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JOSHUA HO FUNG LYM, 2015

“THE REVERSAL OF THE BURDEN OF PROOF”

INTRODUCTION

‘No principle is more firmly established in our system of criminal justice than the

presumption of innocence that is accorded to the defendant in every criminal trial’1.

Ei incumbit probatio qui dicit, non qui negat2 is one of the fundamental rights found

in the Human Rights Act 19983, in particular Article 6; Right to a fair trial. It is stated under

that same section that everyone shall be presumed to be innocent until proven guilty and

this principle can be traced back even to the 18th century4. Even the Bible mentioned this

principle. In Genesis 18:23-25, it states

‘Then Abraham approached him and said: “Will you sweep away the righteous with

the wicked? What if there are fifty righteous people in the city? Will you really sweep it

away and not spare the place for the sake of the fifty righteous people in it? Far be it from

you to do such a thing—to kill the righteous with the wicked, treating the righteous and the

wicked alike. Far be it from you! Will not the Judge of all the earth do right?”’5

The significant weight of this principle is one of the core principles of democracy and

the United Kingdom, being a democratic State, should properly uphold this principle.

1 Justices Brennan, Stewart, and Marshall in Kentucky v. Whorton (1979) 441 U.S. 186 at 790

2 Which is Latin that translates to the burden of proof should be on he who declares, not on he who denies.

3 Human Rights Act 1998

4 F Quintard-Morenas, ‘The Presumption of Innocence in the French and Anglo-American Legal Traditions’

(2010) 58(1) The American Journal of Comparative Law 107 5 The Bible, Genesis 18:23-25

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It is for the prosecution to prove the guilt of the criminal offender. This is established

in the case of Woolmington v. DPP6 by Viscount Sankey LC when he stated ‘Throughout the

web of the English Criminal Law, one golden thread is always to be seen, that it is the duty

of the prosecution to prove the prisoner’s guilt.’ The accused do not have to prove that he is

innocent because the burden of proof is on the one who asserts, i.e. the prosecution. For

James B. Thayer, ‘burden of proof’ has two meanings. The first is the risk of not persuading

the jury and the other is the duty of going forward with the evidence to satisfy the judge.7

The second meaning of the burden of proof (which is on the prosecution), which is

‘the duty of going forward with the evidence to satisfy the judge’, is more relevant to this

paper. This means that the legal burden to prove and to convince the judge of the

defendant’s guilt is on the prosecution.8 The presence of a reasonable doubt demands an

acquittal.9 This is where the ‘innocent until proven guilty’10 principle comes into play.

However, is this principle absolute in nature? What are the instances, or the

exceptions in which the burden of proof has been reversed and the said burden is placed

upon the shoulders of the defendant? Is it fair to impose upon the defendant, the onus to

prove that they are innocent? What is the impact of the Human Rights Act 1998 and the

European Convention of Human Rights on the exceptions to the principle of the

presumption of innocence?

6 Woolmington v. DPP [1935] UKHL 1

7 J. B. Thayer, ‘The Burden of Proof’ (1890) 4 Harvard Law Review 45-70

8 Unless the prosecution does such, the defendant will remain innocent.

9 L Laudan, ‘The Presumption of Innocence: Material or Probatory?’ [2008) Autonomous National University of

Mexico < http://www.derecho.uach.cl/documentos/Laudan_presumption_of_innocence.pdf> accessed 5

November 2014 10

Which is, the presumption of innocence.

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THE IMPORTANCE OF THE PRESUMPTION OF INNOCENCE

What happens when there is a failure observing the principles of the presumption of

innocence? Jeremy Bentham stated that supposedly a defendant is a non-delinquent one,

then immediately should that procedure against him drop; everything that follows is

oppression and injustice.11 Therefore, it is noted that principle of the presumption of

innocence plays a very significant role in ensuring justice is served without any errors. It

should be noted that the absence of the presumption of innocence does not equate to a

total miscarriage of justice but a miscarriage of justice is more likely to happen with the

absence of this presumption.

11

J Bentham, ‘Principles of Judicial Procedure’ (1829) 169

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TRADITIONAL APPROACH

The principle of the presumption of innocence is adhered to traditionally but with a

few exceptions. Paul Roberts stated that the burden of proof acts as a check and balance in

restricting the power of the State to intervene in the lives of the individuals and their

families in the far-reaching and sometimes catastrophic ways sanctioned by the machinery

of criminal justice.12 This principle can be seen even as early as 1886 in the case of Wakelin v.

London and South Western Rly Co13.14 Lord Halsbury LC held that the widow bore the

burden of proving that the defendant has caused her husband’s death and if she could not

discharge that burden, she failed.15 Hence, the defendant was found not liable.

In criminal cases, the legal burden of proving any fact essential to the prosecution

case generally rests upon the Crown and remains with it throughout the trial. Both positive

and negative allegations may be essential to the case for the prosecution. Thus, the

prosecution bears the legal burden of proving absence of consent on a charge of rape and

assault16 as per the Sexual Offences Act 200317. Therefore, the accused bears no legal

12

P Roberts, ‘Taking the Burden of Proof Seriously’ [1995] Crim LR 783 13

Wakelin v. London and South Western Rly Co. (1886) 12 App Cas 41, HL 14

Here, a widow brought an action in tort under the Fatal Accidents Act 1846. However, the only evidence she can produce is that her husband was found dead near a level crossing at the side of a railway line. 15

Assuming that the husband had been knocked down by a train while on the crossing would be quite a stretch. She could not produce further evidence to prove that the defendant was guilty. 16

R v. Donovan [1934] 2 KB 498 17

S.1 Sexual Offences Act 2003 A person (A) commits an offence if he intentionally touches another person (B), the touching is sexual, B does not consent to the touching and A does not reasonably believe that B consents. Subsection 3 of the same section continues to elaborate on ‘consent’. Here, the defendant caned a girl of seventeen for purposes of sexual gratification. She had consented to it. It was held that an act, unlawful per se

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burden in respect of the essential ingredients of an offence whether or not he denies any or

all of them.

In a civil case, Abrath v. North Eastern Railway18, the claimant brought an action of

malicious prosecution against the defendant in alleging that the defendant instituted

proceedings against him without reasonable cause.19 It is to be noted that where the

evidence is insufficient as to render it impossible to reach a conclusion, as seen in the earlier

case of Wakelin v. London & South Western Railway20, the party to suffer for this state of

affairs is the one on whom the burden of proof lies upon.21

Richard Glover22 commented about this burden in Joseph Constantine Steamship

Line Ltd v. Imperial Smelting Corporation Ltd23. He stated ‘If the claimant fails to prove any

essential element of his claim, the defendant will be entitled to acquittal. The position of the

defendant is somewhat different. Since the claimant affirmatively asserts his claim, he bears

the burden of proving the claim, and the defendant assumes no legal burden of proof by

merely denying the claim.’24

It therefore can be seen that the traditional approach was that the defendant bears

no legal burden to prove his innocence. William Blackstone commented that ‘All

as being criminal, cannot be rendered lawful between the person to whose detriment it is done consents to it. Only if the blows struck were neither likely nor intended to do bodily harm, is it necessary to consider whether V had not consented. 18

Abrath v. North East Railway Company (1886) 11 App. Cas. 247 19

The House of Lords then held that the burden is on the plaintiff to prove not only the malicious prosecution but also prima facie the want of reasonable and probable cause. 20

Wakelin v. London and South Western Rly Co. (1886) 12 App Cas 41, HL 21

S Salako, ‘The Burden and Standard of Proof’ http://www.insitelawmagazine.com/evidencech3.htm accessed 5 November 2014 22

Richard Glover is a Senior Lecturer in Law at the University of Wolverhampton. Before joining the School of Legal Studies in 1998, Richard worked in private practice, as a criminal lawyer in London and South Wales. His principle areas of interest are the law of evidence, human rights law, and criminal law. He is currently researching into the law relating to burdens of proof following a number of significant decisions from appellate courts in recent years. 23

Joseph Constantine Steamship Line Ltd v. Imperial Smelting Corporation Ltd [1942] AC 154 24

R Glover, Murphy on Evidence (13th

edn OUP, Oxford 2013) 77

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presumptive evidence of felony should be admitted cautiously; for the law holds it better

that ten prisoners escape than one innocent party suffer.’25 John Adams also affirmed this

theory when he said ‘It is more important that innocence be protected than it is that guilt be

punished, for guilt and crimes are so frequent in this world that they cannot all be punished.

But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen

will say, 'whether I do good or whether I do evil is immaterial, for innocence itself is no

protection,' and if such an idea as that were to take hold in the mind of the citizen that

would be the end of security whatsoever.’26

25

W Blackstone, Commentaries on the Laws of England in One Volume Together with a Copious Glossary of Writers Referred To, and a Chart of Descent of English Sovereigns (1

st edn West Publishing Company 1897) This

is also known as the Blackstone ratio 10:1 26

J Adams, The Portable John Adams (1st

edn Penguin Books 2004)

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EXCEPTIONS TO THE GENERAL RULE

While it is clear that the principle of the presumption of innocence should be

faithfully upheld, there are three exceptions to that rule: Where the defendant raises the

defence of insanity, where a statute expressly places the legal burden on the defence and

where a statute does so. These statutory exceptions are also known as reverse onus

provisions.

1. Insanity

Where an accused raises insanity as a defence, he bears the legal burden of proving

it.27 The reason for this is based on the difficulty of disproving false claims of insanity,

given that the accused may not cooperate with an investigation of his state of mind.28

Where an accused is charged with murder and raises the issue of either insanity or

diminished responsibility, the prosecution, pursuant to section 6 of the Criminal

Procedure (Insanity) Act 196429, is allowed to gather evidence to prove the other of

those issues.30

27

M’Naghten’s Case (1843) 10 CL&Fin 200, HL 28

For further readings of this justification and its criticisms, read Ashworth’s ‘Four threats to the presumption of innocence’ (2006) 10 E&P 241 at 263-5. 29

Criminal Procedure (Insanity) Act 1964 30

Here, the prosecution bears the legal burden of proving beyond reasonable doubt (See See R v. Grant [1960] Crim LR 424) the other issue on which they have adduced evidence.

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If a defendant is alleged to be under a disability rendering him unfit to plead and

stand trial, the issue may be raised, under section 4 of the same act, by either the

prosecution or defence.31

2. Express statutory exceptions

A number of statutes expressly place on the accused the legal burden of proving

specified issues. The legal burden in relation to all these issues other than those

specified will be on the prosecution. For example, section 2(2) of the Homicide Act32

places upon the accused the legal burden of establishing the statutory defence of

diminished responsibility on a charge of murder.33 In the Prevention of Crime Act 195334,

it was stated in Section 1(1) that any person who without lawful authority or reasonable

excuse, the proof whereof shall lie on him, has with him in any public place an offensive

weapon shall be guilty of an offence.35 Section 2 of the Prevention of Corruption Act

191636 provides that where in any proceedings for an offence under the Prevention of

31

Prosecution to a standard of beyond reasonable doubt and defence to a standard based on the balance of probabilities. See R v. Robertson [1968] 1 WLR 1767, CA and R v. Podola [1960] 1 QB 325, CCA 32

Homicide Act 1957 33

Here, the said section does not only direct which party has the burden of proof once the issue is raised, but also leaves it to the defence to decide whether the issue should be raised at all. If the defence does not raise the issue but there is evidence of loss of control, then the trial judge is not bound to direct the jury to consider that matter but, at most, should in the absence of the jury draw the matter to the attention of the defence so that they may decide whether they wish the issue to be considered by the jury. This was laid done by Lord Lane in R v Campbell (1986) 84 Cr App R 255, CA. However, this is seen to be unjust. When there is clearly evidence of loss of control, the judge should direct the jury to consider that. The failure of raising the issue does not equate to the absence of that issue. By directing the jury to consider loss of control, justice is properly upheld. 34

Prevention of Crime Act 1953 35

Here, the duty to prove that the defendant has lawful authority or reasonable excuse to bring around an offensive weapon shall be upon him. It is easier to prove that he has a reasonable excuse than for the prosecution to prove that he does not have a reasonable excuse. 36

Prevention of Corruption Act 1916

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Corruption Act 1906 or the Public Bodies Corrupt Practices Act 188937, 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 public body such money,

gift or consideration shall be deemed to have been paid or given corruptly unless the

contrary is proved.38 Another example is the Misuse of Drugs Act 197139. Section 28 (2)

provides that in any proceedings where this section applies, it shall be a defence for the

accused to prove that he neither knew nor suspected nor had reason to suspect the

existence of some fact alleged by the prosecution which is necessary to be proved by

the prosecution if he is to be convicted of the offence charged. In other words, the onus

of proof is placed on the accused and the standard of proof in on the balance of

probabilities.

3. Implied statutory exceptions

Section 101 of the Magistrates’ Courts Act 198040 formerly section 81 of the

Magistrates’ Courts Act 195241, provides that where there is an exception to the general

rule of the presumption of innocence, the burden shall be upon him.42

37

Public Bodies Corrupt Practices Act 1889 38

This rule might stop the public from giving gifts as tokens or appreciations to these employees out of good faith. It is not fair to prima facie presume that a person has in their intention, bad faith. 39

Misuse of Drugs Act 1971 40

Magistrates’ Courts Act 1980 41

Magistrates’ Courts Act 1952 42

‘Where the defendant to an information or complaint relies for his defence on any exception, exemption, proviso, excuse of qualification, whether or not it accompanies the description of the offence or matter of complain in the enactment creating the offence or on which the complaint is founded, the burden of proving the exception, exemption, proviso, excuse or qualification shall be on him and this not withstanding that the information or complaint contains an allegation negativing the exception, exemption, proviso, excuse or qualification.

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Section 87 (1) of the Road Traffic Act 198843 and section 161 (1) of the Highways Act

198044 are two reasonably straightforward examples of the kind of provision to which

Section 101 applies may be given.

In Gatland v. Metropolitan Police Comr45, Lord Parker CJ held that although it was

ndeed for the prosecution to prove that a thing had been deposited on the highway

which caused another individual to have been injured or endangered, it was for the

accused to raise and prove lawful authority or excuse in relation to that act.

In Westminster City Council v. Croyalgrange Ltd46, in contrast, held no reliance could

be placed on what is not section 101 of the 1980 Act. A company which had let

premises to a person who used them as a sex establishment without a licence was

charged under Schedule 3, paragraph 20(1)(a), of the Local Government (Miscellaneous

Provisions) Act 198247, whereby a person who knowingly causes or permits the use of

premises contrary to Schedule 3, paragraph 6, commits an offence.48 The House of

Lords held that section 101 was inapplicable49. The prosecution hence bore the burden

of proving, inter alia, that the directors of the company knew that no licence had been

obtained by the tenant.

43

Road Traffic Act 1988 which provides that it is an offence for a person to drive a vehicle on a road otherwise in accordance with a licence. 44

Highways Act 1980 which provides that if a person, without lawful authority or excuse, deposits anything whatsoever on a highway in consequence thereof a user of the highway had been injured or endangered, that person shall be guilty of an offence. 45

Gatland v. Metropolitan Police Comr [1968] 2 QB 279 46

Westminster City Council v. Croyalgrange Ltd (1986) 83 Cr App R 155 HL 47

Local Government (Miscellaneous Provisions) Act 1982 48

Paragraph 6 provides that no persons shall use any premises as a sex establishment except under and in accordance with a licence. 49

Because the exception in question qualified the prohibition create by paragraph 6 and not the offence created by paragraph 20.

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FACTORS WHEN DECIDING TO REVERSE THE TRADITIONAL APPROACH

When proving the guilt of an accused, the prosecution has to prove it beyond

reasonable doubt.50 In R v. Yap Chuan Ching51, the judge directed the jury that it was for the

prosecution to prove the charges so that they were sure they had been made out, or to

prove them beyond reasonable doubt. The judge explained that these were two different

ways of saying the same thing.52

Four minutes later, the jury returned to court and found the defendant guilty on one

count by a majority of eleven to one.53

50

Woolmington v. DPP [1935] UKHL 1. Beyond reasonable doubt is a standard which leaves no room for questioning the guilt of the defendant. It can be seen as the standard in which the defendant has, beyond all reasonable doubt committed the offence. 51

R v. Yap Chuan Ching (1976) 63 Cr App R 7, CA 52

He said ‘A reasonable doubt…is a doubt to which you can give reason as opposed to a mere fanciful sort of speculation such as ‘Well, nothing in this world is certain, nothing in this world can be proved’…It is sometimes said the sort of matter which might influence you if you were to consider some business matter.’

53 The Court of Appeal thought that the judge’s direction on the standard of proof in his summing-up could not

have been clearer or more accurate. However, taking judicial notice of the fact that one of the popular forms of television entertainment is reconstructed trials which have a striking degree of realism, and observing that most jurors currently know something about burden and standard before they even get into the jury box, the COA concluded that in most cases judges should not attempt any gloss upon the meaning of ‘sure’ or ‘reasonable doubt’.

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In criminal cases, the legal burden is generally borne by the prosecution. Where the

legal burden on a particular issue is borne by the accused, it is discharged by the defence

satisfying the jury on a balance of probabilities.54 Evidential burden is the obligation to

produce evidence to properly raise an issue at trial.55 One only needs to only produce

evidence to fulfill the evidential burden.

Generally, the evidential burden can rest on either party, although it usually relates

to matters of defence raised by the accused. Some defences impose an evidential burden on

the defendant which, if met, imposes a legal burden on the prosecution.56 The legal burden

will then fall on the prosecution to prove beyond reasonable doubt that the defendant was

not acting in self-defence.57

Generally, the defendant only has to discharge evidential burden. However, it is

possible for the defendant to shoulder a legal burden. Is it imcompatible with the Human

Rights Act 1998? The Criminal Law Revision Committee thought that the real purpose of

casting burdens on the defence in criminal cases was to prevent the defendant from

submitting that he had no case to answer in a situation where his acts requires explanation

but the prosecution had not adduced evidence to negative the possibility of an innocent

explanation. It is submitted that the Committee was right in saying that it is entirely

54

R v. Carr-Briant [1943] KB 607, CCA. For example, where the defence bears the legal burden of proving insanity, the burden is discharged by satisfying the jury on a balance or probabilities.

55 Failure to satisfy that evidential burden means that the said issue cannot be raised in Court.

56 For example, if a person charged with murder pleads self-defense, the defendant must satisfy the evidential

burden that there is some evidence suggesting self-defence. 57

J Herring Criminal Law: Text, Cases, and Materials (Oxford University Press, Oxford 2004) 58–64

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justifiable to impose a burden on the defence for this purpose but said that the purpose was

sufficiently served by making the burden into an evidential one.58

Lord Nicholls observed on statutory provisions that prima facie reverse the burden of

proof, and made the following points in which the other lords agreed to. Firstly, the

presumptions of fact or law are not prohibited by the European Convention. But the effect

of Art 6(2) is that they must be confined within reasonable limits.59 Here, reasonable

balance has to be held between the public interest and the interests of the individual.60

A hurdle that was faced in striking the ideal balance is severity of the crime. The

more serious the crime and the greater the public interest in securing convictions, the more

important the constitutional protection of the accused becomes. Another observation Lord

Nicholls made was when considering whether a reverse burden is fair and reasonable, a

proper starting point is to remember that if an accused is required to prove a fact on the

balance of probability in order so to avoid convictions, this will allow a conviction despite

the existence of a reasonable doubt as to his guilt.61

Also, another factor that the Courts will take into account is the nature of the facts

that is required to be proven by the defendant. A good example of this is the case of R v.

Edwards62.

58

Criminal Law Revision Committee, 11th

Report, 1972, para 140. Placing the legal burden on the defence seems to contravene the Human Rights At 1998. However, some sort of compromise need to be made and compromise can come in the form of changing the legal burden into a mere evidential burden. 59

Which takes into account the importance of what is at stake and maintain the rights of the defence. 60

In each case, however, the State must show that the balance held in the legislation is reasonable; derogation from the presumption of innocence requires justification. Lord Nicholls added that to reverse the burden of proof, a compelling reason must exist. 61

Hence, the more severe the punishment that may result after conviction, the more compelling the reason must be for there to be a reverse in burden. 62

R v. Edwards [1975] QB 27. Here, the defendant was convicted of selling intoxicated liquor without a licence. It was held that it was for the accused to prove that he came within the exempted class of licence holders. This

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Professor Ian Dennis has extracted six factors which are likely to be considered when

deciding on the compatibility question for the reversal of legal burden onto the accused.63

1. Judicial deference

This factor deals with the issue of how much deference should the courts show

to the Parliament. 64 This matter has troubled the Courts as it concerns the

constitutional principle of separation of power. Lord Nicholls stated that the

court’s role is to review as the Parliament is in charge of the responsibility for

enacting laws.65 Hence, Courts are allowed to depart from the Literal Rule when

there is a conflict between the Parliament’s intention and the convention.66

2. Classification of offences

Classification of offences deals with the different types of offences, namely mala

in se67 and mala prohibita68. This factor was extracted from Lord Clyde’s

judgment in R v. Lambert69 whereby he agrees that reversal of a legal burden

may be compatible with Article 6(2) if the offence concerns regulation of conduct.

This is because such cases are considered trivial.70 However, it is submitted that

this factor has its difficulties as there is no clear distinction between acts that are

was upheld on appeal. The Court held that S. 101 of the Magistrates Courts Act 1980 restated an earlier rule of common law that applied to all criminal trials, including those on indictment. This was affirmed by the House of Lords in R v. Hunt [1987] AC 352. It is easier for the defendant to prove that he had a licence and instead of the prosecution to prove that he did not. 63

I Dennis. The Law of Evidence (3rd

edn Sweet & Maxwell, London 2007) 549 64

i.e. How much power should the Courts give to the Parliament? 65

i.e. In favour of the Literal Approach. However, he also created an exception to this rule by asserting that the presumption of innocence carries more weight than that of the Parliament’s intentions. 66

Lord Bingham in Sheldrake v. DPP also warned that the courts should not give too much weight to legislations compared to the presumption of innocence. This may be due to the fact that the courts are starting to acknowledge that Parliament did not attach sufficient importance to the presumption of innocence when drafting legislations and is up to the courts to restore the position to its proper limits. 67

Which means Acts that are truly criminal 68

Which means acts which are merely regulatory. 69 R v. Lambert [2001] 3 WLR 206 70

i.e. and mainly involve monetary penalties and carries no real social disgrace.

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truly criminal and acts that are merely regulatory. The Courts have failed to

provide guidelines on this matter and it is deduced that this will lead to decisions

being made on a case to case basis.71

3. Construction of criminal liability: Elements of Offences and Defences

This factor concerns the elements of offence and defence. If an offence is clearly

distinguished from the defence, it would be much easier to justify the reversal of

the legal burden. This was established in Lambert by Lord Hope. However, this

argument was doubted by Lord Steyn who was also presiding in the case of

Lambert. Lord Steyn concluded that the difference between offence and defence

is essentially that of a drafting technique.72

4. Significance of maximum penalties

The idea here is to avoid the unfair effect if an innocent individual received harsh

penalties simply because he was unable to prove his innocence. It is deduced

here that the higher the maximum penalty, the more reluctant the courts will be

to shift the legal burden to the defendant.73 Lord Steyn made it clear in Lambert

that life imprisonment is a harsh penalty and the legal burden should be read

71

It is also submitted here that the courts should try to identify Parliament’s intention behind the act in order to better classify them. As per Pepper v. Hart, the Courts have access to refer to the Hansard when they face difficulties in determining Parliament’s intention as it would significantly help clear the confusions. 72

His Lordship then went on to suggest that the best way to focus on the issue of substance of the Act. He even went on to use provocation, necessity and self defence as examples that incorporate moral evaluations of the conduct of the accused which is essentially similar to the requirements of mens rea. Such differences in views are proof that this factor may not be effective in helping judges determine the compatibility of a reversal of legal burden with the ECHR. However, the identification of Parliament’s intention and the rationale behind the offence is certain and hence it is submitted that these may be better guidelines as stated earlier. 73

It should be noted that maximum penalties do not provide clear guidelines as courts seem opine differently when determining when the onus should be reversed in reference to the penalty of the offence.

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down. The House of Lords in Sheldrake v. DPP74 contrasted this decision by

allowing a reversal for a maximum penalty of 6 months.75

5. Ease of proof and peculiar knowledge

If the accused had the required knowledge to prove the legal burden in a way

that is easier than the prosecution, it would be proportionate to transfer the

legal burden onto him.76 Lord Hutton in Lambert argued that peculiar knowledge

would be easier for the accused to prove as it is a personal issue which was

within his ambit.77

6. Presumption of Innocence

This factor serves as a reminder to the Courts of the importance of the

presumption of innocence. Professor Ian Dennis quoted Roberts and

Zuckerman’s description of the presumption being a standard which helps to

avoid wrongful convictions. Lord Bingham in AG’s Reference (No. 4 of 2002)78

warned the risk and the effect of unfair conviction and stressed that it might be

too impossible for the accused to prove that he had not taken part in the illegal

74 Sheldrake v. DPP [2004] All ER 169 75

It is seen here that maximum penalties although clear cut, do not provide clear guidelines for the reversal of legal burdens. 76

The problem here is that peculiar knowledge can be easily blurred wth the state of mind of the accused. Clarke LJ stated in Sheldrake v DPP: ‘There are very many aspects of the criminal law in which the state of mind of the accused is of crucial importance but where the burden of proving it is on the prosecution’. 77

However, although this was true, it does not mean that in every case, disproving guilt would be easier for the defendant. 78

AG’s Reference (No. 4 of 2002)

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activities as provided in S. 11(2) of the Terrorism Act 200079. The courts are

hence urged to uphold the presumption of innocence.80

CONCLUSIONS

There are many arguments that seem to suggest that reversing the burden of proof

from the prosecution to the defendant is unconstitutional by virtue of Article 6(2) of the

Human Rights Act 199881. However, here it is argued that reversing the burden of proof

might be necessary to prevent miscarriages of justice which is contrary to what is suggested

by Jeremy Bentham.

79

Terrorism Act 2000 80

Ng Cin Yan ‘Reversal of the Legal Burden in Criminal Cases in the UK’ https://www.academia.edu/3665839/Reversal_of_the_Legal_Burden_in_Criminal_Cases_in_the_UK accessed 13 November 2014 81 R v Lambert [2001] 3 WLR 206

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Prima facie, the burden of proof should be upon the prosecution. However, if it is

deemed necessary, reversing the burden of proof in some cases should be seen as lawful

and constitutional.82 Every citizen of a State have a duty to it to prove themselves innocent

and the presumption of innocence should not be followed as strictly and as rigidly as some

might suggest.

There is a clear need for the distinction between the presumption of innocence in

theory and how it plays out in practice in the context of the realities of an adversarial

criminal justice system.83

It is hence seen here that complete presumption of innocence84 is impractical and

would slow down even more the process of criminal proceedings. Justice delayed is indeed

justice denied as observed by William E. Gladstone and to deny a person justice defeats the

very purpose of having a justice system. Hence, the Courts would need to strike an ideal

balance between having the principle of the presumption of innocence versus reversing the

said burden.85

As established earlier, the principle of the presumption of innocence cannot be

rigidly followed.86

82

See Lord Steyn’s 3 stage test to determine compatibility in R v Lambert [2001] 3 WLR 206. See A Keane and P McKeown ‘The Modern Law of Evidence’ (10

th edn OUP, Oxford 2014) 94

83 It is argued that the presumption of innocence and the burden of proof on the prosecution to prove its case

beyond reasonable doubt act in reality against the interests of those who might be innocent at every stage of the criminal justice process. This is because the ‘presumption’, in effect renders suspects of crime passive, which simultaneously justifies minimal resources to the defence whilst the ‘burden’ places pressure on, and directs the bulk of the resources to the police and prosecution to ship away at the presumed innocent status and construct cases from only incriminating evidence that might obtain a conviction, rendering innocent victims vulnerable to wrongful convictions. See M Naughton ‘How the Presumption of Innocence Renders the Innocent Vulnerable to Wrongful Convictions’ (2011) 2 IJLS 40-54 84

i.e. no burden on the part of the defendant. 85

Lord Bingham in Sheldrake v. DPP [2004] All ER 169 86

Every case and every statute have to be looked at in isolation of the others and then be decided accordingly. Lord Bingham is right in saying ‘The justifiability of any infringement of the presumption of innocence cannot

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As of now, it can be deduced that the Courts have been remarkable in doing so and

have not been arbitrary as how Lord Bingham had warned in Sheldrake v. DPP.

REFERENCES

Acts of Parliament

Criminal Law Revision Committee, 11th Report, 1972, para 140

Criminal Procedure (Insanity) Act 1964

European Convention on Human Rights 1953

be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case.’

20

Fatal Accidents Act 1846

Highways Act 1980

Homicide Act 1957

Human Rights Act 1998

Local Government (Miscellaneous Provisions) Act 1982

Magistrates’ Courts Act 1952

Magistrates’ Courts Act 1980

Misuse of Drugs Act 1971

Prevention of Corruption Act 1916

Prevention of Crime Act 1953

Public Bodies Corrupt Practices Act 1889

Road Traffic Act 1988

Sexual Offences Act 2003

Terrorism Act 2000

Journal Articles

Bentham, J., ‘Principles of Judicial Procedure’ (1829) 169

Legal Traditions’ (2010) 58(1) The American Journal of Comparative Law 107

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Naughton, M., ‘How the Presumption of Innocence Renders the Innocent Vulnerable to Wrongful Convictions’ (2011) 2 IJLS 40-54

Quintard-Morenas, F., ‘The Presumption of Innocence in the French and Anglo-American

Roberts, P., ‘Taking the Burden of Proof Seriously’ [1995] Crim LR 783

Thayer, J. B., ‘The Burden of Proof’ (1890) 4 Harvard Law Review 45-70 Online Journals Laudan, L., ‘The Presumption of Innocence: Material or Probatory?’ [2008) Autonomous National University of Mexico < http://www.derecho.uach.cl/documentos/Laudan_presumption_of_innocence.pdf> accessed 5 November 2014 Table of Cases Abrath v. North East Railway Company (1886) 11 App. Cas. 247

Gatland v. Metropolitan Police Comr [1968] 2 QB 279 Joseph Constantine Steamship Line Ltd v. Imperial Smelting Corporation Ltd [1942] AC 154 Kentucky v. Whorton (1979) 441 U.S. 186 at 790 M’Naghten’s Case (1843) 10 CL&Fin 200, HL R v. Campbell (1986) 84 Cr App R 255, CA R v. Carr-Briant [1943] KB 607, CCA R v. Donovan [1934] 2 KB 498 R v. Edwards [1975] QB 27 R v. Grant [1960] Crim LR 424 R v. Hunt [1987] AC 352 R v. Lambert [2001] 3 WLR 206 R v. Podola [1960] 1 QB 325, CCA R v. Robertson [1968] 1 WLR 1767, CA

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R v. Yap Chuan Ching (1976) 63 Cr App R 7, CA Sheldrake v. DPP [2004] All ER 169 Wakelin v. London and South Western Rly Co. (1886) 12 App Cas 41, HL Westminster City Council v. Croyalgrange Ltd (1986) 83 Cr App R 155 HL Woolmington v. DPP [1935] UKHL 1 Websites Ng C., Y., ‘Reversal of the Legal Burden in Criminal Cases in the UK’ https://www.academia.edu/3665839/Reversal_of_the_Legal_Burden_in_Criminal_Cases_in_the_UK accessed 13 November 2014 Salako, S., ‘The Burden and Standard of Proof’ http://www.insitelawmagazine.com/evidencech3.htm accessed 5 November 2014

Books Adams, J., The Portable John Adams (1st edn Penguin Books 2004) Blackstone, W. Commentaries on the Laws of England in One Volume Together with a Copious Glossary of Writers Referred To, and a Chart of Descent of English Sovereigns (1st edn West Publishing Company 1897) Dennis, I., The Law of Evidence (3rd edn Sweet & Maxwell, London 2007) Glover, R., Murphy on Evidence (13th edn OUP, Oxford 2013) Herring, J., Criminal Law: Text, Cases, and Materials (Oxford University Press, Oxford 2004) Keane, A. and McKeown, P. ‘The Modern Law of Evidence’ (10th edn OUP, Oxford 2014)