SRN: BP0154364

Law of Evidence
SRN: BP0154364
Semester I1

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There are two forms of burden of proof in English law, (i.e. legal burden and evidential
burden). The evidential burden is providing some evidence to make the issue alive at
trial,1 even though, in the strict sense, the “evidential burden is not a burden of proof” at
all.2 In the law of evidence, the only burden that is put on a party is known as legal
burden. In criminal cases, such legal burden is borne by the prosecution, on the ground
of equity, that ‘he who asserts must prove’. 3 With regards to the standard of such proof,
there are two: civil and criminal. The Civil standard is balance of probabilities, whilst the
criminal standard is ‘beyond reasonable doubt’. Woolmington v DPP4 confirmed, the
prosecution will prove the prisoner’s guilt beyond reasonable doubt. However, there are
circumstances where the concept of reverse burden has been developed and in such
exceptional circumstances, it is the defence, which must bear the legal burden. Now,
the question is, does reversing the burden violate the concept of ‘presumption of
innocence’ secured by Article.6(2) of European Convention on Human Rights 5? Though,
in a case,6 the court held that, the burden will be imposed on the defendant, only when it
is legitimate and reasonably proportionate. 7 This paper is going to discuss this area of
law and the reasonableness of imposing the burden of proof on a defendant by the
following the question.
Under the English common law system, in criminal trial the prosecution will generally
bear the burden of proof, and the standard will be beyond reasonable doubt, which was
termed as “golden thread” by Sankey LC. 8 Even though, the concept of ‘golden thread’
is long recognised, Woolmington v DPP9 recognised “statutory exceptions” and the
common law exception of “insanity”, where the accused is required to bear the burden
of proof.10 The only common law exception is the defence of insanity, where the
defendant will borne the “legal burden” of proof. 11 Statutory exception was brought out
from the suggestions by the judges in the case of Daniel M’Naghten,12 where the
defendant shot and killed the victim and claimed the defence of insanity. The defendant
was assumed sane, unless contrary was proved by the defendant. 13 The defendant was
1
C Allen, ‘Practical Guide to Evidence’ (5th edition Routledge, Great Britain 2016) 142
2
C Allen, ‘Practical Guide to Evidence’(5th edition Routledge, Great Britain 2016) 142
3
Chapter 3 http://global.oup.com/uk/orc/law/evidence/durston2e/resources/guidance/ch03/ last accessed
11/102017
4
Woolmington v DPP [1935] AC 462, p 481
5
European Convention on Human Rights 1950
6
Janosevic v Sweden (2004) 38 EHRR 473 ,10
7
I.H. Dennis, ‘The Law of Evidence’ (5th Edition, Sweet & Maxwell, London, 2013), 460.
8
C Allen, ‘Practical Guide to Evidence’ (5th edition Routledge, Great Britain 2016) 152,153
9
Woolmington v DPP [1935] UKHL 1
10
ibid
11
Richard Glover, ‘Murphy on Evidence’ (15th Edition, Oxford University Press, UK 2017), 103
12
R v M'Naghten (1843) 8 E.R. 718; Richard Glover, ‘Murphy on Evidence’ (15th Edition, Oxford University Press,
UK 2017), 103
13
Richard Glover, ‘Murphy on Evidence’ (15th Edition, Oxford University Press, UK 2017), 103

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under an obligation to show that, he was unaware of the consequences of his action at
the time of offense because of any disease of his mind. As per R v Carr Briant14 he
was obliged to prove his defence on the balance of probability. 15 Dennis advises, there
is no valid cause in principle to ask the defendant to bear the legal burden of proving
instead of providing some evidence to support the defence raised by a defendant. 16
Moreover, the Criminal Law Revision Committee stated that "we are strongly of the
opinion that, both on principle and for the sake of clarity and convenience in practice,
burdens on the defence should be evidential only". 17 However, in a very recent case, 18
the Court of Appeal confirmed that legal burden might be discharged by the accused in
such cases.19
Viscount Sankey LC also identified the statutory exception of the golden thread. Where
the defendant will be under an obligation under a statutory provision to prove any
excuse or any defence or to disprove the presence of any element of the conduct he
accused of.20 For example, S.2 of the Homicide Act 1957 21 defined the defence of
diminished responsibility and states, “on a charge of murder, it shall be for the defence
to prove that the person charged is by virtue of this section not liable to be convicted of
murder”.22 It was stated in R v Dunbar23 that, responsibility to proof the defence of
diminished responsibility on the balance of probability is always on to the defendant. 24
In R v Hunt25 the House of Lords held that, provisions can impose the burden onto the
defendant ‘by necessary implication’ which has no express indication. 26 S.101 of The
Magistrate’s Court Act 198027 states, if the defendant relies on any defence ‘exclusion,
exemption, proviso or excuse’ then the burden will be on him. 28 The court in R v
Edwards29 held, S.10130 is not limited for the magistrate’s courts, but also applicable to
all criminal cases.31 R v Hunt32 held, the parliament's intention shouldn’t be taken lightly,
14
R v Carr Briant [1943] KB 607
15
Richard Glover, ‘Murphy on Evidence’ (15th Edition, Oxford University Press, UK 2017), 105
16
I.H. Dennis, ‘The Law of Evidence’ (5th Edition, Sweet & Maxwell, London, 2013), 449
17
Evidence (General) 11th Report of the Criminal Law Revision Committee, Cmnd 4991
18
R v Foye [2013] EWCA Crim 475
19
Peter Coe, Justifying reverse burdens of proof: a tale of diminished responsibility and a
tangled knot of authorities, Case Comment, Journal of Criminal Law 2013, J. Crim. L. 363
20
Richard Glover, ‘Murphy on Evidence’ (15th Edition, Oxford University Press, UK 2017), 104
21
Homicide Act 1957
22
“https://www.legislation.gov.uk/ukpga/Eliz2/5-6/11/section/2 > ” last access 10/31/2017
23
R v Dunbar [1958] 1QB 1
24
Arlie Loughnan, ‘Manifest Madness: Mental Incapacity in the Criminal Law’ (Oxford University Press 2012) 246
25
R v Hunt [1987] 1 All ER 1
26
Richard Glover, ‘Murphy on Evidence’ (15th Edition, Oxford University Press, UK 2017), 114
27
The Magistrate’s Court Act 1980
28
Richard Glover, ‘Murphy on Evidence’ (15th Edition, Oxford University Press, UK 2017), 114
29
R v Edwards [1975] QB 27
30
Section 101 of the Magistrate’s Court Act 1980
31
Richard Glover, ‘Murphy on Evidence’ (15th Edition, Oxford University Press, UK 2017), 114
32
R v Hunt [1987] 1 All ER 1

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and the court should be very slow to guess that, a statute imposed the burden of proof
on the defendant already. Lord Griffiths considered that as a brilliant guide to
construction rather than the strict rule and suggested that, the courts should consider
the aim of the Act and how easy it would be for the defendant to discharge the legal
burden of proof.33 In a recent case of R v Webster34 the Court of Appeal imposed an
evidential burden on the defendant, who was accused under Section.2 of the Prevention
of Corruption Act 1916.35
According to Ashworth and Blake's research, reverse burden is violating Art.6(2) in
minimum 40% of the trials in the Crown Court. 36 It shows that defendants might be
asked to discharge the burden on many occasions, which will be a legal burden. So, it
should be considered now, whether reverse burden compatible with presumption of
innocence and the accused should bear the burden or not.
The presumption of innocence is protected by The European Convention of Human
rights,37 which is incorporated into English law by the Human Rights Act 1998.38 Art.6(2)
of ECHR39 states that 'everyone charged with a criminal offense shall be presumed
innocent until proved guilty according to the law'. 40 It seems, imposing the burden on the
accused is in contrast with Art.6(2) because if the defendant fails to prove his
innocence, he will be presumed guilty. 41 However, the European court of Human Rights
in the case of Salabiaku V France42 suggests that Art.6 is not an absolute right. This
means that, even though the reverse burden is incompatible with it, it can be applicable
by fulfilling the requirement of proportionality. 43 Later, the concept was upheld in the
case of Brown v Stott.44
In the UK, the human rights effect on reverse burden was first heard in the case of R v
Lambert45 by the House of Lords (HOL). 46 The appellant was sentenced for the
possessing drug (cocaine) with intent to supply which is unlawful under s. 5 (3) of the

33
Ibid 114, 115
34
R v Webster [2010] EWCA Crim 2819
35
The Prevention of Corruption Act 1916;
“http://global.oup.com/uk/orc/law/evidence/tapper12e/resources/updates/ch03/>” last accessed 11/1/2017
36
Ashworth, A. & Blake, M. “The presumption of innocence in English criminal law” Criminal Law Review, 1996,
306
37
European Convention on Human Rights 1950
38
C Allen, ‘Practical Guide to Evidence’ (5th edition Routledge, Great Britain 2016) 138
39
European Convention of Human Rights
40
Richard Glover, ‘Murphy on Evidence’ (15th Edition, Oxford University Press, UK 2017), 101
41
I.H. Dennis, ‘The Law of Evidence’ (5th Edition, Sweet & Maxwell, London) 2013, 459
42
Salabiaku v France (1988) 13 EHRR 379
43
Richard Glover, ‘Murphy on Evidence’ (15th Edition, Oxford University Press, UK 2017), 109
44
Brown v Stott [2003] 1 AC 681
45
R v Lambert [2001] 3 ALL ER 577
46
C Allen, ‘Practical Guide to Evidence’ (5th edition Routledge, Great Britain 2016) 155

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Misuse of Drugs Act 1971.47 Lambert relied on S.28(3)(b)(i) of the Act 48 and claimed that
he did not know he was carrying the banned drug. According to the Act of 1971 49 the
prosecution was just required to prove that the accused possessed the drug and he
knew it. Under s. 28 of the Act 50 the defendant is supposed to prove his defence. On
that basis, the trial judge directed the jury that the defendant must prove his defence.
The defendant was subsequently convicted by the jury. The defendant appealed against
the judge's direction that the application of s.28 violated the Art.6(2) of ECHR. 51 The
appeal was dismissed and finally reached in the HOL. The majority of the HOL 52
agreed, the Act53 will not apply here because it happened before the Human Rights
Act54 came into effect, so the appeal was dismissed. 55 However, the majority of the
House of Lords also agreed, the legal burden of proving the absence of knowledge of
the accused is in contrast with art 6(2) of ECHR. So, s.28 should be “read down” by
utilising s.3 of the HRA 1998,56 and the S.28 used the world ‘prove’ interpreted as
adducing satisfactory evidence.57
Though, it does not mean that in every situation which requires reverses burden by any
statute will be “read down” to impose evidential burden only, 58 the reverse burden can
be justified by satisfying public objective and maintaining proportionality or
reasonableness. Not only that, the court should be slowed down and maintain the
balance between the fundamental rights of the accused and the interest of the entire
community.59 As Lord Steyn stated, the court will consider whether there was ‘pressing
necessity’ to reverse the legal burden. 60
However, in the case of L v DPP,61 a different approach was taken, where the accused,
charged with possessing a lock-knife in a public place which is prohibited by the S.139
of the Criminal Justice Act 1988. 62 Section 13963 provides, possessing “any article which
has a blade or is sharply pointed except a folding pocket knife” in a public place is

47
The Misuse of Drugs Act 1971
48
ibid
49
ibid
50
ibid
51
European Convention on Human Rights 1950
52
House of Lords
53
The Human Rights Act 1998
54
ibid
55
Richard Glover, ‘Murphy on Evidence’ (15th Edition, Oxford University Press, UK 2017), 109
56
The Human Rights Act 1998
57
ibid
58
C Allen, ‘Practical Guide to Evidence’ (5th edition Routledge, Great Britain 2016) 156
59
R v Lambert [2001] 3 ALL ER 577 p 590,606,625,638 and see C Allen, ‘Practical Guide to Evidence’ (5th edition
Routledge, Great Britain 2016) 156
60
C Allen, ‘Practical Guide to Evidence’ (5th edition Routledge, Great Britain 2016) 156
61
L v DPP {[2002] 2 All ER 854
62
Section 139 of The Criminal Justice Act 1988
63
ibid

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unlawful. The district judge imposed the legal burden on the defendant as provided
expressly in s.139(4) of the criminal justice Act. 64 The idea behind that is, the defence is
required to show any good reason to carry the offensive article or that he has lawful
authority, and the prosecution was required to show the accused was carrying the knife.
However, under s.28,65 the defendant had to prove he didn’t know, he was carrying the
banned drugs.66 The divisional court concludes that reverse burden, in this case, didn't
violate the Art.6(2)67 on the basis that, carrying ‘blade or pointed' articles in public place
is the greater danger to public objective and society than carrying banned drugs. 68 It can
be assumed from the reasoning of the judgment, the court will consider the effect of the
offense to the society. The same approach was taken in the case of R v Matthews.69
However, in a very important case of R v Johnstone70 the House of Lords co-founded
the approach taken in Lambert,71 where the accused was convicted for possessing
infringing goods, which is a serious trademark offence under s.92 of the Trade Marks
Act 1994.72 The defendant had the obligation to prove his defence provided by S.92 (5) 73
i.e. he reasonably believed, that there wasn’t a breach of registered trade. The House
of Lords held that, the reverse burden is proportionate on the basis that the fact was
within the accused’s peculiar knowledge. 74 Lord Nicholls commented in obiter that, the
primary obligation in deciding the policy of what should constitute a criminal offense is
on the parliament and not in the courts. The courts are just enjoying the reviewing role. 75
So, the court’s decision should differ from the legislature, where an insufficient
importance was given to the fundamental rights of presumption of innocence. 76 As Lord
Nicholls observed, Art.6(2)77 didn’t prohibit the presumption of fact or law, rather they
will be kept reasonable.78 There must be a convincing reason for imposing the legal
burden on the defendant to maintain the fairness and reasonableness. 79

64
Section 139 (4) of The Criminal Justice Act 1988
65
S.28 of The Misuse of Drugs Act 1971
66
C Allen, ‘Practical Guide to Evidence’ (5th edition Routledge, Great Britain 2016) 157
67
Article 6 (2) of the European Convention on Human Rights 1950.
68
C Allen, ‘Practical Guide to Evidence’ (5th edition Routledge, Great Britain 2016) 158
69
R v Matthews [2003] All ER (D) 368 (Mar)
70
R v Johnstone [2003] 1 WLR 1736
71
R v Lambert [2001] 3 ALL ER 577
72
S.92 of The Tread Marks Act 1994
73
S.92 (5) of The Tread Marks Act 1994
74
I.H. Dennis, ‘The Law of Evidence’ (5th Edition, Sweet & Maxwell, London, 2013), 463
75
Richard Glover, ‘Murphy on Evidence’ (15th Edition, Oxford University Press, UK 2017), 117
76
[2003] 1 WLR 1736, para 51
77
Article 6 (2) of the European Convention on Human Rights 1950
78
C Allen, ‘Practical Guide to Evidence’ (5th edition Routledge, Great Britain 2016) 158
79
Ibid 759

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In the case of Attorney-General’s Reference (No 1 of 2004)80 the court gave priority to
the approach taken in Johnstone81 over the approach taken in Lambert. 82However,
members of the HoL observed that both cases were strictly obiter, and there was no
basis for distinguishing. This was because in Lambert83, the House of Lords just
analysed the concept of reverse burden, whereas in the case of Johnstone,84 Lord
Nicholls did not show any obvious intention to disprove anything in Lambert.85 Also,
Lambert86 was followed in the case of Sheldrake v DPP.87 It was also suggested that
two different provisions were examined in those cases, so the difference in emphasis
given is understandable.88 Therefore, Lambert’s89 the approach should not be
overlooked, and both cases are perfectly compatible with each other. 90 Lord Bingham in
Sheldrake91 followed the previous two approaches (in Lambert 92 and Johnstone93) and
added, the reverse burden is permissible, but it must be kept within reasonable limits
and would not be arbitrary.94
From the above discussion, the imposing of the legal burden can only be justified by
fulfilling the requirement of proportionality, which requires the balance between the
interest of the society and the rights of the accused. However, here the question is,
whether the reasonableness and proportionality can be insured certainly. To make this
area of law certain, Ian Dennis tried to combine six factors by pulling the authorities
together.95 As Sheldrake96 indicated, the court can consider the factors, 97 including 1)
the classification of the offense in between mala-in-se and mala prohibita.981) Judicial

80
Attorney General Reference No. 1 [2004] CA
81
R v Johnstone [2003] 1 WLR 1736
82
R v Lambert [2001] 3 ALL ER 577; Richard Glover, ‘Murphy on Evidence’ (15th Edition, Oxford University Press,
UK 2017), 118
83
R v Lambert [2001] 3 ALL ER 577;
84
R v Johnstone [2003] 1 WLR 1736;
85
Richard Glover, ‘Murphy on Evidence’ (15th Edition, Oxford University Press, UK 2017), 118
86
R v Lambert [2001] 3 ALL ER 577
87
Sheldrake v DPP [2004] QB 487
88
Richard Glover, ‘Murphy on Evidence’ (15th Edition, Oxford University Press, UK 2017), 118
89
R v Lambert [2001] 3 ALL ER 577
90
Richard Glover, ‘Murphy on Evidence’ (15th Edition, Oxford University Press, UK 2017), 119
91
Sheldrake v DPP [2004] QB 487
92
R v Lambert [2001] 3 ALL ER 577
93
R v Johnstone [2003] 1 WLR 1736
94
Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002: HL 14 Oct 2004
“http://swarb.co.uk/sheldrake-v-director-of-public-prosecutions-attorney-generals-reference-no-4-of-2002-hl-14-
oct-2004/ >” last accessed 11/07/2017
95
I.H. Dennis, ‘The Law of Evidence’ (5th Edition’ Sweet & Maxwell, London) 2013, 464
96
Sheldrake v DPP [2005] 1 AC 264, [21]
97
C Allen, ‘Practical Guide to Evidence’ (5th edition Routledge, Great Britain 2016) 160
98
ibid

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defence.99 2) Elements of offence and existing defence. 100 3) Classification of

offences.101 4) The significance of the maximum penalties. 102 5) The ease of proof and
the peculiar knowledge.103 6) The presumption of innocence. 104
Even if the factors identified from the indication of the authorities, provides some
guidelines, but those are not conclusive. Dennis admits that it is hard to ascertain any
fixed structure in their operation within the common laws, and admitted that “the
justifiability of particular reverse onuses will resemble a forensic lottery”. 105 Though
those factors were merely a summarisation of legal judgments in reverse burden issues
and those summarised compilation will help a judge in deciding whether the reverse
burden is compatible with the presumption of innocence. It must be submitted that; the
courts can exercise their power to uphold the will of the parliament where needed. 106
Nevertheless, there will be always some risk of wrong conviction because of reverse
burden. Sometimes the legal burden on prosecution will be difficult to proof, in such
cases, where the issue is involved peculiar knowledge of the defendant, because it will
be easier for the accused to prove his peculiar knowledge. 107 For example, someone is
accused for carrying a knife in public place under s.139 of CJA. 108 Accused can easily
discharge his burden by showing the licence then the prosecution to prove that the
accused is not authorised. Additionally, the burden can be imposed on the accused to
stop the accused from submitting a no case to answer.109
It is still arguable that, whilst imposing the burden of proof depends on proportionality, to
determine how such proportionality is to be applied is still uncertain. So, until the
certainty of proportionality comes, reverse burden can lead to injustice. Hence, it can be
argued, to ensure justice, the court can impose evidential burden only by reading down
the provision by applying s.3 of the Human Rights Act 1998, 110 until the legislature give
any clear guidance, as Sir William Blackstone stated, “it is better that ten guilty persons
escape than that one innocent suffer.” 111

99
Ibid p.161
100
ibid
101
Ibid 162
102
ibid
103
ibid
104
Ibid.
105
Roderick Munday, Roderick J. C. Munday, Evidence (9 th edition, oxford University press- 2017) page.102
106
David Manknell, Time to Revisit Pepper v Hart?
“http://www.tandfonline.com/doi/abs/10.1080/10854681.2004.11427285?journalCode=rjdr20 >” last accessed
11/8/217
107
R v Lambert [2001] UKHL 37, para192-198
108
Section 139 of the Criminal Justice Act 1988
109
C Allen, ‘Practical Guide to Evidence’ (5th edition Routledge, Great Britain 2016) 153
110
The Human Rights Act 1998; Richard Glover, ‘Murphy on Evidence’ (15th Edition, Oxford University Press, UK
2017), 102
111
W Blackstone, Commentaries on the Laws of England (Clarendon Press, Oxford 1765- 1769).

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It must be submitted the concept of presumption of innocence (Golden Thread) has

never been absolute. The exceptions were always there. To ensure fair trial, sometimes
the courts may ask the accused to bear the burden even if it may seem to be in breach
of HRA112 provisions. However, the hope is that the court will consider the proportionality
before imposing the burden on to the accused, and if the reverse burden fails to be
proportionate, sections can be ‘read down' to protect the right of the defendant.
However, the area of law, mainly in assessing the proportionality of reverse burden, is
extremely unclear because of no clear guidance from the parliament neither from the
court. So, the final word is, if the court can make sure the proportionality of the reverse
burden, the legal burden on defendant can be justifiable.

‘I [BP0154364] declare that this piece of work contains [2468] words. I have read and fully
understood the University Policy relating to Academic Misconduct as cited on the VLE.’

Bibliography

Cases
 Woolmington v DPP [1935] AC 462
 Janosevic v Sweden (2004) 38 EHRR 473
 R v Carr Briant [1943] KB 607
 R v Foye [2013] EWCA Crim 475
 R v Dunbar [1958] 1QB 1

112
The Human Rights Act 1998

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 R v Hunt [1987] 1 All ER 1

 R v Edwards [1975] QB 27
 R v Webster [2010] EWCA Crim 2819
 Salabiaku v France (1988) 13 EHRR 379
 Brown v Stott [2003] 1 AC 681
 R v Lambert [2001] 3 ALL ER 577
 L v DPP {[2002] 2 All ER 854
 R v Matthews [2003] All ER (D) 368 (Mar)
 R v Johnstone [2003] 1 WLR 1736
 Sheldrake v DPP [2004] QB 487]
 R v M'Naghten (1843) 8 E.R. 718

Legislations and statutory instruments

 The Human Rights Act 1998
 The Homicide Act 1957
 The Magistrate’s Court Act 1980
 The Prevention of Corruption Act 1916
 The Misuse of Drugs Act 1971
 The Criminal Justice Act 1988
 The Tread Marks Act 1994

EU Legislation
 European Convention on Human Rights 1950

Books
 Richard Glover, Murphy on Evidence, (15th Edition, Oxford University Press, UK 2017)
 C Allen, ‘Practical Guide to Evidence’ (5th edition Routledge, Great Britain 2016)
 I.H. Dennis, The Law of Evidence, (5th Edition, Sweet & Maxwell, London, 2013)
 Arlie Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law. (Oxford
University Press 2012)
 Roderick Munday, Roderick J. C. Munday, Evidence (9th edition, oxford University
press- 2017)

Articles
 David Hamer, The presumption of innocence and reverse burdens: a balancing act,
(Cambridge Law Journal 2007)
 W Blackstone, Commentaries on the Laws of England (Clarendon Press, Oxford 1765-
1769)

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 Ashworth, A. & Blake, M. - The presumption of innocence in English criminal law.

Criminal Law Review, 1996, 306
 Peter Coe, Justifying reverse burdens of proof: a tale of diminished responsibility and a
tangled knot of authorities, Case Comment, Journal of Criminal Law 2013, J. Crim. L.
363
 Evidence (General) 11th Report of the Criminal Law Revision Committee, Cmnd 4991
 David Manknell, Time to revisit Pepper v Hart? [2004] JR 30

Websites
 Chapter 3 <http://global.oup.com/uk/orc/law/evidence/durston2e/resources/guidance/ch03/>
last accessed 11/102017
 <https://www.legislation.gov.uk/ukpga/Eliz2/5-6/11/section/2> last accessed 10/31/2017
 <http://global.oup.com/uk/orc/law/evidence/tapper12e/resources/updates/ch03/> last
accessed 11/1/2017
 Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002: HL 14
Oct 2004 <http://swarb.co.uk/sheldrake-v-director-of-public-prosecutions-attorney-generals-
reference-no-4-of-2002-hl-14-oct-2004/ > last accessed 11/07/2017
 David Manknell, Time to Revisit Pepper v Hart?
<http://www.tandfonline.com/doi/abs/10.1080/10854681.2004.11427285?journalCode=rjdr2>
last accessed 11/8/217

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