Assignment

No. Title Page(s)

1. Table of Statutes 2

2. Table of Authorities 3

3. Question 4

4. Introduction 6

5. Body

Insanity

Express statutory provisions

Implied statutory provisions

Reverse onus provisions and the Human Rights Act 1998

Suggested reforms

8

9

10-15

16-17

18-19

6. Conclusion 21

7. Bibliography 22-23

8. Turn it in report 24-35

1

TABLE OF STATUTES

i. Charter of Rights ………………………………………………..pg 22

ii. Criminal Procedure (Insanity) Act 1964 ...............................pg 9

iii. Environmental Protection Act 1990 ………………………….pg 12

iv. European Convention on Human Rights .............................pg 7, 11, 17, 18

v. Factories Act 1961 ..................................................................pg 12

vi. Homicide Act 1957 ..................................................................pg 9, 10

vii. Human Rights Act 1998 ..........................................................pg 7, 14, 17, 18

viii. Local Government (Miscellaneous Provisions) Act 1982 ....pg 11

ix. Magistrates’ Courts Act 1952 .................................................pg 11, 12

x. Magistrates’ Courts Act 1980 .................................................pg 11,12,13,14,

15, 17

xi. Misuse of Drugs Act 1971 ……………………………………….pg 17, 18

xii. Misuse of Drugs Regulations …………………………………...pg 14

xiii. Prevention of Crime Act 1953 ..................................................pg 19

xiv. Terrorism Act 2000 ....................................................................pg 10

2

TABLE OF AUTHORITIES

i. Attorney General’s Reference (No.4 of 2002) [2005] 1 All ER 237

ii. Gatland v Metropolitan Police Commissioner [1968] 2 QB 279

iii. M’Naghten’s Case (1843) 10 Cl & Fin 200

iv. Nimmo v Alexander Cowan & Sons [1968] AC 107

v. R v Campbell (1986) 84 Cr App R 255)

vi. R v Curgerwen (1865) LR 1 CCR 1

vii. R v Donovan [1934] 2 KB 498

viii. R v Edwards[1975] QB 27

ix. R v Grant [1960] Crim LR 424

x. R (Grundy & Co Excavations Ltd) v Halton Division Magistrates’ Court

(2003) 167 JP 387

xi. R v Horn (1912) 7 Cr App R 200

xii. R v Hunt [1987] 1 All ER 1

xiii. R v Keogh [2007] 2 Cr App R 112

xiv. R v Lambert [2002] 2 AC 545

xv. R v Podola [1960] 1 QB 325

xvi. R v Robertson [1968] 1 WLR 1767

xvii. Woolmington v DPP [1935] AC 462

xviii. Salabiaku v France (1988) 13 EHRR 379

xix. Sheldrake v DPP [2003] EWHC 273 (Admin)

xx. Westminster City Council v Croyalgrange (1986) 83 Cr App R 155

3

QUESTION

“Throughout the web of English criminal law, one golden thread is

always to be seen, that it is the duty of the prosecution to prove the

prisoner’s guilt”

-per Viscount Sankey LC in Woolmington v DPP (1935) AC 462 at p.481

That is the basic rule for the burden of proof in criminal cases, but is it

supported by any principles?

4

5

The legal burden of proving any fact essential to the prosecution’s case rests

upon the prosecution and remains with the prosecution throughout the trial1. The

prosecution bears the legal burden of proving absence of consent on a charge of

rape or assault2. Therefore, the accused bears no legal burden in respect of the

essential ingredients of an offence, whether they are positive or negative and

whether he denies any or all of them. In Woolmington v DPP 3 the accused, charged

with the murder of his wife, gave evidence that he had shot her accidentally. The trial

judge directed the jury that once it was proved that the accused had shot his wife, he

bore the burden of proving malice aforethought. The House of Lords held this to be

misdirection and Lord Sankey delivered his infamous judgement. It is on the basis of

this judgement that this assignment revolves.

The rule enunciated by Lord Sankey is subject to three categories of

exception. Firstly, where the accused raises the defence of insanity. Secondly,

where statute expressly places the legal burden on the defence and finally, where a

statute impliedly places the legal burden on the defence. The statutory exceptions

are often referred to as reverse onus provisions. Since coming into force of the

Human Rights Act 1998, any such provision is open to challenge on the basis of its

incompatibility with the presumption of innocence guaranteed by Article 6(2) of the

European Convention on Human Rights (ECHR).

1 Negative as well as positive allegations may be essential to the case for the prosecution. 2 R v Horn (1912) 7 Cr App R 200; R v Donovan [1934] 2 KB 4983 [1935] AC 462

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7

Insanity

Where an accused raises insanity as a defence, he bears the legal burden of

proving it4. The justification is based on the difficulty of disproving false claims of

insanity, given that the accused may not cooperate with an investigation of his state

of mind5. Where an accused is charged with murder and raises the issue of either

insanity or diminished responsibility, the prosecution, pursuant to s6 of the Criminal

Procedure (Insanity) Act 1964, is allowed to adduce evidence to prove the other of

those issues6. If an accused is alleged to be under a disability rendering him unfit to

plead or stand trial, the issue may be raised under s4 of the 1964 Act 7 , by either the

prosecution or defence. If the issue is raised by the prosecution, they must prove it

and satisfy the jury beyond reasonable doubt8; if the issue is raised by the defence,

they must prove it only on a balance of probabilities9.

Express statutory exceptions

A number of statutes expressly place the legal burden of proving a specified

issue on the accused. The legal burden of proof in relation to all issues other than

those specified, remain on the prosecution. For example, s2(2) of the Homicide Act

4 M’Naghten’s Case (1843) 10 Cl & Fin 2005 Ashworth, ‘Four threats to the presumption of innocence’ (2006) 10 E&P 241 at 263-2656 In this event, the prosecution bears the legal burden of proving the other issue on which they have adduced evidence. The standard to be met by the prosecution in these circumstances is proof beyond reasonable doubt: R v Grant [1960] Crim LR 4247 Criminal Procedure (Insanity) Act 19648 R v Robertson [1968] 1 WLR 17679 The lower standard of proof; R v Podola [1960] 1 QB 325

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1957 places upon the accused the legal burden of establishing the statutory defence

of diminished responsibility on a charge of murder10.

The court in R v Keogh 11 referred to a number of provisions of the Terrorism

Act 2000 which made defences available to those who were able to prove that they

did not have particular knowledge or particular purpose. S118 of the 2000 Act 12

explicitly states that ‘proof’ in those contexts denotes an evidential burden. The legal

burden remains on the prosecution. The court seemed to accept the view that the

matters referred to in the 2000 Act 13might be harder for the prosecution to prove

than the relevant matters in the present case. If it was acceptable for the legal

burden to remain on the prosecution in respect of the 2000 Act 14 , it followed that it

ought to be acceptable for it to remain on the prosecution in the present case15.

10 S2(2) not only dictates which party shoulders the burden of proof once the issue is raised, but also leaves it to the defense to decide whether the issue should be raised at all. If, therefore, the defense does not raise the issue but there is evidence of diminished responsibility, the trial judge is not bound to direct the jury to consider the matter but, at most, should in the absence of the jury draw the matter to the attention of the defense so that they may decide whether they wish the issue to be considered by the jury. (per Lord Lane in R v Campbell (1986) 84 Cr App R 255)11 [2007] 2 Cr App R 11212 Terrorism Act 200013 id14 id15 F Ben, “Reverse Burden and Article 6(2) of the European Convention on Human Rights: Official Secrets” (2008) 72 The Journal of Criminal Law 190

9

Implied statutory exceptions

S101 of the Magistrates’ Courts Act 1980 applies to summary trials but at

common law, similar principles applied to trials on indictment and it was held by the

Court of Appeal in R v Edwards 16 , and confirmed by the House of Lords in R v

Hunt 17 , that the section sets out the common law rule in statutory form.

Implied statutory exceptions within s101 of the 1980 Act 18 are capable of

derogating from Article 6 of the ECHR 19 . S101 20 applies to statutory provisions

which define a criminal offence and use words such as ‘unless’, ‘provided that’,

‘except’, or ‘other than’, to set out an exception which amounts to a defence. In

Gatland v Metropolitan Police Commissioner 21 , Lord Parker CJ held that although

it was for the prosecution to prove that a thing had been deposited on the highway

and that in consequence thereof a user of the highway had been injured or

endangered, it was for the accused to raise and prove lawful authority or excuse

pursuant to s81 of the Magistrates’ Courts Act 1952. Contrarily in Westminster

City Council v Croyalgrange Ltd 22 , no reliance could be placed on what is now

s101 of the 1980 Act 23 . A company which had let premises to a person who used

them as a sex establishment without a license was charged under Schedule 3,

paragraph 20(1)(a) of the Local Government (Miscellaneous Provisions) Act

1982, whereby a person who knowingly causes or permits the use of premises

contrary to Schedule 3, paragraph 6, commits an offence. Paragraph 6 provides that

no persons shall use any premises as a sex establishment except under and in

16 [1975] QB 2717 [1987] 1 All ER 118 Magistrates’ Courts Act 198019 Per Clarke LJ in R (Grundy & Co Excavations Ltd) v Halton Division Magistrates’ Court (2003) 167 JP 38720 id21 [1968] 2 QB 27922 (1986) 83 Cr App R 15523 Magistrates’ Courts Act 1980

10

accordance with a license. The House of Lords held that s101 24 was inapplicable

because the exception in question qualified the prohibition created by paragraph 6

and not the offence created by paragraph 20(1) (a). The prosecution bore the burden

of proving, inter alia, that the directors of the company knew that no license had

been obtained by the tenant25.

Nimmo v Alexander Cowan & Sons Ltd 26 was another case giving rise to

some difficulty. This was a Scottish case brought by an injured workman under

s29(1) of the Factories Act 1961, which provides that ‘every place at which any

person has at any time to work...shall, so far as is reasonably practicable, be made

and kept safe for any person working therein’. The workman alleged that his place of

work was not kept safe but did not aver that it was reasonably practicable to make it

safe. S155 (1) of the 1961 Act makes a breach of s29 (1) a summary offence and

although the case in question was a civil one, the House of Lords referred to the

Scottish equivalent of s81 of the Magistrates’ Courts Act 1952 and Lord Pearson

made it clear that the incidence of the burden of proof would be the same whether

the proceedings were civil or criminal. The House of Lords held, Lords Reid and

Wilberforce dissenting, that there was no burden on the plaintiff employee to prove

that it was reasonably practicable to keep the premises safe; the defendant

employers bore the burden of proving that it was not reasonably practicable to keep

the premises safe. In reaching this decision, the majority was of the opinion that

where, on the face of the statute, it is unclear on whom the burden should lie, a

court, in order to determine Parliament’s intention, may go beyond the mere form of

24 id25 S33(1)(a) of the Environmental Protection Act 1990, Environment Agency v M E Foley Contractors Ltd [2002] 1 WLR 175426 [1968] AC 107

11

the enactment and look to other policy considerations27 such as the mischief at which

the Act was aimed and the ease or the difficulty that the respective parties would

encounter in discharging the burden. Given that the defendant was better able to

discharge the legal burden, the object of the enactment in question is best achieved

by providing a safe place of work.

R v Edwards 28 and R v Hunt 29 are the leading authorities concerning trials on

indictment. In R v Edwards 30 the Court of Appeal had to consider where the burden

of proof lay in a case not covered by the forerunner of s101 of the Magistrates’

Courts Act 1980. The case concerned the selling of alcohol without license, and the

trial took place in the Crown Court. At the trial, the prosecution put evidence of the

sale of liquor, but did not put evidence that there was no license, although such

information was readily available to it. The Court of Appeal held that the same rule

applied in all criminal courts and that s101 31 merely restated the common law

position. Therefore, was this a case when by implication the burden of proof was on

the defendant?

The Court rejected the idea that the burden was only on a defendant if he

alone knew particular facts. Instead the Court phrased the exception to the rule that

the prosecution must prove every element of the offence thus, “It is limited to

offences arising under enactments which prohibit the doing of an act save in special

circumstances or by persons of specified classes or with specified qualifications or

with the license or permission of specified authorities.”

27 H Patrick, “Proof and Policy: No Golden Threads” (1987) Criminal Law Review 35528 [1975] QB 2729 [1987] 1 All ER 130 [1975] QB 2731 Magistrates’ Courts Act 1980

12

The Court held that the burden of proving that there was a license rested on

the defendant. It was not merely an evidential burden, it was a legal burden. This

could lead to harsh decisions, since if the evidence is equally balanced in such a

case, the defendant will be convicted. In essence Edwards 32 widened the scope of

the s101 33 exception. S101 34 should be read in line with the Human Rights Act 1998

(HRA).

In R v Hunt 35 , the defendant was charged with possessing a controlled drug,

and he tried to appeal on the basis that he did not bear the legal burden of proving

that the mixture fell within a category of preparations that were allowed by the

Misuse of Drugs Regulations. The regulations provided that the Act did not apply

to mixtures containing less than 0.2% of morphine. Did the prosecution have the

burden of proving that the mixture was outside the regulations, or did the defendant

have the burden of proving it was within?36

The House of Lords approved R v Edwards 37 in that they held that both

summary and indictable offences should be governed by the same rule. However,

the Court felt that circumstances where the burden would lie on the defendant by

implication would be rare, and the formulation in R v Edwards 38 quoted above was a

useful guide, but not an absolute rule. In the final analysis, each case must turn upon

the construction of the particular legislation to determine whether the defence is an

exception within the meaning of s101 39 . The House of Lords stated, “Surely

Parliament can never lightly be taken to have intended to impose an onerous duty on

32 [1975] QB 2733 Magistrates’ Courts Act 198034 id35 [1987] 1 All ER 136 M Peter, “The Legacy of Hunt” (1988) Criminal Law Review 1937 [1975] QB 2738 id39 Magistrates’ Courts Act 1980

13

a defendant to prove his innocence in a criminal case, and a court should be very

slow to draw any such inference from the language of a statute. When all the cases

are analysed, those in which the courts have held that the burden lies on the

defendant are cases in which the burden can be easily discharged”.

The House of Lords then looked at the legislation and held that the

prosecution must establish possession of a controlled drug. The real meaning of the

legislation and regulations was that mixtures of less than 0.2% morphine were not

controlled drugs. Therefore the burden of proof was on the prosecution, as the status

of the mixture was part of the definition of the offence and not an exception. It is

important therefore to examine the particular statutory provision with care to see

whether the burden can be placed on the defendant by implication. The mere use of

the word “proviso” does not guarantee that the burden will be on the defendant, as

can be seen by looking at the proviso to s57 of the Offences against the Person

Act (OAPA) 1861 (OAPA), which relates to the offence of bigamy.

S57 of OAPA 1861 provides that, “nothing in this section will extend to any

person marrying a second time whose husband or wife should have been continually

absent from such a person for the space of seven years then last part, and shall not

have been known by such person to be living within that time.”40

The House of Lords in Hunt offered guidelines to judges charged with the task

of construing statutes in accordance with s101 41 . These were:

a) It should not be easily inferred that Parliament intended on placing an

onerous legal burden on the accused;

40 A.A.S Zuckerman, “No Third Exception to the Woolmington Rule” (1987) 104 L.Q.R. 17041 Magistrates’ Courts Act 1980

14

b) The court should have regard to the intention of Parliament and the

mischief that the legislation was aimed to remedy;

c) The court should have regard to the ease or difficulty a party would

have in discharging the legal burden;

d) The more serious the offence the less likely that Parliament intended

on imposing a legal burden on the accused;

e) Where the statute is ambiguous then the accused should be given

the benefit of the doubt.

In R v Curgerwen 42 the Court took the view that s57 of OAPA 1861placed an

evidential burden only on the defendant. Once he had raised evidence to suggest 7

years absence, the legal burden of proving knowledge of life was on the prosecution,

who must prove beyond reasonable doubt.

42 (1865) LR 1 CCR 1

15

Reverse onus provisions and the Human Rights Act 1998

The introduction of the Human Rights Act 1998 which brought the European

Convention on Human Rights and Fundamental Freedoms into domestic law

substantially changed the impositions of legal burdens’ of proof on the defendant43.

S3(1) of the Human Rights Act requires judges and magistrates to construe

legislation so far as is possible so as to give effect to the principles enshrined in the

ECHR.

Article 6(2) of the ECHR guarantees that any person that is charged with a

criminal offence will be presumed innocent until the contrary is proven. The ECHR

and HRA have posed problems for courts where a defendant has to discharge a

legal burden imposed by statute either expressly or by implication or under s101 of

the Magistrates’ Courts Act 1980. The imposition of a reverse burden of proof was

in conflict with the presumption of innocence provided for by Article 6(2) 44 in that it

was akin to a presumption of guilt, the onus being on the defendant to prove his

innocence.

The European Court of Human Rights held in Salabiaku v France 45 that the

reverse onus did not inevitably breach Article 6(2) 46 of the Convention although it

should be confined. It was important to consider what was at stake and maintain the

rights of the defence. In R v Lambert 47 , an appeal was dismissed on the basis of a

violation of Article 6(2) 48 because the HRA 1998 had not been enacted at the time of

trial. Despite finding that a literal interpretation of s28 of the Misuse of Drugs Act

43 G Richard, “Codifying the Law on Evidential Burdens” (2008) 72 The Journal of Criminal Law 305-31244 European Convention on Human Rights45 (1988) 13 EHRR 37946 European Convention on Human Rights47 [2002] 2 AC 54548 European Convention on Human Rights

16

1971 imposed a legal burden on the accused, it was held by the majority of the

House that s28 49 should be construed as only imposing an evidential rather than

legal burden.

Recent authorities include the conjoined appeals heard in the House of Lords

of the Attorney General’s Reference (No.4 of 2002) 50 and Sheldrake v DPP 51 . This

was a chance for the House to review all the United Kingdom’s authorities on this

issue and research into how other jurisdictions were dealing with this issue. The

House identified a number of important points when deciding on the conjoined

cases. Firstly, the obligation under s3 of the HRA 1998 to interpret legislation in line

with the ECHR is strict and may require a court to depart from parliamentary

intention. Secondly, where convention compliance is not possible, the test for the

court is whether the legal burden concerned unjustifiably infringes the presumption of

innocence52.

49 Misuse of Drugs Act 197150 [2005] 1 All ER 23751 [2003] EWHC 273 (Admin)52 F Bennion, “Statutory Exceptions: A Third Knot in the Golden Thread?” [1988] Criminal Law Review 31

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Suggestions for reform

Strong arguments for respecting the presumption of innocence were set out

by Paul Roberts in a recent article- placing burdens on the defence makes people

presumptive criminals, the prosecution dictates the structure of the case, and the

prosecution has greater power than the defence at pre-trial and trial stages53. The

law reform bodies for England and Wales have also been vigorous in asserting the

presumption of innocence. Nothing could be clearer than the Eleventh Report of the

Criminal Law Revision Committee: “We are strongly of the opinion that, both on

principle and for the sake of clarity and convenience in practice, burdens on the

defence should be evidential only”.

Among the reasons on which the Committee relied was the argument that

placing an evidential burden on the defence would be sufficient, without transferring

the persuasive burden. The example given was that of the crime of carrying an

offensive weapon54, contrary to the Prevention of Crime Act 1953. At present, the

persuasive burden is imposed on a defendant who wishes to raise lawful authority or

reasonable excuse; whereas the Committee argued that it would be sufficient to

require the defendant to adduce credible evidence of an innocent explanation.

More recently, the Law Commission’s Draft Criminal Code not only re-states

the Woolmington 55 principle but also provides that “where evidence is given of a

defence or any other fact alleged or relied upon by the defendant, the burden is on

the prosecution to prove that an element of the defence or such other fact did not

exist”56.

53 P Roberts, “Taking the Burden of Proof Seriously” [1995] Criminal Law Review 783, 785-78754 A Ashworth and M Blake, “The Presumption of Innocence in English Criminal Law” [1996] Criminal Law Review 306, 31555 [1935] AC 46256 A.A.S. Zuckerman, “The Third Exception to the Woolmington Rule” (1976) 92 L.Q.R. 402

18

The Criminal Law Revision Committee argued, any offence that includes a

phrase such as “without lawful justification or reasonable excuse” should state that

the accused bears only the evidential burden

19

This is not the place to pursue this argument to a conclusion. Suffice it to say

that respect for the presumption of innocence should lead to a thorough re-appraisal

of the form and content of criminal legislation. The argument that it should be the

20

prosecution’s duty to prove a defendant guilty must be given greater substantive

content.

The Canadian courts have shown how this might be done, by interpreting s7

of the Charter of Rights 57 , which provides that there should be no deprivation of

liberty that is not in accordance with “the principles of fundamental justice”, as

invalidating most strict liability offences for which imprisonment is a possible penalty.

But it is doubtful whether the task ought to be left to the judiciary, whether at a

European level or within individual states. The United Kingdom legislature ought to

recognise the moral defence behind the presumption of innocence, as powerfully

explained by the law reform bodies, and ought to move swiftly towards honouring

both its letter and its spirit.

BIBLIOGRAPHY

i. Books

57 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out I it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

21

A Christopher, Practical Guide to Evidence (2nd ed) ( Cavendish

Publishing 2001)

C Andrew, Evidence Text and Materials (Longman Law Series

1998)

K Adrian, The Modern Law of Evidence (7th ed) (OUP 2008)

M Peter, Murphy on Evidence (8th ed) (OUP 2003)

T Colin, Cross & Tapper on Evidence (10th ed) (Lexis Nexis:

Butterworths 2004)

ii. Articles

A.A.S Zuckerman, “No Third Exception to the Woolmington

Rule” (1987) 104 L.Q.R. 170

A.A.S. Zuckerman, “The Third Exception to the Woolmington

Rule” (1976) 92 L.Q.R. 402

Ashworth, ‘Four threats to the presumption of innocence’ (2006)

10 E&P 241 at 263-265

A Ashworth and M Blake, “The Presumption of Innocence in

English Criminal Law” [1996] Criminal Law Review 306, 315

F Bennion, “Statutory Exceptions: A Third Knot in the Golden

Thread?” [1988] Criminal Law Review 31

F Ben, “Reverse Burden and Article 6(2) of the European

Convention on Human Rights: Official Secrets” (2008) 72 The

Journal of Criminal Law 190

G Richard, “Codifying the Law on Evidential Burdens” (2008) 72

The Journal of Criminal Law 305-312

22

H Patrick, “Proof and Policy: No Golden Threads” (1987) Criminal

Law Review 355

P Roberts, “Taking the Burden of Proof Seriously” [1995]

Criminal Law Review 783, 785-787

23