European Human Rights
'The distinction between constituent elements of the crime and defensive issues will sometimes be unprincipled and arbitrary. After all, it is sometimes simply a matter of which drafting technique is adopted: a true constituent element can be removed from the definition of the crime and cast as a defensive issue whereas any definition of an offence can be reformulated so as to include all possible defences within it. It is necessary to concentrate not on technicalities and niceties of language but rather on matters of substance. There are cases where the defence is so closely linked with mens rea and moral blameworthiness that it would derogate from the presumption (of innocence) to transfer the legal burden to the accused.' per Lord Steyn in R v Lambert [2002] 2 AC 545. Discuss the extent to which Lord Steyn, in the above quote, has summarised the approach of the courts to the question of whether a statutory reverse onus provision is incompatible with Article 6(2) of the European Convention on Human Rights.
The above quote must be taken in context. Before Lord Steyn made this speech there had not been many landmark decisions concerning the presumption of innocence. In one of the first decisions to touch on the presumption of innocence it was stated that;
Throughout the web of English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoners guilt
Nevertheless, it would seem that this golden thread had started to disappear, despite an international movement to the contrary. This is shown in the Universal Declaration of Human Rights 1948 (UDHR), the International Covenant on Civil and Political Rights 1966 (ICCPR) and the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR). Despite this international movement and clear principle in English case law, parliament, have insisted on legislating to the contrary. Ashworth & Blake found in 1996 that two hundred and nineteen examples, out of five hundred and forty offences triable in the Crown Court have legal burdens or presumptions operating against a defendant. They observed that no fewer than 40% of the offences triable in the Crown Court appear to violate the presumption.
Even the Criminal Law Revision Committee felt so strongly that they made the statement that they were strongly of the opinion that, both on principle and for the sake of clarity and convenience in practice, burdens on the defense should be evidential only It is against this backdrop that Lord Steyn has made his comments when he stated that 'The distinction between constituent elements of the crime and defensive issues will sometimes be unprincipled and arbitrary'
Lord Steyn felt that it was necessary to concentrate not on technicalities of language but substance.
To fully demonstrate his argument he referred to R v Whyte where the Canadian Supreme Court had rejected an argument that as a matter of principle a constitutional presumption of innocence only applied to elements of the offence and not excuses. Giving the judgment of the court Dickson CJC observed;
The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence. The exact characterization of a factor as an essential element, a collateral factor, an excuse, or a defiance should not affect that 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 presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.
While Lord Steyn does not to be dismiss reverse onus provisions completely, his statement seems to suggest that reverse onus be looked at on a case by case basis considering what is necessary and proportional. This is exactly the approach as it is in the European Court of Human Rights (ECtHR). It has been held in the European Court that Article 6 (2) does not prevent presumptions of law or fact from being in favor of the prosecution and against the defendant. However these presumptions must be 'within reasonable limits'. The essential problem with this reasoning is that it is not clear as to the extent to which 'reasonable' goes. Kier Starmer shows similar concerns.
This leads to the problem of proportionality that Lord Steyn referred to later on in his speech. Proportionality is not referred to in Article 6, which is not a qualified right in the same way as rights in Articles 8 to 11. However, it has been suggested by the European Court of Human Rights that proportionality is 'inherent in the whole of the Convention'. However, proportionality in the context of the rights in Articles 8 to 11, is not the same as reasonableness. Reasonableness, if applied to the current situation, suggests that if a reverse burden is one of a number of possible sensible approaches to meeting a legitimate legislative aim, then that reverse burden will be compatible to the European Convention. Proportionality, however usually requires that the interference with the Convention right in question is the least serious that will suffice to meet the aim in question. Proportionality is therefore a stricter test than reasonableness. This has also been suggested by Lord Steyn in R (on the application of Daly v Home Secretary
A more specific approach can be shown in R v DPP, ex parte Kebilene, which astonishingly Lord Steyn did not appear to comment on in his judgment. This case was concerned with how the reverse onus provisions in the Prevention of Terrorism Act (Temporary Provisions) 1989 offended against the presumption of innocence in Article 6 (2). Here, Lord Bingham decided that the provisions in a 'blatant and obvious way undermined the presumption of innocence'.
Lord Hope stated in the same case that the principle contained in Article 6 (2) was 'wholly consistent' with the common law of England and Scotland. Lord Hope pointed out the difference between an 'evidential burden' placed on the accused and a 'persuasive burden'. A 'persuasive burden' reverses the burden of proof. Statutory presumptions which place an evidential burden on an accused are not incompatible with Article 6 (2). His Lordship then outlined three species of persuasive burden. Firstly, there is the mandatory presumption of guilt as to an indispensable component of the offence and this presumption is not in agreement with the presumption of innocence. Secondly, there is the presumption of guilt as to an essential element of the offence which is discretionary. This presumption may be inconsistent with the presumption of innocence. Thirdly, there are reverse onus clauses which relate to an exemption or proviso which the accused must establish if he wished to avoid conviction but the presumption of innocence, depending on the circumstances. Provisions which prima facie breach the presumption of innocence do not inevitably lead to a conclusion that Article 6 (2) has been violated.
Furthermore, Brown v Stott (Procurator Fiscal, Dunfermline) confirms the interpretation of the principle in R v Lambert. There are however, two exceptions to this rule. Firstly, the burden may fall on a defendant in seeking to establish a specific defence and secondly, rules containing presumptions of law or fact against a defendant do not necessarily infringe Article 6 (2).
The approach in both, R v DPP, ex parte Kebilene and R v Lambert, was very promising for those strong believers in the presumption of innocence, that the courts would, use the interpretative leeway allowed by section 3 of the Human Rights Act 1998, by interpreting all reverse burdens of proof as mere evidential burdens, at least for offences with an identified culpability and severe sentences.
Since R v Lambert there have been many more decisions regarding the presumption of innocence unfortunately the trend has changed. R v Johnstone concerned a serious trademark offence carrying a substantial term of imprisonment. In this case their Lordships emphasised the need for due reverence to the will of Parliament and warned against any ready finding that an imposition of a reverse burden was a disproportionate response by Parliament to the social mischief proscribed by the offence. The House of Lords observed that article 6 (2) did not stand alone, it was said to be subsidiary to the right of fair trail guaranteed by article 6 in general. A reverse burden therefore, did not necessarily stop a fair trial from occurring. It could, as was the case for the trademark offence considered in R v Johnstone, be a proportionate response to a serious and current social or commercial mischief.
The tension between the approaches in R v Lambert and R v Johnstone was obvious. Lord Nichols approach in R v Johnstone represents a less interventionist more laissez-fair position. There appeared to be a greater willingness to find reverse burden provisions compatible with art 6 (2). It is a shame that in R v Johnstone Lord Nichols did not see fit to take up the challenge leveled to the law on the presumption of innocence by section 3 of the Human Rights Act 1998. Had the courts at the very least made a declaration of incompatibility under s 4 of the Human Rights Act 1998 then that would have pushed the responsibility back to Parliament.
Nevertheless, in A-G's Reference (No. 1 of 2004), the Court of Appeal sought to resolve the uncertainty by favoring the approach taken in R v Johnstone. Certainly, trial judges and magistrates were told not to refer to R v Lambert at all but to confine their attention to the preferred case. This however cannot be acceptable. The Court of Appeal cannot consign a recent decision of the House of Lords to an indeterminate state. Therefore, the decision of the House of Lords in Sheldrake v DPP; A-G's Reference (No. 4 of 2002) was eagerly awaited.
The decision in Sheldrake v DPP confirmed the tradition that English judges are prepared to recognize exceptions to the presumption of innocence, in common with Parliament, which has never treated the presumption of innocence as absolute and unqualified.
Therefore it was held that infringing the presumption of innocence (art 6 (2)) is justified in some cases and will not offend against the art 6 (1) right to fair trial. In determining reverse burden cases,
the following points should be taken into account:
- Whether it is a fair and reasonable in the achievement of a proper statutory objective for the state to infringe the presumption of innocence
- Determination of whether the exception is proportionate, i.e. whether it goes no further than is reasonably necessary to achieve that objective, a material factor being whether the statute places an evidential burden or legal burden on the defendant.
Despite the large amount of time that has gone past, Lord Steyn's summary of the law regarding the Woolmington principle, appears to still stand, and furthermore be completely compatible with the European Convention. It would therefore appear that since R v Lambert, despite a lot of hesitancy in case law, the same principles seem to run through all the cases. It is understood that the presumption of innocence can be derogated from, this has even been established by the European Court. Nevertheless, after R v Lambert there was R v Johnstone where there was a shift in stance and the courts moved towards generally finding that reverse burdens did not conflict with the Human Rights Act 1998. The decision in R v Lambert was then ignored but not refuted by A-G's Reference (No. 1 of 2004). As the law of precedent would allow Sheldrake spells out the law on the presumption of innocence and the main bone of contention seems to be the question of what is reasonably necessary to achieve the objective. References to proportionality have been used.
The transfer of an evidential burden to the accused is more acceptable than the transfer of the legal burden. The best approach to proportionality would seem to be to suggest that it is only proportionate to impose a legal burden on a defendant in a situation where article 6 (2) is engaged where the imposition of an evidential burden is not enough to meet the legitimate aim in question. It would seem that Lord Steyn was not opposed to the legal burden being transferred to the accused but claimed that it would only be acceptable in certain cases. His emphasis was that we should not concentrate on 'the niceties of language' but evaluate on a cases by case basis. It would seem after a lot of hedging back and forth Lord Steyn's summary on reverse onus still holds water.
Books
Dennis, I., Law of Evidence (3rd Ed.) Sweet & Maxwell
Murphy, P., Murphy on Evidence (9th Ed.), Oxford University Press
Roberts, P., & Zuckerman, A., Criminal Evidence (1st Ed)
Starmer, K., Strange, M., & Whitaker, Q., Criminal Justice, Police Powers & Human Rights (Blackstone's Human Rights Series)
Wadham, J., & Mountfield, H., Blackstone's Guide to the Human Rights Act 1998 (2nd Ed.). :Blackstones
Journals
Ashworth, A., & Blake, M., 'The Presumption of Innocence in English Criminal Law' [1996] Crim LR 306, 309
Wells, Colin, Reversing the burden, New Law Journal 15.7162 (183)
Cases
A-G's Reference (No. 1 of 2004) [2004] EWCA Crim 1025
A-G's Reference (No 4 of 2002) [2004] UKHL 43, [2005] 1 AC 264, [2005] 1 All ER 237, [2004] 3 WLR 976, [2005] RTR 13, [2005] 1 Cr App Rep 450, 168 JP 669, [2004] 43 LS Gaz R 33, (2004) Times, 15 October, 148 Sol Jo LB 1216, 17 BHRC 339, [2005] 3 LRC 463, [2004] All ER (D) 169 (Oct)
Brown v Stott (Procurator Fiscal, Dunfermline) [2001] 2 LRC 612, [2003] 1 AC 681, [2001] 2 All ER 97, [2001] 2 WLR 817, [2001] RTR 121, 145 Sol Jo LB 100, [2001] 2 LRC 612, [2000] All ER (D) 2238, 11 BHRC 179
Lingins v Austria (1981) 26 DR 171
R v DPP, ex p Kebilene [2000] 2 AC 326, [1999] 3 WLR 972, sub nom R v DPP, ex p Kebeline [1999] 4 All ER 801, [2000] 1 Cr App Rep 275, [2000] Crim LR 486, [1999] 43 LS Gaz R 32, (1999) Times, November 2, HL
R v Johnstone [2003] UKHL 28, [2003] 3 All ER 884, [2003] 1 WLR 1736, [2003] 2 Cr App Rep 493, [2003] FSR 42, 167 JP 281, [2004] Crim LR 244, [2003] 26 LS Gaz R 36, (2003) Times, 29 May, 147 Sol Jo LB 625, [2003] All ER (D) 323 (May), [2003] IP & T 901
R v Lambert [2001] UKHL 37, [2002] 2 AC 545, [2001] 3 All ER 577, [2001] 3 WLR 206, [2001] 2 Cr App Rep 511, [2001] 31 LS Gaz R 29, (2001) Times, 6 July, (2001) Independent, 19 July, 145 Sol Jo LB 174, [2002] 1 LRC 584, [2001] All ER (D) 69 (Jul)
R v Whyte (1988) 51 DLR (4th) 481
Salabiaku v France (Application 10589/83) (1988) 13 EHRR 379, ECtHR
Sheldrake v DPP [2004] UKHL 43, [2005] 1 AC 264, [2005] 1 All ER 237, [2004] 3 WLR 976, [2005] RTR 13, [2005] 1 Cr App Rep 450, 168 JP 669, [2004] 43 LS Gaz R 33, (2004) Times, 15 October, 148 Sol Jo LB 1216, 17 BHRC 339, [2005] 3 LRC 463, [2004] All ER (D) 169 (Oct)
Legislation
European Convention on Human Rights 1950
Human Rights Act 1988
International Covenant on Civil and Political Rights 1966
Prevention of Terrorism Act (Temporary provisions) 1989
Universal Declaration on Human Rights 1948
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