As per the question above, it is to consider that what are the changes that the Human Rights Act (HRA) 1998 had introduced in relation to the reversal of legal burden to the defendant.
In the case of Woolmington v DPP, Vismount Sankey has stated that : “Throughout the web to English Criminal Law, there is one golden thread rule that always be seen, that it is the duty of the prosecution to prove that the prisoner is guilty subject to what I have already said as to the defence of insanity and subject also to any statutory exception.” The principle that laid down in the case of Woolmington v DPP is the presumption of innocence, it assumes that the defendant is innocent until when the defendant is proved guilty and it is for the prosecution to prove all the elements of the offence beyond reasonable doubt.
Generally, in a criminal trial, the obligation of the prosecution is to bear the legal burden to proof every issues in the trial. Therefore, it means that the actus rea, mens rea and the disprove of the defence must all be done by the prosecution. While on the other hand, the defendant will bears the evidential burden of showing that there is sufficient evidence to properly raise an issue at a trial and to show the existence or non-existence of a fact in the issue. There is no standard for the defendant to prove here, because it is not truly a burden and therefore it does not require a standard of proof. While for the legal burden on the prosecution, the standard of proof is beyond the reasonable doubt and due to the reason that it is a legal burden there for there is a heavy responsibility on the prosecution to prove that the prisoner is guilty towards the victim.
On the other hand, there are some exceptional when the legal burden will be shifted to the defendant to prove that they are not guilty and the prosecution will raise the defence to disprove the defendant which they are known as the insanity and statutory reversal. These common law defences in relation to which the prosecution bears legal burdens which may be similarly difficult to be discharged. Therefore, the standard of proof here will be the balance of probability. For insanity, it can clearly be seen in the case of McNaghten that the burden of proof of insanity has been placed on the defendant as Lord Tindal CJ stated that ‘every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction…’ In this case, by placing the legal burden on the defendant would not cause unfairness since insanity is a matter that would be peculiarly within the knowledge of the defendant.
Apart from insanity, the statutory reversals is also an exception for the presumption of innocence. There are two types of statutory reversals which they are the express and implied statutory reversal. Express statutory is that the legal burden of proof is expressly reversed onto the defendant to prove his innocence on the balance of probabilities without any assessment attached. There is an example of express statutory reversal in the Misuse of Drugs Act (MDA) 1971. Section 5(3) of the Misuse of Drugs Act (MDA) 1971 laid down the offence which the defendant has the possession of the controlled drug and the intend to supply. While the defence given in this act is under Section 28(2) which stated that ‘it is for the accuse to prove that he had no knowledge of the existence of the controlled drugs in his possession.’ It is clearly shown that the court has shifted the legal burden from the prosecution onto the defendant by using the word ‘for the accuse to prove’.
While for the implied reversal statutory, there are some cases that the where a statute may be constructed as impliedly imposing a legal burden onto the defendant. Under Section 101 of the Magistrates Courts Act (MCA) 1980, it laid down the relevant principle in respect of the summary offences. Basically the section is stated that the conduct of the defendant will create an offence but in the circumstances where the statute creates a defence in respect of an exception, exemption, proviso, excuse or qualification, the burden of proving of the defence will be placed on the defendant. An example of the implied statutory reversal is the Highways Act 1959. Section 140 of the Highways Act 1959 has been interpreted by the Divisional Court in the case of Gatland v Metropolitan Police Commissioner (1968) as an offence to deposit anything on the highway unless the defendant had lawful authority or excuse to deposit anything on the highway with the application of Section 101 of the Magistrates Courts Act (MCA) 1980. Therefore, the court has placed the legal burden onto the defendant to prove the lawful authority or excuse.
Prior to the coming into force of the Human Rights Act (HRA) 1998, all reversal of legal burdens were automatically upheld by the court and placed onto the defendant. However, both the express and implied statutory reversal must now take the Human Rights Act (HRA) 1998 and the Article 6(2) of the European Convention on Human Rights (ECHR) into account. Although the HRA was passed in 1998, but it only came into full enactment in year 2000 with the aim to incorporate with the ECHR into the United Kingdom’s domestic law.
The Article 6(2) of ECHR stated that anyone who been charged with a criminal offence shall be presumed innocent until proven guilty according to the law. Therefore, if the courts found out that there is a violation of Article 6(2), the court can either make a declaration of incompatibility under Section 4 of the HRA 1998 or ‘read down’ the under Section 3(1) of HRA 1998 so that it can be given effect in a way which is more compatible with the ECHR.
The case of R v Lambert (2001) can be seen as a good example of the effect of the HRA 1998. In this case, the defendant was convicted of possession of a controlled drug and had the intend to supply which is contrary to the Section 5(3) of Misuse of Drugs Act (MRA) 1971. The defendant was found that he is in possession of a bag which contained the controlled drug, and Section 28(2) of MRA 1971 provides a defence ‘for the accused to prove’ lack of knowledge of the existence of controlled drugs, which essentially provides that if the defendant was not aware that he was carrying drugs, then he did not commit the offence. Where this defence is raised, it might be difficult for the prosecution to disprove it. Therefore, the court has imposed the legal burden onto the defendant of proving the defence. However, the defendant appealed by saying that the reversed onus, which also known as the reversed legal burden, in the Section 28(2) was conflicted with the presumption of innocence which is guaranteed by the Article 6(2) ECHR. The Court of Appeal rejected his appeal and stated that the law does not operate retrospectively.
Although the Court of Appeal has rejected his appeal, the majority of the House of Lord held that the reverse legal burden onto the defendant in Section 28(2) was actually incompatible with the Article 6(2) as it will lead to a high risk of wrongful conviction. This can be referred to Lord Steyn’s judgement as he stated that, ‘the accused must prove on the balance of probabilities that he did not know that the package contained controlled drugs. If the jury is in doubt in this issue, they must convict him…a guilty verdict may be returned in respect of an offence punishable by life imprisonment even though the jury may consider that it is reasonably possible that the accused had been duped.’ As a result, the section 28(2) must be read as if it imposed only an evidential burden onto the defendant, the word ‘proves’ that used in the section must be construed to mean ‘give sufficient evidence’ by applying the section 3(1) of HRA 1998.