'There is a paradox at the heart of all criminal procedure in that 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.' State v Coetzee 1997 (3) SA 527 per Sachs J, p612.

Explain, whether, in your view, the protection of the presumption of innocence in current English law would satisfy the standard articulated by Sachs J in the above quotation.

Analysis of the question

This question centres on the degree of protection English law affords the presumption of innocence. Has there been a departure from the principle that the burden of proof should be on the prosecution, in particular for the more serious offences as the quotation suggests? Note that the question is not asking you to rehearse all the arguments for and against having a flexible, rather than an absolutist approach, to the allocation of the burden of proof. It concentrates on the narrower question of whether English law satisfies the high importance Sachs J puts on ‘constitutional protections for the accused’. Unlike South Africa, the UK does not have a written constitution enshrining rights but the Human Rights Act plays a significant part in this area. It gives the European Convention on Human Rights a firm status in English law. Article 6,2 states ‘Everyone charged with a criminal offence shall be presumed innocent according to law.’ The burden of proof is on the prosecution. It is the exceptions to this presumption which will form a key part of your answer. In neither the Strasbourg nor the English jurisprudence has this been an absolute approach. Note also the question refers to the ‘greater public interest in the conviction of the guilty’ which highlights that the duality of prosecution interests and defendants’ rights should also embrace the wider public needs, including those of victims.

You would be well prepared for this question if you were familiar with the article by Dennis (2005 see Concentrate Chap 2) which sets out a typology of the law on shifting the burden. As in answering all essay questions, you need to adopt an analytical, not a narrative approach. Your answer should cover the difference between the evidential and legal burdens, and also how Parliament can shift the legal burden by statute. You should demonstrate in your answer that you are aware that in a criminal trial there may be several elements to the burden and that although the prosecution may have the burden of proving the elements of the offence, the courts have never adopted the position that the burden of some defences could not pass to the defendant either under the common law or legislation. The question is whether it is justified to do so.

A possible framework for your essay is:

Arguments to suggest English law does not sufficiently protect the presumption of innocence

Woolmington (1935) – allows shifting of the burden in McNaughten (1843) and by Parliament. Note the number of statutes expressly reversing the burden of proof. The ambiguity in the judgment led to uncertainty in the courts’ treatment of implied statutory exceptions.

• HRA 1998 and Article 6 do not make presumption of innocence an absolute – see Salabiaku v France (1988).
• See R v Hunt (1987) – law on shifting the burden same for indictable and summary offences, although House of Lords stated that the seriousness of the offence would be one consideration.
• Note R v Johnstone (2003) where a reverse burden was approved even where the maximum penalty was ten years. See also R v Foye (2013) where a reverse burden on diminished responsibility was justified.

Arguments to suggest English law is slow to undermine the presumption of innocence.

• However, although courts acknowledge it is possible to shift burden in practice, this is largely reserved for minor or regulatory offences: see Magistrates Courts Act, R v Chargot (2009).
• Where courts do reverse the burden, they often restrict it to the evidential burden see e.g. R v Lambert (2001) where the House of Lords held that it may be necessary to ‘read down’ a statutory provision which imposes a legal burden on the defence and also Sheldrake v DPP; Attorney-General’s Ref (No 4 of 2002) (2005).
• In DPP v Wright (2010) a legal burden could not be implied in s1 Hunting Act 2004. It would place too high a burden on the defendant and intrude on the presumption of innocence.
• Courts are reluctant to transfer burden for mens rea note R v Keogh (2007) where the Court of Appeal ‘read down’ the reverse onus defences in ss 2(3) and 3(4) Official Secrets Act 1989 because they related to mens rea.
• Courts will be prepared to challenge will of Parliament See A-Gen Ref (No 4 of 2002)(2004) in regard to the Terrorism Act 2000

Assessment of the relative weight of the arguments above

Analysis of the above (1): English law does conform to the standard set by Sachs:

• The courts adopt a structured approach to reverse onus and as Dennis (2005) demonstrates, they have articulated the principles involved.
• A principled approach to the presumption of innocence was demonstrated In Sheldrake v DPP; Attorney-General’s Ref (No 4 of 2002) (2005) the House of Lords held that, notwithstanding that it was Parliament’s intention to impose a legal burden on the defendant, he should only bear the evidential burden
• Lord Bingham in Attorney-General’s Ref (No 4 of 2002) (2005) differentiated ‘blameworthy’ from other criminal acts
• Dennis identifies ‘the voluntary acceptance of risk’ principle in cases such as Johnstone (2003) and Davies (2002). It would not be just to protect the perpetrator in these instances since the alleged offender obtained a benefit such as breaching the Trades Marks Act 1994.

Analysis of the above (2): English law does not conform to standard set by Sachs:

• It may be difficult for the courts to determine what is serious criminality since the nature of moral blameworthiness is historically and socially conditioned. Dennis points out (2005, p925) that allowing reverse burdens for statutory defences, which are presumptively morally blameworthy under the ‘voluntary acceptance of risk’ principle, contrasts with common law defences to serious crime where the burden is evidential.
• The practice of the English courts makes for uncertainty since there is no absolute rule on placing a legal burden on the defendant. It may be impossible to satisfy the principle Sach J sets out. An alternative approach would be to decriminalise regulatory offences and maintain the presumption of innocence for all resulting crimes.
• The Court of Appeal in Att-Gen’s Ref (No 1 of 2004) the Court of Appeal preferred Lord Hutton’s dissenting judgment in Lambert to that of Lord Steyn and considered that in too many cases only an evidential burden was imposed on the defendant.
• The courts exhibit judicial deference to the will of Parliament. See R v Foye (2013) where a reverse legal burden was justified for the defence of diminished responsibility. Here an additional factor was that the matter had been considered by the Law Commission.
• Government policy in recent decades is to give more attention to victims’ interests and it is arguable that this can undermine the rights of defendants’ and lead to miscarriages of justice.

Conclusion

Academics who veer towards maintaining a principled position of opposing all reverse burdens include Ashworth (2001, p. 865) who contrasted the House of Lords stance in Lambert with the more flexible approach in Salabiaku. It could be argued that Sachs J sets out an impossible category of serious as opposed to non-serious crime. All criminal convictions affect either the liberty or the reputation of the offender, so why differentiate? Perhaps one solution is to decriminalise regulatory offences, see Padfield CLJ article cited in Concentrate Chapter 2.