Reversal of Burden of Proof PDF

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BURDEN OF PROOF [REVERSAL OF BURDEN OF PROOF & ART 6(2) ECHR] OPENING 1. There is perhaps no principle in English criminal law more vaunted than the so-called “presumption of innocence.” 2. The phrase ‘innocent until proven guilty’ was first coined in the late 18th century by English lawyer Sir William Garrow, but its most sonorous endorsement that elevated its standing undoubtedly came from Viscount Sankey in the case of Woolmington v DPP [1935]. 3. With a missionary's zeal, Viscount Sankey in 1935 referred to the presumption of innocence principle as a “golden thread” and pronounced that “no attempt to whittle it down can be entertained” in delivering the judgment for a unanimous court. 4. Evidently, the principle that every man is presumed to be innocent until he is proved guilty is dear to the hearts of Englishmen. 5. Nevertheless, the 'golden thread' has never been absolute from the beginning since Lord Sankey himself identified that the common law exception of insanity and statutory exceptions may cause the golden thread to become frayed. 6. In other words, there are some circumstances in which the accused will bear the legal burden to prove his innocence. 7. However, it should be noted that whenever an accused carries the legal burden, the standard of proof is only on the balance of probabilities in respect of the specific defence and not beyond all reasonable doubt.

8. Since the enactment of Human Rights Act 1998, both commentators and the judiciary alike have dedicated considerable attention to the reversal of burden, in particular, reversals sanctioned by statutes. 9. Until the advent of the HRA, nobody had successfully challenged parliament’s constitutional right to determine whether it was appropriate for the defendant to prove his innocence as the seminal case of Woolmington v DPP stated quite categorically that statutory exceptions were to be regarded as an exception to the general rule. 10. According to Ian Dennis, reversal of burdens prior to the HRA was “automatic” if it was expressly written in statute. 11. This was undeniably alarming, especially since Andrew Ashworth and Meredith Blake had observed that “no fewer than 40% of the offences triable in the Crown Court appear to violate the presumption” in an article entitled “The Presumption of Innocence in English Criminal Law” found in the 1996 Criminal Law Review.

BURDEN OF PROOF [REVERSAL OF BURDEN OF PROOF & ART 6(2) ECHR] 12. In addition to the fact that legislations were able to expressly exclude the general rule, disquietingly there were as well a plethora of cases in which enactments were construed as impliedly imposing a burden on the accused. 13. The case of R v Edwards [1975] for instance, demonstrated that courts were able to implied a reverse burden in the event that a statute prohibited an act save in specified circumstances. In the aforementioned case, the defendant had to bear the onus of proving that he had licence to sell alcohol to acquit himself of selling alcohol without licence. 14. Reversal of burden by implication was so widespread under the common law that the whole idea of it was reduced into S101 of Magistrates’ Courts Act 1980, subsequently enabling reversal of burden in the summary courts to be governed by statute. 15. It was only a matter of time until the golden thread became so frayed that the presumption of innocence turned into an exception to a different general rule. 16. The defence of insanity on the other hand, has long been an uncontroversial exception to Viscount Sankey's “golden thread”, save for the recommendation that the accused should bear an evidential burden instead of a legal one from the Criminal Law Revision Committee, as it then was in 1972, and Ian Dennis.

17. Arguably, no area of evidence law has been more affected by the implementation of the Human Rights Act 1998 than that of the allocation of the burden of proof in criminal cases. 18. The HRA drew much inspiration from the European Convention of Human Rights and specifically enshrined the presumption of innocence by adopting Article 6(2) wholesale from the ECHR. 19. At the beginning, it seemed as though the English courts, in applying the ECHR, were adopting an uncompromising approach to uphold the presumption of innocence. One would be forgiven for suspecting that any reversal of burden automatically ran counter to the presumption of innocence woven deeper into the fabric of English Law through the introduction of HRA. 20. This suspicion was challenged in the case of R v DPP; Ex parte Kebilene [1999], in which Lord Hope highlighted the importance of differentiating legal burden from evidential burden in establishing whether a reversal would infringe the presumption of innocence.

 Evidential burden on the accused, his Lordship said, only requires the accused to do no more than raise a reasonable doubt on the matter with which they deal.  Consequently, the Court pronounced that reverse evidential burdens are not incompatible with Article 6(2).

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 It is therefore vital to first identify if a particular reversal of burden concerns the legal burden of proof or evidential burden through statutory interpretation.

 It must also be appreciated that the incorporation of Article 6(2) ECHR into English Law was never meant to betoken the demise of reverse legal burden.  This much is clear when we examine the jurisprudence of Strasbourg courts in Salabiaku v France. In the aforesaid case, it was established that not all legal burdens placed on accused persons necessarily violate convention rights and some reversals are ‘convention compliant’.  All the Strasbourg courts ask for is that member States confine the reversal of legal burdens within reasonable limits, taking into account the importance of what is at stake and maintaining the rights of the defence.

21. In consequence of this perceived lack of help from Strasbourg the English courts have fashioned a distinctive approach based on a standard of proportionality in dealing with the compatibility issue. 22. The test of proportionality requires courts to consider whether there was a necessity to impose a legal burden on the accused. 23. The consistency of this test however is debatable, since various factors have been taken into account rather haphazardly in the application of the proportionality test. 24. Even Lord Bingham himself stated that “the justifiability of any infringement of the presumption of innocence cannot 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” in the conjoined appeal of Attorney General’s Reference No 4 of 2002 and Sheldrake v DPP. 25. This then invites an obvious question, that is, how do English courts distinguish between compatible and incompatible reverse legal burdens given that there is no helpful guidance?

26. In a time where this area of law continued to be an unprincipled mess, Ian Dennis came to our aid by identifying some six factors prominent in judicial discussions when courts apply the test of proportionality. 27. According to Dennis in his penetrating 2005 article entitled “Reverse onuses and the presumption of innocence: in search of principle”, the factors courts have considered are:

BURDEN OF PROOF [REVERSAL OF BURDEN OF PROOF & ART 6(2) ECHR] i. ii. iii. iv. v. vi.

judicial deference classification of offences construction of criminal liability: element of offences and defences significance of maximum penalties ease of proof and peculiar knowledge presumption of innocence

28. Judicial Deference  An emphasis on judicial deference was certainly visible in the case of R v Johnstone [2003].

 Lord Nicholls in the aforementioned case articulated that it is incumbent upon Parliament to appropriately decide where the burden should lie, and the judiciary should defer to the opinion of the elected body unless Parliament “has attached insufficient importance” to Art 6(2).  This view was also affirmed by Lord Woolf in the case of AG’s Reference (No.1 of 2004). His Lordship asserted that Parliament would not have made an exception to the presumption of innocence had they not conceived a good reason.  To some extent, it seems like judges have placed much faith in Parliament to first contemplate issues relating to HRA before enacting a statute that would effectively reverse the legal burden.  Some judges however, like Lord Bingham in R v Sheldrake [2004], were more sceptical. According to Lord Bingham, to enshrine judicial deference is to neglect Art 6(2) and the obligations of the courts under S3 HRA.  Ian Dennis himself appears to agree with Lord Bingham on this point. He noted that the principle of deference would sometimes be inappropriate, especially when there is little to no evidence as to whether Parliament contemplated the issue of Art 6(2) during the enactment process.  Clearly, it is inadvisable to blindly defer to Parliament and other factors should be considered. 29. Classification of offences

 Dennis also pointed out that judges are more comfortable to permit a reversal of legal burden if the statutory offence concerns regulation of conduct and cited Lord Clyde’s judgment in R v Lambert [2001] to evidence that.  According to Lord Clyde, mala prohibita offence should be distinguished from mala in se offence because mala prohibita offences are unlike truly criminal offences which are inherently evil and carry social disgrace.

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 As such, it may be easier to justify an interference with the presumption of innocence.  In Dennis’s view, attaching considerable weight to this factor would be a damning indictment of our justice system.  Classification of offences, he wrote, is in itself exceedingly problematic, given that there is no clear criterion to which judges may refer in order to determine the moral quality of an offence.  It seems that the classification of offences is at best arbitrary, since the classification may vary depending on the personal opinions of judges.  Additionally, it does not follow that a statutory defence to a regulatory offence is necessarily any easier for the defendant to prove than an equivalent defence to a truly criminal offence. In the light of this, why then should a reversal of burden be justified when it concerns a mala prohibita offence? 30. Construction of criminal liability: element of offences and defences

 According to Dennis, judges too have the proclivity to regard a reverse legal burden as proportionate when a particular statute simply demands that the defendant should prove a defence. Lord Hope in the case of R v Lambert [2001] for instance, seemed to think that it would be much easier to justify the reversal of legal burden when an offence is clearly distinguished from defence.  Dennis himself agrees that the burden should be on the prosecution for elements constituting an offence.  In the very same case however, Lord Steyn submitted that the demarcation between offence and defence was essentially a matter of drafting techniques, and as such the demarcation is sometimes “unprincipled and arbitrary”.  A true constituent element can be removed from the definition of the crime and cast as a defensive issue whereas any definition of an offence can be reformulated so as to include all possible defences within it.

 Take for instance, the case of R v Edwards [1975] which concerns the offence of “selling intoxicating liquor without a justices’ licence”.  In some sense, the definition of the offence was formulated in a fashion which already included possible defences, thus making the demarcation between elements of an offence and those of a defence, blurry.  Although the definition of the offence in Edward conflated both elements of offence and defence, a demarcation can still be made upon strenuous efforts.

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 The same cannot be said for other defences which are so closely linked to mens rea therefore it is in Lord Steyn’s words, “necessary to concentrate not on technicalities and niceties of language but rather on matters of substance.” 31. Significance of maximum penalties

 The next factor Dennis identified concerns the “seriousness” of the offence in question.  Dennis wrote that courts have derived the seriousness of offences from their maximum penalties and are less likely to shift the legal burden when the punishments are more severe.  For example, reverse legal burden was rejected in R v Lambert [2001] when the offence of the possession of banned substances with intent to supply said substances involved the harsh maximum penalty of life imprisonment.  Conversely, reverse legal burden was upheld in “less serious” cases such as drinkdriving in Sheldrake v DPP where the maximum penalty entailed a meagre six months of imprisonment in comparison to penalties for other offences.

 It is somewhat obvious that the more serious the offence, the more compelling must be the justification for imposing a reverse legal burden.  However, Dennis himself is perceptive to identify that the application of this principle is “patchy to say the least.”  While maximum penalties are a good starting point, they do not conclusively indicate the severity or gravity of an offence.  Take for example the case of R v Johnstone [2003] in which a reversal of legal burden concerning the offence of bootlegging was still permitted even though the maximum penalty in question was imprisonment up to ten years.  Therefore, judges should not rely on maximum penalties as a sole yardstick in gauging the severity of an offence but instead examine said offence holistically by taking into accounts other things like social implications.  Save for the over-reliance on maximum penalties, severity of offences remains a good factor to consider when judges seek to apply the proportionality test.(in deciding whether a legal burden on an accused is compatible) 32. Ease of proof and peculiar knowledge

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 Moreover, Dennis recognised that the judiciary is often ready to reverse a legal burden if an accused has the peculiar knowledge to discharge the legal burden in a way that is easier than the prosecution.  In his article, he drew our attention to a number of judges who all referred to peculiar knowledge in their judgments including Lord Nicholls in Johnstone.  Logically speaking, there are some circumstances in which things are best known to the defendants themselves since science still remains incapable of revealing our true thoughts.  In Johnstone for instance, who else could be in a better position than the accused himself to prove that he was not aware of the existence of the relevant registered trademark? As a person who trade in brand products, he had to be aware of the need to be on guard,  All that said however, peculiar knowledge on the defendant’s part of their own innocence does not necessarily mean that the defendant will easily be able to prove it.  For instance, a defendant may genuinely intend to only sleep in his car after drinking alcohol, but how can he demonstrate that specific intent if the court asks him to show such intent?  There is definitely a risk of truthful defendants being convicted every time a reversal of legal burden is permitted, therefore peculiar knowledge of an accused should only be taken as one of the many competing factors that the courts have to consider in deciding the proportionality of a reverse legal burden. 33. Presumption of innocence

 Last but not least, Dennis thought that the presumption of innocence itself is foremost in judges’ mind when they consider the proportionality of reverse onuses.  He noted that English judges in particular are fond of a more morally substantive conception of presumption of innocence.  Unlike the proceduralist view which only concerns the proof of facts at trial, this conception emphasises fairness in both process and outcome.  In Lambert for instance, one of Lord Steyn’s reasons for rejecting a reverse onus under s.28 of the Misuse of Drugs Act 1971 was that it would oblige the court to convict the defendant where it thought his version of the facts was as likely to be true as not.

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 If a reverse onus was imposed in that case, the accused might still be convicted even if he adduced sufficient evidence to raise a doubt about his guilt, simply because the jury was not convinced on a balance of probabilities that his account was true.  This was thought to be unfair and unacceptable for an offence punishable with life imprisonment.  English judges are evidently frightful of the risk of wrongful convictions, and certainly regard the outcome of wrongful convictions as significantly worse than wrongful acquittals.  William Blackstone’s idea that “it is better that ten guilty persons escape than that one innocent suffer” unquestionably continues as a staple of English legal thinking.

34. In summation, Dennis has helpfully drawn the authorities together and provided us with an outline of factors that courts have considered in applying the proportionality test. 35. If a court in the application of the proportionality test holds that a reverse legal burden is unjustified, it is then faced with two possible courses of actions. 36. The first is to “read down” the legal burden to an evidential burden, using the interpretative power under S.3 of the HRA 1998. 37. The other alternative is to make a declaration of incompatibility by exercising S.4 of the HRA. 38. In practice, the former is mostly the preferred course of action since s.3 provides that so far as it is possible to do so legislation must be read and given effect in a way that is compatible with Convention rights. 39. After some initial hesitation as evinced by Lord Hope in Ex parte Kebilene, it has become apparent that s.3 allows courts to jettison the ordinary, incompatible meaning of a statutory provision in favour of a secondary and perhaps more contrived meaning if the latter would facilitate a compatible reading. 40. It was on this ground that the House of Lords construed the words “to prove” in S28 (2) of the Misuse of Drugs Act 1971to mean “to adduce sufficient evidence” in Lambert.

CONCLUSION 41. Although Dennis identified the factors prominent in judicial discussion, he himself concedes that it is difficult to discern any pattern within the case law on the relative

BURDEN OF PROOF [REVERSAL OF BURDEN OF PROOF & ART 6(2) ECHR] importance of each factor, with the author indicating that 'the justifiability of particular reverse onuses will resemble a forensic lottery'. 42. According to David Omerod, one could possibly find as rational an argument for a statute’s reverse onus provision being compatible as they may for it being incompatible. 43. It would seem that a decision which may have such heavy bearing on the outcome of a defendant’s case is dependent upon the courts’ rationalization. 44. It is certainly lamentable that reversal of burdens was “automatic” prior to the HRA, but at the very least the law was consistent and uncomplicated. 45. The only consistency about the law post-HRA is that the courts should use s.3 of the HRA fully. 46. This is not to say that Article 6(2) is unwelcome. As a matter of fact, it should be lauded for reminding us of the importance in relation to the presumption of innocence. 47. Perhaps should begin reconsidering seriously the proposal advanced by the Criminal Law Revision Committee in 1972 to make burdens on the defence evidential only for the sake of clarity and convenience in practice. 48. Until an active move is made towards reform in this area, the law will persist to be in disarray....