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Attorney General Reference No. 1 [2004] CA

Saturday 1 May 2004 at 11:59 pm | In News | Post Comment

[Requiring a defendant to prove his innocence is – in some cases – in accordance with Woolmington and Article 6 of the Human Rights Act 1998]  
There are 219 statutory offences that require the defendant to disprove or prove something, in order to prove his innocence; this is called a reverse burden provision.  These include strict (or absolute) liability offences.  This appears to be contrary to the rule in criminal law that the prosecution has the burden of proving the defendant’s guilt (Woolmington and Article 6 of the HRA). 
There has been a steady increase in number of technical challenges and the Court of Appeal took the opportunity of laying down some guidance.  An unusual 5 judge court sat to hear the arguments. 

Reverse burden provisions come in two forms, the legal burden and the evidential burden.  
The Legal Burden
This is a higher standard than the evidential burden. The defendant may, for example, wish to raise a defence that he did not know some particular fact, or that he was not going to drive whilst drunk, or that he was insane.  D has the legal burden to prove the issue he raises.  Failure to convince the jury or the magistrates of a defence will mean the defendant will be found guilty.  It is usually a “do or die” situation, because D will have probably admitted all the other ingredients of the offence, and be relying solely on the defence he raises, this is why it is described as a high standard
The standard the defendant has to reach is on the balance of probabilities.  

The Evidential Burden
An evidential burden is a lower standard, and refers to the burden on a defendant to raise an issue, say provocation or self defence, having simply raised the question the burden then shifts back to the crown to disprove it. 
The standard the defendant has to reach is on the balance of probabilities.  

The problem is, some offences where the reverse burden applies carry high penalties.  So the court was asked whether reverse burdens are always permissible, and should some offences require only the evidential burden  

Held: The evidential burden is consistent with Woolmington and Article 6.  The legal burden will not be consistent if it is not proportional to the objective of the reverse burden, and should be reduced (read down) to the evidential burden for serious offences.  Factors that the judge should take into account include, for example, if the evidence is only within the knowledge of the defendant.  The ultimate question is: would the exception prevent a fair trial? If it would, it must either be read down if this is possible; otherwise, it should be declared incompatible.   This case and R v Johnstone [2003] HL are only authorities that should be cited.  Johnstone arose out of the charging of the defendant with trademark offences.  The defendant had a defence if he could show that he honestly and reasonably believed that there was no infringement of the registered trademark, which imposed on D the legal burden of proving the relevant facts on the balance of probability.  

Whole case here.