Burden of Proof

“…every place at which any person has at any time to work…shall, so far as reasonably practicable be made and kept safe for any person working therein”.

The House of Lords held that that there was no burden on the plaintiff to prove that it was reasonably practicable to keep the premises safe; the defendant employers bore the burden of proving it was not reasonably practicable to keep the premises safe. Given the defendant was in a better position to discharge the legal burden than the plaintiff.

In BHP Billiton Petroleum Ltd v. Dalamine Spa it was held that in most civil proceedings the statements of cases are likely to be a good guide to the incidence of the legal burden of proof because a party cannot take upon itself or free itself from a burden which the law imposes.

The incidence of the legal burden in civil cases can be discovered from the precedents concerned with the legal issue in hand. In the absence of such a precedent, the courts are prepared to decide not on the basis of any general principles but more as a matter of policy. In the case of Joseph Constantine Steamship Line Ltd v. Imperial Smelting Corpn Ltd a ship on charter was destroyed by an explosion which was unclear. The charterers claimed damages from the owners for failure to load the ship and the owner’s defence to that was frustration. The House of Lords held that in order to defeat the defence of frustration, the burden was on the charterers to prove the fault on part of the owners.

In the case of Munro, Bryce & Co v. War Risks Association an insurance policy covered a ship which was subject to an exemption in respect of loss by capture or in consequence of hostilities. The ship in question disappeared for reasons unknown and a claim was made. The question which arose for the courts was whether the plaintiffs had to prove that the ship was not lost due to enemy action. The court found that the defendants bore the burden that the fact fell within the exemption. Where a claimant in these circumstances, relies upon a ‘provisio’, proving the facts fall within the provisio may well be on him.

In The Glendarroch case the plaintiffs brought an action against in negligence for non-delivery of goods, the goods in question having been lost when the boat carrying them sank. It was held that the plaintiffs bore the burden of proving the contract and non-delivery of goods. The defendants relied upon the exemption clause; therefore it was for them to prove that the facts of the case fell within it.

The application of these rules by the prosecution brought by the local authority.

In this case scenario, Harold is being prosecuted by the Local Authority for carrying on his business without a license. The general rule in criminal cases is that the prosecution must prove thier case beyond reasonable doubt. This was first established in Woolmington v. DPP, where the defendant was charged with the murder of his wife, he gave the evidence that he shot her accidentally. The trial judge had directed the jury that once it was proved that the defendant had shot his wife, he bore the burden of disproving malice aforethought. The judge had consequently transferred the burden proof to the defendant in this instance. The House of Lords held this to be misdirection and Lord Sankey in his famous speech said:

“Throughout the web of 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…”

The common law recognised the defence of insanity as the only incidence where the defendant had to discharge the legal burden. This was introduced by the M’Naghten’s case. In this case the opinions of the Lords were solicited before Parliament as to what procedure should be followed in the event of a defendant raising a defence of insanity and the conclusion was the emergence of the M’Naghten rules.

In R v. Edwards a defendant was charged with selling alcohol without an appropriate licence. The defendant alleged that it was the duty of the prosecution to prove that he did not have the appropriate licence. The Court of Appeal said:

“In our judgment this line of authority establishes that over the centuries the common law…has evolved an exception to the fundamental rule that the prosecution must prove every element of the offence charged…It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of a specified classes or with specified qualifications or with the licence or permission of specified authorities.”

Statute seems to make undesirable inroads on the basic presumption of innocence, as stated in Lambert. The Court of Appeal decision in R v. Edwards was later confirmed by the House of Lords in R v. Hunt where it was said that Section 101 of the Magistrates Courts Act (1980) sets out the common law rule in statutory form. In Westminster City Council v. Croyalgrange Ltd by contrast, no reliance could be placed on Section 101 of the 1980 Act. A company had let premises to a person who used them for a sex business without a license. The Local Government (Miscellaneous Provisions) Act (1982) states that whereby a person knowingly causes or permits the use of premises, commits an offence. Paragraph 6 of the Act explicitly states that no person shall use any premises for the purposes of a sex business without the appropriate license. The House of Lords in this case held that Section 101 was inapplicable because the exception qualified the prohibition and not the offence. The prosecution bore the burden of proving, inter alia that the directors of the company knew that no license had been obtained by the tenant.

However practical convenience and public policy may dictate that the burden of proof is borne by the prosecution even where the statute places that burden on the defendant. In R v. Hunt the defendant was charged with possession of a controlled drug contrary to Section 5 of the Misuse of Drugs Act (1971). The prosecution did not tender any evidence as to the quantity of the morphine which was in the substance and the defendant appealed alleging that the prosecution failed to tender the evidence which they should have tendered at trial. The Court of Appeal upheld the conviction and the appeal went to the House of Lords. In the House of Lords, the conviction was quashed as it was held that the burden of proof lay with the prosecution in this case. Several reasons were raised by the House of Lords such as the practical realities that existed. For example it was more likely that the drug was in the hands of the police and the defendant could not expect to be given the drug back so that he could have it tested. Moreover, the drug could have already been analysed and the quantity of morphine already known by the prosecution. The prosecution in such cases have an overriding interest to have the substance analysed and the state has resources to conduct such analysis.

In certain instances it will be easier for the defendant to produce evidence to show that he is authorised to do what is alleged he did. For example where a licence is required for one to do something then it will be easier for the defendant to just produce the relevant licence than the prosecution to show that he does not hold the same. This was the situation in R v. Edwards; the defendant was accused of selling intoxicating liquor without a licence. The defendant was convicted and he appealed on the grounds that the prosecution had not called evidence to show that no licence was in force. The appeal failed as it was held that the onus was on him to prove that he was entitled to do the prohibited act. In this case it was easy for the defendant to show that he had a licence which seems to be a common sense decision. The onus on the defendant was not onerous and the burden of proof required could be equated to the evidential burden.

The courts have always tried to respect the presumption of innocence by requiring that where the legal burden is on the accused, the evidence required to satisfy the jury should not be in the hands of the prosecution to prove an issue beyond reasonable doubt but should be one on the balance of probability. For example in R v. Carr-Briant, Humphreys J said:

“In any case where, either by statute or at common law, some matter is presumed against an accused person ‘unless the contrary is proved’, the jury should be directed that it is for them to decide whether the contrary is proved, that the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt, and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish ”.

Human Rights

There is an wealth of legislation which impose on the presumption of innocence and the courts have been trying to interpret the provisions of statutes to be as compatible with the Human Rights Act (1998) as possible. For example in R v. DPP ex parte Kebilene which involved a contravention of the Prevention of Terrorism Act (1989), the court was asked to consider whether the reverse burden was compatible with the Human Rights Act 1998. Though the House of Lords did not rule on the aspect of compatibility the tone of human rights had been imbued into the English Legal System.

The courts in order to respect the presumption of innocence tend to ‘read down’ the persuasive burden and take it as imposing only the evidential burden. As was the situation in R v. Lambert where the defendant was charged with contravening Section 5(3) of the Misuse of Drugs Act (1971) and his defence provided by Section 28(2) and (3) of the same Act imposed a burden of proof on him. The House of Lords said Section 28(2) and (3) could by the application of Section 3(1) of the Human Rights Act (1998) be read compatibly with the presumption of innocence in Article 6(2) as imposing an evidential burden only on the accused. In that case Lord Hope in his obiter dicta spoke in the language of balancing two competing interests. One interest is for the protection of the community and the other for the preservation of fundamental rights of the accused. He even stated that statute can impose a legal burden on the accused in pursuit of a legitimate aim so long as the nature of the burden is proportionate to the aim to be achieved. Lambert’s appeal would have been successful had his trial taken place after the coming into force of the Human Rights Act (1998). The issue of proportionality is a way of mitigate the harshness that the burden of proof places on accused persons.

The courts are always trying to strike a balance between the fundamental rights of an individual and the protection of the community. In that quest, judges are found doing weighing exercises and at times use such words as proportionate to cure the mischief. In DPP v Sheldrake which was a consolidated appeal involved a contravention of the Road Traffic Act and the Terrorism Act (2000). The Court held in respect of the contravention of Section 5 of the Road Traffic Act that the imposition of the legal burden on the accused was disproportionate to the objectives pursued by the statute. In respect of Section 11(2) of the Terrorism Act 2000, the court held that the section should be read down so as to be imposing an evidential burden only on the defendant as it was disproportionate to its objective. The courts are being innovative so that they respect the statute at the same time placing the burden on the prosecution thus respecting the presumption of innocence.

It seems the courts will attach greater importance as to where the burden should lie in more serious cases than in minor cases. For example in R (on the application of Grundy & Co Excavations Ltd) v. Halton Division Magistrates Court which involved the felling of a tree without a licence and the defendant having to prove that he had a licence thus the burden was imposed on the defendant by the Forestry Act. In that case practical considerations supported that the burden be borne by the defendant and it was justified by the fact that all the relevant facts were within the defendant’s exclusive knowledge. The offence in question was a strict liability offence and the sentence was not a severe one which is proportionate to impose a burden on the defendant.

It is common knowledge that parliament has legislated in a way which on closer scrutiny shows a complete and total disregard of the presumption of innocence. The judges are thus found to be reading down the statutes to mitigate their harshness on accused persons. The judges respect the will of parliament and at the same time respecting the presumption of innocence.

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