Free Law Essays - The legal burden of proof in any proceedings relates to particular facts in issue.
In criminal proceedings, the legal burden of proving any fact which is essential to the prosecution’s case rests upon and remains with the prosecution for the duration of the trial. Generally, the defendant in the proceedings will bear no legal burden at all in relation to the essential ingredients of the offence. The reasoning behind this is that all persons are entitled to a fair trial where the presumption of innocence is a fundamental right. It would be unfair to expect a person accused of a crime to disprove the accusation, with the result that if he fails to do so he faces conviction and punishment.
This rule was clarified by the case of Woolmington v DPP which involved a farm labourer, Reginald Woolmington, who had been convicted of killing his wife. Three months after his marriage to Violet, she left him and went to live with her mother. Some time after, he took a double barrel shotgun, sawed off the barrel and bicycled over to his mother in law’s house where he shot and killed Violet. He claimed that the killing was accidental and he had only meant to scare his wife into thinking he was going to kill himself. He was arrested and charged with wilful murder.
At the first hearing the jury was directed that if, as a result of a “dispassionate survey” there was reasonable doubt in their minds, then their duty was to acquit the defendant. If however they had no doubt that the killing was deliberate, it was their duty to convict. Although this direction would appear accurate and was in fact commended by the Lords at a later stage, the jury were unable to agree on this.
Conversely, at the trial out of which the House of Lords’ hearing originated, the jury were directed that in that in every charge of murder where the fact of killing was proved, any circumstances of alleviation, excuse or justification that the defendant wishes to rely on must be proved by him unless arising out of evidence produced during the trial. It was stated that there was a presumption of malice unless evidence arose to the contrary and that this was the “law of this country for all time since we had law”. Further, the person guilty of an act which causes death must satisfy the jury that what happened was something less than murder. If the defendant was unable to do this, provided that the jury were satisfied that the wife died as a result of injuries inflicted by the defendant, they would have to find him guilty. The jury subsequently found Woolmington guilty of wilful murder.
Woolmington appealed on the basis that the trial judge had misdirected the jury but his application was refused. However, since this decision involved a point of law of “exceptional public importance”, the Attorney General allowed the case to be brought before the House of Lords, who quashed the conviction.
The decision of the House was that it is for the prosecution to prove both death as a result of a voluntary act by the defendant, and also prove the malice of the defendant. The defendant is entitled to provide an explanation or evidence in relation to the events. If the jury are satisfied with his explanation or, on review of all the evidence presented, are in doubt whether or not the act was unintentional or provoked, even if the defendant’s explanation is not accepted, he is entitled to be acquitted. Therefore, it was for the prosecution to prove Mr Woolmington killed with malice, rather than for Mr Woolmington to prove that he had some excuse, justification or explanation for the killing.
To understand why this decision was made, it is necessary to examine the state of the law prior to Woolmington, or at least, how it was perceived at the time. The Lords had the benefit of an extensive inquiry into how such a proposition had developed, and they began their consideration with a definition laid down in Foster’s Crown Law (1762) in an article entitled “Introduction to the Discourse of Homicide”. In that edition Foster, a distinguished judge, states:
“In every charge of murder, the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him; for the law presumeth the fact to have been founded in malice, until the contrary appeareth….”
It is this definition that is quoted, almost like for like, in the decision of the Court of Criminal Appeal in Woolmington. The Lords noted that the first part of the passage appeared in almost every text book written since that time, including Halsbury’s Laws of England which stated in similar terms that:
"When it has been proved that one person's death has been caused by another, there is a prima facie presumption of law that the act of the person causing the death is murder, unless the contrary appears from the evidence either for the prosecution or for the defence. The onus is upon such person when accused to show that his act did not amount to murder."
The authority for this point of law was given as being Foster, pp. 255, 290 and also Rex v. Greenacre. 8 C. & P. 35.
The Lords questioned the Appeal Court’s interpretation of the passage in Foster. If indeed Foster had intended to say that the accused must prove his innocence, they could find no previous authority for this proposition. They examined various other cases that had been cited to them and concluded that these were concerned more with the ingredients of the crime of murder rather than the burden of proof. They concluded that the passage in Foster and the case of Rex v Greenacre made reference to stages in the trial of a case and meant only that if it can be proved that the conscious act of the defendant killed another person and nothing else appears in the case, there is evidence upon which the jury may, or may not, find him guilty of murder. The onus still rests with the prosecution to prove that there was malice. The Lords further noted that if it was permissible for the judge to rule that the prosecution had established its case and thus the burden of proof had shifted to the defendant to prove he was not guilty, and if he failed to discharge that burden the prosecution would succeed, it would be “enabling the judge.. to say that the jury must find the prisoner guilty and so make the judge decide the case and not the jury”.
The Lords concluded that whilst there is a burden on the prosecution to prove the guilt of the defendant, there is no such burden on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt – he does not have to satisfy the jury of his innocence.
The burden on the prosecution in a criminal case like Woolmington requires a standard of proof that is ‘beyond reasonable doubt’. This standard does not require absolute certainty but it must carry a “high degree of probability”. The case of Miller v Minister of Pensions is authority for the point that proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. Neither does it mean that proof is required to a scientific certainty. If however, the evidence presented leaves only a remote possibility that is entirely improbable, the case is proved beyond reasonable doubt.
Further, when explaining the standard of proof required to a jury, the judge does not need to use any particular form of words, provided that the jury is able to appreciate the “substance of the test”. Although in Ferguson Lord Scarman advised that judges should adopt a particular formula to ensure that the jury fully appreciate they should be sure of the defendant’s guilt and be satisfied beyond reasonable doubt, it is explained in R v Kritz that the formula is less important than the effect of summing up. Whether the judge chose a particular form of language was “neither here nor there” provided that they were properly directed on what they were required to find.
The rule established by Woolmington is subject to exceptions and it is the rules of substantive law that determine which party bears the burden of proof in relation to the proceedings . For example, where the defendant raises the defence of insanity, he will bear the legal burden of proving it. Where it is alleged that the defendant suffers from a disability which renders him unfit to plead and stand trial, this issue may be raised by either the prosecution or defence. If raised by the prosecution, they must prove the issue beyond reasonable doubt, whereas if raised by the defence they must only prove the issue on a balance of probabilities. Where the defendant is charged with murder and seeks to raise the issue of insanity or diminished responsibility, the prosecution may present evidence to prove the other of those issues, but must then bear the burden of proving the other issue for which they have presented evidence. The standard of proof required in such case is beyond reasonable doubt.
A further exception to the rule in Woolmington arises where statute expressly places the legal burden of providing certain issues on the defendant, although the burden for all other issues remains with the prosecution. An example can be found at s2(2) of the Homicide Act 1957 which places the legal burden of establishing the defence of diminished responsibility on a charge of murder, on the defendant.
Statutes may also impliedly place the legal burden of proof on the defendant. S.101 of the Magistrates Court Act 1980 provides that where a defendant relies on any exception, proviso, excuse or qualification, the burden of proving it shall be on him. This must be read subject to the Human Rights Act 1998. It applies to statutes that contain exceptions such as “unless”, “provided that” and “except where..”. This is clarified by the case of Gatland which involved application of s.161(1) of the Highways Act 1980. The Act provides that a person depositing anything on the highway “without lawful authority or excuse” shall be guilty of an offence. It was held that it was for the prosecution to prove that the defendant had deposited something on the highway, and it was for the defendant to prove that they had lawful authority or excuse pursuant to s.81 of the Magistrates Court Act 1952 (now s.101). This rule was held not to be exclusive in R v Hunt and therefore each case will depend on the construction of the particular legislation in question.
These exceptions to the rule in Woolmington are referred to as ‘reverse onus provisions’. The word “onus” can be replaced by “burden of proving”, its literal meaning. As such provisions threaten to undermine the general presumption of innocence, they are subject to limitations in that they must not go beyond what is necessary to achieve their legitimate aim.
(Part B)
Since the Human Rights Act 1998 came into force, any reverse onus provisions are open to challenge on the basis of their incompatibility of Article 6(2) of the European Convention on Human Rights. Article 6(2) provides that any person charged with a criminal offence shall be presumed innocent until proven guilty according to law. Where a statutory provision is found to be incompatible with Article 6(2), it must be read and given effect to in such a way which is compatible with the Convention rights. If it is not possible to do this, the Court may make a declaration of incompatibility.
The presumption of innocence is, as stated, essential to the concept that it would be unfair to expect a person accused of a crime to disprove the accusation on the understanding that if he fails, he will be convicted and punished. However, this presumption is not absolute and unqualified, and neither is the application of Article 6(2). The relevant test is whether the statutory provision in question pursues a legitimate aim and whether it satisfies the principles of proportionality. If this is achieved, the statutory provision will not be incompatible, even though it modifies the presumption of innocence under Article 6(2). Thus, statutes that exclude the requirement of mens rea are permitted but must be reasonable. The case of Salabiaku clarifies that where a presumption exists that is adverse to a defendant, a court may consider, inter alia, the opportunities given to that defendant to rebut the presumption, the flexibility in application of the presumption and the difficulties a prosecutor would face in absence of that presumption.
Such difficulties can be seen in the case of Lambert, in which the defendant was found in possession of two kilograms of cocaine in a duffle bag, and was subsequently charged with possession of cocaine with intent to supply. Lambert sought to rely on s.28(3)(b)(i) of the Misuse of Drugs Act 1971 which provides that a person shall be acquitted of the offence if he proves that he neither believed, nor suspected, nor had reason to suspect that the substance or product in question was a controlled drug. The judge directed the jury that if they were satisfied that Lambert had the drug in his possession, the burden was on him to prove on the balance of probabilities that he did not know the bag contained a drug, in accordance with s.28.
The House of Lords held that the trial had taken place before the 1998 Act came into force and Lambert could not therefore rely on any alleged breach of his rights under the ECHR. However, they held that s.28 was not compatible with Article 6(2) and therefore must be read as imposing only an evidential burden on the defendant. The word “prove” was to be read as meaning “give sufficient evidence”.
An evidential burden is an obligation on one party to produce sufficient evidence of a fact for the issue to go before the tribunal of fact. It is not strictly a burden of proof because an evidential burden can be discharged by producing evidence that would fall short of proof. The evidence required must be sufficient to prevent the judge from withdrawing the issue from the jury.
In contrast, a legal burden of proof requires a party to prove a fact in issue. Where the prosecution has the legal burden, the standard of proof required is beyond reasonable doubt. However, where the defendant has the legal burden, the standard of proof is on the balance of probabilities.
As discussed, who has the burden will depend on the rules of substantive law but generally, the legal burden to prove a particular fact falls with the party whose case depends on that fact being proved. In criminal cases this is almost always the prosecution but on occasions it is the defendant that must establish proof on the balance of probabilities and this remains the law despite much debate. One such case involved a charge of being in possession of a lock knife in a public place contrary to s.139 of the Criminal Justice Act 1988. This Act provides a defence at s.139(4) if the accused can prove he had good reason or lawful authority. The provision was held to be compatible with Article 6(2) for a number of reasons including the fact that a strong public interest exists to deter people from carrying knives in public without good reason or authority. Lord Nicholls clarifies this point in R v Johnstone, explaining that for a reverse burden of proof to be acceptable there must be a “compelling reason why it is fair and reasonable to deny the accused person the protection normally guaranteed to everyone by the presumption of innocence” and the more serious the punishment, the more compelling the reasons must be.
The case in question referred to R v S in which it was examined whether the provisions of s.92(5) of the Trade Marks Act 1994 infringed Article 6(2). Those provisions gave a defence to a person charged with unauthorised use of a registered trade mark to show that he believed, on reasonable grounds, that the use of the sign was not an infringement of the registered trademark. Lord Nicholls noted that this defence related to facts within the defendant’s own knowledge, and similar observations were made in Lambert and L v DPP, and in other notable cases. He further noted that those trading in brand products are aware of the need to be on guard for counterfeit goods, and those who supply traders with counterfeit goods, if traceable, are unlikely to be cooperative. If the prosecution were required to prove dishonesty on the part of those traders, there would be few cases that succeeded.
In Attorney General’s Reference (No 4 of 2002) Lord Bingham clarified the point that it was never the task of the court to decide whether a reverse burden should be imposed on the defendant, but instead their responsibility was to assess whether a burden enacted by the legislature unjustifiably infringes the presumption of innocence. It would seem from the cases discussed that the court have been willing to allow the legal burden of proof to rest with the defendant and the effect of Article 6(2) has not been to impose an absolute prohibition on reverse onus clauses, whether evidential or persuasive, but rather to impose a test for each clause to be within reasonable bounds. Generally where the penalty for committing the offence is severe, the Court have been more inclined to make a ruling of incompatibility. Where a statute has been found to be unreasonable or to go beyond what is necessary, the burden has been reduced to evidential only but it is estimated that, at this time, some 40% of offences triable in the Crown Court still impose a legal burden on the defendant to prove at least one element of the offence or statutory defence.
This does appear to have the effect of minimising the rule in Woolmington. The “high degree of probability” required for the standard of proof is reduced to a balance of probabilities in cases where the burden has been reversed. It is important to appreciate that where the defendant is required to prove a fact on the balance of probability to avoid conviction, this “permits a conviction [despite the jury] having a reasonable doubt as to the guilt of the accused”. In other words, the jury have a duty to convict if they are in any doubt that the defendant has established his defence or if they view his version of events as likely true as not. This seems to return to the old views that the Lords in Woolmington were so anxious to eradicate.
Where the burden is evidential, it is not so heavy as it can be discharged by submission of evidence that falls short of proof but where the burden is legal, such as that imposed by s92(5) Trade Marks Act 1994, the defendant will have to prove the fact to a level of probability or risk losing the issue. This would seem in direct contention with any concept of a fair hearing but despite considerable pressure to do so, Parliament has to date refused to enact a rule to the effect that all reverse onus provisions impose only an evidential burden. As a result, each statutory provision must be assessed and is subject to, according to Keane, a long period of uncertainty and much expensive wasteful litigation.
Bibliography
Allen, C (2004) Practical Guide to Evidence (3rd Edition) Cavendish Publishing Ltd
Ashworth, A & Blake, M (1996) The Presumption of Innocence in English Criminal Law Crim LR 306 in Keane, A (2006) The Modern Law of Evidence (6th Edition), p.103 Oxford University Press, Oxford
Keane, A (2006) The Modern Law of Evidence (6th Edition) Oxford University Press, Oxford
LexisNexis Butterworths - http://www.lexisnexis.com [accessed 11 February 2006]
