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Exception of Traditional Approach In Criminal Trials

The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary.

Lord Bingham in Sheldrake v DPP [2004] All ER 169 Para 21

Critically analyse whether the courts have achieved this balance 


The presumption of innocence(POI) is recognised in many jurisdictions as one of the most important constitutional foundation of this legitimacy. Its constitutional significance is that it recognises the vulnerability of the defendant faced with state prosecution and concomitant ‘inequality of arms’.In the 18th century, Blackstone’s famous statement on the POI is that ‘’the law holds that it is better that ten guilty persons escape than that one innocent suffer. In the case of Coffin v U.S, Lord Gillies has conceive that ‘’the presumption is to be found in every code of law which has reason, religion and humanity for a foundation. In the case of Salabiaku v France, it has been said that ‘’presumption of fact or of law operate in every legal system. Clearly the convention does not prohibit such presumptions in principle. However, require… States to remain within certain limits in this respect as regards criminal law’’.

Traditional Approach in Criminal Trials

In a celebrated passage in Woolmington v DPP, Lord Sankey identified this maxim as the ‘Golden Thread’ of English justice. Lord Sankey concluded that in 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 what I have already said as to the defence of insanity and subject also to any statutory exception’.

The principle (Golden Thread) that the burden remains on the prosecution, often expressed in terms of the POI, is viewed as a fundamental element of the criminal justice system and is seen as an attempt to acknowledge the inequality of bargaining power which lies at the heart of the criminal trial. The resources of the state and the prosecution far outweigh those of the accused and so it is considered an essential safeguard that the state bears the burden of proving the charge, rather than the accused having to prove their innocence. Read more about : Scenario Assignment Help

However, there are several reasons why the prosecution ought to bear the burden of proof(BOP). Firstly in ‘History of the Criminal Law, 1883, London, I-354’, as Fitzjames Stephen argued that society is much stronger than the individual and is capable of inflicting so very much more harm on the individual than the individual as a rule can inflict upon society, that it can afford to be generous. Secondly, it reduces the risk of wrongful conviction because correcting such errors can involve a profligate waste of time and money. Thirdly, a basic sense of fairness suggests that the balance ought to be tipped in favour of the individual, based on the profound inequality between the resources available to the state and to the individual. Additionally, it has been argued that a heavy onus borne by the prosecution can serve a symbolic function within the criminal justice framework.

Exception of Traditional Approach in Criminal Trials

First Exception (INSANITY)

In a study published in 1996, Ashworth and Blake leafed through Archbold, nothing all indictable offences in which the legislature at some point imposed a LB on the defendant.[11] Insanity is the only common law exception to the ‘golden thread’, by which a LB is placed on a defendant which is traceable to M’Naghten’s case[12] as Viscount Sankey LC pointed out in Woolmington[13].In this case, Tindal CJ concluded that all defendants must be presumed sane: ‘…until the contrary be proved to their jury satisfaction’.[14]

Second Exception (EXPRESS STATUTORY)

The second exception is where Parliament expressly provides for a reverse burden, which is not infrequent. One of the example is S.2(2) of Homicide Act[15] which defines the defence of diminished responsibility, states that ‘On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder’.[16] Another more frequently encountered, express statutory exception can be found in S.1 of the Prevention of Crime Act[17], whereby it is an offence to carry an offensive weapon in a public place: ‘…without lawful authority or reasonable excuse, the proof whereof shall lie on him’.[18]

Lord Steyn said that S.28 of the Misuse of Drug Act[19] regarded the defendant to prove lack of knowledge of his possession of the drugs. Knowledge is a form of mens rea and relates to the defendant’s moral blameworthiness. As such, it ought to be proved by the prosecution despite appearing as a form of defence. If the test of proportionality was not satisfied by the prosecution to place the LB on the accused, then the courts could invoke S.3 of the HRA[20] to read down the words of the provision from a LB to an evidential one.[21]


The third exception is where Parliament impliedly reverses the burden. Historically the starting point was what is now S.101 of the Magistrates’ Court Act[22], which covers situations where a defendant relies for his defence on an ‘exception, exemption, proviso, excuse or qualification’ whereby specified conduct was allowed in permitted circumstances.[23] This section applies to summary trials but at common law similar principles applied to trials on indictment and it was illustrated in the landmark cases held by the COA in R v Edwards[24] and confirmed by the HOL in R v Hunt[25]. In both cases it is arguable that the constitutional principle of the POI was secondary to policy considerations.[26]

In the leading case of Hunt[27], the HOL set out more fully the circumstances in which the courts would interpret legislation as permitting placing the LB on the defendant. Stein points out that the HOL in Hunt, while upholding Edwards, saw the issue as more complex.[28]

However in Edwards[29] the COA adopted what Stein called a ‘syntactical approach’ and classified defences on their syntactical status or sectional location in the statute and it held statutes could be interpreted to have impliedly shifted the burden for trials on indictment as well as summary offences, and that where the burden shifted it would be the legal, not simply the evidential burden. Similarly, in Oliver[30] it was held that it was for the defendant to prove that he had been granted a licence to sell sugar.[31]

As regards general guidelines these were as follows. First, the courts should recognise that Parliament can never lightly be taken to have intended to shift the BOP onto the defendant. Secondly, a factor of great importance was the ease or difficulty that parties met in discharging the probative burden. In cases of ambiguity in the statute, instead of relying unequivocally on the POI, their Lordships were prepared only to see the necessity of avoiding the imposition of ‘onerous burdens’ on the defendant.[32]

Criticism of Reverse Legal Burdens

The process of enacting both express and implied legal reverse BOP has proceeded apace since the Second World War.[33] However, Professors Andrew Ashworth and Meredith Blake found 219 examples of LB or presumptions operating against the defendant in 540 offences that were triable in the Crown Court. There at least 40% of all such offences had provisions that were contrary to the ‘golden thread’ presumption is some way[34]

As in year 1972 the Criminal Law Law Revision Committee’s controversial 11th report on evidence was, ‘strongly of the opinion that, both on principle and for the sake of clarity and convenience in practice, burdens on the defence should be evidential only’.[35]

Glanville Williams was a Welsh legal scholar has critics of statutes that placed LB on defendants.[36]

The following is giving a reference by an author called Paul Roberts, found out that weighty principles and policies should be articulated clearly and any exceptions should carefully drawn so that specific principle or policy is served without weakening the general POI. Yet statutory provisions which reverse the BOP are frequently unsupported by any reasonable justification and Paul Roberts conclude that the current legislative practice is unjustifiable.[37] Click Here

Human Rights Act (HRA) & Ian Dennis 6 Principles

Article 6(2) of HRA [38] provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. English Law has not consistently followed the ‘golden thread’ principle referred to in Woolmington v DPP[39]. Lord Hope in R v DPP [40] was of the opinion that even if an English provision breaches the POI it would not lead to incompatibility with Article 6(2) as each member state is given a margin of appreciation as national authorities one better placed to evaluate local needs and conditions, to enact legislation based on society’s needs and interest.[41] However Dennis has identified six elements that may be taken into account in reaching a decision where the court is faced with legislation that apparently reverse the BOP in any respect[42]

          The first element is a distinction between truly criminal (mala in se) and regulatory offence (mala prohibita). If an offence is truly criminal the courts will fell reluctant to shift the LB to the accused. This is because the failures on a part of accuse to satisfy tothe LB would be a conviction and it mirrors the discussion by Lord Bingham in AG Reference[43]. It is less reluctant to transfer LB to accuse because upon conviction the accused will not face a severe conviction. This approach was adopted by the COA in Davies[44] where the Court upheld S.40 of the Health and Safety at Work Act [45] as in defendant to prove that it had not been reasonably practicable to do more than he had done to ensure the safety of employees. This section would be a regulatory offence and therefore the courts would transfer a LB.[46]

A second element is the deference respect shown to parliament decision. For example, in R v DPP[47], Lord Hope said that such deference would be particularly appropriate where the issues involved question of social or economic policy. In Johnstone[48], parliament has the primary responsibility for deciding where the LB should lie, and the courts must simply this intention. The courts can only reach a different conclusion from that of parliament (court say EB and suppose to LB) it can be shown that parliament has attached in such POI. Any Act and Law post 2000, the parliament had subjected to express audit under S.19 of ECHR[49].[50]

The third element is based on a distinction between offence and defences. If the line of separation between offences and defences are clear a reversal will be justified. However, it would be unfair to ask the defendant to prove the defences if the distinction between offences and defence was unclear as per the case of Kebilene[51] by Lord Hope. Lord Steyn in Lambert[52] said that distinction would sometimes be ‘unprincipled and arbitrary’ and he felt that S.28(2) Misuse Drugs Act[53] related to a request of mens rea (knowledge). Previously in Sheldrake[54] , it face the same problem which is same of clarity between offences and defences however in HOL the distinction was clear, there was a clear distinction between offence and defence to be ceased by the accused.

Maximum penalties are the fourth elements. In Davies[55], Lord Tuckey said that the severity of punishment is undoubtedly with important and factor in deciding reversal of LB. In Lambert[56], the courts were reluctant to transfer the LB to accuse as year offence carried a max penalty. However in Johnstone[57] stated that the more serious the punishment the more compelling must be the reason to impose LB. But in Sheldrake[58] upheld a reverse onus where the maximum penalty for the offence was only six month’s imprisonment.

          The fifth element is ease of proof. The party who bear the lesser burden to prove a requirement odd to bear the LB. In L v DPP[59] the Divisional court upheld the traditional interpretation of S.139 of the Criminal Justice Act[60], saying that there was a strong public interest in bladed articles not being carried in public without good reason. Dennis has pointed out, there are very many cases where the accused’s state of mind is of crucial importance, but where the BOP is on the prosecution.[61]

The last element is the POI itself. The outcome of wrongful conviction is regarded as significantly worse than a wrongful acquittal. Lord Bingham in AG’s reference[62] where the S.11(1) Terrorism Act(TA) [63] said that this provision is sufficiently wide and uncertain as to include persons whose conduct might not be concluded as blameworthy and possible miscarriage of justice. In those circumstances his lordship though that there would be a clear breach of POI, which means an accused convicted under this section is innocent of blame worthy conduct.[64] In S.11(2) of the TA to impose only an evidential burden is opposed to a legal one on accused might not be intention of parliament but it was certainly the intention of parliament when enacting S.3 of HRA, this to ensure that legislation are convention compatible and does not infringe fundamental human rights.[65]


In conclusion, reverse onuses and POI have generated some complex and controversial law.United Kingdom with bills of right, it is possible to challenge the reverse onus clauses in the courts that they infringe POI. This is possible because POI is protected by the constitution which is higher law[66].It is now clear that the POI has embodied in the Convention and does not enable the courts to adopt Glanville Williams suggestion that statutes employing such language as ‘unless he contrary proved’ should always be taken to mean ‘unless sufficient evidence is given to the contrary’, which in turn requires only evidence thatcould be taken by a reasonable jury to support the defence.[67]HRA 1998 has equipped the courts more powers to strike a balance between the interests of the public and the fundamental rights of the accused. National Courts should view the Convention as an expression of fundamental principles rather than as a set of rules.Application of these principles will involve balancing compering interest to those of the individuals and those societies.

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