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

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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


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.

(c) Implied Statutory Reversal

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.

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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.

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 ...

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