Reversing the burden of proof

However, there are a significant number of offences that include a reverse burden element within them, whereby the legal burden of proof is on the defendant (not the prosecution) to prove a ‘fact’ in issue on the balance of probabilities. Police officers should be aware of the increasing numbers of these reverse burdens being brought into question, and the action they need to take in consequence. This is best shown by way of an example.

Section 139 of the Criminal Justice Act 1988 states, in simple terms, that ‘any person who has in a public place an article which has a blade or is sharply pointed’ is guilty of an offence. The prosecution has to show beyond reasonable doubt that the defendant possessed a blade or sharply pointed article in a public place. The legal burden then falls on the defendant to show on the balance of probabilities that he had good reason or legal authority for such possession. This is certainly more difficult than satisfying the evidential burden (of merely planting a seed of doubt in the minds of the jury). After all, to secure a conviction the jury must believe in the defendant’s guilt beyond reasonable doubt. This raises the fundamental question: why should the defendant have to prove his or her innocence?

This question has recently exercised the minds of the European Court and our own Court of Appeal and House of Lords. The influence of the European Convention on Human Rights and the Human Rights Act 1998 has led to a large number of appeals where reverse burdens have been questioned as to their legitimacy and fairness. This relates in particular to Article 6(2) of the Convention (everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law) and Section 3 of the Act (requiring the courts to give effect to legislation in a way which is compatible with the Convention rights).

Each of the appeals has involved the determination of four points:

n Whether the reverse burden should be a legal or evidential one. An evidential burden requires only that the accused must adduce sufficient evidence to raise an issue in trial. The prosecution does not need to lead any evidence about the issue, but once it is put in issue, the burden of proof on that issue reverts to the prosecution.
n Can the reverse legal burden be justified?
n If the reverse legal burden cannot be justified, could it be reduced to a less demanding evidential one?

n Is the decision compatible with the Convention rights (evidential burdens rarely risk a breach of Article 6(2) but legal burdens can do so, depending on how easy/difficult it is for the defence/prosecution to address the issue and whether it is fair and reasonable to shift part of the burden of proof).

The Court of Appeal has issued a list of guiding principles arising from several appeals under their
consideration.

One of the appeals was R v Hendley where the defence under Section 4(2) of the Homicide Act 1957 (suicide pact) was regarded as a legal burden. Ian Hendley was charged with murdering his partner on 25 March 2002. The police alleged he injected her with a large amount of insulin and then took a small dose himself. Hendley stated it was a suicide pact that went wrong, but was found guilty and appealed. The Court of Appeal agreed with the trial judge that the legal burden of proof of the existence of a suicide pact was on the defence. The Court stated that not only were the facts necessary to establish the defence almost always within the defendant’s sole knowledge but also that the reverse legal burden protected society from murder disguised as a suicide pact killing.

The Court also considered R v Crowley.
The defendant had been charged with intimidating a witness contrary to Section 51(1) of the Criminal Justice and Public Order Act 1994. Section 51(7) provides a defence for which the trial judge decided that the reverse burden was a legal one. Crowley had to show on the balance of probabilities