Reverse Burdens Whittle Down the Rule in the ECHR - Essay Example

?To What Extent do ‘Reverse Burdens’ Whittle down the Rule in Woolmington v DPP? Introduction Lord Sankey described the burden of proof in criminal trials as the prosecution’s burden. It is for the prosecution to prove the defendant’s guilt beyond a reasonable doubt subject to statutory exceptions and insanity defence.1 The rule is therefore reflective of the presumption of innocence as provided for in Article 6 of the European Convention on Human Rights (ECHR).2 However, since Lord Sankey’s assessment of the rule relative to the burden of proof in a criminal trial, the list of statutory exceptions have increased significantly and courts have been finding creative ways for reconciling the reverse burden exceptions with the presumption of innocence as expressed in Article 6 of the ECHR.3 Thus it can be argued that the reverse burden exceptions have whittled down the presumption of innocence noted in Woolmington v DPP. However, it will be argued that although presumption of innocence as articulated in Woolmington, has been whittled down, it is necessary in certain circumstances for reverse burdens to ensure that the ends of justice are achieved. This paper demonstrates how reverse burdens have whittled down the presumption of innocence and how reverse burdens are justified in appropriate cases. I. The Presumption of Innocence All persons accused of a criminal offence are presumed innocent. The presumption of innocence is codified by Article 6(2) of the ECHR. Article 6(2) which is prefaced by a right to fair trial within a reasonable time,4 provides for the presumption of innocence until guild is proven “according to law”.5By virtue of the Human Rights Act 1998, the ECHR is a part of the British law and all national statutes must be read and interpreted in such a way as to be compatible with the ECHR.6 The presumption of innocence means that the prosecution must prove the essential elements of the alleged offence. As Blackstone’s Criminal Practice notes: The phrase ‘the presumption of innocence’ is often used as a convenient abbreviation of the common-law rule that, generally speaking, the prosecution bears the burden of proving all the elements in the offence necessary to establish guilt.7 Specifically, the prosecution must prove that the defendant committed the act constituting the offense (actus reus) and had the “requisite state of mind” (mens rea).8 The common law rule was stated by Lord Sankey in Woolmington v DPP. In the case, the defendant was convicted of murdering his wife as a result of shooting. The defendant argued that the gun was discharged accidentally. The trial judge ruled that the defendant bore the burden of proving that he lacked the necessary mens rea. Upon appeal, the House of Lords, allowing the appeal ruled that in criminal trials, the common law rule was that the burden of proof showing guilt beyond a reasonable doubt resided with the prosecution.9 Therefore the presumption of innocence is not lost until such time as the prosecution discharges the burden of proof beyond a reasonable. This is a primary requisite for a fair trial pursuant to Article 6 of the ECHR.10 It was held in McIntosh v Lord Advocate11 that a difficult paradox is created by the presumption of innocence and the public’s interest in ensuring that the guilty are convicted. In crimes of a serious nature this paradox persist with greater intensity because the accused’s constitutional rights become more serious. In balancing the constitutional protection of the accused and the public interests, the courts must also be concerned with the public’s interests in safeguarding against the risk of convicting an innocent person and not merely the public interest in ensuring that the guilty are convicted. The presumption of innocence therefore has a unique role to play in ensuring that the accused’s constitutional rights are protected and that the public has confidence that the criminal justice process will ensure that the guilty are convicted and the innocent are not erroneously convicted.12 The presumption of innocence performs this balancing function by requiring that the jury or a tribunal of fact may not convict an accused person unless and until there is convincing evidence of guilt “beyond a reasonable doubt”.13 Essentially, the burden of proof establishes the onus by which “factual claims” and the extent “to which the facts must be established.14 At its core, the presumption of innocence is described as placing upon the prosecution the burden of proof which will not be satisfied until guilt is proven beyond a reasonable doubt.15 Put another way, the presumption of innocence places a persuasive burden on the prosecution as a means of ensuring that the innocent will not be convicted so that the prosecution is in a position to “more easily snare the guilty”.16 It would therefore appear, that requiring the defendant to prove facts rebutting the presumption of innocence or elements of the offence is inconsistent with the right to a fair trial and the corresponding right to the presumption of innocence. In other words, based on the significance of the presumption of innocence and its role in balancing the public interests in securing a guilty verdict and minimizing the risk of erroneously convicting an innocent person, the presumption of innocence should not be subjected to reverse burdens. II. Reverse Burdens Reverse burdens occur in circumstances where the defendant is required to prove “his innocence on the balance of probabilities to avoid conviction.”17 It has been argued that there will be certain circumstances in which reverse burdens are justified and even necessary in the interests of justice.18 Inflexibility relative to the burden of proof would essentially perpetuate the erroneous idea that a defendant can only be convicted if it is actually known that he or she committed the offence for which he or she is accused.19 For instance, if the defendant raises a specific defence at the trial and has no burden to prove that defence, it can never be known whether or not his defence has merits, particularly if the prosecution is required to prove that the defence is not viable. Moreover, if the burden never shifts throughout the trial, the prosecution would have an onerous burden. The onerous burden would arise because the prosecution would have to not only prove the essential elements of the offence, but would also have the burden of proving that the defendant has no answer to the prosecution’s claims. It is generally accepted that he who asserts a fact must prove it and he who denies an assertion need not prove it pursuant to the maxim “ei qui affirmat non ei qui negat incumbit probation”.20 It therefore follows that when the defendant invokes a defence, he or she is essentially not simply denying liability, but is in fact, asserting a claim or a fact which must be proved rather than disproved. It therefore makes sense that the burden should shift to the defendant to prove the facts substantiating the defence raised. Be that as it may, the presumption of innocence must prevail and as such must provide the benchmark against which the reverse burden can arise. As stated by the House of Lords in R v Lambert: ...in a constitutional democracy limited inroads on the presumption of innocence may be justified.21 Therefore pursuant to the “principle of proportionality” any resort to reverse burdens must be justified and “not greater than is necessary”.22 In other words, the presumption of innocence is first and foremost an essential element of the right to a fair trial and will only be departed from in terms of reverse burdens in exceptional and more importantly justified and necessary circumstances. Reconciling Reverse Burdens with the Presumptions of Innocence The House of Lords in Woolmington v DPP, however, noted that there were two exceptions to the common law rule relative to the prosecution bearing the burden of proof. The two exceptions are statutory and the insanity defence.23 Arguably, the exceptions are controversial since they appear to reverse the burden of proof in a manner that is inconsistent with Article 6(2) of the ECHR.24 The controversy arises because the reverse burden arguably requires the defendant to prove that he or she lacks the requisite mens rea, an essential element of the offence which is for the prosecution to prove beyond a reasonable doubt. It must be noted however, that the insanity exception is less about the presumption of innocence and more about the presumption of sanity. The presumption of insanity is a common law rule requiring a defendant who invokes an insanity defence to prove on a balance of probabilities that he or she was insane at the time of the commission of the offence and is thus not guilty by reason of insanity.25 This must be distinguished from a plea of insanity or incompetence to stand trial.26 When a defendant raises the issue of competence to stand trial, it has nothing to do with the essential elements of the offence. The defendant is not pleading not guilty by reason of insanity, but simply stating that he or she is not competent to stand trial. When a defendant pleads not guilty by reason of insanity, he or she is essentially rebutting the mental element (mens rea) of the offence for which he or she is charged. Therefore, with respect to the issue of sanity and insanity, the presumption of sanity is only relevant to Article 6(2) when the defendant asserts insanity as a defence to the crime for which he or she is charged. It can therefore be argued that the burden of proving guilt beyond a reasonable doubt never shifts in insanity defences from the prosecution to the defendant since the defendant is required only to prove his insanity on a balance of probabilities as opposed to beyond a reasonable doubt. Moreover, the European Court of Human Rights ruled that the insanity defence exception does not require the defendant to rebut the presumption of innocence, but instead requires the defendant to rebut the presumption of sanity. As a result, the European Court of Human Rights ruled that the insanity defence exception is not inconsistent with Article 6(2) of ECHR.27 Hamer argues that reverse burdens are often necessary in terms of minimizing the cost of erroneous outcomes at criminal trials. Specifically, Hamer points out that there must be flexibility relative to the presumption of innocence and the corresponding burden of proof. In circumstances where the risk of an erroneous conviction is comparatively minimal, and there is a high likelihood of an erroneous acquittal: ...it may be necessary to lower the standard of proof, or even to reverse the burden of proof. To inhibit these strategies is to increase the expected cost of error at trial.28 The European Court of Human Rights acknowledged that it may be necessary and justified to reverse burdens, but cautioned that in doing so, the intent of Article 6(2) to secure a fair trial must not be lost.29 The European Court of Human Rights acknowledged that there are factual and legal presumptions in all legal systems. The ECHR does not disallow those presumptions. However, the ECHR requires member states to “remain within certain limits in this respect as regards criminal law”.30 To this end, Article 6(2): ...does not therefore regard presumptions of fact or of law provided in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence. This test depends upon the circumstances of the individual case.31 For instance, there are several presumptions in criminal law. The most prominent examples are contained in murder offences. Once, the prosecution proves that an unlawful death occurred, it is therefore assumed that the death was not an accident, or one of necessity or one of insanity, self-defence, provocation or automatism unless the accused either proves the contrary of the facts adduced by the prosecution . In a case of murder the law presumes that the killing was unlawful and malicious unless the contrary is proven.32 It therefore follows that the reverse burden in these cases serves a legitimate aim. Based on these presumptions of criminal law relative to murder, the reverse burden provides the defendant with a legitimate means by which to rebut these presumptions. If the defendant chooses not to rebut these presumptions he or she will likely be convicted. The presumption of innocence as articulated in Article 6(2) of the ECHR is not an absolute right and is therefore subjected to exceptions which would necessarily give rise to reverse burdens. However, as noted in Salabiaku v France, by the European Court of Human Rights, any law permitting a reverse burden must not only be proportionate, but must also have a legitimate objective.33 Thus in R v Johnstone and Others, the House of Lords held that in order to reverse the burden of proof, there must be compelling reasons for doing so.34 In this regard, a statutory offence which essentially facilitates strict liability and relieves the prosecution of having to prove mens rea, will necessarily justify reverse burdens. In fact, the European Court of Human Rights stated that in circumstances where presumptions of law may have adverse implications for the defendant, reverse burdens are justified. The trial court may take into account the opportunity that the defendant will have to rebut presumptions and the onerous burden it would place on the prosecution if that presumption was not available.35 Section 28 (3)(a) and (b)(i) of the Misuse of Drugs Act 1971 provides an example of the difficulties posed by statutory offences of strict liability and the problem of reconciling reverse burdens with Article 6(2) of the ECHR. Section 28(3) (a) provides that in cases of possession of controlled substances the defendant shall not be acquitted on the grounds that: He neither knew nor suspected nor had reason to suspect that the substance or product in question was the particular controlled drug alleged.36 The reason for the absence of mens rea in illegal drugs cases is obvious. If the prosecution was required to prove mens rea it would be an entirely lofty burden to overcome. Moreover, a defence of lack of knowledge would be easy to assert and therefore, possession of dangerous drugs would become a very difficult charge to substantiate and a relatively easy offence to which to escape liability. Section 28(3)(b)(i) goes on to provide, that a defendant accused of possession of dangerous drugs will not be convicted: 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.37 Thus, the defendant must prove as opposed to simply assert lack of knowledge in order to avoid conviction under the Misuse of Drugs Act 1971. In other words, once charged with possession of dangerous drugs, the defendant is presumed to have had the dangerous drugs in his possession and is presumed to know that the drugs were controlled or illegal substances. He may rebut that presumption and by doing so, is not rebutting the presumption of innocence. This is the approach taken by the House of Lords in R v Lambert, in which the court said that the defendant had an evidential burden as opposed to a legal burden under the Misuse of Drugs Act 1971.38 In R v DPP ex parte Kebilene, the House of Lords established a set of rules articulating the factors to be taken into account when determining whether or not reverse burdens can be reconciled with Article 6(2) of the ECHR. The first factor for consideration is the factors that the prosecution is required to prove before the burden can be reversed. The second factor for consideration is the defendant’s burden. For instance, is the defendant required to prove something within his own personal knowledge or something that he has easy access to? Finally, the court must take into account the extent to which the statutory provision reversing the burden is intended to combat a societal threat.39 Thus, the court is required to balance the competing interests. The prosecution’s burden must be assessed, as well as the defendant’s burden. It would therefore appear that if the burden on the defendant is relatively easy for him/her to prove and the prosecution’s burden is comparatively more difficult, there should be no difficulty with reversing the burden. Moreover, if the offence has particular relevance to the protection of society, the court would be more inclined in the circumstances to permit the burden of proof to be reversed, particularly since it does not pose a particularly onerous burden on the defendant. The Canadian Supreme Court strictly adheres to its Charter’s provision relative to the presumption of innocence. In Reg v Whyte, the Supreme Court of Canada considered a statutory presumption that an individual found in the driver’s seat of a car was presumed to be the person in control of the vehicle unless he proved otherwise. The court ruled that if a defendant was required to provide evidence of a fact so as not to be convicted, the presumption of innocence is violated because it “permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.”40 However, it can also be argued that the trier of fact may just as easily be convinced of the defendant’s guilt and the only way to escape liability would be by virtue of a reverse burden since the law assumes the defendant had control of the vehicle. Conclusion The reverse burden exemptions automatically give rise to concerns about its contravention of the presumption of innocence. However, a close examination of the reverse burden exemptions informs that these exemptions are necessary and legitimate for the proper administration of justice. For the most part, reverse burdens are necessary for ensuring that the defendant is not found guilty on the basis of a presumption at law. For instance, possession of dangerous drugs charges automatically assumes knowledge and intent simply because the drugs were found in the defendant’s possession. Essentially, the legal burden continues to remain with the prosecution and the defendant may be called upon to discharge an evidential or persuasive burden. Thus the presumption of innocence and the burden of proof principle enunciated in DPP v Woolmington has not been whittled down so as to weaken the presumption of innocence. Bibliography Cases Case of Butkevicius v Lithuania (Application no. 23369/06) http://www.tm.lt/dok/BUTKEVICIUS_2012_judgment.pdf (Retrieved 26 February, 2012). H v UK [1990] App No 15023/89. Mani, V. S. (1980). International Adjudication: Procedural Aspects. Hingham, MA: Kluwer Boston, Inc. McIntosh v Lord Advocate [2001] 3 WLR 107. R v DPP ex parte Kebilene [1999] 3 WLR 972. R v Johnstone and Others [2003] UKHL 28. R v Lambert [2002] 2 AC 545. Reg v Whyte [1988] 51 DLR (4th) 481. Woolmington v DPP [1953] AC 462. Salabiaku v France [1988] 13 EHRR 379. Legislation European Convention on Human Rights 1950. Human Rights Act 1998. Misuse of Drugs Act 1971 Articles/Journals Blackstone’s Criminal Practice 2012 (2011). Oxford, UK: Oxford University Press. Dickson, B. (2010). The European Convention on Human Rights and the Conflict in Northern Ireland. Oxford, UK: Oxford University Press. Hamer, D. (March 2007). “The Presumption of Innocence and Reverse Burdens: A Balancing Act.” Cambridge Law Journal, Vol. 66(1): 142-171. Hamer, D. (2011). “A Dynamic Reconstruction of the Presumption of Innocence.” Oxford Legal Studies, Vol. 31(2): 417-435. Harris, D. (April 1967). “The Right to a Fair Trial in Criminal Proceedings as a Human Right.” International and Comparative Law Quarterly, Vol. 16: 352-378. Keane, A. (2006). The Modern Law of Evidence. Oxford, UK: Oxford University Press. Knoops. G. (2005). Theory and Practice of International and Internationalized Criminal Proceedings. The Hague, The Netherlands: Kluwer Law International. Nobles, R. and Schiff, D. (January 2006). “Guilt ad Innocence in the Criminal Justice System: A Comment on R (Mullen) v Secretary of State for the Home Department.” The Modern Law Review, Vol. 69(1): 80-91. Sheppard, S. (May 2003). “The Metamorphoses of Reasonable Doubt: How Changes in the Burden of Proof have Weakened the Presumption of Innocence.” Notre Dame Law Review, Vol. 78: 1165-1241. Spencer, M. and Spencer, J. (2012). Evidence Concentrate. Oxford, UK: Oxford University Press. Tadros, V. and Tierney, S. (May 2004). “The Presumption of Innocence and the Human Rights Act.” The Modern Law Review, Vol. 67(3): 402-434. Read More