#10521 - Burden Of Proof Essay - Criminal Procedure and Evidence

• Viscount Sankey’s “Golden thread” of English law in Woolmington v DPP: for the prosecution to prove all elements of a crime and to negative any defence D used.

  • Subject to common law defence of insanity and any statutory exception.

  • Carr-Briant – D proves on BoP

  • Followed by s.101 + Edwards/Hunt cases in which number of statutory reversals grew.

• Reinforced Art 6(2) - “everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.

• There are now many instances in which Parliament has enacted statutory exceptions to the presumption of innocence. These reverse burdens are read in light of HRA, some being construed under s.3 as reverse evidential burdens (so only need to produce evidence raising issue), while some are upheld.

• ECtHR position in Salabiaku calls for reverse presumptions to operate ‘within reasonable limits’ taking into account what is at stake and maintaining the rights of the defence.

  • Has been taken to necessitate balancing exercise between public interest and rights of the accused.

  • But there are key uncertainties in trying to understand what is and is not compatible. A set of principles from A-G Reference No1 of 2004 was rejected by the HL in Sheldrake: said should look at each case individually

Lack of consistency/principle

• Dennis: “forensic lottery”

• Roberts and Zuckerman “blizzard of single instances”

• Munday: “Court will find itself wandering in Tennyson’s wilderness of single instances”

• Tausz and Ashworth: “the only certainty is that courts should use s.3 of the HRA fully”.

Relevance in practice

• Ashworth and Blake: 40% of offences triable in Crown Court appeared to place burden of proof on D or impose SL.

Burden of proof = is it a matter for purely procedural or substantive analysis?

• Seems against British constitution for courts to analyse the correctness of the offences substantively, but in Kebilene and Lambert the judges seemed to take that approach.

ECHR position

• Salabiaku v France – accepted that presumptions operate in every legal system but that they must stay ‘within reasonable limits’ which take into account what is at stake and maintain the rights of the defence.

  • Take account of whole trial process and need for fair trial more generally

• Ashworth – ECHR jurisprudence here was “flaccid” = no details.

The Substantivist View = Tadros and Tierney

Summary:

• Substantive application of 6(2) broader than that applied by the courts – say it allows courts to review substantive content of criminal law, e.g. absence of MR in SL offences.

  • Right is interfered with if the offence warrants conviction of those not the intended target of the offence.

  • Judge must consider full effect of leg on the right, rather than formalistic approach.

• They distinguish between purpose of offence and technical definition of the offence, and say 6(2) is infringed when it deliberately captures conduct which is not within intended purpose.

• Asking when the burden is interfered with:

  • Orthodox approach looks at extent to which burden is on accused for constitutive elements of the offence or defence. There is interference w/ presumption when BoP shifts in relation to definitional element.

    • So only has evidential consequences – the right sets the burden and standard of proof in relation to offences and defences.

    • Issues w/ orthodox approach: Parliament can just restructure the offence to get rid of the interference.

  • Example: 16A Prevention of Terrorism Act 1994 from Kebilene – prosecution had to prove BRD that D had article in possession which created reasonable suspicion that it was there to be used for a terrorist purpose. It is up to defence in 16A(3) to prove they were not for terrorist purposes.

    • Under Roberts’ view: all elements of offence on prosecution – to prove possession and suspicion follows. Sees other part as a defence.

    • But T&T: it is not an offence to have articles giving rise to suspicion of terrorism, it is an offence to have articles for the purposes of terrorism. The offence, however, permits conviction of those who carry articles giving rise to reasonable suspicion = so there is no obligation on prosecution to prove element of offence of having terrorist purposes.

  • In Sheldrake the DivCourt said to look at the ‘gravamen’ of the offence rather than its technical definition

    • Lord Bingham looked back on Kebiliene and thought there was an interference once looked at what the AR and MR were – possession of articles which are intended to be used for terrorist purposes.

    • 2 approaches:

      • Roberts would say gravamen is ‘wrong at which offence is aimed’ – some offences there to forestall more serious wrongs –

      • T&T reject this – if true, all such offences of intent to supply/etc would interfere because the gravamen wasn’t proven.

    • Sheldrake suggests gravamen to mean purpose – concerned RTA offence which was seen to be controlling those actually at risk of driving.

      • T&T think that its easier to discern purpose than Roberts’ ‘’wrong’’ approach.

  • So T&T: read 6(2) in context of purpose of offence rather than context of its technical definition- they say it accords w/ Parl Sov.

    • So protection even if prosecution must prove all elements of offence as technically defined – 6(2) has substantive and procedural protection.

• Strict liability

  • Barnfather: SL held to be compatible bc 6(2) about procedure regarding offences, not their substance.

    • Odd result since if not SL and just a reverse onus then would not be compatible.

• Factors:

  • Ease of proof – T&T don’t like arguments that D can prove particular facts in Ds knowledge – can be difficult.

  • Seriousness of threat to society = paradoxical factor. Seriousness of offence = greater harm to public but also greater risk to D.

  • Seriousness of the offence and of the penalty = can be decisive, but only clear indication is in trivial and regulatory crimes – Davies.

    • Note crticisim on using regulatory notions – can be as stigmatic for D etc.

Conclusion

• For prosecution to prove all elements needed to prove the behaviour was in the purpose of the offence.

• Not addressing proportionality in proper way but prop should be limited to number of offences w/ low penalties

• Parl Sov

  • T&T see need for rigour w/o undermining Parliament. Not that prejudicial to parl sov because Parliament can create criminal offences in pursuit of any purpose without violating it, so long as nobody convicted for behaviour which it is not the offence’s purpose to control.

Rationale: they point to rationale as the need to give greater weight to Ds rights than to public interest in law enforcement. Hamer questions why we assume that there is no substantial public interest in preventing wrongful acquittals.

Criticism

• Hamer: contrary to parl sov, despite what they say.

  • Surely deciding upon competing values is essence of leg choice.

  • Creates tensions between leg and judiciary, which Hamer doesn’t like.

The Proceduralist View = Roberts

Restrictive procedural interpretation of the presumption of innocence.

• Believes presumption only applies to the elements of the offence, and that for affirmative defences Art 6 has no bearing.

• He recognises risk of “slipping into a sterile formalism” but says this is better than tainting the “conceptual purity of the law of evidence”.

  • He cites substantive concepts as w/o doctrinal foundation and against parl sovereignty.

• Simplicity here, says Hamer

  • Substantive approach enquires into fundamental nature of criminality + tries to identify central matters to crime. This is complex.

• Roberts doesn’t ignore substantive issues completely: would allow a reverse burden defence but take a substantive approach to reverse burden on an element

  • So in Lambert in rel to defence of lack of knowledge – had knowledge been a presumed element he would have applied 6(2).

    • Hamer –this is just more complex.

The English courts have applied 6(2) with little reliance on formal distinction between ofence and defence – Lord Steyn in Lambert: “concentrate not on the technicalities and nicesties of language but rather on matters of substance”.

Dennis

Dennis takes more descriptive analysis than above.

• Criticises the HL in Sheldrake for not clearly identifying the principles by which to assess reverse burdens, pointing out the random use of factors.

• Dennis has surveyed the authorities to create structured guidance which would help trial judges decide with more consistency and coherence; but even he doubts the result.

  • He comes up with a general principle which requires value judgment, and is subject to moral and pragmatic exceptions.

  • He notes that the package is “of such complexity and controversy” as to raise the question of whether the search for principle should be abandoned.

• If you use his outlined factors below = cases decided individually. We need more structured approach and more coherent decisions.

6 factors in courts’ approach

1. Judicial deference:

   1. Starting point seen in Kebilene that there are some areas in which judiciary must defer to Parliament. Stated more strongly in Johsntone where Lord Nicholls said court had tolr of review, rather than police decisions over constituent elements of offences.

   2. This review approach was taken up in A-G Ref No 1 of 2004, but in Sheldrake Lord Bingham said that courts should not take their responsibility under s3 lightly and too much deference can lead to too little consideration of the presumption.

   3. Huge divergence of views here, says Dennis. Esp because there is no detailed and clear analysis of legitimate aim + proportionality

      1. Dennis thinks...