Presumption of Innocence

SW & CR v UK

ART 7 - 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.[1] In SW v United Kingdom : CR v United Kingdom (1995) 21 EHRR 363 the applicants complained that they had been made retrospectively criminally liable for rape within marriage, since at the time of the commission of their offence, there was still an exception in the criminal law for intercourse in marriage. The Court rejected this argument, saying that the applicants must have anticipated the necessary evolution of the law on marital rape and that it was reasonably foreseeable that they would be prosecuted. The Court found that the concept of lawfulness in Article 7 does not prevent the gradual clarification of the criminal law from case to case, 'provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen'. "In criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the United Kingdom, as in the other Convention States, the progressive development of the criminal law through judicial lawmaking is a well-entrenched and necessary part of legal tradition"

R v Lambert (2001)

D was charged with possession of a controlled drug with intent to supply, contrary to s. 5 of the Misuse of Drugs Act 1971. He invoked the defence provided by s. 28 of the Act, namely that he neither knew nor suspected, nor had reason to suspect, that the substance in question was a controlled drug. In order to establish the defence, D was, under the explicit terms of the statute, required to prove these negative conditions, a probative burden to be discharged on a balance of probalities. The appeal was after HRA 1998. The sentence was given before. Issue was to decide if act could be applied retrospectively. By a majority of 4:1, the House of Lords found that this probative burden contravened the presumption of innocence guaranteed by Art. 6(2) of the European Convention of Human Rights. Unlike the Court of Appeal, they declined to find that Art. 6(2) was complied with if the prosecution was obliged to prove the "definitional" elements of the crime. The majority reasoned that a division of issues to be contested at trial into "definitional" elements (on the one hand) and "defence" elements (on the other) was not helpful in determining the fairness of imposing a probative burden on the defence. What mattered was the forensic importance of the issue to be proved. In this case, the presence or absence of the negative conditions made the difference between a very serious offence with a maximum penalty of life imprisonment and conduct that may be completely blameless. Requiring D to establish blamelessness was a clear contravention of the presumption of innocence. Accordingly, under the statutory obligation imposed by s. 3(1) of the Human Rights Act 1998 to interpret legislation, "so far as possible à in a way which is compatible with Convention Rights", s. 28 of the Misuse of Drugs Act 1978 was interpreted as imposing merely an "evidential" as opposed to a probative burden. D would merely have to raise the possibility that the negative conditions were present: thereafter it would be for the prosecution to disprove beyond reasonable doubt any issue on which D had satisfied the evidential burden. Held: HL said above, but that act could nt be applied retrospectively. 'a legislative interference with the presumption of innocence requires justification and must not be greater than is necessary.' There is an objective justification for some interference with the burden of proof in prosecutions under section 5. A reverse legal burden was disproportionate to address the legislative goal of easing the task of the prosecution in cases under section 5(3). The burden on the defendant should be interpreted as an evidential burden only. The general presumption was that an Act was not retrospective in effect, and there was nothing to say Parliament so intended for the 1998 Act. Although the burden imposed by the 1971 Act might be contrary to the Human Rights Act, since the 1998 Act was not to be applied to statutes retrospectively, this appeal failed.

MC v Bulgaria 2005

Facts: the applicant was victim of a rape and brought criminal proceedings. The applicant's criminal proceedings regarding allegations of rape were terminated by Bulgarian state authorities because there was insufficient evidence physically to prove that she had resisted. (she had said no to one of the rapes but did not physically resist). Complaint: Relying on Articles 3 (prohibition of torture, inhumane treatment), 8 (right to one's privacy, home and correspondence), and 13 (effective remedy by national authorities after violation of Convention) of the Convention, the applicant claimed that Bulgarian law and practice did not provide effective protection against rape and sexual abuse as only cases in which physical resistance were prosecuted and that the authorties had not investigated effectively. She alleged that the State failed to fulfill its positive obligations to protect the individual's physical integrity and private life and to provide effective remedies in this respect. Holding: The ECHR held that there had been a violation of Bulgaria's positive obligations under both Articles 3 and 8 of the Convention as they had closed the investigation because they felt they did not have sufficient medical evidence. However they had failed to investigate whether the victim was subject to forceful conditions (as coercion can also lead to non-consent) and under Bulgarian law, rape is defined as sexual intercourse --- by force or threat). Reasoning: under articles 3 and 8 of the Convention, member States had a positive obligation to enact criminal-law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution. The Court ruled that the State failed to fulfill its obligation to "establish and apply effectively a criminal-law system punishing all forms of rape and sexual abuse."

Barnfather v Islington [1935]

In accordance w S.444 of Education Act 1996, parent was successfully prosecuted b/c child did not attend school regularly. She appealed against this by citing Art 6(2) of ECHR (presumed innocent until proven guilty) because prosecution did not make provisions for proof of knowledge or fault. Appeal dismissed. Guilty. Mr Justice Elias said (paraphrasing) that whilst penalty is small, stigma is big as implies through criminal offence that parent is a bad parent.

R v Rimmington and Goldstein (2005)

The House considered the elements of the common law offence of public nuisance. One defendant faced accusations of having sent racially offensive materials to individuals. The second was accused of sending an envelope including salt to a friend as a joke. The envelope had leaked causing a terrorist scare in the post office thinking it was anthrax poison. (also about art 7 ie cannot be prosecuted for a crime that was not a crime before) Lord Bingham of Cornhill said: 'There are two guiding principles: no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done. If the ambit of a common law offence is to be enlarged, it 'must be done step by step on a case by case basis and not with one large leap.' Lord Bingham of Cornhill accepted the following as an accurate definition of the crime of public nuisance: 'A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty's subjects.' An essential element of the offence was that the public or some section of it was intended to be affected. In neither case was that the intention. Each defendant had intended his acts to affect only one individual at a a time. Baroness Hale said: 'It is not permissible to multiply separate instances of harm suffered by individual members of the public, however similar the harm or the conduct which produced it, and call them a common injury.'

Woolmington v DPP [2001]

Woolmington (Farm Labourer) was convicted of murder and sentenced to death as he had shot his wife, Victoria, in the heart. He claimed it was an accident and had wanted to threaten to kill himself instead but gun went off accidentally. He denied intent to kill. He was eventually acquited, showing how far prosecution must prove its case to get a conviction. Trial judge had initially told jury malice could be presumed - but this must instead be proven.

Golden Thread

Woolmington first established idea of presumption of innocence before proven guilty which is a golden thread deemed running through law

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