Have a node your homework. This is something that I did for the classes I took on the law of evidence back in October 2007. It was worth a 2.1 apparently, so I thought I might as well post it here.
“The present judicial approach to the burden and standard of proof betrays a distinct bias within the criminal justice system in favour of criminals. Discuss.”
Though William Blackstone may have said that it is better that ten guilty men go free than one innocent man be wrongly convicted, this must be balanced against the need for a criminal justice system that is effective at ensuring that the perpetrators of crimes are properly brought to justice. As such, there are a number of legal principles, borne both of common law and of statute, that attempt to ensure Blackstone’s formulation is followed as efficiently as possible in the light of whatever practical difficulties may emerge. As a result of this theoretical balancing act, the current legal position as regards burden of proof can be shown to begin with a number of fundamental principles which set out a regime highly favourable to the accused, followed by a series of limitations, both at common law and in statute, which seek to abrogate these principles in certain ways, ostensibly for pragmatic reasons, but all of which generally stop before coming too close to effectively reversing the equilibrium to favour the prosecution. It is this that has led certain commentators to think that the rules regarding the burden of proof are biased towards criminals.
Firstly, let us examine the main principles in the law of evidence, as it is mainly from these that one could be led to think that the rules of evidence favour the accused too much. The most fundamental principle in the rules regarding burden of proof is the presumption of innocence as set out in Article 6(2) of the European Convention on Human Rights, which stipulates that everyone is innocent until proven guilty, although this principle has been known in English law before the existence of the ECHR - the burden of proof in criminal cases has always rested upon the prosecution. Prior to the ECHR and the Human Rights Act of 1998, the general legal authority for this doctrine stemmed from the judgement of Lord Goddard in the case of Sims:
“Whenever there is plea of not guilty, everything is in issue, and the prosecution has to prove the whole of their case, including the identity of the accused, the nature of the act and the existence of any necessary knowledge or intent.”
In practice, this is then elaborated on by the case of Woolmington v. DPP, in which the House of Lords first set down the standard of proof as being that the prosecution must show “beyond reasonable doubt” that the accused committed the offence with which he is charged. The case of Woolmington provides an elevated level of proof for criminal cases over and above the “balance of probabilities” level of proof that is required for civil litigation. This, in the judgement of Viscount Sankey in that case, was referred to as the “golden thread” that runs through almost all English evidential jurisprudence. Although it is widely regarded that to protect the integrity and fairness of criminal procedure, such safeguards are imperative, they can be criticised on a practical level in that, if they - and rules derived from them - were allowed to exist as the be all and end all of the legal question of burden of proof, criminal trials would routinely come up against immovable obstacles and convictions would thus be rare.
However, in themselves, these rules of evidence do not necessarily tip the balance too far in favour of criminals, even though the prosecution is held to a much higher standard of proof than the plaintiff in civil cases. Often the principle of “beyond reasonable doubt” can be justified by the fact that, in criminal cases, the consequences for the accused being found guilty or not guilty are much more severe, in theory, than if he were to lose a civil case. In the latter of these, merely financial penalties are at stake, for the most part, whereas in criminal proceedings, someone’s liberty could be at stake, as well as all the secondary effects that a custodial sentence could bring with it. And not only that, but also there is the issue of a criminal record and the societal stigma attached to such, especially if the accusation is of a kind which could permit a judge to order that the defendant sign the Sex Offenders' Register if found guilty. Thus, given the potentially extremely serious effects on a person if they are wrongly convicted, steps must be taken to ensure that such miscarriages of justice happen as little as possible, if at all. The rule in Woolmington of “beyond reasonable doubt” is simply one way in which miscarriages of justice are avoided.
This is, though, not to say that the rights of the accused are the only ones that should be protected by the rules of evidence on burden of proof. To protect only their rights would indeed be to tip the balance too far in favour of criminals. Indeed, as Sachs J in the South African case of State v. Coetzee said at paragraph 220 - a passage quoted by Lord Steyn in the House of Lords case of Sheldrake v. DPP - there is “a paradox at the heart of all criminal procedure” in which the rights of the accused to a fair trial with the presumption of innocence as set out in Article 6(2) of the ECHR. Lord Steyn, in Sheldrake, agrees with Sachs J‘s dicta:
“The logic of this reasoning is inescapable. It is nevertheless right to say that in a constitutional democracy limited inroads on the presumption of innocence may be justified.”
So what are these inroads upon the presumption of innocence? Chiefly, these are situations in which the burden of proof is reversed, that is, it is up to the defence to prove some issue in the case. From a practical point of view, when, for instance, the defence wishes to rely on an affirmative defence, this seems logical - the legal principle runs that “he who asserts must prove.” For instance, in insanity defences, as originated by the decision known as M’Naghten’s Case and the Rules which result from this case, the defendant is, in the words of Lord Chief Justice Tindal, “presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes.” This quote not only shows the existence of a reverse burden of proof, but also sets out a condition for instances in which a reverse burden is generally seen as necessary - that there is a presumption. These legal rules also are justifiable from a practical point of view. Firstly, if there was no reverse onus or presumption of sanity in the insanity defence then the prosecution would be faced with the task of showing that the defendant was, in fact, of sound mind. This would force criminal trials to concern themselves with an issue which, in the vast majority of cases, is a moot point. And secondly, if the defence were able to merely assert insanity and force the prosecution to disprove it, then as a defence, it would be open to abuse by the defence - and would indeed bias the proceedings in favour of the accused.
So it seems, therefore, that the criminal proceedings could be said to be inherently biased in favour of the accused; despite the fact that there exist things such as the reverse burden or the various evidential presumptions. As a result of this, in recent years there has been a proliferation of legislative provisions which provide statutory reverse burdens of proof in order to return the equilibrium more towards the victims of crime. Indeed, some statutory reverse burdens of proof, as in the Sexual Offences Act 2003, section 75, are borne out of such policy considerations. Faced with what Lord Steyn’s admonition towards caution in allowing the presumption of innocence and the Woolmington rule to be limited, we must ask ourselves also whether it is desirable that reverse burdens of proof are used so often, especially in the light of Article 6(2) of the European Convention on Human Rights.
Such was the rationale behind the ECHR case of Salabiaku v. France, and in the UK, the House of Lords repeated the principle in R v. Lambert. In the latter of these, the House of Lords was prepared to make allowances for a reverse burden of proof as long as there exists a legitimate objective, and the necessity for such a reverse burden can be supported by the principle of proportionality. Article 6(2), he said, is not “absolute and unqualified.”
Lambert also differentiates between whether a reverse burden of proof is of a legal or an evidential nature, with the former being more strict. In that case, the House of Lords said that, after the Human Rights Act of 1998, a statutory reverse burden can be read down to be merely an evidential burden as opposed to a full legal burden. This is quite an innovative judicial tactic, and which has attracted some criticism; there are those who see the Lambert ruling as contrived. Furthermore, Lord Slynn’s rule in this case, that “it is contrary to Article 6(2) of the Convention Rights for a judge to direct a jury that ‘the defendant is guilty as charged unless he discharges a legal, rather than an evidential, burden of proof to the effect that he neither believed nor suspected nor had reason to suspect that the substance in question was a controlled drug’” provides no direct solution to a situation where the statute in question prescribes a legal burden.
Proponents of the position that the rules of evidence as regards burden of proof intrinsically favour criminals also point towards the severity of an offence as a reason why there ought to be some form of reverse onus provision related to that offence. Notably, in Sheldrake as cited above, there were two appeals consolidated into the same action for wildly different offences, but on the same legal issue. One appeal was with regard to a road traffic offence, the other on the offence of membership of a proscribed group. Needless to say, the question of whether the seriousness of the offence should play a part in the court’s reasoning on the issue of a reverse onus arose. However, the court rejected the notion that the severity of the crime had anything to do with what manner of burden the defendant is under, once again quoting Sachs J in State v. Coetzee:
“The more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become.”
It should be pointed out here, though, that the House of Lords were unanimous in their upholding of the need for merely an evidential burden regarding the driving offence, yet only a 3-2 majority judged likewise with regard to the terrorism-based offence. So there appears to be some credence given to this line of reasoning, although it must be stressed that a dissenting judgement is valuable only for its crystallisation of a certain legal theory and not as a binding precedent. Even so, this still shows a trend towards the rebalancing of the burden of proof against the accused, at least in part.
Finally, it must be stressed that there is one final safeguard which prevents too much erosion of the presumption of innocence and the Woolmington rule by this path, and that is that whenever the burden of proof is passed onto the defence in a case, that which the defence is required to prove is merely to the standard of “balance of probabilities,” and not to the stricter “reasonable doubt” standard. This is logical, since if the prosecution must prove their case “beyond reasonable doubt” then, for the defendant to show not that he definitely has a valid defence to the accusation against him, but merely that the jury can count themselves 51% certain or more that his defence is valid, is enough to instil in the minds of the jury the reasonable doubt that the criminal standard of proof must overcome. As such, it is very difficult to have a complete equilibrium, in practice, or to rebalance the rules of evidence on this issue more in favour of the prosecution.
But even if it were possible, this brings us back once again to the question of whether having a burden of proof which favours the prosecution more than it does now is desirable. As Blackstone’s formulation holds, the protection of the innocent is more important than the punishment of the guilty, and wrongful conviction is something to be avoided, since it leads to a loss of confidence in the criminal law to effectively see that justice is done. Therefore, although it can be said that the rules of burden of proof do indeed lean in favour of the accused, the deleterious effects that a reversal or abrogation of these rules would have on juridical stability outweigh by far the possibility that certain guilty individuals may go free. After all, if there is insufficient evidence to show that a so-called guilty man is, in fact, guilty, how can he be called guilty in the first place?