To what extent has the 'presumption of innocence' enunciated in the case Woolmington v

DPP [1935] AC 462 vis-a-vis criminal cases changed in light of the Human Rights Act 1998?

Discuss.

History

The sixth century Digest1 of Justinian (22.3.2) provides, as a general rule of evidence:

Ei incumbit probatio qui dicit, non qui negat - Proof lies on him who asserts, not on him who

denies”. It is there attributed to the second and third century jurist Paul2. Similar to its

Romanic predecessor, Islamic law also holds the principle that the onus of proof is on the

claimant, based on a hadith3 documented by Imam Nawawi4.

The collapse of Western Modern Empire gave way to the rise of feudalistic5 justice system.

Within it, there was no concept of presumption of innocence. Rather, it was the duty of the

accused to prove his innocence, either by means of taking an oath of innocence or through

undergoing life-threatening ordeals. It could thus be reasonably inferred that the

defendants were required to prove their innocence beyond reasonable doubt.

Contemporary Development

1 Also known as the Pandects (Latin: Digesta seu Pandectae, adapted from Ancient Greek ‘pandektes’, "all-containing"), is a name given to a compendium or digest of Roman law compiled by order of the emperor Justinian I in the 6th century (AD 530-533). It spans 50 volumes, and represented a reduction and codification of all Roman laws up to that time.2 Julius Paulus Prudentissimus3 Often translated as "prophetic traditions", meaning the corpus of the reports of the teachings, deeds and sayings of the Islamic prophet Muhammad.4 Abu Zakaria Mohiuddin Yahya Ibn Sharaf al-Nawawi, popularly known as al-Nawawi, an-Nawawi or Imam Nawawi (1233–1277)5 Derived from Feudalism - . The political, military, and social system in the Middle Ages, based on the holding of lands in fief or fee and on the resulting relations between lord and vassal.

The presumption of innocence presumes the defendant to be innocent until proven

guilty, with the prosecution required to prove all the elements of the offence beyond

reasonable doubt. This principle was laid down by Viscount Sankey6 in Woolmington v DPP7 :

“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 what I have

already said as to the defence of insanity and subject also to any statutory exception...”

This ‘golden thread’ was subsequently affirmed in Article 6(2)89 of the European Convention

on Human Rights10.

While not a burden of proof per se, the defendant in a criminal trial has an evidential

burden11 where he is seeking to rely on any common law defence other than insanity. Once

the defence becomes a live issue, the prosecution must again prove beyond reasonable

doubt that facts dictate otherwise before the jury can convict.

Woolmington’s decision was profound as it changed the previous law by rejecting

Foster’s doctrine of the presumption of malice12. Secondly, its reference to the duty of the

prosecution to prove the accused’s guilt, and holding that the prosecution also had the

6 He has since been recognised as Lord Sankey LC7 Woolmington v DPP [1935] AC 462.8 Hereafter known as ‘Art6(2)’9 ‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.’10 Hereafter referred to as ‘ECHR’11 An obligation on a party who wishes to raise a particular issue to point to some evidence that is capable of making the issue a live one, fit for consideration by a jury.12 In that case Swift J, an experienced judge had directed the jury that once the prosecution had proved that the deceased had died at the hands of the accused, then that was presumed to be murder unless the defendant could satisfy the jury that it was an accident. In this way the judge clearly placed on the defendant the burden of proof of lack of mens rea. Though heavily criticized by today’s standards, there was considerable authority for it was an accurate statement of law in that time.

burden of disproving any common law defences that the accused had specifically raised13.

However it is doubtful how far it has had either effect, even after the Human Rights Act

199814.

Exceptions to the presumption

1. Insanity

Apart from his Lordship’s exclusion in Woolmington, the authority of McNaghten’s15

case clearly placed the burden of proof of insanity on the accused16 because ‘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…’17 However in H v UK 18, the

European Court of Human Rights19 ruled that the insanity exception did not breach Art 6(2)

since the main concern was the presumption of sanity.20

2. Express Statutory Reversal

His Lordship also excluded “any statutory exception” from the scope of presumption of

innocence. Statutory exceptions are commonly said to be of two types: express and

implied.21

13 I Dennis, The Law of Evidence, 4th edition, 458. 14 Hereafter known as ‘HRA 1998'15 McNaghten (1843) 10 Cl. & Fin.200.16 Ian Dennis, The Law of Evidence, 4th edition, 459.17 Charanjit Singh Landa and Mohamed Ramjohn, Unlocking Evidence, 2nd edition, 35.18 H v United Kingdom Appn No 15023/89, 4 April 1990 (unreported).19 Hereafter known as ‘ECtHR’20 Maureen Spencer and John Spencer, Evidence, 2nd edition, 14.21 I Dennis, The Law of Evidence, 4th Edition,460 -461.

When express statutory provision obliges the accused to prove his defence, it will

automatically shift a legal burden on him to prove his defence on the balance of

probabilities without any assessment attached.

Ashworth and Blake22 demonstrated the extent to which Parliament departed from

Woolmington’s principle in relation to indictable offences. Their research found that no

fewer than 40 per cent of offences triable in the Crown Court violated the presumption of

innocence by requiring the defendant to prove a statutory defence or disprove at least one

element of the offence.23

3. Implied Statutory Reversal

There are number of cases where an enactment may be constructed as impliedly

imposing a legal burden on the accused. S.101 of the Magistrates Courts Act 1980 lays down

the general principle in respect of summary offences. The effect of the section is that where

the conduct of the accused creates an offence but in circumstances where the statute

creates a defence in respect of an exception, exemption, proviso, excuse or qualification,

the burden of proving of the defence will be placed on the accused. The principle originates

partly from the notion that it is favourable for the accused to prove that he falls within the

scope of defences because of the access to the relevant information and partly from the

original provision enacted in the s.39(2) of the Summary Jurisdiction Act 1879.24

Presumption of Innocence: Post-HRA 1998

22 Ashworth and Blake (The Presumption of Innocence in English Criminal Law, 1996 Crim. L.R. 306, at 309)23 I Dennis, The Law of Evidence, 4th Edition, 461. 24 Charanjit Singh Landa and Mohamed Ramjohn, Unlocking Evidence, 2nd edition, 37.

Since 2000, if the courts conclude that there is a violation of Art6(2), it can either make

a declaration of incompatibility under s.4 of the HRA 1998 or, alternatively, ‘read down’ the

provision under s.3, so that it becomes convention compliant. In practice the latter is mostly

the preferred course for appellate courts.25

Lambert26 was the first case that demonstrated this effect27 - the appellant was

convicted of possession of a class A controlled drug with intent to supply, contrary to s.5(3)

of the Misuse of Drugs Act 197128. He was found in possession of a bag which contained the

substance, and his defence, under s.28, was that he neither knew nor suspected that the

bag contained the drugs and was required to bear the legal burden of proving this defence.

He appealed on the grounds that the reversed onus29 in the provision of s.28 conflicted with

the presumption of innocence guaranteed by Art6(2).30 The Court of Appeal dismissed his

appeal, as the House of Lords, citing that the law doesn’t operate retrospectively31.

Nonetheless, in the obiter the majority of the House held the reverse legal burden of

s.28 was incompatible with Art6(2), as it had a high risk of wrongful conviction32. With the

result that s.28 must be read as if it imposed only an evidential burden on the accused, the

word ‘proves’ as used in s.28 must be construed to mean ‘give sufficient evidence’, by

employing s.3 of the HRA 1998.

25 Durston, Evidence: Text and Material, 103.26 R v Lambert [2001] UKHL 37; [2002] 2 A.C; [2001] 2 Cr. App.27 This case is also a relevant example as to the application of an express statutory reversal28 Misuse of Drugs Act 1971, s.5(3).29 Reversed legal burden30 P Murphy, Murphy on Evidence,10th edition, 103.31 This happened before the HRA 1998 came into force.32 Referring to Lord Steyn’s judgment: “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.”

Test of proportionality – how could a reverse onus to be justified?

As a result of Lambert, it is submitted that the imposition of reverse legal burdens of its

prima facie33 incompatible with Art6 of the ECHR, and must be scrutinized with great care in

light of the principle of proportionality. 34

However, House of Lords also made it clear that not all legal burdens were placed on a

defendant in criminal trial violated the ECHR or Art6(2) in particular. The court held, it was

not an absolute right in all the circumstances. In Salabiaku v France 35, the ECtHR stated that

some reverse burdens of proof are ‘convention compliant.36

Hence the courts must ensure every reverse onus clause in English law must be

measured for convention compliance. Although it is apparent that the onus on those

seeking to persuade the courts that a reverse burden is necessary is heavy, the courts

continue to uphold such provisions. In Sheldrake37 their Lordships also concluded that when

conducting an assessment of proportionality, it was necessary to balance society’s interest

in the effective suppression of a social mischief against the defendant’s right to a fair trial.

When weighing up these two competing interests, several factors38 could be considered.

This test depends upon the circumstances of the individual case. It follows that a

legislative interference with the presumption of innocence requires justification and must

33 Latin for ‘on its face’. Refers to establishing a case by firstly looking at the bare facts.34 P Murphy, Murphy on Evidence,10th edition, 90. 35 Salabiaku v France (A/141-A) (1991) 13 E.H.R.R. 379 ECtHR.36 Gregory Durston, Evidence: Text and Material,104. 37 Sheldrake v DPP [2004]UKHL 43.38 Amongst them were the severity of the offence in terms of potential sentence, the ease of proof for one party or the other in relation to establishing the reverse burden, and the danger of convicting the innocent.

not be greater than is necessary. The test of proportionality requires courts to consider

whether there was a necessity to impose a legal burden on the accused.39

Ian Dennis’ six cardinal rules

Ian Dennis has summarized the following factors to be taken into account when applying

the test of proportionality - judicial deference, classification of the offence, construction of

criminal liability, significance of maximum penalty, ease of proof and peculiar knowledge,

presumption of Innocence.

Judicial deference

In response to the HRA 1998, how far should the courts defer to the judgment of

Parliament? In the case of Johnstone40, Lord Nicholls has stressed that “Parliament, not the

court, is charged with…. what should be the constituent elements of a criminal offence, the

court will reach a different conclusion from the legislature only when it is apparent the

legislature has attached insufficient importance to the fundamental right of an individual to

be presumed innocent until proved guilty.” Lord Woolf CJ took a similar approach41 , ruling

that the assumption should be that Parliament would not have made an exception to the

presumption of innocence without good reason. 42

However, in Sheldrake Lord Bingham cast doubt on Lord Woolf’s proposition, saying

that such an approach may lead the courts to give too much weight to the enactment and

too little to the presumption of innocence and the obligation imposed by s3 of the HRA

39 P Murphy, Murphy on evidence, 10th edition, 92.40 Johnstone[2003] UKHL 37.41 Attorney-General’s Reference (No.1 of 2004) [2004] EWCA Crim 1025.42 I Dennis, The Law of Evidence, 4th Edition, 475.

1998. Nonetheless, he reiterated in Brown v Scott 43that substantial respect should be paid

by the courts to the considered decisions of democratic assemblies and governments.

The divergence of views leaves the issue rather unclear. However, Lord Hope’s

statement in Kebilene44, which required the courts to make a distinction between the

legitimate aim and the proportionality, could be considered. In identifying a legitimate aim

requires the courts to consider the policy goals of criminalisation being pursued by the

relevant provision. Then, the courts should ask themselves whether the imposition of the

reverse onus is proportionate to achieve Parliament’s intentions.

Ian Dennis stressed that a strong principle of deference would seem to be

inappropriate, if there is no evidence that the Parliament gave thought to the presumption

of innocence when it enacted the reverse onus. It should always be remembered that the

importance of Art6(2) should always prevail. It is for the state to justify derogation from the

presumption of innocence and justifying arguments should be compelling if they are to

succeed. 45

Classification of Offences

In Sheldrake , Jack J referred to the recognised distinction between truly criminal

offences and those which are regulatory and suggested that it is easier to justify an

interference with the presumption of innocence the lower in the scale the offences is. 46

43 Brown v Scott [2003] 1 A.C. 68144R v Director of Public Prosecutions, Ex Parte Kebeline and Others [1999] UKHL 4345 I Dennis, The Law of Evidence, 4th Edition, 474-476. 46 I Dennis, The Law of Evidence, 4th Edition, 476.

However classification of offences into mala in se47 and mala prohibita48 is said to be

problematic as a guide to justifiable proportionality of a reverse onus. First, the distinction is

not particularly definitive. If it depends on the moral quality of the act then it is likely to be

contestable, while some offences are attached with the morally reprehensible colour but it

only punishable under regulatory legislation only with a fine, as illustrated in Davies v

Health and Safety Executive49. If the distinction depends on penalties, so that regulatory

offences are characterised as generally punishable by fine, however many regulatory

offences now carry the possibility of a custodial sentence on conviction. Moreover, some

summary offences punishable only by a fine may be far from “mere regulatory criminality”

but may be “of great social and emotional importance to a large number of people” 50

Secondly, it does not follow that a statutory defence to a regulatory offence will be any

easier for the defendant to prove than an equivalent defence to a truly criminal offence.

There is no necessary relationship between the degree of onerousness 51of a reverse onus

and the type of crime involved.52

Summing up, the classification is shown to be dependent on the judges’ personal

opinion, which may be different from each other. In Sheldrake, two of the divisional court

judges thought that an offence was not a regulatory matter, while Herinques J concluded

the contrary.

47 (the singular is malum in se) is a term that signifies crime that is considered wrong in and of itself. The phrase is Latin and literally means wrong in itself.48 the Latin term for "wrong because they are prohibited."49 Davies v Health and Safety Executive [2002] EWCA Crim 2949; an employer was charged under health and safety legislation with failure to ensure that his employees were not to exposed to health and safety risks. The relevant employee had died.50 I Dennis, The Law of Evidence, 4th Edition, 476. 51 Having or involving obligations or responsibilities, especially legal ones, that outweigh the advantages52 I Dennis, The Law of Evidence, 4th Edition, 477.

Construction of criminal liability: elements of offences and defences.

The general rule is that presumption of innocence requires the prosecution to prove all

essential elements of offences. In Attorney-General for Hong Kong v Lee Kwong-kut 53Lord

Woolf remarked that if the prosecution retained responsibility for proving the essential

ingredient of the offence, the less likely it is that an exception will be regarded as

unacceptable. In Lambert Lord Hope distinguished between the essential elements of the

offence and defence of the type referred to in Edwards54, suggest that reversing onus of

such defence is more easily justified.

In the same case, Lord Steyn noted the difference between the element of the offence

and defensive issues was sometimes only a matter of drafting technique. He suggested that

it was preferable to focus on moral blameworthiness. Defences such as those discussed in

Edwards should be distinguished from “other cases where the defence is so closely linked

with mens rea and moral blameworthiness that it would derogate from the presumption of

innocence to transfer the legal burden to the defendant”. In AG’s Reference (No.4 of 2002)

55the courts held that Art6(2) requires the prosecution to prove the ‘true nature’ of the

offence. Application of this principle did not depend on formal statutory separation of

elements and defences.

Significance of maximum penalty

Generally the weight of presumption of innocence ought to increase in proportion to

the gravity of the offence. In Lambert, Lord Steyn attached importance to the penalty of life

imprisonment when reading down the reverse onuses in that case. In Sheldrake, the House

53 Attorney-General for Hong Kong v Lee Kwong-kut [1993] A.C.951.54 R v Edward [1975] QB 27.55 Attorney-General’s Reference (No.4 of 2002) [2003]EWCA Crim 762.

upheld the reverse onus, as the maximum penalty of the offence was six months. In AG’s

Reference (No.4 of 2002) the House read down the reverse onus, where the maximum

penalty was 10 years. These 3 cases were deemed to be compatible of the guideline.

However, in Johnstone the maximum penalty for the offence is same with the

abovementioned AG’s Reference case, yet the House upheld the reverse onus. It would

seem that maximum penalties are a very uncertain guide as to whether a reverse onus will

be held to be proportionate to the legitimate aim of the offence in question. It ought to be

the case that the more serious the offence the more compelling should be the justification

for a reverse onus, but application of such a principle has been patchy to say the least. 56

Ease of proof and peculiar knowledge

Ease of proof is by no means the same concept as peculiar knowledge. In some

circumstances defendant doesn’t have peculiar knowledge (i.e possession of a licence),

because that knowledge is available to prosecution from evidence (i.e registers), but it is

more burdensome and costly to locate it. On the other hand, sometimes defendant does

have peculiar knowledge57, but this doesn’t mean that it will be easier for him to prove the

absence of mens rea than prosecution to prove its presence. 58

In Kebilene Lord Hope suggest that in striking the balance required by the principle of

proportionality, one of the questions to be asked was whether the burden on the defendant

56 I Dennis, The Law of Evidence, 4th Edition, 479.57 As he has privilege to access to his intention, knowledge or belief.58 I Dennis, The Law of Evidence, 4th Edition, 480.

related to something that was within his knowledge or to which he readily had access. This

suggestion is followed by Lord Nicholls in Johnstone, he referred to defendant’s own

knowledge or ready access as alternative relevant factors in a decision about compatibility

of a reverse onus.

Conversely, it should also be remembered that in Lambert the factor of the defendant’s

peculiar knowledge did not prevail over considerations of a maximum penalty of life

imprisonment and the unfairness of convicting the defendant where the jury thought that

his story was as likely to be as true as not.

A reverse onus is to be justified by reference of ease of proof the focus should be on

the weight impose on the defendant but not look into whether it would be difficult for the

prosecution to prove guilt, as even where proof of guilt would be difficult for the

prosecution, doesn’t mean that it is easy for defendant to disprove his guilt.

However in Makuwa59 the Court of Appeal upheld a reverse onus under s.31 of the

Immigration and Asylum Act 1999, almost entirely on the basis of the difficulty of proof for

the prosecution. The court glossed over any difficulties of proof that the defendant might

have, emphasising instead the policy need to maintain proper immigration controls by

restricting the use of forged passports.

In contrast the Divisional Court held in DPP v Wright60, that a burden on the defendant

to prove that his hunting was “exempt”, would be “oppressive, disproportionate, unfair, and

an unnecessary intrusion on the presumption of innocence.” Schedule 1 of the Hunting Act

2004 contained a list of exempt forms of hunting: some of the matters would be within

59 Makuwa[2006] EWCA Crim 175.60 DPP v Wright [2009] EWHC Crim 105.

defendant’s knowledge, some would be easy for him to prove, but some would be neither.

In these circumstances the Act should be read as imposing only an evidential burden on the

defendant; once the prosecution knew which form of exemption was in issue it would not

be unduly burdensome to require them to disprove it.

Presumption of Innocence

Presumption has been said to be the foundation of the right to fair trial under Art 6.

Domestic courts that have to decide on justifiability of reverse onuses will generally be

doing so before then trial when rulings on the burden of proof have to be made.

There are 3 different conceptions of the presumption. The first conception focuses

more on process than outcome; the presumption is seen as a norm of fairness rather than

an instrument to ensure accuracy. This is the Strasbourg court’s approach which has

emphasised procedural of presumption of innocence. The second conception of the

presumption, which described as a morally substantive conception, emphasises fairness in

both process and outcome. The third one is described by Robert and Zuckerman as “a

normative moral and legal standard encapsulating a strong commitment to avoiding

wrongful convictions, rather than a recipe for factual inference and adjudication” This

characterises the presumption as a device for the avoidance of a particular outcome of

criminal proceedings. It becomes a protective device rule for the defendant against the risk

of error in adjudication61.62

English law favours a more morally substantive view of the presumption of innocence.

Lord Steyn conceived the presumption as ensuring the issues of the defendant’s moral

blameworthiness had to be proved by the prosecution. One of Lord Steyn’s reasons for

rejecting a reverse onus in Lambert was that it would oblige the court to convict the

defendant where it thought his version of fact was as likely to be true as not. This was

thought to be unfair and unacceptable for an offence punishable with life imprisonment.

Lord Bingham took a similar approach in Attorney- General’s Reference (No 4 of 2002) to

reverse the onus under s11(2) of the Terrorism Act 2000.

Conclusion

Colin Tapper summarises presumption of innocence to be “a fundamental rule of

criminal procedure” and it is rightly so. And yet Lambert’s case stands out to show us just

exactly what happens when this ruling is carelessly ignored. Some legal systems today have

employed de jure63 presumptions of guilt, such as at an order to show cause criminal

proceeding. Otherwise, accusations of presumption of guilt generally do not imply an actual

legal presumption of guilt, but rather denounce failures to ensure that suspects are treated

well and are offered good defence conditions. Examples include the wrongful detention of

suspects in Guantanamo Bay64

61 ‘Judgement’62 I Dennis, The Law of Evidence, 4th Edition, 483. 63 expression that means "concerning law", as contrasted with de facto, which means "concerning fact".64 Also referred to as Guantánamo, G-bay or GTMO (pronounced 'gitmo'), a United States military prison located within Guantanamo Bay Naval Base, which fronts on Guantánamo Bay in Cuba.

Art6(2) will continue to have a lasting impact on the UK’s legal systems, as well as

throughout the rest of the European Union. Yet English judges take pride in the English

judicial system and will seek to disregard European legislation unless another Lambert

occurs, but it has brought justice that much closer to a defendant’s reach. As for Ian Dennis’

invaluable cardinal principles, while it cannot be viewed as the final solution to the abuse of

the presumption of innocence, it has also opened up more doors that were never there

before. It can be concluded therefore that the presumption of innocence is here to stay.

Bibliography

Books

Dennis I, The Law of Evidence (4th edn, Sweet & Maxwell 2013)

Murphy P, Murphy on Evidence, (10th edition OUP, Oxford 2010)

Charanjit S and Mohamed R, Unlocking Evidence (2nd edition, Routledge 2013)

Spencer M and Spencer J, Evidence, (2nd edition)

Durston G, Evidence: Text and Material

Articles

Dennis I, ‘Reverse Onuses and the Presumption of Innocence: In Search of Principle’ [2005]

Crim 18 901-936

Ashworth and Blake, 'The Presumption of Innocence in English Criminal Law,' 1996 Crim. L.R.

306, at 309

Table of Statutes

Human Rights Act 1998

Magistrates Courts Act 1980, s.101

Summary Jurisdiction Act 1879, s.39(2)

Misuse of Drugs Act 1971, s.5(3).

Misuse of Drugs Act 1971,s.28.

Hunting Act 2004, Schedule 1.

Terrorism Act 2000,s.11(2)

European Convention on Human Rights, Art6(2)

s.31 Immigration and Asylum Act 1999

Table of Cases

McNaghten (1843) 10 Cl. & Fin.200.

Woolmington v DPP [1935] AC 462.

H v United Kingdom Appn No 15023/89, 4 April 1990 (unreported).

R v Lambert [2001] UKHL 37; [2002] 2 A.C; [2001] 2 Cr. App.

Salabiaku v France (A/141-A) (1991) 13 E.H.R.R. 379 ECtHR.

Sheldrake v DPP [2004]UKHL 43.

Johnstone[2003] UKHL 28.

Attorney-General’s Reference (No.1 of 2004) [2004] EWCA Crim 1025.

Brown v Scott [2003] 1 A.C. 681

Davies v Health and Safety Executive [2002] EWCA Crim 2949

R v Director of Public Prosecutions, Ex Parte Kebeline and Others [1999] UKHL 43

Attorney-General for Hong Kong v Lee Kwong-kut [1993] A.C.951

R v Edward [1975] QB 27.

Attorney-General’s Reference (No.4 of 2002) [2003]EWCA Crim 762.

Makuwa[2006] EWCA Crim 175.

DPP v Wright [2009] EWHC Crim 105.