Evidence: Burden of proof
Where a defendant is obliged to prove an element of his defence; this is most commonly referred to as a ‘legal burden’. In other cases, the lesser burden placed on the defendant requires the defendant to present some evidence of the defence. This is most commonly referred to as the defendant's ‘evidential burden’. All three subsections of the Act place an evidential burden on the accused. The word “show” implies that it is for the defence to adduce some evidence. Where the legal burden lies requires some more consideration.
The cardinal principle of all criminal trials is that the prosecution bears the persuasive burden. This rule was firmly established by the House of Lords in Woolmington v DPP. The Golden Thread principle, as asserted by Viscount Sankey in this case, is an elementary feature of English criminal law which encapsulates the presumption of law that the defendant remains innocent until he is proved guilty:
“Throughout the web of the English Criminal Law one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner’s guilt subject to … the defence of insanity and subject also to any statutory exception…no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”
As mentioned in the statement by Lord Sankey, this principle is subject to certain exceptions. The law sometimes places the burden of proving a defence on the defendant. This is known as a reverse proof burden and the accused must prove the particular defence or lose in respect of it. The two exceptions of insanity and any statutory exception were added to by the Court of Appeal’s decision in Re Edwards . This was later put into law by virtue of section 101 of the Magistrates Court Act 1980 which provides:
“Where the defendant to an information or complaint relies for his defence on any exception, exemption, proviso, excuse or qualification, whether or not it accompanies the description of the offence or matter of complaint in the enactment creating the offence or on which the complaint is founded, the burden of proving the exception, exemption, proviso, excuse or qualification shall be on him; and this notwithstanding that the information or complaint contains an allegation negativing the exception, exemption, proviso, excuse or qualification.”
Where a statute creating a criminal offence imposes a legal burden on the accused to prove a defence, an express reverse proof burden arises. S49 (1) and of the Anti-terrorism, Crime and Security Act 2001 places the burden of proof on the defendant. This is evident from the wording of the section; “it is a defence for the accused to show….” Similarly subsection 3 is another example of a statutory express reverse proof burden. It is for the defendant to show that he knew or believed that the object was a nuclear weapon. Counsel for the defence has raised some issues with regards to statutory express reverse proof burdens, namely the effect that they have on the defendant’s presumption of innocence as provided for by Article 6(2) of the European Convention of Human Rights, which provides that:
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“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
Due to the enactment of the Human Rights Act 1998, I will interpret these statutory provisions and give effect to them in order to make them compatible with the Convention rights. If I am satisfied that the provision is incompatible with a Convention right then by using section 3 of the Human Rights Act 1998 I may ‘read down’ the relevant legislation, imposing an evidential rather than a legal burden on the defendant. Only as a measure of last resort will I make a declaration of incompatibility. In deciding this I will consider whether the statutory provisions in question have a legitimate aim, whether there is a social need to make such provisions and whether the provision in question is genuine and proportionate to that need.
Mr Clarke for the defence submits that placing a legal burden on the defendant will infringe his Article rights and that “it makes people presumptive criminals, and puts the onus on them to prove otherwise.” In response to this submission I must indicate that European jurisprudence establishes that Article 6(2) is not an absolute right. “Presumptions of fact and law are permissible provided that they are confined within reasonable limits and strike a fair balance between the interests of the community and the rights of the individual.” Thus, the question instead is whether the presumption is within reasonable limits. In the case of Salabiaku v. France the European Court of Human Rights held that:
“…..Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires states to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.”
The issue of compatibility with art.6(2) was further considered in R. v. Director of Public Prosecutions ex parte Kebilene where it was considered in what circumstances it is justifiable and proportionate to impose a legal burden on the accused. Lord Hope in this case held that when considering the balance between the presumption of innocence and the provision provided for by statute, it is necessary to consider the following questions: (1) what does the prosecution have to prove in order to transfer the onus to the defence? (2) what is the burden on the accused — does it relate to something which is likely to be difficult for him to prove, or does it relate to something which is likely to be within his knowledge or to which he readily has access? (3) what is the nature of the threat faced by society which the provision is designed to combat? He emphasised the importance of achieving an appropriate balance between competing interests and observed that Article 6(2):“is not regarded as imposing an absolute prohibition on reverse onus clauses, whether they be evidential (presumptions of fact) or persuasive (presumptions of law). In each case the question will be whether the presumption is within reasonable limits.”When this case was decided the Human Rights Act 1998 has not yet come into force, however the majority suggested that once it had, reverse legal burden provisions may have to be interpreted as imposing merely an evidential burden on the accused.
The landmark case after Kebilene was the case of R v Lambert where the House of Lords had to consider whether the provisions of the which reversed the burden of proof, were compatible with art.6(2) of the Convention. The Court of Appeal held that the subsection imposed a legal burden and this undermined the presumption of innocence to an unreasonable extent. Lord Hope of Craighead said that: “[Proportionality] will not be achieved if the reverse onus provision goes beyond what is necessary to accomplish the objective of the statute”. The section should be read down so as to impose an evidential burden only. The fact that offences under this Act might carry a life sentence was decisive in the Court’s reasoning. If a legal burden remained, a jury could convict even though they were not sure that the defendant knew that he possessed controlled drugs.
The next case worth consideration is that of R v Johnstone. The House of Lords held that a reverse proof burden as imposed by the act was compatible with art.6. They noted that any derogation from the right to be presumed innocent required justification and that the more serious the punishment which may flow from a conviction, the more compelling the reasons must be. Section 49 of the Act concerned appears to have a justified reason for imposing a legal burden on the defendant, most notably the control of the possession of nuclear weapons. It will be whether this is enough to put that onus on the defendant.
The House of Lords decision in the case of Sheldrake v DPP; A-G’s Reference (No 4 of 2002) can be regarded as providing the leading authority on the matter concerned. The House also attempted to set down some more general guidance. “In conducting that exercise, one should balance, on the one hand, society’s interest in the effective suppression of the social mischief with which the offence is concerned and, on the other hand, the defendant’s right to a fair trial. When balancing these two competing interests, one should take into account the severity of the offence in terms of sentence, ease of proof for one party or the other in relation to the matter covered by the reverse burden, and (from previous authority) whether the matter to be proved or disproved is related to a definitional element of the offence or to a defence. In the light of these factors, the final judgement must be made on whether the reverse burden in question is a fair and proportionate legislative response, in the circumstances of contemporary society, to the social mischief with which the offence is concerned.”
Under s.101 of the Magistrates Courts Act 1980, if the defendant relies on some wording in a statutory provision which operates as an exception exemption, proviso, excuse or qualification, then he bears the burden of proving it. This is a statutory implied reverse proof burden and was seen in the case of R v Edwards  where the Court held that statutes could be interpreted to have impliedly shifted the legal burden on to the defendant. In these circumstances the defendant only has to prove his case on the balance of probabilities. Section 49 subsections 1 and 3 of the Anti-terrorism, Crime and Security Act 2001 are statutory implied reverse proof burdens; “but, as soon as reasonably practicable after he knew or first believed that fact, he took all reasonable steps to inform the Secretary of State or a constable of his knowledge or belief.” It does not expressly state that the burden is on the defendant, however does provide an excuse and by virtue of s101 MCA 1980 the burden thus rests with the defence. In the subsequent case of Hunt the House of Lords set out more fully the circumstances in which the courts would interpret legislation as permitting placing the legal burden on the defendant. These were that firstly the courts should recognise that Parliament can never lightly be taken to have intended to shift the burden of proof onto the defendant. The second factor was the ease or difficulty that parties met in discharging the probative burden and finally the gravity of the offence should always be borne in mind.
In summing up this directions hearing, I can say that I have strongly considered the submission made by the defence counsel. I have taken into consideration Article 6 of the European Convention of Human Rights and the Golden Thread principle. On the one hand this is strong enough reason to reduce the legal burden that the statute places on the accused to an evidential burden only, however, it is vital to look at the mischief that this Act is trying to prevent. Terrorism is a current threat in society. Sachs J in State v Coetzee said: “The more serious the crime and the greater the public interest in securing convictions of the guilty, the more important the constitutional protection of the accused becomes. In the face of this paradox all that can be said is 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. “This case is dealing with an offence of great severity. The statute concerned in my opinion has a legitimate aim and there is most certainly a social need to make such provisions, and although I do not think that the provision in question is disproportionate to that need, the presumption of innocence in my opinion is of much more importance. The defendant is being asked to prove his own knowledge. (s.49 (3)).How reasonable would it be to ask the prosecution to prove this beyond all reasonable doubt? Furthermore, the court in Kebilene stated that had the Human Rights Act 1998 been in force at the time, the reverse legal burden provision may have to be read as merely placing an evidential burden on the accused. The offence in question carries a high maximum penalty which is likely to be incompatible. It is rather alarming that a defendant may face the possibility of such a serious sentence without the need for the prosecution to prove the presence of intention or recklessness. I finally refer to the recommendations of the Criminal Law Revision Committee where in paragraph 140 of its 11th Report it was said: “We are strongly of the opinion that, both on principle and for the sake of clarity and convenience in practice, burdens on the defence should be evidential only”.It is for these reasons that I will read down the legal burdens in subsections 1 and 3 and instead place an evidential burden on the defendant.
Paul Roberts, “Taking the burden of proof seriously”, Criminal Law Review 1995
Salibiaku v France (1991) 13 EHRR 379
R v DPP ex parte Kebilene  3 WLR
R v Lambert  UKHL 37,  3 WLR 206
Bennion, F., ‘Statutory Exceptions: A Third Knot in the Golden Thread’  Crim LR 31.
Criminal Law Revision Committee (1972), Eleventh Report Evidence (General), (London: HMSO) Cmnd 499