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‘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’.
This famous statement of the nature of the legal burden of proof in criminal trials is, in effect, simply a restatement of a fundamental presumption that underpins our criminal justice system namely, that a person is presumed to be innocent until proven guilty. In McIntosh v Lord Advocate  3 WLR 107, Lord Bingham of Cornhill referred to the judgment of Sachs J in State v Coetzee  2 LRC 593 where the significance of this presumption was explained. The learned judge said:
‘...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’.
Despite the presumption of innocence and the famous statement of Viscount
Sankey, neither the courts nor the legislature have been slow to impose a
legal burden of proof on a defendant in a criminal case. At common law, as
Viscount Sankey himself recognised, if a defendant runs the defence of insanity
then he will bear the legal burden of proof on that issue. In addition there
are numerous statutes that expressly place the legal burden of proof on the
defendant, together with other statutes which the courts have interpreted
as placing the legal burden of proof on the defendant ‘by necessary
implication’. In research conducted by Ashworth and Blake, it was found
that no less than 40% of trials in the Crown Court required the defendant
to prove either a statutory defence or disprove at least one element of the
offence (Ashworth and Blake 1996). Failure to do so would result in conviction
and it seems quite clear that in our constitutional democracy, significant
inroads on the presumption of innocence have been made.
Whenever the common law or statute places a burden of proof on a defendant, whether expressly or by implication, consideration must now be given to the jurisprudence concerning the presumption of innocence that has arisen as a result of the European Convention on Human Rights (ECHR). Article 6(2) of ECHR states that ‘Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law’. Now that the Human Rights Act 1988 is in force, the court has power to make a declaration that provisions in legislation are incompatible with a right under the Convention. Unsurprisingly perhaps, the appellate courts have, on several recent occasions, been faced with arguments that placing a legal burden of proof on a defendant in a criminal case contravenes Article 6(2) of the Convention. The essence of the argument is not difficult to appreciate. If the defendant faces the possibility of conviction on the basis that the specified offence deems (or presumes) certain essential facts to exist unless the defendant can prove to the contrary, that derogates from the presumption of innocence and is contrary to Article 6(2). The same argument can be advanced if a statute requires that a defendant be convicted unless he can prove certain facts as part of his defence. It is the most recent decision in this area, Sheldrake v DPP  EWHC 273, which forms the subject of this casenote.
‘(2) It is a defence for a person charged with an offence under subsection (1)(b)...to prove that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath...remained likely to exceed the prescribed limit.’
The magistrates found the following facts proved:
The magistrates concluded that s 5(2) imposed a legal burden of proof on the
appellant and that he had not proved that there was no likelihood of his driving
whilst in excess of the prescribed alcohol limit. In reaching that conclusion,
the magistrates rejected the appellant’s contention that the likelihood
of driving was an essential element of the offence. It was further held that,
if they were wrong about that, s 5 (1) (b) and s 5(2) pursued a legitimate aim,
namely preserving public safety by seeking to prevent persons taking to the
road whilst unfit to drive by reason of alcohol. The measures imposed by the
statute were proportionate to the legitimate aim pursued and s 5(2) did not
infringe Article 6(2) of the Convention. Accordingly, he was convicted.
The magistrates posed three questions for the appeal court.
Allowing the appeal and quashing the conviction, the court held that:
‘Presumptions of fact or law operate in every legal system. Clearly, the convention does not prohibit such presumptions in principle. It does, however, require the contracting states to remain within certain limits in this respect as regards criminal law....[Article 6(2)] requires states to confine [presumptions] within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.’
The leading English case is R v Lambert  2 Cr App R 511, HL.
Here, the court was considering the offence of possession of a controlled
drug with intent to supply contrary to the Misuse of Drugs Act 1971. Section
28 of the 1971 Act provides that it is a defence for the accused to prove
that he neither knew of nor suspected nor had any reason to suspect the existence
of some fact alleged by the prosecution which it was necessary for the prosecution
to prove. The House of Lords held that, applying ordinary principles of construction
and without reference to the Human Rights Act, s 28 imposed a legal burden
of proof on the accused to prove an absence of relevant knowledge, suspicion
or reason to suspect. The House then considered whether placing a legal burden
of proof on an accused derogated from Article 6(2) of the Convention. It was
held that a statute may place a legal burden of proof on a defendant, despite
Article 6(2), in pursuit of a legitimate aim so long as the nature of the
burden is proportionate to the aim to be achieved.
Lord Steyn cited with approval a statement made by Dickson CJ in the Canadian Supreme Court decision of R v Whyte (1988) 51 DLR (4th) 481 where it was said:
‘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. When that possibility exists, there is a breach of the presumption of innocence.....If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.’
His Lordship observed that in order to determine whether legitimate aim and
proportionality are satisfied it is necessary to take account of numerous
factors, including the gravity of the conduct, the seriousness of the offence,
the precise justification for placing the burden on the accused, and the degree
of difficulty that the accused may have in discharging that burden.
Lord Hope of Craighead said that:
‘[Proportionality] will not be achieved if the reverse onus provision goes beyond what is necessary to accomplish the objective of the statute’.
The House of Lords held that a legal burden imposed by Misuse of Drugs Act 1971 s 28 would be disproportionate and not justified. It would therefore follow that s 28 was incompatible with Article 6(2) and the presumption of innocence. However, in order to avoid this outcome, the House of Lords relied on Human Rights Act 1998 s 3(1) to ‘read down’ the words of s 28 and conclude that the section imposed only an evidential burden on the accused. The Human Rights Act s 3(1) provides that legislation must be read and given effect in a way which is compatible with the Convention if it is possible to do so. Lord Hope of Craighead said:
‘I would therefore read the words “to prove” in section 28(2) as if the words in this subsection were “to give sufficient evidence”, and would give the same meaning to the words “if he proves” in section 28(3)”. ....If sufficient evidence is adduced to raise the issue, it will be for the prosecution to show beyond reasonable doubt that the defence is not made out by the evidence’.
Clarke LJ, having considered Lambert, concluded that the likelihood
or otherwise of the accused driving, involving a consideration of the accused’s
present or future intentions, provided an objective justification for placing
some burden upon him. The likelihood of the accused driving is a matter which
is particularly within the knowledge of the accused and difficult for the
prosecution to deal with unless there is at least some burden placed upon
the accused to put forward his case.
However, the more difficult issue is whether that burden is legal or evidential. It is in this regard that the court must strike a fair balance between the general interests of the community and the fundamental freedoms and rights of the individual. If imposition of a legal burden is a disproportionate response to the legitimate aim of the statute then, prima facie, the imposition of a legal burden on the accused will conflict with the presumption of innocence in Article 6(2).
Clarke LJ and Jack J (Henriques J dissenting) concluded that imposing a legal burden of proof upon the accused was a disproportionate response to the aim and objective of the statute. In reaching that conclusion the court recognised that the statute had, as its core aim, the protection of the public from the danger that intoxicated motorists in charge of vehicles might drive them on the roads, with all the consequent threats to life and property that raises. Such action involves moral fault and the offence is now recognised by the public as being ‘truly criminal’ in nature.
However, it was agreed that almost all criminal offences are intended to
protect the public and merely because the likelihood of the accused driving
is a matter particularly within the knowledge of the accused and may be difficult
for the prosecution to deal with does not, of itself, provide sufficient justification
for concluding that the imposition of a legal burden was justified and proportionate.
Many offences require the prosecution to prove an element concerned with the
accused’s intention and this offence raised no particular difficulties
of proof sufficient to justify imposing a burden him. The majority concluded
that the prosecution will be able to test an assertion by the accused that
he did not intend to drive by relying on such other evidence as might be available
and that the courts are well used to testing the state of mind of defendants.
The majority, in accordance with Lambert, then ‘read down’ the provision in s 5(2) to reach the conclusion that it imposed only an evidential burden on the accused, thereby avoiding any incompatibility with Article 6(2).
It therefore follows that if the accused raises some fit evidence that there was no likelihood of his driving whilst the proportion of alcohol in his breath exceeded the prescribed limit, it is for the prosecution to prove beyond reasonable doubt that the circumstances were not such that there was no such likelihood. Put positively, the prosecution must prove that there was a real risk of his driving whilst in the prescribed condition.
This is the latest in a series of cases that has had to decide whether a
burden placed on an accused person is legal or evidential. At present, the
law in this area is in a real state of flux and it seems that until the courts
have ruled upon each area where this is an issue, absolute certainty will
not be achieved. Given the multitude of statutes that cast a burden on an
accused that could well be a long process.
The crucial question remains, that if a statute expressly or impliedly shows an intention to reverse the burden of proof, exactly when will a legal burden be compatible or incompatible with Article 6(2)?
If the offence is a serious one, carrying a high maximum penalty, then it might be possible to conclude that casting a legal burden is likely to be incompatible. This was one of the factors that clearly influenced the House of Lords in Lambert. Yet this would seem to be an unreliable and hazardous method of prediction. In Sliney v London Borough of Havering  EWCA Crim 2558, the defendant was charged with an offence under the Trade Marks Act 1994, s 92(1)(c). Section 92(5) of the Act provides:
‘it is a defence for a person charged with an offence under this section to show that he believed on reasonable grounds that the use ...was not an infringement of the ...trademark’
The defendant argued that this section, properly construed, imposed only
an evidential burden on him. It was held that the section imposed a legal
burden on the defendant justified, in particular, by the difficulty that enforcement
authorities would face in proving the absence of a reasonable belief should
the burden be on the prosecution. The fact that a convicted defendant faced
the possibility of up to 10 years imprisonment did not persuade the court
that the burden should be construed as being merely evidential.
It is rather alarming that a defendant may face the possibility of such a serious sentence without the need for the prosecution to prove the presence of intention or recklessness. The ‘golden thread’ of Viscount Sankey seems to be in real danger of snapping!
If, on the other hand, the offence is relatively minor, perhaps regulatory in nature protecting a particular public interest, imposing a legal burden on the accused might well be viewed as compatible. In Davis v Health and Safety Executive  EWCA Crim 2949, the court concluded that the Health and Safety at Work Act 1974 s 40, properly placed a legal burden on the defendant of proving ‘that it was not reasonably practicable to do more than was in fact done’ in relation to a duty of care owed to employees. Here, the court described the legislation as regulatory in nature, not truly criminal, and the defendant was not liable to any form of imprisonment on conviction. Hence, a legal burden was not incompatible with Article 6(2).
In between, there are a myriad of offences raising different and varied issues that are surely going to pose difficult questions of proportionality on which different people can, perhaps quite reasonably, take different views reaching different conclusions. The case in question here did exactly that, with Henriques J concluding that issues of proportionality militated in favour of the accused carrying a legal burden of proof.
It is also clear from this case that even within the same statutory regime, differing burdens may be placed on an accused depending upon the offence allegedly committed and the defence raised. The Road Traffic Offenders Act 1988 s 15, applies to any proceedings for an offence under the Road Traffic Act 1988 ss 3A, 4 and 5. It follows that s 15 applies to the offence in the present case, i.e. being in charge of a motor vehicle in a public place after consuming so much alcohol that the proportion of alcohol in his breath exceeded the prescribed limit, contrary to the Road Traffic Act 1988 s 5(1) (b).
Section 15(2) provides that, subject to subsection (3), it shall be assumed that the proportion of alcohol in the accused’s breath...is not less than in the specimen. Section 15(3) provides:
‘That assumption shall not be made if the accused proves -
(a) that he consumed alcohol before he provided the specimen and –
(ii) ..., after he had ceased to drive or attempt to drive ...or be in charge of a vehicle...’
In R v Drummond,  EWCA Crim 527,  RTR 21, the Court of Appeal concluded that this section placed a legal burden of proof on the accused. Longmore LJ stated:
‘We have come to the conclusion that the legislative interference with the presumption of innocence in section 15 of the Road Traffic Offenders Act 1988 amounts to an imposition of a [legal] burden on the defendant and that such interference is not only justified but is no greater than necessary. It hardly needs to be said that driving while over the limit ...[is a social evil] which Parliament sought to minimise by this legislation.’
So we now have the confusing position that the same statutory regime
with the same legitimate aims and objectives (i.e. the prevention of
intoxicated driving), gives rise to differing burdens of proof depending upon
which specific offence the accused may be charged with.
Surely the time has now come to give further thought to the recommendations of the Criminal Law Revision Committee where in paragraph 140 of its 11th Report it was said:
‘We are strongly of the opinion that, both on principle and for the sake of clarity and convenience in practice, burdens on the defence should be evidential only’.