Post on 23-Feb-2023
In a criminal case, the legal burden of proof normally rests
with the Crown, which will have to prove the accused’s guilt to
the jury or the magistrates beyond reasonable doubt. The term
‘burden of proof’ is connected with the general proposition that
in legal proceedings the axiom is: “He who asserts must prove.”
However, in legal proceedings we need to identify two separate
meanings of ‘burden of proof’ and then to distinguish them from
the expression ‘evidential burden’ with which they are too often
conflated. The legal burden of proof is the obligation on a party
to prove what is alleged. For example, if the prosecution alleges
the defendant is guilty of rape or murder or theft that is what
must be proved at the end of the day. Evidential burden is where
the party has the obligation to adduce to make some matter a live
issue in the trial. According to Clarke L.J in Sheldrake v DPP1
discharging the evidential burden means: ‘… demonstrating by
evidence. As I see it the evidence can be given by the
prosecution or the defence. It might take the form of something
said by the defendant or anyone else in the witness box provided
1 [2004] All ER(D) 169
in each case that it is put in evidence.’2 In the case of AG’s
Reference (No 4 of 2002)3, Lord Bingham mentions to the phrase as a
‘burden of raising’ an issue in the trial as oppose to a ‘burden
of proof’ simpliciter: ‘An evidential burden is not a burden of
proof. It is a burden of raising, on the evidence in the case, an
issue as to the matter in question fit for the prosecution to
prove, beyond reasonable doubt. ‘4
The significance of the burden and standard of proof in any
criminal case is impossible to understate. They are the
fundamental principles that govern all criminal trials and
establish who bears the burden of proving a defendant’s guilt.
In criminal cases the fundamental rule is that the prosecution is
required to prove all the elements of the offence to the
satisfaction of the jury or tribunal of fact. Probably the most
celebrated principle of English criminal law is that the accused
is initially presumed innocence. The basic rule was laid down by
Viscount Sankey LC in Woolmington v DPP5. This rule is also known
2 Huxley, P. (2008). Burden of Proof. In Evidence: The fundamentals : evidence (p. 14).London: Sweet & Maxwell.3 [2005] 1 AC 2644 Charanjit, L., & Mohamed, R. (2014). The Law of Evidence. In Unlocking: Evidence (2nd ed., p. 26). Routledge.5 [1935] AC 462.
as the ‘golden thread’ where it is the duty of the prosecution to
prove the prisoner’s guilt, if, at the end of and on the whole of
the case, there is a reasonable doubt, created by the evidence or
the prisoner, as to whether the defendant had committed the
offence with which he was charged, the prosecution has not made
out the case and the prisoner is entitled to an acquittal.6
Another way of expressing the principle is that there is an
automatic presumption of innocence in favour of the accused. This
principle has been affirmed in Art 6(2) of the European
Convention on Human Rights and in Art 14(2) of the International
Covenant on Civil and Political Rights, but is an integral part
of the common law. Thus, English law does not merely presume
defendant innocent, but it also insists upon the prosecution
discharging a heavy onus before accused persons can be adjudged
guilty. In Hobson7, the court said that, ‘it is a maxim of
English law that ten guilty men should escape rather than one
6 Perrins, G. (2014, July 30). Burden of Proof (Criminal). Retrieved November 10, 2014, from http://login.westlaw.co.uk/maf/wluk/app/document?&srguid=ia744c09700000149a3f016d4f2b92375&docguid=I6CBD3BE0640211E388A29FD974DC01EE&hitguid=I6CBD3BE0640211E388A29FD974DC01EE&rank=1&spos=1&epos=1&td=3&crumb-action=append&context=44&resolvein=true7 (1823) 1 Lew CC 261.
innocent man should suffer’. This article of faith was
emphatically endorsed in the case of Woolmington8. In the
resounding words of Viscount Sankey LC, ‘No matter what the
charge or where the trial, the principle that the prosecution
must prove the guilt of the prisoner is part of the common law of
England and no attempt to whittle it down can be entertained9.’
The Woolmington principle puts to rest any doubt as to the
appropriate starting point in criminal prosecutions. This is the
‘golden thread’ theory that the prosecution bears the legal
burden of proof.
However, this was made subject to the common law “defence of
insanity, and also to any statutory exception10”, and the
category of statutory exceptions is now considerable. There have
been challenges to the idea that it is ever just to place a legal
burden of proof on defendant. Paul Roberts from Balliol College,
Oxford put forward that placing the burden of proof on the
prosecution restricts ‘the power of the state to intervene in the
lives of individuals and their families in the far-reaching and
8 [1935] AC 462.9 Woolmington v DPP [1935] A.C. 462, at 481-2. 10 Ibid. , at 481.
sometimes catastrophic ways sanctioned by the machinery of
criminal justice’. 11 The 11th Criminal Law Revision Committee
strongly suggested that burdens on the defence should be
evidential only. They highlighted that in the typical case under
the existing law, where the essence of the offence is that the
offender has acted with blameworthy intent and the defence that
the defendant must prove is that he acted innocently, it was
‘repugnant to principle’ that a court, left in doubt as to the
defendant’s intent, should be bound to convict.
The only common law defence to the ‘golden thread’ or so-
called Woolmington principle is insanity. This principle is laid
down in Woolmington v DPP12 by Viscount Sankey LC. The reason for
this exception lies in the advisory opinion of the judges in
M’Naghten’s Case13. It was supposed by the judges that the accused
ought to bear the legal burden of proving insanity. Under the
M’Naghten rule, where the accused plead insanity, he bears the
persuasive which is discharged on a balance of probabilities;
where the prosecution raises the defence, they must then prove it
11 Roberts, 1995, p 785. 12 [1935] AC 46213 (1843) 10 Cl & Fin 200.
beyond reasonable doubt. It must be noted, however, that where
the accused’s defence involves the pleading of issues such as
non-insane automatism, provocation, self-defence, duress, and
belief in lawful authority and mechanical defect, he bears the
evidential burden and the onus of disproving them rests on the
prosecution.
In the year 2000, there are at least twenty-nine statutory
exceptions to the Woolmington principle were in force casting the
burden of proof on the defendant.14 Homicide Act 1957, s 2(2),
which defines the defence of diminished responsibility, states
that: ‘On a charge of murder, it shall be for the defence to
prove that the person charged is by virtue of this section not
liable to be convicted of murder.’15 The language of this section
plainly suggests that it is for the defendant to establish on a
balance of probabilities that he was suffering from diminished
responsibility at the time of commission of his offence.
Similarly, by looking at the Prevention of Corruption Act 1916,
s.2, enacts: ‘where in any proceedings for an offence under the
14 Murphy, P. (2009). Burden of Proof: The Two Burdens. In Murphy on evidence. Oxford: Oxford University Press.15 Homicide Act 1957, s 2(2)
Prevention of Corruption Act 1906 or the Public Bodies Corrupt
Practices Act 1889, it is proved that any money, gift, or other
consideration has been offered or received by a person in the
employment of His Majesty or any Government Department or a
public body such money, gift or consideration shall be deemed to
have been paid or given corruptly unless the contrary is proved.’
16 From the act we can know that this provision distresses an
element of the offence, namely, corruption or corrupt payments.
Thus, a multitude of other statutory enactments have achieved the
same.
At this point, we shall ask ourselves a question: Is
presumption of innocence under Art 6(2) compatible with the
express burden of proof? As we can see, there is no clear and
certain answer to this question. However, we should take
consideration of the issues surrounding the Human Rights Act 1998
as well as some of the jurisprudence of the ECHR. Nevertheless,
the effect of the presumption was considered by Lord Hope of
Craighead in R v DPP ex p Kebeline and Others17. After confirmed that art
16 Prevention of Corruption Act 1916, s.217 [2000] 1 Cr App R 275, pp 321-33.
6(2) as wholly consistent with the common law as stated by
Viscount Sankey in Woolmington, he then said, as Viscount Sankey
had recognized, it has always been open to Parliament, by way of
a statutory exception, to transfer the burden of proof on a
particular issue from the prosecution to the defendant.18
However, the implement of Human Rights Act 1998 changes this, and
it applies to all legislation, whether before or after the Act.
Under s 3(1) of HRA 1998 if the court decides a statutory
provision is incompatible with art 6(2) its primary duty is to
‘read and give effect’ to it in a way which makes it compatible.
In the case of Ghaidan v Godin-Mendoza19, a process known as ‘reading
down’ was used, that s 3 has a remedial function and that there
is no limit to the words that can be read in or out of a
provision. Later, Lord Bingham held that this important statement
is then applicable to all areas of law even though it may appear
to run directly contrary to what Parliament ‘intend’20 as per AG’s
Reference (No. 4 of 2002).21 His lordship then further comment: ‘the
18 Allen, C. J. (2008). Burden and Standard of Proof and Presumptions. In Practical guide to evidence (4th ed., p. 161). London: Routledge-Cavendish.19 [2004] UKHL 30.20 Huxley, P. (2008). Burden of Proof. In Evidence: The fundamentals : evidence (p. 23). London: Sweet & Maxwell.21 [2004] UKHL 43.
court is never to decide whether a reverse burden should be
imposed on a defendant, but always to assess whether a burden
enacted by Parliament unjustifiably infringes the presumption of
innocence.’22 However, Lord Hope emphasized that even if the
court decides that a particular provision breaches the
presumption of innocence, this will not lead inevitably to
incompatibility with art 6(2).
In the leading case of Salabiaku v France23, the applicant was
convicted of smuggling prohibited goods under Article 392(1) of
the French Customs Code.24 The Code contained a provision
shifting the burden of proof. In this case, the Code itself did
not qualify the presumption and appeared to lay down an
irrebuttable presumption of guilt. An analysis of French case law
also showed: ‘… that the courts enjoy a genuine freedom of
assessment of evidence and the accused could be afforded the
benefit of the doubt, even though the offence appeared to be
effectively one of strict liability.’25 By looking at the22 Huxley, P. (2008). Burden of Proof. In Evidence: The fundamentals : evidence (p. 24). London: Sweet & Maxwell.23 (1998) 13 E.H.R.R. 379.24 Lewis, P. (2000). Human Rights 1998. The Human Rights Act 1998: shifting the
burden.25 Ibid.
‘reading down’ the burden of proof from ‘legal’ to ‘evidential’,
Lord Hope then opined: “Statutory presumptions which placed an
“evidential” burden on the accused, requiring the accused to do
no more than raise a reasonable doubt on the matter with which
they deal, do not breach the presumption of innocence. They are
not incompatible with Article 6 (2) of the Convention.”
Some statutory provisions allow the presumption of knowledge
once primary facts are proved. For example in R v Lambert, the
defendant was charged with possession of a controlled substance
contrary to s. 5(3) of the Misuse of Drugs Act 1971. He pleaded
the defence under s 28(2), which said: ‘it shall be a defence for
the (defendant) to prove he neither knew of nor suspected nor had
any reason to suspect the existence of some fact … which is
necessary for the prosecution to prove…’26 Once the prosecution
proves the primary facts of (i) possession and (ii) controlled
substance the defendant will be guilty unless he brings himself
within the ambit of s 28. Yet, not every statutory provision we
26 Huxley, P. (2008). Burden of Proof. In Evidence: The fundamentals : evidence (p. 25). London: Sweet & Maxwell.
shall encounter in this part of law involve presumption of either
facts or law.
Besides that, there are amount of cases where an enactment
may be construed as impliedly imposing a legal burden on the
accused. Section 101 of the Magistrates Courts Act 1980 laid down
the general principle in respect of summary offences: ‘Where the
defendant … relies for this defence on any exception, exemption,
proviso, excuse or qualification,… the burden of proving [that
defence] … shall be on him.’27 This is potentially a very broad
provision. Lawton LJ explained in Edwards28 that: “… Whenever the
prosecution seeks to rely on this exception, the court must
construe the enactment under which the charge is laid. If the
true construction is that the enactment prohibits the doing of
acts, subject to provisos, exemptions and the like. Then the
prosecution can rely upon the exception.” 29 In R v Hunt30, the
House of Lord held that s 101 reflects the common law. Therefore,
the mode of trial makes no difference to the process of deciding
whether the provision should be construed to impose a reverse27 Magistrates Court Act 198028 [1975] 1 QB 27.29 Edwards [1975] 1 QB 2730 [1987] 1 All E.R. 1.
burden of proof by implication.31 Moreover, the House also said
that a reverse proof of burden might be implied where the
‘construction’ approach does not resolve the issue. Though
Parliament must not be taken lightly to have placed impliedly the
proof burden on a defendant, policy considerations, including
both the seriousness of the offence, the mischief at which the
provision was aimed, ease or otherwise of proof, are legitimate
issues for the court to consider.32
In light of Human Rights Act 1998, all occasions involving
reverse burdens of proofs on accused, whether at common law or
expressly or impliedly imposed by statute, are required to be
construed which incorporates the European Convention for the
Protection of Human Rights and Fundamental Freedoms (ECHR). The
potential effect of the HRA 1998 on reverse burden in criminal
cases was first shown in a House of Lord case, R v Lambert.33 In
this case, the 1998 Act was accepted as being potentially radical
in its effect (Lord Slynn).34 Also, Lord Steyn laid down a test
31 Bennion, F. (1988). Statutory exceptions: a third knot in the golden thread?
32 Huxley, P. (2008). Burden of Proof. In Evidence: The fundamentals : evidence (p. 36). London: Sweet & Maxwell.33 [2001] 3 All ER 577.34 R v Lambert [2001] 3 All ER 577.
concerning reverse legal burdens and the duty to ensure a fair
trial were (a) whether the statutory reversal of the burden (b)
whether there is objective justification of the legislative
provision.35 According to Lord Steyn, a reverse burden may be
acceptable where a state prohibits the doing of an act except in
specified circumstances or by specified persons, or with some
license or permission.36 Ian Dennis also proposed that
classification of offences is one of the six elements that may be
taken into account in reaching a decision where the court is
faced with legislation that apparently reverses the burden of
proof. In this case, Lord Clyde said that a strict responsibility
might be acceptable in the case of statutory offences that were
concerned to regulate the conduct of a particular activity in the
public interest.37 Lord Clyde’s approach then adopted by the
Court of Appeal in R v Davies38, where the Court upheld s 40 of the
Health and Safety at Work Act 1974. As Dennis highlighted, the
difficulty in classification of offence as a criterion for
35 Charanjit, L., & Mohamed, R. (2014). The Law of Evidence. In Unlocking: Evidence(2nd ed., p. 26). Routledge.
36 R v Lambert, pp 570-91, 627.37 Stummer, A. (2011). The Presumption of Innocence: Evidential and Human Rights Perspectives.38 [1975] 1 QB 691.
reverse burdens of proof is that the moral quality of regulatory
offences is variable.39
The most leading authorities on the compatibility of reverse
burden provisions with Art 6(2) of the ECHR are two House of Lord
cases: R v Johnstone 40and Sheldrake v DPP41. The defendant in Johnstone
was charged with an offence under s 92 of the Trade Marks Act
1994. Lord Nicholls pointed out that the effect of Art 6(2) must
be confine within reasonable limits, which taken into account the
importance of what is at stake and maintain the rights of the
defence. It is also extremely vital that there is a reasonable
balance between the public interest and the interests of the
individual. By considering the element from Dennis, judicial
deference also plays a role in shifting the proof burden in the
court. Lord Nicholls held that: ’Parliament had the primary
responsibility for deciding as a matter of policy, what should be
the constituent elements of a criminal offence, and courts should
reach a different conclusion from the legislature only where it
was apparent that the latter had attached insufficient importance
39 Lewis, P. (2000). Human Rights 1998. The Human Rights Act 1998: shifting the burden.40 [2003] UKHL 28, [2003] 1 WLR 1736.41 [2004] UKHL 43, [2005] 1 AC 264.
to the individual’s fundamental rights to be presumed innocence
until proven guilty.’
In Sheldrake, Lord Bingham doubted whether there should be an
assumption that Parliament would not have made an exception to
the basic rule without food reason. Dennis opined that the
court’s approach should depend on drawing a clear distinction
between the two criteria referred to the case of Salabiaku v France42;
less deference should be due when considering whether a reverse
onus was a proportionate method of achieving that aim. As Lord
Bingham mentioned in Sheldrake, the underlying rationale of the
presumption is that it is offensive to ordinary notion of
fairness for a prosecutor to accuse a defendant of crime and for
the defendant to be then required to disprove the accusation, on
pain of conviction and punishment if he fails to do so.43 If we
look at the problem with a different angle, Lord Nicholls in
Johnstone said that a complete starting point for considering a
reverse burden is to reminisce that if a defendant is required to
prove a fact on a balance of probability in order to avoid
42 (1988) 13 EHRR 379.43 Glover, R. (2007). Regulatory Offences and Reverse Burdens: The 'LicensingApproach'.Journal of Criminal Law.
conviction, a conviction can follow in spite of the fact-finding
tribunal having a reasonable doubt as to his guilt in the light
of Art 6(2).44
In the case of Sheldrake v DPP and AG’s Reference (No 4 of 2002)45, two
conjoined appeals regarding reverse burden in the House of Lords,
the courts is required to focus on the statutory provision and
strike a balance between the interests of the community and the
fundamental rights of the individual.46 Lord Bingham then held
that the ‘overriding concern is that the trial of the defendant
should be fair’ and ‘the Convention does not outlaw presumptions
or reverse burdens, but requires there to be kept within
reasonable limits’. He also mentioned that ‘the task of the court
is never to decide whether a reverse burden should be imposed on
a defendant, but always assess whether a burden enacted by
Parliament unjustifiably infringes the presumption of
innocence.47 However, it is doubtful whether it would be right
44 Munday, R. J. (2011). Evidence (6th ed.). Oxford: Oxford University Press.
45 AG Reference (No 4 of 2002); Sheldrake v DPP [2004] All ER (D) 16946 Munday, R. J. (2011). Evidence (6th ed.). Oxford: Oxford University
Press.47 Stummer, A. (2011). The Presumption of Innocence: Evidential and Human Rights Perspectives.
for a court to assume that Parliament would not have reversed the
burden without good reason. This approach might lead the court to
give too much weight to the enactment under review and too little
to the presumption of innocence. ‘48
If we take a look at the impact of the maximum penalties,
Lord Nicholls in Johnstone gave a clear statement which is: ‘the
more serious the punishment, the more compelling must be the
reason for imposing a reverse burden,’ which mean that there must
be a compelling reason that makes the reversal fair and
reasonable.49 The case of Lambert, Lord Steyn was clearly
influenced by the fact that the maximum sentence was life
imprisonment.50 On the other hand, Tuckey LJ in Davies said that
the absence of any risk of imprisonment was undoubtedly and
important factor in determining whether there was a legitimate
reverse burden of proof.51 Dennis also claimed that the maximum
penalties are a very uncertain guild where in Sheldrake, the House
48AG Reference (No 4 of 2002); Sheldrake v DPP [2004] All ER (D) 169, (Lord Bingham).49 Charanjit, L., & Mohamed, R. (2014). The Law of Evidence. In Unlocking: Evidence(2nd ed., p. 43). Routledge.50 Roberts, P. (2002). Drug dealing and the presumption of innocence: The
Human Rights Act (almost) bites.51 Allen, C. J. (2008). Burden and Standard of Proof and Presumptions. In Practical guide to evidence (4th ed., p. 169). London: Routledge-Cavendish.
of Lords upheld reverse onus where the maximum penalty for the
offence was only six months’ imprisonment.52
It has been difficult to discern a consistent basis for
distinguishing between the presumption of innocence and the
reversal of proof burden. The balance between the both is somehow
difficult to achieve; some reverse burdens are compatible with
the presumption of innocence, while other is incompatible.
Nonetheless, I do think that the presumption of the innocence
balances the defendant’s right to avoid mistaken conviction
against the community interest in law enforcement by taking
account of the practicalities of proof.
52 Ibid., p170.
Bibliography
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&srguid=ia744c09700000149a3f016d4f2b92375&docguid=I6CBD3BE0
640211E388A29FD974DC01EE&hitguid=I6CBD3BE0640211E388A29FD97
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Table of statutes and other instruments
European Convention for the Protection of Human Rights and
Fundamental Freedoms
European Convention on Human Rights
French Customs Code
Health and Safety at Work Act 1974
Homicide Act 1957
Human Rights Act 1998
International Covenant on Civil and Political Rights
Magistrates Courts Act 1980
Misuse of Drugs Act 1971
Prevention of Corruption Act 1916
Public Bodies Corrupt Practices Act 1889
Trade Marks Act 1994
Table of cases
AG’s Reference (No 4 of 2002)
Ghaidan v Godin-Mendoza [2004] UKHL 30
M’Naghten’s Case
R v Davies [1975] 1 QB 691.
R v DPP ex p Kebeline and Others [2000] 1 Cr App R 275
R v Edwards [1975] 1 QB 27
R v Hobson(1823) 1 Lew CC 261
R v Hunt [1987] 1 All E.R. 1
R v Johnstone [2003] UKHL 28, [2003] 1 WLR 1736.
R v Lambert [2001] 3 All ER 577.
Salabiaku v France (1998) 13 E.H.R.R. 379.
Sheldrake v DPP [2004] UKHL 43, [2005] 1 AC 264, [2005] 1 All ER
237, [2004] 3 WLR 976
Woolmington v DPP[1935] UKHL 1