INTORDUCTION

An evidence as per the legal way is described as a matter which is brought up or produced in the
court of law during the act of trial which the core purpose is to assist the seeker of the fact to
come to a decision on the conflict or issue in dispute and usually these seeker of fact as to be
viewed traditionally are the juries. Two constitute the Law of Evidence, several checklist has to
be checked which are it is relevancy, admissibility and weight.

BURDEN OF PROOF

This is a common law principle where by in criminal trials the prosecution bears the burden of
proof and traditionally this is called the golden thread of English Criminal Law,as to be seen in
the case of Woolmington v DPP 19351.

LEGAL BURDEN OF PROOF

The legal burden of proof describes the responsibility or the obligation which is imposed by the
courts of law on a party to satisfy the overall tribunal of fact as to the existence of facts at hand.
The very burden must be discharged at any cost or to be satisfied if the relevant party is to come
up successive on the issue at hand.

EVIDENTIAL BURDEN

Evidential burden of proof on the other hand is to be described as the obligation or responsibility
to put on display, if one is summoned to do so in believing that there is enough evidence at hand
to hold up a particular issue at hand as to the presence or existence of matter at hand. Lord
Bingham in Barrons Law Dictionary2 stated that the evidential burden is not at all a burden of
proof to start off, but it is just a burden which is used to bring upon a particular issue as to the
fact of the matter at hand whether it is fit for deliberation by the court of law or the tribunal.

1
Woolmington v DPP [1935] UKHL 1
2
Barron's Law Dictionary, pp. 55-56 (2nd ed. 1984).
PRESUMPTION OF INNOCENCE

Referred as per the Latin term, Ei incumbit probatio qui dicit, non qui negat , is a principle
which states that one is innocent till proven guilty. In many countries the legal right of an accused
is the presumption of innocence itself. In most cases it is the prosecutions duty to prove or show
that the accused is guilty beyond reasonable doubt and if there is still no clarity and the
reasonable doubt still stands still in the tribunal hence the accused will be acquitted. Lord Sankey
in the case of Woolmington v DPP 1935 quoted "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
prisoner's guilt subject to... the defence of insanity and subject also to any statutory exception.
If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence
given by either the prosecution or the prisoner... the prosecution has not made out the case and
the prisoner is entitled to an acquittal. 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."3

3
From a speech made by Lord Viscount Sankey in the case of Woolmington v DPP 1935.
EXCEPTONS OF THE LEGAL BURDEN

A.INSANITY DEFENCE.

As per the McNaghtens case4, it sets out that when the accused raises the defence of insanity, it
is hence for the accused to prove on the balance of probabilities that at the time of the
commencement of the offence, the accused is acting under such mental defect which is caused
from the disease of the mind, as he do not know the nature and the result of his act, hence to
satisfy the jury that the person is insane within the McNaghtens rule.

B.STATUTORY REVERSAL.

The accused will be bearing the legal burden according to the Parliaments intention in its
statute. It is also submitted that the very intention can be of express and implied.The express
statutory reversals places the burden of proof on a particular matter of fact on the accused.
Example of such provision can be seen in section 1(1) of the Prevention of Crime Act 19535 ,where
it states that any individual who with the absence of lawful authority or reasonable excuse, the
burden of proof whereof shall lie on the person and has the person in the vicinity of public place
carries a weapon of any sort shall be guilty of an offence and therefore be liable unless be proven
otherwise by him. Implied statutory reversals on the other hand can be seen in both summary
trials and indictment trials. For summary trials, the rules are set out in s 101 Magistrates Courts
Act 19806, where the accused relies his shield of defence on any exemption , the burden of proof
would be on the accused to prove that he or she is innocent, trials on indictment however can
be seen in the case of R v Edwards 19967 , where the accused was selling alcohol without license
and the defendant argued that it was the duty of the prosecutor to bring up any evidence to
prove that he had no license for selling the alcohol, the courts however ruled out that it was the
defendants duty to prove otherwise, therefore, it was solidly held that the legal burden would

4
MNaghten's Case [1843-1860] ALL ER Rep 229.
5
Prevention of Crime Act 1953
6
Magistrates Courts Act 1980.
7
R v Edwards, [1996] 1 S.C.R. 128
be on the accused. Further on, it is also said that such intentions or forms of reversals will bring
upon the issue of congruity following the presumption of innocence as had been stated in article
6(2) of the European Convention on Human Rights8.

PRE HUMAN RIGHTS ACT.

Before the very Human Rights act came into play in the United Kingdom, every single reversal of
burdens were upheld by the court instantly if it was written in a statute expressly9. It was also to
be said that the reason behind such reversals by the courts is because the courts recognizes the
power that the parliament possess in terms of Parliament Sovereignty that the court believes
that the parliament possess the authority and the power to come up with an exception to the
most important rules created.

POST HUMAN RIGHTS ACT.

The automatic reversal of burden however has changed after the incorporation of the Human
Rights Act 1998. First of all, S.4 of the Human Rights Act10 gives the courts the authority to make
a declaration of incompatibility for any statutory provision made by the parliament that they find
is not compatible with the European Community of Human Rights. A very good example of such
scenario can be illustrated in the case of R V Lambert11 where in this case the defendant was
charged under s.5 of the Misuse of Drugs Act 197112 for possession of controlled drugs with the
intention to supply. The defense for this offence was provided in S.28 of the Misuse of Drugs Act
197113 expressly where the accused can be acquitted if he or she can prove that he had not
known or had no knowledge at all that the substances or the drugs was in his possession. The
accused was convicted but then he appealed to the House of Lords, there, the majority ruled that

8
Article 6(2) European Community On Human Rights.
9
I.H. Dennis,The Law of Evidence 3rd Edition, Sweet & Maxwell, London, 2007, 448
10
S.4 of the Human Rights Act.
11
R v Lambert [2001] UKHL 37.
12
S.5, Misuse of Drugs Act 1971.
13
S.28, Misuse of Drugs Act 1971.
the Human Rights Act cannot be applied or be used retrospectively but further went to discuss
the end result if it were to be applied. The House of Lords confirmed the approach in the case of
R V DPP ex parte Kebeline14 and give an agreement that if the Human Rights Act to be applied, it
will raise an issue of incompatibility with the acts article 6(2), the presumption of innocence as
the positioning of the legal burden provided by the statute on the defendant in such
circumstances is said to be unreasonable as it will form a burdensome situation towards the
defendant. Lord Steyn given out his opinion that knowledge is a part of mens rea and the
prosecutors are the ones to prove it and not the defendant. The courts will then later on will
carry out their power under the provision of S.315 of the Human Rights Act to convert the legal
burden to an evidential burden. This therefore clearly shows that the reversal of legal burden
after the incorporation of the Human Rights Act is no longer deemed as automatic as now the
courts have to carry out the proportionality test before giving out the reversal of burden.

TEST OF PROPORTIONALITY

This particular test wholly relies on the very individuals case and follows the judiciary
interference with the presumption of innocence in need of a justification and should not be
bigger than what is required of it. As explained by Lord Hope in the case of Brown v Stott 200116,
explained that this principle of proportionality, a legitimate aim must be established and a
question of whether there were means used and the aim sought to be realized? Lord hope in the
case of R v DPP,ex parte Kebeline17, further said that a fair balance must be battered between
the general interest of the community at large and the paramount rights of the particular
individual

Furthermore, as a consequence of Lamberts case, it is said that the craftiness of reversal of legal
burden of its prima facie nature is incompatible with the Article 6 of the European Community
of Human Rights and must be reviewed upon in light with the rule of proportionality. In the case

14
R v DPP, Ex Parte Kebeline [2000] 2 AC 326
15
S.3, Human Rights Act 1998.
16
Brown v Stott (Procurator Fiscal, Dunfermline) and another - [2001] 2 All ER 97
17
REGINA V DIRECTOR OF PUBLIC PROSECUTIONS, EX PARTE KEBELINE AND OTHERS: HL 28 OCT 1999
of Sheldrake v DPP18, the judges has come up with a conclusion that in carrying out the test of
proportionality, the very necessary is to keep the balance of the interest of the society in the
workable elimination of the accused right to a fair trial.

IAN DENNISS SIX CARDINAL RULES

Whenever a provision expressly or impliedly puts the burden of proof on the accused in a criminal
case, the court now has no power to automatically allow such reversal anymore. In such
circumstances ,it now has to carry out the test of proportionality and reconsider the fact that
whether the stated provision is indeed in breach of the Article 6(2) of the European Community
of Human Rights. There are six factors which has been summarized by Professor Ian Dennis which
has to be taken into consideration when applying the test of proportionality which are namely:

1)Judicial deference

2)Classification of offences

3)Construction of criminal liability (which are the element of offences and defences)

4)The significance of maximum penalties

5)Ease of proof and peculiar knowledge

6)Presumption of innocence

JUDICIAL DEFERENCE

In light with the Human Rights Act 1998, the question to be asked is the difference in judgement
give by courts as oppose to the parliaments intention. In the case of R V Johnstone 200319,
whereby the accused was convicted in the production of counterfeit compact discs under the

18
SHELDRAKE V DPP (2004)UKHL 43
19
REGINA V JOHNSTONE: HL 22 MAY 2003
Trade Marks Act 199420, the accused argued that to put in the artists name on the compact disc
was not to be used as trade mark, leaving the prosecution to establish the offence under civil
before turning the act into that of criminal. Lord Nicholls has pointed out that the parliament and
not the courts is to be charged with, what to be known as a basic element of a criminal offence,
the courts will only be allowed to come up with a different judgement from the parliament if the
provision is to be considered giving the lack of importance to the paramount rights of the
particular individual under the presumption of innocence. Further, in the case of Attorney
Generals Reference (No.1 of 2004) 200421 , Lord Woolf undertook the very same approach,
giving out his ruling in regards that the Parliament could not have made an exclusion without a
good cause in regards of presumption of innocence. Furthermore, in the case of Sheldrake v DPP
200222 , Lord Bingham had given out doubt on what is said by Lord Woolf in the prior case,
whereby Lord Bingham said that, the very approach may lead out to absurdity on the fact that
the courts will give much importance to a legislation rather than the presumption of innocence
and the accountability which is given by the S3 of the Human Rights Act 1998 23. Professor Ian
Dennis gives out that a strong principle of deference would be inaccurate, only when there is no
solid evidence that the Parliament gave a thought to the presumption of innocence when it
comes up with the reverse burden. To be noted that the Article 6(2) should be the one that
prevail. It is also to be justified by the state, aspersion from the presumption of innocence and
stressing out the bickering if they were to prevail24.

CLASSIFICATION OF OFFENCES

This particular factor compromises with two different offences which are the mala in se and mala
prohibita. These two factors were extracted from the case of Lambert and the judgement that is
given by Lord Clyde, in which the Lordship gives no disagreement that the reversal of onus on the

20
TRADE MARKS ACT 1994
21
ATTORNEY GENERALS REFERENCE (NO.1 OF 2004) 2004 EWCA CRIM 1025
22
SHELDRAKE V DIRECTOR OF PUBLIC PROSECUTIONS; ATTORNEY GENERALS REFERENCE NO 4 OF 2002: HL 14
OCT 2004
23
S3 Human Rights Act 1998
24
Ian Dennis, The Law of Evidence, 4th Edition, 474-476
defendant may be in line with Article 6(2) if the statutory crime is in regard of the conduct
regulation25. The reason as to why such cases are immaterial is mainly because it involves
monetary penalties and does not affect the social in terms of disgrace. The approach by Lord
Clyde is later used in the case of Davies v Health and Safety Executive 200226, in which the courts
said that s.40 of the Safety at Work Act 197427 was somewhat only to be treated as a regulation
as it has no risk of imprisonment and only concerns the welfare of the employees. Hence, the
express statutory reversal of the onus is held to be proportionate to the Article 6(2). It is also said
that this factor has its difficulty as one cannot clearly distinguish between acts that are very
criminal and ones which are treated as regulatory. To sum it up, this classifications are
dependable on the judges own thought.

CONSTRUCTION OF CRIMINAL LIABILITY

A factor that concerns the differences between the aspect of offence and defence. Said that, if
only offence is separated from the defence with clarity, the justification of the reversal of onus
on the accused will be easier. It was said in the case of Lambert by Lord Hope28. Lord Steyn
however gave out his opinion that the differences between an offence and defence is by its
drafting skills. Lord Steyn further stated that it is of best to give attention on the concern of
material of the act such as the moral liabilities. He also used the example of self defence and
necessities for example of defences that comes with moral assessments of the defendats act
that is pretty same to the requirement of the mens rea. Saying so, the onus should be on the
prosecution but the defendant. Similar approach was followed in the case of Attorney Generals
Reference (No.4 of 2002)29. Too many distinction of opinions and views went on to say that this

25
Blackstones Criminal Practice 2012, Oxford University Press, 2011, 2382
26
Davies v Health and Safety Executive [2002] EWCA Crim 2949
27
Health and Safety at Work Act 1974, s 40
28
I.H. Dennis,The Law of Evidence 3rd Edition, Sweet & Maxwell, London, 2007, 464
29
Attorney Generals Reference No 4 of 2003 EWCA Crim 726
factor may not help the judges in deciding whether it is right to put the onus on the accused but
what seems to be more clear is the locating of Parliaments intentions and the reason behind
such offence and this to be a proper guide for judges in likewise circumstances.

SIGNIFICANCE OF MAXIMUM PENALTIES

The main idea is that the gravity of presumption of innocence is to be increased in regards to the
intensity of the offence and to avoid the fact of the innocent person to be punished with harsh
sentence just because he fails to prove his innocence. It is also acknowledged that more increase
in the maximum penalty, the more obvious the courts will shift the onus onto the accused.
Maximum penalties as much does not provide the clarity as the judges seems to be in different
opinions when ruling on when the burden should be reversed in light to the penalty of the crime.
In Lambert, Lord Steyn gives out his opinion on the importance of the life imprisonment penalty
when ruling out the reversal of onus. In the case of Sheldrake v DPP30, the HoL maintained the
reverse burden as the maximum penalty was 6 months. It is alerted that maximum penalties,
even if it is easy, does not really give a proper guide for the reverse of legal burden.

EASE OF PROOF AND PECULIAR KNOWLEDGE

Ease of proof gives out the distinction to prove the legal onus between the defendant and the
prosecuter. If the defendant has the necessary knowledge to prove the onus which is simpler
than the prosecution, it would be right to put the onus onto the defendant. The very controversy
is that peculiar knowledge can easily be confused with the state of mind of the defendant.
Leaving that some judges find it preferable to use both element of this particular factor
distinctively. An example could be seen in the case of Kebeline in which Lord Hope states the
importance of the proportionality to separate between easy approach and knowledge. Lord
Nicholls followed this idea in Johnstone. Should be alerted that the approach of reversal of onus
is to help the duty of the prosecution. Following Lord Huttons contradicting debate in Lambert,

30
Sheldrake V DPP (2003) UKHL 43
peculiar knowledge would be ideal and proportionate for the defendant to prove as it is within
the accuseds boundary.

PRESUMPTION OF INNOCENCE

This factor is to be treated as an establishment of the right to a fair trial under the Article 6 of the
HRA31. The courts must look into this before giving out the reversal of onus on the accused as it
acts as a shield to protect those who are a victim of wrongness of justice.

CONCLUSION

Hence, to be concluded, the golden thread has never in fact been complete, as there has always
been exceptions and difficulties. The outcome of each cardinal principles are different as the
courts have different opinions. All these trouble should be evaded in order for the presumption
of innocence to emerge victorious.

31
Article 6 Human Rights Act 1998
BIBLIOGRAPHY

BOOKS

Barron's Law Dictionary, pp. 55-56 (2nd ed. 1984).

Blackstones Criminal Practice 2012, (Oxford University Press, 2011)

Dennis I.H,The Law of Evidence 3rd Edition, Sweet & Maxwell, London, 2007

Dennis I.H, The Law of Evidence, 4th Edition

TABLE OF CASES

ATTORNEY GENERALS REFERENCE (NO.1 OF 2004) 2004 EWCA CRIM 1025

Brown v Stott (Procurator Fiscal, Dunfermline) and another - [2001] 2 All ER 97

Davies v Health and Safety Executive [2002] EWCA Crim 2949

MNaghten's Case [1843-1860] ALL ER Rep 229.

R v DPP, Ex Parte Kebeline [2000] 2 AC 326

R v Edwards, [1996] 1 S.C.R. 128

REGINA V JOHNSTONE: HL 22 MAY 2003

R v Lambert [2001] UKHL 37.

SHELDRAKE V DPP (2004)UKHL 43

Woolmington v DPP [1935] UKHL 1

TABLE OF STATUTES

European Convention on Human Rights,Article 6(2)

Health and Safety at Work Act 1974, s 40

Human Rights Act 1998,s.3

Human Rights Act 1998,s.4

Human Rights Act 1998,Article 6

Magistrates Courts Act 1980,s.101

Misuse of Drugs Act 1971,s.5

Misuse of Drugs Act 1971,s.28

Prevention of Crime Act 1953,s.1(1)

Trade Marks Act 1994