The impact of HRA 1998 on burden of proof and confession

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The law of evidence is very important and plays a major role in the English legal system. Its principles are comprehensive and extensive. Its frameworks could determine between verdicts. The Human Rights Act 1998(HRA) implemented the European Convention of Human Rights(ECHR) into England law. As a result, the rights enshrined in the Convention have had a huge impact on the law of evidence in particular, burden of proof and confession, which will be analysed.


Over the years, there has been much statutory reform, including the enactments proposed to bring UK law into line with the ECHR. These reforms have done much to ease or strengthen some restrictions on the admissibility of relevant evidence, to rationalise and clarify the law, to enhance the discretionary powers of the judge, and to remove some of the more inconsistent and unnecessary differences between the rules in civil and criminal cases.

The burden of proof is the obligation placed upon a party to prove or disprove a disputed fact, or it can define which party bears this burden. Jurists in the common law tradition have distinguished two principal senses of the burden of proof i.e. the legal burden and the evidential burden.

The legal burden has been defined as the obligation imposed on a party by a rule of law to prove or disprove a fact in issue. In criminal cases, the legal burden is generally borne by the prosecution. Where the legal burden on a particular issue is borne by the accused, it is discharged by the defence satisfying the jury on a balance of probabilities. The evidential burden has been defined as the obligation to adduce sufficient evidence of a fact to justify a finding on that fact in favour of the party so obliged.

In criminal cases, the standard of proof necessary to discharge the legal burden is ‘proof beyond reasonable doubt’ as seen in Woolmigton v DPP. Here, Court of Appeal ruled that the case against Woolmington was so strong that he would have to demonstrate the accidental nature of the shooting. However, the House of Lords allowed the appeal stating that however bad things looked for Woolmington, he was allowed the benefit of any doubt, and he does not bear a legal as well as an evidential burden.

However, as recognized by the Viscount, there are exceptions referred to as reverse-onus provisions. As Lord Steyne stated in R v Lambert ‘there are … cases where the defence…derogate from the presumption of innocence to transfer the legal burden to the accused.’ Where the defendant raises a defence, the legal burden is reversed for the defendant to discharged, e.g. in M’Naughten’s Case(in this case- insanity).

Despite that, since the coming of the HRA, any such provision is open to challenge on the basis of its incompatibility with the presumption of innocence guaranteed by Article 6(2) of ECHR, whereby, ‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.’ Section 3 HRA ensures that consideration must now be given to the jurisprudence concerning that presumption whenever common law or statute expressly or impliedly places burden of proof on defendant.

However, the ECHR has not accepted that reverse-onus provisions or presumptions inevitably contravene Article 6(2).  Particularly, in Salabiaku v France, the court considered a presumption of criminal liability and held that Article 6(2) has not been violated.  The court clearly stated that 'Presumptions of fact or law...the Convention does not prohibit such presumptions in principle…requires States to confine them within reasonable limits…importance of what is at stake and maintain the rights of the defence.'

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Hence, the outcome of Salabiaku is that provisions that appear to impose obligation on the accused to adduce evidence to avoid conviction will not necessarily violate the HRA. Rather, the current dilemma for English courts is whether, and in what circumstances, it is justifiable and proportionate to impose not only an evidential but also a legal or persuasive burden on the accused.

Apprehension arose in UK as early as 1999 in R v DPP, exp. Kebilene whereby, the House of Lords did not accept the Divisional Court's observation that reverse-onus provisions would inevitably lead to a finding of incompatibility with ...

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