The presumption of innocence requires one to be presumed innocent

until proven guilty. This aticle was emphaticaly endorsed in Woolmigton

v DPP (1935), where Viscount Sankey LC described that it as a golden
thread througout the web of the criminal law and declared that subject
to certain exceptions, its the duty of prosecution to prove the guilt of
defendant beyond reasonable doubt and no whittle it down can be
entertained.
As iilustrated by the case of Woolmington, its the rule for the
prosecution to bear the legal burden to prove prisoners guilt with the
elemenst of offence and disprove any defence raised by the accused.
Hence, accused only bears evidential burden in this point in time by
raising particular issue that make it a live issue. However, Viscount
Sankey LC did recognise that particular case that theres exceptions
where the burden is reversed and placed on the defendant. The
defendant to bear the legal burden to prove based on balance of
probabilities.
At common law, the defence of insanity is traceable to the advisory
opinions of judges in MNaugthens case (1843) as the exception to the
golden thread. The second exception is a reversal by a Parliament
under statute which consits of express and implied reversal. As for
express reversal, the defendant will bear the legal burden of proof. As
for implied reveral, Parliament is silent as to whom to bear the legal
burden. In oder to decide such burden imposed by implication, various
tools of implications need to be applied.
Traditionally, such provisions were recognised as having the effect of
imposing the legal burden of proof on defendant which he had to
discharge on the balance of probabilities. As such is the event before
Art6 (2) comes into place, the reversal took place automatically.
However, both implied and express reversal must be considered in
light of Human Rights Act 1998 and Act 6(2) of European Convention
on Human Rights. The issues arising after this is that theres no more
reversal taking place automatically. It has to go through a filtration
process known as the test of proportionaten before deciding the
reversal of burden. Hence, this raise the question of whether this is a
real test to strengthen the presumption of innocence under Art 6(2) or
consits of any hidden agenda. This test was enuciated due to Art 6(2)
since Art 6(2) is a perpetration of test of proportionality.
In the case of ex parte kebilene, the House of Lords were asked to
consider inter alia, whether s.16A of the Prevention of Terrorism Act
1989 violated the presumption of innocence guarenteed by Art 6(2).
Hence, a test of proportionality was created by Lord Hope. For the test
to be proportionate or not, one has to look at the achievement of the

Act. If the reversal of legal burden achieves the aim of the Act and do
not go beyond that, then the legal burden is proportionate to the
accused. However, if the reversal of burde achieve the aim and goes
beyond that, whereby the reversal become burdensome on the
accused, then a reading down will take place as for only an evidential
burden will be given to the accused.
In Lambert (2001), it was held that s.28(2) of Misuse Drugs Act 1971
when interpreted in light of s.3(1) of HRA 1998, imposed only an
evidential burden on the defendant. As this case points out that the
fact, the courts were prepared to uphold an individual right over public
interest in justifying these stunce as being proportionate when the
legal burdens are read down as evidential ones. In Salabiaku v France,
the European Court of Human Rights explicitly recognised that
presumption of innocence under Art 6(2) is not an absolute right.
Next, question arises at to when would a reversal serve the public
interest? It has beocme increasingly difficult to predict whether an
apparently legal burden would be interpreted as imposing an evidential
burden after Lambert and L v DPP. Hence, prediction has become
uncertain but Dennis had identified the six cardinal principles which is
not creation of his but rather a mere summary of cases in identifying
whether reversal of legal burden is proportionate.
The first element is based on a qualification that distinguishes, in the
traditional terminology, between mala se and mala prohibita. In terms
of truly criminal offence, the court is reluctunt to reverse the legal
burden onto the accused. Meanwhile, for regulatory offence, there
seems to be greater willingness to reverse the legal burden onto the
accused. This approah was adopted by the a Court of Appeal in Davies
v Health and Safety Executive (2003) where the court uphold s.40 of
Health and Safety at Work Act 1974. This provision imposed a legal
burden on a defendant to prove that it had not been reasonably
praticeable to do more than he had done to ensure that employees
were not exposed to risks to their safety and health. This difficulty with
classification of offence is that the moral quality of regulatory offence
is variable. Hence, this confusing part of whether legal burde should be
shifted is questioned.
The second consideration is the defence that should be shown to
Parliaments decision. Lord Steyn in Lambert feels that the courts are
at liberty to question Parliaments intention of wanting to shift the legal
burden to the accused. But other judges have been more inclined to
give weight to the decision of the elected body that passed the
legislation. Lord Hope in ex parte kebilene feels that defence must be
give effect to when the issues involve question of social and economic

pilicies. Lord Nicholls in Johnstone(2003), generally Parliaments aim is

to be adhered unless it can be shown that Parliament had attached
inadequate important to Art 6(2). However, in Sheldrake v DPP, Lord
Bingham feels that the court are in position to question the reversal of
Parliament, failing which, too little importance will be then placed on
presumption of innocence. Hence, these cases demonstrate that no
judge is right as it boils down to the acticism of the judge. Is the judge
influenced by Diceys 3 postulate?
The third considertion is based on drawing the distinction between the
elements of offence and available offence. To apply this, the judge has
to look at whether the clarify between there elements are greater, then
Parliament can shift the legal burden easily. According to Lord Wolf in
Privy Council case of AG of Hong Kong v Lee-kwong-kut (1993) said
that if the prosecution proves the ingredients of the offence then
reversal is likely to be accepted. However, a reservation was made by
Lord Wolf that it is difficult to isolate them and occasionally it is a
matter of substance more than form. Lord Hope in Kebilene, it would
hard to justify if the defendant is asked to disprove an ingredient of the
offence and would be less objectionable if he was asked to establish
the defence. Hence, if it is demorcated well, then it is easier to shift but
sometimes it is hard to demorcated as ruled in the case of Hunt (1987).
Maximum penalties are another consideration. The more grave the
penalties, the less likely to shift the legal burden into the accused and
vice versa. However, legal burden can still be shifted to accused
although the punishment is grave enough for example, 10 years of
imprisonment. Ian Dennis noted that the maximum penality concept is
on uncertain guide. For instance, in Sheldrake, the House upholds a
reversal for maximum penalty for 6 months. This may not occur in
other cases. Lord Nicholls in Johnstone said that the more serious the
punishment, the more compelling reason needed to shift the legal
burden. Lord Steyn in Lambert, a reversal will be compatible if the
offence is serious one, amd carrying a significant penalty.
The ease of proof and defendants peculiar knowledge can also be
taken into consideration. According to Lord Hope in the case of exp
parte Kebilene, he said that one of the considerations was the nature
of the burden on the accused. Did it relate to something that is was
likely to be difficult for him to prove? The same point was made by Lord
Nicholls in Johnstone. On the other hand, as Dennis pointed out that ,
there are very many cases where the accusedstate of mind is crucial
important, nut where the burden of proving it is on the prosecution.
Hence, both of these cases highlighter that if the matters within the
knowledge of defendant, it will be easier for him to prove.

A final consideration is the presumption of innocence itself. This

discusses the issue of whether to send innocent man to prison or leave
guilty men on the streets as to which is more dangerous of the
outcome. It would be more harmful to send innocent man to prison. In
AG Refrence No.4 (2004), discusses about this consideration on
whether to give the supposed terrorist presumption of innocence. The
House of Lords led by Lord Bingham had decided to read down the
legal burden to evidential burden as such reversal could not be
justified to be proportionate. It is impossible for the accused to prove
his defence.
In conclusion, HRA has brought many changes to incidents of burden of
proof in criminal matters. Previously, automative reversal of the burden
would take place. However, incorporation of Art6(2) in HRA 1998,
reversals are no longer automatic. The test of proportionality is needed
to examine whether reversal is proportionate with the aim and
objective of the Act. Evidential burden is to be conferred if there is
disproportionate reaction to it. Art6 (2) has further entrenched
presumption of innocence. The superficiality of the introduction of the
proportionality test begs the question of creation. It is due to
desirability to protect this presumption that leads to such creation?
This could not explained, as the presumption had always been part of
English law since the existence of Woolmington case.
Art 6(2) does not create any new right for the accused. The right to a
free trial and the presumption have always been part of common law.
At best, Art6 (2) only drews acute attention to this fundamentsl right?
Then what is the reason behind the creation of this filtration process? It
might be fear from the complaint of the reversal took place easily.
Hence, statute post-2000 would have undergone an express and it
against such rights under ECHR.