Reversing the Burden of Proof - Essay Example

REVERSING THE BURDEN OF PROOF Fundamental and crucial indeed is the basic precept in criminal law that the burden of proving the guilt of the defendant resides on the prosecution. The statement of Viscount Sankey LC in Woolmington v DPP [1935] AC 462, 461 rings loud and clear: '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 ...the defence of insanity and subject also to any statutory exception'. It is fundamental because it is rooted in the Constitutional guarantee of due process. An accused is presumed innocent until proven guilty. Legal systems in the civilized world - whether in civil or common law jurisdictions -- have, at least in theory, given primacy to the rights of the accused, understanding that ambiguity should be resolved in his or her favor. The International Covenant on Civil, Cultural and Political Rights (ICCPR) contains iron-clad guarantees to protect the rights of the accused facing trial for a crime. Articles 9, 14 and 15 spell out these rights in great detail - from the presumption of innocence to the right against self-incrimination to the right against double jeopardy and to the famous Miranda doctrine. Closer to home, under Article 6(2) of the European Convention on Human Rights, an accused enjoys a presumption of innocence. (Keane, 2006) At a time when human rights advocacy for the accused has been made unpopular by the rising rate of crime and thus, there is a greater risk of possible infringement of constitutional guarantees by overzealous constables, vigilance is imperative. The importance of the presumption of innocence is discussed in the case of State v Coetzee [1997] 2 LRC 593, where it was stated: '...the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become. The starting point of any balancing inquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences, massively outweighs the public interest in ensuring that a particular criminal is brought to book...Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system'. However, there are some statutes which attach a specific burden of proof on the defendant. As stated by Cooper (2003), "neither the courts nor the legislature have been slow to impose a legal burden of proof on a defendant in a criminal case." A concrete example of a statute where the shift of the burden of proof is present is the English law on libel. The onus is on the defendant to prove the truth of the statement or communication charged to be libelous. The prosecution enjoys a presumption that the statement is false. There is much agreement among legal scholars that English law is tilted in favor of the prosecution, and there is perhaps no case that has thrown English defamation laws under scrutiny and criticism as much as the McLibel case, or the case of Steel & Morris v United Kingdom (68416/01) [2005] E.M.L.R. 15 where the multi-billion dollar food chain won on account of English laws that shifts the burden on the defendants to prove that their claims were truthful. For coming up with a pamphlet entitled What's wrong with McDonald's: Everything they don't want you to know, the defendants were found guilty because they were not able to point-by-point prove the veracity of their allegations. It was a pyrrhic victory for McDonald's, and it led to the European Convention on Human Rights ruling that British laws on libel are antiquated and unfair to the defendants. In the law of evidence, however, it is rare that the burden of proof shifts completely to the defendant. He is merely required to prove an evidence of defense that refers to one particular element of the crime charged. (Murphy 2005) This is called the "evidential burden." (Murphy 2005) It now becomes incumbent on the prosecution to refute the existence of that piece of evidence or argue its inadmissibility or irrelevance to the case at bar. A specific example of this is the Criminal Justice and Public Order Act of 1994, which in effect, amends The Prevention of Terrorism Act 1989. The CJA 1994 was enacted amidst widespread furor from civil liberties groups for punishing behavior deemed "anti-social". The wider restrictions on raves (or the use of repetitive beats), the regulations on street protests and the wider definition of trespass have been perceived to be in violation of human rights guarantees. More relevant to this paper is that it imposes, in Section 82, an "evidential burden" on the defendant. It states that: xxx. A person is guilty of an offence if he has any article in his possession in circumstances giving rise to a reasonable suspicion that the article is in his possession for a purpose connected with the commission, preparation or instigation of acts of terrorism to which this section applies. xxx. It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence the article in question was not in his possession for such a purpose as is mentioned in subsection (1) above. Owing to the grave threat posed by terrorism, which is a borderless crime, and has resulted in the deaths of thousands of civilians the world over, the Legislature has deemed it prudent to enact special safeguards to address this menace. In effect, Parliament appears to be saying that the exigencies of public order trumps ordinary rules of evidence, and that drastic problems require similarly drastic solutions. This mindset, however, has alarmed civil libertarians. Indeed, it is ironic considering the strong bias towards civil liberties in European Courts. In fact, aside from imposing a negative obligation on law enforcement agents not to trample on protected rights, the law states that they must secure the effective enjoyment of these rights. [Wilson and Palmer v. United Kingdom (2002) 35 EHRR 20). Another specific example would be the Road Traffic Act 1988, specifically s5(2) which reads: "It is a defence for a person charged with an offence under subsection (1)(b)...to prove that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath...remained likely to exceed the prescribed limit." The issue of whether or not s5(2) of the Road Traffic Act 1988 violated the European Convention on Human Rights was squarely addressed in the case of Sheldrake v. DPP [2003] EWHC 273, where the Court held appellant had not proved that there was no likelihood of his driving while having ingested alcohol of an amount beyond the prescribed limit. The Court stressed in the case that a reversal of burden of proof was not unconscionable if there is a "legitimate aim" and if the reverse onus provision was proportionate to the objective sought to be achieved. Another statute that reverses the burden of proof is the Sexual Offences Act 2003, which introduces a more improved framework in understanding and trying sexual offences. Perhaps the most significant change introduced in the Act was its redefinition of the concept of consent. In the law as it currently stands, the accused, in order to secure an acquittal, must be able to prove that he had reasonable grounds to believe that the victim gave her consent. Prior to 2003, the Sexual Offences Act of 1956 read: 'at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it'. Before the amendment was introduced in 2003, a controversy ensued in the case of DPP v. Morgan (1976 AC 182) where the Court held that "an honest mistake that the victim was consenting could negative mens rea, even though the mistake was not reasonable." In the said case, a husband conspired with his friends to have his wife raped. The husband assured his friends that though his wife might appear to be struggling and saying no, she would be enjoying herself because she was "kinky". Though the husband and the friends were convicted, the case set a dangerous precedent in that the judge accommodated the possibility of an honest mistake under absolutely unreasonable circumstances. This disturbing scenario is addressed under the 2003 Law, because the law now requires that the mistake be "reasonable." (Westmarland, 2004). Section 1(2) of the Act reads: "Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps [the defendant] has taken to ascertain whether [the victim] consents." Equally significant is Section 75 of the Act, which creates a rebuttable presumption that the victim did not consent and the defendant had mens rea under certain circumstances. These circumstances are as follows: * Violence or the threat of violence was used against the complainant or a third person, * The complainant was unlawfully detained, * The complainant was asleep or otherwise unconscious when the offence was committed, * Due to a physical disability, the complainant was unable to communicate a consent, or * The complainant had been given a substance, which was capable of causing them to be stupefied, or overpowered at the time of the attack. It cannot be gainsaid that there is a legitimate aim to this amendment that shifts the burden of proof to the defendant. Because of the nature of the crime of rape, and because of the murky waters of "consent" and "state of mind", far too many rapists manage to evade the long arm of the law. The issue of consent is extremely important in that very few cases of rape, particularly in this age of DNA testing, involve a defendant alleging that no sexual intercourse happened (Baird, 1999). In most cases, the defense proferred is that the alleged rapist had believed that consent was given and thus negativing criminal intent. When one has a situation wherein the woman was voluntarily intoxicated immediately preceding and during the time of the rape, the complexity of the issue exponentially increases. Issues of consent and mens rea come into play. In an online article dated December 6, 2006 and entitled "Juries blame women for drunk rape", (Internet, 2006) it was reported that an experiment was conducted with funding from the Economic and Social Research Council, and such experiment revealed that "jurors are still blaming women if they willingly get paralytic, even if their drinks are spiked with extra alcohol." Another statutory example that should capture our interest is the Misuse of Drugs Act 1971, Section 28 of which provides that it is a defence for the accused to prove that he neither knew of nor suspected nor had any reason to suspect the existence of some fact alleged by the prosecution which it was necessary for the prosecution to prove. The question of its potential irreconcilability with the Human Rights Act was resolved in the case of R v Lambert [2001] 2 Cr App R 511, HL. Cooper explains the tortuous effort the Court took in this case to justify the Act without running afoul of due process guarantees: The House of Lords held that a legal burden imposed by Misuse of Drugs Act 1971 s 28 would be disproportionate and not justified. It would therefore follow that s 28 was incompatible with Article 6(2) and the presumption of innocence. However, in order to avoid this outcome, the House of Lords relied on Human Rights Act 1998 s 3(1) to 'read down' the words of s 28 and conclude that the section imposed only an evidential burden on the accused. The Human Rights Act s 3(1) provides that legislation must be read and given effect in a way which is compatible with the Convention if it is possible to do so. It cannot be denied that there is a need to protect the human rights of the accused and ensure that due process and presumption of innocence are practiced in real life and not merely consigned to lip service. These are precepts that should inform and animate legislation; and it is a sad day indeed when magistrates find ways to circumvent these principles. It must be noted that at present, the law prohibits any public body from behaving in a manner that is incompatible with any of the rights guaranteed under the European Convention on Human Rights. (Hoffman & Rowe, 2003). Criminal justice in any mature society always involves a balance of two competing interests: the need to protect the rights of the accused, and the need to combat crime and instill peace and order in society. (Davies, Croall and Tyrer, 2005) The parliament is vested with the power to create laws that have coercive effect. It is essentially in their province to come up with regulations to maintain order and peaceful conduct in the society, while ensuring that a human rights framework is always in place. Certainly, a modernization of the system is long overdue. In order to keep up with the times and to keep a society that is protected from crime while at the same time maintaining its adherence to human rights and civil liberties, the system needs to be revisited from time to time. Antiquated concepts must be thrown out. Conceptions in criminal justice is constantly evolving, the variety and nature of crimes committed shift as well. The key is to be able to adapt with constantly rising developments, while remaining firmly committed to the timely ideals of justice. Word Count: 2296 References Baird, V. (1999) Changes to section 2 of Sexual Offences Act 1976, Medicine, Science and the Law, 39 (3), 198-208. Cooper, S. (2003). "Human Rights and Legal Burdens of Proof."Web Journal of Current Legal Issues. Available at: http://webjcli.ncl.ac.uk/2003/issue3/cooper3.html Last Accessed: March 28, 2007. Davies, M., Croall, H. & Tyrer, J. An Introduction to the Criminal Justice System in England and Wales. London: Pearson Longman. 2005. Hoffman, D. & Rowe, J. Human Rights in the UK: An Introduction to the Human Rights Act 1998. London: Pearson Longman. 2003. "Juries blame women for 'drunk rape". December 6, 2006. Available at http://www.metro.co.uk/news/article.htmlin_article_id=28225&in_page_id=34. Last Accessed: March 28, 2007. Keane, A. The Modern Law of Evidence. London: LexisNexis. 2005. Murphy, P. Murphy on Evidence. 9th Edition. Oxford: Oxford University Press. 2005. Westmarland, N. "Rape Law Reform in England and Wales." School for Policy Studies Working Paper Series. Paper No. 7. April 2004. Read More