Historical background & Development of the law of Criminal Evidence In criminal proceedings, the legal burden of proving any fact which is essential to the prosecution’s case rests upon and remains with the prosecution for the duration of the trial. Generally, the defendant in the proceedings will bear no legal burden at all in relation to the essential ingredients of the offence. The reasoning behind this is that all persons are entitled to a fair trial where the presumption of innocence is a fundamental right.
It would be unfair to expect a person accused of a crime to disprove the accusation, with the result that if he fails to do so he faces conviction and punishment. This rule was clarified by the case of Woolmington v DPP which involved a farm labourer, Reginald Woolmington, who had been convicted of killing his wife. Woolmington appealed on the basis that the trial judge had misdirected the jury but his application was refused. However, since this decision involved a point of law of “exceptional public importance”, the Attorney General allowed the case to be brought before the House of Lords, who quashed the conviction.
The decision of the House was that it is for the prosecution to prove both death as a result of a voluntary act by the defendant, and also prove the malice of the defendant. The defendant is entitled to provide an explanation or evidence in relation to the events. If the jury are satisfied with his explanation or, on review of all the evidence presented, are in doubt whether or not the act was unintentional or provoked, even if the defendant’s explanation is not accepted, he is entitled to be acquitted.
Therefore, it was for the prosecution to prove Mr Woolmington killed with malice, rather than for Mr Woolmington to prove that he had some excuse, justification or explanation for the killing. The rule established by Woolmington is subject to exceptions and it is the rules of substantive law that determine which party bears the burden of proof in relation to the proceedings. For example, where the defendant raises the defence of insanity, he will bear the legal burden of proving it.
Where it is alleged that the defendant suffers from a disability which renders him unfit to plead and stand trial, this issue may be raised by either the prosecution or defence. If raised by the prosecution, they must prove the issue beyond reasonable doubt, whereas if raised by the defence they must only prove the issue on a balance of probabilities. Where the defendant is charged with murder and seeks to raise the issue of insanity or diminished responsibility, the prosecution may present evidence to prove the other of those issues, but must then bear the burden of proving the other issue for which they have presented evidence.
The standard of proof required in such case is beyond reasonable doubt. A further exception to the rule in Woolmington arises where statute expressly places the legal burden of providing certain issues on the defendant, although the burden for all other issues remains with the prosecution. An example can be found at s2(2) of the Homicide Act 1957 which places the legal burden of establishing the defence of diminished responsibility on a charge of murder, on the defendant. Statutes may also impliedly place the legal burden of proof on the defendant. S. 01 of the Magistrates Court Act 1980 provides that where a defendant relies on any exception, proviso, excuse or qualification, the burden of proving it shall be on him. This must be read subject to the Human Rights Act 1998. It applies to statutes that contain exceptions such as “unless”, “provided that” and “except where… ” This is clarified by the case of Gatland v Metropolitan Police Commissioner [1968] which involved application of s. 161(1) of the Highways Act 1980. The Act provides that a person depositing anything on the highway “without lawful authority or excuse” shall be guilty of an offence.
It was held that it was for the prosecution to prove that the defendant had deposited something on the highway, and it was for the defendant to prove that they had lawful authority or excuse pursuant to s. 81 of the Magistrates Court Act 1952 (now s. 101). These exceptions to the rule in Woolmington are referred to as ‘reverse onus provisions’. A reverse onus clause is a provision within a statute that shifts the burden of proof on to the defendant specified to prove some matter the effect of which is that he is not guilty of the offence charged.
Typically, this provision concerns a shift in burden onto a defendant in either a criminal offence or tort claim. For example, the automotive legislation in many countries provides that any driver who hits a pedestrian has the burden of establishing that they were not negligent. In criminal cases, this can present difficulties for a court in upholding a reverse onus because since the Human Rights Act 1998 came into force, any reverse onus provisions are open to challenge on the basis of their incompatibility of Article 6(2) of the European Convention on Human Rights.
Article 6 (2) states that: “everyone charged with a criminal offence should be presumed innocent until proven guilty according to law”. The presumption of innocence is, as stated, essential to the concept that it would be unfair to expect a person accused of a crime to disprove the accusation on the understanding that if he fails, he will be convicted and punished. However, this presumption is not absolute and unqualified, and neither is the application of Article 6(2). The relevant test is whether the statutory provision in question pursues a legitimate aim and whether it satisfies the principles of proportionality.
If this is achieved, the statutory provision will not be incompatible, even though it modifies the presumption of innocence under Article 6(2). Thus, statutes that exclude the requirement of mens rea are permitted but must be reasonable. The case of Salabiaku v France [1988] clarifies that where a presumption exists that is adverse to a defendant, a court may consider, inter alia, the opportunities given to that defendant to rebut the presumption, the flexibility in application of the presumption and the difficulties a prosecutor would face in absence of that presumption.
Such difficulties can be seen in the case of R v Lambert, in which the defendant was found in possession of two kilograms of cocaine in a duffle bag, and was subsequently charged with possession of cocaine with intent to supply. Lambert sought to rely on s. 28(3)(b)(i) of the Misuse of Drugs Act 1971 which provides that a person shall be acquitted of the offence if he proves that he neither believed, nor suspected, nor had reason to suspect that the substance or product in question was a controlled drug.
The judge directed the jury that if they were satisfied that Lambert had the drug in his possession, the burden was on him to prove on the balance of probabilities that he did not know the bag contained a drug, in accordance with s. 28. The House of Lords held that the trial had taken place before the 1998 Act came into force and Lambert could not therefore rely on any alleged breach of his rights under the ECHR. However, they held that s. 8 was not compatible with Article 6(2) and therefore must be read as imposing only an evidential burden on the defendant. The word “prove” was to be read as meaning “give sufficient evidence”. An evidential burden is an obligation on one party to produce sufficient evidence of a fact for the issue to go before the tribunal of fact. It is not strictly a burden of proof because an evidential burden can be discharged by producing evidence that would fall short of proof. The evidence required must be sufficient to revent the judge from withdrawing the issue from the jury. If the burden on the accused is an evidential one, then no further inquiry need be made about compatibility with Article 6(2). In the case of Attorney-General’s Reference (No. 4 of 2002) Lord Bingham argued that the definition of the offence in s. 11(1) of the Terrorism Act 2000 was sufficiently wide and uncertain as to include persons whose conduct could not reasonably be regarded as “blameworthy or such as should properly attract criminal sanctions”.
In these circumstances he thought there would be a clear breach of the presumption of innocence, and a “real risk of unfair conviction” if such persons could only exonerate themselves by discharging a legal burden of proving the defence in s. 11 (2). This burden might be extremely difficult for the defendant to discharge: “it might well be all but impossible for him to show that he had not taken part in the activities of the organisation at any time while it was proscribed”. Accordingly, the reverse onus could not be justified and would be read down to an evidential burden.
In contrast, a legal burden of proof requires a party to prove a fact in issue. Where the prosecution has the legal burden, the standard of proof required is beyond reasonable doubt. As discussed, who has the burden will depend on the rules of substantive law but generally, the legal burden to prove a particular fact falls with the party whose case depends on that fact being proved. In criminal cases this is almost always the prosecution but on occasions it is the defendant that must establish proof on the balance of probabilities and this remains the law despite much debate.
One such case involved a charge of being in possession of a lock knife in a public place contrary to s. 139 of the Criminal Justice Act 1988. This Act provides a defence at s. 139(4) if the accused can prove he had good reason or lawful authority. The provision was held to be compatible with Article 6(2) for a number of reasons including the fact that a strong public interest exists to deter people from carrying knives in public without good reason or authority.
Lord Nicholls clarifies this point in R v Johnstone, explaining that for a reverse burden of proof to be acceptable there must be a “compelling reason why it is fair and reasonable to deny the accused person the protection normally guaranteed to everyone by the presumption of innocence” and the more serious the punishment, the more compelling the reasons must be. In Attorney General’s Reference (No 4 of 2002) Lord Bingham clarified the point that it was never he task of the court to decide whether a reverse burden should be imposed on the defendant, but instead their responsibility was to assess whether a burden enacted by the legislature unjustifiably infringes the presumption of innocence. It would seem from the cases discussed that the court have been willing to allow the legal burden of proof to rest with the defendant and the effect of Article 6(2) has not been to impose an absolute prohibition on reverse onus clauses, whether evidential or persuasive, but rather to impose a test for each clause to be within reasonable bounds.
Generally where the penalty for committing the offence is severe, the Court has been more inclined to make a ruling of incompatibility. Where a statute has been found to be unreasonable or to go beyond what is necessary, the burden has been reduced to evidential only but according to research conducted by Ashworth & Blake it is estimated that, at this time, some 40% of offences triable in the Crown Court still impose a legal burden on the defendant to prove at least one element of the offence or statutory defence.
This does appear to have the effect of minimising the rule in Woolmington. The “high degree of probability” required for the standard of proof is reduced to a balance of probabilities in cases where the burden has been reversed. It is important to appreciate that where the defendant is required to prove a fact on the balance of probability to avoid conviction, this “permits a conviction [despite the jury] having a reasonable doubt as to the guilt of the accused”.
In other words, the jury have a duty to convict if they are in any doubt that the defendant has established his defence or if they view his version of events as likely true as not. This seems to return to the old views that the Lords in Woolmington were so anxious to eradicate. To avoid breach of Article 6(2) of the ECHR, it would seem highly desirable to identify general principles which would afford trial judges more structured guidance and enable decisions about this fundamental issue to be made with a greater degree of consistency and coherence.
One option would be to return to the proposal made more than 30 years ago by the Criminal Law Revision Committee that any burden on the defendant should never be more than evidential. This would give maximum possible weight to the presumption of innocence and eliminate problems of compatibility with the ECHR. But it would be a major law reform. The courts have made it clear that they cannot or will not undertake it, and no government has shown any enthusiasm for taking it up.
