Question – Burden of Proof
To what extent has the 'presumption of innocence' enunciated in Woolmington v DPP
[1935] AC 462 vis-a-vis criminal cases changed in light of the Human Rights Act 1998?
Answer:
Burden of proof (BOP) is the legal obligation of parties in a dispute to provide
sufficient justifications up to a specified standard of proof to establish the truth of facts in
the court. 1 It is existed in both civil and criminal trials but the latter will be emphasized.
There are two types of burden, which is the legal burden and evidential burden. In a trial,
the prosecution usually bears the legal burden to satisfy the element of the specified
offence on the standard of beyond reasonable doubt. This general rule is laid down in the
case of Woolmington v DPP, where Lord Sankey provided that “throughout the web of the
English criminal law one golden thread is always to be seen, that is the duty of prosecution
to prove the prisoner’s guilt…”.2 In other words, the defendant is presumed to be innocent
until the prosecution prove his guilt. On the other hand, the evidential burden will fall on
the defendant to raise a defence to be considered by the courts and this will increase the
burden of prosecution to disprove it.3 Hence, it is said that the evidential burden is not a
BOP as it is not equipped with any standard of proof unlike the legal burden, which is the
substantial and sizable one.
However, Lord Sankey did move on to state that there are two exceptions to the
presumption of innocence. The first one was in the situation where the defendant raise the
defence of insanity. In M'Naghten’s case, it is ruled that the legal burden to prove insanity is
on the defendant on the ground that “every man is presumed to be sane to possess a
sufficient degree of reasoning and responsible for his crime until the contrary is proven”. 4
1
Ian Dennis, The Law of Evidence 3rd Edition, 438.
2
Woolmington v DPP [1935] UKHL 1
3
Dennis n(1) 440.
4
M'Naghten [1843] UKHL J16
1
, This exception is not conflicted with the European Convention of Human Rights (ECHR) as
decided in the case of H v United Kingdom as the concerned issue was the element of sane
but not innocence.5 Secondly, the presumption of innocence is not applied when the
parliament enacted a statutory exception. This means that the parliament intends to shift
the legal burden onto the defendant to prove his defence in a statute whether expressly or
impliedly. In terms of express statutory reversal, the parliament uses clear languages to
reverse onus on the defendant. For an example, under the offence of fraud in Insolvency Act
1986, the relevant defence was authorised under s206 (4) of the act providing that “it is a
defence if the person prove that he had no intention to defraud”. 6 The word ‘prove’ in the
statute signified the reversal of legal burden onto defendant as evidential burden only
requires defendant to ‘raise’ his defence instead of ‘prove’. Implied statutory reversal,
which is the confusing one as the parliament remains silence and choose not to give effects
to its intention expressly on the issue of reverse onus. Some judges argued that the
statutory reversal should only be limited to express reversal but this was rejected by Lord
Ackner in R v Hunt, stating that the parliament may impose legal burden on defendant
“either expressly or by necessary implications”. 7 Judges cannot ignore a clear parliamentary
intention and they are guided to interpret the statutes by using tools of interpretation. To
explain this, s140 of the Highways Act 1959 constructed that it is an offence “if a person
deposit anything whatever on a highway without lawful authority or excuse”.8 The
parliament did not specifically mentioned the words ‘defence’ or ‘prove’ which will impose a
legal burden on defendant, however, defendant which is able to provide a lawful excuse will
be acquitted. Hence, the decision on who bears the legal burden is depends on the judge by
considering tools of interpretation whenever there is an implied statutory reversal,
therefore the outcomes of different cases would differ.
The mechanism that the burden will be automatically shifted to defendant if the
statute is written expressly, seems not to bring any big issues as it is not complex and assure
certainty. However, the case of R v Lambert emerged in 2001, contributed a great challenge
to the reversal of legal burden. 9 The case is in line with the establishment of Human Rights
5
H v UK [1990] Appn No 15023/89, 4 April 1990 (unreported)
6
Insolvency Act 1968 s206(4)
7
R v Hunt [1987] AC 352
8
Highways Act 1959 s140
9
R v Lambert [2001] UKHL 37
2
To what extent has the 'presumption of innocence' enunciated in Woolmington v DPP
[1935] AC 462 vis-a-vis criminal cases changed in light of the Human Rights Act 1998?
Answer:
Burden of proof (BOP) is the legal obligation of parties in a dispute to provide
sufficient justifications up to a specified standard of proof to establish the truth of facts in
the court. 1 It is existed in both civil and criminal trials but the latter will be emphasized.
There are two types of burden, which is the legal burden and evidential burden. In a trial,
the prosecution usually bears the legal burden to satisfy the element of the specified
offence on the standard of beyond reasonable doubt. This general rule is laid down in the
case of Woolmington v DPP, where Lord Sankey provided that “throughout the web of the
English criminal law one golden thread is always to be seen, that is the duty of prosecution
to prove the prisoner’s guilt…”.2 In other words, the defendant is presumed to be innocent
until the prosecution prove his guilt. On the other hand, the evidential burden will fall on
the defendant to raise a defence to be considered by the courts and this will increase the
burden of prosecution to disprove it.3 Hence, it is said that the evidential burden is not a
BOP as it is not equipped with any standard of proof unlike the legal burden, which is the
substantial and sizable one.
However, Lord Sankey did move on to state that there are two exceptions to the
presumption of innocence. The first one was in the situation where the defendant raise the
defence of insanity. In M'Naghten’s case, it is ruled that the legal burden to prove insanity is
on the defendant on the ground that “every man is presumed to be sane to possess a
sufficient degree of reasoning and responsible for his crime until the contrary is proven”. 4
1
Ian Dennis, The Law of Evidence 3rd Edition, 438.
2
Woolmington v DPP [1935] UKHL 1
3
Dennis n(1) 440.
4
M'Naghten [1843] UKHL J16
1
, This exception is not conflicted with the European Convention of Human Rights (ECHR) as
decided in the case of H v United Kingdom as the concerned issue was the element of sane
but not innocence.5 Secondly, the presumption of innocence is not applied when the
parliament enacted a statutory exception. This means that the parliament intends to shift
the legal burden onto the defendant to prove his defence in a statute whether expressly or
impliedly. In terms of express statutory reversal, the parliament uses clear languages to
reverse onus on the defendant. For an example, under the offence of fraud in Insolvency Act
1986, the relevant defence was authorised under s206 (4) of the act providing that “it is a
defence if the person prove that he had no intention to defraud”. 6 The word ‘prove’ in the
statute signified the reversal of legal burden onto defendant as evidential burden only
requires defendant to ‘raise’ his defence instead of ‘prove’. Implied statutory reversal,
which is the confusing one as the parliament remains silence and choose not to give effects
to its intention expressly on the issue of reverse onus. Some judges argued that the
statutory reversal should only be limited to express reversal but this was rejected by Lord
Ackner in R v Hunt, stating that the parliament may impose legal burden on defendant
“either expressly or by necessary implications”. 7 Judges cannot ignore a clear parliamentary
intention and they are guided to interpret the statutes by using tools of interpretation. To
explain this, s140 of the Highways Act 1959 constructed that it is an offence “if a person
deposit anything whatever on a highway without lawful authority or excuse”.8 The
parliament did not specifically mentioned the words ‘defence’ or ‘prove’ which will impose a
legal burden on defendant, however, defendant which is able to provide a lawful excuse will
be acquitted. Hence, the decision on who bears the legal burden is depends on the judge by
considering tools of interpretation whenever there is an implied statutory reversal,
therefore the outcomes of different cases would differ.
The mechanism that the burden will be automatically shifted to defendant if the
statute is written expressly, seems not to bring any big issues as it is not complex and assure
certainty. However, the case of R v Lambert emerged in 2001, contributed a great challenge
to the reversal of legal burden. 9 The case is in line with the establishment of Human Rights
5
H v UK [1990] Appn No 15023/89, 4 April 1990 (unreported)
6
Insolvency Act 1968 s206(4)
7
R v Hunt [1987] AC 352
8
Highways Act 1959 s140
9
R v Lambert [2001] UKHL 37
2
