The Legal Burden in Criminal Proceedings in England and Wales - Case Study Example

The Legal Burden in Criminal Proceedings in England and Wales In criminal law it is accepted that in general terms the burden of proof falls on the prosecution. The basic rule in this area was expounded in Woolmington v DPP1 where Viscount Sankey made the comment that ‘Throughout the web of the English criminal law one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner’s guilt.’ There are however occasions when this burden of proof can be reversed2 thereby placing the onus on the defendant to prove their innocence. It has been argued that this reversed burden creates unfairness in the criminal justice system as the defendant lacks the resources available to the prosecution for testing evidential findings3. The principle behind the reverse burden has been established on the basis that there are occasions where the accused is better placed to prove their innocence of the offence charged. In cases where the accused has been charged with causing an accident whilst being over the prescribed limit of alcohol and their defence is that they drank after the incident the courts have frequently placed the burden on the accused to prove that they were not drunk at the time of the accident. R v Drummond4 is one such case where the driver left the scene of an accident and was apprehended by officers at his home address. Following a breath test he was charged with being over the prescribed limit. He asserted that he had not been drunk at the time of the accident but had consumed drink upon returning home. It was held by the court that it was impossible for the police to either prove or disprove this assertion and therefore the burden was on the accused to prove that which he asserted. A similar decision was reached in Sheldrake v DPP5 where the accused tried to assert that he could not have driven a vehicle due to his level of intoxication. In this case the accused was unable to prove his assertion and the conviction was upheld. Over the years there have been several occasions were the courts have imposed a reverse burden of proof6. It was pointed out by the Criminal Law Revision Committee in their 11th report that it was repugnant to principle that a court left in doubt as to the defendant’s intent would be bound to convict7. The committee felt that this kind of injustice might occur if the defendant has to prove that they acted innocently when the prosecution are claiming that he acted with blameworthy intent8. It has been argued that the notion of the reversed burden of proof offends against the Human Rights Act 1988. Under Article 6(2) it states ‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.’ Requiring a defendant to prove their innocence9 rather that making the prosecution prove their guilt would appear to be a breach of Article 6 and should entitle the defendant to bring an action in the European Court of Human Rights. The reality that has become apparent in these cases is that very few complainants are actually successful in proving that such a breach has occurred. A multitude of cases on this matter have demonstrated that there is not an absolute prohibition on the use of the reverse burden under Article 610. In some cases the courts have allowed the reverse burden to be applied even if placing the onus on the accused interferes with the presumption of innocence (Mirfield, 1988 p19). This was the case in R v Lambert [2001]11 were the accused was relying on s28 of the Misuse of Drugs Act 1971 to infer that he had no reason to suspect that the package he was carrying contained illegal drugs. The court held that as he was relying on a provision in the statute12 to assert his innocence there was a duty on him to prove that he did not know what was in the package. Reverse burden first came into common use following the case of R v Edwards [1975]13 where it was established that where a prohibited act is entitled to rely on provisos and exceptions the prosecution can rely on the exception with the effect that the defendant has the burden to prove that it was lawful for him to do that prohibited act in the circumstances14. This exception was stretched further following the ruling in R v Hunt [1986]15 were Goff LJ reasoned that the ‘court should not confine its attention to the form of the statutory provisions applicable and to a literal scrutiny of the words used, but ought to draw without inhibition on its common sense and have recourse to matters of general policy connected with convenience reason and justice.’ This was eventually overturned in the House of Lords hearing in 1987 where the judges held that the burden of proving the guilt of an accused was on the prosecution save in the case of the defence of insanity and subject to any statutory exception; that such exception might be express or implied and the burden of proof might be placed on the accused whether the exception appeared in the same clause of the instrument in question as that creating the offence or in a subsequent proviso and whether the offence was triable summarily or on indictment and would be discharged on the balance of probabilities; and that where a linguistic construction did not indicate clearly on whom the burden of proof should lie the court might look to other considerations to determine the intention of Parliament such as the mischief at which the provision was aimed and practical considerations such as, in particular, the ease or difficulty for the respective parties of discharging the burden of proof. By allowing the prosecution to use these exceptions it is possible to reword the statutory obligations in such a way as to completely eliminate the presumption of innocence. Under s101 of the Magistrates Courts Act 1980 if the defence relies on an exception, an exemption, proviso or excuse it is the responsibility to prove this on the balance of probabilities (Birch, 1988) Such rewording was the subject of debate in the case of R v DPP ex parte Kibilene16 where the wording of section 16A of the Prevention of Terrorism (Temporary Provisions) Act 1989 and the Criminal Justice and Public Order Act 199417 made it a requirement for the accused to prove that the article he had in his possession was not for a purpose connected with the commission, preparation or instigation of acts of terrorism18. The appeal court initially held that s16A was incompatible with Article 6(2) but this decision was overturned in the House of Lords stating that s16A might be compatible with Article 6(2). This no longer applies since the introduction of the Terrorism Act 200019 which has removed the legal burden from the defendant and now only requires them to show an evidential burden that the article was carried for bona fide purposes. Legislation designed to prevent terrorism has been widely criticised for shifting the legal burden onto the accused. Statute has made it lawful for the police to arrest a person on suspicion of a preparatory act of terrorism and then is worded so as to require the accused to prove that the acts they were doing were not connected with terrorist activities. Cases that have been brought before the ECHR and where it has been held that there has been no breach are usually where the accused has raised an issue in their defence that has not been raised by the prosecution20. In cases where the accused has alleged self defence21 or provocation22 the ECHR have held that it is not incompatible with Article 6(2) to require the accused to prove the defences raised. Part of the reasoning for this is that to use either of these as a defence the accused has to admit in part to the commission of the offence. By making such a plea the accused is placed with both the legal and the evidential burden of proving that which he is asserting23. The use of such defences are seen in the legal spheres as a form of confession and avoidance whereby the defendant admits certain facts but raises a new issue to avoid the consequences of their admission24. With a defence of self defence the accused is under a burden to prove that that he believed that an attack on him was imminent. Lord Griffith in Beckford v R25 stated A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike. Such a defence to a charge of assault will fail if the some time had elapsed from the time in which the accused was to the accused retaliating26. If the accused was still being attacked at the time they retaliated then the proof they will be required to show is that the force used to repel their attacker was proportionate and reasonable27. The test for reasonable for is subjective and was explained in R v Owino28 as A person may use such force as is [objectively] reasonable in the circumstances as he [subjectively] believes them to be. If an accused can successfully prove that his actions were done in self defence he could find himself completely exonerated. Where the court accepts the plea of self defence but are not satisfied that reasonable force was used the accused is likely to still face some form of penalty for the injuries he has caused. Provocation is only accepted as a defence in cases of murder. Using a defence of provocation the accused’s burden is to show that reasonable man would have responded in the same way as he did in the same circumstances. The accused must also show that the killing was the result of a sudden and temporary loss of self control29. Provocation was included in the Homicide Act 1957 and specifies a loss of self control as the deciding criteria. In the case of R v Duffy30 the judge when summing up for the jury stated that Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind31. The effect of such a defence would not have the result of acquitting the accused of murder but of simply reducing the charge to manslaughter for which the sentencing powers are lessened. A further area where the burden of proof will be placed on the accused is where the accused relies on the defence of insanity32 or automatism33. The courts are reluctant to accept a plea of automatism where the condition has been brought about by the accused’s consumption of alcohol34. In Woolmington v DPP35 Viscount Sankey made the comment that where the defence is one of insanity or where there are any statutory exceptions, the burden of proving the plea of insanity must lie with the defendant36. Devlin, J in Hill v. Baxter37 stated at page 285 ‘…insanity is the only matter of defence in which under the common law the burden of proof has been held to be completely shifted.’ In general the accused should only have an evidential burden to prove that they did not commit the crimes they have been accused of or that they have a lawful excuse for committing those crimes. Those with an evidential burden can use evidence from witnesses on the other side either in cross-examination or when evidence is given as evidence-in-chief38. An evidential burden only requires the accused to be able to point to some evidence making the issue in question a live issue39. It is important to look at how judges view the legal and evidential burden and how they discharge their duties in respect of these burdens when putting information before the jury. Judges see the evidential burden as dictating what he does in respect of leaving the question to the jury40 or withdrawing them from it41 whilst the legal burden governs what he says when directing the jury on how they should reach their verdict42. The way in which judges use these burdens makes it even more compelling that the burdens should be correctly apportioned. Allegations of corruption have also been found to cause problems as legislation43 as the effect of placing the burden on the accused to prove that they were not involved in any form of corruption. The wording of the 1916 Act is such that there is a presumption of corruption if the person supplying the gift is holding or seeking to obtain a contract44. The Act places the onus onto the defendant to prove on the balance of probabilities45 that there has been no such corruption. The effect of the presumption was explained by Lord Lane in R v Braithwaite46 explained the effect of the presumption. The effect of section 2 is that when the matters in this section have been fulfilled the burden of proof is lifted from the shoulders of the prosecution and descends on the shoulders of the defence. It then becomes necessary for the defendant to show that what was going on was not reception corruptly as inducement or reward. In an appropriate case it is the judges duty to direct the jury first of all that they must decide whether they are satisfied so they are sure the defendant received money or gift or consideration and then go on to direct them that if they are so satisfied then under section 2 of the 1916 Act the burden of proof shifts. This presumption can only be rebutted by evidence of an innocent explanation and not by a simple assertion by the defendant that is not supported with evidence47. The Home Secretary Mr H Samuel in 1916 defended the presumption inserted in the Act when he stated I am sure the House will agree that it is both reasonable and equitable to put the burden of proof on the person charged. If the payment was innocently made…it would be easy to prove in Court… and there would be no risk of innocent men being unjustly convicted48. To lessen the problems caused by the reverse onus being placed on the accused each case should be judged separately and evaluated to assess what elements the accused is able to prove or disprove according to the resources available to him. It could in some circumstances be blatantly unfair for an accused to have to prove that an item he is found in possession of is not a stolen item. It may well be that he has purchased an item from a friend believing it belonged to the friend and was his to sell. The courts in this respect have on occasion placed the burden of proving that the accused knew the goods to be stolen especially where the acquisition of the goods is a considerable time after the theft49. Where the defendant is caught in possession soon after the commission of the theft the onus is usually on the accused to prove that he did not know these to be stolen50. The Criminal Law Revision Committee stated in paragraph 140 of its 11th report that ‘We are strongly of the opinion that, both on principle and for the sake of clarity and convenience in practice, burdens on the defence should be evidential only.’ At present these recommendations have not been incorporated into legislation or put into action in the courts with the end result being that there is no certainty as to when the accused will be faced with a legal burden as well as an evidential burden. The danger this poses for those accused of serious crimes is that they could be faced with trying to prove something which is beyond their abilities to do. There needs to be clearer guidelines and controls in place to regulate reverse burden onuses otherwise there could be an influx in the future of miscarriages of justice. Bibliography Allen, C, Practical Guide to Evidence, 2nd Ed, 2001, Cavendish Publishing Ashworth, A and Blake, M The presumption of innocence in English law [1996] Crim LR 306 E Birch, D.J., ‘Hunting the Snark: The Elusive Statutory Exception’ [1988] Crim LR 221 Elliott, C, & Quinn, F, Criminal Law, 3rd Ed, 2000, Pearson Education Glazebrook, P R, Statutes on Criminal Law, 2001, Blackstone’s Huxley, P, & O’Connell, M, Statutes on Evidence, 5th Ed, Blackstone’s Jones, T H, Insanity, Automatism and the Burden of Proof on the Accused (1995) 111 LQR 475 Legislating the Criminal Code: Corruption, Law Commission Report 145 (1997) Lewis, P, The HRA 1998: Shifting the Burden [2000] Crim LR 667 Mirfield, P., ‘The Legacy of Hunt’ [1988] Crim LR 19. Murphy, P, Blackstone’s Criminal Practice, 2002, Oxford University Press Smith. J C, The presumption of innocence (1987) NILQ 223 B Tadros, V and Tierney, S [2004] Presumption of innocence and the Human Rights Act 67 MLR 402  Williams, G, ‘The logic of exceptions’ [1988] CLJ 261 Zuckerman, A No Third Exception to the Rule in Woolmington (1987) 103 LQR 170 Zuckerman, A. The Third Exception to the Rule in Woolmington (1976) 92 LQR 402 Table of Cases Ashley v Chief Constable of Sussex [2006] EWCA Civ 1085 (2006) 103(32) L.S.G. 20 Times, August 30, 2006 Beckford v R (1988) 1 AC 130 Bullard v The Queen [1957] AC 635 DPP v Morgan [1976] AC 182 Finegan v Heywood 2000 J.C. 444 2000 S.L.T. 905 2000 S.C.C.R. 460 2000 G.W.D. 15-633 Times, May 10, 2000 Hansard (HC) 31 October 1916 Vol 86 col 1636 Hill v. Baxter [1958] 1 Q.B. 277 Hussain v United Kingdom (8866/04) (2006) 43 E.H.R.R. 22 Times, April 5, 2006 Lloyd v DPP [1996] C.L.Y. 1337 1995 Mancini v DPP [1942] AC 1 Palmer v The Queen [1971] AC 814 Paria v Queen, The [2003] UKPC 36 (2003) 147 S.J.L.B. 537 R v Attorney General Ex p. Rockall [2000] 1 W.L.R. 882 [1999] 4 All E.R. 312 Times, July 19, 1999 Independent, July 26, 1999 R v Rashford (2005) AER 192 R v Ahluwalia (1992) 4 AER 889 R v Bonnick (1978) 66 Cr App R 266 R v Braithwaite [1983] 1 WLR 385 R v Carr- Briant [1943] KB 607 R v Charlton (2003) EWCA Crim 415 R v DPP ex parte Kibilene [1999] 3 WLR 972 R v Drummond [2002] EWCA Crim 527 [2002] 2 Cr. App. R. 25 [2002] R.T.R. 21 Daily Telegraph, March 14, 2002 R v Duffy [1949] 1 All ER 932 R v Edwards [1975] [1975] 1 QB 27 R v Galbraith [1981] 1 WLR 1039 R v Gill [1963] 1 WLR 841 R v Hill (1988) 89 Cr App R 74 R v Hunt [1986] [1986] 2 WLR 225 R v Lambert [2001]2 Cr App R 511 R v Lindsay (2005) AER (D) 349 R v Mills (1978) 68 Cr App R 5 R v Owino (1996) 2 Cr. App. R. 128 R v Pommell [1995] 2 Cr App R 607 R v Schofield [2004] EWCA Crim 369 R v Whyte (1988) 51 DLR (4th) 481 R. (on the application of P) v Liverpool City Magistrates Court [2006] EWHC 887 [2006] E.L.R. 386 [2006] A.C.D. 73 (2006) 170 J.P.N. 453 (2006) 170 J.P.N. 814 R. v Cash [1985] Q.B. 801 [1985] 2 W.L.R. 735 [1985] 2 All E.R. 128 (1985) 80 Cr. App. R. 314 (1985) 82 L.S.G. 1330 (1985) 129 S.J. 268 R. v Martin [2001] EWCA Crim 2245 [2003] Q.B. 1 [2002] 2 W.L.R. 1 [2002] 1 Cr. App. R. 27 (2001) 98(46) L.S.G. 35 (2001) 145 S.J.L.B. 253 Times, November 1, 2001 R. v McPherson (1957) 41 Cr. App. R. 213 1957 R. v Roach 2001] EWCA Crim 2698 R. v Wilson [2006] EWCA Crim 1880 Salabiaku v France (1988) 13 EHR R 379 Saunders v United Kingdom [1997] B.C.C. 872 Sheldrake v DPP [2003] EWHC 273 Sheldrake v. Director of Public Prosecutions [2004] UKHL 43 Sodeman v The King [1936] 2 All ER 1138 Woolmington v DPP [1935] AC 462 Table of Statutes Criminal Justice and Public Order Act 1994 Homicide Act 1957 Human Rights Act 1988 Magistrates Courts Act 1980 Misuse of Drugs Act 1971 Prevention of Corruption Act 1916 Prevention of Terrorism (Temporary Provisions) Act 1989 Read More