The impact of HRA on burden of proof and bad character

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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 ...

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