Law of Evidence Circumstances - Essay Example

Introduction In English law, the normal trend is for the accuser to present evidence against the accused. It is the existence of evidence that creates a case and this is the basis for the contestability of a given claim or issue in court. This is because when an accused person has not done anything wrong, there can be no criminal case against him and in civil cases, this principle exists to a large extent. If there is nothing to be contested, a case cannot proceed. In R V Johnstone1, it was identified that there could be exceptional circumstances where the burden of proof could be reversed from the prosecution to the accused person. This is often done to preserve some fundamental elements of the constitutional conventions and legal traditions that have been preserved for generations in English law. This paper will examine the circumstances under which the burden of proof is reversed from the accuser to the accused. It will also identify how the court rationalise their decisions in these circumstances and situations. Legal Framework of Evidence in English Law A tradition upheld in English legal tradition is that an individual is innocent until proven guilty in criminal proceedings. This is the concept of the presumption of innocence which means that the burden of proof will be on the prosecution rather than the accused. This was made in the landmark ruling of Woolmington V DPP2 where the precedence was set for prosecutors to prove that a person had broken the law before any proceeding could commence in criminal law. The case of Woolmington V DPP indicated that the prosecution has two burdens of proof, evidential burden of proof and legal burden of proof3. The evidential burden of proof is the sensible proposition to assert there is a matter fit for the accused person to be prosecuted. However, that does not prevent the prosecution from presenting evidence during the actual trial. The evidential burden of proof is to ensure that a person arrested on a given charge is actually in breach of a valid law of the land. Evidential burden is meant to ensure that there is a compelling reason for the prosecution to go ahead. It is about the ability to link the accused to what s/he is actually being accused for. During the hearings, the prosecution must present evidence to support the claims on the basis of the points of law, presented by the judge. In other words, when examining the English legal system, it is apparent that cases are presented to judges who present the facts to the jury who in turn scrutinize the facts and come up with a verdict. Thus, evidential proof and legal proof are two separate proofs that are needed at different stages of the trial. Evidential proof must be sufficient to establish that there is a case at hand. And it must convince the judge that the accused person must be tried. Based on the sufficiency of the evidential proof presented by the prosecution, the judge can analyse the case and facts and present guidance and directions to the jury. During the actual trial, the jury will have to operate within the parameters of the points of law presented by the judge. This means that the jury must examine the facts of the circumstances against the law. And this will be done on the backdrop of the evidence that link the accused person to the offence he is being accused of. At the point where the judge identifies the legal pointers within which the case will be decided, the prosecution must present their evidence in a way and manner that addresses the pointers of law defined by the judge. And this will narrow in on the specific issues that the accused person is being tried for. Thus, it is the evidential proof that establishes that there is a case at hand in the first pace. Evidential burden of proof must be sufficient to present a case for trial. Where the evidential burden of proof is not sufficient or inappropriately collected, the commencement of a trial could be problematic and the trial could have some deficiencies whereby the case would only be decided by asking the accused person to present evidence to the contrary. Strict Liability Offences Traditionally, in UK cases, strict liability offences come up with convictions for breaches. In English Law, these offences are statute based and they are necessary where a person is found to be involved in a given actus reus. Cross stated that strict liability offences require no mens rea in other words, they require no intention by the defendant for prosecution to occur and blameworthiness is sufficient to commence a legal action under the law4. These are often made criminal by statutes and once a person is involved in those acts, that individual is held liable for his actions, not necessarily the intention of doing that. These are laws that often evolve to deal with major issues and problems in the society that requires strict controls. Examples include the possession and sale of drugs, terrorism acts and other compliance requirements. In the case of drugs, there is the need for the state to come up with a mechanism through which the possession and transfer of drugs could be criminalised. And once a person was involved in these things, they had to be convicted for their connections with it. One common theme of strict liability offences are that the exceptions to the laws are normally stated in the statutes5. Once a person is able to invoke these defences successfully, then there is no basis for the prosecution of the offence. In such cases, the prosecution will not be appropriate and the case will not be able to proceed. However, since the police and other law enforcement authorities have the obligation of arresting and documenting cases, the duty is on the accused person to provide information about why he qualifies to be exempted on the basis of an extenuating factor. In other words, the accused person must prove to the law enforcement authority and the prosecutors that they qualify for one or more of the defences stated in the statute. Traffic Offences The traffic rules around the world are strict liability laws. This is because intent and mindset cannot be accepted since they happen swiftly. In Sheldrake V DPP6 the accused person was charged with drunk driving. However the Road Traffic Act 19887 states that it is criminal for a person to drive when the proportion of alcohol in a persons breath remains likely to exceed the prescribed limits under law. Sheldrake was arrested for being drunk in his car and at the trial, the magistrate found that: 1. He was found in his vehicle in a public place (evidence presented); 2. He was in charge of the vehicle when alcohol in his breath was more than the standard level (evidence presented); 3. He claims he was in the car, arranging for transport with a friend (no proof ascertained); 4. The weather condition was such that it was likely that he will drive (evidence presented). On that basis, the magistrate court found Sheldrake guilty. However, he appealed on the basis that he was not driving. He was just in the car to arrange transport with a friend. The appeal court held that the essence of the law was to present people with an excessive volume of alcohol in their breath to drive. Hence, as long as Sheldrake could prove that he was not prepared to drive, he could prevent conviction. Thus, the burden of proof shifted from the prosecutor to Sheldrake. Human Rights Act The traditional position of English law was to prevent trial in a situation where the defendant had some kind of defence that is consistent with acceptable defences in the case at hand. In such a situation, the burden of proof shifted form the prosecutor to the accused individual in the case. Once the accused could prove that t here was an extenuating factor, he could be allowed to go without trial and conviction. However, the Human Rights Act 1998 integrated elements and aspects of the European Convention on Human Rights. The ECHR states that “everyone charged with a criminal offence shall be presumed innocent until proven guilty”8. This supports the fundamental position of English law. However, English law did not really have a precedence that sought to protect the rights of accused persons and allow them to have the burden of proof transferred to them. In Salabiaku V France9 the ruling states that the European Convention on Human Rights “requires states to confine [presumptions] within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defendant”. This means that the Convention required states to ensure that they respect the fundamental rights of people who were accused. And as such, there is the need for some degree of protection to ensure that an individual accused of a given crime is give a fair framework to act within. The presumption of innocence was to be reasonable and remain as such. However, it was not to be stretched beyond normal. And in that sense, “reasonableness” requires some degree of flexibility and some room for individuals to challenge the charges for which they are being punished. In State V Coetzee10 the judge made an interesting observation where he stated that where there is a public interest in a case, there are demands put forward by the public. This is often leads the wider society to condemn the individual even before the trial begins. And at that point, there is the need for the constitution to step in and protect the rights of the accused person. Hence, there is the need for some degree of selectivity to ensure that people could show evidence on what should be blotted out of the prosecution if such evidence exist. Thus, in the advent of human rights, individuals who feel their fundamental right to justice under Article 6 of the ECHR can challenge their prosecution in a way. And this can be done through the presentation of evidence that proves that they are not liable to the offences that are being imputed on them. Thus, they have the right to challenge prosecutions and charges that they believe to be unreasonable. Human Rights Oriented Cases There is a set of cases that relate to the human rights of individuals that are infringed. IN the case of R V Lambert11, the defendant was charged with the possession of controlled drugs with the intention to supply them under the Misuse of Drugs Act 1971. However, the defence for the act wast that the defendant could be free of the charges levelled against him if he can prove that he neither knew nor suspected nor had any reason to suspect the existence of some fact alleged by the prosecution12. There is a Common Law maxim that states that it is better for 10 criminals to be allowed to go free than to convict 1 innocent person. This means that justice has the obligation of preventing wrong and negative activities in society. However, it has a bigger obligation to prevent illegal and reckless conviction of people who are not guilt whatsoever of the offence they are being charged with. Lord Steyn stated in R V Whyte13 that “the real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence”. This means that there is the need to preserve the sanctity of the law and promote justice by ensuring that the fundamental right of every individual to a fair trial is guaranteed. Hence, ECHR elements of Human Rights evolved to ensure that there was some degree of proportionality that kept state authorities as well as individual at par in order to deal with legal cases. However, in order to do this, there is the need for the examination of the gravity of the conduct, seriousness of the offence and precise justification for the act. Another case sought to present further information about how the burden of proof may shift from the prosecutor to the accused and how the court can rationalise their decisions. In R V DPP ex parte Kebilene14, the defendant was accused of being involved in terrorism in Algeria and was arrested for possessing articles that provided some degree of suspicion of his usage of such items for terrorist activities in the UK. He was charged under the Prevention of Terrorism Act which states that possessing an article giving rise to a reasonable suspicion that the article is in his possession for a purpose connected with terrorist activity was a criminal offence15. However, that Act also provided a number of defences that were capable of being invoked in defence for possessing such items. However, although the accused person had training in terrorist acts and had articles he could use to undertake a terrorist activity, he insisted he had absolutely no intention of undertaking any terrorist activity16. In spite of that, the Department of Public Prosecution kept him in custody on the grounds that the suspect was a threat to US citizens. They therefore applied for a judicial review of the law to provide a clearer way of dealing with the case. The House of Lords refused to grant the plea for judicial review and they insisted that the Human Rights Act provided some protection for the suspect17. Therefore, the burden of proof shifted from the DPP to the accused person. It was up to him to prove that he satisfied the defences stated in the law and if he did that convincingly and showed evidence to that effect there was no basis to keep him in custody as he had not committed any crime. This created a case for a persuasive burden of proof based on the balance of probabilities18. This means there was the need for him to proof there was no guilt and thus, there was no case against him. Conclusion In English law, the presumption of innocence in trials are seen as sacred and fundamental to the attainment of justice. Thus, the prosecution has to prove a case beyond reasonable doubt before an accused person can be convicted. The prosecutors have the evidential burden as well as the legal burden. Evidential burden is what establishes a case which prompts a judge to start proceedings. A legal burden is to present evidence that will convict a person based on the pointers of law that the judge has instructed to the jury. In cases of strict liability, there are often laws that negate the conduct. In that case, when a person is accused on an offence, that individual will have to prove that he qualifies for any of the defences. The Human Rights Act 1998 ratified the European Convention on Human Rights which gave some civil liberties to people. On that basis, the right to a fair trial and reasonable accusation is enshrined in the law. This leads to a situation where the rights to ensure that the accusation of the prosecution is within reasonable frameworks and limits. This shifts the burden of proof from the prosecutor to the accused person. Where the burden of proof shifts, the accused person must provide evidence on the basis of the balance of probabilities. The main essence is to ensure that people are not convicted where some degree of doubt exists. Books Cross, Noel. Criminal Law and Criminal Justice: An Introduction. London: SAGE. 2009. Maguire Mark, Morgan Rod and Rainer Robert. The Oxford Handbook of Criminology. Oxford: Oxford University Press. 2012. Murphy Peter. Murphy on Evidence Oxford: Oxford University Press. 2012. Spencer Maureen and Spencer John. Q and A in Evidence 2012 – 2013. Oxford: Oxford University Press. 2013. Cases R V DPP ex parte Kebilene [2000] 2 AC 326 R v Johnstone [2003] 2 Cr. App. R. 33 R V Lambert [2001] 2 C App R V Whyte [1988] 51 DLR (4th) 481 Salabiaku V France [1988] 3 EHRR 379 Sheldrake V DPP [2003] EWHC 273 State V Coetzee [1997] 2 LRC Woolmington V DPP [1935] AC 462, 461 Statutes European Convention on Human Rights 1951 Human Rights Act 1998 Misuse of Drugs Act 1971 Prevention of Terrorism (Temporary Provisions) Act 1989 Road Traffic Act 1988 Read More