5 key things to understand about evidence in an important trial

5 Key Things About Evidence

1.  Understand the ‘burden’ of proof –  one of the parties has the task of proving the case. 

There are two kinds of burden of proof.

  • The legal burden (sometimes called the persuasive burden) which falls on the person or party that has to prove their case;
  • The evidential burden is the task of producing the evidence to prove the case.

 The legal burden

  • In Civil Cases, not criminal, the plaintiff has the legal burden (the task of proving the case). The ‘onus’ (responsibility) is on the plaintiff who starts the case, to prove facts or issues in the case to the required standard of proof. 
  • In Criminal Cases the Crown Prosecution Service has the legal burden of proof.   Criminal cases, prosecuting someone for an alleged crime, are usually brought by the Crown Prosecution Service.  

 The evidential burden

  • In Civil Cases the plaintiff needs to provide evidence to support their claim. The plaintiff has the ‘burden’ of producing sufficient evidence to prove their claim. To do this they will need to:
      • Show that the defendant committed the acts complained about and the consequences of those actions;
      • Show the defendant is responsible for the harm the plaintiff suffered as a result of those actions.

But sometimes the evidential burden shifts to the defendant. For example, in a discrimination case (for example an employment tribunal case) the claimant has the burden of proof to show the defendant treated treated them differently to others in a similar position on the basis of a protected characteristic namely:  

        • Age; 
        • Disability; 
        • Gender reassignment; 
        • Marriage and civil partnership; 
        • Pregnancy and maternity;
        • Race;
        • Religion or belief;
        • Sex; and 
        • Sexual orientation. 

If the claimant proves this, then the burden of proof shifts to the defendant who has to then show that there was a legitimate and reasonable explanation for the differential treatment.

  • In Criminal Cases it is the Crown Prosecution Service who has the ‘burden’ of proving that a crime was committed by the defendant. To do this, they rely on the police to collect evidence.

Coping with the limitations of the police

There have been complaints that the police fail to tackle some crimes effectively.  If you are the victim of a crime you should always make records to support your case and use these to keep the police on their toes. In cases such as coercive control or stalking your records will usually be crucial to showing a course of conduct amounting to a crime.

If you keep good records of what’s happening to you over time, you can share your records with the police and not have to rely on your memory of events or on the police officer writing a completely satisfactory statement.  The police may struggle to include all the information available because they’re overwhelmed with work.

If you make records as soon as possible on each occasion, it puts you in a far better position as the records will be more credible the sooner they are made after the event. The police will pass your file to the Crown Prosecution Service to make a decision about whether they will charge the suspect and what the charges will be.  Good detailed records will help to persuade them that they have a case they can win. 

There are lots of concerns and complaints about the way in which the police have taken less interest in solving certain crimes like theft and burglary whilst concentrating on others like hate crime. That makes it even more imperative to protect yourself by gathering your own evidence. For an example of taking action yourself, see our video: Stalking: Don’t rely on others to make your case


2. Understand the

standard of proof

Whether it’s a criminal matter or a civil case it is the responsibility of the Court (which means the magistrates or judge, or the jury if there is one) to make the decision that the evidence has met the required standard of proof.  It must be clear that the Court has applied the correct test of the evidence.  Failure to apply the correct test of the evidence can give rise to a ground of appeal against conviction. In the Crown Court, the evidence that the correct test has been applied derives from the judges summing up of the evidence and the directions the judge gives to the jury to help it apply the law to the facts. 

Civil Cases

In civil cases the standard of proof is the balance of probabilities. The plaintiff must prove that it is more likely than not to have occurred in order to obtain judgment in their favour.

Criminal Cases

In criminal cases the Crown must prove the accused’s guilt beyond reasonable doubt. This is the high standard of proof that the Crown must achieve before a conviction and the words mean exactly what they say — proof beyond reasonable doubt.

3.  Understand what has to be proved

All the ‘elements’ of a crime or civil claim have to be proved, starting with proof that the defendant is responsible. The ‘elements’ are the:

  • key acts;
  • omissions;
  • states of mind; and
  • circumstances.

It is essential that you conduct research to find out what these terms mean legally and to form a view about whether they could be proved in your case.

Once you have identified the elements you have to prove, you then know the kind of evidence you have to gather. 

See our video: What to record and where to find guidance  

The CPS website is very helpful in defining the legal meaning of these ‘elements’.  It’s where all the prosecutors go to find out what they need to prove.  Taking theft as an example, if you look at https://www.cps.gov.uk/legal-guidance/theft-act-offences you will find lots of guidance. 

Using theft as an example, the elements that would have to be proved are: 

  • The property, for example a car that was stolen, existed; 
  • The car belonged to you. In the case of a car remember the Driver Vehicle Licensing Agency make a clear statement on the V5 logbook that the document is not proof of ownership. This means the DVLA registered keeper is not always the legal owner of a car. In fact the buyer is the individual who owns a car and that may or may not be the registered keeper with DVLA;
  • The property was taken; 
  • You did not consent;  
  • The property was taken with intent to permanently deprive you of it, by the thief.

We also have a useful advice page for gathering evidence and proving theft.

4.  Understand how to gather the evidence

Once you know what you need to prove, you need to gather evidence to show that the crime or civil action was committed. So in the case of your stolen car, you can use the purchase invoice as evidence of ownership. You can make a statement to say: 

  • When you bought the car;
  • That you parked it outside your house on the driveway on the day in question after returning from work and that you locked  it;
  • It was outside your house when you went to bed but missing when got up the next day;
  • You hadn’t given anyone permission to use it or take it from you permanently;
  • Your CCTV recording shows a man, whose face is easy to see, taking the car late that night. 

Collecting evidence takes time and may involve contacting people such as witnesses or experts. If you need to prove a course of conduct, in a case such as domestic abuse or stalking, it involves persistence and determination as you have to keep records every time something happens to prove a pattern of behaviour. 

ONRECORD helps you gather evidence. It prompts you through a process of recording a written record and uploading evidence you have in support of what you’re saying.

5.  Understand where your case will be heard and who will decide it

In England and Wales civil cases are mainly dealt with in the County Court or, in more substantial or complex cases, the High Court. They can range from quite small or simple claims, for example damaged goods or recovery of debt, to large claims between multi-national companies.

Magistrates (not legally qualified) hear the evidence in over 95% of criminal cases and make a decision on guilt or innocence.

For more serious cases a district judge (a lawyer) in the Magistrates’ Court or a circuit judge (a more senior lawyer) in the Crown Court together with a jury will hear evidence.  The jury will decide on guilt or innocence.

Very serious criminal cases, such as murder and rape, may be heard by a High Court judge. The legal burden in criminal cases is generally on the prosecution.

If the defendant pleads ‘not guilty’, the prosecution has to prove all aspects of the offence including:

  • The identity of the defendant;
  • The nature of the act;
  • The existence of any required knowledge or intent;
  • And disproving any defences the defendant puts up. This includes proving negative aspects of an offence, such as lack of consent in rape.

It is for the magistrates or a jury in the Crown Court to decide whether the burden has been carried successfully.

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