Evidence topic 3: Presumption of Innocence

Andrew Ashworth (1996)

presumption of innocence rationales: fair procedure where rights are curtailed, fragility of fact finding, proper relationship between citizen and state. threats to presumption: ROC / more exemptions / evasion through civil law procedures e.g. ASBOs / restrictions of liberty of non convicted persons

Two cases where ROC can be easily justified

1) Proof of formal qualifications to do regulated acts 2) Voluntary acceptance of risk (regulated activity)

The burden of proof NEVER SHIFTS

Burdens come into being and are either discharged or not

G v UK

...

Three exceptions to Woolmington

1) Common law insanity please (M'Naughten) 2) Statutes expressly placing probative burden on D "reverse onus clause" 3) Implied reverse onus clause in a statute

Woolmington v DPP

"Woolmington principle" - golden thread - duty of the prosecution to prove D guilty. If there is reasonable doubt - D should be acquitted. In the case of defences, D bears an evidential burden of production to raise the issue before the court, at which point the prosecution must disprove duress BRD

Dennis (2005) approach to ROCs

(from R v Williams) 1. Does the statute place an evidential or legal burden on D? If legal - proceed 2. Does the provision serve a legitimate aim? If no - proceed 3. Can the statute be read down using s.3 HRA to an evidential burden? If no - must use s.4 to declare incompatible

Evidential Burden

Burden of production not proof. Must produce enough evidence to make an issue live.

Legal presumptions of fact

Device to fill a factual gap. When basic fact is satisfied, you can presume another fact unless it is disproved. E.g. (Chad v Chad) 7 years absence + appropriate enquiries = dead. (s.75 Sexual Offences Act 2003) circumstances where V taken to have not consented to intercourse

Tactical burden

If defence doesn't offer up its own evidence once judge finds that there is a case to answer, jury may draw its own inference.

R v Bentley

If judge does not direct jury properly on burden / standard of proof the conviction will be quashed

What is the presumption of innocence?

Narrow: Woolmington Broad: (more likely now due to art 6(2)) - rules which regulate the relationship between state and individual - non binding evidential requirements

Bater v Bater

Orthodox interpretation of Denning: there is a fixed standard but depending on how likely / unlikely something is you may need more or less evidence to satisfy BRD

Article 6(2) ECHR

Presumed innocent until proven guilty

Legal Burden

Probative burden / real burden of proof

Salabiaku v France

ROC. ARt 6(2) presumption of innocence not absolute, but have to keep presumptions within reasonable limits and maintain the rights of the defence May mean that ECHR challenge is more difficult by Ds.

AG Ref (No 1 of 2004)

ROC. Art 6(2) permits reverse burdens of proof if the overall burden of proof is still on the prosecution and if the exception does not prevent a fair trial

R v Lambert

ROC. Art 6(2) right is not absolute - does the modification pursue a legitimate public aim and satisfy the principle of proportionality (interests of community vs individual)? Here - appeal dismissed.

R v Edwards

ROC. Broadly the court can imply a reverse onus clause even if the exact words of the provision are not used.

AG Ref

ROC. Not reasonable to expect a person to show you were not a member of an organisation when listed terrorist. Have to look at each statute and the substance of any adverse presumption. Factors: can D rebut presumption? Rights of D maintained? Flexible application? Can court still assess the evidence? What is at stake? How hard would it be for prosecution without a presumption?

Sheldrake v DPP

ROC. The policy and situation of driving offence meant it was more appropriate for D to prove on balance of probabilities that he had not been driving than for prosecution to show BRD that he was. Should not go beyond what was necessary and reasonable / be arbitary Upheld ROC.

Tadros and Tierney (2004)

Suggests that presumption of innocence and burden of proof are not always strictly linked. You should instead look at the purpose of the offence, the prosecution should demonstrate all of the elements of the offence in order to prove the purpose. There is also lack of clarity in how to apply proportionality.

R v Hunt

Where there is a genuine ROC ( exception 2) the standard of proof applicable to the defence is the balance of probabilities.

S and Marper v UK

Will bring about a change in the law - stop DNA records being kept if no prosecution ever brought

R v Summers

direction for BRD = "satisfied so that you are sure" - now used in English courts