Burden of Proof. The courts constantly battle with the simple question of: in what circumstances is a reverse onus in a criminal case compatible with the presumption of innocence under Art.6(2) of the Convention?

In his article Ian Dennis takes up this challenge. He reviews the English case law all of which have been mentioned above, with the aims of identifying the nature and extent of the confusion and disagreement it displays, and of examining how far it is possible to construct defensible general principles for resolving issues of compatibility of reverse onuses. In his paper he takes in account six relevant factors about which there are varying degrees of judicial uncertainty and inconsistency by taking these into account like I mentioned earlier, helps in the consideration of whether reverse onuses are justified or not. These include the three factors that Ashworth refers to and three others. In his article he goes on to suggest that underlying these factors are certain principles of a moral or a consideration of practical consequence in nature which can be used to resolve many issues of reverse onuses. He went on to build  on a moral principle expressed by Lord Steyn in Lambert and, Lord Bingham's speech in Sheldrake which happens to offers a broad approach to the presumption of innocence and to the

circumstances in which it can be legitimately applied to a qualifying degree. In my opinion it is an advantageous approach. However there is no solve all solution, and upon analysis it also presents some significant problems. It requires very fine detailed analysis of the humongous scope and rationale of the all too many offences to which reverse onuses may apply. Such analysis tends to produce distinctions that are essentially contradicting, and distinctions between offences that are hard to fit with some of the relevant factors that were mentioned a little higher earlier. It generates inconsistency between statutory and common law defences (s101 of the Magistrates Court Act (1980). It’s so complex, that Ian Dennis even questioned if there was any point in taking the time and effort to search for this principle should be abandoned. The only other real alternative is the law reform proposal made more than 30 years ago by the Criminal Law Revision Committee and looking at how long ago that was made and how very little has been done about it, it prospects of the government or the courts taking me up seem so unlikely.

To overcome the nature and context of the problem we must first look at nature and scope of the problem. Firstly we have to distinguish between the “legal” burden, sometimes called the “persuasive” burden, of proof and the “evidential” burden. A defendant who bears a legal burden will lose if he fails to convince the tribunal of law of the matter in question on the balance of probabilities. An evidential burden is a burden of adducing the correct or enough evidence to raise an issue regarding the existence of a matter and making the issue a live one. The burden of disproving the asserted matter will then fall on the prosecution in accordance with the normal rule. The significance of    acknowledging this distinction is that the evidential burden does not encroach the presumption of innocence. Unlike the legal burden they do not require the accused to take the position and the risk of being guilty on the outset and being convicted just because he fails to prove some matter relating to his not being guilty. Therefore the courts have held that if they find a legal burden imposed by a reverse onus provision to be incompatible with Art.6(2) they can use their interpretative power under s.3 of the Human Rights Act  to “read down” the legal burden to an evidential burden. s.3 is adopted to be the friendlier solution. Declaring legislation incompatible is a last resort and the judiciary is to as to their best interpret legislation in a way that is convention compliant. The problem of presumptions and affirmative  is that we are left to deal with is very specific in nature and hence the very shallow pool of solutions at our disposal. It makes no difference whether the statute provides that ‘it is an offence to drive without a license’ or ‘it is an offence to drive without a license unless in his defense the driver can prove he has a license’. Both types of provision require the defendant to prove a matter going to his innocence of the offence charged. The leading case in Strasbourg, Salabiaku v France ‘referred to Member States confining presumptions within reasonable limits, but that terminology was appropriate to the case, which was concerned with a presumption in the French customs code of liability for a person found in possession of prohibited goods’. Subsequent decisions in Strasbourg, and the leading English cases, have applied the same principles in considering the onus of proof of affirmative defences. These are often defences to strict liability offences, and they can just as easily be drafted in the form of presumptions that concern what constitutes the elements of the defence. Ian Dennis has submitted that “when a challenge is made to the compatibility of a reverse onus the present law requires a three-stage process of decision-making.

1. Interpretation of the statute: ‘does the provision in question, interpreted in accordance with the ordinary principles of construction, place a burden on the accused? If so, is it a legal or an evidential burden? If it is evidential no further inquiry need be made about compatibility with Art.6(2). If it is a legal burden, the court must move to stage two to assess the question of compatibility.’

2. Justification of the reverse onus: ‘does the provision in question serve a legitimate aim and is it proportionate to that aim? If the answer is yes the provision is an acceptable qualification to the presumption of innocence. The defendant will then bear the burden of proof on the matter in question, although to a lower standard of proof than the prosecution (namely the balance of probabilities). If the answer is No the court must move to stage three.’

3. Reading down the provision: ‘if the reverse legal burden cannot be justified can the court “read down” the burden to an evidential one, using s.3 of the HRA? If it can it should do so. If it cannot the court should make a declaration of incompatibility of the provision under s.4 of the HRA. However, although the problem is circumscribed, it is a problem on a large scale. There are numerous reverse onuses in the criminal law. Many of them are imposed expressly by the legislation. Ashworth and Blake suggested a few years ago that express reverse onuses are to be found in around 40 per cent of all indictable statutory offences. They extend across the entire range of seriousness, up to and including murder, where the defendant bears the burden of proving the statutory partial defense of diminished responsibility. They can also be imposed by necessary

implication from the statutory language. In this connection we should recall s.101 of the Magistrates' Courts Act 1980 which provides that where the defendant relies for his defense on any statutory exception, exemption, proviso, excuse or qualification (EEPEQ) to a summary offence the burden of proving the exception shall be on him. A court which interprets a provision as falling within one of these categories must therefore hold that Parliament intended the defendant to bear the burden of proof of the statutory defense. Section 101 has been held to restate for summary trial a rule of the common law which applied to the interpretation of statutory indictable offences.”’

There isn’t much about the first stage of the decision making process. This is concerned with the interpretation of the statute in question according to the normal principles. If the

legislation in question uses an expression such as “It shall be a defense to prove that the defendant has a license' in its ordinary meaning it seems to indicate that the defendant has the onus of proving that he has a license in his defense. In other words the onus of proving is expressly on the defendant. Sometimes these sort of express words are reinforced by a clear implication that can be found in other provisions. An example comes from the Terrorism Act 2000. Section 118 lists a number of provisions in the Act which create statutory defences to various offences under the Act and indicates that these impose only an evidential burden. Once the issue of such a defense is raised the legal burden is on the prosecution to prove beyond reasonable doubt that the defense is not available to the defendant on the facts of that particular case. In Attorney-General's Reference (No.4 of 2002) the House of Lords had no hesitation in deciding that the defense under s.11(2) of the Act was intended to impose a legal burden since it was not one of the defences that were listed in s.118 of the same act.

Section 101 of the Magistrates' Courts Act 1980 states the result of an exercise in

interpretative classification; yet it does not tell a court how to distinguish between the elements of an offence and statutory defences consisting of exceptions, exemptions, provisos, excuses and qualifications. Then Court of Appeal in Edwards, attempted to do this, where Lawton L.J. said that “these defences relate to statutory offences which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the license or permission of specified authorities. It is in these cases that the accused will need to prove that he comes within the specified exemption or has the relevant qualification.” Due to fact that it poses many applicability problems his principle has been criticized. Ian Dennis went on to add “More

fundamentally, the principle has been said to restate the problem of interpretation in more sophisticated language rather than provide a solution to it.” However due to lack of other authority it is used as a guide by some judges.

One very important correction to Edwards was made by the House of Lords in Hunt. In this case the House held that “a provision in the Misuse of Drugs Regulations 1973 was not intended to impose a legal burden on the defendant to prove that he was in lawful possession of morphine, despite the fact that the provision appeared in a part of the Regulations headed “Exceptions”. It was plausible to argue from the form of the legislation that Parliament had intended to prohibit possession of morphine absolutely save in such permitted circumstances”, and this argument had been accepted by the Court of Appeal. However, Lord Griffiths stated that” Edwards, while useful as a general guide to interpretation of statutory offences, did not cover the whole of the ground. He stressed the importance of three factors in deciding whether Parliament had intended to place an onus on the accused.

The first :

Was the object of the legislation: what was the mischief at which the Act was aimed?

The second:

 Was the practical considerations affecting the burden of proof, such as the relative ease or difficulty of proof: how difficult would it be for the prosecution to prove the matter in question and how easy would it be for the accused to do so? A court may be more likely to classify a provision as a statutory defense if it would not be difficult for the defendant to discharge the burden of proving it.

 The third:

 Was the seriousness of the offence. This offered a check on any expansive tendencies of the first two factors towards reversing the onus; according to Lord Griffiths it helps to resolve any ambiguity in favor of the defendant where the issue of interpretation is one of real difficulty.”

Now we look at the second stage of decision making where we look at the six elements taken into account to consider whether the reversal of burden should can or must be allowed.

The first element is based on a classification of offences that distinguishes, between mala in se an offence which is prohibited because it’s evil and mala prohibita which makes an offence evil because it is prohibited. For example in Lambert 2002 Lord Clyde said that a strict responsibility might be acceptable in the case of statutory offences that were concerned to regulate the conduct of a particular activity in the interest of the public. A license could be required to carry out certain activities, of controls might be imposed to promote health and safety and avoid pollution.

The second consideration is the deference to parliament’s decision to include the reversal. In Lambert 2002 lord Steyn said that the burden is on the state to show the legislative means adopted were not greater than necessary. He added that there must be a ‘pressing necessity’ to impose a legal burden on the accused. The third is based on drawing a distinction between elements of the offence and available defences. For example in Attorney General of Hong Kong v lee Kwong-Kut (1993), decision of the Privy Council, Lord Woolf said that if the prosecution retains responsibility for proving the essential ingredients of the offence, a reverse burden is more likely to be acceptable but, recognizing the difficulty of isolating the essential ingredients, he added that the substance and reality of the language creating the offence should be regarded rather than its form. Maximum penalties are the fourth consideration in Davies (2002) Tuckey LJ said that the absence of any risk of imprisonment was undoubtedly an important factor’ in determining whether there was a legitimate reverse burden of proof.

The fifth consideration is the ease of proof and the defendant’s peculiar knowledge can also be taken into account. For example in ex parte Kebilene Lord Hope said that one of the considerations was the nature of the burden on the accused. The sixth and final consideration is the presumption of innocence itself as Lord Bingham said in Sheldrake, the underlying rational of the presumption is that it is repugnant to ordinary notions of fairness for a prosecutor to accuse a defendant for crime and for a punishment if he fails to do so.

In the third stage, if it boils down to this, if a court holds that a reverse onus is unjustified it is then faced with two possible courses of action. The first is to “read down” the legal burden to an evidential burden, using the interpretative power under s.3 of the HRA. The second is to declare that the provision reversing the onus is incompatible with Art.6(2) under s.4 of the HRA the last resort stage which all judges should try to the best of their abilities to avoid.

As it has been shown time and time over it is difficult to abide by what parliament requires, expressly requires right down to the dotted i’s and crossed t’s. Because by doing this there will probably more cases in which the presumption of innocence will be stepped on in due to vast number of statute that are drafted in various ways. Hence in 1996, forty percent of the offences triable in the crown court appeared to violate the presumption of innocence. In a nutshell it shall not be a departure from the basic principle of the presumption of innocence to impose a burden on a defendant only to the extent parliament expressly requires.

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