Is there ever a good reason to require the

defendant to establish the burden of

persuasion in his favour for any issue?
Question
The commentators seem to agree that there is no systematic way in which we can
decide whether the defendant ought to bear the burden of persuasion on any
particular issue. The explanation for this is simple - there is in fact never a good
reason to require the defendant to establish any issue in his favour. Discuss.

Answer
The test to ascertain whether a defendant bears a burden of persuasion pursuant to
the rule of interpretation in s.101 of the Magistrates' Courts Act 1980 has been
relatively settled in R v Hunt.[1] The proportionality test involved in determining
whether a defendant ought to bear such a burden, on the other hand, is less so.
While the presumption of innocence in Art 6(2) of the European Convention on
Human Rights does not prohibit the imposition of a persuasive or legal burden, as
evidenced by the decision in Salabiaku v France,[2] we know from Janosevic v Sweden
that it does require the exercise be reasonably proportionate to the pursuit of a
legitimate aim.[3] Here, various factors have been used in deciding the balancing test,
but with no apparent hierarchy or systematic application so that it is difficult to
ascertain a uniform approach that can adequately explain all reverse burden cases. It
is submitted that this is caused by the lack of a sufficiently logical reason to
systematically justify the reversal of the legal burden. Although several factors have
been commonly cited in cases engaging the aforementioned balancing tests, none of
them can, as a sole factor, rationalize the decisions taken in this area of law; nor have
the courts conceptualized any structure or hierarchy which could be used when
considering the legitimacy of reversing a persuasive or legal burden.

Ian Dennis identified a number of factors prominent in judicial discussions about the
proportionality of reversing the burden of persuasion,[4] the first being judicial
deference. This was aptly described by Lord Hope in R v DPP ex parte Kebilene as a
"discretionary area of judgment ... within which the judiciary will defer, on democratic
grounds, to the considered opinion of the elected body."[5] Emphasis on judicial
deference would adequately explain the decisions in R v Johnstone[6] and Attorney-
General's Reference (No. 1 of 2004),[7] where Lord Nicholls and Lord Woolf,
respectively, prefaced their considerations of proportionality with an assumption that
Parliament chose to depart from the presumption of innocence with good reason.
Indeed, the application of this factor was one of the three main reasons behind the
House of Lords' decision in Johnstone that the reversal of burden of proof under
s.92(5) of the Trade Marks Act 1994 was proportionate. However, judicial deference
as the sole or main consideration in the balancing test cannot satisfactorily account
for the reasoning in R v Sheldrake,[8] where Lord Bingham singled out the speech of
Lord Woolf in Attorney-General's Reference (No. 1 of 2004) and expressed concern
that such an approach may place too little weight to the presumption of innocence
and the court's obligation under s.2 of the Human Rights Act 1998 to give effect to it.

A slightly less popular and arguably more problematic factor is the traditional
distinction between offences that are "truly criminal" and statutory regulatory
offences governing certain activities in the public interest. This distinction was
referred to by Lord Clyde in R v Lambert,[9] but did not sway the court's decision that
the reversal of onus in s.28 of the Misuse of Drugs Act 1971 was disproportionate
and should be read down pursuant to s.3(1) of the Human Rights Act 1998. As a
hierarchical factor, it seems to attract little weight as there is no discernible pattern of
correlation between the moral value of the offence and any tendencies in
determining proportionality. S.92(5) of the Trade Marks Act 1994 in Johnstone, for
instance, a provision targeting counterfeit goods was held to have proportionately
reversed the legal burden, whereas the reversal under s.11 of the Terrorism Act 2000,
which criminalised membership of proscribed organisations was found
disproportionate in Attorney-General's Reference (No. 4 of 2002).[10] This is to be
welcomed, given the lack of any necessary relationship between the type of crime
and the degree of onerousness faced by a defendant under a reverse onus.
Moreover, the distinction is difficult to draw, given the value judgments necessitated
in the exercise - many environmental regulatory offences, for instance, could cause
just as much, if not more physical and mental harm as traditionally accepted crimes
targeted at individuals.

The third factor relates to the deep-rooted desire in criminal law for the prosecution
to prove all elements of the offence. A notable example is Lord Hope's speech in
Lambert, where his Lordship distinguished exculpatory defences from elements of
the offence and suggested that the imposition of a reverse onus for the former
would be more easily justifiable. In short, it is more likely that a reversal will be found
proportionate if the prosecution would still bear the responsibility of proving all
elements of the offence. Case law does not conclusively demonstrate the existence of
a particular role for this factor in the hierarchy of considerations - Lord Steyn, who
was also in the majority with Lord Hope in Lambert noted that the distinction
between elements of the offence and defences could very well be artificial and
dependent on choices of drafting technique, instead of any substantial policy
considerations. However, there is a significant body of cases adopting this factor as a
main consideration, with a tendency to reason that if Parliament could have chosen
to withdraw altogether defences to an offence, then the defendant has little reason
to complain if he is afforded a defence on the proviso that he bears the burden to
prove it. This underpinned the judgment in Attorney-General's Reference (No. 1 of
2004), where the fact that the defence reversing onus only arose after the
prosecution proved all elements of the offence was taken as a greater indication of
justifiability. Similar reasoning could also be seen in Attorney-General's Reference
(No. 4 of 2002) and R v Williams.[11]However, this trend attracts the same criticism
levelled against onus reversal predating the Human Rights Act 1998. Glanville
Williams, in particular, cautioned that while this distinction might render acceptable
the reversal of an evidential burden, the application of the same to the persuasive
burden would severely qualify in substance, or even negate the principle in
Woolmington v DPP[12] that the prosecution bears the ultimate burden to prove all
elements of an offence.[13]

It has been suggested that maximum penalties function as indicators or grades of

how serious an offence is thought to be.[14] An argument has been made in the South
African Constitutional Court by Sachs J in State v Coetzee,[15] cited with approval by
Lord Steyn in Lambert[16] that the weight attached to the presumption of innocence
should increase in proportion to the seriousness of the offence. However, perusal of
case law shows no such pattern, but in fact demonstrates differing views of the level
of severity at which maximum penalties are thought to be significant. In Lambert, the
discussion on proportionality was reinforced by reference to the possibility of life
imprisonment, and the reverse legal burden was read down to an evidential burden;
a similar result was seen in Attorney-General's Reference (No. 4 of 2002) where the
maximum penalty was 10 years' imprisonment. However, the reverse legal burdens
were upheld in Johnstone and Williams, which both concerned offences with
maximum penalties of 10 years' imprisonment. More recent judicial reasoning
appears to indicate a reluctance to view this factor in isolation and as a determinative
consideration - Lord Hope in R v Chargot Limited (t/a Contract Services) and
others,[17] for instance, preferred to view the maximum penalty in conjunction with the
purpose of the legislation and the background of the case. As such, the extent to
which this factor influences decision-making in relation to onus reversal is uncertain
at best.

There is also a line of thought in this area of law that the reversal of burden of proof
would be more justifiable if it is easier for the defendant than it is for the prosecution
to prove a particular matter or if peculiar knowledge of certain matters places the
defendant in a better position to prove an issue. It was an influential factor in
Kebilene, where Lord Hope specifically considered the extent to which these matters
affected the ability of the defendant to discharge a persuasive burden. Similarly, Lord
Nicholls in Johnstone also considered the same matters before arriving at the
conclusion that facts within the defendant's knowledge made it easier for the
defendant to prove a reasonable belief that the goods were not goods in breach of
s.92 of the Trade Marks Act 1994. The House of Lords in Attorney-General's
Reference (No. 4 of 2002), on the other hand, found that s.11 of the Terrorism Act
2000, which required the defendant to prove a negative - the lack of active
membership since the date of prescription - placed an undue burden on the
defendant upon application of this line of reasoning. However, not all cases approach
ease of proof and peculiar knowledge with the same enthusiasm. The Court of
Appeal in R v Makuwa held that it was not disproportionate to require a refugee to
prove that she had presented herself to the authorities as soon as possible, and in
reaching this conclusion emphasized the difficulty of proof had the prosecution
borne the legal burden and the policy need for efficient immigration
controls.[18] Difficulties which the defendant might face in proving any of the relevant
matters, on the other hand, were mentioned, but received little discussion.

While it is true that there are circumstances where the defendant's peculiar
knowledge or access to certain information makes it easier for him to prove a
particular matter, this nevertheless makes ease of proof and peculiar knowledge
necessary, but not sufficient conditions for the reversal of a legal burden of proof.
The reversal of an evidential burden can readily be justified in the aforementioned
circumstances, the most notable example being where a defence is being raised as
the prosecution has no way of determining in advance the form in which a defence
might arise. However, the mere possession of peculiar knowledge does not
necessarily make it easier for the defendant to prove a particular matter, if the
defendant does not also have access to corroborating evidence. Relative ease of
proof also needs to be approached with care - where the discharge of a persuasive
burden would prove difficult for the prosecution, it does not follow that the
defendant will necessarily be in a significantly better position to do the same. A
secondary conception of this factor, rooted in academic commentary, seeks to justify
requiring the acceptance of the corresponding burden by voluntary participants in
regulated activities from which they intend to derive benefit.[19] This is usually
strengthened by a pragmatic consideration - that in the normal course of events it
will be easier for the defendant to prove, by production of relevant documentation,
that they have complied with the requisite regulatory conditions. While this is
unobjectionable if it is indeed easier for the defendant to discharge the burden, the
justification is limited to activities traditionally thought of as belonging squarely in
civil regulatory laws, and do not cover a large number of criminal offences with which
onus reversal is often associated.

Given the historical difficulty in judicial identification of a sole principle or hierarchy

of principles which could provide guidance and structure in this area of law, the only
real alternatives are for a conclusive test to be set out by Parliament, or to adopt the
proposal made by the Criminal Law Revision Committee in 1972 to impose no more
than an evidential burden of proof on the defendant.[20] This proposal would, by
affording maximum weight to the Art 6 presumption of innocence, decrease, if not
eliminate altogether problems with compatibility with the European Convention on
Human Rights in relation to this matter. However, the enormity of this reform and
reluctance by courts and legislature alike to undertake the task suggest that this
prospect is highly unlikely - Lord Griffiths in Hunt commented that a change of this
magnitude could only be carried out by Parliament, a sentiment echoed by Lord
Bingham in Sheldrake.[21] Unfortunately, no government has made any active move
towards reform in this area, and the existing confusion in the law will most likely
persist for the foreseeable future.

Footnotes
[1] [1981] 1 All ER 1

[2]
(1988) 13 EHRR 379

[3] (2004) 38 EHRR 473

Ian Dennis, Reverse Onuses and the Presumption of Innocence: In Search of

[4]

Principle [2005] Crim LR 901

[5] [2000] 2 AC 326, at 380-381

[6] [2003] 3 All ER 884

[7] [2004] 2 Cr App R

[8] [2005] 1 AC 264

[9] [2002] 2 AC 545

[10] Sheldrake n(8)

[11] [2012] EWCA Crim 2162

[12] [1935] AC 462

[13] Glanville Williams, The Logic of 'Exceptions' [1988] Cam LJ 261

Andrew Ashworth, Principles of Criminal Law (4th ed., Oxford University Press 2003),
[14]

p.37

[15] [1997] 2 LRC 593

[16] Lambert n(9), at [34]

[17] [2008] UKHL 73 at [30]

[18]
[2006] 2 Cr App R 11

[19] Dennis n(4)

Criminal Law Revision Committee, Eleventh Report Evidence (General), Cmnd 4991
[20]

(1972) para 140

[21] Sheldrake n(8) at [42]