Presumption of Innocence

R v Yap Chuan Ching

trial judge told the jury that they should be as sure as they would need to be to take out a residential mortgage.

R v Onufrejczyk

a high degree of certainty for BRD

R v Williams (Orette)

It involves consideration at four stages: (1) Does [the relevant statutory provisions, in this case] s.1(5) of the 1982 Act, as a matter of ordinary interpretation under the law of England and Wales, impose a legal (persuasive) burden on an accused? (2) If it imposes a legal (persuasive) burden on an accused, does that involve an encroachment on the Article 6(2) rights (the presumption of innocence) of the accused? (3) If it does represent such an encroachment, is it to be justified as a necessary and proportionate derogation from the presumption of innocence? (4) If it cannot be so justified, is s.1(5) to be read down, on an application of s.3 of the Human Rights Act 1998, so as to impose an evidential burden (only) on an accused?"

Directing the Jury

Juries not infrequently ask for assistance in interpreting the burden of proof and applying it properly to the facts of the instant case. What should judges tell them? One answer is, nothing! After all, proof BRD is meant to be a common sense standard already well-known to juries, so why would they require further assistance?

R v Hunt

"If a burden of proof is placed on the defendant it is the same burden whether the case be tried summarily or on indictment, namely, a burden that has to be discharged on the balance of probabilities."

R v Summers

"If a jury is told that it is their duty to regard the evidence and see that it satisfies them so that they can feel sure when they return a verdict of Guilty, that is much better than using the expression 'reasonable doubt' and I hope in future that will be done."

Bater v Bater

"It is of course true that by our law a higher standard of proof is required in criminal cases than in civil cases. But this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. As... great judges have said, 'in proportion as the crime is enormous, so ought the proof to be clear.'

Miller v Minister of Pensions

"It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt.... If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course it is possible, but not in the least probable,' the case is proved beyond reasonable doubt, but nothing short of that will suffice."

R v Smith (Scott)

"The standard of proof in a criminal case requires the jury to be sure of guilt, which is the same (but no more than) the proof of guilt beyond reasonable doubt.... [T]he judge may have been wiser not to volunteer the comment as to 'certain' (even making allowance for the difficulty in which he was placed by the jury's note), the wording he used did not amount to a misdirection."

Wrexham County BC v CJB

"The standard of proof, of course, is the balance of probabilities and this applies not only to the identification of 'harm' but also to the identification of any perpetrator of such harm. That standard of proof, applies both to public and to private law proceedings and no distinction arises."

Woolmington v DPP

"Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject... to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner... the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."

R v Kritz

"When once a judge begins to use the words 'reasonable doubt' and to try to explain what is a reasonable doubt and what is not, he is much more likely to confuse the jury then if he tells them in plain language: 'It is the duty of the prosecution to satisfy you of the man's guilt'."

Irrebuttable Presumptions of Law

(1) on proof of one fact (the 'basic fact' or 'triggering fact') the court is (2a) duty-bound to find another fact proved (the 'presumed fact') or; (2b) must direct the jury as to the inferential availability of the presumed fact; (3) the presumed fact remains on-foot unless and until the opponent proves the contrary or, as the case requires, discharges the probative burden.

Standards of Proof

(i) Beyond Reasonable Doubt, applicable to the prosecution in criminal proceedings; and (ii) proof 'on the balance of probabilities, which is the standard normally employed in civil litigation, and also applicable whenever the accused bears a (persuasive; probative) burden in criminal proceedings: R v Carr-Briant [1943] KB 607, CCA.

Three Exceptions to Woolmington

(i) common law insanity pleas applying M'Naghten's Case (1843) 10 C & F 200; (ii) statutes expressly placing probative burdens on D by way of 'reverse onus clauses'. Third exception is very debated and elusive

Presumptions

(i) of law, or of fact; (ii) permissive or mandatory; and (iii) rebuttable or irrebuttable.

Defintion of Presumption

(i) operate by law, but relate to facts (say: "legal presumptions of fact"); (ii) are characterised by enabling the fact-finder to reach factual conclusions that would (or might) not otherwise be available through ordinary processes of inferential reasoning; (iii) are mandatory (in one of two senses: either for the fact-finder, or for the judge in directing the jury); but (iv) can always in principle be rebutted.

Chard v Chard

By virtue of a long sequence of judicial statements, which either assert or assume such a rule, it appears accepted that there is a convenient presumption of law applicable to certain cases of seven years' absence where no statute applies. That presumption in its modern shape takes effect (without examining its terms too exactly) substantially as follows. Where as regards 'A.B.' there is no acceptable affirmative evidence that he was alive at some time during a continuous period of seven years or more, then if it can be proved first, that there are persons who would be likely to have heard of him over that period, secondly that those persons have not heard of him, and thirdly that all due inquiries have been made appropriate to the circumstances, 'A.B.' will be presumed to have died at some time within that period

Sheldrake v DPP; Attorney General's Reference No 4 of 2002

An evidential burden is not a burden of proof. It is a burden of raising, on the evidence in the case, an issue as to the matter in question fit for consideration by the tribunal of fact. If an issue is properly raised, it is for the prosecutor to prove, beyond reasonable doubt, that that ground of exoneration does not avail the defendant."There has been some criticism of the use of the expression evidential burden: see e.g. L v Director of Public Prosecutions

R v G

Article 6(2), like article 6(3), must be read in the context of article 6(1). The article as a whole is concerned essentially with procedural guarantees to ensure that there is a fair trial, not with the substantive elements of the offence with which the person has been charged. As has been said many times, article 6 does not guarantee any particular content of the individual's civil rights. It is concerned with the procedural fairness of the system for the administration of justice in the contracting states, not with the substantive content of domestic law... [I]t is a matter for the contracting states to define the essential elements of the offence with which the person has been charged. So when article 6(2) uses the words 'innocent' and 'guilty' it is dealing with the burden of proof regarding the elements of the offence and any defences to it. It is not dealing with what those elements are or what defences to the offence ought to be available."

Concept of Proof Beyond Reasonable Doubt

Attempts to quantify the standard mathematically tend to reveal divergence. Most people would transliterate BRD into p(x) > 0.9, but there is considerable variation, even amongst judges and magistrates. Some empirical studies have found that certain jurors and judges rate BRD as 0.6. Conversely, significant numbers of jurors and magistrates say that BRD means p(x) = 1; ie absolute certainty.

R v Bracewell

CA approved a direction containing the following explanation: "There is no such thing as certainty in this life, absolute certainty. You ask yourselves the simple question upon the whole of the evidence do I feel sure?'

R v Derek William Bentley

D and co-accused Craig were convicted of capital murder in December 1952, and despite recommendation for clemency, D was executed on 28 January 1953. D was granted royal pardon in 1993. Case has now been referred by CCRC. Two significant defects in the trial judge's summing up related to the burden and standard of proof.

Article 6(2) of the ECHR

Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law

The Elusive "Third Exception"

Further controversy has arisen in relation to statutes which are interpreted as implicitly, rather than expressly, placing an onus of proof on the accused. This is the controversial 'third exception' to Woolmington, which was given judicial recognition in R v Edwards [1974] 1 QB 27, CA. The House of Lords subsequently appeared to qualify (without actually overruling) Edwards. The controversial "third exception" was authoritatively recognised, but the structure of the statute and even the language of "defences" are not determinative. The court must undertake contextual statutory interpretation in relation to every relevant provision

Third Exception in Hunt

H was charged with unlawful possession of morphine contrary to section 5(2) of the Misuse of Drugs Act 1971. Under the Misuse of Drugs Regulations 1973 preparations containing up to 0.2 per cent morphine were exempted from the scope of the offence. Lord Griffiths "I would summarise the position thus far by saying that Woolmington [1935] AC 462 did not lay down a rule that the burden of proving a statutory defence only lay upon the defendant if the statute specifically so provided: that a statute can, on its true construction, place a burden of proof on the defendant although it does not do so expressly: that if a burden of proof is placed on the defendant it is the same burden whether the case be tried summarily or on indictment, namely, a burden that has to be discharged on the balance of probabilities.

Sheldrake v DPP; Attorney General's Reference (No 4 of 2002)

HL appeared rather unimpressed by guidance set out by CA in AG's Ref (No 1of 2004). It was denied that Lambert and Johnstone were in conflict (though agreed that Carass was wrongly decided). In the two cases before their Lordships, it was held that (1) the probative onus lay on S in relation to s.5(2) RTA 1988; but (2) (Lords Rodger and Carswell dissenting), the onus under s.11(2) TA 2000 should be read down under s.3 HRA 1998 to a merely evidential burden of production. Lord Bingham:- "The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea.

re D

Lord Carswell (Lords Bingham, Scott, and Neuberger agreeing) [23]: "It is indisputable that only two standards are recognised by the common law, proof on the balance of probabilities and proof beyond reasonable doubt. The latter standard is that required by the criminal law and in such areas of dispute as contempt of court or disciplinary proceedings brought against members of a profession. The former is the general standard applicable to all other civil proceedings and means simply, as Lord Nicholls of Birkenhead said in In re H (Minors) (Sexual Abuse: Standard of Proof ) [1996] AC 563, 586, that 'a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not'."

R v Foye

Per Lord Hughes, "enhanced standard demanded of the Crown when it bears a burden of proof in a criminal case, viz of making the jury sure, ie beyond reasonable doubt."

floating" standard of reasonable doubt

Picinali (2013), involves a fundamental category error - since the rationality of fact-finding is epistemic, not normative. Policy trade-offs are made at the legislative stage of fixing an appropriate standard of proof, not in its case-by-case application once fixed.

Broad(er) conception of PoI

PoI carries further robust implications about how that burden may and may not be discharged, reflecting its fuller status as a fundamental principle of political morality:"The practical importance of the presumption of innocence lies in the instruction not to assume that the police have probably caught the right person or that the public prosecutor was probably right in concurring with the police in their investigative conclusion"

R v Lambert (Steven)

Reverse onus, L. appealed against conviction of possession with intent to supply on the basis that MDA 1971 s.28's reverse onus clause is incompatible with the presumption of innocence, guaranteed by Article 6(2) ECHR: Lord Hope: "[A]s the article 6(2) right is not absolute and unqualified, the test to be applied is whether the modification or limitation of that right pursues a legitimate aim and whether it satisfies the principle of proportionality..."

R v Edwards; R v Denton and Jackson; R v Hendley; R v Crowley

Specially convened five member Court set out to given guidance to trial judges, and to assist HL in determining forthcoming appeal. Lord Woolf CJ:- "The guidance is of a general nature and will need to be applied lightly and recognising that it may not be appropriate in all situations, lower courts should be robust and not allow extensive argument. Our hope is that, if courts bear in mind the following general principles, they will not go far wrong. Fundamental general guidance points given.

G v United Kingdom

The presumption of innocence requires, inter alia, that the burden of proving the elements of the offence charged against the accused is on the prosecution. However, the burden of proof may shift to the accused to establish the elements of any defence available under domestic law. Moreover, art.6(1) and (2) do not prevent domestic criminal law from providing for presumptions of fact or law to be drawn from elements proved by the prosecution, thereby absolving the prosecution from having to establish separately all the elements of the offence, provided such presumptions remain within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.... It is not the Court's role under art.6(1) or (2) to dictate the content of domestic criminal law, including whether or not a blameworthy state of mind should be one of the elements of the offence or whether there should be any particular defence available to the accused."

Third standard lying somewhere between proof BRD and BOP?

USA: 'clear and convincing evidence,' 'clear, cogent and convincing proof,' and 'clear, unequivocal, satisfactory and convincing proof,' 'strong, distinct and satisfactory evidence,' In a growing number of instances the English courts seemingly required a more demanding standard than BOP in certain sorts of civil litigation, eg where familial abuse is alleged during care proceedings in the Family Court: In re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563, HL.

Crown Court Compendium (2017)

When (as is usual) the burden of proof is on the prosecution, the jury should be directed as follows: (1) It is for the prosecution to prove that D is guilty. (2) To do this, the prosecution must make the jury sure that D is guilty. Nothing less will do. (3) It follows that D does not have to prove that he is not guilty. If appropriate: this is so even though D has given/called evidence

Proof Beyond Reasonable Doubt: Blackstone Ratio

all presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that ten guilty pesons escape, than that one innocent suffer. And sir Matthew Hale in particular lays down two rules, most prudent and necessary to be observed: 1. Never to convict a man for stealing the goods of a person unknown, merely because he will give no account how he came by them, unless an actual felony be proved of such goods: and, 2. Never to convict any person of murder or manslaughter, till at least the body be found dead; on account of two instances he mentions, where persons were executed for the murder of others, who were then alive, but missing."

Concept of Burden of Proof

are techniques for allocating the risk of non-persuasion in adversarial litigation. They supply default forensic reasoning rules when the evidence is equally probative (or unconvincing) on both sides, and the fact-finder is in epistemic equipoise or deadlock.

Salabiaku v France

can a reverse onus ever be consistent with Art 6(2)'s presumption of innocence? "Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law... Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence."

R v JTB

confirming that C&DA 1998, s.34, abolished the substantive defence as well as the presumption of doli incapax

The narrow conception of PoI

means the prosecutor bears the burden of persuasion in relation to the material elements of the offence, but no further implications follow, eg as to how the burden might be satisfied: "Narrowly formulated the presumption of innocence contains two components: (1) a rule requiring the state to bear the burden of proof and (2) a directive that the burden will only be discharged when guilt has been proved beyond reasonable doubt....

Implications of Broader PoI

• investigative practices, like targeted surveillance or (racial) profiling; • DNA and other CJS databases: cf. S and Marper v UK, (2009) , [2009] , ECtHR (Grand Chamber); • pre-trial procedural steps, such as arrest, search and seizure, detention for questioning and, esp., bail decisions/detention on remand pending trial; • decisions to prosecute; • trial procedure, e.g. curbs on publicity, name suppression (Munday, 1991); • forms of evidence and means of proof, e.g. bad character evidence; • post-conviction procedures, e.g. fact-finding for the purposes of sentencing; confiscation and criminal asset recovery: R v Bagnall ; Serious Organised Crime Agency v Gale, ; collateral sanctions (e.g. offender registration); • 'double jeopardy'; issue estoppel: R v Cook (Sam) . • compensation for 'miscarriages of justices': CJA 1988, s.133; R (Adams) v Secretary of State for Justice.