Reverse Burden of Proof - Essay Example

Reverse burden of proof The principle of presumption of innocence has stood as the most fundamental principle of the justice system1. Under this principle, it is required that an accused person should be presumed to innocent throughout the course of the trial, until the case proves otherwise. This principle was established in the common law of England, by Lord Sankey, where the ruling stated that it is upon the prosecution to prove the guilt of the prisoner beyond any reasonable doubt, regardless of the charge or where the trial is held, in the case Woolmington v DPP2. Therefore, based on this ruling, any accused person cannot be assumed to be guilty of any criminal or civil charge that is levelled against them, before the case is presented to an impartial court of law or jury committee, which is then tasked with the responsibility of making the final determination in regard to the guilt or innocence of the accused, depending on the nature of the evidence presented in the case3. In this respect therefore, it is upon the prosecution to gather all the necessary evidence that can show that the accused is for sure guilty of the offence thy have been accused of, and the failure by the prosecution to do so, entitles the accused person to be acquitted. Therefore, it is based on this fundamental principle of the law, that case R v Johnstone [2003] 1 W.L.R. 1 echoed the fact that in any case where the burden of proof is to be shifted from the prosecution to the defendant or the accused person, then, there must be a compelling reason why it is fair and reasonable for the accused to be denied the presumption of innocence, which should be guaranteed to everyone4. Therefore, the golden rule that should hold in all cases is that; the accused person should always be perceived as innocent under the eyes of the law, until the contrary has been proven. Nevertheless, there are exceptions to this rule, which provides that the burden of proof can be shifted to the defendant or the accused5. However, in shifting the burden, reasonable and fair grounds in regard to why the defendant or the accused should bear the burden needs to be provided, considering that the concept of reverse burden of proof is a major departure from the golden rule, which then assumes that the accused person is guilty, until the accused has been able to prove beyond reasonable doubt, that he is not guilty of the offences levelled against him6. The principle of reverse burden of proof was first established under the Fosters Crown Law (1762)7. Under this law, it was provided that in a case of murder that is proven to have been committed by the accused, the accused is thereby presumed to be guilty of committing the murder with malicious intentions, until the accused is able to defend the circumstances of the murder, which then proves his innocence8. Therefore, in adhering to the provisions of the Fosters Crown Law (1762), Lord Sankey, while making his determination under the Woolmington v DPP provided that; while the presumption of innocence is the golden and the supreme rule under which all accused persons should be treated regardless of the nature of offense or the type of trial, there can be exceptions to this rule, which may shift the burden of proof to the accused person or the defence9. Nevertheless, to realize this departure, there are basic principles that must be met. First, Lord Sankey provided that, the burden of proof can be shifted to the accused person or the defence, under circumstances where the accused person raises insanity as his defence10. Under such circumstances, it will be upon the accused person or the defence to prove beyond reasonable doubt that when the accused person committed the offense, he was not under his normal state of mind, and thus the state impaired his mental responsibility to be able to accurately judge his actions. Nevertheless, it is important to understand that in fulfilment of the provisions of the presumption of innocence as provided under both the Woolmington v DPP and the R v Johnstone [2003] 1 W.L.R. 1, the law does not make any provision for a shift of the burden of proof from the prosecution to the accused person or the defence11. The only thing that passes from the prosecution to the defence is the tactical burden of adducing evidence that may be applied to rebut the evidence provided by the prosecution in regard to the accused person’s guilt, or to add more evidence that would then create reasonable doubt on the evidence that the prosecution has already provided. Therefore, for a reverse burden of proof to be acceptable there must be a compelling reason in relation to the insanity of the accused person or their lack of the proper state of the mind, which then impairs their mental abilities to take responsibility for the offences committed. It is only under such compelling reasons, which are also fair and reasonable, that the protection normally guaranteed to everyone by the presumption of innocence can be denied, so that the defendant can prove to their innocence12. The first exception to the golden rule of the presumption of innocence as was provided by Lord Sankey, under Woolmington v DPP, requires that the reverse burden of proof can be shifted to the defendant, where the accused raises insanity as his defence, also called the principle of ‘diminished responsibility’, was echoed and manifested under the case of R. v Foye (Lee Robert) 13. Under this case, the defendant had been sentenced to imprisonment, where he eventually killed another inmate while also causing injury to himself within the cells. Under this case, the requirement for the shift of burden to the defendant for claims of insanity during the committal of the offense were clarified, such that for a defendant to claim innocence under the principle of ‘diminished responsibility’, the defendant must adhere to the provisions of section 2(2) of the Homicide Act 195714. To fulfill the requirements of diminished responsibility under this act, the defendant must prove that first; he was suffering from an abnormality at the time when he committed the crime. Secondly, the defendant must prove that condition of abnormality of the mind arose from a state of the mind being arrested or retarded, and thirdly, that the mental ability of the individual while committing the offence was substantially impaired by the abnormality15. In this respect, the first exception is fully guarded by the legal requirements under this law, to ensure that even where an individual is assigned the reverse burden of proof, such shift of the burden is done out of reasons that are compelling, fair and reasonable, to warrant the defendant be denied the protection normally guaranteed to everyone by the presumption of innocence. The second exception to the golden rule of protection normally guaranteed to everyone by the presumption of innocence, as was provided by Lord Sankey under Woolmington v DPP, is that the reverse burden of proof can occur under circumstances where the legal burden of the defence expressly put on the accused16. However, this provision has been criticized for being inconsistent with the provisions of Article 6(2) of the European Convention on Human Rights (ECHR), which provides that ‘Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law’17. Therefore, this provision also echoes the principle of presumption of innocence, requiring that it is not until the end of a trial that an accused person can be regarded as guilty. Nevertheless, in a bid to dispel this criticism, in the case Don Jayasena (Rajapakse Pathurange) v The Queen [1970] AC 61818, interpreted the principle of reverse burden of proof to mean that the defendant is simply required to collect more evidence from the offense or crime, which will be enough to make a reasonable jury acquit the defendant. Therefore, the interpretations serves to ensure that the threshold for a reversal burden of proof calls for more compelling, fair and reasonable reasons, before the burden of proving the innocence of the defendant can be shifted to the accused person. Further, the second exception to the golden rule of the presumption of innocence is applied towards ensuring that only under circumstances where the law has expressly provided for the shift of burden from the persecution to the defendant, that such reversal burden of proof can occur19. The third exception to the golden rule of the presumption of innocence of the accused persons until proven guilty, as was established by Lord Sankey in the Woolmington v DPP, is where the legal burden on the defence is impliedly put on the accused20. The relevance of this exception is to ensure that even where the burden of proof can be shifted to the defendant; it is not done arbitrarily, but only where there exist suitable grounds as provided by the law, even if it is under implied terms. In ensuring that the implied terms requiring the shift of burden on the defendant adheres to compelling, fair and reasonable grounds, Lord Hope clarified that the reversal burden of proof shifted from the prosecution to the defendant is ‘evidential burden or persuasive burden’, as opposed to a legal burden, in the ruling under R v DPP ex parte Kebilene21. Under this clarification, Lord Hope stated that the burden of proof, when shifted from the prosecution to the defendant, passes to the defendant as a fact issue, where the defendant is just required to clarify the facts to the court or to the jury, to the extent that the jury or the court is satisfied that the accused person deserves acquittal. Nevertheless, even under such circumstances, the legal burden of proof still remains with the prosecution, considering that even if the defendant fails to put on an effective factual defence in relation to his case, the prosecution will still be required to prove his case beyond reasonable doubt22. On the event that the prosecution fails in this duty, even where the defendant has failed to put on an effective factual defence, the accused person is still legally justified an acquittal. In this respect, the legal provisions under this third exception of the presumption of innocence serves to ensure that; a reverse burden of proof can only be acceptable where there is sufficient grounds that are fair, compelling and reasonable to deny the defendant the protection of presumption of innocence. The relevance of the R v Johnstone [2003] 1 W.L.R. 1 determination, in relation to the golden rule of the presumption of innocence of an individual until they are proven guilty, is to ensure that whenever a reverse burden of proof is placed on a defendant, it is done so purely on the grounds of fair, reasonable and on compelling grounds. In the ruling, Lord Nicholls observed that the provisions of section 92(5) Trade Marks Act 199423, provided for the requirement that the defendant bears the burden of proof, where the prosecution has not been able to adduce sufficient evidence that proves the guilt of the accused. This observation is not in violation of the provisions of Article 6(2) ECHR, considering that on the event that the defendant is in a better position to produce relevant records that the prosecution may not have access to, it is within the persuasive responsibility of the defendant to defend the position that the prosecution has not been able to incriminate fully, based on much knowledge that the defendant might have, which is not available to the prosecutions. In this respect, the provision of reverse burden of proof serves to eliminate the harm from the restriction of the case facts to only what the prosecution is able to adduce24. The same findings were echoed in the Sheldrake v DPP, where Lord Bingham, in giving a ruling in relation to the provisions of section 5(2) Road Traffic Act 198825, observed that the defendant bears a persuasive burden to prove lack of guilt is offences committed under this law, and failure to provide a balance of probabilities on that matter beyond reasonable doubt would lead to the defendant being convicted. The provisions under these cases serves to ensure that; while the presumption of innocence is the golden rule, it does not place a limit to adducing relevant knowledge and facts to the case, which are only available to the defence. The relevance here is to ensure that only the reasonable, fair and compelling grounds are applied towards the imposition of the reverse burden of proof on the defendant26. Furthermore, the provisions under these cases serves to ensure that even where there is an imposition of the reverse burden of proof on a defendant, the imposition is of an evidential burden or of a persuasive nature, while the real legal burden still lies with the prosecution. Lord Bingham clarified that the burden of proof placed on a defendant is not a legal burden of proof, but an evidential burden, which entails putting an issue of fact before the court or the jury to be considered. In this respect, if the matter has been raised by the defence within the premise of factual matters to the case, it is then upon the prosecution to disprove the facts raised beyond reasonable doubt (27RLB). In this respect, the defendant is not denied the guarantee offered to everyone by the golden rule of the presumption of innocence, since the defendant is only raising a factual issue for consideration, and leaves the burden of proof of guilt with the prosecution. The fundamental principle upheld by the golden rule of the presumption of innocence until proven guilty, is the opportunity for acquittal of the accused person, which is open under the requirement for the imposition of the evidential burden (). Most importantly is the fact that the compatibility of the reverse burden of proof with other provisions of the law does not make the trial proceedings unfair to the defendant. This is because, the compatibility of the reverse burden of proof simply creates an opportunity for the defendant to open the facts of the case and matter to the jury and the court hearing the case, while leaving the burden of determination of the weight of the facts issued by the defendant, in relation to the evidence adduced by the prosecution with the jury or the court hearing the case R v Hunt (29). The principle of a fair proceeding that adheres to the due process is upheld by the provision of the in Fosters Crown Law (1762), as a common law of precedent, which requires that facts of committal of the offence being first approved, all the circumstances of the offense are to be proven by the accused (30RFCL). Therefore, even where the reverse burden of proof is imposed on the defendant, the prosecution must have first proven the committal of the offense by the defendant, meaning that the golden rule of the presumption of innocence will first be adhered to, and consequently the due process and fair hearing will not be violated. Bibliography 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) Article 6(2) of the European Convention on Human Rights (ECHR). Burden of Proof: Interpretation of the Human Rights Act 1998 (Oxford: Hart Publishing , October 14, 2002). Retrived march 11, 2014 from http://www.hartpub.co.uk/updates/crimlaw/crimlaw_burden02.htm ‘ Br J Criminal, ‘Criminal Law Revision Committee Eleventh Report; Evidence (General)’ (1973) Creaton J, ‘Reverse Burden of Proof’ (2007) 80 Pol J 175 Coe P, ‘Justifying reverse burdens of proof: a tale of diminished responsibility and a tangled knot of authorities’ (2013) 12 JCL 2 Dennis I H, The Law of Evidence (2nd edn, Sweet and Maxwell 2002) Dennis I, ‘Reverse Onuses and the Presumption of Innocence: In Search of Principle’ (2005) Crim LR 901 Don Jayasena (Rajapakse Pathurange) v The Queen [1970] AC 618 Hamer D, ‘The Presumption of Innocence and Reverse Burden: A Balancing Act’ (2007) 66 CLJ 142 Fitzpatrick B, ‘Reverse Burden and Article 6(2) of the European Convention on Human Fosters Crown Law (1762) Mirfield P, ‘How Many Standards of Proof are there?’ (2009) 125 LQR 31 Padfield N, ‘The Burden of Proof Unresolved’ (2005) 64 CLJ 17 Rights: Official Secrets’ (2008) 72 J Crim L 190 R. v Foye (Lee Robert) [2013] EWCA Crim 475 R v Johnstone [2003] 1 WLR 1736 R v DPP ex parte Kebilene [2000] 2 AC 326, [1999] 4 All ER 801 R v Hunt [1987] 1 All ER 1 Roberts P, ‘The Presumption of Innocence Brought Home? Kebilene deconstructed’ (2002) 118 LQR 41 Roberts P, Criminal Evidence (2nd edn, OUP 2004) Section 2(2) of the Homicide Act (1957) Section 92(5) Trade Marks Act 1994 (TMA 1994) Tadros V, ‘The Presumption of Innocence and the Human Rights Act’ (2004) 67 MLR 402 The Burden and Standard of Proof (Magazine Insite Law, March 1, 2014) Retrived march 11, 2014 from http://www.insitelawmagazine.com/evidencech3.htm Woolmington v DPP [1935] AC 462; [1935] UKHL 1 Journal of Criminal Law 2013 Read More