Authored By: Ashley Voon Xuan Yu
Brickfields Asia College
Introduction
The case of Woolmington v DPP[1] has established the golden thread rule, a well-known principle that has made its mark in the English Courts. This landmark decision held that it is wrong for courts to pass the burden of proof to the defendant and such burden should instead be borne by the prosecution. This however remains in sticky grounds, as the integration of the European Convention of Human Rights resulted in a tumultuous issue. When does an allocation of the burden of proof on the defendant result in a violation of Article 6, the right to fair trial of the ECHR?[2] Not to mention with the integration of the Human Rights Act 1988[3], how would the right to fair trial be safeguarded?
Generally, the prosecution holds the burden of proving the accused’s guilt of the offence. This is due to the presumption of innocence as mentioned above. This is simply due to the fact that the individual should not be expected to have the same resources as the state, therefore the state holds a larger responsibility to ensure justice and fairness. However, there are exceptions to this golden thread under common law. These include the defences of insanity and diminished responsibility. It is to note that they are only held up to a lower standard of balance of probabilities instead of beyond reasonable doubt.
The burden and standard of proof on insanity lies on the alleged. The prosecution would be held to satisfy the jury beyond reasonable doubt if the prosecution alleges it.[4] On the other hand, the accused would only bear the burden of proof on the balance of probabilities when a legal burden is placed.[5] Additionally, statutory exceptions to the general rule are enacted by Parliament either explicitly or impliedly, where the burden of proof towards the accused is placed. This can be done based on the linguistic phrasing and wording by the statue drafted by Parliament.
This can be seen in cases such as Edwards[6], where the nature of the crime committed was a regulatory offence, where he was selling alcohol without a licence. It was held by the courts that once the prosecution proved the sale of the alcohol, it was the defendant’s burden to bear the legal burden to prove the fact that he had a licence. The reasoning behind this decision is that the information of the possession of a licence is something within the defendant’s knowledge.
Six Cardinal Principles
This case stands as one of the many cases that shows the statutory exceptions in the law. However, a key question still remains. How can courts decide the allocation of burden when Parliament remains unclear with the wording of statutory reversals? To solve this issue, Ian Dennis created the six cardinal rules to ensure that the reversal of burden protects the accused rights to a fair house.
Judicial Deference
The nature of Parliamentary Soveriegnity in the United Kingdom requires that courts show a degree of deference to parliament. Lord Nicholls holds that courts have the power to depart from a statutory reversal if it meant that the presumption of innocence is affirmed.[7] Parliament intention does not hold its weight against the presumption of innocence. This can be seen in the decision in Sheldrake v DPP[8], where a stronger weight was hold on the presumption of innocence by courts rather than the legislation. It is argued that while a deference too strong may be undesirable, the presumption of innocence must be protected.
Peculiar Knowledge
Peculiar knowledge is often confused with ease of proof. However, Dennis states that the reversal of burden would be proportionate when the accused possesses peculiar knowledge to prove the legal burden and that it is easier for the accused to prove rather than the prosecution. This can be seen in the decision in Lambert[9], where the burden was reversed due to the fact that the peculiar knowledge possessed by the defendant. This principle can be further explored in Kebeline.[10]
Seriousness of the Offence
The classification of offences should also be taken into consideration. The Lawton Formula could be applied. Distinguishing between offences that are mala in se and mala prohibita when allocating reverse burdens allows for an easier justification of the reverse burden. However, it is argued that determining the reversal of burdens based on the severity of offences can lead to very problematic outcomes, as the categorization of such offences rely on highly subjective and arbitrary standards, for example the economic situations of the accused and the conduct. As such, this factor does not hold a strong weight in determining the reversal of the burden of proof.
Maximum Penalty
The stronger the weight of the offence, the more the presumption of innocence should be prioritised. While maximum penalties can be used to measure the seriousness of the offence, it is argued that the application of maximum penalty as a factor of consideration has been inconsistent at best.
Proportionality and the Human Rights
The presumption of innocence should also be considered as a factor. In Edwards, the application of the burden reversal, specifically s101 of the Magistrates’ Court Act as suggested by Lawton LJ is inconsistent, with only a pattern in cases of regulatory legislation that requires the defendant to have a licence. As such, it is argued that courts should take into account of the facts of each case, while bearing in mind certain policy considerations to satisfy a shift in burden that adheres to the right to fair trial.
Conclusion
In conclusion, ever since the integration of the ECHR and the HRA into English legislation, multiple principles have been created to make sure courts ensure that the accused retains their rights to fair trial. This highlights the courts efforts to ensure that the rights of the accused are protected, showing their adherence to protecting justice and fairness, as well as the rule of law.
Bibliography
Cases
- Woolmington v DPP [1935] AC 462
- R v Robertson [1968] 1 WLR 1767
- R v Carr-Briant [1943] 1 KB 607
- R v Edwards [1974] 1 QB 27
- R v Johnstone [2003] UKHL 28
- Sheldrake v DPP; Attorney General’s Reference No 4 [2002] UKHL 58
- R v Lambert [2001] UKHL 37
- R v DPP ex p Kebilene and Others [2000] Crim App Rep 275
Statutes / Conventions
- Human Rights Act 1998
- Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) (ECHR) art 6
[1] Woolmington v DPP [1935] AC 462
[2] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) (ECHR) art 6
[3] Human Rights Act 1988
[4] R v Robertson [1968] 1 W.L.R. 1767
[5] R v Carr-Briant [1943] 1 KB 607
[6] R v Edwards [1974] 1 QB 27
[7] R v Johnstone [2003] UKHL 28
[8] Sheldrake v DPP [2002] UKHL 58
[9] R v Lambert [2001] UKHL 37
[10]R v DPP ex p Kebilene and Others [2000] Crim App Rep 275
