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The burden of proof can be subdivided into a legal and evidential burden. A party has the legal (sometimes called ‘the persuasive’) burden where the onus is on that party to prove a fact or issue in a case to the required standard of proof.

In a criminal trial, the legal burden is on the prosecution to satisfy the tribunal of fact that the defendant is guilty of all of the elements of the offence beyond reasonable doubt. The two main exceptions to this are where insanity is raised as a defence or where there are statutory provisions imposing a legal burden on the defendant, which can be either express or implied.

The evidential burden in a criminal trial is the obligation on the prosecution or defence to adduce sufficient evidence on an issue such that it may properly be left to the jury. In relation to some defences, the evidential burden is on the defence.

See Practice Note: Burden and standard of proof in criminal proceedings which explains the burden and standard of proof in criminal law. In particular, it deals with the legal burden of proof, exceptions