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the Middle Ages, based on the holding of lands in fief or fee and on the
resulting relations between lord and vassal.
Contemporary Development
The presumption of innocence presumes the defendant to be
innocent until proven guilty, with the prosecution required to prove all the
elements of the offence beyond reasonable doubt. This principle was laid
down by Viscount Sankey6 in Woolmington v DPP7 : 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 subject to what
I have already said as to the defence of insanity and subject also to any
statutory exception...
This golden thread was subsequently affirmed in Article 6(2) 89 of the
European Convention on Human Rights10.
While not a burden of proof per se, the defendant in a criminal trial
has an evidential burden11 where he is seeking to rely on any common law
defence other than insanity. Once the defence becomes a live issue, the
prosecution must again prove beyond reasonable doubt that facts dictate
otherwise before the jury can convict.
Woolmingtons decision was profound as it changed the previous law
by rejecting Fosters doctrine of the presumption of malice12. Secondly, its
reference to the duty of the prosecution to prove the accuseds guilt, and
holding that the prosecution also had the burden of disproving any
common law defences that the accused had specifically raised13. However
it is doubtful how far it has had either effect, even after the Human Rights
Act 199814.
Exceptions to the presumption
1. Insanity
to some evidence that is capable of making the issue a live one, fit for
consideration by a jury.
12 In that case Swift J, an experienced judge had directed the jury that
once the prosecution had proved that the deceased had died at the hands
of the accused, then that was presumed to be murder unless the
defendant could satisfy the jury that it was an accident. In this way the
judge clearly placed on the defendant the burden of proof of lack of mens
rea. Though heavily criticized by todays standards, there was
considerable authority for it was an accurate statement of law in that
time.
13 I Dennis, The Law of Evidence, 4th edition, 458.
14 Hereafter known as HRA 1998'
18
, the
European Court of Human Rights19 ruled that the insanity exception did
not breach Art 6(2) since the main concern was the presumption of
sanity.20
2. Express Statutory Reversal
His Lordship also excluded any statutory exception from the scope of
presumption of innocence. Statutory exceptions are commonly said to be
of two types: express and implied.21
When express statutory provision obliges the accused to prove his
defence, it will automatically shift a legal burden on him to prove his
defence on the balance of probabilities without any assessment attached.
edition, 35.
18 H v United Kingdom Appn No 15023/89, 4 April 1990 (unreported).
19 Hereafter known as ECtHR
20 Maureen Spencer and John Spencer, Evidence, 2nd edition, 14.
21 I Dennis, The Law of Evidence, 4th Edition,460 -461.
edition, 37.
statutory reversal
28 Misuse of Drugs Act 1971, s.5(3).
29 Reversed legal burden
30 P Murphy, Murphy on Evidence,10th edition, 103.
31 This happened before the HRA 1998 came into force.
Nonetheless, in the obiter the majority of the House held the reverse
legal burden of s.28 was incompatible with Art6(2), as it had a high risk of
wrongful conviction32. With the result that s.28 must be read as if it
imposed only an evidential burden on the accused, the word proves as
used in s.28 must be construed to mean give sufficient evidence, by
employing s.3 of the HRA 1998.
Test of proportionality how could a reverse onus to be justified?
As a result of Lambert, it is submitted that the imposition of reverse legal
burdens of its prima facie33 incompatible with Art6 of the ECHR, and must
be scrutinized with great care in light of the principle of proportionality.
34
However, House of Lords also made it clear that not all legal burdens
were placed on a defendant in criminal trial violated the ECHR or Art6(2)
in particular. The court held, it was not an absolute right in all the
circumstances. In Salabiaku v France35, the ECtHR stated that some
reverse burdens of proof are convention compliant.36
32 Referring to Lord Steyns judgment: accused must prove on the
balance of probabilities that he did not know that the package contained
controlled drugs. If the jury is in doubt in this issue, they must convict
hima guilty verdict may be returned in respect of an offence punishable
by life imprisonment even though the jury may consider that it is
reasonably possible that the accused had been duped.
33 Latin for on its face. Refers to establishing a case by firstly looking at
Hence the courts must ensure every reverse onus clause in English
law must be measured for convention compliance. Although it is apparent
that the onus on those seeking to persuade the courts that a reverse
burden is necessary is heavy, the courts continue to uphold such
provisions. In Sheldrake37 their Lordships also concluded that when
conducting an assessment of proportionality, it was necessary to balance
societys interest in the effective suppression of a social mischief against
the defendants right to a fair trial. When weighing up these two
competing interests, several factors38 could be considered.
This test depends upon the circumstances of the individual case. It
follows that a legislative interference with the presumption of innocence
requires justification and must not be greater than is necessary. The test
of proportionality requires courts to consider whether there was a
necessity to impose a legal burden on the accused.39
Ian Dennis six cardinal rules
Ian Dennis has summarized the following factors to be taken into account
when applying the test of proportionality - judicial deference, classification
of the offence, construction of criminal liability, significance of maximum
penalty, ease of proof and peculiar knowledge, presumption of Innocence.
37 Sheldrake v DPP [2004]UKHL 43.
38 Amongst them were the severity of the offence in terms of potential
sentence, the ease of proof for one party or the other in relation to
establishing the reverse burden, and the danger of convicting the
innocent.
39 P Murphy, Murphy on evidence, 10th edition, 92.
Judicial deference
In response to the HRA 1998, how far should the courts defer to the
judgment of Parliament? In the case of Johnstone40, Lord Nicholls has
stressed that Parliament, not the court, is charged with. what should be
the constituent elements of a criminal offence, the court will reach a
different conclusion from the legislature only when it is apparent the
legislature has attached insufficient importance to the fundamental right
of an individual to be presumed innocent until proved guilty. Lord Woolf
CJ took a similar approach41 , ruling that the assumption should be that
Parliament would not have made an exception to the presumption of
innocence without good reason.
42
43
45
Classification of Offences
In Sheldrake, Jack J referred to the recognised distinction between truly
criminal offences and those which are regulatory and suggested that it is
UKHL 43
45 I Dennis, The Law of Evidence, 4th Edition, 474-476.
46
50
considered wrong in and of itself. The phrase is Latin and literally means
wrong in itself.
48 the Latin term for "wrong because they are prohibited."
49 Davies v Health and Safety Executive [2002] EWCA Crim 2949; an
employer was charged under health and safety legislation with failure to
ensure that his employees were not to exposed to health and safety risks.
The relevant employee had died.
50 I Dennis, The Law of Evidence, 4th Edition, 476.
51
crime involved.52
Summing up, the classification is shown to be dependent on the
judges personal opinion, which may be different from each other. In
Sheldrake, two of the divisional court judges thought that an offence was
not a regulatory matter, while Herinques J concluded the contrary.
Construction of criminal liability: elements of offences and
defences.
The general rule is that presumption of innocence requires the
prosecution to prove all essential elements of offences. In AttorneyGeneral for Hong Kong v Lee Kwong-kut
53
In the same case, Lord Steyn noted the difference between the
element of the offence and defensive issues was sometimes only a matter
of drafting technique. He suggested that it was preferable to focus on
moral blameworthiness. Defences such as those discussed in Edwards
should be distinguished from other cases where the defence is so closely
linked with mens rea and moral blameworthiness that it would derogate
from the presumption of innocence to transfer the legal burden to the
defendant. In AGs Reference (No.4 of 2002)
55
Art6(2) requires the prosecution to prove the true nature of the offence.
Application of this principle did not depend on formal statutory separation
of elements and defences.
Significance of maximum penalty
Generally the weight of presumption of innocence ought to increase in
proportion to the gravity of the offence. In Lambert, Lord Steyn attached
importance to the penalty of life imprisonment when reading down the
reverse onuses in that case. In Sheldrake, the House upheld the reverse
onus, as the maximum penalty of the offence was six months. In AGs
Reference (No.4 of 2002) the House read down the reverse onus, where
the maximum penalty was 10 years. These 3 cases were deemed to be
compatible of the guideline.
However, in Johnstone the maximum penalty for the offence is same
with the abovementioned AGs Reference case, yet the House upheld the
reverse onus. It would seem that maximum penalties are a very uncertain
55 Attorney-Generals Reference (No.4 of 2002) [2003]EWCA Crim 762.
56
58
Presumption of Innocence
Presumption has been said to be the foundation of the right to fair trial
under Art 6. Domestic courts that have to decide on justifiability of reverse
onuses will generally be doing so before then trial when rulings on the
burden of proof have to be made.
There are 3 different conceptions of the presumption. The first
conception focuses more on process than outcome; the presumption is
seen as a norm of fairness rather than an instrument to ensure accuracy.
This is the Strasbourg courts approach which has emphasised procedural
of presumption of innocence. The second conception of the presumption,
which described as a morally substantive conception, emphasises fairness
in both process and outcome. The third one is described by Robert and
Zuckerman as a normative moral and legal standard encapsulating a
strong commitment to avoiding wrongful convictions, rather than a recipe
for factual inference and adjudication This characterises the presumption
as a device for the avoidance of a particular outcome of criminal
proceedings. It becomes a protective device rule for the defendant against
the risk of error in adjudication61.62
English law favours a more morally substantive view of the
presumption of innocence. Lord Steyn conceived the presumption as
ensuring the issues of the defendants moral blameworthiness had to be
proved by the prosecution. One of Lord Steyns reasons for rejecting a
reverse onus in Lambert was that it would oblige the court to convict the
defendant where it thought his version of fact was as likely to be true as
not. This was thought to be unfair and unacceptable for an offence
punishable with life imprisonment. Lord Bingham took a similar approach
in Attorney- Generals Reference (No 4 of 2002) to reverse the onus under
s11(2) of the Terrorism Act 2000.
Conclusion
Colin Tapper summarises presumption of innocence to be a
fundamental rule of criminal procedure and it is rightly so. And yet
Lamberts case stands out to show us just exactly what happens when this
ruling is carelessly ignored. Some legal systems today have employed de
61 Judgement
62 I Dennis, The Law of Evidence, 4th Edition, 483.
Bibliography
Books
Dennis I, The Law of Evidence (4th edn, Sweet & Maxwell 2013)
Murphy P, Murphy on Evidence, (10th edition OUP, Oxford 2010)
Charanjit S and Mohamed R, Unlocking Evidence (2nd edition, Routledge
2013)
Spencer M and Spencer J, Evidence, (2nd edition)
Durston G, Evidence: Text and Material
Articles
Dennis I, Reverse Onuses and the Presumption of Innocence: In Search of
Principle [2005] Crim 18 901-936
Ashworth and Blake, 'The Presumption of Innocence in English Criminal
Law,' 1996 Crim. L.R. 306, at 309
Table of Statutes
Human Rights Act 1998
Magistrates Courts Act 1980, s.101
Summary Jurisdiction Act 1879, s.39(2)
Misuse of Drugs Act 1971, s.5(3).
Misuse of Drugs Act 1971,s.28.
Hunting Act 2004, Schedule 1.
Terrorism Act 2000,s.11(2)
European Convention on Human Rights, Art6(2)
s.31 Immigration and Asylum Act 1999
Table of Cases
McNaghten (1843) 10 Cl. & Fin.200.
Woolmington v DPP [1935] AC 462.
H v United Kingdom Appn No 15023/89, 4 April 1990 (unreported).
R v Lambert [2001] UKHL 37; [2002] 2 A.C; [2001] 2 Cr. App.
Salabiaku v France (A/141-A) (1991) 13 E.H.R.R. 379 ECtHR.
Sheldrake v DPP [2004]UKHL 43.
Johnstone[2003] UKHL 28.
Attorney-Generals Reference (No.1 of 2004) [2004] EWCA Crim 1025.
Brown v Scott [2003] 1 A.C. 681
Davies v Health and Safety Executive [2002] EWCA Crim 2949
R v Director of Public Prosecutions, Ex Parte Kebeline and Others [1999]
UKHL 43
Attorney-General for Hong Kong v Lee Kwong-kut [1993] A.C.951
R v Edward [1975] QB 27.
Attorney-Generals Reference (No.4 of 2002) [2003]EWCA Crim 762.
Makuwa[2006] EWCA Crim 175.