REVISED AND UPDATED 5 FEBRUARY 2009

2.1   BURDEN AND STANDARD OF PROOF

ALWAYS GIVE THESE DIRECTIONS AT THE OUTSET OF THE SUMMING UP, EVEN IF YOU INTEND TO INCORPORATE THEM IN SPECIFIC DIRECTIONS LATER IN THE SUMMING UP.

BURDEN

"The prosecution must prove the defendant's guilt. He does not have to prove that he is innocent." ⁽¹⁾

STANDARD

"The prosecution must prove that the defendant is guilty beyond reasonable doubt.⁽²⁾

Proof beyond reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based upon your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand you think that there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty. ⁽³⁾

You will note that I have referred to the prosecution's obligation to prove its case beyond reasonable doubt. That does not mean that every peripheral fact has to be established up to this standard, in other words every I does not need to be dotted and every T crossed. What has to be proved is the body of material facts which make up the charge against the defendant.” ⁽⁴⁾

NOTE

⁽¹⁾   If an issue arises as to which the defendant bears the ‘legal’ or ‘persuasive’ burden of proof, but not where the defendant bears only an ‘evidential’ burden, the following is appropriate.

"If the prosecution has not proved beyond reasonable doubt that the defendant has (set out what the prosecution must prove) that is the end of the matter and you must find the defendant not guilty. But if, and only if, you are satisfied beyond reasonable doubt of those matters, you must go on to consider whether the defendant (had a reasonable excuse etc.) for what he did. That is for him to prove on all of the evidence by showing that it is probable, that is more likely than not, that he (had a reasonable excuse etc.) for doing it. If you conclude that probably he did have a (reasonable excuse etc.) you must find him not guilty. If you do not find that, then, providing that the prosecution has proved beyond reasonable doubt what it has to prove, you must find him guilty."

⁽²⁾   The traditional phrase "beyond reasonable doubt" is used throughout these specimen directions in preference to "sure", having been used in Article 74(2) of the Police and Criminal Evidence (NI) Order 198

⁽³⁾   This passage is taken from the model instruction proposed by the US Federal Judicial Centre and approved by Justice Ginsburg in the Supreme Court decision in Victor -v- Nebraska, 611 U.S.1 (1994) at p.27.

⁽⁴⁾   Although this may not be necessary in simple cases, it may be helpful in other cases, especially those which involve circumstantial evidence.

⁽⁵⁾   If in an exceptional case the jury ask for an explanation of a reasonable doubt, in Walters v R [1969] 2 AC 26, approved in R v Gray 58 Cr. App. R. 177 at 183, the Privy Council upheld the following direction by the trial judge ‘A reasonable doubt is that quality and kind of doubt which, when you are dealing with matters of importance in your own affairs, you allow you to influence you one way or the other’. However, this explanation should only be provided in exceptional cases and it is unwise to attempt any further explanation.

ARCHBOLD 2010: 4-384 to 385

BLACKSTONE 2010: F3.39