Evidence: Burden of proof

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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 [1974]. 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 ...

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