BURDEN OF PROOF IN SCOTTISH LAW

Burden of Proof in Scottish Law

Burden of Proof in Scottish Law

Introduction

This paper is based on the topic of “Burden of Proof” in Scotland's Law. The common law and the criminal justice law is very different in Scotland as compared to England and Wales, but the British jurisdiction does apply to the Scottish laws.

Criminal law and procedure in Scotland is different from the rest of the United Kingdom. The main difference is that Scots criminal law in particular common law tradition is based, while in many countries, which contain most of criminal law in the statutes (www.criminal.lawyers.com). What this means in reality is that most Scots criminal law relies for its authority on the previous decisions of the courts and the works of respected lawyers and not to acts of Parliament.

Criminal law is the main means by which the government defines and criminalises conduct that is to be false, the damage to individuals or society as a whole or otherwise unacceptable (www.ec.europa.eu). Criminal Justice is the mechanisms by which measures are taken to commit these crimes are suspected address. Criminal justice applies to the entire process, from preliminary investigation of a crime before his acquittal or conviction and punishment in the criminal courts. Criminal Procedure Code also contains a sentence that the offender is.

Discussion

In most cases, everyone has heard it said that "innocent until proven guilty." This is a fundamental principle of criminal law on the merits with respect to the burden of proof. The burden of proof is the duty of a party, the case to a judge or jury to convince them that their version of the facts is true. The accused is not obliged to prove his innocence because the burden of proof lies with the prosecution (www.berksweb.com). The burden of proof is much higher than in criminal matters, civil matters, often because the defendant faces time in prison and the loss of many civil liberties.

Many criminal statutes require proof of a specific mental state, such as intent, depraved indifference, recklessness, or negligence. Here too the prosecution bears the burden of proof. Thus, where a crime is defined to include a particular state of mind, and the prosecution fails to prove that the defendant acted with that particular mental state, the defendant must be acquitted, or convicted of charge conforming to the form of mens rea that is proven. To put it another way, lack of the requisite mens rea is always a defense to a criminal charge. For example, if a defendant is charged with intentional murder, and the prosecution is able to prove only recklessness (i.e., that the defendant did not intend to kill, but knew that he or she was placing the victim's life at risk), the defendant is guilty of manslaughter, not murder.

Usually when the defendant raises the defense of prosecution evidence, and there is evidence to support it, the burden on the prosecution to disprove it. If the defense highlighted the positive defense (self-defense, the seizure, coercion, ...