The Presumption of Innocence is like a Golden Thread in the Criminal Justice System
15th February 2017
The Presumption of Innocence is like a Golden Thread in the Criminal Justice System
Chun Shuo Lum
Queen’s University Belfast
Presumption of Innocence
The presumption of innocence is one of the most important and ancient right embodied within the criminal justice system in the UK and all around the world. Presumption of innocence derived from the latin expression “Ei incumbit probatio qui dicit, non qui negat”, which basically means the burden of proof is on the one who declares, not on the one who denies. Under this principle, one is to be considered innocent unless proven guilty, this favour towards criminal suspects is an attempt to protect innocent persons from being convicted even at the expense of guilty offenders escaping conviction for their crimes. Thus, if the prosecution fails to disprove the presumption and should there remain any reasonable doubt, the accused is to be acquitted from all charges. In fact, the legal burden is also called the “risk of non-persuasion” by Wigmore as failure to discharge such a burden would lead to acquittal of the accused.
Albeit this principle long lies within the common law of the UK, there are instances where it does not take precedence. It was only recently articulated in Woolmington v DPP where Lord Sankey in his “Golden Thread” speech made clear that in a criminal case, the prosecution has the legal burden to prove that the accused is guilty based on the standard of beyond reasonable doubt. Thus, it can be concluded that by imposing such a strict standard, the legal burden is considered a substantial and sizable burden, where failure to prove beyond reasonable doubt, the burden would not be fulfilled. While the accused has no more than an evidential burden to raise a live issue at trial, which would most likely be a form of defence that the accused would attempt to rely on. While the legal burden comes equipped with a standard of proof to prove beyond reasonable doubt, there is no standard of proof imposed on the evidential burden, thus not a burden of proof.
Exceptions to the Presumption of Innocence
However, Lord Sankey in Woolmington had expressly excluded statutory exceptions and the defence of insanity from the rule for the prosecution to prove the defendant’s guilt. When the two exceptions arise, the legal burden may be shifted from the prosecution to the accused.
The defence of insanity is under the authority of M’Naghten’s Case, which made it clear that if the defence is raised by the accused, the burden to prove insanity on a balance of probabilities is on himself as ‘…every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction…’. For the purpose of this question, it is important to note that in H v UK , the European Court of Human Rights(ECtHR) ruled that this exception didn’t breach Art6(2) of the European Convention of Human Rights(ECHR) as what is of concern is the element of sanity not innocence, thus insanity will not be discussed further in relation to the impact of the Human Rights Act(HRA) 1998.
Similar to the defence of insanity, statutory reversals are also an exception to Lord Sankey’s presumption of innocence. Statutory reversals can be both expressly stated or implied by courts. In the UK, a lot of statutory provisions expressly provide an obligatory burden of proof for the accused to prove his defence on a balance of probabilities by including in the defence the words “for the accused to prove”. This derogation from the presumption of innocence is extremely common according to Ashworth and Blake. However, express reversals are made clear by the Parliament and does not require extensive interpretation by the courts.
Unlike express reversals, implied reversals are imposed by the courts where Parliament is silent as to the ambiguity of statute and does not provide interpretation. In such instances, the courts would apply certain tools to aid in interpretation. Which includes, s101 of the Magistrates’ Court Act 1980, Rule of Convenience, the Lawton Formula and policy considerations.
The presumption of innocence is also affirmed in statutes such as the Universal Declaration of Human Rights and the ECHR which is enacted domestically in the UK by the HRA. For the purpose of this question, emphasis would be allocated on the HRA. The enactment of the HRA caused an impact upon the rules and exceptions of presumption of innocence laid down in Woolmington. The first major UK case brought under the HRA was R v Director of Public Prosecutions ex parte Kebeline. Even though the House of Lords was of the view that the case need not be decided in light of the HRA, Lord Hope in obiter addressed the issue of conflict between the reversal of the legal burden and the presumption of innocence under Article 6(2). R v Lambert is another hallmark case in the UK House of Lords where the courts first discussed the impact of the HRA on the statutory reversal of the legal burden. After deliberation, the courts have taken an approach where the first step was to establish whether the reversal was an infringement of the presumption of innocence. Their Lordships agreed that the effect of the provision was to impose a legal, persuasive burden which infringed the principle. The next step was to consider whether this infringement was objectively justified and proportionate so that the legislative means adopted were not greater than necessary. The final step was to assess whether it was possible to read s.28 of the Misuse of Drugs Act 1971 in a way compatible with Convention rights. If it is not, a reading down is required to prevent wrongful conviction in light of art.6(2) ECHR.
The Lambert approach has subsequently been adopted in later Court of Appeal decisions. R v Carass takes an identical approach to the majority in Lambert and held that the reversal was not proportionate thus resulted in a reading down of a legal burden to a mere evidential burden. However, in R v Drummond, the court did apply the reasoning of Lambert but came up with a contrasting decision to uphold the accused’s legal burden. On the facts, defendant was charged with careless driving with excess alcohol and raised the defence under s.15(3) Road Traffic Act 1988, which was for the accused to prove that he consumed alcohol after he stopped driving. The court held that in this scenario the legal burden was correctly imposed as it is only reasonable for the accused to prove that alcohol was consumed after he stopped driving. The interference with the presumption of innocence was not greater than necessary, thus justified.
Taking into account both Lambert and Kebeline, it can be submitted that the reversal of the legal burden is prima facie incompatible with Art6. However, ‘the Strasbourg jurisprudence and the English authorities agree that Art6(2) does not state an absolute rule’. In Salabiaku v France, the ECtHR did indicated that not all legal burdens placed on accused persons violate convention rights and some reversals are ‘convention compliant’. This idea that Art6(2) is not absolute was also upheld by the later case of Brown v Stott in the Privy Council. Thus, UK courts have the luxury to take certain measures to ensure that every reversal is ‘convention compliant’. To do so, reversals are to be thoroughly scrutinized in light of the test of proportionality. This test depends totally upon the circumstances of every individual case. And “It follows that a legislative interference with the presumption of innocence requires justification and must not be greater than is necessary…”. The case of Sheldrake v DPP illustrates the application and principles of the test, this contemplation of proportionality is a matter of general principle between the suppression of the interest of society as a whole and the interest of the individual in question. To correctly do so, the courts must take into consideration a number of factors.
The factors that should be taken into account by the courts when applying the test of proportionality are further identified and summarized by Ian Dennis. And it is through these factors that the courts could ensure that proportionality is observed, and whether there really is a pressing need to impose a legal burden on the accused. According to Ian Dennis, the factors to be considered are judicial deference, classification of offences, construction of criminal liability;element of offences and defences, significance of maximum penalties, ease of proof and peculiar knowledge, and presumption of innocence.
On the part of judicial deference, what is to be considered is the differences between the will of the courts and Parliament. And to determine how far should the decisions of courts defer to the enactments of parliament. The general rule was established by Lord Nicholls in Johnstone where he stated that:“Parliament, not the court, is in charge of what should be constituted as elements of a criminal offence, the court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to the fundamental right of an individual to be presumed innocent until proven guilty.” This view was later affirmed by Lord Woolf in the case of AG’s Reference (No.1 of 2004) by saying that Parliament would not have made an exception to the presumption of innocence without good reason. Thus, it can be submitted that the courts are willing to comply with the Parliament as they presume that the Parliament would contemplate on the issue of the HRA before enacting a statute that would impose legal burden on the accused.
However, such an approach was argued by Lord Bingham in Sheldrake v DPP that it emphasizes too much on the enactment and neglected the presumption of innocence and obligations of the courts under s.3 of the HRA. Even so, later on in Brown v Stott, Lord Bingham further recapitulated that substantial respect should be paid by the courts to the carefully considered and deliberate decision of the democratic Parliament. The divergence of view among the cases leave the issue on judicial deference rather unclear. It is submitted that this is where the view of Lord Hope in Kebeline could be relied on, which requires the courts to consider the proportionality of the legitimate aim imposed in statutes. To highlight and identify the legitimate aim of a statute, the courts are to consider the policy goals concerning the enactment of the statute and its impact upon the many aspects of society. Then, the courts should raise the question of whether the imposition of a reversal is proportionate to achieve said aim.
It is articulated by Ian Dennis, that the principle of deference would seem inappropriate if no evidence can be seen that Parliament gave thought to the presumption of innocence during enactment of the reverse onus. Because of the fact that Article 6(2) should always defeat the principle of deference, the Parliament must provide compelling justification for its decision to derogate from the presumption of innocence.
Classification of Offences
Moving onto the factor of the classification of offences, the point being made is that the courts could rely on the distinction between serious and regulatory offences to determine or justify the imposition of a reverse onus. This was what Jack J deemed necessary in Sheldrake v DPP as he thinks interference with the presumption of innocence of less serious offences is more justifiable. An example can be seen in Lambert where Lord Clyde distinguishes that, when an offence is merely regulatory, it is more reasonable and compatible with art.6(2) for a reverse onus as the punishment only involves trivial penalties.
However, the courts do face difficulties relying on this factor of justification. One of the main concern is that the way which the courts classify offences does not include a moral evaluation as illustrated in Davies v Health and Safety Executive. Also, the courts may encounter an error in classification as a mere regulatory offence to one, may be of great social and emotional importance to others. For example, environmental pollution being charged for a punishment of a fine. What is more problematic is that not all regulatory offences carry trivial penalties and some do carry possible custodial sentence. R v Chargot is a case which is similar to Davis where the courts applied the same reasoning, ruling that the offence was regulatory even though the penalties have since been repealed under the Health and Safety (Offences) Act 2008 to carry a penalty of maximum two years imprisonment and an unlimited fine upon conviction. This shows that the classification of offences is not always applicable to justify the compatibility of a reverse onus with art.6(2). According to case law, it is submitted that this factor is determined on a case by case basis and the classification of offences becomes more discretionary as a result. The courts when considering this factor should take into account not only the seriousness of the offence but also other implications and moral injustice when deciding on a reversal.
Construction of Criminal Liability: Elements of Offences and Defences
It is the general rule of the presumption of innocence that requires the prosecution to prove all elements of the offence beyond reasonable doubt. Lord Hope in Lambert suggests that if there is a distinguishment between the elements of the offence and the exculpatory defence, reversal of the legal burden onto the accused to prove his own defence would be considered acceptable. This approach was later adopted in AG’s Reference no.4 2002 and Sliney v Havering London Borough Council 2002.
However, Lord Steyn doubted this argument and suggested that the defence contained elements of the offence and the difference in wording is a mere drafting technique of Parliament. To him, the defence is so closely linked with mens rea and moral blameworthiness that it would derogate from the presumption to transfer the legal burden to the accused. Lord Steyn carried on saying that the best approach was to focus on the issue of substance or “moral blameworthiness” of the act. Which means that instead of blindly adhering to the offence and defence laid down in statute, the courts should further consider if such defence although clearly exculpatory, consists of the element of mens rea or “moral blameworthiness” for the offence. If so, it should be for the prosecution to prove as it would be categorized as an element of the offence. Thus, the reversal of the legal burden onto the accused in such circumstances would amount to a derogation from the presumption of innocence art.6(2). Once again the divergence of views amongst judges suggests that this factor may not be effective in determining whether a reversal is compatible with art.6(2). Therefore, to solve this uncertainty, it is submitted that the courts should resort to identifying the rationale behind the offence as laid down by Parliament and uphold the intentions of Parliament.
Significance of Maximum Penalty
Under the factor of maximum penalty, the general rule is the greater the penalty for the offence, the greater the weight placed on the presumption of innocence. Thus, when an offence result in a greater penalty, the more reluctant the courts will be to impose a reversal. In both Lambert and AG’s Reference (No.1 of 2004), where the offence resulted in life imprisonment and 10 years of maximum imprisonment respectively, the courts decided that the penalty was too great to impose a legal burden on the accused. While Sheldrake v DPP also seemed to follow this rule by imposing a reversal for 6 months of maximum penalty.
However, decisions made by the courts are not always that clear-cut. In the case of Johnstone which is similar to AG’s Reference (No.1 of 2004), concerning 10 years of maximum imprisonment, received the decision that the imposition of the reverse onus was compatible and proportionate. This proves that the application of the factor of maximum penalty is rather uncertain, similar to factors discussed above.
Ease of Proof and Peculiar Knowledge
The idea behind this factor is to distinguish whether the accused or the prosecution is at ease to prove a piece of evidence and whether the accused has peculiar knowledge of a certain matter. The courts would generally impose a reverse onus where it is easier for the accused to prove a piece of evidence as compared to the prosecution.
This is the most prominent factor that courts rely on to impose a reversal, as can be seen in Kebeline, Johnstone and Makuwa. In Makuwa, the court imposed a reversal almost entirely based on the fact that the ease of proof is on the defendant. However, Edwards and Keogh rejected the application of this approach for peculiar knowledge. In Keogh, the court held that “…these defences were closely linked with the state of the defendant’s mind and with the moral blameworthiness of his actions, they infringed the presumption of innocence…”
As such, it is important to note that ease of proof and peculiar knowledge are two different concepts and are discussed separately. The difference between the two is that, ease of proof is regarding evidence which can be obtained by both the accused and the prosecution, while peculiar knowledge relates to the exclusive knowledge of the accused that the prosecution would never know of, and the two usually do not coexist. As even in certain circumstances where it might seem that that evidence may be easily proven by the accused because he has peculiar knowledge, it may not be so in facts.
Presumption of Innocence
The final factor laid down by Ian Dennis is the presumption of innocence itself.
This factor serves as a reminder of the importance of the presumption of innocence for the courts. Andrew Stumer suggested that this presumption is a mechanism for the courts to reduce the risk of wrongful convictions, but also increase the risk of wrongful acquittals. This provides the perception that the outcome of wrongful convictions are regarded as significantly worse than wrongful acquittals. This can be observed especially in cases that involve substantial punishments. Again, an example would be the case of Lambert and AG’s Reference (No.4 2002). In both cases, Lord Steyn and Lord Bingham took the similar approach by asserting that if the courts were to impose a reverse onus, it would mean that the courts thought that the facts adduced by the accused were likely not to be true. This was deemed to be incompatible with the presumption of innocence, especially for an offence punishable by life imprisonment.
The presumption of innocence runs through the Criminal Justice System like a “golden thread”. Since the HRA was introduced, whereby there is an infringement of Art6(2), courts have a choice to either declare incompatibility under s.4 or read down from legal to evidential burden under s3, so that it complies with convention. The test of proportionality is as a result of the HRA and it has a huge impact on how the UK view the presumption of innocence previously established in Woolmington as statutory reversals violate convention rights. To prevent wrongful convictions by not being in line with convention rights, the courts have taken preventive measures and came up with the test, which consists of a number of factors developed in order to assist the courts in determining the right approach in upholding a reverse onus. This test is how the HRA influenced and changed criminal cases on the basis of presumption of innocence in the UK.
Blackstone, W, Commentaries on the Laws of England, (1st Edition, Clarendon Press, 1765)
Dennis, I, Law of Evidence (4th edition, Sweet & Maxwell, 2010)
Landa, C S and Ramjohn, M, Unlocking Evidence, (2nd edition, Routledge, 2013)
Spencer, M, Evidence Concentrate: Law Revision and Study Guide, (1st edition, Oxford University Press, 2012)
Stumer, A, The Presumption of Innocence: Evidential and Human Rights Perspectives, (Volume 8, Hart Publishing, 2010)
Ashworth, A & Blake, M, ‘The Presumption of Innocence in English Criminal Law’ (1996) Crim. L.R. 306, at 309
Dennis, I, ‘Reverse onuses and the presumption of innocence: in search of principle’ (2005) CLR 901-936
Popat, P, ‘Reverse Burden of Proof: Developments in the Law’
Quintard-Morenas, F, ‘The Presumption of Innocence in the French and Anglo-American Legal Traditions’ (2010) 58(1) TAJCL 107.
 W Blackstone, Commentaries on the Laws of England, (1st Edition, Clarendon Press, 1765)
 The presumption of innocence plays a fundamental role in criminal trials as it is only sensible that the prosecution is required to prove guilt instead for the accused to prove innocence. This is true in most nations, as the presumption of innocence is a legal right of the accused in criminal trials, which signifies that the legal burden of proof is thus on the prosecution who has to collect and present enough compelling evidence to convince the decider of facts, which may be the trial jury or judge who is restrained and ordered by law to consider only actual evidence and testimony that is legally admissible, and in most cases lawfully obtained, that the accused is guilty beyond reasonable doubt.
 I Dennis, Law of Evidence (4th edition, Sweet & Maxwell, 2010), pg 440
 Woolmington v DPP  A.C. 462, “Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt subject to… the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner… the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”
 I Dennis, Law of Evidence (4th edition, Sweet & Maxwell, 2010), pg 460
A Ashworth & M Blake, ‘The Presumption of Innocence in English Criminal Law’ (1996) Crim. L.R. 306, at 309, ”It is a fair conclusion from the evidence presented here that many those who prepare, draft and enact criminal legislation for England and Wales either fail to recognise these violations of the presumption of innocence or its application in this sphere, or fail to appreciate what can be achieved by placing only an evidential burden (rather than the legal burden on defendants in respect of defence)”
 P Popat, ‘Reverse Burden of Proof: Developments in the Law’ 13, The House of Lords decided that the Human Rights Act did not give rise to a legitimate expectation that the DPP would exercise his discretion not to consent and that the decision of the DPP was not amenable to judicial review. As a result, the questions as to the reverse burden and its compatibility with Article 6(2) did not need to be answered.
 R v Lambert  EWCA Crim 2860. On the facts, the defendant was charged under section 28 of the Misuse of Drugs Act 1971 which sets out the offence of possession of controlled drugs with the intent to supply. Section 28(2) provides a defence whereby the defendant can prove that he did not know or suspect or have reason to suspect that the items which were in his possession were in fact controlled drugs.
 Even though the ratio of the case carried no weight on this matter as the case was brought upon the UK courts before the HRA came into force, much was discussed in obiter. The courts envisioned the application and impact of the HRA on such cases where statutory reversals take place, how would automatic reversals infringe art.6(2) ECHR and how defendants would rely on art.6(2) ECHR to escape the legal burden of proof.
 On this point Lord Hutton dissented, finding that the imposition of a legal burden on the accused was proportionate.
 Per Lord Steyn, R v Lambert  EWCA Crim 2860, “accused must prove on the balance of probabilities that he did not know that the package contained controlled drugs. If the jury is in doubt in this issue,they must convict him…a guilty verdict may be returned in respect of an offence punishable by life imprisonment even though the jury may consider that it is reasonably possible that the accused had been duped.”
 P Popat, ‘Reverse Burden of Proof: Developments in the Law’, “Therefore, although Article 6(2) is in absolute terms, it is not regarded as imposing an absolute prohibition on reverse onus clauses. What is required is that States confine presumptions of fact or law within reasonable limits.”
 Salabiaku v France (1991) 13 E.H.R.R. 379, “Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence. This test depends upon the circumstances of the individual case.”
 Salabiaku v France (1991) 13 E.H.R.R. 379, “as a matter of general principle therefore a fair balance must be struck between the demands of the general interest of the Community and the protection of the fundamental rights of the individual”.
 Per Lord Hope, R v DPP Ex p. Kebeline  2 A.C. 326, 1)What does the prosecution have to prove in order to transfer the onus to the defence? 2)What is the burden on the accused (does it relate to something which is likely to be difficult for him to prove)? 3)What is the nature of the threat faced by society which the provision is designed to combat?
 Reverse onuses and the presumption of innocence: in search of principle Ian Dennis
 Janosevic v Sweden (2004) 38 E.H.R.R. 22 ” In employing presumptions in criminal law, the Contracting States are required to strike a balance between the importance of what is at stake and the rights of the defence; in other words, the means employed have to be reasonably proportionate to the legitimate aim to be achieved. ”
 I Dennis, Law of Evidence (4th edition, Sweet & Maxwell, 2010), pg 474
 Serious or Indictment offences also known as mala in se.
 Regulatory or summary offences also known as mala prohibita.
 State v Coetzee  2 LRC 593, “….the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become. The starting point of any balancing inquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences, massively outweighs the public interest in ensuring that a particular criminal is brought to book…Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system…”.
 R v Lambert  EWCA Crim 2860, “A reversal could happen in cases of strict responsibility where offences are concerned to regulate the conduct of a certain activity in the public interest”
 Per Lord Clyde, R v Lambert  EWCA Crim 2860, An example of “the promotion of health and safety”: “These kinds of cases may properly be seen as not truly criminal. Many may be relatively trivial and only involve a monetary penalty. Many may carry with them no real social disgrace or infamy”.
 Davies v Health and Safety Executive  EWCA Crim 2949.
 I Dennis, Law of Evidence (4th edition, Sweet & Maxwell, 2010), pg 476
 I Dennis, Law of Evidence (4th edition, Sweet & Maxwell, 2010), pg 464
 I Dennis, Law of Evidence (4th edition, Sweet & Maxwell, 2010), pg 464
 Per Lord Woolf, AG of Hong Kong v Lee Kwong-Kut  AC 951 “…If the prosecution retains the responsibility for proving the essential ingredients of the offence, the less likely it is that an exception will be regarded as unacceptable…”
 AG’s Reference (No.1 of 2004)  EWCA Crim 1025.
 Sliney v Havering London Borough Council  EWCA Crim 2558.
 I Dennis, Law of Evidence (4th edition, Sweet & Maxwell, 2010), pg 465
 P Popat, ‘Reverse Burden of Proof: Developments in the Law’
 P Popat, ‘Reverse Burden of Proof: Developments in the Law’, Lord Hope concluded that the knowledge contained in Section 28 was not an essential element and there were sound policy reasons for construing the legislation in such a way as not to put the initial burden of proving knowledge on the prosecution.
 Pepper v Hart  A.C. 593 ,It is to be noted that when there is difficulty in interpreting the intentions of the Parliament, the courts can always resort to the use of Hansards,
 AG’s Reference (No.1 of 2004)  EWCA Crim 1025.
 Per Lord Bingham, Sheldrake v DPP  UKHL 43,” …The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary… The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case…”