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.

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French Customs Code

Health and Safety at Work Act 1974

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Prevention of Corruption Act 1916

Public Bodies Corrupt Practices Act 1889

Trade Marks Act 1994

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M’Naghten’s Case

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R v Edwards [1975] 1 QB 27

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