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Statutory Exceptions to the 'rule in Woolmington'

Statutory Exceptions to the 'rule in Woolmington'

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An essay for the 2011 Undergraduate Awards (Ireland) Competition by Jennifer Hill. Originally submitted for Law with French Law at University College Dublin, with lecturer Dr Thomas Mohr in the category of Law
An essay for the 2011 Undergraduate Awards (Ireland) Competition by Jennifer Hill. Originally submitted for Law with French Law at University College Dublin, with lecturer Dr Thomas Mohr in the category of Law

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Published by: Undergraduate Awards on Aug 31, 2012
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10/27/2013

 
Statutory Exceptions to the ‘Rule in
Woolmington
IntroductionThe ‘rule in
Woolmington
1
states that in criminal cases, the burden rests on the prosecutionto prove the guilt of the accused. This rule was made part of Irish law in
 People (AG) vQuinn
.
2
Behind this rule lies the fundamental principle that the accused is presumed innocentuntil proven guilty. According to the presumption, it is for the prosecution to prove theaccused’s guilt, and not for the accused to prove their innocence. As John Mortimer’scharacter Rumpole of the Bailey put it, “The presumption is the Golden Thread which runsthrough the whole history of our criminal law, so whether a murder has been committed inthe Old Kent Road or on the way to Nova Lombaro, no man shall be convicted if there is areasonable doubt as to his guilt.”
3
The importance of the presumption of innocence in this jurisdiction is highlighted by the factthat it is protected by A38.1 of the Constitution, which guarantees the right to a trial in duecourse of law. The presumption is also given international protection, by A6.2 of theEuropean Convention on Human Rights, which is incorporated into Irish law by the EuropeanConvention on Human Rights Act 2003. Although the presumption is thus protected, in
Woolmington
, Viscount Sankey provided for certain exceptions to the rule that the prosecution must prove the accused’s guilt, that is to say, situations where the presumption of innocence may be restricted.Exceptions to the ‘Rule in
Woolmington
:
1
 
Woolmington v DPP 
[1935] A.C. 462.
2
[1965] IR 366.
3
John Mortimer, ‘Rumpole and the Golden Thread,’
The Second Rumpole Omnibus
, p.274.
1
 
Where a statute provides for it, or where the accused relies on the defence of insanity, the burden of proof can be placed on the accused. Statutory provisions may expressly or byimplication, through judicial interpretation of the statute, place the burden of proof on theaccused. Implied statutory exceptions usually arise where legislation prohibits “the doing of an act subject to exceptions.”
4
Here the burden rests on the accused to prove that he fallswithin the exception. From the implied statutory exception developed the peculiar knowledge principle.
5
 This principle, developed by the Common Law, is referred to in many Irishtextbooks as a “third exception” to the ‘rule in
Woolmington
’.The statutory exceptions to the rule, and their compatibility with A38.1 of the Constitutionand A6.1 of the Convention, are the focus of this essay, and the Irish position will becontrasted with that of England. To understand the law in relation to statutory exceptions,and, in particular, the Irish approach to the issue, it is necessary to examine the concept of the burden of proof itself, placed on either the prosecution or the accused in a criminal trial. It isgenerally accepted that the more onerous the burden, the more likely it is to violate the presumption of innocence.The Distinction between the Legal and Evidential BurdensThere are two types of burden: the legal burden and the burden to adduce evidence (theevidential burden). The legal burden in a criminal trial refers to the duty of the prosecution to prove the accused’s guilt beyond all reasonable doubt. However, in certain circumstances, the
4
Canon & Nelligan,
 Evidence
, p.26.
5
The accused must prove issues that are within his peculiar knowledge.
2
 
legal burden may be placed on the accused, to prove his innocence on the balance of  probabilities.The burden to adduce evidence may be placed on either side, and requires that the sideadduce “such evidence as, if believed and left uncontradicted and unexplained, could beaccepted by the jury as proof.”
6
Irish case law suggests that, while placing the evidential burden on the accused does not goagainst the presumption of innocence, shifting the legal burden to the accused may beincompatible with the presumption.The Irish Position Relating to Statutory ExceptionsBecause the presumption of innocence is guaranteed by A38.1 of the Constitution, any statutethat restricts this right is may be declared unconstitutional. While a number of Irish statutesappear to place the legal burden of proof on the accused,
7
the leading Irish case in the area is
O’Leary v Attorney General 
.
8
Here, the accused was charged with membership of anunlawful organisation, under s.24 of the Offences Against the State Act 1939 and s.3(2) of the Offences Against the State (Amendment) Act 1972. He challenged the constitutionality of these provisions, on the basis that they placed a legal burden on him, and therefore infringedthe presumption of innocence.In the High Court, Costello J, whose decision was upheld by the Supreme Court, examinedthe legislation and found that while statutory provisions which placed the legal burden on the
6
 
 Jayasena v R
[1970] AC 618 per Lord Devlin at 624.
7
The Misuse of Drugs Act 1977 s15(2) provides that when charged with unlawful possession of drugs, theaccused must prove that such possession was lawful; the School Attendance Act 1926 s18(2) provides that, if  prosecuted for their child’s non-attendance of school, relying on the defence that their children are home-schooled imposes a burden of proving this on the parents.
8
[1991] ILRM 454 (HC); [1995] 2 ILRM 259 (SC).
3

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