QUESTION

To what extent has the 'presumption of innocence' enunciated in Woolmington v DPP [1935]
AC 462 vis-a-vis criminal cases changed in light of the Human Rights Act
1998?
Discuss.
INTRODUCTION

The burden of proof is where the party in dispute has a legal obligation to satisfy the
courts that certain facts are true by providing sufficient justifications up to a specific
standard of proof. This clearly shows that burden of proof exists in both criminal and civil
trials but it should be noted that the question is focusing on the allocation of burden in the
criminal trials. The law recognised two different types of burden which are the ‘legal burden’
and the ‘evidential burden’. A legal burden in a criminal trial is where it falls on the
prosecution to prove the elements of the offence charged ‘beyond reasonable doubt’1. As
per Viscount Sankey in the case of Woolmington v DPP2 stated that the decision of reversing
the burden of proof of defence to the accused was wrong and the prosecution has to be the
person who bears it. This was stated his judgement, “No matter what the charge or where
the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the
common law of England and no attempt to whittle it down can be entertained.”

Wigmore stated that a legal burden is also called as ‘the risk of non-persuasion’ 3
because it may result in acquittal of accused if the prosecution fails to discharge their legal
burden. On the other hand, evidential burden is where it falls on the accused to adduce
evidence(s) beyond reasonable doubt for the courts to take into consideration. By adducing
the evidence, the accused creates a defence of live issue4 beyond reasonable doubt.
Therefore, this broadens the duty of legal burden by the prosecution to disprove the
defence.5

1 The standard that must be met by the prosecution's evidence in a criminal prosecution: that no other logical
explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming
the presumption that a person is innocent until proven guilty. http://legal-
dictionary.thefreedictionary.com/Beyond+a+Reasonable+Doubt (10/12/2015) (12.30a.m.)
2 Woolmington v DPP [1935] AC 462.
3 Ian Dennis, The Law of Evidence. 3rd edition, Thomson Reuters, Sweet & Maxwell 2006, page 451
4
5 This two burdens has been judicially distinguished in many cases e.g. Jayasena v R (1970) , Edwards (1975)
6 CARDINAL PRINCIPLES

1) CLASSICATIONS OF OFFENCES
There are two different types of offences which are mala prohibita (regulatory
acts) and mala in se (acts that are truly criminal). In the case of R v Lambert (2001),
Lord Clyde in his lordships agreed that reading down the legal burden to the accused
may be compatible with article 6(2) of the Human Rights Act (1998) if its concerns
regulatory control. This is because such cases mainly involves monetary penalties,
trivial and no real social disgrace carried.6 This reasoning was applied later in the case
of Davies v Health and Safety Executive where the court applied s.40 of the Health
and Safety at Work Act 1974 and stated that it only concerns the health, safety and
welfares of the employees and do not carry the risk of imprisonment (regulatory). It
was held to be proportionate and compatible with Article 6(2) as there was an
express statutory reversal of the legal burden onto the accused.

Therefore, it is submitted that this principle creates a difficulty in identifying a clear

distinction between the regulatory act and acts that are truly criminal. Even though
the case of Davies recommends that regulatory offences are usually punishable by a
fine. However, a possibility for a custodial sentence for an offence which carries a
regulatory nature. In the case of R v Chargot (lord Hope) which is similar to the case
of Davies will be a good example. In this case, the courts used the same reasoning in
Davies and held that two years of imprisonment and an unlimited fine under the
Health and Safety (offences) Act 2008. This affirms the difficulty in providing a clear
difference between a regulatory act and acts that are truly criminal.

Therefore, as the courts did not provide further guidelines on this and the judicial
decision will be made on a case to case basis. Thus, it is opined that the courts
should recognise parliament’s intention in order to categorise them. In addition, in
the case of Pepper v Hart (1992), the courts held that the courts held that courts can
use the Hansard when there is a difficulty in deciding Parliament’s intention. Hence,
it is opined that this would sufficiently help to clarify the difficulty in identifying the
type of offences.

2) CONSTRUCTION OF CRIMINAL LIABILITY: ELEMENTS OF OFFENCES AND DEFENCES

6 Blackstone’s Criminal Practice 2012, Oxford University Press, 2011, 2382

 This principle focuses on the difference between the elements of offences and
defences. It is opined that it would be easier to reasonably justify the reversal of legal
burden to the accused of the offence is separated from the defence. This was
established by Lord Hope in the case of Lambert but it was disagreed by lord Steyn in
the same case by suggesting that the difference between offence and defence is
essentially that of a drafting technique. He further went on and recommended to
focus on the substance of the act. The examples of provocation, self-defence and
necessity were used to incorporate moral evaluations of the conduct of the accused
(similar to the requirement of mens rea). Therefore, it would be sufficient for the
prosecution to bear the burden of proof rather than the accused. Further, the case of
AG’s Reference (no.4 of2002) applied the same approach. It is opined that this
principle is not effective in easing judges to determine whether the reversal is
compatible with Article 6(2) of the European Convention of Human Rights (ECHR).
Therefore, a better guideline that the judges can follow in such situation is by
identifying the Parliament’s intention and identifying the rationale behind the
offence.

3) SIGNIFICANCE OF MAXIMUM PENALTY

The idea of this principle is to prevent harsh penalties on innocent individuals who
is unable to prove his innocence. Maximum penalties are usually indicated to the
seriousness of an offence. The courts will be more reluctant to shift the burden to
the accused as the maximum penalty is high. There is no clear guideline provided on
the maximum penalties as it differs from case to case by referring to the penalty of
the specific offence. Therefore, this principle can be compared using case laws.

Firstly, in the cases of R v Lambert, Lord Steyn stated that it was harsh to impose
life imprisonment and the legal burden should be read down. Further, in the case of
Sheldrake v DPP, House of Lords has however contrasted this decision by allowing a
reversal for a maximum penalty of 6 months. Moreover, in the case of R v Johnstone
reversal of burden was upheld where maximum penalty was 10 year imprisonment.
This was then contrasted in the case of AG’s Reference (no.4) (2002). In this case, the
courts held that it was too harsh to impose 10 years maximum penalty and refused
to shift the legal burden to the accused. Hence, it is opined that even though
 maximum penalties is a clear cut principle, it still does not provide a clear guideline
for the reversal of legal burden.

4) EASE OF PROOF AND PECULIAR KNOWLEDGE

This principle is where the ease of prove the legal burden between the accused
and the prosecution is compared. Therefore, if the accused has the sufficient
required knowledge to prove the legal burden and further if it is easier than the
prosecution to prove, then it would be proportionate to shift the legal burden onto
him. The difficulty that is faced here is that the peculiar knowledge can be easily
blurred with the state of the accused’s mind. As per Clarke LJ in Sheldrake v DPP who
stated that “There are very many aspects of the criminal law in which the state of
mind of the accused is of crucial importance but where the burden of proving it is on
the prosecution.”
In most cases, judges prefer to apply both elements of this principle separately.
The case of Ex parte Kebilene would be a good example where Lord Hope stated that
it is important when it comes to the question of proportionality to distinguish
between easy access and knowledge. This issue raised the question as to whether
the factor of peculiar knowledge should be maintained. Therefore, it should be noted
that the idea of reversal of burden is to make the task of the prosecution easier. In
the dissenting argument by Lord Hutton in the case of Lambert, peculiar knowledge
would be easier and hence proportionate for the accused to prove as it is a personal
issue which was within him ambit. Therefore, although this was true to a certain
extent, this does not mean that in every case that disprove of guilt would be easy for
the defendant.

5) JUDICIAL DEFERENCE
The question that is often asked after the HRA 1998 came into force, as to whether
how far should the court defer to the judgement of parliament. Lord Nichollas in
Johnstone’s case has emphasised that “parliament, not the court, is charged with
the…what should be the constituent elements of the criminal offences, the court will
reach a different conclusion from the legislature only when it is apparent, the
legislature has attached in sufficient importance to the fundamental right of an
individual to be presumed innocent until proven guilty”. Lord Woolf on the other
hand used the same approach in the case of AG’s Reference (no.1 of 2004) stated
that assumption should be that Parliament would not have made an exception to the
presumption of innocence with a good reason.
Further, in Sheldrake v DPP Lord Bingham stated that he has a doubt in Lord
Woolf’s approach by stating that such approach may result the court to give too
much weight to the enactment under review and a little on the presumption of
innocence and the obligation imposed on the court by s.3 of the HRA 1998. Hence,
Lord Bingham repeated this in the case of Brown v Scott that significant respect need
to be aid through the courts to consider the decisions of democratic assembles and
governments.
The different views leaves an issue rather uncertain. However Lord Hope’s view in
Kebilene may be subtle and used, which require the court to make a difference
among the legitimate goal and proportionality. Therefore, in identifying a valid aim
for the courts to consider policy goals of criminalisation being persued via the
applicable provision. It is able to be determined that by using identifying the social
and economic targets to be attained by penal provision they have tested within the
context of reverse burden and regarding them as legitimate. Then, the courts need to
ask whether or not the imposition of the reverse burden is proportionate to acquire
the policy aim of the offence.
Therefore, Ian Dennis emphasised that a strong principle of deference would seem
to be inappropriate if there’s no evidence that the parliament gave notion to the
presumption of innocence when it enacted the reverse burden. It has to constantly
be noted that the importance of Article 6(2) have to always prevail the principle of
deference. Hence, it is for the state to justify derogation from the presumption of
innocence and justifying arguments need to be compelling if they are succeed.

INTRODUCTION TO PRESUMPTION OF INNOCENCE

This rule of presumption of innocence means the defendant’s is presumed to be
innocent until proven guilty. This rule was established in the case of Woolmington v
DPP where Viscount Sankey LC stated ‘throughout the web of English Criminal Law,
one golden thread is always to be seen, that is the duty of the prosecution to prove
the defendant’s guilt. An academician, James B Thaver stated that burden of proof
had two meanings. Firstly, the risk of persuading the jury and secondly the duty of
going forward with the evidence to satisfy the judge. Therefore, the second meaning
is coherent to the topic of discussion which means that the burden to proof and to
convince the judge beyond reasonable doubt lays on the prosecution. This is where
the principle of presumption of innocence became significant.

EXCEPTIONS
(a) Insanity
Lord Sankey in the case of Woolmington v DPP has excluded the defence of
insanity expressly from the scope of this rule. In McNaughten’s case the burden
of proof of insanity was on the accused because ‘… every man is presumed to be
sane and to possess a sufficient degree of reason to be responsible for his crimes
until the contrary to prove to their satisfaction…’.Further, in the case of H v UK
(1990) the ECHR held that article 6(2) was not breached by this exception, since it
did not concern the presumption of innocence but presumption of sanity.
(b) statutory exceptions
i. express statutory reversal
other than that, Lord Sankey also excluded any statutory exception from
the scope og