England and Wales Criminal Cases - Essay Example

Law Evidence: Reverse legal burdens In the light of England and Wales criminal cases, Andrew d that there is needto determine a principal approach in making choices whether black or white to reverse burden of proof devoid of infringing the presumption of innocence and suggesting if it is justifiable and proportionate to impose legal and persuasive burden on the accused1. It is essential to note that the accused’s guilt is for the prosecution to prove and remains there throughout the trial as in Woolmington v DPP2. It is usually very controversial when a court decides to place a burden of reverse proof on the defendant so that to prove a particular issue of fact. As a result, three recognizable problems can be established. First, the impact on the European Convention of Human Rights on the statutory provisions which seem to offer expressly for a burden of proof that is to be placed on a defendant. The second problem is that whether such burden has ever been placed on a defendant in a criminal trial. And, thirdly, if it possible to inform if Parliament has, in a specific statute, impliedly placed such a burden on a defendant3. Where the issue of implied reverse burden of proof arises by way of statute, it needs to be compatible and given effect with any rights protected under the Article 6(2) ECHR4. The Human Rights Act 1998 (HRA 1998) is where the Convention actually integrated into English laws5. A legal burden of proof is also known as ‘persuasive’ burden of proof. The persuasive burden of proof is the responsibility that is vested on only one party and ought to be satisfied so as to win in any specific issue in question. In that perspective, in some criminal trials, only one party bears the burden of proof on some issue and a different party on others. A discussion that relates to the legal burden of proof in any specific trial usually makes no sense unless that burden is related to a particular issue of fact. It is really very important to establish that the guilt of the accused is for the prosecution to prove and remains there all through the trial as in Woolmington v DPP6. Adrian cited that a legal burden is a burden of proof which a standard of proof can actually be assigned but saved in the case where the defendant needs to establish his insanity upon a balance of probabilities and of defence of insanity. In some instances, a ‘reverse legal burden’ is placed on the defendant7. Donnellan argued that reverse burden procedures usually arises when the statute that creates the criminal offense imposes a legal burden on the individual being accused to prove a defense. Invariably, the provision usually relates to the mental element of the offense, other the act(s)8 With regard to arguments that challenged these provisions, Creaton asserted that a provision in the statute which imposes on the accused a legal burden of proving a defence actually offends the presumption of innocence as well as the right to a fair trial as protected by Article 6 of the European Convention on Human Rights9. The second argument is that the relevant statutory provision needs to be ‘read down’ in order to impose an evidential burden only on the defendant making sure compatibility with the Convention. Of course this reading would occur by virtue of HRA 199810. There are numerous reverse burden statutory provisions that have yet to have a hearing in the Court of Appeal. In the case of Sheldrake v DPP; A-G’s Reference (No 4 of 2002)11 Lord Bingham gave his leading judgment stating that the section 5(2) Road Traffic Act 198812 and section 11(2) Terrorism Act 200013 put a persuasive burden on a defendant. Besides, if it falls short of determining those matters on the balance of probabilities, he will be convicted14. In the case of Sheldrake v DPP15Mr. Sheldrake was charged with an offence of being in charge of a car with excess alcohol. It is presumed to be a defence under s.5 (2) when the defendant actually proves that there was no probability of him driving while over the limit. The court asserted that this defence under s.5 (2) was not compliant with Article 6 except if it was construed in order to impose only an evidential rather than a legal burden on the defence. As a result, the Divisional Court provided a ruling that it violated the presumption of innocence. In case of Sheldrake, the House of Lords determined that the burden imposed by s.5(2) of the Road Traffic Act was a legal one. The accused ought to have to proven on a balance of probabilities that he would not have driven while unfit. This particular burden was really justified principally since it was related to a matter that was closely associated with the own knowledge of the accused. The burden imposed did not go beyond what was reasonable and necessary and it was at the same time directed at a justifiable objective namely preventing death on the roads and serious injury. In the case of R v DPP ex parte Kebilene16, the concerned allegation was that the defendants took part in terrorism activities in Algeria. The defendants actually challenged the decision of the DPP to consent to the institution of criminal proceedings against the respondents on the basis that section 16(a) of the Prevention of Terrorism Act 198917 reversed the legal burden of proof and thus was in breach of Article 6(2) ECHR18. The House of Lords came to a conclusion that the Human Rights Act did not give rise to a legitimate expectation that the DPP would exercise his discretion not to consent. Besides, the DPP’s decision was not amenable to judicial review. As a result, the questions as to the reverse burden and its compatibility with Article 6(2) were not required to be answered. However, Lord Hope took the opportunity to set out and review the arguments on Article 6(2) ECHR. He argued that that criminal statute which in particular instances partially reverse the burden of proof was not essentially incompatible with the Convention. He went ahead and distinguished between a legal or “persuasive” burden and an “evidential” burden. Evidential burden as stated by Dennis outlines an obligation on a party who wishes to raise a certain issue to point to some evidence, which has the capability of making the issue a live one. On the other hand, persuasive burden is the obligation that is placed on only one party and need to be so as to win in any particular issue in question19. The second case charged under s.11 (1) Terrorism Act 2000 assumed that the defendant was part of a proscribed organisation (Hamas)20. In this case, the Crown conceded that an evidential burden was only imposed by s.11 (2). The Judge also came to a conclusion that the defence had discharged that evidential burden. Additionally, the Crown was unable to prove that the Defendant had taken part in activities perpetuated by Hamas considering the fact that it was proscribed. As a consequence, a ‘no case’ submission succeeded and the defendant was acquitted. In that sense, the Attorney General took the case and filed it to the Court of Appeal who came to a decision that a legal burden was actually imposed by s.11(2)21. The issue was then referred back to House of Lords and heard at the same time as the rather more prosaic case of Sheldrake. In connection to the Terrorism Act the House of Lords ruled that Parliament had the intention of imposing a legal burden on the accused, even though that amounted to an absolute breach of the presumption of innocence. On the other hand, it was not a justifiable and proportionate legislative response to the terrorism threat. As a consequence, in spite of the clear parliament’s intention the section was to be read down so as to impose an evidential burden only. In the case of R v Keogh22, on appeal from a ruling given at a preparatory hearing, the Court of Appeal ruled that the defence provided under s.3(4) and s.2(3) of the Act conventionally construed imposed a legal burden on the defence. On the other hand, the burden amounted to a significant infringement of the presumption and ought to have been read down to so as impose only an evidential burden. According to Roberts, the following factors seemed to influence the Court’s decision: First, they looked at what was it that the defence was needed to prove. In this case, it amounted to a requirement to disprove a significant ingredient of the offence known as the mens rea of the offence. Secondly, they viewed the prosecution’s capability to prove that element. Commonly, the prosecution would have the ability to prove this mental ingredient by means of inferences. Thirdly, there was presence of an objective element to the defence’s “reasonable cause”23. Consequently, this made it much easier for the prosecution due to the fact that it was not necessary to disprove a subjective view held by the defendant. Lastly, the decisive factor was if the reverse burden was necessary to make sure that the offences remained workable. The court concluded that a section remained workable even in the absence of a reverse legal burden. For that reason, the imposition of a legal burden was not proportionate or justified. In the case of R v Lambert24 the burden on the accused was to actually prove that he neither believer, nor a suspect nor he had reason to suspect that the item that was in his possession was a controlled drug. In this case, the House of Lords actually considered the application of the presumption of innocence as expressed in Article 6(2) ECHR of the Misuse of Drugs Act 1971 to s 28 (2). It outlines the offence of possession of controlled drugs with intent to supply. Section 28(2) provides a defence where the defendant can actually prove that he did not have knowledge or reason to suspect that the items which were in his possession were controlled drugs25. This provision had always been interpreted as placing a legal burden on the defence to prove that the defendant did not have the necessary knowledge or suspicion to the civil standard. Nonetheless, in Lambert’s case the majority of the House arrived at diverse views. In this case the Court of Appeal came to ruling that on a natural reading, the subsection had imposed a legal burden and this on that manner undermined the presumption of innocence to an unreasonable extent. The section ought to have read down in order to only impose an evidential burden only. What was decisive in the Court’s reasoning was the fact that offences which fall under this Act usually carry a life sentence. If a legal burden remained, a jury could have convicted, yet they were not utterly sure that defendant had knowledge he was in possession of controlled drugs. Finally, the majority of the House of Lords agreed. By adopting the rationale of Lord Cooke in Kebilene, they went ahead and utilised s.3 HRA26 so as to read s.28 (2) of the Misuse of Drugs Act 1971 as creating an evidential burden only. Specifically, this comprised of reading the words “proves” and “prove” as meaning giving sufficient evidence. As a result, s.28 MDA is not incompatible with Article 6(2) ECHR as it can be “read down” in order to impose an evidential burden, as compared to a persuasive burden on the accused. The Court of Appeal has adopted the approach of Lambert in its subsequent appeal decisions. In the R v Carass27 case, the defendant was taken to court and charged with concealing debts in anticipation of a winding up. This is goes against s.206 (1)(a) of the Insolvency Act 198628. The court ruled that defendant bore an evidential burden of proof, in raising the defence of “no intent to defraud” under s.206 (4). In accordance, the word “prove” was read to suggest “adduce sufficient evidence”. This is similar to the approach of the majority in Lambert. Therefore, the two cases outlined above shows how the Court of Appeal justifies and to condemn the reverse burden of proof in different statutory offences. Lords Clyde and Steyn both considered that a legal burden on the accused was not justifiable after balancing the public’s interests with what was at stake for the accused in a situation where the accused may face life imprisonment sentence. Lord Hope arrived at a conclusion that the knowledge contained in s.28 was not a vital element (para.60) and there were substantial policy reasons for construing the legislation in a manner that not to put the initial burden of proving knowledge on the Crown (para.71). However, he arrived at a similar conclusion as Lord Steyn that the burden on the accused violated the presumption of innocence (para.117). In Sliney v Havering London Borough Council 29the Court of Appeal held that the substance of the reverse burden in s.92 (5) Trade Marks Act 1994 was not to be taken as an important element of the offence. Nonetheless, there was no infringement of the presumption of innocence in Article 6(2) ECHR. The Court came to a conclusion that although if it were properly to be considered as inconsistent with the presumption of innocence, this was a case where the reverse legal burden was essential, justified and proportionate. As a consequence, it was not a case where section 3 of the Human Rights Act 1998 would necessitate the “reading down” of the provision. In the R v Johnstone case30, it is a defence to an offence under the act which stipulates that if the accused actually proves that he believed on reasonable grounds that by using the mark in a way that was used was not an infringement of the registered trademark. The court held that a legal burden was imposed and this was both proportionate and justified. This was because the urgent international pressure in the interests of traders and consumers is to restrain fraudulent trading in counterfeit goods, the dependence of the defence on matters within own knowledge of the defendant, and the legal burden legal burden was required to make sure that the persons committing these offences could effectively be arrested. In L v DPP31 case the burden on the defendant was to prove that he had legitimate authority or good reason for possessing a bladed article in a public place. The court ruled that the legal burden that was imposed was compatible with Article 6. This was due to: strong public interest in articles that were bladed not being carried without good reason; the accused was required to prove something within his own knowledge; and lastly, sentencing powers was limited to two years except on school premises. In the case of Davies v Health and Safety Executive32, The Court of Appeal concluded that the imposition of a legal burden under s.40 HSWA33 was essential, justified, and proportionate and therefore was compatible with Article 6(2) ECHR34. With regard to the balance between the individual’s fundamental right and the general interests of the community, the court followed the questions outlined by Lord Hope in Kebilene. Consequently, the Court of Appeal arrived at a similar to that of Lord Hutton in Lambert; the reverse legal burden was justified, necessary and proportionate, therefore, did not violate Article 6(2). Accordingly it was not needed to apply the subsequent step of Lambert and apply s.3 HRA 199835 to transfer the burden to an evidential one. Conclusion Since the introduction of HRA, various principles have been developed so as to help the courts establish in the case of a specific statute what the right approach should have been. The applications of those principles have always not been clear. When the persuasive burden is a must and refers to the gravamen of the offence, then as a result the burden breaches the presumption of innocence36. With regard to the black and white choice inherent in imposing reverse legal burden on defendants, it is usually necessary to establish if the burden in question is incompatible with Article 6(2), whereby it may be justified, necessary or proportionate. Bibliography CASES: A-G’s Reference (No 1 of 2004) [2004] EWCA Crim 1025, [2004] All ER (D) 318 Davies v Health and Safety Executive [2002] EWCA Crim 2949 European Convention of Human Rights, 6(2). R v Carass [2001] EWCA Crim 2845 R v DPP ex parte Kebilene [2000] 2 AC 326, [1999] 4 All ER 801 R v Hunt [1987] 1 All ER 1 R v Johnstone [2003] UKHL 28, [2003] 3 All ER 884 R v Keogh [2007] 3 All ER 789 R v Lambert [2001] UKHL 37, [2001] All ER (D) 69 Sheldrake v DPP; A-G’s Reference (No 4 of 2002) [2004] UKHL 43, [2005] 1 All ER 237 Sliney v Havering London Borough Council [2002] EWCA Crim 2558 Woolmington v DPP [1935] AC 462 SECONDARY SOURCES BOOKS: Adrian K, The Modern Law of Evidence 8th edn, OUP 2010) Andrew L T C, Evidence (2nd edn, OUP 2009) Allen C, Practical Guide to Evidence (3rd edn, Cavendish 2004) Dennis I H, The Law of Evidence (2nd edn, Sweet and Maxwell 2002) Roberts P, Criminal Evidence (2nd edn, OUP 2004) Donnellan, Christopher. Crime. London: Newsletter Winter, 2007. Popat, Prashant. Reverse Burden of Proof: Developmens in the Law. London: Handerson Chambers, 2003. HARD COPY JOURNALS: United Kingdom: Creaton J, ‘Reverse Burden of Proof’ (2007) 80 Pol J 175 Roberts P, ‘The Presumption of Innocence Brought Home? Kebilene deconstructed’ (2002) 118 LQR 41 Read More