Reverse burden of proof

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In English criminal law, there has always been aPresumption of innocence; that is, we assume that it is the job of the prosection to prove all the facts of the crime against the defendant, to a high standard. The presumption of innocence has a long and distinguished history (see, for example, RVWoolmington1935) and is now enshrined in the European Convention on Human Rights (ECHR), Article 6(2) of which reads:

Everyone charged with a criminal offense shall be assumed innocent until proven guilty according to law.

However, there are both express and implied statutory exceptions to this principle. An express exception is to be found in s.2 of the homicide act (1957), which states that a person who wishes to rely on the defence ofdiminished responsibility must prove that he was acting under a disturbance of mind which led to the fatal act. It is widely accepted that the burden of proof lies with the defendant in such cases. In practice, Parliament has been very willing to impose a burden of proof on a defendant in so far as the facts relate to a defence, rather than to the elements of the offence itself. For example, if the defendant is charged with carrying a knife in a public place, contrary to s.139(4)criminal justice act (1988), it is for the prosecution to prove that the defendant had the knife, that its size and shape put it within the remit of the statute, and that the defendant was in a public place. The defendant does not have to prove that he did not have a knife, or that it was too small to be proscribed, or that he was not in a public place. However, if the defendant wishes to rely on the defence of lawful authority to defeat the charge, he must prove that he had lawful authority.

It should be recognized that a 'true' reverse burden of proof is rather different from an 'evidential burden' (also sometimes confusingly called an 'evidential burden of proof'). The common law has always accepted that sometimes it will be necessary for the defendant to raise sufficient evidence to benefit from a defence. For example, to avail himself of the common-law defence of Insanity, the defendant must lead some evidence to support the defence. It remains the task of the prosecution to disprove the defendant's evidence, beyond reasonable doubt.

Implied reverse burdens of proof sometimes arise where a statute criminalises some conduct, but makes provision for certain facts that might negate the offence. Depending on the wording of the statute, the court may construe such a provision as imposing the burden of proving these facts on the defendant. For example, a defendant charged with selling alchoholic drinks without a licence has the burden of proving that he had a licence at the relevant time. It is not for the prosecution to prove that he did not. This conclusion follows from s.101 of the Magistrates' Courts Act (1980), which states that where the definition of a criminal offence includes an exception, exemption, proviso, qualification or excuse, it is for the defendant to prove that his conduct falls within the exception, etc. Such a provision has become known by the jargon term 'affirmative defence'.

More controversial are statutes in which it is unclear whether the language defines the elements of the defendence, or a defence. For example, if a statute makes it an offence to carry out same action without, for example, a specific permit, it is not entirely clear whether the possession of the permit is a defence to the charge, or whether lack of a permit is an element of the offence. If it is a defence, then presumably s.101 will apply, and the burden of proving that he had a permit will fall on the defendant. If lack of a permit is an element of the defence, then presumably it will be for the prosecution to prove. Following Woolmington we might expect the courts to construe such statutes to the benefit of the defendant, but this has not always been the case. In R v edwards (1975), the Court of Appeal held that it was reasonable to impose on a motorist the burden of proving that he had a driving licence. The offence was relatively minor, the 'defence' easy to prove, and the interests of society very much in favour of prosecuting offenders. Edwards shows very clearly that the courts were prepared not only to accept the presence of a reversed burden of proof, but in fact to extend the circumstances giving rise to a reversed burden of proof beyond the strict wording of the statute.

Some commentators interpreted Edwards as creating an exception to the presumption of innocence in certain cases, particularly minor, regulatory offences where the facts could be proved more readily by the defendant than disproved by the prosecution. In R v hunt (1987), the House of lords approved Edwards in a general sense, while denying that it had established a specific exception to the Woolmington principle. Instead, the judgement in Edwards_ was to be taken as a 'guide to construction'. In Hunt the central issue was whether, in a case where possession of a controlled drug in one form was legal and in another form was not, the burden of proving that the drug was in a particular form was on the defendant or the prosecution. The House held in that case that the form of the drug was one of the elements of the offence, and had to be proved by the prosecution; but the judgements also made it clear that there would be circumstances when, having regard to wording of the provision as a whole, and the nature of the mischief it sought to prevent, it would be justified to place the burden of proof on the defendant. The judgement did point out, on the whole, that such circumstances should 'exceedingly rare', and that one should not readily assume that Parliament had intended to put a burden of proof on a defendant, and that in all the cases where this interpretation had been adopted, it would have been very easy for an innocent defendant to discharge the burden of proof.

Many commentators, while agreeing with the decision of the House in Hunt, regreted their Lordships' unwillingness to take a principled stand, and reinforce the Woolmington rule. By leaving the decision whether to accept a reversed burden of proof to the courts to make by balancing principle with policy considerations, it has been argued that further inroads will be made in the the Woolmington principle. In fact, this argument may be moot, since the human rights act (1998) has had a considerable impact in this area.

Under s.3(1) of this Act, courts are required to interpret legislation, so far as possible, to be compatible with the ECHR. Since the primary guide to the interpretation of the ECHR is the decisions of the European Court of Human Rights in Strasbourg, it follows that, where an issue of human rights is raised, UK courts should look to these decisions for interpretative guidance. Since the HRA came into force, and until quite recently, the usual approach adopted by the courts to legislation that appeared to reverse the burden of proof was to 'read down' the offending provision and interpret it as imposing an evidential burden only.

For example, in R v lambert (2001) the 'affirmative defence' in s.5 of the misuse of drugs act (1971) was considered by the House of lords. The defendant's appeal failed on the grounds that the HRA was not, at that time, in force, but their Lordships went on to consider what would have been the position under the Act. By a 4-1 majority, it was decided that s.5 imposed on the defendant an almost insurmountable burden of proof, and would have to be read down as an evidential burden.

This is a neat piece of judicial sleight-of-hand -- it respects the wording of the statute, while at the same time maintaining the true burden of proof on the prosecution. The problem is that in many cases it is absolutely clear that Parliament fully intended to impose the burden of proof on the defendant, not merely to impose an evidential requirement. This view is reinforced by the finding that some statutes specifically state that certain requirements are evidential, while some are for the defendant to prove.

Consequently, a large number of cases have been through numerous appeals, with different findings at each stage, and it has become clear that to read all provisions that purport to impose a burden of proof on the defendant as 'evidential provisions' is not workable in practice. Clearly it was necessary to decide that either (a) imposing a full burden of prove was not automatically in conflict with Art. 6(2), or (b) much of UK criminal legislation was incompatible with Art. 6(2). The question was decided in favour of (a) in the recent House of lords case Dpp v sheldrake (2004). This case concerned two consolitdated appeals, one against a conviction for drunk driving, and one an appeal against an Attorney-General's reference concerning membership of a proscribed terrorist organization.

The drunk driving case concerned s.5(2) of the road traffic act (1988), which provides a defence if the accused can prove that there was no likelihood of his driving the vehicle while drunk. The AG's ref. was in respect of a defendant who had been acquited of a charge of being a member of a proscribed organization. According to s.11(2) of the terrorism act (2000), it is a defence for the accused to prove that he taken no part in any activity of the organization whilst it was proscribed. The Court of Appeal had held tha s.11(2) did impose a burden of proof on the defendant, and was therefore incompatible with Art.6(2).

The House of lords (1) by a 3-2 majority confirmed that s.11(2) of the 2000 Act imposes a burden of proof on the defendant, and is disporportionate to its objectives; it must therefore be read as imposing an evidential requirement; and (2) unanimously confirmed that s.5(2) of the 1988 Act imposed a burden of proof on the defendant which was proportionate, and should be read that way.

The overall conclusion seems to be that some statutes do impose a burden of proof on the defendant, rather than merely an obligation to raise evidence, and whether that is acceptable or not depends on the proportionality of the measure and the severity of the potential sentence.

Now, the wording of Art. 6(2) is very clear, so what arguments were made that imposing a burden of proof on the defendant did not infringe the general presumption of innocence?

  1. The European Court of Human Rights has stressed that the state is not automatically in breach of Art. 6(2) by making a plain state of affairs (e.g., possession of some proscribed item) a criminal offence. Offences ofStrict liability are permissible, provided they are proportionate. If it is not a violation of 6(2) to create an offence with, essentially, no defence, it cannot automatically be a violation to create an offence where the defence is difficult to exercise.
  1. An essential element in each of the offences in the current case is a particular state of affairs (membership of a proscribed organization, drunkeness). The prosection must prove this state of affairs, not the defendant. By providing an additional defence, Parliament is not reducing the scope of what the prosecution has to prove. The defendant is still better off than he would have been without the defence. It can be argued that if all 'affirmative defences' can be read down as evidential duties, the legislature will stop including them as they would make evading conviction too easy.
  1. If it were not for the statutory defences in the various Acts, the question of compatibility with the ECHR would never have arisen. For example, if the 2000 Act provided no defence for a person who had never participated in the activities of the terrorist organization, then one could argue that the offence would have been draconian. But there would be no compelling argument that it infringed Art. 6(2).
  1. Art. 6(2) is merely a clarifiction of Art. 6(1), which states that the defendant has a right to fair trial. The ECHR is concerned with the overall fairness of the criminal process, rather than technicalities concerning the burden of proof.

In the Sheldrake case, the penalty at stake was relatively minor, and the proscribed conduct (drunken driving) very dangerous. The prosecution still had the task of proving that the defendant was drunk in charge of a vehicle, and the defendant was not left without any defence. Consequently, the imposition of a burden of proof on the defendent in respect of his particular defence -- that he was not likely to have driven while under the influence of alchohol -- was fair and proportionate. In AG's ref no. 4, the penalty at stake was ten years' imprisonment, and the burden of proof imposed on the defendant was almost impossible to discharge. Therefore, this burden of proof could not be allowed to stand.

So where does this leave the law? Well, it makes clear that a statute that imposes a burden of proof on the defendant need not automatically be read down into an evidential requirement. In some cases, a reverse burden of proof is proportionate and fair. However, there is still no definitive guidance on the criteria for deciding whether a reverse burden of proof is proportionate or not.

Criminal Law