Evidential and Legal Burden of Proof - Essay Example

Law of Evidence The question that arises in this case where evaluating where the burden of proof should fall is whether such burden of proof, if imposed on the defendant, should be legal or evidential. When a defendant is placed in a position where he/she must adduce some evidence in support of his/her position and to raise an issue before the court, this is known as the evidential burden of proof on the defendant. On the other hand, if an issue already exists and the party is mandatorily obliged to present evidence in order to support or disprove such an issue, then this comes under the category of legal burden of proof. The burden of proof aims to provide a jury with at least enough evidence to support the position of a reasonable doubt of the guilt of the accused. Therefore what must be determined in this case is whether the defendant will be obliged to adhere to a legal or evidential burden of proof. The leading case in the nature of the legal burden of proof in English criminal law1 is that of Woolmington v. Director of Public Prosecutions2, in which Viscount Sankey stated that “it is the duty of the prosecution to prove the prisoner’s guilt subject to….insanity….[and also]…statutory exception.” Therefore, applying the standard set out in this case, it would appear that the onus of the burden of proof will be placed upon the prosecution rather than on the defence. However, research suggests that this has not generally been the case. A study conducted by Ashworth and Blake showed that the legal burden of proof was placed upon defendants to prove a statutory defence in at least 40% of the Crown court cases3. Therefore, in a criminal case the defendant may likely bear the burden of proof, depending upon the circumstances and the statute (in this case, the Road Traffic Offenders Act of 1988)4. In the recent case of Sheldrake v DPP5 the question of whether driving offences would come under the purview of criminal offences and could therefore constitute a requirement for a legal burden of proof from both prosecution and defense was raised. In arriving at its decision, the Court also took into account the question of whether imposing a legal burden of proof on the defendant and thereby rendering him liable for conviction even when a reasonable doubt existed, would be in contravention of the presumption of innocence that works in favor of every defendant in a criminal case. The question of whether a legal or evidential standard of proof was to be levied required the Court to strike a balance between the rights of the community and the rights of the individual, applying proportionality between the two while also examining the legitimate aims of the statute in question, i.e, Section 5 of the Road Traffic Act of 1988. The same will apply to the instant scenario under examination, since the rights of the defendant must be balanced against the rights of the community to whom her intoxicated driving state could cause harm. It was held in the case of Sheldrake that while a legitimate aim was being pursued through Section 5(2) of the statute (Road Traffic Offenders Act), it would be disproportionate to expect the defendant to adduce evidence on the legal burden of proof; moreover it could also constitute interfere with the presumption of innocence.6 This was held to be the case despite the fact that intoxicated drivers could prove to be a real danger to the community, raising the prospect of offences that could be included within the realm of criminal acts. Moreover, the fact that establishing mens rea or the intent of the defendant to drive in an intoxicated state would be difficult for prosecution to prove, this was deemed to shift onus of burden of proof on the defendant. However, the final verdict was that only an evidential level of proof was deemed to be necessary from the defendant, since it would have been disproportionate to the statute to impose a legal burden of proof. This standard could also apply in the instant scenario since it also involves a defendant who is charged with driving while intoxicated. The presumption in Section 15(2) could potentially impose a legal burden of proof upon the defendant, since the results of her breath analyzer test will be mandatorily taken into account. However, taking into account Section 15(3) which allows for mitigating circumstances, which the defendant also relies upon, it appears that if the defendant can provide just enough evidence to support the position that while driving her breath alcohol would not have exceeded the limit and that the increased counts are caused by the alcohol she consumed after the act of driving was over, only an evidential standard of proof may be necessary from the defendant. If the defendant is able to support this position with evidence, then it will serve to rebut the prosecution issue that she was driving in an intoxicated state. Therefore, such evidential burden of proof will require the defendant to prove that her alcohol consumption was under the legal limit while she was driving, which will negate her offense and the results of the prosecution’s breath analyzer test. 2. The presumption of innocence is that “every man is presumed to be innocent until he is proven guilty” is the underlying principle of English criminal law.7 This means that an accused person will be deemed to be innocent until evidence has been produced to support a conclusion of guilty beyond a reasonable doubt. As stated by Blackstone, “It is better that 10 guilty persons escape than that one innocent suffer.”8 According to Cross and Tapper, the presumption of innocence means that “the prosecution is obliged to prove the case [against defendant in question] beyond a reasonable doubt.”9 According to Professor Glanville Williams, this is the “golden thread” that runs through the scope of English criminal law, unfortunately however, according to the statute books, the burden of proving innocence often falls to the accused person, despite this presumption of his/her innocence that exists for the accused’s protection under English law.10 In the case of R v Lambert11, Lord Steyn quoted from a decision of the Canadian Supreme Court12 and the views of Dickson CJ in illustrating the importance of the presumption of innocence, “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….[in which case]…there is a breach of the presumption of innocence.” However, the presumption of innocence, especially as laid out in Article 6(2) of the European Convention of Human Rights is not absolute but must be exercised within “reasonable limits” taking into account the significance of the issues under stake while also maintaining the “rights of the defence.”13 Similarly in the case of R v Lambert cited above, it was held that this presumption was to be balanced through a determination of proportionality, which cannot be achieved if the reverse onus provision imposing a legal burden of proof on the defendant goes beyond what is necessary to “accomplish the objective of the statute” in question.14 Therefore, applying this standard to Section 15(2) of the Road Traffic, it may be noted that an automatic presumption of guilt will be made about an accused on the basis of the results of evidence provided by tests. Since the proportion of alcohol in the accused’s breath as revealed during testing is equated to that at the time of the offence, there is no provision for the existence of a reasonable doubt that may arise from a difference in timing between the test and the time of the offense. However, the objective of the presumption of innocence is to protect the interests of the defendant/accused where a reasonable doubt may exist of the defendant’s guilt. On this basis therefore, it could be argued that Section 15(2) is contrary to the presumption of innocence. But since exceptions have been provided under this section, therefore it is valid and satisfies the intent of the statute that only those guilty beyond a reasonable doubt are finally prosecuted – hence the exceptions held this section to adhere to the presumption of innocence. 3. Section 16 of the Road Traffic Act of 1988 allows for the use of documentary evidence, such as for example “a certificate signed by an authorized analyst”15 in reference to the proportion of alcohol found in the blood or the urine. Therefore, since Professor Roy Truman has conducted an analysis himself, his certificate containing the results can be admitted as evidence in the case, if the defendant wishes to do so. The Civil Evidence Act of 1995 was amended with the recommendations of the Law Commission report16 and also allows for admission of hearsay evidence in civil proceedings. Business records have also been brought under the purview of hearsay evidence but with the exclusionary rule under Section 1 of the 1995 Civil Evidence Act that existed earlier, such records were not deemed admissible. But with the exclusion of this clause after the amendments, it is now possible to make even such hearsay evidence admissible, provided it is relevant to the issues raised in the case and the credibility of the person giving the evidence can be established.17 In this case, both Professor Roy Truman’s and Professor Ahmed’s reports will be admissible as evidence in the case, since even hearsay is now admissible in both civil and criminal cases where its reliability, credibility and relevance can be established. Moreover, the comments that are offered by both these people will fall under the umbrella of expert opinion rendered on the issues in the case. The common law position on “opinion” is that it is an inference drawn from observed facts18 however unless opinion evidence is based upon direct inferences drawn from the five senses, it may not be admissible because it could be a subjective conclusion. But since both the Professors are conducting an analysis themselves, their statements of fact corroborated by their statements of opinion may be admissible by virtue of the specialized knowledge they may possess. For instance, an opinion that merely states what constitutes common knowledge and “is within their[the judges] own knowledge or experience is not helpful and not admissible for that reason.”19 However, people who possess specialized knowledge in an area will qualify as experts and this includes people who are experienced in a particular area20 – their opinion will be valuable in making assessments due to their knowledge of the subject. This is so especially where inferences drawn from primary facts are reliable enough to be adduced as evidence, for example, in stating an opinion whether a defendant was under the influence of alcohol21 as in the instant case. Applying the new criteria that have been laid out under the revised hearsay rules22 it is certainly possible for Professor Truman to refer to the other work that has been done in the area of determining alcohol intoxication levels. As explicated by Baroness Hale in the case of Polanski v Conde Nast Publications,23 “relevant hearsay is always admissible”, therefore evidence that will be relevant in assisting the Court to determine the fact at issue which is the intoxication of the defendant while driving, will be admissible provided their relevance to the case can be established. The Road Traffic Act does also allow for the production of documentary evidence, especially those that pertains to the determination of alcohol levels in the blood. Since Professor Truman will be preparing a report and submitting it to the Court on the basis of his own analysis of the defendant’s alcohol’s levels as well as an examination of the prosecution’s determined levels as per the test they have conducted, it may be permissible for the Professor to refer to other authoritative sources in arriving at a conclusion about the levels of intoxication of the defendant. However, all such supporting material that is used in making his determination should be reliable and from credible sources and witnesses as per the general rules for admission of hearsay evidence in civil or criminal proceedings. 4. The Criminal Justice Act of 200324 under Section 32, makes wide ranging amendments to what was originally the Criminal procedure and Investigations Act of 1996, especially in the areas of disclosure of evidence by the defense. While earlier, disclosure was made on a phased basis, the prosecution is now under a duty to continuously disclose evidence. However, on the question of whether unused evidence is to be disclosed, the prosecutor’s opinion which was the guiding criterion earlier is now replaced with an objective test; nevertheless the prosecution is still not obliged to disclose such evidence until a defense statement is produced, therefore the prosecution is not impacted negatively to any great extent. On the contrary however, stricter standards have been applied to disclosure from defendants and reforms in this area have made it mandatory for a defendant to disclose every item of evidence, except those that are the subject of the lawyer-client privilege. The defense must state at the outset, every point at which it takes issue with the prosecution and the grounds for its defense. Therefore, the new rules make it necessary that the defense makes a full disclosure of evidence and lays out all its grounds and rebuttals of the prosecution statements in its own defense statement. The important aspect however is the requirement for full disclosure from the defendant. Therefore, where the question of the report of Professor Ahmed is concerned, it is likely that the prosecution will undoubtedly use it in its case, since it has accidentally acquired the information about the existence of this report with the defendants and since it strengthens its own case. Therefore, the defendant cannot escape the requirement of disclosure on the basis that such evidence is unused and is therefore not required to be disclosed. The defendant can however make an application to the Court to similarly force the prosecution to disclose all its evidence and with the presumption of innocence that exists in favor of the defendant as outlined earlier in this report, it is the prosecution that must make full disclosure of all the evidence it will purportedly use. Evidence which it does not propose to use may be exempt from this requirement of disclosure, unless the defense makes such an application to the Court for full disclosure. However the fact that the defense has such a report by Professor Ahmed in its possession, which helps the prosecution case or weakens the defense case, cannot be hidden – it has to be disclosed. The prosecution is likely to disclose the existence of this report and its intent to use it to further its own case, therefore the defendant cannot avoid disclosing the report by Professor Ahmed, despite the fact that it does not support their case. The only option available to the defendants is to present the evidence skillfully in court and to balance the evidence offered by Professor Truman against that offered by Professor Ahmed, especially in view of the timing of the test, and thereby providing the probability25 of innocence of the defendant rather than her guilt in the court. This has to be done on the basis of inferential reasoning geared towards supporting the fact at issue – which is to determine whether the defendant was intoxicated while driving. Therefore, the question of the timing of the test could allow a greater weightage to the results of Truman as opposed to those of Ahmed, although both would be required to be disclosed. Bibliography Books/Journal Articles: * Ashworth and Blake (1996). “The presumption of innocence in English Criminal law.” Criminal Law Review, 306. * Blackstone, William, 1769. “Commentaries on the laws of England.” (Of Public wrongs” – Vol 4) * Cross, Rupert and Tapper, Colin, 1990. “Cross on Evidence” (7th edn) London”: Butterworths * Fellman, David, 1966. “The Defendant’s rights under English law” Madison: University of Wisconsin Press * Phipson on Evidence (2000) (15th edn. M. N. Howard), London: Sweet & Maxwell * Redmayne M., 1997. “Presenting Probabilities in Court” 1 International Journal of Evidence and Proof 187 * The Hearsay Rule in Civil Proceedings’ (1993) (Law Comm. No. 216) Cm 2321 – in line with ‘The Hearsay Rule in Civil Proceedings’ (1991) Law Comm. No. 117 * Williams, Glanville, 1958. “The proof of guilt: A study of the English criminal trial” (2nd edn) London: Stevens and Sons Legislation: * Criminal Justice Act of 2003. [online] http://en.wikipedia.org/wiki/Criminal_Justice_Act_2003 * Criminal Procedure and Investigations Act of 1996 * Civil Evidence Act of 1995 * European Convention of Human Rights * Road Traffic Offenders Act 1988 [online] available at: http://www.opsi.gov.uk/ACTS/acts1988/Ukpga_19880053_en_2.htm#mdiv15 Cases: * Murphy v the Queen (1989) 167 CLR 94 at 130 * Polanski v Conde Nast Publications (2005) All E.R. 945 * R v Busby (1981) 75 Cr. App. R 79 * R v Edwards [1991]) 2 All ER 266 * R v Lambert (2001) 2 Crim App R 511 (HL) * R v Whyte (1988) 51 DLR (4th) 481 * R v Whitby (1957) 74 WN (NSW) 441 * R v Mendy (1976) 64 Cr. App. R 4 * Salabiaku v France (1988) 13 EHRR 379 * Sheldrake v DPP (2003) EWHC 273 * Weal v Bottom (1966) 40 ALJR 436 p 576 * Woolmington v. Director of Public Prosecutions (1935) A.C. 462 (H.L) Read More