The basic concept in the criminal law is that the prosecution must establish the elements of an offence, subject to statutory exceptions “the golden thread” rule that was recognised by Viscount Sankey L.C. in the Woolmington v DPP . This essay will examine in the law of evidence, the scope to which burden of proof will challenge the incompatibility with Article 6(2) of the European Convention on Human Rights(ECHR) , after the enforcement of Human Rights Act 1998 (HRA). It was established in Article 6(2) of the ECHR that a person charged with a criminal offence shall be presumed innocent until proven guilty according to law . This sets the English Court in an endless loop, if a provision does unreasonably breach Article 6(2) and further issue will ascend whether it should be read down, in accordance with obligation to Section 3 of Human Rights Ac t and whether it is reasonable to force not just an evidential burden but a legal burden on the accused. The domestic courts have had significant problem with the issue of the compatibility, there are recent cases that will be further discussed in this essay.
The impact of Woolmington principle was reflected in two ways, firstly, it claimed that the burden of proof of mens rea was also on the prosecution in criminal cases, not just the accused. Secondly, the responsibility of the prosecution to disprove the burden of common law defences that the defendant may have raised in their defence. Initially, it must be noted that Woolmington did not form the rule that the prosecution must prove the guilt if the defendant, rather it purely delivered a brief statement of the rule which was set out before. Furthermore, Viscount Sankey L.C. illustrated that the only exception to “the golden thread” is the defence of insanity at the common law.
There are numerous statutory provisions that place a legal burden on the defence; often this is known as a ‘reverse’ burden of proof. Since the ECHR has merged into domestic laws, the problem of reverse burden has gained its importance and has outdated the common-law issue. Ashworth and Blake suggested that express reverse onuses are to be in around 40 percent of all indictable statutory offence. Although, there are various issues that are evidently examining the compatibility with Article 6 of the ECHR, the court must acknowledge whether it breaches Article 6 of the ECHR. The leading case in Strasbourg, an important decision on the compatibility of article 6 in relation to reverse burden was given in Salabiaku v France, the European court of Human Rights stated that the presumption of innocence is not an absolute rule and hence the convention does not forbid reverse burden. Also, if the state does enforce a reverse burden upon the accused, it should be within reasonable limits and the rights of defence must be taken into account. The issue with reverse burden is that they don’t act in accordance with presumption of innocence and therefore denies the accused the right to a fair trial. Hence, to establish a reverse burden, the prosecution must demonstrate that it is a ‘pressing necessity’ .
R v Edwards, express the situation in trial of indictment. The defendant was charged with selling alcohol without a licence. The defendant argued that it was for the prosecution to provide evidence, however the court held that it is not for the prosecution to provide the evidence but rather for the defendant to prove. Thus,
The primary case on implied statutory provision exception to the Woolmington principle is the verdict made by the House of Lords in R v Hunt . In the Hunt case, the defendant was convicted of unlawful possession of morphine conflicting to section 5 of the Misuse of Drugs Act 1971. The defendant wished to rely his defence on the Misuse of Drugs Regulations 1973, which stated that section 5 did not apply to any preparation of morphine containing 0.2 percent morphine. It was held that the prosecution must prove that the preparation contained more than 0.2 percent morphine. This raises the question that who bears the legal burden of proof in relation to the issue of the percentage of morphine. In contrast, In Hunt, Lord Griffiths propose that the scope of Woolmington principle was overreached, stating that it was not concerned to considered ‘the nature of a statutory defence’. Furthermore, Lord Ackner claimed that state may enforce a burden of proof on the defendant “either expressly or by necessary implication,” however, Lord Ackner rejected the reference by Lord Sankey L.C. in Woolmington to “any statutory exception.”
It should be noted that the Lambert case was heard during the notion of Human Rights Act 1998 in the UK. The defendant was convicted of possession of class A controlled drug with intent to supply . The verdicts made by the House of Lords in the Lambert case had a huge impact on the laws in terms of Article 6(2) of the ECHR. In the lambert case the court highlighted that the prosecution must endure the obligation of proving the main element of an offence. The defendant argued that demanding him to prove lack of knowledge was unreliable with the presumption of innocence. The majority of lords in Lambert held that the reverse burden provision in Section 28 of the Misuse of Drugs Act was inconsistent with Article 6(2) of the ECHR, that there was insufficient justification for making an exception and imposing a persuasive burden on the defendant was a disproportionate means of reaching the aim of the prosecution in evidencing the defendant’s knowledge. However, Lord Hutton considered that the social threat posed by the drugs was sufficient to consider the imposition of a persuasive burden. Similarly, Lord Steyn’s main reason for rejecting a reverse burden under section 28 was that the court will be bind to convict the defendant even though his evidences could be true. This thought was considered prejudicial and intolerable for an offence.
This issue reflects as a relevant factor in deciding whether a reverse burden is compatible with the ECHR and even though it is, to what extent does it weight. Likewise, in Salabiaku, it was established that a reverse burden will be incompatible with article 6 of the ECHR, but it could be avoided if it is ‘within reasonable limits,’ as mentioned above.
Additionally, the court will “read down” the provision in section 3 of the HRA, if the breach cannot be justified. Thus, lambert demonstrates the unpredictability of the human rights notion of proportionality. However, the consequence of this is to enforce an evidential burden rather than a legal burden on the defendant; referring to ‘prove’ and ‘proves’ in this provision should be construed as ‘giving sufficient evidence.’ Similarly, Lord Nicholls of Birkenhead recognised by remarking that ‘the requirement of a reasonable balance is not as easy as might seem. Nevertheless, the consideration of such words to be ‘read down’ creates a significance in advancement of law, even though it’s post HRA. However, if it is not possible to ‘read down’ the provision, the court will choose to issue a declaration of incompatibility under then Section 4 of the Human Rights Act 1998.
However, in R v Johnstone , House of lords pursue to improve on the decision of Lambert by adopting a more neutral method. Under Section 92 (5) of the Trade Mark Act 1994, defendant was charged of producing counterfeit goods. If the defendant could demonstrate that there was a reasonable belief in the lawfulness of his act. Lord Nicholls stated that the defendant’s own knowledge was an alternative factor in decision about compatibility of a reverse burden. Similarly, In Lambert, Lord Clyde referred to ‘peculiar knowledge as consideration which supported a reverse burden’. ,
The decision made in Sheldrake v DPP could be regarded as the most convincing judicial consideration of the legal principles, the defendant was convicted of an offence under Section 5 (2) of the Road Traffic Act 1988 . To establish that the defendant was driving under the limit under section 5 (1) (b) of the Road Traffic Act 1988 , was incompatible with the Article 6(2) of the ECHR and it is vital to be ‘read down’ to enforce an evidential burden on the accused. However, House of Lords collectively stated that Section 5 (2) should not be read down, as Lord Bingham stated that ‘the defendant’s own knowledge and state of mind at the material time as to make it much more appropriate for him to prove on the balance of probabilities.’ In Sheldrake, court underlined that the decision made in lambert should not be overlooked and that it was compatible with Lambert. Lord Steyn’s approach in lambert was implemented and developed further by Lord Bingham in Sheldrake. Although, Lord Bingham’s speech suggests a wide approach to the presumption of innocence, however, it also provided some vital problems.
In R v Keogh, the defendant was charged under Section 2 and Section 3 of the Official Secrets Act 1989, it provided that t
It would be disproportionate and unjustifiable to
In a very recent case, R v Williams, the court imposed a reverse legal burden on the defendant rather than evidential burden, under the provision in Section 1(5) of the Firearms Act 1982 . The court decided on the source that offences relating to firearms is considered a serious issue and therefore involves maximum safety of the public. Similarly, Glover argued that to disprove a presumption in relation to reverse burden would only be acceptable in the case of a regulatory offence ‘if defendant voluntarily engaged in a lawful activity that presented a serious risk or danger to public health and safety.’
To conclude, there is a huge concern about the unpredictability of Article 6 (2) of the European Convention on Human Rights in relation with reverse burden. Some reverse burden provisions are compatible with the presumption of innocence, whereas some provisions are incompatible