To what extent has the ‘presumption of innocence’ enunciated in the case Woolmington v DPP  AC 462 vis-a-vis criminal cases changed in light of the Human Rights Act 1998? Discuss.
The sixth century Digest of Justinian (22.3.2) provides, as a general rule of evidence: Ei incumbit probatio qui dicit, non qui negat – Proof lies on him who asserts, not on him who denies”. It is there attributed to the second and third century jurist Paul. Similar to its Romanic predecessor, Islamic law also holds the principle that the onus of proof is on the claimant, based on a hadith documented by Imam Nawawi. The collapse of Western Modern Empire gave way to the rise of feudalistic justice system. Within it, there was no concept of presumption of innocence. Rather, it was the duty of the accused to prove his innocence, either by means of taking an oath of innocence or through undergoing life-threatening ordeals. It could thus be reasonably inferred that the defendants were required to prove their innocence beyond reasonable doubt.
The presumption of innocence presumes the defendant to be innocent until proven guilty, with the prosecution required to prove all the elements of the offence beyond reasonable doubt. This principle was laid down by Viscount Sankey in Woolmington v DPP : “Throughout the web of the 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 subject to what I have already said as to the defence of insanity and subject also to any statutory exception…” This ‘golden thread’ was subsequently affirmed in Article 6(2) of the European Convention on Human Rights.
While not a burden of proof per se, the defendant in a criminal trial has an evidential burden where he is seeking to rely on any common law defence other than insanity. Once the defence becomes a live issue, the prosecution must again prove beyond reasonable doubt that facts dictate otherwise before the jury can convict. Woolmington’s decision was profound as it changed the previous law by rejecting Foster’s doctrine of the presumption of malice. Secondly, its reference to the duty of the prosecution to prove the accused’s guilt, and holding that the prosecution also had the burden of disproving any common law defences that the accused had specifically raised. However it is doubtful how far it has had either effect, even after the Human Rights Act 1998.
Exceptions to the presumption
Apart from his Lordship’s exclusion in Woolmington, the authority of McNaghten’s case clearly placed the burden of proof of insanity on the accused because ‘every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction…’ However in H v UK , the European Court of Human Rights ruled that the insanity exception did not breach Art 6(2) since the main concern was the presumption of sanity.
Express Statutory Reversal
His Lordship also excluded “any statutory exception” from the scope of presumption of innocence. Statutory exceptions are commonly said to be of two types: express and implied. When express statutory provision obliges the accused to prove his defence, it will automatically shift a legal burden on him to prove his defence on the balance of probabilities without any assessment attached. Ashworth and Blake demonstrated the extent to which Parliament departed from Woolmington’s principle in relation to indictable offences. Their research found that no fewer than 40 per cent of offences triable in the Crown Court violated the presumption of innocence by requiring the defendant to prove a statutory defence or disprove at least one element of the offence.
Implied Statutory Reversal
There are number of cases where an enactment may be constructed as impliedly imposing a legal burden on the accused. S.101 of the Magistrates Courts Act 1980 lays down the general principle in respect of summary offences. The effect of the section is that where the conduct of the accused creates an offence but in circumstances where the statute creates a defence in respect of an exception, exemption, proviso, excuse or qualification, the burden of proving of the defence will be placed on the accused. The principle originates partly from the notion that it is favourable for the accused to prove that he falls within the scope of defences because of the access to the relevant information and partly from the original provision enacted in the s.39(2) of the Summary Jurisdiction Act 1879.
Presumption of Innocence: Post-HRA 1998
Since 2000, if the courts conclude that there is a violation of Art6(2), it can either make a declaration of incompatibility under s.4 of the HRA 1998 or, alternatively, ‘read down’ the provision under s.3, so that it becomes convention compliant. In practice the latter is mostly the preferred course for appellate courts. Lambert was the first case that demonstrated this effect – the appellant was convicted of possession of a class A controlled drug with intent to supply, contrary to s.5(3) of the Misuse of Drugs Act 1971. He was found in possession of a bag which contained the substance, and his defence, under s.28, was that he neither knew nor suspected that the bag contained the drugs and was required to bear the legal burden of proving this defence. He appealed on the grounds that the reversed onus in the provision of s.28 conflicted with the presumption of innocence guaranteed by Art6(2).
The Court of Appeal dismissed his appeal, as the House of Lords, citing that the law doesn’t operate retrospectively. Nonetheless, in the obiter the majority of the House held the reverse legal burden of s.28 was incompatible with Art6(2), as it had a high risk of wrongful conviction. With the result that s.28 must be read as if it imposed only an evidential burden on the accused, the word ‘proves’ as used in s.28 must be construed to mean ‘give sufficient evidence’, by employing s.3 of the HRA 1998. Test of proportionality – how could a reverse onus to be justified? As a result of Lambert, it is submitted that the imposition of reverse legal burdens of its prima facie incompatible with Art6 of the ECHR, and must be scrutinized with great care in light of the principle of proportionality. However, House of Lords also made it clear that not all legal burdens were placed on a defendant in criminal trial violated the ECHR or Art6(2) in particular.
The court held, it was not an absolute right in all the circumstances. In Salabiaku v France, the ECtHR stated that some reverse burdens of proof are ‘convention compliant. Hence the courts must ensure every reverse onus clause in English law must be measured for convention compliance. Although it is apparent that the onus on those seeking to persuade the courts that a reverse burden is necessary is heavy, the courts continue to uphold such provisions. In Sheldrake their Lordships also concluded that when conducting an assessment of proportionality, it was necessary to balance society’s interest in the effective suppression of a social mischief against the defendant’s right to a fair trial.
When weighing up these two competing interests, several factors could be considered. This test depends upon the circumstances of the individual case. It follows that a legislative interference with the presumption of innocence requires justification and must not be greater than is necessary. The test of proportionality requires courts to consider whether there was a necessity to impose a legal burden on the accused.
Ian Dennis’ six cardinal rules
Ian Dennis has summarized the following factors to be taken into account when applying the test of proportionality – judicial deference, classification of the offence, construction of criminal liability, significance of maximum penalty, ease of proof and peculiar knowledge, presumption of Innocence.
In response to the HRA 1998, how far should the courts defer to the judgment of Parliament? In the case of Johnstone, Lord Nicholls has stressed that “Parliament, not the court, is charged with…. what should be the constituent elements of a criminal offence, the court will reach a different conclusion from the legislature only when it is apparent the legislature has attached insufficient importance to the fundamental right of an individual to be presumed innocent until proved guilty.” Lord Woolf CJ took a similar approach , ruling that the assumption should be that Parliament would not have made an exception to the presumption of innocence without good reason.
However, in Sheldrake Lord Bingham cast doubt on Lord Woolf’s proposition, saying that such an approach may lead the courts to give too much weight to the enactment and too little to the presumption of innocence and the obligation imposed by s3 of the HRA 1998. Nonetheless, he reiterated in Brown v Scott that substantial respect should be paid by the courts to the considered decisions of democratic assemblies and governments. The divergence of views leaves the issue rather unclear. However, Lord Hope’s statement in Kebilene, which required the courts to make a distinction between the legitimate aim and the proportionality, could be considered.
In identifying a legitimate aim requires the courts to consider the policy goals of criminalisation being pursued by the relevant provision. Then, the courts should ask themselves whether the imposition of the reverse onus is proportionate to achieve Parliament’s intentions. Ian Dennis stressed that a strong principle of deference would seem to be inappropriate, if there is no evidence that the Parliament gave thought to the presumption of innocence when it enacted the reverse onus. It should always be remembered that the importance of Art6(2) should always prevail. It is for the state to justify derogation from the presumption of innocence and justifying arguments should be compelling if they are to succeed.
Classification of Offences
In Sheldrake, Jack J referred to the recognised distinction between truly criminal offences and those which are regulatory and suggested that it is easier to justify an interference with the presumption of innocence the lower in the scale the offences is. However classification of offences into mala in se and mala prohibita is said to be problematic as a guide to justifiable proportionality of a reverse onus. First, the distinction is not particularly definitive. If it depends on the moral quality of the act then it is likely to be contestable, while some offences are attached with the morally reprehensible colour but it only punishable under regulatory legislation only with a fine, as illustrated in Davies v Health and Safety Executive. If the distinction depends on penalties, so that regulatory offences are characterised as generally punishable by fine, however many regulatory offences now carry the possibility of a custodial sentence on conviction.
Moreover, some summary offences punishable only by a fine may be far from “mere regulatory criminality” but may be “of great social and emotional importance to a large number of people” Secondly, it does not follow that a statutory defence to a regulatory offence will be any easier for the defendant to prove than an equivalent defence to a truly criminal offence. There is no necessary relationship between the degree of onerousness of a reverse onus and the type of crime involved. Summing up, the classification is shown to be dependent on the judges’ personal opinion, which may be different from each other. In Sheldrake, two of the divisional court judges thought that an offence was not a regulatory matter, while Herinques J concluded the contrary. Construction of criminal liability: elements of offences and defences.
The general rule is that presumption of innocence requires the prosecution to prove all essential elements of offences. In Attorney-General for Hong Kong v Lee Kwong-kut Lord Woolf remarked that if the prosecution retained responsibility for proving the essential ingredient of the offence, the less likely it is that an exception will be regarded as unacceptable. In Lambert Lord Hope distinguished between the essential elements of the offence and defence of the type referred to in Edwards, suggest that reversing onus of such defence is more easily justified. In the same case, Lord Steyn noted the difference between the element of the offence and defensive issues was sometimes only a matter of drafting technique.
He suggested that it was preferable to focus on moral blameworthiness. Defences such as those discussed in Edwards should be distinguished from “other cases where the defence is so closely linked with mens rea and moral blameworthiness that it would derogate from the presumption of innocence to transfer the legal burden to the defendant”. In AG’s Reference (No.4 of 2002) the courts held that Art6(2) requires the prosecution to prove the ‘true nature’ of the offence. Application of this principle did not depend on formal statutory separation of elements and defences.
Significance of maximum penalty
Generally the weight of presumption of innocence ought to increase in proportion to the gravity of the offence. In Lambert, Lord Steyn attached importance to the penalty of life imprisonment when reading down the reverse onuses in that case. In Sheldrake, the House upheld the reverse onus, as the maximum penalty of the offence was six months. In AG’s Reference (No.4 of 2002) the House read down the reverse onus, where the maximum penalty was 10 years. These 3 cases were deemed to be compatible of the guideline.
However, in Johnstone the maximum penalty for the offence is same with the abovementioned AG’s Reference case, yet the House upheld the reverse onus. It would seem that maximum penalties are a very uncertain guide as to whether a reverse onus will be held to be proportionate to the legitimate aim of the offence in question. It ought to be the case that the more serious the offence the more compelling should be the justification for a reverse onus, but application of such a principle has been patchy to say the least.
Ease of proof and peculiar knowledge
Ease of proof is by no means the same concept as peculiar knowledge. In some circumstances defendant doesn’t have peculiar knowledge (i.e possession of a licence), because that knowledge is available to prosecution from evidence (i.e registers), but it is more burdensome and costly to locate it. On the other hand, sometimes defendant does have peculiar knowledge, but this doesn’t mean that it will be easier for him to prove the absence of mens rea than prosecution to prove its presence. In Kebilene Lord Hope suggest that in striking the balance required by the principle of proportionality, one of the questions to be asked was whether the burden on the defendant related to something that was within his knowledge or to which he readily had access. This suggestion is followed by Lord Nicholls in Johnstone, he referred to defendant’s own knowledge or ready access as alternative relevant factors in a decision about compatibility of a reverse onus.
Conversely, it should also be remembered that in Lambert the factor of the defendant’s peculiar knowledge did not prevail over considerations of a maximum penalty of life imprisonment and the unfairness of convicting the defendant where the jury thought that his story was as likely to be as true as not. A reverse onus is to be justified by reference of ease of proof the focus should be on the weight impose on the defendant but not look into whether it would be difficult for the prosecution to prove guilt, as even where proof of guilt would be difficult for the prosecution, doesn’t mean that it is easy for defendant to disprove his guilt. However in Makuwa the Court of Appeal upheld a reverse onus under s.31 of the Immigration and Asylum Act 1999, almost entirely on the basis of the difficulty of proof for the prosecution.
The court glossed over any difficulties of proof that the defendant might have, emphasising instead the policy need to maintain proper immigration controls by restricting the use of forged passports. In contrast the Divisional Court held in DPP v Wright, that a burden on the defendant to prove that his hunting was “exempt”, would be “oppressive, disproportionate, unfair, and an unnecessary intrusion on the presumption of innocence.” Schedule 1 of the Hunting Act 2004 contained a list of exempt forms of hunting: some of the matters would be within defendant’s knowledge, some would be easy for him to prove, but some would be neither. In these circumstances the Act should be read as imposing only an evidential burden on the defendant; once the prosecution knew which form of exemption was in issue it would not be unduly burdensome to require them to disprove it.
Presumption of Innocence
Presumption has been said to be the foundation of the right to fair trial under Art 6. Domestic courts that have to decide on justifiability of reverse onuses will generally be doing so before then trial when rulings on the burden of proof have to be made. There are 3 different conceptions of the presumption. The first conception focuses more on process than outcome; the presumption is seen as a norm of fairness rather than an instrument to ensure accuracy. This is the Strasbourg court’s approach which has emphasised procedural of presumption of innocence. The second conception of the presumption, which described as a morally substantive conception, emphasises fairness in both process and outcome.
The third one is described by Robert and Zuckerman as “a normative moral and legal standard encapsulating a strong commitment to avoiding wrongful convictions, rather than a recipe for factual inference and adjudication” This characterises the presumption as a device for the avoidance of a particular outcome of criminal proceedings. It becomes a protective device rule for the defendant against the risk of error in adjudication. English law favours a more morally substantive view of the presumption of innocence.
Lord Steyn conceived the presumption as ensuring the issues of the defendant’s moral blameworthiness had to be proved by the prosecution. One of Lord Steyn’s reasons for rejecting a reverse onus in Lambert was that it would oblige the court to convict the defendant where it thought his version of fact was as likely to be true as not. This was thought to be unfair and unacceptable for an offence punishable with life imprisonment. Lord Bingham took a similar approach in Attorney- General’s Reference (No 4 of 2002) to reverse the onus under s11(2) of the Terrorism Act 2000.
Colin Tapper summarises presumption of innocence to be “a fundamental rule of criminal procedure” and it is rightly so. And yet Lambert’s case stands out to show us just exactly what happens when this ruling is carelessly ignored. Some legal systems today have employed de jure presumptions of guilt, such as at an order to show cause criminal proceeding. Otherwise, accusations of presumption of guilt generally do not imply an actual legal presumption of guilt, but rather denounce failures to ensure that suspects are treated well and are offered good defence conditions.
Examples include the wrongful detention of suspects in Guantanamo Bay Art6(2) will continue to have a lasting impact on the UK’s legal systems, as well as throughout the rest of the European Union. Yet English judges take pride in the English judicial system and will seek to disregard European legislation unless another Lambert occurs, but it has brought justice that much closer to a defendant’s reach. As for Ian Dennis’ invaluable cardinal principles, while it cannot be viewed as the final solution to the abuse of the presumption of innocence, it has also opened up more doors that were never there before. It can be concluded therefore that the presumption of innocence is here to stay.
Dennis I, The Law of Evidence (4th edn, Sweet & Maxwell 2013) Murphy P, Murphy on Evidence, (10th edition OUP, Oxford 2010) Charanjit S and Mohamed R, Unlocking Evidence (2nd edition, Routledge 2013) Spencer M and Spencer J, Evidence, (2nd edition)
Durston G, Evidence: Text and Material
Dennis I, ‘Reverse Onuses and the Presumption of Innocence: In Search of Principle’  Crim 18 901-936 Ashworth and Blake, ‘The Presumption of Innocence in English Criminal Law,’ 1996 Crim. L.R. 306, at 309 Table of Statutes