Law of Evidence - Burden of Proof, Assignments of Law of Evidence

Download Law of Evidence - Burden of Proof and more Assignments Law of Evidence in PDF only on Docsity! Hannah Quirk, a former case review manager at Criminal Cases Review Commission UK claimed that errors are bound to occur in any criminal justice system i.e. the factually guilty will escape conviction and the innocent will be judged wrongly.* Regardless, defendants in both circumstances can slither or trapped by the justice system; and one ancient principle practiced by the courts till date tilt the favour towards criminal suspects, namely the presumption of innocence (POI). This principle protects innocent individuals from being convicted by putting the burden on the prosecution to prove guilt and not the accused to prove innocence, notwithstanding the risk of letting loose guilty offenders.” This principle was later affirmed in Woolmington v DPP by Lord Viscount Sankey, establishing the Golden Thread Rule; the prosecution has the legal burden to prove guilt on the standard of beyond reasonable doubt while defendants only have evidential burden to raise an argument in court i.e. defence; thus no burden of proof at all.* This rule aligns with POI where evidential burden imposed on the defendant has no standard of proof, they merely adduce facts and evidence for the issue to stand in court.* However, Lord Sankey expressed there are two exceptions to this general rule, the legal burden could be shifted towards the defendants in the event statutes expressly or impliedly places the legal burden on the defendants and accused raising the defence of insanity. Statutory reversals prior to the enactment of Human Rights Act (HRA) 1998 take place automatically and there is no lack of legislations which places the legal burden on the defendant as noted in an empirical study by Ashworth and Blake, for instance: s.2 Homicide Act 1957.5 The commencement of HRA 1998 incorporates the European Convention of Human Rights (ECHR) into the UK, affirms presumption of innocence’s position in criminal trials.° Article 6(2) provides an individual is presumed innocent unless proven guilty according to law.’ The term ‘presumed innocent’ indicates presumption of innocence which was expressed by Lord Sankey in Woolmington as the Golden Thread Rule; having different * Hannah Quirk, ‘Identifying Miscarriages of Justice: Why Innocence in the UK Is Not the Answer’ (2007) 70 MLR 759 ? william Blackstone, Commentaries on the Laws of England, (1st Edition, Clarendon Press, 1765) * Woolmington v DPP [1935] A.C. 462 “R v Bianco (Leonardo) [2001] EWCA Crim 2516 5 Andrew Ashworth and Meredith Blake, ‘The Presumption of Innocence in English Criminal Law’ [1996] CLR 306 © Human Rights Act 1998. 7 European Convention of Human Rights terms but held the same principle.® As Lord Sankey recognised the exception to POI, HRA 1998 does not specifically accommodate any exceptions to Article 6(2). Thus, strict adherence would mean the prosecution is required to prove all matters raised in court; s.6 of the HRA makes it unlawful for the court to act in a way that is incompatible with the Conventions.’ The difficulty here was for the court to apply implied or expressed reversals of burden by statute in conjunction with Art.6(2), also bearing in mind the concept of parliament supremacy. Though HRA is equipped with two provisions to help the court navigate any legislations conflicted with Art.6(2); s.3 and s.4."° When there is a breach of POI, s.3 of the HRA provides the court to ‘read down’ the statute or apply s.4 to make a declaration of incompatibility. The House of Lords (HOL) in Lambert was an example of the court considering the effect of HRA.** The defence raised under s.28(2) of the Misuse of Drugs Act 1971 places the burden on the defendant to prove the defence and the argument by the defendant was the reversal of burden was incompatible with Art.6(2) ECHR.” The court dismissed the appeal on grounds that HRA does not apply retrospectively as the trial was held before 1998 but majority of the lordship’s obiter statements held that the legal burden places on the defendant is incompatible with Art.6(2) and s.3 will be applied in future cases to ‘read down’ the legal burden impose under s.28(2) to evidential burden.** In terms of other statute with reverse onuses, test of proportionality (TOP) will be applied and reversal of burden will no longer be automatic. HOL in Lambert decided on reading down s.28(2) by using their three limbs approach of TOP: whether the reversal infringe POI; whether the infringement was objectively justified and proportionate; and whether it is possible to read the statute in a way compatible with Convention rights or declare incompatibility. However, HOL further expressed that the test will depend on circumstances of the case.” Reading down statutes and declaring incompatibility do support the Strasbourg Court’s decision in Salabiaku, stating that Art.6(2) is not an absolute rule; not all legal burdens placed on the defendant are in breach of Convention rights as long as the reversal will ® lan Dennis, Law of Evidence (4th edition, Sweet & Maxwell, 2010) * Human Rights Act 1998, s 6 *° Human Rights Act 1998, s 3 and 4 +. R v Lambert [2002] 2 AC 545 * ibid * ibid “ibid * ibid to health and safety risks. However, lan Dennis highlighted the classification of offences into mala in se and mala prohibita is not an efficient guide to decide if reversals are proportionate.” Primarily, moral quality of the act is not considered. Davies’s approach would determine if the offence were truly criminal or not by referring to the punishment, i.e. offences with punishment by fine are considered trivial thus categorised as mala prohibita. However, a similar case of Davies, R v Chargot used the same reasoning in Davies and upheld the reversal, but under a different act - Health and Safety (Offences) Act 2008 which repealed its predecessor to include a maximum imprisonment of two years.* * Thus, Davies’s logical approach would be to view Chargot’s offence as mala in se, the reversal might not be justifiable as the punishment is now consequential. This shows classification of offences is not always viable to justify the compatibility of reverse onus with Art.6(2). Severity of punishments do not always align with what is deemed morally right and degree social disgrace by the public. Construction of criminal liability We know the general rule of POI under Woolmington requires the prosecution to prove the elements of the offence beyond reasonable doubt.*” Lord Woolf in Hong Kong v Lee Kwong- kut stated if prosecution is proving the offence and defendant is proving his defence, reversal is more likely to be acceptable.® In Lambert, Lord Hope suggested that the difference between the elements of the offence and exculpatory defences, placing the legal burden onto the defendant to prove his defence would be considered reasonable.® This approach was taken in in AG’s Reference no.4 2002 and Sliney.*° * Significance of maximum penalties The consensus by the court was the greater the punishment of the offence, the greater the consideration placed in POI therefore more reluctant to placed legal burdens on criminal suspects. In Davies, Tuckey LJ stated when deciding whether reversal is appropriate, * Ian Dennis, Law of Evidence (4th edition, Sweet & Maxwell, 2010) °5 R v Chargot [2008] UKHL 73 % Health and Safety (Offences) Act 2008 57 Woolmington v DPP [1935] A.C. 462 % Attorney-General for Hong Kong v Lee Kwong-kut [1993] AC 951 °° R v Lambert [2002] 2 AC 545 “ AG's Reference (No.1 of 2004) [2004] EWCA Crim 1025 “ Sliney v Havering London Borough Council [2002] EWCA Crim 2558 offences with punishment of custodial sentence is certainly an important factor in that decision. Lord Steyn in Lambert suggested placing legal burden on defendant when the alleged offence carries maximum penalty would be infringing Art.6(2). Further, Lord Nicholls in Johnstone stated the heavier the punishment, the more persuasive the reason is to impose reversal of burden. One common idea we can extract from the lordship’s statement is when the accused’s freedom is on the line when charged with an offence that threaten that freedom e.g. imprisonment, the lordships are reluctant to impose legal burden on the accused. Thus, a provision that reverse onuses in offences with maximum penalties of imprisonment are unlikely to be proportionate. However, the HOL in Johnstone upheld a reverse onus under s.92(5) of the Trade Marks Act 1994 to show the defendant reasonably believe the goods in his possession did not infringe registered trademarks.” “° If found guilty, the defendant will face a maximum penalty of 10 years. There are also instances where the court is split on whether the reversal is appropriate in offences punishable with pecuniary penalties i.e. monetary fines. The COA in Roth is divided whether reversal is proportionate under s.34 of the Immigration and Asylum Act 1999 which if found guilty, is punishable with a penalty of £2000 per clandestine entrant. Jonathan LJ thought it was disproportionate; Simon LJ though it was proportionate; and Laws LJ stated that Art.6(2) is not relevant since the penalty scheme was civil and not criminal.** Cases discussed above shows no consistent adherence to the consensus described at the start of this principle nor did the court established new principles or guidelines to follow; the law is still uncertain on the issue of maximum penalties according to Ashworth. “* Nonetheless, lan Dennis expressed those maximum penalties are not a reliable guide to determine whether a reverse onus is proportionate.” Ease of proof and peculiar knowledge This principle discusses whether the accused is at ease of providing the required evidence and whether the accused has peculiar knowledge of certain matters. If they are affirmative, “ R v Johnstone [2003] UKHL 28 “3 Trade Marks Act 1994, s 92(5) “ Immigration and Asylum Act 1999, s 34 “5 International Transport Roth Gmbh v Secretary of State for the Home Department [2003] QB 728 “ Andrew Ashworth, ‘Four Threats to the Presumption of Innocence’, [2006] The International Journal of Evidence & Proof 10(4) *” lan Dennis, Law of Evidence (4th edition, Sweet & Maxwell, 2010) the court would normally uphold the reversal as the evidence can be produced by the defendant with ease or easier compared to the prosecution. lan Dennis stated that ease of proof and peculiar knowledge is two different concepts. Ease of proof involves evidence that can be obtained by both prosecution and defendant while peculiar knowledge is knowledge only the defendant has access to.“ Lord Hope in Kebeline suggested if the defence was within the defendant’s ambit, then reversal of burden is likely to be proportionate.“ Lord Nicholls in Johnstone also shares similar views that if the defence is within the peculiar knowledge of defendant, it would be easier for the defendant to have the legal burden. ® However, lan Dennis and David Hamer highlighted even if evidence is harder for the prosecution to prove, it does not follow that placing the legal burden on the accused to disproof his guilt would be easy.** ** Thus, Dennis suggested that in the event the court decides to uphold the reverse onus by reference to ease of proof, weight of the burden imposed on the defendant should be contemplated.** Other academician input on this principle finds it justifiable to place legal burden on the defendants if they are at ease of providing evidence and possess exclusive knowledge that is not available or withheld from the prosecution. C.R. Williams argued that it would be unfair for the prosecution negate every defence when the defence itself is within defendant’s reach to prove. Presumption of innocence The last principle is POI itself. lan Dennis wishes to remind the importance of POI for the courts.** The ECtHR in Salabiaku stated POI prevents legislatures from taking away the right to evaluate and assess the evidence of the accused guilt held by the court.® Lord Bingham in Sheldrake provided Strasbourg conception of the POI, stating Art.6(2) does not disregard presumption of fact or law but should be exercised within reasonable limits.*” Defendants “8 AG's Reference (No.1 of 2004) [2004] EWCA Crim 1025 “ R v DPP Ex p. Kebeline [2000] 2 A.C. 326 5° R v Johnstone [2003] UKHL 28 51 lan Dennis, Law of Evidence (4th edn, Sweet & Maxwell 2010) 5? David Hamer, ‘The Presumption of Innocence and Reverse Burdens: A Balancing Act’ [2007] CLJ 66(1) ibid °C. R. Williams, “Placing the Burden of Proof” in E. Campbell and L. Waller (eds.), Well and Truly Tried: Essays on Evidence (Sydney 1982) 55 lan Dennis, ‘Reverse onuses and the presumption of innocence: in search of principle’ (2005) CLR 901-936 56 Salabiaku v France (1991) 13 E.H.R.R. 379. 5” Sheldrake v DPP [2004] UKHL 43 assist the judge to justify reversals. Yet, it is the court’s discretion whether they will follow the principles. Bibliography Legislations 1. European Convention of Human Rights 2. Health and Safety (Offences) Act 2008 3. Health and Safety at Work Act 1974, s 40 4. Human Rights Act 1998 5. Human Rights Act 1998, s 3 and 4 6. Human Rights Act 1998, s 6 7. Human Rights Act, s 19 8. Immigration and Asylum Act 1999, s 34 9. Trade Marks Act 1994, s 92(5) Case laws 1. AG’s Reference (No.1 of 2004) [2004] EWCA Crim 1025 2. Attorney-General for Hong Kong v Lee Kwong-kut [1993] AC 951 3. Davies v Health and Safety Executive [2002] EWCA Crim 2949 4. International Transport Roth Gmbh v Secretary of State for the Home Department [2003] QB 728 5. R vBianco (Leonardo) [2001] EWCA Crim 2516 6. R vChargot [2008] UKHL 73 7. R v DPP Ex p. Kebeline [2000] 2 A.C. 326 8. R vJohnstone [2003] UKHL 28 9. R v Lambert [2002] 2 AC 545 10. R. (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26 11. Salabiaku v France (1991) 13 E.H.R.R. 379 12. Sheldrake v DPP [2004] UKHL 43 13. Sliney v Havering London Borough Council [2002] EWCA Crim 2558 14. — Woolmington v DPP [1935] A.C. 462 Secondary Sources 1. Andrew Ashworth and Meredith Blake, ‘The Presumption of Innocence in English Criminal Law’ [1996] CLR 306 2. Andrew Ashworth, ‘Four Threats to the Presumption of Innocence’, [2006] The International Journal of Evidence & Proof 10(4) 3. C. R. Williams, ‘Placing the Burden of Proof’ in E. Campbell and L. Waller (eds.), Well and Truly Tried: Essays on Evidence (Sydney 1982) 4. David Hamer, ‘The Presumption of Innocence and Reverse Burdens: A Balancing Act’ [2007] CLI 66(1) 5. Hannah Quirk, ‘Identifying Miscarriages of Justice: Why Innocence in the UK Is Not the Answer’ (2007) 70 MLR 759 6. lan Dennis, Law of Evidence (4th edition, Sweet & Maxwell, 2010) 7. Joint Committee on Human Rights, Minutes of Evidence taken on 26 March 2001 (HL 66-iii; HC 332-iii, 2001) Q.78. 8. Lord Irvine, The legal system and law reform under Labour (Blackstone 1996) 9. Lord Steyn, ‘Deference: A Tangled Story’ [2005] P.L. 346 10. Paul Roberts and Adrian A. S Zuckerman, Criminal Evidence (2nd edn, Oxford University Press 2010) 11. Paul Roberts and Jill Hunter, Criminal Evidence and Human Rights (1st edn, Hart Publishing 2012)