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The impact of HRA on burden of proof and bad character

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Burden of proof The non-fugitive initial presumption of innocence upon the accused and the heavy onus of proof insisted upon the prosecution to prove the guilt of an accused beyond reasonable doubt steadily erect the fundamentals of English criminal law. Thus, an accused person cannot be adjudged guilty, unless and until it is proven, accomplishing the standard of proof, that he is guilty. This is unyieldingly reflected in Art.6(2) European Convention of Human Rights (ECHR).1 The 'golden thread' which imposes the entire legal burden on the prosecution was robustly constructed in the landmark case of Woolmington v DPP.2 The House of Lords rejected the approach that the defendant was to bear the burden of establishing any defence he wished to advance, since it was for the Crown to prove that he had committed the actus reus of the offence. Instead, it was held that, save in certain exceptional cases, the prosecution bore the burden of proving all the elements of the crime and of negativing any defences advanced by the accused. Meanwhile, there are exceptions where the burden of proof is shifted to the defendant. Under common law, the only exception to the 'golden thread' is when the defence of insanity is raised by the accused. He must establish this on a balance of probabilities. It can be traced back to the advisory opinions of the judges in M'Naughten's Case.3 Statues may expressly decree that the defence bears the legal burden of proof: s.30(1) Sexual Offences Act 19564, s.2(2) Homcide Act5 and s.74(2) ...read more.


Besides, if the defendant did not make character (his own or someone else's) an issue in his defence, then evidence of his bad character could not be adduced at all, however appalling his record might have been. This was the case whether or not the defendant testified on his own behalf. If the defendant did not testify, he could attack the characters of other witnesses with impunity, so long as he did not make an issue of his own good character. It was only by testifying that s.1(3) CEA 1989 came into play. Even if the defendant did testify, and engage s.1(3)(ii) by making an issue of character, or s.1(3)(iii) by testifying against a co-defendant, this only gave the prosecution a right to cross-examine on character. It did not create a right for the prosecution to tender witnesses to testify to the defendant's bad character. In fact, the provisions of s.1(3) are often referred to as a 'shield' for the defendant. Providing none of the conditions in s.1(3) are satisfied, and the similar fact rules did not apply, the defendant was shielded from having his bad character exposed. In response to this, Criminal Justice Act (CJA) 2003 was introduced which in Part 11, it contains clauses about character evidence that were based in part on the Law Commission's proposals, but had been significantly "bent" to make evidence of the defendant's bad character more readily admissible. ...read more.


12 [1992] 16 EHRR 53. 13 [2002] 2 AC 545. 14 '...it shall be a defence for the accused to prove that he neither knew of now suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged.' 15 'If any error is to be made in the weighing of the scales of justice it should be to the effect that the guilty should go free rather than that an innocent person should be wrongly convicted,' per Lord Clyde at p.258. 16 Supra. 17 [2002] Crim LR 320. 18 [2003] UKHL 37. 19 [2004] UKHL 43. 20 The exceptions to the exclusionary rule fell into three categories: evidence that was adduced by the prosecution against the defendant; evidence which a defendant could adduce; and evidence which could have been adduced in cross-examination of a defendant. 21 [1991] 2 AC 447. 22 s.101(1) CJA 2003. 23 R v Hanson; R v Gilmore; R v Pickstone [2005] EWCA Crim 824 laid down some important ground rules regarding to the exercise of judicial discretion under s.101(3) and s.103(3) CJA 2003. 24 [1980] AC 402. 25 [2005] EWCA Crim 824. 26 For example, the character evidence is falsified. 27 'It is unlawful for a public authority to act in a way which is incompatible with a Convention right.' 28 Explanatory Memorandum, para 8.2. 29 Joint Committee on Human Rights, First Report of 2002-03, op cit, Ev 5. 30 R v CB [2003] OJ No.11 (Ontario Court of Appeal). ?? ?? ?? ?? ...read more.

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