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Published: Fri, 02 Feb 2018
Is there ever a good reason to require the defendant to establish the burden of persuasion in his favour for any issue?
The commentators seem to agree that there is no systematic way in which we can decide whether the defendant ought to bear the burden of persuasion on any particular issue. The explanation for this is simple – there is in fact never a good reason to require the defendant to establish any issue in his favour. Discuss.
The test to ascertain whether a defendant bears a burden of persuasion pursuant to the rule of interpretation in s.101 of the Magistrates’ Courts Act 1980 has been relatively settled in R v Hunt. The proportionality test involved in determining whether a defendant ought to bear such a burden, on the other hand, is less so. While the presumption of innocence in Art 6(2) of the European Convention on Human Rights does not prohibit the imposition of a persuasive or legal burden, as evidenced by the decision in Salabiaku v France, we know from Janosevic v Sweden that it does require the exercise be reasonably proportionate to the pursuit of a legitimate aim. Here, various factors have been used in deciding the balancing test, but with no apparent hierarchy or systematic application so that it is difficult to ascertain a uniform approach that can adequately explain all reverse burden cases. It is submitted that this is caused by the lack of a sufficiently logical reason to systematically justify the reversal of the legal burden. Although several factors have been commonly cited in cases engaging the aforementioned balancing tests, none of them can, as a sole factor, rationalize the decisions taken in this area of law; nor have the courts conceptualized any structure or hierarchy which could be used when considering the legitimacy of reversing a persuasive or legal burden.
Ian Dennis identified a number of factors prominent in judicial discussions about the proportionality of reversing the burden of persuasion, the first being judicial deference. This was aptly described by Lord Hope in R v DPP ex parte Kebilene as a “discretionary area of judgment … within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body.” Emphasis on judicial deference would adequately explain the decisions in R v Johnstone and Attorney-General’s Reference (No. 1 of 2004), where Lord Nicholls and Lord Woolf, respectively, prefaced their considerations of proportionality with an assumption that Parliament chose to depart from the presumption of innocence with good reason. Indeed, the application of this factor was one of the three main reasons behind the House of Lords’ decision in Johnstone that the reversal of burden of proof under s.92(5) of the Trade Marks Act 1994 was proportionate. However, judicial deference as the sole or main consideration in the balancing test cannot satisfactorily account for the reasoning in R v Sheldrake, where Lord Bingham singled out the speech of Lord Woolf in Attorney-General’s Reference (No. 1 of 2004) and expressed concern that such an approach may place too little weight to the presumption of innocence and the court’s obligation under s.2 of the Human Rights Act 1998 to give effect to it.
A slightly less popular and arguably more problematic factor is the traditional distinction between offences that are “truly criminal” and statutory regulatory offences governing certain activities in the public interest. This distinction was referred to by Lord Clyde in R v Lambert, but did not sway the court’s decision that the reversal of onus in s.28 of the Misuse of Drugs Act 1971 was disproportionate and should be read down pursuant to s.3(1) of the Human Rights Act 1998. As a hierarchical factor, it seems to attract little weight as there is no discernible pattern of correlation between the moral value of the offence and any tendencies in determining proportionality. S.92(5) of the Trade Marks Act 1994 in Johnstone, for instance, a provision targeting counterfeit goods was held to have proportionately reversed the legal burden, whereas the reversal under s.11 of the Terrorism Act 2000, which criminalised membership of proscribed organisations was found disproportionate in Attorney-General’s Reference (No. 4 of 2002). This is to be welcomed, given the lack of any necessary relationship between the type of crime and the degree of onerousness faced by a defendant under a reverse onus. Moreover, the distinction is difficult to draw, given the value judgments necessitated in the exercise – many environmental regulatory offences, for instance, could cause just as much, if not more physical and mental harm as traditionally accepted crimes targeted at individuals.
The third factor relates to the deep-rooted desire in criminal law for the prosecution to prove all elements of the offence. A notable example is Lord Hope’s speech in Lambert, where his Lordship distinguished exculpatory defences from elements of the offence and suggested that the imposition of a reverse onus for the former would be more easily justifiable. In short, it is more likely that a reversal will be found proportionate if the prosecution would still bear the responsibility of proving all elements of the offence. Case law does not conclusively demonstrate the existence of a particular role for this factor in the hierarchy of considerations – Lord Steyn, who was also in the majority with Lord Hope in Lambert noted that the distinction between elements of the offence and defences could very well be artificial and dependent on choices of drafting technique, instead of any substantial policy considerations. However, there is a significant body of cases adopting this factor as a main consideration, with a tendency to reason that if Parliament could have chosen to withdraw altogether defences to an offence, then the defendant has little reason to complain if he is afforded a defence on the proviso that he bears the burden to prove it. This underpinned the judgment in Attorney-General’s Reference (No. 1 of 2004), where the fact that the defence reversing onus only arose after the prosecution proved all elements of the offence was taken as a greater indication of justifiability. Similar reasoning could also be seen in Attorney-General’s Reference (No. 4 of 2002) and R v Williams. However, this trend attracts the same criticism levelled against onus reversal predating the Human Rights Act 1998. Glanville Williams, in particular, cautioned that while this distinction might render acceptable the reversal of an evidential burden, the application of the same to the persuasive burden would severely qualify in substance, or even negate the principle in Woolmington v DPP that the prosecution bears the ultimate burden to prove all elements of an offence.
It has been suggested that maximum penalties function as indicators or grades of how serious an offence is thought to be. An argument has been made in the South African Constitutional Court by Sachs J in State v Coetzee, cited with approval by Lord Steyn in Lambert that the weight attached to the presumption of innocence should increase in proportion to the seriousness of the offence. However, perusal of case law shows no such pattern, but in fact demonstrates differing views of the level of severity at which maximum penalties are thought to be significant. In Lambert, the discussion on proportionality was reinforced by reference to the possibility of life imprisonment, and the reverse legal burden was read down to an evidential burden; a similar result was seen in Attorney-General’s Reference (No. 4 of 2002) where the maximum penalty was 10 years’ imprisonment. However, the reverse legal burdens were upheld in Johnstone and Williams, which both concerned offences with maximum penalties of 10 years’ imprisonment. More recent judicial reasoning appears to indicate a reluctance to view this factor in isolation and as a determinative consideration – Lord Hope in R v Chargot Limited (t/a Contract Services) and others, for instance, preferred to view the maximum penalty in conjunction with the purpose of the legislation and the background of the case. As such, the extent to which this factor influences decision-making in relation to onus reversal is uncertain at best.
There is also a line of thought in this area of law that the reversal of burden of proof would be more justifiable if it is easier for the defendant than it is for the prosecution to prove a particular matter or if peculiar knowledge of certain matters places the defendant in a better position to prove an issue. It was an influential factor in Kebilene, where Lord Hope specifically considered the extent to which these matters affected the ability of the defendant to discharge a persuasive burden. Similarly, Lord Nicholls in Johnstone also considered the same matters before arriving at the conclusion that facts within the defendant’s knowledge made it easier for the defendant to prove a reasonable belief that the goods were not goods in breach of s.92 of the Trade Marks Act 1994. The House of Lords in Attorney-General’s Reference (No. 4 of 2002), on the other hand, found that s.11 of the Terrorism Act 2000, which required the defendant to prove a negative – the lack of active membership since the date of prescription – placed an undue burden on the defendant upon application of this line of reasoning. However, not all cases approach ease of proof and peculiar knowledge with the same enthusiasm. The Court of Appeal in R v Makuwa held that it was not disproportionate to require a refugee to prove that she had presented herself to the authorities as soon as possible, and in reaching this conclusion emphasized the difficulty of proof had the prosecution borne the legal burden and the policy need for efficient immigration controls. Difficulties which the defendant might face in proving any of the relevant matters, on the other hand, were mentioned, but received little discussion.
While it is true that there are circumstances where the defendant’s peculiar knowledge or access to certain information makes it easier for him to prove a particular matter, this nevertheless makes ease of proof and peculiar knowledge necessary, but not sufficient conditions for the reversal of a legal burden of proof. The reversal of an evidential burden can readily be justified in the aforementioned circumstances, the most notable example being where a defence is being raised as the prosecution has no way of determining in advance the form in which a defence might arise. However, the mere possession of peculiar knowledge does not necessarily make it easier for the defendant to prove a particular matter, if the defendant does not also have access to corroborating evidence. Relative ease of proof also needs to be approached with care – where the discharge of a persuasive burden would prove difficult for the prosecution, it does not follow that the defendant will necessarily be in a significantly better position to do the same. A secondary conception of this factor, rooted in academic commentary, seeks to justify requiring the acceptance of the corresponding burden by voluntary participants in regulated activities from which they intend to derive benefit. This is usually strengthened by a pragmatic consideration – that in the normal course of events it will be easier for the defendant to prove, by production of relevant documentation, that they have complied with the requisite regulatory conditions. While this is unobjectionable if it is indeed easier for the defendant to discharge the burden, the justification is limited to activities traditionally thought of as belonging squarely in civil regulatory laws, and do not cover a large number of criminal offences with which onus reversal is often associated.
Given the historical difficulty in judicial identification of a sole principle or hierarchy of principles which could provide guidance and structure in this area of law, the only real alternatives are for a conclusive test to be set out by Parliament, or to adopt the proposal made by the Criminal Law Revision Committee in 1972 to impose no more than an evidential burden of proof on the defendant. This proposal would, by affording maximum weight to the Art 6 presumption of innocence, decrease, if not eliminate altogether problems with compatibility with the European Convention on Human Rights in relation to this matter. However, the enormity of this reform and reluctance by courts and legislature alike to undertake the task suggest that this prospect is highly unlikely – Lord Griffiths in Hunt commented that a change of this magnitude could only be carried out by Parliament, a sentiment echoed by Lord Bingham in Sheldrake. Unfortunately, no government has made any active move towards reform in this area, and the existing confusion in the law will most likely persist for the foreseeable future.
  1 All ER 1
 (1988) 13 EHRR 379
 (2004) 38 EHRR 473
 Ian Dennis, Reverse Onuses and the Presumption of Innocence: In Search of Principle  Crim LR 901
  2 AC 326, at 380-381
  3 All ER 884
  2 Cr App R
  1 AC 264
  2 AC 545
 Sheldrake n(8)
  EWCA Crim 2162
  AC 462
 Glanville Williams, The Logic of ‘Exceptions’  Cam LJ 261
 Andrew Ashworth, Principles of Criminal Law (4th ed., Oxford University Press 2003), p.37
  2 LRC 593
 Lambert n(9), at 
  UKHL 73 at 
  2 Cr App R 11
 Dennis n(4)
 Criminal Law Revision Committee, Eleventh Report Evidence (General), Cmnd 4991 (1972) para 140
 Sheldrake n(8) at 
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