The impact of HRA on burden of proof and bad character
Burden of proof
The non-fugitive initial presumption of innocence upon the accused and the heavy onus of proof insisted upon the prosecution to prove the guilt of an accused beyond reasonable doubt steadily erect the fundamentals of English criminal law. Thus, an accused person cannot be adjudged guilty, unless and until it is proven, accomplishing the standard of proof, that he is guilty. This is unyieldingly reflected in Art.6(2) European Convention of Human Rights (ECHR).
The ‘golden thread’ which imposes the entire legal burden on the prosecution was robustly constructed in the landmark case of Woolmington v DPP. The House of Lords rejected the approach that the defendant was to bear the burden of establishing any defence he wished to advance, since it was for the Crown to prove that he had committed the actus reus of the offence. Instead, it was held that, save in certain exceptional cases, the prosecution bore the burden of proving all the elements of the crime and of negativing any defences advanced by the accused.
Meanwhile, there are exceptions where the burden of proof is shifted to the defendant. Under common law, the only exception to the ‘golden thread’ is when the defence of insanity is raised by the accused. He must establish this on a balance of probabilities. It can be traced back to the advisory opinions of the judges in M’Naughten’s Case. Statues may expressly decree that the defence bears the legal burden of proof: s.30(1) Sexual Offences Act 1956, s.2(2) Homcide Act and s.74(2) Police and Criminal Evidence (PACE) Act 1984. Statutes may also cast the burden of proof on the accused by necessary implication as enshrined in the leading case of R v Turner.
This branch of the law of evidence has undergone considerable change in the wake of the passage of the Human Rights Act (HRA) 1998. Since s.3 HRA 1998 requires courts to interpret English legislation so far as possible in a manner compatible with the Convention, it immediately poses the question as to whether it is ever permissible for the law to cast the legal burden of proof on the accused or whether such rules are now outlawed as they infringe the fundamental principle of the presumption of innocence as stated in Art.6(2) ECHR. The House of Lords first gave thought to this question in ex p Kebilene.
Apparently it would surely be contrary to Art.6(2) for Parliament to seek to reverse the decision in Woolmington, but such an extreme view finds no justification in the seminal passage in Salabiaku v France which, while allowing for the operation of presumptions against the accused, goes on to confine it ‘within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence’. Although Art.6(2) may appear to be expressed in absolute terms, the ECtHR decisions, including decision in Hoang v France, make plain that rules which reverse the burden of proof are far from being absolutely forbidden.
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Moreover, limitation in s.3 allows the court to “read down” the Convention into a provision without allowing the courts to “read out” a clear provision which offends against the Convention. Provisions which shift the burden of proof should not be ignored. In fact, s.3 provides powerful tool of statutory interpretation which allows the court to go beyond the natural and ordinary meaning of provision.
S.30(1) Sexual Offences Act 1956 provides a handy illustration. The words ‘unless he proves to the contrary’ could be read to mean ‘unless sufficient evidence is given to the contrary’. This may not appear to be a significant difference at first glance, but the strict burden of proof has now been replaced by a simpler need to adduce supporting evidence.
However, despite the powerful tool provided by s.3, the majority of the House of Lords in R v Lambert have brought about the notion of proportionality. It was held that the imposition of legal burden of proof on the accused, as set out in s.28(2) Misuse of Drugs Act 1971, could not be justified as proportionate given the gravity of the consequences which would follow a conviction with a sentence of life imprisonment in the most serious cases. Hence, reverse onus in the provision was held incompatible with Art.6(2) as they were unwilling to have it “read down”.
Soon after Lambert was decided, the ruling became ramshackle following the two cases: L v DPP and R v Johnstone. The Court of Appeal in the former case ruled that it was not disproportionate for the legislation to require proof from the defendant, on a balance of probability, since the prosecution had proved the elements of the offence. The latter case concerned trademark offence which carries term of imprisonment in serious cases. The House of Lords made it clear that albeit Art.6(2) did not stand alone and was to be subsumed within the guarantee of fair trial provided by Art.6 as a whole, a reverse burden did not necessarily preclude a fair trial. Instead, it could be a proportionate response to a serious and current social or commercial mischief.
The inconsistencies were enlightened in Sheldrake v DPP; A-G’s Reference (No.4 of 2002) where a neutral approach was being taken for the jurisprudence in this area of law. A proportionality assessment should be exercised to strike a balance between the society’s interest in effective suppression of social mischief with which the offence is concerned and the defendant’s right to fair trial. The overarching question is whether reverse burden is compatible with a fair trial; if it is not, it should be read down by virtue of s.3 HRA 1998 whenever it is proportionate to do so. Indeed, not all rules that impose the onus of proof on defendants are intrinsically offensive to ECHR.
Historically, the admissibility of evidence of disposition was governed by the large body of case law that became known as the law of ‘similar fact evidence’, except where the defendant ‘put his good character in issue’ by calling witnesses to testify to his good character. The defendant could not testify in his own defence until the passage of Criminal Evidence Act (CEA) 1898.
An exclusionary rule was then laid out in CEA 1989 which provided that the prosecution could not, in general, adduce evidence of a defendant's bad character nor of the defendant's propensity to act in a particular way even if relevant. The main exception to the exclusionary rule was the ‘similar fact rule’ which permitted the admission of evidence of misconduct by the defendant in order to show a propensity to commit offences of the type charged. The leading authority was DPP v P. The test of admissibility was whether the probative value of the evidence to be admitted was sufficiently great to make it just to admit it, notwithstanding that it was prejudicial to the accused in tending to show that he was guilty of another crime.
Besides, if the defendant did not make character (his own or someone else's) an issue in his defence, then evidence of his bad character could not be adduced at all, however appalling his record might have been. This was the case whether or not the defendant testified on his own behalf. If the defendant did not testify, he could attack the characters of other witnesses with impunity, so long as he did not make an issue of his own good character. It was only by testifying that s.1(3) CEA 1989 came into play. Even if the defendant did testify, and engage s.1(3)(ii) by making an issue of character, or s.1(3)(iii) by testifying against a co-defendant, this only gave the prosecution a right to cross-examine on character. It did not create a right for the prosecution to tender witnesses to testify to the defendant's bad character.
In fact, the provisions of s.1(3) are often referred to as a ‘shield’ for the defendant. Providing none of the conditions in s.1(3) are satisfied, and the similar fact rules did not apply, the defendant was shielded from having his bad character exposed.
In response to this, Criminal Justice Act (CJA) 2003 was introduced which in Part 11, it contains clauses about character evidence that were based in part on the Law Commission’s proposals, but had been significantly “bent” to make evidence of the defendant’s bad character more readily admissible. Evidence of the defendant’s bad character is admissible if any of the “gateways” are open, but not otherwise.
It has been suggested that Art.6 in ECHR has inhibited the use of bad character. This has been looked into by the Office of Criminal Justice Reform and there is no evidence that the HRA 1998 has been used to prevent bad character. However, it is likely that – at least initially – defendants will use Convention arguments to support their applications for evidence of bad character evidence to be excluded. In their weaker form, these arguments will invite the court, where it has discretion to exclude, to use it. In their stronger form, relying on s.3 HRA 1998, they might even invite the court to “read down” some of the provisions of the Act in order to exclude evidence apparently admissible under the Act.
CJA 2003 has the potential to weaken significantly the defendant's protection against his bad character being admissible as evidence. There are, however, a number of safeguards for the defendant.
Despite that the Secretary of State’s power, as conferred by s.103(4)(b), to prescribe categories of offences is the only authorizing orders which provide for the admissibility of relevant evidence, s.3(1) HRA 1998 has made it mandatory to be read and given effect in a way which is compatible with Art.6 ECHR which entitles a defendant to a fair trial, so far as it is possible to do so.
The fact that an offence falls within one of the categories does not mean that evidence of bad character is automatically to be admitted on that account, or at all. That is because the judge retains the discretion to exclude such evidence under s.101(3), 103(3), and 112(3)(c) CJA 2003, as well as under the general exclusionary power in s.78(1) PACE 1984. The court ‘must’ not admit it if it would have ‘an adverse effect on the fairness’ of the trial. Apparently, the wording ‘must’ rather than ‘may’ suggests an obligation rather than discretion to exclude, if the evidence would lead to unfairness. This re-states what was already the fundamental principle of English law, as enshrined in R v Sang.
The court, in R v Hanson, Gilmore, & Pickstone, laid down some important ground rules regarding the exercise of judicial discretion under s.101(3) and s.103(3) CJA 2003 as a guideline to be in line with s.3 HRA 1998.
An additional safeguard is found in s.107 CJA 2003, which allows the court to stop the proceedings if it appears that character evidence is ‘contaminated’, thus, a conviction would be unsafe. Besides, the judge is bound by s.6(1) HRA 1998 to exercise judicial discretion in a way that is compatible Art.6 ECHR. Henceforth, it is feasible as the Explanatory Memorandum acknowledges that the introduction of the bad character provisions in CJA 2003 ‘will require training for judges and others in the criminal justice system’.
However, lastly, it is further submitted that a jury or lay magistrates would need a careful direction from the judge about the assessment on the weight to be given to the evidence of bad character. In Canada it has been held that trial judges who admit similar fact evidence must give the jury a double warning: (1) that they may not ‘use the similar fact evidence to reason from general disposition or character to guilt’ and (2) that they may not ‘use it to punish the accused for past misconduct by finding the accused guilty’. Likewise, there is no doubt that directions to juries and magistrates as to the use of evidence of bad character under the new law will be necessary in order to safeguard against breaches of the right to a fair trial under Art.6(1) even more rigorously.
‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.’
 AC 462, per Viscount Sankey LC at pp. 481-2.
 10 Cl & Fin 200.
‘…It is an offence for a man knowingly to live wholly or in part on the earnings of a prostitute, unless he proves to the contrary’.
It defines the defence of diminished responsibility which states that ‘On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be conviction of murder.’
s. 74 of PACE renders admissible the convictions of persons other than the accused where evidence of their having committed them is admissible. In all cases where such evidence is admitted, it provides that that person ‘shall be taken to have committed that offence unless the contrary is proved’.
 5 M & S 206. This case involved law regarding poaching which had a list of ten exceptions where poaching would not be illegal if the defendant was able to fit into any of the exceptions.
‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
 2 AC 326. The case arose out of a charge brought under the Prevention of Terrorism (Temporary Provisions) Act 1989, s.16A.
 13 EHRR 379, at para 28.
 16 EHRR 53.
 2 AC 545.
‘…it shall be a defence for the accused to prove that he neither knew of now suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged.’
‘If any error is to be made in the weighing of the scales of justice it should be to the effect that the guilty should go free rather than that an innocent person should be wrongly convicted,’ per Lord Clyde at p.258.
 Crim LR 320.
 UKHL 37.
 UKHL 43.
The exceptions to the exclusionary rule fell into three categories: evidence that was adduced by the prosecution against the defendant; evidence which a defendant could adduce; and evidence which could have been adduced in cross-examination of a defendant.
 2 AC 447.
s.101(1) CJA 2003.
R v Hanson; R v Gilmore; R v Pickstone  EWCA Crim 824 laid down some important ground rules regarding to the exercise of judicial discretion under s.101(3) and s.103(3) CJA 2003.
 AC 402.
 EWCA Crim 824.
For example, the character evidence is falsified.
‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right.’
Explanatory Memorandum, para 8.2.
Joint Committee on Human Rights, First Report of 2002-03, op cit, Ev 5.
R v CB  OJ No.11 (Ontario Court of Appeal).