To what extent has the ‘presumption of innocence’ enunciated in the instance Woolmington V DPP [ 1935 ] AC 462 vis-a-vis condemnable instances changed in visible radiation of the Human Rights Act 1998? Discuss.
The 6th century Digest of Justinian ( 22. 3. 2 ) provides. as a general regulation of grounds: Ei incumbit probatio qui dicit. non qui negat – Proof lies on him who asserts. non on him who denies” . It is at that place attributed to the 2nd and 3rd century legal expert Paul. Similar to its Romanic predecessor. Islamic jurisprudence besides holds the rule that the burden of cogent evidence is on the claimant. based on a Hadith documented by Imam Nawawi. The prostration of Western Modern Empire gave manner to the rise of feudalistic justness system. Within it. there was no construct of given of artlessness. Rather. it was the responsibility of the accused to turn out his artlessness. either by agencies of taking an curse of artlessness or through undergoing dangerous ordeals. It could therefore be moderately inferred that the suspects were required to turn out their artlessness beyond sensible uncertainty.
The given of artlessness presumes the suspect to be guiltless until proved guilty. with the prosecution required to turn out all the elements of the offense beyond sensible uncertainty. This rule was laid down by Viscount Sankey in Woolmington v DPP: “Throughout the web of the English condemnable jurisprudence one aureate yarn is ever to be seen – that it is the responsibility of the prosecution to turn out the prisoner’s guilt topic to what I have already said as to the defense mechanism of insanity and topic besides to any statutory exception…” This ‘golden thread’ was later affirmed in Article 6 ( 2 ) of the European Convention on Human Rights.
While non a load of cogent evidence per Se. the suspect in a condemnable test has an evidentiary load where he is seeking to trust on any common jurisprudence defense mechanism other than insanity. Once the defense mechanism becomes a unrecorded issue. the prosecution must once more turn out beyond sensible uncertainty that facts dictate otherwise before the jury can convict. Woolmington’s determination was profound as it changed the old jurisprudence by rejecting Foster’s philosophy of the given of maliciousness. Second. its mention to the responsibility of the prosecution to turn out the accused’s guilt. and keeping that the prosecution besides had the load of confuting any common jurisprudence defense mechanisms that the accused had specifically raised. However it is dubious how far it has had either consequence. even after the Human Rights Act 1998.
Exceptions to the given
Apart from his Lordship’s exclusion in Woolmington. the authorization of McNaghten’s instance clearly placed the load of cogent evidence of insanity on the accused because ‘every adult male is presumed to be sane and to possess a sufficient grade of ground to be responsible for his offenses. until the contrary be proved to their satisfaction…’ However in H V UK. the European Court of Human Rights ruled that the insanity exclusion did non transgress Art 6 ( 2 ) since the chief concern was the given of saneness.
Express Statutory Reversal
His Lordship besides excluded “any statutory exception” from the range of given of artlessness. Statutory exclusions are normally said to be of two types: express and implied. When express statutory proviso obliges the accused to turn out his defense mechanism. it will automatically switch a legal load on him to turn out his defense mechanism on the balance of chances without any appraisal attached. Ashworth and Blake demonstrated the extent to which Parliament departed from Woolmington’s rule in relation to chargeable offenses. Their research found that no fewer than 40 per cent of offenses triable in the Crown Court violated the given of artlessness by necessitating the suspect to turn out a statutory defense mechanism or confute at least one component of the offense.
Implied Statutory Reversal
There are figure of instances where an passage may be constructed as impliedly enforcing a legal load on the accused. S. 101 of the Magistrates Courts Act 1980 lays down the general rule in regard of drumhead offenses. The consequence of the subdivision is that where the behavior of the accused creates an offense but in fortunes where the legislative act creates a defense mechanism in regard of an exclusion. freedom. provision. alibi or making. the load of turn outing of the defense mechanism will be placed on the accused. The rule originates partially from the impression that it is favorable for the accused to turn out that he falls within the range of defense mechanisms because of the entree to the relevant information and partially from the original proviso enacted in the s. 39 ( 2 ) of the Summary Jurisdiction Act 1879.
Given of Artlessness: Post-HRA 1998
Since 2000. if the tribunals conclude that there is a misdemeanor of Art6 ( 2 ) . it can either do a declaration of mutual exclusiveness under s. 4 of the HRA 1998 or. instead. ‘read down’ the proviso under s. 3. so that it becomes convention compliant. In pattern the latter is largely the preferable class for appellant tribunals. Lambert was the first instance that demonstrated this consequence – the plaintiff in error was convicted of ownership of a category A controlled drug with purpose to provide. contrary to s. 5 ( 3 ) of the Misuse of Drugs Act 1971. He was found in ownership of a bag which contained the substance. and his defense mechanism. under s. 28. was that he neither knew nor suspected that the bag contained the drugs and was required to bear the legal load of turn outing this defense mechanism. He appealed on the evidences that the reversed burden in the proviso of s. 28 conflicted with the given of artlessness guaranteed by Art6 ( 2 ) .
The Court of Appeal dismissed his entreaty. as the House of Lords. mentioning that the jurisprudence doesn’t operate retrospectively. Nonetheless. in the obiter the bulk of the House held the rearward legal load of s. 28 was incompatible with Art6 ( 2 ) . as it had a high hazard of unlawful strong belief. With the consequence that s. 28 must be read as if it imposed merely an evidentiary load on the accused. the word ‘proves’ as used in s. 28 must be construed to intend ‘give sufficient evidence’ . by using s. 3 of the HRA 1998. Trial of proportionality – how could a rearward burden to be justified? As a consequence of Lambert. it is submitted that the infliction of rearward legal loads of its Prima facie incompatible with Art6 of the ECHR. and must be scrutinized with great attention in visible radiation of the rule of proportionality. However. House of Lords besides made it clear that non all legal loads were placed on a suspect in condemnable test violated the ECHR or Art6 ( 2 ) in peculiar.
The tribunal held. it was non an absolute right in all the fortunes. In Salabiaku V France. the ECtHR stated that some contrary loads of cogent evidence are ‘convention compliant. Hence the tribunals must guarantee every contrary burden clause in English jurisprudence must be measured for convention conformity. Although it is evident that the burden on those seeking to carry the tribunals that a contrary load is necessary is heavy. the tribunals continue to continue such commissariats. In Sheldrake their Lordships besides concluded that when carry oning an appraisal of proportionality. it was necessary to equilibrate society’s involvement in the effectual suppression of a societal mischievousness against the defendant’s right to a just test.
When weighing up these two viing involvements. several factors could be considered. This trial depends upon the fortunes of the single instance. It follows that a legislative intervention with the given of artlessness requires justification and must non be greater than is necessary. The trial of proportionality requires tribunals to see whether there was a necessity to enforce a legal load on the accused.
Ian Dennis’ six cardinal regulations
Ian Dennis has summarized the undermentioned factors to be taken into history when using the trial of proportionality – judicial respect. categorization of the offense. building of condemnable liability. significance of maximal punishment. easiness of cogent evidence and curious cognition. given of Innocence.
In response to the HRA 1998. how far should the tribunals defer to the judgement of Parliament? In the instance of Johnstone. Lord Nicholls has stressed that “Parliament. non the tribunal. is charged with… . what should be the constitutional elements of a condemnable offense. the tribunal will make a different decision from the legislative assembly merely when it is evident the legislative assembly has attached deficient importance to the cardinal right of an person to be presumed guiltless until proven guilty. ” Lord Woolf CJ took a similar attack. opinion that the premise should be that Parliament would non hold made an exclusion to the given of artlessness without good ground.
However. in Sheldrake Lord Bingham cast uncertainty on Lord Woolf’s proposition. stating that such an attack may take the tribunals to give excessively much weight to the passage and excessively small to the given of artlessness and the duty imposed by s3 of the HRA 1998. However. he reiterated in Brown V Scott that significant regard should be paid by the tribunals to the considered determinations of democratic assemblies and authoritiess. The divergency of positions leaves the issue instead ill-defined. However. Lord Hope’s statement in Kebilene. which required the tribunals to do a differentiation between the legitimate purpose and the proportionality. could be considered.
In placing a legitimate purpose requires the tribunals to see the policy ends of criminalization being pursued by the relevant proviso. Then. the tribunals should inquire themselves whether the infliction of the contrary burden is proportionate to accomplish Parliament’s purposes. Ian Dennis stressed that a strong rule of respect would look to be inappropriate. if there is no grounds that the Parliament gave thought to the given of artlessness when it enacted the contrary burden. It should ever be remembered that the importance of Art6 ( 2 ) should ever predominate. It is for the province to warrant disparagement from the given of artlessness and warranting statements should be obliging if they are to win.
Categorization of Offenses
In Sheldrake. Jack J referred to the recognised differentiation between truly condemnable offenses and those which are regulative and suggested that it is easier to warrant an intervention with the given of artlessness the lower in the graduated table the offenses is. However categorization of offenses into mala in Se and mala prohibita is said to be debatable as a usher to justifiable proportionality of a rearward burden. First. the differentiation is non peculiarly unequivocal. If it depends on the moral quality of the act so it is likely to be contestable. while some offenses are attached with the morally condemnable coloring material but it merely punishable under regulative statute law merely with a all right. as illustrated in Davies v Health and Safety Executive. If the differentiation depends on punishments. so that regulative offenses are characterised as by and large punishable by mulct. nevertheless many regulative offenses now carry the possibility of a tutelary sentence on strong belief.
Furthermore. some drumhead offenses punishable merely by a mulct may be far from “mere regulative criminality” but may be “of great societal and emotional importance to a big figure of people” Secondly. it does non follow that a statutory defense mechanism to a regulative offense will be any easier for the suspect to turn out than an tantamount defense mechanism to a truly condemnable offense. There is no necessary relationship between the grade of burdensomeness of a contrary burden and the type of offense involved. Summarizing up. the categorization is shown to be dependent on the judges’ personal sentiment. which may be different from each other. In Sheldrake. two of the divisional tribunal Judgess thought that an offense was non a regulative affair. while Herinques J concluded the contrary. Construction of condemnable liability: elements of offenses and defense mechanisms.
The general regulation is that given of artlessness requires the prosecution to turn out all indispensable elements of offenses. In Attorney-General for Hong Kong 5 Lee Kwong-kut Lord Woolf remarked that if the prosecution retained duty for turn outing the indispensable ingredient of the offense. the less likely it is that an exclusion will be regarded as unacceptable. In Lambert Lord Hope distinguished between the indispensable elements of the offense and defense mechanism of the type referred to in Edwards. suggest that change by reversaling burden of such defense mechanism is more easy justified. In the same instance. Lord Steyn noted the difference between the component of the offense and defensive issues was sometimes merely a affair of outlining technique.
He suggested that it was preferred to concentrate on moral culpability. Defense mechanisms such as those discussed in Edwards should be distinguished from “other instances where the defense mechanism is so closely linked with work forces rea and moral culpability that it would minimize from the given of artlessness to reassign the legal load to the defendant” . In AG’s Reference ( No. 4 of 2002 ) the tribunals held that Art6 ( 2 ) requires the prosecution to turn out the ‘true nature’ of the offense. Application of this rule did non depend on formal statutory separation of elements and defense mechanisms.
Significance of upper limit punishment
By and large the weight of given of artlessness ought to increase in proportion to the gravitation of the offense. In Lambert. Lord Steyn attached importance to the punishment of life imprisonment when reading down the contrary onuses in that instance. In Sheldrake. the House upheld the contrary burden. as the maximal punishment of the offense was six months. In AG’s Reference ( No. 4 of 2002 ) the House read down the contrary burden. where the maximal punishment was 10 old ages. These 3 instances were deemed to be compatible of the guideline.
However. in Johnstone the maximal punishment for the offense is same with the abovementioned AG’s Reference instance. yet the House upheld the contrary burden. It would look that maximal punishments are a really unsure usher as to whether a contrary burden will be held to be proportionate to the legitimate purpose of the offense in inquiry. It ought to be the instance that the more serious the offense the more compelling should be the justification for a rearward burden. but application of such a rule has been patchy to state the least.
Ease of cogent evidence and peculiar cognition
Ease of cogent evidence is by no means the same construct as curious cognition. In some fortunes defendant doesn’t have peculiar cognition ( i. vitamin E ownership of a license ) . because that cognition is available to prosecution from grounds ( i. vitamin E registries ) . but it is more onerous and dearly-won to turn up it. On the other manus. sometimes defendant does hold peculiar cognition. but this doesn’t mean that it will be easier for him to turn out the absence of work forces rea than prosecution to turn out its presence. In Kebilene Lord Hope suggest that in striking the balance required by the rule of proportionality. one of the inquiries to be asked was whether the load on the suspect related to something that was within his cognition or to which he readily had entree. This suggestion is followed by Lord Nicholls in Johnstone. he referred to defendant’s ain cognition or ready entree as alternate relevant factors in a determination about compatibility of a rearward burden.
Conversely. it should besides be remembered that in Lambert the factor of the defendant’s curious cognition did non predominate over considerations of a maximal punishment of life imprisonment and the unfairness of convicting the suspect where the jury thought that his narrative was as likely to be every bit true as non. A rearward burden is to be justified by mention of easiness of cogent evidence the focal point should be on the weight enforce on the suspect but non look into whether it would be hard for the prosecution to turn out guilt. as even where cogent evidence of guilt would be hard for the prosecution. doesn’t mean that it is easy for suspect to confute his guilt. However in Makuwa the Court of Appeal upheld a rearward burden under s. 31 of the Immigration and Asylum Act 1999. about wholly on the footing of the trouble of cogent evidence for the prosecution.
The tribunal glossed over any troubles of cogent evidence that the suspect might hold. underscoring alternatively the policy demand to keep proper in-migration controls by curtailing the usage of bad passports. In contrast the Divisional Court held in DPP V Wright. that a load on the suspect to turn out that his hunting was “exempt” . would be “oppressive. disproportionate. unjust. and an unneeded invasion on the given of artlessness. ” Schedule 1 of the Hunting Act 2004 contained a list of exempt signifiers of hunting: some of the affairs would be within defendant’s cognition. some would be easy for him to turn out. but some would be neither. In these fortunes the Act should be read as enforcing merely an evidentiary load on the suspect ; one time the prosecution knew which signifier of freedom was in issue it would non be unduly onerous to necessitate them to confute it.
Given of Artlessness
Given has been said to be the foundation of the right to fair test under Art 6. Domestic tribunals that have to make up one’s mind on justifiability of contrary burdens will by and large be making so earlier so test when opinions on the load of cogent evidence have to be made. There are 3 different constructs of the given. The first construct focuses more on procedure than result ; the given is seen as a norm of equity instead than an instrument to guarantee truth. This is the Strasbourg court’s attack which has emphasised procedural of given of artlessness. The 2nd construct of the given. which described as a morally substantial construct. emphasises equity in both procedure and result.
The 3rd one is described by Robert and Zuckerman as “a normative lesson and legal criterion encapsulating a strong committedness to avoiding unlawful strong beliefs. instead than a formula for factual illation and adjudication” This characterises the given as a device for the turning away of a peculiar result of condemnable proceedings. It becomes a protective device regulation for the suspect against the hazard of mistake in adjudication. English jurisprudence favours a more morally substantial position of the given of artlessness.
Lord Steyn conceived the given as guaranting the issues of the defendant’s moral culpability had to be proved by the prosecution. One of Lord Steyn’s grounds for rejecting a contrary burden in Lambert was that it would compel the tribunal to convict the suspect where it thought his version of fact was every bit likely to be true as non. This was thought to be unjust and unacceptable for an offense punishable with life imprisonment. Lord Bingham took a similar attack in Attorney- General’s Reference ( No 4 of 2002 ) to change by reversal the burden under s11 ( 2 ) of the Terrorism Act 2000.
Colin Tapper summarises given of artlessness to be “a cardinal regulation of condemnable procedure” and it is justly so. And yet Lambert’s instance stands out to demo us merely precisely what happens when this opinion is heedlessly ignored. Some legal systems today have employed de jure givens of guilt. such as at an order to demo cause condemnable proceeding. Otherwise. accusals of given of guilt by and large do non connote an existent legal given of guilt. but instead denounce failures to guarantee that suspects are treated good and are offered good defense mechanism conditions.
Examples include the unlawful detainment of suspects in Guantanamo Bay Art6 ( 2 ) will go on to hold a permanent impact on the UK’s legal systems. every bit good as throughout the remainder of the European Union. Yet English Judgess take pride in the English judicial system and will seek to ignore European statute law unless another Lambert occurs. but it has brought justness that much closer to a defendant’s range. As for Ian Dennis’ priceless central rules. while it can non be viewed as the concluding solution to the maltreatment of the given of artlessness. it has besides opened up more doors that were ne’er at that place earlier. It can be concluded hence that the given of artlessness is here to remain.
Dennis I. The Law of Evidence ( 4th edn. Sweet & A ; Maxwell 2013 ) Murphy P. Murphy on Evidence. ( tenth edition OUP. Oxford 2010 ) Charanjit S and Mohamed R. Unlocking Evidence ( 2nd edition. Routledge 2013 ) Spencer M and Spencer J. Evidence. ( 2nd edition )
Durston G. Evidence: Text and Material
Dennis I. ‘Reverse Onuses and the Presumption of Innocence: In Search of Principle’ [ 2005 ] Crim 18 901-936 Ashworth and Blake. ‘The Given of Innocence in English Criminal Law. ’ 1996 Crim. L. R. 306. at 309 Table of Legislative acts