Impact of Art 6(2) of the European Convention on Human Rights on the burden of proof in criminal trial

by xiuling940918gmailcom (student)

Introduction

The presumption of innocence is the fundamental rule is criminal cases. Which means the defendant is presumed to be innocent until proven guilty. So, prosecution is required to prove all the elements of the offence beyond reasonable doubt. This principle was laid down Woolmington v DPP [1935] and affirmed in Art6(2) of the European Convention on Human Right.

The significance of Woolmington was profound in two ways. First, it changed the previous law by rejecting Foster’s doctrine of the presumption of malice. Secondly, its reference to the duty of the prosecution to prove the accused’s guilt, and holding that the prosecution also had the burden of disproving any common law defences that the accused had specifically raised.However it is doubtful how far it has had either effect, even after the Human Right Act 1998.

Exception of the presumption

(a)Insanity

In Woolmington v DPP, Lord Sankey LC expressly excluded the defence of insanity from the scope of the rule ---- prosecution to proof defendant’s guilt. It also rested on the authority of M’Naughton’s Case, clearly placed the burden of proof of insanity on the accused because ‘every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction…’ However, it should be noted, in H v UK (1990) the European Court of Human Rights ruled that the insanity exception didn’t breach Art 6(2) since the rule didn’t concern the presumption of innocence, but the presumption of sanity.

(b)Express Statutory Reversal

Besides, in Woolmington Lord Sankey L.C also excluded “any statutory exception” from the scope of presumption of innocence. Statutory exceptions are commonly said to be of two types: express and implied.

Many statutes expressly impose a burden of proof on the accused to prove his case. When express statutory provision obliges accused to prove his defence, it will automatically swift a legal burden on him to prove his defence on the balance of probabilities without any assessment attached. It’s deemed regardless of the principle set down in Woolmington’s case.

In 1996, Ashworth and Blake have demonstrated the extent to which Parliament derogates from Woolmington principle in relation to indictable offences. Their research found that no fewer than 40 per cent of offences triable in the Crown Court violate the presumption of innocence by requiring the defendant to prove a statutory defence or disprove at least one element of the offence.

There are number of cases where an enactment may be constructed as impliedly imposing a legal burden on the accused. s101 of the Magistrates Courts Act 1980 lays down the general principle in respect of summary offences. Similar provisions had existed long before the Woolmington case. The effect of the section is that where the conduct of the accused creates an offence but in circumstances where the statute creates a defence in respect of an exception, exemption, proviso, excuse or qualification, the burden of proving of the defence will be placed on the accused. The principle originates partly from the notion that it is easy or easier for the accused to prove that he fall within the scope of defences because of the access to the relevant information and partly from the original provision enacted in the s39 (2) of the Summary Jurisdiction Act 1879.

Human Right Act 1998 – Lambert’s case

Since 2000, after the Human Rights Act 1998 comes into force, if a court concludes that there is a violation of Art6 (2), it has a choice; it can either make a declaration of incompatibility under s4 of the Human Rights Act 1998 or, alternatively, ‘read down’ the provision under s3, so that it becomes convention compliant. In practice the latter is nearly always the preferred course for appellate courts.

Lambert was the first case demonstrated the effect of the Human Rights Act 1998. On the fact, the appellant was convicted of possession of a class A controlled drug with intent to supply, contrary to s. 5 (3) of the Misuse of Drugs Act 1971. He was found in possession of a bag which contained such drug, and his defence, under s.28 was that he neither knew nor suspected that the bag contained drug. S.28 purports to require the accused to bear the legal burden of proving this defence. His appeal against conviction on the ground that the reverse onus in the provision of s28 conflicted with the presumption of innocence guaranteed by Art6 (2). The Court of Appeal dismissed his appeal. Further, in the appeal to the House of Lords, the House upheld the decision, as the law doesn’t operate retrospectively.

Nonetheless, in the obiter the majority of the House held the reverse legal burden of s28 was incompatible with Art6(2), as it has a high risk of wrongful conviction. With the result that s28 must be read as if it imposed only an evidential burden on the accused. Thus the word ‘proves’ as used in s28 must be construed to mean ‘give sufficient evidence’, by employing the s3 of the 1998 Act.

Test of proportionality – how could a reverse onus to be justified?

In the light of the decision of the House of Lords in Lambert, interpreting its pronouncements of the European Convention on Human Rights, including those in Salabiaku v France, it is submitted that the imposition of reverse legal burdens of its prima facie incompatible with Art6 of the Convention, and must be scrutinized with great care in light of the principle of proportionality.

However, House of Lords also made it clear that not all legal burdenswere placed on a defendant in criminal trial violated the Convention generally or Art6(2) in particular. The court held, it was not an absolute right in all the circumstances. In Salabiaku v France, European Court of Human Rights stated that some reverse burdens of proof are ‘convention compliant.

This is a preview of the whole essay

Hence the court must ensure every reverse onus clause in English law must be measured for convention compliance. Although it is apparent that the onus on those seeking to persuade the court that a reverse burden is necessary is heavy once, the courts continue to uphold such provisions, if the circumstances are deemed to be right. In Sheldrake their Lordships also concluded that when conducting an assessment of proportionality, it was necessary to balance society’s interest in the effective suppression of a social mischief against the defendant’s right to a fair trial. When weighing up these two competing interests, several factors could be considered.

This test depends upon the circumstances of the individual case. It follows that a legislative interference with the presumption of innocence requires justification and must not be greater than is necessary. The principle of proportionality must be observed. The test of proportionality requires courts to consider whether there was a pressing necessity to impose a legal rather than an evidential burden on the accused.

Ian Dennis’ six cardinal rules

Ian Dennis has summarized the factors to be taken into account when court applying the test on proportionality. This consisted judicial deference, classification of the offence, construction of criminal liability, significance of maximum penalty, ease of proof and peculiar knowledge, presumption of Innocence. These will be discussed in detailed later.

(a)Judicial deference

The question is often asked, after the enforcement of the HRA 1998 how far should the court defer to the judgment of Parliament? In the case of Johnstone, Lord Nicholls has stressed that “Parliament, not the court, is charged with the …. what should be the constituent elements of a criminal offence, the court will reach a different conclusion from the legislature only when it is apparent the legislature has attached insufficient importance to the fundamental right of an individual to be presumed innocent until proved guilty.” On the other hand, Lord Woolf CJ took the similar approach in Attorney-General’s Reference （No1 of 2004）ruled that the assumption should be that Parliament would not have made an exception to the presumption of innocence without good reason.

However, in Sheldrake v DPP Lord Bingham cast doubt on Lord Woolf’s proposition, saying that such an approach may lead the court to give too much weight to the enactment under review and too little to the presumption of innocence and the obligation imposed on the court by s3 of the HRA 1998. Nonetheless, he reiterated in Brown v Scott that substantial respect should be paid by the courts to the considered decisions of democratic assemblies and governments.

The divergence of view leaves the issue rather unclear. However, Lord Hope’s statement in Kebilene could be refined and used, which require the court makes a distinction between the legitimate aim and the proportionality. In identifying a legitimate aim requires the courts to consider the policy goals of criminalisation being pursued by the relevant provision. It can be decided by identifying the social or economic objectives to be attained by penal provisions they have examined in the context of reverse onuses and regarding them as legitimate. Then, court should ask itself whether the imposition of the reverse onus is proportionate to achieve the policy goal of the offence.

Ian Dennis’ stressed that a strong principle of deference would seem to be inappropriate, if there is no evidence that the Parliament gave thought to the presumption of innocence when it enacted the reverse onus. It should always be remembered that the importance of Art6(2) should always prevail the principle of deference. It is for the state to justify derogation from the presumption of innocence and justifying arguments should be compelling if they are to succeed.

Classification of Offences

In Sheldrake v DPP, Jack J referred to the recognised distinction between truly criminal offences and those which are regulatory or quasi criminal, and suggested that it is easier to justify an interference with the presumption of innocence the lower in the scale the offences is.

However classification of offence into mala in se and mala prohibita is said to be problematic as a guide to justifiable proportionality of a reverse onus. First, the distinction is not particularly robust. If it depends on the moral quality of the act then it is likely to be contestable, while some offences are attached with the morally reprehensible colour but it only punishable under regulatory legislation only with a fine, which is illustrated in the case of Davies v Health and Safety Executive. If the distinction depends on penalties, so that regulatory offences are characterised as generally punishable by fine, however many regulatory offences now carry the possibility of a custodial sentence on conviction. Moreover, some summary offences punishable only by a fine may be far from “mere regulatory criminality” but may be “of great social and emotional importance to a large number of people”

Secondly, it does not follow that a statutory defence to a regulatory offence will be any easier for the defendant to prove than an equivalent defence to a truly criminal offence. There is no necessary relationship between the degree of onerousness of a reverse onus and the type of crime involved.

Summing up, the classification is shown to be subjective. It depends on the judges’ personal opinion, which may be different from each other. In Sheldrake, two of the divisional court judges thought that an offence was not a regulatory matter, while Herinques J concluded the contrary.

Construction of criminal liability: elements of offences and defences.

The general rule is that presumption of innocence requires the prosecution to prove all essential elements of offences. In Attorney-General for Hong Kong v Lee Kwong-kut Lord Woolf for the Privy Council remarked that if the prosecution retain responsibility for proving the essential ingredient of the offence, the less likely it is that an exception will be regarded as unacceptable. Lord Hope in Lambert distinguished between the essential elements of the offence and exculpatory defence of the type referred to in Edwards, suggest that reversing onus of such defence is more easily justified.

Contrary, in the same case, Lambert Lord Steyn noted the difference between the element of the offence and defensive issues was sometimes only a matter of drafting technique. He suggested that it was preferable to focus on moral blameworthiness. Defences such as those discussed in Edwards should be distinguished from “other cases where the defence is so closely linked with mens rea and moral blameworthiness that it would derogate from the presumption of innocence to transfer the legal burden to the defendant”. In AG’s Reference (No4 of 2002) the court adopted the analogous approach, held that Art6(2) requires the prosecution to prove the ‘true nature’ or the ‘gravemen’ of the offence. Application of this principle didn’t depend on formal statutory separation of elements and defences.

Significance of maximum penalty

Generally the weight of presumption of innocence ought to increase in proportion to the gravity of the offence. In Lambert, Lord Steyn attached importance to the penalty of life imprisonment when reading down the reverse onuses in that case. In Sheldrake v DPP the House upheld the reverse onus, as the maximum penalty of the offence was six months. In AG’s Reference (No.4 of 2002) the House read down the reverse onus, where the maximum penalty was 10 years. These 3 cases were deemed to be compatible of the guideline.

However, in Johnstone the maximum penalty for the offence is same with the above (AG’s Reference (No4 of 2002), 10 years), yet the House upheld the reverse onus. The uncertainty under this guideline is even extended to the pecuniary penalties. It would seem that maximum penalties are a very uncertain guide as to whether a reverse onus will be held to be proportionate to the legitimate aim of the offence in question. The nature of the penalty – custodial or pecuniary – is certainly not conclusive in either way. It ought to be the case that the more serious the offence the more compelling should be the justification for a reverse onus, but application of such a principle has been patchy to say the least.

Ease of proof and peculiar knowledge

Ease of proof is by no means the same concept as peculiar knowledge. In some circumstances defendant doesn’t have peculiar knowledge (i.e possession of a licence), because that knowledge is available to prosecution from evidence (i.e registers), but it is more burdensome and costly to locate it. On the other hand, sometimes defendant does have peculiar knowledge, but this doesn’t mean that it will be easier for him to prove the absence of mens rea than prosecution to prove its presence.

In Kebilene Lord Hope suggest that in striking the balance requires by the principle of proportionality, one of the questions to be asked was whether the burden on the defendant related something that was within his knowledge or to which he readily had access. This suggestion is followed by Lord Nicholls in Johnstone, he referred to defendant’s own knowledge or ready access as alternative relevant factors in a decision about compatibility of a reverse onus.

Conversely, it should also be remembered that in Lambert the factor of the defendant’s peculiar did not prevail over considerations of a maximum penalty of life imprisonment and the unfairness of convicting the defendant where the jury thought that his story was as likely to be as true as not. It shows that the defendant’s peculiar knowledge of certain fact isn’t therefore supports the imposition of legal burden.

A reverse onus is to be justified by reference of ease of proof the focus should be on the weight impose on the defendant but not look into whether it would be difficult for the prosecution to prove guilt, as even where proof of guilt would be difficult for the prosecution, doesn’t mean that it is easy for defendant to disprove his guilt.

However in Makuwa the Court of Appeal upheld a reverse onus under s31 of the Immigration and Asylum Act 1999, almost entirely on the basis of the difficulty of proof for the prosecution. The court glossed over any difficulties of proof that the defendant might have, emphasising instead the policy need to maintain proper immigration controls by restricting the use of forged passports.

In contrast DPP v Wright, the Divisional Court held that a burden on the defendant to prove that his hunting was “exempt”, would be “oppressive, disproportionate, unfair, and an unnecessary intrusion on the presumption of innocence.” Sch 1 of the Hunting Act 2004 contained a list of exempt forms of hunting: some of the matters would be within defendant’s knowledge, some would be easy for him to prove, but some would be neither. In these circumstances the Act should be read as imposing only an evidential burden on the defendant; once the prosecution knew which form of exemption was in issue it would not be unduly burdensome to require them to disprove it.

Presumption of Innocence

Presumption has been said to be the foundation of the right to fair trial under Art 6. Domestic courts that have to decide on justifiability of reverse onuses will generally be doing so before then trial when rulings on the burden of proof have to be made.

There have 3 different conception of the presumption. The first conception focuses more on process than outcomes; the presumption is seen as a norm of fairness rather than an instrument to ensure accuracy. This is the Strasbourg court’s approach which has emphasised procedural of presumption of innocence. The second conception of the presumption, which described as amorally substantive conception, emphasises fairness in both process and outcome. The third one which is offered by Robert and Zuckerman They describe it as “a normative moral and legal standard encapsulating a strong commitment to avoiding wrongful convictions, rather than a recipe for factual inference and adjudication” This characterises the presumption as a device for the avoidance of a particular outcome of criminal proceedings. It becomes a protective device rule for the defendant against the risk of error in adjudication. This is contrast with the first conception.

The English case law has tended to take a less procedural and more morally substantive view of the presumption of innocence. In Lambert Lord Steyn conceived the presumption as ensuring the issues of the defendant’s moral blameworthiness had to be proved by the prosecution. One of Lord Steyn’s reasons for rejecting a reverse onus in Lambert was that it would oblige the court to convict the defendant where it thought his version of fact was as likely to be true as not. This was thought to be unfair and unacceptable for an offence punishable with life imprisonment. Lord Bingham took a similar approach in Attorney- General’s Reference (No 4 of 2002) to reverse the onus under s11(2) of the Terrorism Act 2000.

Conclusion

Lambert is a sad case, as it clearly demonstrated how English judges disregard domestic law ---the Woolmington principle. In that case the accused could be given an evidential burden even though the HRA had not come in affect, an evidential burden can be granted by using Woolmington principle. Besides, the problem of test of proportionality is there is a very large and much less clear cut, the grey area between these extreme where much might depend on the individual judge or judges involved in determining the matter. Professor Andrew Ashworth has remarked ([2005] Crim LR at 219), “it furnishes courts with no clear guidance on how to interpret statutes that impose a burden of proof on the defendant.” Rather like the famous boast of Justice Holmes, armed with the desiderata for decision-making provided in Sheldrake, any given offence could plausibly be interpreted either way .It should be noted that the 6 guidelines aren’t a rigid one, it can be taken other factors in the individual case when needed, i.e the width of the offence.

3296（words）

Bibliography

Books

Dennis I, The Law of Evidence, 4th edition

Murphy P, Murphy on Evidence, 10th edition

Charanjit Singh Landa and Mohamed Ramjohn, Unlocking Evidence, 2nd edition

Spencer M and Spencer J, Evidence, 2nd edition.

Durston G, Evidence: Text and Material, 103.

Article

Dennis I, ‘Reverse Onuses and the Presumption of Innocence: In Search of Principle’ [2005] Crim 18 901-936

Electronic Sources

Simester and Sullivan, ‘Criminal Law: Burden of Proof’

Accessed 25 November 2013

Table of Legislation

Human Rights Act 1998

Human Rights Act 1998, s4.

Human Rights Act 1998, s3.

Magistrates Courts Act 1980, s101

Summary Jurisdiction Act 1879, s39(2)

Misuse of Drugs Act 1971, s.5(3).

Misuse of Drugs Act 1971,s28.

Hunting Act 2004, Schedule 1.

Terrorism Act 2000,s11(2)

European Convention on Human Rights, art6(2).

Immigration and Asylum Act 1999, s31.

Table of Cases

M’Naghten (1843) 10 Cl. & Fin.200.

Woolmington v DPP [1935] AC 462.

H v United Kingdom Appn No 15023/89, 4 April 1990 (unreported).

R v Lambert [2001] UKHL 37; [2002] 2 A.C; [2001] 2 Cr. App.

Salabiaku v France (A/141-A) (1991) 13 E.H.R.R. 379 ECtHR.

Sheldrake v DPP [2004]UKHL 43.

Johnstone[2003] UKHL 28.

Attorney-General’s Reference (No.1 of 2004) [2004] EWCA Crim 1025.

Brown v Scott [2003] 1 A.C. 681

Davies v Health and Safety Executive [2002] EWCA Crim 2949

R v Director of Public Prosecutions, Ex Parte Kebeline and Others [1999] UKHL 43

Attorney-General for Hong Kong v Lee Kwong-kut [1993] A.C.951

R v Edward [1975] QB 27.

Attorney-General’s Reference (No.4 of 2002) [2003]EWCA Crim 762.

Makuwa[2006] EWCA Crim 175.

DPP v Wright [2009] EWHC Crim 105.

Woolmington v DPP [1935] AC 462.

In that case the Swift J, an experienced judge had directed the jury that once the prosecution had proved that the deceased had died at the hands of the accused, then that was presumed to be murder unless the defendant could satisfy the jury that it was an accident. In this way the judge clearly placed on the defendant the burden of proof of lack of mens rea. His direction looks thoroughly heretical to modern eyes, but there was considerable authority for it as an accurate statement of law.

Ian Dennis, The Law of Evidence, 4th edition, 458.

M’Naghten (1843) 10 Cl. & Fin.200.

Ian Dennis, The Law of Evidence, 4th edition, 459.

Charanjit Singh Landa and Mohamed Ramjohn, Unlocking Evidence, 2nd edition, 35.

H v United Kingdom Appn No 15023/89, 4 April 1990 (unreported).

European Convention on Human Rights, art6(2).

Maureen Spencer and John Spencer, Evidence, 2nd edition, 14.

Ian Dennis, The Law of Evidence, 4th Edition ,460 -461.

The authors comment :”It is a fair conclusion from the evidence presented here that many those who prepare, draft and enact criminal legislation for England and Wales either fail to recognise these violations of the presumption of innocence or its application in this sphere, or fail to appreciate what can be achieved by placing only an evidential burden (rather than the legal burden on defendants in respect of defences

Ian Dennis, The Law of Evidence, 4th Edition, 461.

Magistrates Courts Act 1980, s101

Summary Jurisdiction Act 1879, s39(2)

Charanjit Singh Landa and Mohamed Ramjohn, Unlocking Evidence, 2nd edition, 37.

R v Lambert [2001] UKHL 37; [2002] 2 A.C; [2001] 2 Cr. App.

European Convention on Human Rights, art6(2).

Human Rights Act 1998, s4.

Human Rights Act 1998, s3.

Gregory Durston, Evidence: Text and Material, 103.

Misuse of Drugs Act 1971, s.5(3).

Misuse of Drugs Act 1971,s28.

Peter Murphy, Murphy on Evidence,10th edition, 103.

The proceedings took place before the 1998 Act came into force.

Refer to Lord Steyn’s judgment: “accused must prove on the balance of probabilities that he did not know that the package contained controlled drugs. If the jury is in doubt in this issue, they must convict him…a guilty verdict may be returned in respect of an offence punishable by life imprisonment even though the jury may consider that it is reasonably possible that the accused had been duped.”

Salabiaku v France (A/141-A) (1991) 13 E.H.R.R. 379 ECtHR.

Peter Murphy, Murphy on Evidence,10th edition, 90.

Whether express or implied.

Gregory Durston, Evidence:Text and Material,104.

Sheldrake v DPP [2004]UKHL 43.

Amongst them were the severity of the offence in terms of potential sentence, the ease of proof for one party or the other in relation to establishing the reverse burden, and the danger of convicting the innocent.

Peter Murphy, Murphy on evidence, 10th edition, 92.

Johnstone[2003] UKHL 28.

Attorney-General’s Reference (No.1 of 2004) [2004] EWCA Crim 1025.

Ian Dennis, The Law of Evidence, 4th Edition, 475.

Brown v Scott [2003] 1 A.C. 681

R v Director of Public Prosecutions, Ex Parte Kebeline and Others [1999] UKHL 43

Ian Dennis, The Law of Evidence, 4th Edition, 474-476.

Ian Dennis, The Law of Evidence, 4th Edition, 476.

Davies v Health and Safety Executive [2002] EWCA Crim 2949; an employer was charged under health and safety legislation with failure to ensure that his employees were not to exposed to health and safety risks. The relevant employee had died.

Ian Dennis, The Law of Evidence, 4th Edition, 476.

Ian Dennis, The Law of Evidence, 4th Edition, 477.

Peter Murphy, Murphy on evidence,10th edition, 94.

Attorney-General for Hong Kong v Lee Kwong-kut [1993] A.C.951.

Prove having a licence to sell alcohol.

R v Edward [1975] QB 27.

by implication not concerned with moral blameworthiness.

Attorney-General’s Reference (No.4 of 2002) [2003]EWCA Crim 762.

In the Roth case Court of Appeal decided the reverse onus whether is appropriate in the case, the judges held different point of view where Jonathan Parker L.J. thought that it was, Simon Brown L.J thought that it wasn’t, and Laws L.J held that Art6(2) was not engaged since in his view the relevant penalty scheme was civil and not criminal in nature.

Ian Dennis, The Law of Evidence, 4th Edition, 479.

as he has privileged to access to his intention, knowledge or belief.

Ian Dennis, The Law of Evidence, 4th Edition,480.

Ibid.

means of knowledge of what was in the duffle bag he was carrying.

Ibid.

Makuwa[2006] EWCA Crim 175.

Immigration and Asylum Act 1999, s31.

There matters were that defendant’s life or freedom was threatened in her original county, that she presented herself to the authorities in the UK without delay…… If the defendant could prove all these matters, she would have a defence under s3 of the Forgery and Counterfeiting Act 1981.

DPP v Wright [2009] EWHC Crim 105.

Hunting Act 2004, Schedule 1.

Ian Dennis, The Law of Evidence, 4th Edition, 483.

Terrorism Act 2000,s11(2).

Available in .

Ian Dennis, ‘Reverse Onuses and the Presumption of Innocence: In Search of Principle’ [2005] Crim 18 901-936.