REFLECTIONS ON PRESUMPTION OF INNOCENCE IN ENGLISH CRIMINAL LAW

The perceived harshness of the English criminal law in the 18th and 19th centuries led many judges (as the protectors of the accused) to create many of the rules of evidence to mitigate the potential for miscarriage of justice. Especially given the existence of the death penalty during that period. But many public policy-driven rules and restrictions have been the norm in the past few decades; although the reasoning behind many of these rules of evidence are not at all uniform.

This reflection will discuss the impact and effect on domestic jurisprudence of the incorporation into domestic law of the European Convention of Rights and Fundamental Freedoms (ECHR). Especially the impact of Article 6 (2). This was done through the Human Rights Act 1998 (HRA). HRA subjected the domestic legal system to a tense process of statutes review and judicial reforms. The HRA made ECHR convention rights enforceable in domestic courts for the first time. While still preserving the doctrine of Parliamentary Sovereignty, the HRA provides that as much as possible, primary legislation must be read in a way that is compatible with ECHR rights <>.

The HRA has had a dramatic impact on the law of evidence in particular. In fact, P. Roberts and J Hunter noted in their 2012 book that “It may not be an exaggeration to say that there is an on-going ‘Human Rights Revolution’ in the law of evidence since the enactment of the Human Rights Act 1998”. The HRA coming into force has compelled the senior courts in the UK to subject some areas of law of Evidence to a more rigorous re-examination.

Salient areas of criminal evidence impacted include; the privilege against self-incrimination, pre-trial silence as evidence, entrapment evidence, reverse burden provisions and sexual history evidence just to mention a few. Due to space limitation; I will not be able to explore the impact of HRA on all these areas of criminal evidence law; but I will focus on one area (the reverse burden provisions) as an illustration of the re-examination and review that has occurred since HRA came into full force on 2nd October 2000. This seems also to be the most obvious area of impact of HRA ‘fair trial’ posture.

The utilitarian argument that all evidence should be admitted or included unless there are serious reasons not to do so as canvassed by experts like Bentham has influenced the English legal landscape. This inclusionary thinking is that the tribunal of facts should be allowed to decide on what views to take based on all evidence presented before it. However, the modern rules of evidence in our courts are essentially exclusionary in nature; influenced by both judicial decisions and parliamentary statutes. Developments in Character and Hearsay evidence admissibility are examples of the exclusionary developments alluded to.

The HRA require that domestic courts take account of the Convention provisions, judgements from the European Court of Human Rights (ECtHR), declarations and advisory opinions form the ECtHR; and to interpret domestic legal rules in ways that is ECHR compliant as much as possible. There are several articles of ECHR that affects our local legal proceedings; but the article with the most salient impact is article 6 ECHR which guarantees right to fair trial. Article 6(2) of ECHR relates only to criminal trials (unlike Article 6 (1) that relates to both criminal and civil cases), so my analysis will focus on Article 6(2) only.

The use of the word ’fair’ by the ECHR casts the interpretation net very wide indeed, as it encompasses practically all issues that could potentially be seen as unfairness as relating to the rules of evidence, burden of proof and the admissibility of evidence. Although domestic courts have gradually began to take into account the ECHR prior to the HRA, as evidenced in Saunders v United Kingdom (1997) 23 EHRR 313; the enactment of the HRA resulted in greater impact on domestic rule of evidence and legal jurisprudence.

The general rule of our justice system as confirmed in Woolmington is that a person is innocent until proven guilty. Woolmington however recognised the exception of an insanity defence. Further exceptions have also been created by statutes, either expressly or impliedly. Historically, the bearer of the legal burden (usually the Crown in criminal cases) also bears the evidential burden. Much later, statutory exceptions were also created for instance, through the Homicide Act 1957 (HA) section 1 & 2, and then amended by the Coroner and Justice Act 2009 (CJA), section 52.

The CJA continues with the historic legal provisions of the HA which reverses the burden of proof away from the prosecution (Crown) and passes it on to the defendants in cases where the defendant is relying on a certain specific defences such as claim of diminished capacity. S.52 CJA has three elements which a defendant must prove, if he is arguing a defence of diminished capacity.
These are:
That the defendant was suffering from an abnormality of the mind at the time of the crime. That this abnormality was caused by a condition of retarded development of the mind That his mental responsibility for the actus reus was substantially impaired by the abnormality.
The burden of proof is also reversed in several common law situations such as a defendant’s claim of self-defence, duress, non-insane automatism and also provocation. So the reversal of legal and evidential burden in criminal cases have been as a result of both judicial precedents and statutes (by both express and implied provisions).

The courts have determined that these requirements of the CJA do not contravene Article 6(2) of ECHR as incorporated into the HRA; which requires that the defendants are presumed innocent until proven guilty. This ECHR provision was written on the basis that the burden to prove guilt is always on the state and not on the accused. Part of the courts argument is that the CJA does not place burden on the defendant to disprove an element of the offence, but rather to establish to the court an exception he wants to rely on. Reliance on a defence such as Insanity is entirely optional for a defendant. But in criminal cases once the burden is reversed to the defendant, he does not have to prove his evidence beyond reasonable doubt but only on a balance of probability. It is arguable that this makes life a little bit easier for the defendant relying on such specific defence.

Usually judges have two options within the HRA when confronted with potential incompatibility of a statutory provision such as in s.52 of CJA. Section 4 of HRA notes judges can issue a declaration of incompatibility or as noted in s.3 HRA judges can “read down” the section of the law. Thus judges have read down the section of CJA that created the reverse burden as merely imposing an evidential burden and only in the circumstance of a defendant arguing an exception of diminished responsibility. There are however many who belief that courts have been too readily willing to read down legislation to a point of stretching the elasticity of statutory interpretation to breaking point.

ECtHR jurisprudence has shown that article 6 (2) is not an absolute or unqualified right for defendants. This has informed the decisions of the domestic courts as well. For instance; the court held in Foye v R [2013] EWCA Crim 475 that reverse burden is justifiable on the defendant who advances a defence of diminished capacity, partly because it will be impractical for the Crown to bear the burden of disproving beyond reasonable doubt an abnormality of the mind a defendant is claiming. It is a settled doctrine in civil law that he that asserts must prove. This may be said to be the case here as the accused relying on a special exceptional defence should bear the burden of proving such exception exists to the court.

While accepting that s.52 CJA is incompatible with s.6(2) of ECHR; the domestic courts have repeatedly decided to ‘read down’ the provision by imposing an evidential burden on defendants in the narrow exceptional circumstances defined by law. In fact, the ECtHR have also agreed that interference with presumption of innocence must be justifiable, proportionate and within reasonable limits as held in Salabiaku v France (1991)13 EHRR 379. Salabiaku have been applied by the domestic courts in R v Johnstone [2003] UKHL 28, [2003] 1 WLR 1736 and R v Lambert [2001] UKHL 37, [2002] 2 AC 545 to name a few.

From the foregoing; the position of the UK court seems to be that this proportionate imposition of reverse burden does not prevent a fair trial. This has also been affirmed by the European Court of Human Rights in H v United Kingdom (App. No. 15023/89, 1990) and later in Robinson v United Kingdom (App. No. 20858/92, 1993) for instance.

Additionally, the UK Courts have repeatedly make a distinction between a reverse burden as it relates to component of a crime such as Intent, (which will not be allowed); and one which simply relates to an exception or excuse for it. This distinction is crucial in the thinking of the courts as confirmed in R v McQuade, [2004] All ER (D) 142 and Lambert. In Lambert, Lord Steyn reflecting on the weight of the drugs charges noted that; “the transfer of the legal burden in section 28 does not satisfy the criterion of proportionality. Viewed in its place in the current legal system, section 28 of the 1971 Act is a disproportionate reaction to perceived difficulties facing the prosecution in drugs cases”.

Non-Murder Cases
The dilemma of the domestic courts seem to be the determination of what circumstances can be deemed justifiable and proportionate to impose legal burden on a defendant rather than just an evidential one. On analysis, it seems that the willingness of the court to read down the reverse burden provisions as detailed in the foregoing may be related to the seriousness of murder charges and its consequent life imprisonment on guilty verdict. There appears to exist a long catalogue of reverse burden provisions outside of diminished capacity, that the courts have taken different approaches.

In its publication titled Presumption of Innocence in English Criminal Law [1996] Crim. LR 306; Ashworth and Blake noted that “no fewer than 40 per cent of offences triable in the Crown Court appear to violate the presumption of innocence”. This ranges from Health and Safety cases to Trade Mark infringement cases. In fact, many belief that outside of murder cases; there is no universal rule governing reverse burdens as the courts do not always read down such provisions as each case seem to be analysed in context. <>
It seems the focus of the court is defining what constitute the essence of an offence. The closer a disputed provision (such as reverse burden) is to the essence of an offence, the more likely the presumption of innocence will be activated and engaged. For example, in trade mark infringement cases, if the court decides that the infringement is regulatory in nature as decided in Roger S; then it tends to allow the reverse burden to stand compared to what is commonly referred to as ‘true crimes’ (such as murder); where the court does not allow reverse burden; except in specific defences. It seems to me the court’s position is informed by the principle of Proportionality; just like the age old domestic law doctrine of Reasonableness. This in essence becomes a judgement call by judges based on the severity, nature, context and proportionality of any imposition in each instance.

Also, many strict liability and regulatory offences such as speeding and selling tobacco to a child also seem to infringe s.6(2) ECHR as the burden is on the defendant to prove innocence. But many will argue that based on Salabiaku, this position is proportionate to the perceived lightness of the offences; bearing in mind that s.6(2) is not an absolute right without qualification.

Future
Looking ahead; there seem to be no possibility of change to the domestic law on reverse burden as it relates to diminished capacity and related criminal defences. In their reports, both the Scottish Law Commission report on Insanity and Diminished Responsibility [Scot. Law Com. Report No. 195 (2004)] as well as the English Law Commission [Partial Defences to Murder, Law Com. Report No. 290 (2004)] agreed that the principle of reverse burden of proof was a necessary one for the operation of Diminished Responsibility as a defence. Thus the principle will remain as part of the criminal jurisprudence proportionate and justifiable under s.6(2) ECHR. This appears also to be the settle will of the Westminster Parliament and the government do not have any current plan to change the law in this area.

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”. – Article 6(2) European Convention for the Protection of Human Rights and Fundamental Freedoms has indeed forced a detailed review of domestic laws of evidence since the HRA came into force. Before HRA, any provision that require an accused to prove any matter tended to be interpreted as an imposition of a ‘legal burden’; but the HRA has changed that default presumption, especially when the reversal of burden is not by statutes.

However, it has not changed the overall reverse burden provisions in many less serious cases; although I believe it may have unwittingly curtailed any possible ambition by any government in the UK to extend the reverse doctrine beyond its current scope to ever widening areas.