very remote. With this in mind, it should be very easy to get to grips with the specific burden of proof that would need to be shown in any case that may be before you.

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