EVIDENCE

Chapter 3: The Burden and Standard of Proof

(1) BURDEN OF PROOF: THE TWO BURDENS
The principle governing the phrase the burden of proof has been traced to Paulus 1, a Roman jurist, in the second century A.D. and expressed by the Latin maxim ei qui affirmat non ei qui negat incumbit probatio: he who asserts a matter must prove it, but he who denies it need not prove it. For Thayer 2, the phrase the burden of proof has two meanings: (i) the risk of not persuading the jury and (ii) the duty of going forward with the evidence to satisfy the judge. The latter meaning is frequently called the presumption of innocence, a presumption recognised as a cornerstone of the English criminal law and protected by Article 6 (2) of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention). There are two burdens of proof: (i) the legal (i.e. fixed) or persuasive or ultimate burden of proof; and (ii) the evidential or provisional or tactical burden the burden of introducing enough evidence to be placed before the jury or other tribunal of fact. 3 The burdens of proof of issues are the same in civil and criminal proceedings but the issues are determined differently and are subject to other factors which will be discussed below. For instance, in criminal proceedings, the burden of proof rests on the prosecution and never changes throughout the trial; in civil proceedings the burden of proof of an issue is either on the plaintiff or the defendant and rests on him throughout the trial. The moot point is whether the burden of proof shifts. Shifting the burden. Judges and textwriters are divided on the shifting of the burden of proof. There is high authority for the proposition that the burden of proof never shifts 4 and also for the proposition that, in

1 See C.A. Morrison, Some Features of the Roman and English Law of Evidence (1959) 33 Tul LR 577. 2 See J.B. Thayer, A Parliamentary Treatise on Evidence at the Common Law (Boston: Little, Brown, 1898), at 355. 3 Glanville Williams, The Evidential Burden: Some Common Misapprehensions (1977) 127 NLJ 156. See also Jayasena v R [1970] 1 All ER 219 at 221 where Lord Devlin described the quantum of evidential burden of proof as follows: It may be such evidence as, if believed and if left uncontradicted and unexplained, could be accepted by the jury as proof. 4 See Glanville Williams, note 3 above and M. Hirst (ed.), Andrews & Hirst On Criminal Evidence (Bristol: Jordans, 2001), at 56. See also R v Schama (1914) 11 Cr App R 45 at 49 and Woolmington v DPP [1935] AC 42.

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EVIDENCE some cases, the burden shifts. 5 The former proposition refers to legal or ultimate burden of proof in criminal proceedings which requires that the prosecution must prove that the accused is guilty of the alleged crime beyond reasonable doubt; in which case, the burden remains on the prosecution throughout the criminal proceedings. Similarly in civil proceedings, where the burden of proof is on the plaintiff or the defendant, the burden remains on him throughout the trial. But there are some cases where on the true construction of an enactment it prohibited the doing of a certain act, save in special circumstances, and it is not for the prosecution to prove a prima facie case of lack of excuse or qualification but for the defendant to prove that he was entitled to do so. In such a case, the burden of proof shifts to the defendant as in R v Edwards. 6 There are also cases where negligence is alleged in civil proceedings, the mere fact that the accident occurred may amount to prima facie evidence of negligence. 7 This state of affairs is described by the maxim Res ipsa loquitur (the thing speaks for itself). In case of collision at sea where the defendants ship collided in daylight with a ship at anchor 8, the burden lay on the defendants to prove inevitable accident either by proving the cause of the accident or by enumerating possible causes and proving with regard to everyone of them that the result could not have been avoided. In all the three instances, the burden of proof is described as shifting tactically.

(2) BURDEN OF PROOF IN CIVIL CASES

(A) The right to begin
In civil proceedings, the burden of proof is on the party who would be unsuccessful if no evidence at all were given and such a party has the right to begin. In Amos v Hughes 9, an action for breach of contract, the question arose as to which party should begin. Alderson B ruled that the plaintiff was entitled.

(B) The burden of proof

The general rule is that he who affirms must prove but in determining who is affirming the judge should consider the substance and not the
See J.F. Stephen, A Digest of the Law of Evidence, ed. by H.L. Stephen and L.F. Sturge (London: Macmillan, 1948), at 125-7; and C. Tapper (ed.), Cross and Tapper On Evidence (London: Butterworths, 1999), at 125. See also Abrath v North Eastern Railway (1883) 11 QB 440, per Brown L.. at 455-462; R v Edwards [1975] QB 27, per Lawton LJ at 37 at 39; and DPP v Morgan [1976] AC 182, per Lord Simon at 217. 6 Supra, n.5. 7 Scott v London and St. Katherine Docks Co. (1865) 34 L.J Ex 20; 3 H.C 596 and Moore v R. Fox & Sons 1956] 1 QB 596. 8 The Merchant Prince [1891-4] All. ER Rep. 396, [1892] P.179. 9 (1835) Mood &R 464; 174 ER 160.
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EVIDENCE grammatical language of the pleading. For instance, where P the landlord of D alleged that the latter did not repair the premises in question and D pleaded that he did well and sufficiently repair the same, it was held that notwithstanding that Ds pleading was the grammatical affirmative, the burden of proof was on P. 10 This position is not altered because it involves the plaintiff proving the negative. In Abrath v North Eastern Railway 11, an action for malicious prosecution, the plaintiff alleged that the defendant instituted proceedings against him without reasonable and probable cause. It was held that the burden is on the plaintiff to prove not only the malicious prosecution but also prima facie the want of reasonable and probable cause. It must be noted, however, that where the evidence is so scanty as to render it impossible to reach a conclusion as in Wakelin v London & South Western Railway 12 the party to suffer for this state of affairs is the one on whom lies the burden of proof. In that case, the plaintiff brought an action under the Fatal Accidents Act 1846 alleging that her deceased husband had met his death owing to the negligence of the defendants. The only evidence was that the deceaseds dead body was found lying at the side of a railway line near a level crossing. It was held the burden of proof lay on the plaintiff. We are also reminded by Viscount Maugham in Joseph Constantine Steamship Line, Ltd. v Imperial Smelting Corporation, Ltd. 13 that the burden of proof lies on the party who affirms and not upon the party who denies it. In that case, the plaintiffs, who had chartered a ship from the defendants, claimed damages for breach of contract because the ship was not available at the stipulated time. The defendants pleaded that the performance of the contract had become impossible because of an explosion in a boiler whilst the ship was at anchor. The plaintiffs contended that the defendants must prove that they were not responsible for the explosion. The House of Lords held that where the plaintiffs wished to show that the frustration of the contract was due to the defendants negligence, the plaintiffs must allege and prove it.

(3) BURDEN OF PROOF IN CRIMINAL CASES

In a criminal case it is always the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. In Woolmington v

Soward v Leggatt (1836) 7C and P613; 173 ER 269 (1886) 11 App Cas 247, HL. 12 (1886) 12 App Cas 41, HL. 13 [1942] AC 154, HL. See also Rhesa Shipping Co. SA v Edmunds [1985] 2 All ER 712, HL and Ashraf v Akram, unreported, January 22, 1999, CA
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EVIDENCE DPP 14 the accused was convicted of murder. His defence was accident. Swift J in his summing-up said: Once it is shown to the jury that somebody has died through the act of another, that is presumed to be murder, unless the person who has been guilty of the act which causes the death can satisfy the jury that what happened was something less, something which must be alleviated, something which must be reduced to a charge of manslaughter, as something which was accidental, or something which could be justified. 15 The accused appealed unsuccessfully to the Court of Appeal but successfully to the House of Lords. Viscount Sankey LC said: Where intent is an ingredient of a crime there is no onus on the defendant to prove that the act alleged was accidental. 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 prisoners guilt subject to what I have already said as to the defence of insanity and subject to any statutory exception. 16 Although two exceptions to the golden thread or the so-called Woolmington principle were instantiated by Viscount Stanley LC in 1935, namely, insanity and any (express) statutory exception (i.e. where a statute places the legal burden of proof on the defendant) a third exception has been added. Insanity. The first exception 17 to the Woolmington principle is insanity as defined under the MNaghten rule. 18 Where the accused pleads insanity, he bears the persuasive burden which is discharged on a balance of probabilities. Where prosecution raises the defence, they must prove it beyond reasonable doubt. It must be noted, however, that where the accuseds defence involves the pleading of issues such as non-insane automatism 19, provocation 20, self-defence 21, duress 22, and belief in lawful authority 23
[1935] AC 462. Ibid., at 472-473. 16 Ibid., at 481. 17 This exception was discussed in T.H. Jones, Insanity, Automatism and the Burden of Proof on the Accused (1995) 111 LQR 475 18 R v MNaghten (1843) 10 CI&F 200. 19 Bratty v Att-Gen (Northern Ireland) [1963] AC 386 20 Mancini v DPP [1942] AC 1 21 R v Lobell [1957] 1 QB 547. 22 R v Gill (1963) 47 Cr App R 166. 23 R v Gannon (1988) 87 Cr App R 254, CA.
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EVIDENCE and mechanical defect 24, he bears the evidential burden and the onus of disproving them rests on the prosecution. Express Statutory Exceptions. In the year 2000, at least twenty-nine statutory exceptions to the Woolmington principle were in force casting the burden of proof on the defendant. 25 For our present purposes, eight of these statutory provisions will suffice: (i) Homicide Act 1957, s.2 (2) places the burden of proof on the defendant who relies on the plea of diminished responsibility as statutorily defined in section 2 (1) of the Act. 26 Prevention of Crime Act 1953, s.1 (1) provides that any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him 27, has with him in any public place an offensive weapon shall be guilty of an offence.

(ii)

(iii) Prevention of Corruption Act 1916, s.2 provides that where in any proceedings for an offence under the Prevention of Corruption Act 1906 or the Public Bodies Corrupt Practices Act 1889, it is proved that any money, gift, or other consideration has been offered or received by a person in the employment of His Majesty or any Government Department or a public body such money, gift or consideration shall be deemed to have been paid or given corruptly unless the contrary is proved. 28 (iv) Bills of Exchange Act 1882, s.30 (2) provides that every holder of a bill is prima facie deemed to be a holder in due course but if an action on a bill is admitted or proved that the acceptance, issue, or subsequent negotiation of the bill is affected with fraud, duress, or force and fear, or illegality, the burden of proof is shifted, unless and until the holder proves that, subsequent to the alleged fraud or illegality, value has in good faith been given for the bill. 29 (v) Misuse of Drugs Act 1971, s.28 (2) provides that in any proceedings where this section applies it shall be a defence for the accused to prove that he neither knew nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which is necessary to be proved by the prosecution if he is to be convicted of the offence charged. In other words,

R v Spurge [1961] 2 QB 205, [1961] 2 All ER 688, CA. See P. Lewis, The Human Rights Act 1998: Shifting the Burden [2000] Crim LR 667, n.3. 26 See R v Dunbar [1958] 1 QB 1. 27 R v Petrie [1961] 1 WLR 358 and R v Brown (D.W.) (1971) 55 Cr App R 478 28 R v Evans-Jones (1923) 87 JPR 115 and R v Braithwaite [1983] 1 WLR 385, [1983] 2 ALL ER 87 29 Baker v Barclays Bank Ltd. [1955] 1 WLR 822.
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EVIDENCE the onus of proof is placed on the accused and the standard of proof is in balance of probabilities. 30 (vi) Criminal Damage Act 1971, s.1 (1) provides that a person without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence. The absence of lawful excuse is an element of the crime and the circumstances in which the accused may have a lawful excuse are in section 5. 31 (vi) Sexual Offences Act 1956, s.30 (2) provides that for the purposes of this section a man who lives with or is habitually in the company of a prostitute, or who exercises control, direction or influence over a prostitutes movements in a way which shows that he is aiding, abetting or compelling her prostitution with others, shall be presumed to be knowingly living on the earnings of prostitution, unless the contrary is proved. 32 (vii) Prevention of Terrorism (Temporary Provisions) Act 1989, ss.16A and 16B: Section 16A (1) provides that it is an offence to possess articles, in themselves innocent, for terrorist purposes and section 16A (3) places a reverse burden on the accused. Similarly, section 16B (1) provides that no person shall without lawful and reasonable excuse (the proof of which lies on him) collect or possess information, in itself innocent, for terrorist purposes. 33 Implied Statutory Exception. Section 101 of the Magistrates Court Act 1980 provides: Where the defendant to an information or complaint relies for his defence on any exception, exemption, proviso, excuse or qualification, whether or not it accompanies the description of the offence or matter of complaint in the enactment creating the offence or on which the complaint is founded, the burden of proving the exception shall be on him; and this notwithstanding that the information or complaint contains an allegation negativing the exception In summary proceedings, the common law rule is that where the accused claims that he is within the exception, exemption, proviso or qualification, the persuasive burden is on him and this burden is
30 R v Champ [1982] Crim LR 108, Warner v Metropolitan Police Commissioners [1969] 2 AC 256 and Sweet v Parsley [1970] AC 132. 31 R v Ashford and Smith [1988] Crim LR 682 and Chamberlain v Lindon [1998] 2 All ER 538. 32 R v Grant (Thomas) [1985] Crim LR 387. 33 R v DPP, ex p. Kebilene, R v DPP, ex p. Rechachi, infra n.47.

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EVIDENCE discharged on a balance of probabilities. 34 This common law rule, developed in summary trials, was held to apply to trials on indictment in R v Edwards 35 and R v Hunt. 36 In Edwards the defendant was convicted of selling intoxicating liquor without justices licence contrary to section 160 (1) of the Licensing Act 1964. He was unrepresented at the trial and did not give evidence but made an unsworn statement denying the occupation of the premises. He appealed against conviction on the ground that since the prosecution had access to the register of licences under s.34 (2) of the Act, the prosecution should have called evidence to prove that there was no justices licence in force. It was held, dismissing the appeal, that there was an exception to the fundamental rule of the criminal law that the prosecution had to prove every element of the crime and that its application was not dependent upon either the fact or the presumption that the defendant had peculiar knowledge enabling him to prove the positive of a negative averment. It was further held that if on the true construction of an enactment it prohibited the doing of a certain act, save in specific circumstances, it was not for the prosecution to prove a prima facie case of lack of excuse or qualification but it was for the defendant to prove that he was entitled to do the prohibited act, and therefore to prove that he held the justices licence. In Hunt the defendant was charged with unlawful possession of morphine contrary to section 5 of the Misuse of Drugs Act 1971. By regulation, section 5 did not have effect in relation to preparation containing not more than 0.2 per cent of morphine. The prosecution called no evidence at the trial as to the proportion of morphine in the powder and, at the end of the prosecution case, the defence submitted that there was no case to answer. The judge rejected the submission. The appellant then changed his plea to guilty and a conviction was recorded. The Court of Appeal (Criminal Division) dismissed the appellants appeal against conviction but gave leave to appeal to the House of Lords and certified the following point of law of general importance: Whether in a prosecution for the possession of a preparation or product containing morphine under section 5 of the Misuse of Drugs Act 1971, where the morphine is of
34 For the Scottish equivalent of s.101 of the Magistrates Court Act 1980, see Nimmo v Alexander Cowan & Sons Ltd. [1968] A.C. 107, H.L. where s.29 (1) the Factories Act 1961 imposes a duty on employers to maintain safe means of access to every place in so far as it is reasonably practicable. The House of Lords held that the onus of pleading and proving that it was reasonably practicable to keep the place safe lay on the employers. 35 [1975] QB 27. See also Gatland v Metropolitan Police Commissioner [1968] 2 QB 279 where the Divisional Court in respect of s.81 of the Magistrates Court Act 1952 (which was replaced by s.101 of the 1980 Act) placed the legal burden on the accused to prove his lawful authority or excuse. 36 [1987] 1 All ER 1, HL.

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EVIDENCE an unspecified amount and compounded with other ingredients and where the defence seeks to rely upon the exception to the said section 5 set out in regulation 4 (1) of and paragraph 3 of Schedule 1 to the Misuse of Drugs Regulations 1973 (as amended) the burden falls upon the defence to show that the said preparation or product comes within the said exception. 37 It was held that there was no rule of law that the burden of proving a statutory defence lay on the defendant only where the statute specifically so provided, since a statute could place the burden of proof on the defendant by necessary implication and without doing so expressly and that each case turned on the construction of the particular legislation. As regards the question of construction, Lord Griffiths said: As this question of construction is obviously one of difficulty I have regard to the fact that offences involving the misuse of hard drugs are among the most serious in criminal calendar and, subject to certain special defences the burden of proof whereof is specially placed on the defendant, they are absolute. In these circumstances, it seems to me right to resolve any ambiguity in favour of the defendant and to place the burden of proving the nature of the substance involved in so serious an offence on the prosecution. 38 The certified question was answered in the negative. The House of Lords allowed the appeal and quashed the conviction. The common law rule emerging from the three cases cited above Nimmo v Alexander Cowan & Sons Ltd., Edwards and Hunt is enunciated by Carter as follows: A statutory exception to the rule that the legal burden of proof in a criminal case is upon the prosecution may be express or implied. This is so whether the offence is triable summarily or on indictment. Where a linguistic construction does not clearly indicate where the burden of proof lies, the court may look to other factors in order to discover the intention of Parliament. These considerations include the mischief at which the provision is directed, and also practical consideration such as, in particular, the relative degrees of the likely difficulty for the respective parties in discharging the burden. 39

Ibid., pp.5-6. Ibid., p.13. 39 P.B. Carter, Cases and Statutes on Evidence (London, Sweet & Maxwell, 1990), at 44.
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EVIDENCE It must be mentioned, however, in view of recent developments the furore triggered by the decision in Hunt between the adherents 40 of the above rule and its opponents 41 who regarded the reasoning in Hunt as a licence to re-write Acts of Parliament or to subvert existing canons of construction 42 pales into insignificance for two reasons. First, the principles of Edwards and Hunt were approved by the High Court of Australia 43 and followed in England in R v Alath Construction Ltd., R v Brightman. 44 In that case, the chairman of a company which was developing a housing site on which a tree preservation order had been made and the company were charged with destroying a tree which was the subject of a preservation order contrary to section 102 (1) of the Town and Country Planning Act 1971. Counsel for the defendants raised a preliminary point of law that the prosecution must prove that the beech tree in question was not dying, dead or dangerous, or creating a nuisance, conditions which created an exception under section 60 (6) of the 1971 Act to the prohibition on destroying trees which were within the preservation order. The judge ruled that the burden of proof lay on the defendants to establish that the tree was dangerous, etc. The defendants appealed. The Court of Appeal, dismissing the appeal, held that where the burden of proof of a statutory offence was not expressly stated, the courts must look to the mischief at which the Act was aimed and the ease or difficulties that the respective parties would encounter in discharging the burden. Edwards and Hunt were followed. The second reason is that in the past seventy-four years since Woolmington the proliferation of statutory exceptions to the Woolmington principle has reached an alarming proportion. In a recent survey, it was found that no fewer than 40 per cent of offences triable in the Crown Courts appear to violate the presumption [of innocence]. 45 Indeed, there is some scepticism about the aptness of referring to the English criminal justice system as adversarial. 46 But the crucial question is whether the exceptions to the Woolmington principle violate Article 6 (2) of the European Convention and to this we now turn.
Zuckerman [1987] 103 LQR 170 and Birch [1958] Crim LR 221. Healy [1987] Crim LR 355; Smith [1987] 38 NILQ; and Mirfield [1988] Crim LR 19 and 233. 42 C. Tapper (ed.); Cross and Tapper on Evidence (London: Butterworths, 1999), at 134. 43 DPP v United Telecasters Sydney Ltd. (1990) 168 CLR 594. See J.D. Heydon and M. Ockleton, Evidence: Cases & Materials (London and Sydney: Butterworths, 1996), at 32. 44 [1990] 1 WLR 1255, [1990] Crim LR 516. 45 A. Ashworth and M. Blake, The Presumption of Innocence in English Criminal Law [1996] Crim LR 306 at 314. 46 See W. Twining, Rethinking Evidence: Exploratory Essays (Illinois: Northwestern University Press, 1994), at 181. Compare A. Ashworth, The Criminal Process: An Evaluative Study (Oxford: Oxford University Press, 1998), at 69.
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EVIDENCE

(4) THE HUMAN RIGHTS ACT 1998 AND THE BURDEN OF PROOF
In the run up to the coming into force of the Human Rights Act 1998 (HRA 1998) on 2 October 2000, the DPPs decision to prosecute under sections 16A and 16B of the Prevention of Terrorism (Temporary Provisions) Act 1989 as inserted by section 82 of the Criminal Justice Act 1994 was challenged as incompatible with the presumption of innocence guaranteed by Article 6(2) of the Convention in R v DPP, ex p Kebilene, R v DPP, ex p Rechachi. 47 In that case, Mr. Kebilene and others were charged with an offence of possessing articles, in themselves innocent, for terrorist purposes contrary to section 16A of the 1989 Act. Section 16A (1) provides: (1) A person is guilty of an offence if he has any article in his possession in circumstances giving rise to a reasonable suspicion that the article is in his possession for a purpose connected with the commission, preparation and instigation of acts of terrorism. This sub-section allows the prosecution to establish the terrorist purpose by showing something short of the proof because the reverse burden is placed upon the defendant by section 16A (3) which provides: (3) It is a defence for a person charged under this section that at the time of the alleged offence the article in question was not in his possession for such purpose as is mentioned in (1) above. Mr. Rechachi was charged under section 16A (as above) and section 16B (1) of the 1989 Act. Section 16B (1) makes it an offence for any person, without lawful authority or reasonable cause (proof of which lies on him) to collect or record any information of such as nature as is likely to be useful to a terrorist in planning or carrying out any act of terrorism or to have in his possession any such record or document. Pursuant to section 3 (1) of the HRA 1998 which makes it mandatory for courts to adopt a new interpretive approach not yet in force that provisions of domestic legislation must be construed in the light of Convention jurisprudence and issue a declaration of incompatibility (section 4) if there is a violation of Convention rights, the defendants challenged the DPPs decision to consent to the prosecution which palpably infringed Article 6 (2) the presumption of innocence.

47 [2000] 1 Cr App R 275, HL. For a trenchant critique, see P. Roberts The Presumption of Innocence Brought Home? Kebilene Deconstructed (2002) 118 LQR 41.

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EVIDENCE The defendants position was based on two grounds. The first is their legitimate expectation that the DPP would exercise his prosecutorial discretion in accordance with the Convention following the enactment of the HRA 1998 and in particular section 22 (4) of the Act 48 and from public statements made by ministers since the passing of the Act. The second is that the Prevention of Terrorism (Temporary Provisions) Act 1989 undermined the presumption of innocence and violated Article 6 (2) of the Convention because of the reverse burden placed on the defendants by section 16A (3) and 16B (1) of the 1989 Act. The judges in the Divisional Court (Lord Bingham CJ, Lord Justice Laws and Mr. Justice Sullivan) were adamant that sections 16A and 16B were incompatible with Article 6 (2) of the Convention. There are two countervailing considerations: (i) the exercise by the individual of the right guaranteed to him or her under the Convention as incorporated into the UK law by the HRA 1998; and (ii) the right of the State to take effective measures for the prevention of terrorist crimes. How are these considerations to be reconciled? Lord Bingham looked at the consideration in the continuum by interrogating the Canadian model and ruled that statements by ministers concerning the future conduct of themselves and their officials found no legitimate expectation concerning the future decision of the DPP. 49 He also held that both sections 16A and 16B undermined in a blatant and obvious way the presumption of innocence. 50 He cited with approval the rule propounded by Dickson CJC in R v Whyte 51 that The exact characterization of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the
The HRA 1998, s.22 (4) provides: (4) Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whether the act in question took place; but otherwise that section does not apply to an act taking place before the coming into force of that section. (emphasis added) Section 7 (1) of the Act provides: (1) A person who claims that a public authority has acted (or proposes to act) in a ay which is made unlawful may (a) bring proceedings against the authority under the Act in appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. 49 [2000] 1 Cr App R 275 at 282-284. 50 Ibid., p.289 F. 51 (1988) 51 DLR (4th) 481 (Supreme Court of Canada).
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EVIDENCE presumption of innocence because it permits a conviction in spite of considerable doubt in the mind of the trier of fact as to the guilt of the accused. 52 The rationale for this rule is that the Canadian Charter of Rights and Freedoms 1982, a constitutional document, is fundamentally different from a statute and any statute, for that matter, must conform to it. For the rule to apply, there are two tests: (i) the judge must ascertain whether the provision in question violates the presumption of innocence in section 11(d) of the Charter; and (ii) apply the limitation set out in section 1 of the Charter. 53 Section 1 provides that the rights and freedoms which it guarantees are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The two tests are analytically distinct. Applying the above tests, the House of Lords came to a different conclusion that sections 16A and 16B did not violate Article 6 (2) of the Convention. Two principal reasons were proffered. First, Lord Steyn felt that the policy underlying the HRA 1998 would be severely undermined if it could be outflanked by framing the case as a challenge to the prosecutors will to enforce the law. 54 Second, Lord Hobhouse stated that criminal statutes which in certain circumstances partially reversed the burden were not uncommon and that the decision of the European Court on Human Rights and Commission showed that they were not necessarily incompatible with the Convention. 55 It is true that Lord Bingham applied Dickson CJCs first test and not the second but the decision of the House of Lords, as I intend to show, is problematic. In spite of the disfavour with which reverse legal burden has been regarded in Commonwealth jurisdictions, for example, in Attorney-General of Hong Kong v Lee Kwon-kut 56, Oakes 57, Whyte 58 and State v Mbatha 59, the Law Lords proceeded by applying (in addition) the second test cited above. The majority (excluding Lord Cooke of Thorndon) erroneously drew considerable strength from Salabiaku v France. 60 In that case, the European Court was concerned with an article in the Customs Code which provides that where possession of prohibited goods was established, the person in possession is deemed liable for smuggling. The Court
52 53 54 55 56 57 58 59 60

Ibid., p.493 (emphasis added). R v Oakes (1986) 26 DLR (4th) 200, per Dickson CJC at 223. [2000] 1 Cr App R 275 at 316. Ibid., p.343 E-F. [1993] AC 951. Supra, n.53. Supra, n.51. [1996] 2 LRC. 208 (South African Constitutional Court). (1988) 13 EHRR 379.

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EVIDENCE held that there was no failure to comply with Article 6 (2) and issued the following guidelines: Presumptions of fact or of 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) does not therefore regard presumptions of fact or of law provided for in the criminal law with difference. It requires the States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence. 61 Taking into account what is at stake, namely, terrorism and maintaining the rights of the defence bring into focus the second test enunciated by Dickson CJC above. In other words, in interpreting the statutes pursuant to section 3 of the HRA 1998 an element of discretion resides in the court to find an acceptable means of dealing with an otherwise incompatible provision either in the public interest or because it is necessary in a democratic society. This may entail reading down a piece of legislation, that is, where statutory language bears two meanings such as legal and evidential burdens of proof, the narrow meaning (i.e. evidential burden) is applied in order to ensure that the legislation is valid. 62 This must be contrasted with reading in 63 or reading out 64 words in order to uphold the validity of statutes. Whilst reading in is acceptable, reading out is not. Relying on Salabiaku v France as the leading case and reading down the burden of proof from legal to evidential, Lord Hope of Craighead opined: Statutory presumptions which placed an evidential burden on the accused, requiring the accused to do no more than raise a reasonable doubt on the matter with which they deal, do not breach the presumption of innocence. They are not incompatible with Article 6 (2) of the Convention. 65

Ibid., p.388 at para. 28 (emphasis added). For an overview of the constitutional principle of reading in and reading down words used in a statute, see R. Clayton and H. Tomlinson, The Human Rights Law (Oxford: Oxford University Press, 2000), Vol. 1, at 54-59. See also R.A. Edwards, Reading down legislation under the Human Rights Act (2000) 20 LS 353. 63 See Miron v Trudel [1995] 2 SCR 418 and Vriend v Alberta (1998) 156 DLR (4th ed) 385 (Supreme Court of Canada). 64 See P. Lewis, The Human Rights Act 1998: Shifting the Burden [2000] Crim LR 667 at 673. 65 [2000] 1 Cr App R 275 at 324.
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EVIDENCE Lord Hopes position is problematic for two reasons. The first is that the juridal basis of the proposition is questionable. We are reminded by Lord Cooke that Professor Glanville Williamss suggestion that statutes should be read down in order to uphold their validity was rejected in New Zealand. 66 The second, and more important reason, is the assumption that Salabiaku v France is the leading case. In European Convention jurisprudence where the doctrine of stare decisis does not apply as we understand it in the United Kingdom, the European Court at Strasbourg regards its previous decisions as a starting-point rather than as binding precedents 67 Two European cases cast doubt on the assumption and on the House of Lords decision in Ex parte Kebilene. In Barbera, Messegue and Jabardo v Spain 68 the applicants, allegedly members of a Catalan separatist organisation convicted of murder, complained of violation of Article 6 (1) and (2) of the Convention. It was held that there could be a violation of Article 6 (1) where there is evidence that the principle of adversarial proceedings and equality of arms had not been followed and Article 6 (2) because members of the Court had started with the preconceived idea that the accused had committed the offence charged. Recently, in Telfner v Austria, the guiding principle was enunciated as follows: [I]t is for the national courts to assess the evidence before them, while it is for the Court [at Strasbourg] to ascertain that the proceedings considered as a whole were fair, which in case of criminal proceedings includes the observance of the presumption of innocence. Article 6 (2) requires, inter alia, that when carrying out their idea that the accused has committed the offence charged; the burden of proof is on the prosecution, and any doubt should benefit the accused. Thus the presumption of innocence will be infringed where the burden of proof is shifted from the prosecution to the defence. 69 In that case, the applicant was convicted of causing injury by negligence in a car accident. The applicants mother, the owner of the car, was not driving the car. His mother and sister had exercised their right not to testify. The domestic court relied on allegations made in the police report according to which the car in issue was mainly used by the applicant. The European Court found that this was arbitrary and violated the presumption of innocence in that it wrongly placed
Ibid., p.318. See R v Phillips [1991] 3 NZLR 175. D. Feldman, Civil Liberties and Human Rights in England and Wales (Oxford: Oxford University Press, 2002), at 51. 68 (1989) 11 EHRR 360. 69 (2002) 34 EHRR 7 at [15].
67 66

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EVIDENCE the burden of proof on the defence. The decisions in Barbera and Telfner cast serious doubts on Salabiaku v France as the leading case and on Ex parte Kebilene itself. However, cases decided sequel to Kebilene bring into focus the need for the reconceptualisation of the marcescent Woolmington principle. In R v Gibson 70 it was held that on a charge of acquiring, using or having possession of the proceeds of criminal conduct, it was not necessary for the prosecution to disprove the defence that the defendant has acquired or used or had it for adequate consideration. Again, in R v Lambert 71 it was held that the provisions of section 2 (2) of the Homicide Act 1957 and sections 5 (4) and 28 of the Misuse of Drugs Act 1971 placing reverse burden on the defendant did not violate Article 6 (2) of the Convention. In R v Benjafield 72 it was held that where applicants had pleaded guilty, sentences had been passed and confiscation order had been made before the HRA 1998 came into force, their rights under the Convention were not engaged; and in R v Kansal (No. 2) 73 it was held that although the HRA 1998 was retrospective in respect of proceedings brought by or at the instigation of public authority, it was not retrospective in respect of appeals. More recently, in Sheldrake v DPP, Attorney Generals Reference (No 4 of 2002) 74, it was held that statutory defences available to an accused person imposed a reverse burden of proof upon the defendant and did not violate Article 6 (1) and (2) of the Convention. In Sheldrake D was charged with being in charge of a motor vehicle after consuming alcohol in excess of the prescribed limit contrary to section 5 (1) (b) of the Road Traffic Act 1988. Section 5 (2) of the 1988 Act provides: It is a defence for a person charged [under section 5 (1) (b)] to prove at the time he was alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle whilst the portion of alcohol in his breath exceeded the prescribed limit. The justices were of the opinion that section 5 (2) which placed a reverse burden of proof on D did not violate Article 6 (2) of the Convention. On appeal by way of case stated, the Divisional Court held that the statutory defence contained in section 5 (2) prima facie
(2000) The Times, 2 March. See also Phillips v United Kingdom (2001) The Times, 13 August. 71 [2001] UKHRR 1074, H.L. See also R v Johnstone [2003] 1 WLR 1736. 72 [2002] 1 All ER 815. See also HM Advocate v McIntosh [2001] HRLR 20, P.C. 73 [2002] 1 All ER 257, HL discussed in D. Beyleveld, R. Kirkham and D. Townend, Which presumption? A critique of the House of Lords reasoning on retrospectivity and the Human Rights (2002) 22 LS 185. 74 [2003] 2 All ER 497, DC; [2005] 1 All ER 237, HL.
70

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EVIDENCE interfered with the presumption of innocence contained in Article 6 (2) of the Convention. Clarke LJ observed: I do not think that to impose a legal burden on the prosecution to prove that there was a real risk of his driving will cause undue problems for the prosecutors. It is not a heavy burden and should be capable of proof on the facts of the great majority of cases. It follows that I would hold that it has not been proportionate to impose a legal burden. 75 On reading down the burden of proof from legal to evidential burden, Clarke LJ opined: the question whether the particular provision should be construed as imposing a legal burden 0r read down as imposing evidential burden is whether it was necessary to do so. 76 In Attorney Generals Reference (No 4 of 2002), the reference was prompted by the acquittal of A on charges of being a member of a proscribed organisation, namely Hamas IDQ, contrary to section 11 (1) of the Terrorism Act 2000. Section 11 (2) provided that it was a defence for a person to prove that the organisation was not proscribed when he became a member and that he had not taken part in its activities at any time when it was proscribed. The Attorney General referred the case to the Court of Appeal pursuant to section 36 of the Criminal Justice Act 1972. Cutting away the frills, two questions were referred by the Attorney General for the opinion of the Court of Appeal, viz: (1) What are the ingredients of the offence created by section 11 (1) of the Terrorism Act 2000? (2) Does the defence in section 11 (2) impose a legal, rather than an evidential, burden, and if so, whether the legal burden is compatible with Article 6 (2) of the Convention? The two cases went on to the House of Lords as consolidated appeals. The House of Lords adhered to the erroneous conclusion that [t]he leading Strasbourg authority on the presumption of innocence is Salabiaku v France 77 A passing reference was made to Barbera, Messegue and Jabardo v Spain 78 (a relevant case on terrorism and Telfner v Austria 79 (which casts serious doubts on Salabiaku v France) without considering the legal reasoning of the judges in the European Court.

75 76 77 78 79

[2003] 2 All ER 517-518. Ibid, 518 (emphasis in the original). [2005] 1 All ER 237 at 247. Supra n68. Supra n69.

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EVIDENCE In Sheldrake, the House of Lords concluded that Ds conviction, properly analysed, did not rest on a presumption that he was likely to drive but on his being in charge of a car while unfit in a public place. The decision of the justices was restored. In Attorney Generals Reference (No 4 of 2002), Lord Rodger observed that section 11 (1) of the Terrorism Act 2000 was apt to catch people who joined the organisation before it was proscribed or who joined the organisation without knowing that it was proscribed or when an immature youth or those who joined abroad where it was legal and came to this country without knowing it was illegal here. 80 His Lordship argued that section 11 (2) singled out for favourable treatment those who became members before the organisation was proscribed and mitigated the rigour of the offence in section 11 (1) by providing a defence. He then relied on Salabiaku v France by stating that if the law provides for a defence and the defendant is free to deploy his case in support of that defence before the trial court, then the mere fact that the onus is on him to establish the facts giving rise to the defence does not constitute a violation of art 6 (2) or make his trial unfair for the purposes of art 6 (1). 81 Similar arguments were canvassed by Lord Bingham (who delivered the leading judgment) and Lords Steyn and Carswell; Lord Phillips concurred with Lord Bingham. Barbera, Messegue and Jabardo v Spain, Janosevic v Sweden 82 and Telfner v Austria (discussed above) were not critically assessed. The proliferation of cases where reverse burden is placed on the defendant in criminal cases leads to one conclusion: that in spite of the erudition and ingenuity with which the cases were disposed of, the issue of reverse burden of proof and compatibility with Article 6 (2) of the Convention is not going to disappear in a hurry. 83

(5) STANDARDS OF PROOF

(A) Criminal cases
A distinction is made between criminal cases in which the evidential burden but not the legal burden on a particular issue such as provocation or self-defence is bourne by the accused and criminal
[2005] 1 All ER 237 at 271h. Ibid, 273 d-e. 82 (2004) 38 EHRR 22. 83 See Hussain v United Kingdom (2006) 43 EHRR 22, R v Keogh [2007] 3 All ER 1500 and DPP v Wright [2009] EWHC 105 (Admin). For a critical assessment of reverse burden and Article 6 (2) of the Convention, see S.E. Salako, Strict Criminal Liability: A Violation of the Convention? [2006] 70 J Crim L 531 at 540-546.
81 80

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EVIDENCE cases where the evidential burden is bourne by the prosecution. In case of the accused, such evidence must suggest a reasonable possibility. In case of the prosecution, such evidence, if believed, and is left uncontradicted be accepted by the jury as a proof. 84 The standard of proof required is proof beyond reasonable doubt. 85

(B) Civil cases

In civil proceedings, the party with legal burden also bears the evidential burden and the standard in each cases is on the balance of probabilities. When a crime is alleged in civil proceedings, the standard of proof is the balance or preponderance of probabilities. In Hounal v Neuberger Products Ltd. 86 the plaintiff, a director of the defendant company, falsely stated that a machine had been reconditioned by a named firm. In an action for damages for breach of warranty, or in the alternative for fraud, the county court judge was satisfied on the balance of probabilities that the false statement had been made as alleged, and he applied that standard of proof. The standard of proof in matrimonial proceedings is the balance of probabilities. 87 Legal Burden in Criminal Cases. The standard of proof required as stated in Woolmington v DPP is proof beyond reasonable doubt. The question is: What is reasonable doubt? According to Phipson, it is better for a judge not to attempt to explain to the jury what is meant by reasonable doubt unless they specifically ask for direction on this point. 88 In R v Hepworth 89 a Recorder was rebuked by the Court of Criminal Appeal for using the word satisfied. In Dawson v R 90, Dixon CJ said: In my view it is a mistake to depart from the timehonoured formula. Perhaps the best definition is that proffered by Denning J (as he then was) in Miller v Minister of Pensions: 91 That degree is well settled. It need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with
Jayasena v R [1970] AC 618 at 624. Woolmington v DPP [1935] AC 462. 86 [1957] 1 QB 247, [1956] 3 All ER 970. See also Re H (minors) [1996] AC 563 and In re L (minors) (1995) The Times, 3 July. 87 Preston-Jones v Preston-Jones [1951] AC 391 and N v N (1991) The Times, 13 August. 88 M.N. Howard, et al., Phipson on Evidence (London: Sweet & Maxwell, 2000), at 78. 89 [1955] 2 QB 600. 90 (1961) 106 CLR 1 91 [1947] 2 All ER 372.
85 84

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EVIDENCE the sentence of course it is possible but not in the least probable the case is proved beyond reasonable doubt but nothing short of that will suffice. 92 Lawton LJ observed that if judges stopped trying to define that which is almost impossible to define there would be fewer appeals. 93 It is now safe to assert that judges should not volunteer an explanation of the expression but should adhere to the time-honoured formula beyond reasonable doubt.

(C) The third standard

There are two pertinent questions arising from a critical assessment of case law: Is there a third standard between the civil and the criminal standards? Are there degrees of proof within the same standard? The first question must be answered in the affirmative. For example, a claim for rectification must be established by strong, irrefragable evidence. 94 In cases of professional misconduct the Judicial Committee has called for a high standard as professional men cannot condemn each other on mere probabilities. 95 As regards the second question, the degree of proof within the same standard, Denning LJ in Bater v Bater 96 opined: In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within the same standard So also in civil cases the case must be proved by a preponderance of probability, but there may be degrees of probability within that standard. 97 The latter view has been endorsed in Khawaja v Secretary of State for the Home Department 98 where the House of Lords considered the standard of proof in immigration cases involving the liberty of the person. Lord Scarman said: The flexibility of the civil standard of proof suffices that the court will require the high probability which is appropriate to what is appropriate to what is at stake. 99 Again, in Lawrence v Chester Chronicle 100 it was held that on trial of defamation action by a jury, it was not generally necessary for the
Ibid., pp.373-374. R v Ching [1976] 63 Cr App R 7. 94 Countess of Shelbourne v Earl of Inchiquin (1781) 1 Bro CC 338. 95 Bhandari v Advocates Committee [1956] 3 All ER 96 [1951] p.35. 97 Ibid., at 36-7. 98 Ibid., at 36-7. 99 Ibid., p.113. See also Karanakaran v Secretary of State for the Home Department (2000) Times, 16 February, CA 100 (1986) The Times, 8 February, CA
93 92

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EVIDENCE judge to direct the jury as to the flexibility of the civil standard of proof according to the seriousness of the alleged defamatory statement; that it was a matter for the jurys common sense. Recently, in Royal Brompton Hospital National Health Service Trust v Hammond 101 it was held that in striking out a claim under the Civil Procedure Rules, the judge should have regard not only to witness statement but whether supplemented by evidence at trial the claim was bound to fail even though unchallenged; and that the normal standard of proof, on a balance of probabilities was not appropriate.

101 (2001) The Times, 11 May, CA. See also Heine v Jyske Bank (Gibraltar) Ltd. (1999) The Times, 28 September, CA where it was held that the standard needed to establish a claim in equity to make good a loss against a person as a constructive trustee for dishonestly assisting breaches of fiduciary duty by a bank employee need not be as high as the criminal standard but must involve a high level of probability.

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