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Everyone is innocent until the contrary is proved.

--Henry De
Bracton.
Bracton suggested that it is presumed that every man is good
until the contrary is proved. This shows that the principles on
Presumption of Innocence (POI) has existed in thirteenthcenturies. In 1935, Viscount Sankey in Woolmington v DPP held
Throughout the web of English Criminal Rule one golden thread
is always to be seen that is it the duty of the Prosecution to
prove the Prisoners guilty This refers to the rule that the
prosecution bears the legal burden to prove the elements of the
offence beyond reasonable doubt. The accused bears only an
evidential burden to raise defences. Upon discharging of his
evidential burden, it is for the prosecution to disprove it beyond
reasonable doubt, otherwise the accused will be acquitted.
However, this rule is subjected to the defence of insanity and
statutory exceptions. In these two circumstances, the LB will
shifted onto the accused to prove his defence on the balance of
probabilities. Statutory exceptions refer to Parliamentary
Supremacy, where a statute expressly or impliedly shifts the LB
to the accused. Before 1st October 2000, the statutory reversals
will occur automatically. Since Human Rights Act 1998 came
into force, any reverse onus provision is subjected to challenge
on its incompatibility with Art 6(2) ECHR.
The first case concerning reverse onus in the UK is Lambert.
Lambert was charged with s5(3) Misuse of Drugs Act 1971
possession with intent to supply. He had relied on a defence in
s28, which expressly reverse the LB to him to prove that he had
no knowledge of the substance. Lambert was convicted. He
appealed, on the ground that s28 is incompatible with Art 6(2).
The HOL dismissed the appeal on the basis of ex post facto law.
However, their obiter suggested that s28 was incompatible with
Art 6(2) and therefore should be read down as to impose only
an EB to the accused. Lord Steyn referred to Ex Parte Kabeline
and came out with a test of proportionality, which requires the

courts to balance between the aims of the statute and the


measures used to achieve it. His Lordship however, had failed
to lay down proper guidelines for this test.
Ian Dennis identified 6 factors that are likely to be considered
when the courts are deciding the justifiability of reverse onuses.
Judicial Deference.
This factor deals with how much deference should the courts
show to the Parliament. As a result of s3(1) HRA 1998, judges
are now allowed to depart from the traditional principle of
statutory interpretation and to assume that the legislations are
not intended to conflict with 1998 Act. However, one should
note that this really depends on how judges interpret the
relevant provisions.
The uphold of the literal rule was expressed by Lord Nicholls in
Johnstone, where he described the courts role as one of review,
and should therefore show respect to the legislatives will. His
Lordship further suggested that the courts should interfere only
when the Parliament has attached insufficient importance to
POI. A different view was expressed in Sheldrake where Lord
Bingham warned the courts not to give too much weight on the
legislation compared to POI. However, both are not wrong and
the deference is just a matter of degree.
Classification of Offence
This factor deals with the distinction between mala in se and
mala prohibita. In Lambert, Lord Clyde held that reverse onus
provisions which concern regulatory conducts such as the
requirement to have a licence in order to carry on certain kinds
of activity may be compatible with Art 6(2). This is because
such cases are mainly involve monetary penalty.

The difficulty regarding this element was identified by Ian


Dennis where he stated that the distinguishing between mala in
se and mala prohibita is a problem per se. In Daviel, the COA
held that regulatory offences generally punishable by fine.
However, many offences which are punishable by fine also
carry possible custodial sentences.

Element of Offences and Defences


This factor deals with the distinction between the elements of
the offence and defence. In AG for Hong Kong v Wong Kwung
Kut, Lord Woolf said if the prosecution proves the essential
ingredient of the offence, the reverse onus onto accused is
more likely to be acceptable. Conversely, in Ex Parte Kabeline,
Lord Hope said if the defendant is asked to prove the essential
element of the offence, the reversal of LB may be difficult to
justify.
This element often been criticised. Lord Steyn in Lambert said
that the distinction would sometimes be unprincipled and
arbitrary. His Lordship observed that the difference between the
element of offence and defence is only a matter of drafting
techniques and a definition of on offence could be reformulated
so as to include all possible defences within it. His Lordship
further suggested that the best thing to focus on is the issue of
substance.
Maximum Penalties.
This factor concerns with the seriousness of the offence. In
Davies, Turket LJ said the absence of risk of imprisonment was
undoubtedly as important factor when determining a legitimate
reverse onus. Similarly, in Johnstone, Lord Nicholls held that the
more serious the punishment, the more compelling must the
reasons be for imposing a LB.

The idea behind it is to avoid harsh penalties to the defendant


simply because they were unable to prove their innocent. An
example would be in Sheldrake, where the HOL upheld the
reversal burden when the penalty of the offence was just 6
months of imprisonment, while in AGs Reference (No.4 of
2002) the HOL gave an EB for an offence carrying 10-years
imprisonment.

Ease of Proof and Peculiar Knowledge


This factor depends on who has the easier task of proving LB. If
it is easier for the accused to prove LB than the prosecution,
the courts will more likely to uphold the reversal burden. This
can be seen in L v DPP and Johnstone, whereby Lord Clyde and
Lord Nicholls respectively regarded the defendants own
knowledge as the relevant factor to be considered when
deciding the compatibility of reverse onus.
It is worth mentioning that the ultimate idea of reverse onus is
to save cost and ease the task of the prosecution. However, Ian
Dennis had emphasised that even where the proof of guilt
would be difficult for the prosecution, it does not follow that the
disproof of guilt would be easy for the defendant. He further
suggested that the focus should be imposed on weight on the
defendant rather than the prosecution.
Presumption of Innocent.
POI may also function to allocate risk of miscarriage of justice.
The outcome of the wrongful conviction is regarded
significantly worse that the outcome of wrongful acquittal. As

pointed out by Sir William Blackstone, Better that ten guilty


person escape than that one innocent suffer.
In AGs Reference (No.4 of 2002), the accused was charged with
s11(1) Terrorism Act 2000 being or professing to be a member
of proscribed organization. S11(2) requires the accused to
prove that he had not taken part of the activities. Lord Bingham
decided that the offence in s11(1) was extraordinary breadth
and defence in s11(2) was impossible for the defendant to
prove. Therefore, his Lordship held that s11 was incompatible
with Art 6(2) and therefore should be read down as to impose
only an EB.
It seems that Lord Bingham had preserved the principle of POI.
This illustrates that Art 6(2) has provided second consideration
on POI which might possibly be neglected by Parliament.
Hence, it is submitted that the courts should always bear in
mind the importance of POI when deciding the justifiability of
reverse onus.
So, as to what extent has Art 6(2) done to preserve defendants
right? Well, at least something is better than nothing. Art 6(2)
requires the court to consider the importance of POI. It may not
be absolute and it does not guarantee the reverse onus will be
read down, but even when the reverse onus is upheld, it will
most likely be proportionate and does not infringe the
defendants convention right. Thus, it is submitted that Art 6(2)
has provided the defendants a stronger protection on POI.