No matter what the charge or where the trial, the principle that the prosecution must prove the

guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. (Lord Sankey L.C. In Woolmington [1935] AC 462 at 481.) In the light of the law as it now stands, examine critically the extent to which this principle has been whittled down.
To modern ears, the principle that the prosecution must prove the guilt of the prisoner (a principle often referred to as the golden thread[1] of English criminal law) is apparently manifest. Detailed knowledge of the law of evidence is not required in order to understand that the prosecution may only discharge this burden of proof by adducing evidence to prove beyond reasonable doubt the existence of each of the elements of the alleged offence.[2] Roberts identifies three reasons as to why a presumption of innocence exists in favour of the defendant.[3] He points initially to the fact that the relationship between the state and the individual is imbalanced as regards powers to investigate crimes and to gather the evidence required to discharge a burden of proof.[4] Secondly, he argues that that the practicalities of proof[5] such as DNA evidence, are far easier for the prosecution to gather. The third of Roberts arguments is the most compelling however. He notes that if the burden of proof is reversed, a presumption of guilt is employed to fill the void of doubt in place of the presumption of innocence which usually awards the benefit of any reasonable doubt to the defendant.[6] Roberts goes on to state that placing probative burdens on the defenceis manifestly illiberal inasmuch as it makes people presumptive criminals, and puts the onus on them to prove otherwise.[7] His arguments, coming some sixty years after the judgment in Woolmington, nevertheless wholly support the dicta of the learned judge. Such is the ideological significance of the presumption of innocence, it is recognised as a fundamental human right.[8] Given the inalienable nature of such rights, it would be reasonable to expect that any derogation from the presumption (if indeed such derogation should be made at all) would be exceptional. Yet, as this essay seeks to demonstrate, tough talking political rhetoric[9] has caused recent parliaments to enact legislation seemingly in conflict with the presumption of innocence. Indeed, whilst it was envisaged that the golden thread might well be made subject to statutory exception,[10] the following discussion seeks to argue that the introduction of statutory legal reverse burdens of proof has undervalued and eroded the significance of the Woolmington principle. The imposition of reverse onuses has become widespread. Research conducted in 1996 shows that 40% of indictable offences at that time involved legal burdens or presumptions operating against the defendant.[11] Where the defendant faces a legal burden he will have to prove, on the balance of probabilities, all the elements of a statutory defence. If he faces only an evidential burden however, he need only point to some evidence of the existence of a defence. The prosecution must then disprove that defence beyond all reasonable doubt. Clearly then, a legal burden is far more onerous for the defendant to discharge. A burden may be placed on the defendant either expressly through the clear wording of the statute, or by necessary implication.[12] The courts should give effect to the intentions of parliament whether the reverse onus is express or implied,[13] however both common law and statutory methods of judicial interpretation have made way for the courts to assess the validity of reverse onuses before they are applied.

Section 101 of The Magistrates Courts Act 1980 (hereafter referred to as Section 101) provides that where the defendant to an information or complaint relies for his defence on any exception, exemption, proviso, excuse or qualificationthe burden of proving the exception[etc]shall be on him.[14] On its face, this provision applies only to offences tried summarily,[15] however it has been held that the law would have developed on absurd lines if in respect of the same offence the burden of proof today differed according to whether the case was heard by the magistrates or on indictment[16] and as such the interpretive rules apply to both summary and indictable offences alike. Smith suggests that this wide application of the provision goes a long way towards nullifying the effect of Woolmington.[17] He notes in particular that the operation of the section may leave a defendant tasked with the burden of proving some of the elements of the offence, a role that most properly should be that of the prosecution.[18] The nonsense as Smith sees it is that by virtue of this provision, if the prosecution is to discharge the burden of proving the elements of the offence of (for example) driving without a licence, they need only show that the defendant was driving it is for the defendant to prove qualification to do so. The criminality of the offence is therefore not a matter for the prosecution an outcome that many would regard as absurd. Dennis notes however that whilst Section 101 may appear restrictive, in fact it merely states the result of an exercise in interpretative classification; it does not tell a court how to distinguish between the elements of an offence and statutory defences consisting of exceptions [etc.].[19] There may therefore be scope for a court to interpret a statute flexibly where an implied legal burden is placed on the defence so that the defendant bears only an evidential burden. Hunt[20] is a case in point. The defendant sought to rely at trial upon an exception contained in the Misuse of Drugs Regulations[21] however it was held that the legal burden fell upon him to demonstrate that he fell within the ambit of the exception.[22] On appeal however, the House of Lords held that the wording of the Regulations should not be interpreted as invoking a legal burden upon the defence under Section 101 and instead felt that, properly understood, the Regulations laid out an element of the offence as opposed to a statutory defence. Whilst Lord Ackner made it clear that the courts must give effect to the intentions of Parliament,[23] it is arguable that the position taken by the Law Lords in Hunt is a clear example of the judiciary in fact ignoring the will of Parliament. The Regulations state that the provisions contained therein are exemptions,[24] just as the term exemption appears in Section 101. Parliamentary draftsmen cannot lightly be taken to have been ignorant to the meaning of the word it is surely more likely that they fully intended to place a legal burden on the defendant. Dennis thus argues that the courts insistence that interpretation of statutory offences entails trying to discover Parliaments intentions is something of a myth[25] in practice, Hunt shows that if the court does not feel that the outcome of the imposition of a reverse onus is fair, it may well decline to enforce it. The Law Lords did however give some guidance as to when a statutory exception will be applied under Section 101. They held that it is initially necessary to have regard to the location of the exemption in the legislation and the linguistic construction of the provision itself in order to assess whether it is clear on whom the burden of proof should fall.[26] This may well be conclusive, but in the absence of clarity, the court should also look to the mischief at which the Act was aimed, the seriousness of the offence, and most importantly, the ease or difficulty with which one or other party could discharge the burden.[27] Prima facie Hunt allows a court to take a more flexible approach to Section 101. Mirfield however argues that whilst the outcome may have been appropriate on the facts of that case, Lord

Griffiths focus on the ease with which the persuasive burden could be discharged may lead to a legal burden being placed on the defence when issues of mens rea are involved after all it is hard to see why it should cause [a defendant] great difficulty to prove his state of mind.[28] This would task a defendant with proving the absence of an element of the offence precisely the outcome that the Law Lords in Hunt sought to avoid. Dennis further notes that the principle that it is for the prosecution to prove guilt is not one of the interpretative factors expressly mentioned in Hunt.[29] This, it is argued, fails to pay full regard to the significance of the Woolmington judgment. He suggests that instead courts should begin with the presumption that Parliaments intention was to impose a burden on the prosecution to prove all elements of guilt, including the absence of a defence.[30] Whilst he accepts that in practice the outcome at trial may not be vastly different, at least it would place the emphasis in the right place and might discourage too ready a reliance on ease of proof as a reason for reversing the onus.[31] It may well therefore be reasonable to imagine that the coming into force of the Human Rights Act[32] would have provided a welcome opportunity for the judiciary to resolve the law in relation to reverse burden clauses. The Act makes it unlawful for a court (as a public authority)[33] to act in a way that is incompatible with the European Convention on Human Rights (ECHR).[34] Statutory reverse onuses, whether express or implied, are seemingly at odds with the Convention, which provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.[35] Evidential burdens are however generally considered to be compatible with the Convention.[36] Therefore, if a court finds that legislation imposing a legal burden on a defendant is incompatible with Article 6(2) then it is entitled under the powers afforded to it by the Human Rights Act[37] to read down the legislation so that it imposes only an evidential burden. If it cannot construe the wording of the statute in this way, then the court must make a declaration that the legislation is incompatible with the Convention.[38] These powers certainly appear to provide the court with a neat way to head off Parliaments corrosive approach to the Woolmington principle. However, the European Court of Human Rights has held that Article 6(2) is not an absolute right, indeed, presumptions of fact or of law operate in every legal system[39] and the Convention does not seek to prohibit these in principle. However, if a presumption is to be valid, States [must] confine [it] within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.[40] The European Court has further clarified that the means employed have to be reasonably proportionate to the legitimate aim to be achieved.[41] Generally, securing convictions and protecting the public from harm will always be a legitimate policy for the legislature to pursue. It is the proportionality of the means adopted that causes difficulties for the courts, as can be seen from the absence of any general principles to be divined from domestic judicial decisions made in the wake of Salabiaku. Indeed, the Law Lords in Lambert noted that as the approach of the European Court is to decide cases on their particular circumstances, this may apply to cases tried domestically,[42] making it difficult to consider any judgment on reverse onuses as authoritative. That said, Dennis has identified six factors that the court may take into account when ruling upon the proportionality of reverse onuses.[43] The first is the notion of judicial deference. Reference has already been made to the constitutional platitude[44] that the courts should give effect to the intentions of Parliament. Indeed, Lord Nicholls in

Johnstone made it clear that the court will reach a different conclusion from the legislature only when it is apparent the legislature has attached insufficient importance to the fundamental right of the individual to be presumed innocent until proved guilty.[45] However, Lord Hope in Kebilene[46] noted that the judiciary would be less willing to uphold an interference with a right of high constitutional importance orof a kind where the courts are especially well placed to assess the need for protection.[47] Lord Bingham in Sheldrake felt that too great a reliance on judicial deference may lead the court to give too much weight to the enactment under review and too little to the presumption of innocence and the obligation imposed on it by section 3.[48] Faced with such divergent authorities it must be difficult for courts to apply this factor consistently. It is further suggested that there is a distinction between acts that are truly criminal and those that are merely regulatory[49] and that the imposition of a reverse onus in the latter category may be easier to justify. However, it is immediately apparent that the subjective element involved in deciding which offences fall into each category would necessarily leave any judicial decision as regards where the burden of proof should fall open to question. Dennis further notes that many offences of a regulatory hue now carry the possibility of a custodial sentence on conviction[50] causing an inevitable question as to whether a reverse onus would be appropriate in these instances. With this in mind, it is difficult to form a general principle based on this interpretive factor the subjectivity involved will necessarily mean that cases are decided according to what is fair in that instance. However, the significance of the maximum penalty involved may be more persuasive. After all, this can be determined objectively, affording parties greater certainly as to how the interpretative factor should be applied in practice. But even here, consistent authority is hard to find. Whilst in Lambert, the imposition of a life sentence was persuasive in Lord Steyns finding that the presumption of innocence had been infringed disproportionately, [51] in Johnstone a reverse onus was upheld despite the imposition of a ten-year maximum penalty, because other factors such as the need within the industry to guard against counterfeiting were deemed more important.[52] Assessing the proportionality of reverse onuses by maximum sentence would certainly be convenient and sensible, however as Dennis notes, the application of such a principle has been patchy to say the least.[53] The construction of criminal liability will also be relevant as regards interferences with the presumption of innocence. In Lambert however, Lord Hope and Lord Steyn could not agree as to how relevant a consideration this might be. Lord Hope distinguished between defences that involve establishing an essential element of the offence and qualification defences[54] such as those defined in Edwards.[55] Lord Steyn however noted that the distinction between constituent elements of the crime and defensive issues will sometimes be unprincipled and arbitraryit is sometimes simply a matter of which drafting technique is adopted.[56] He further noted that there arecases where the defence is so closely linked with mens rea and moral blameworthiness that it would derogate from the presumption to transfer the legal burden to the accused.[57] Linked to the above is ease of proof and peculiar knowledge. A reverse onus may be justified where it would be particularly easy for a defendant to evidence his defence by producing, for example, a license to carry out an act. However, what may be difficult for the

prosecution to prove may not be an easy matter for the defence, and care must be taken when justifying reverse onuses on this ground. Peculiar knowledge, (for example of the defendants state of mind) may also be incredibly burdensome to prove. Nevertheless, there has been much judicial opinion to support the assertion that peculiar knowledge should be a relevant consideration in considering the proportionality of the reverse onus. [58] However Dennis points to the outcome in Lambert where the defendants peculiar knowledge did not prevail over considerations of a maximum penalty of life imprisonment and the unfairness of convicting the defendant where the jury thought that his story was as likely to be true as not.[59] Dennis suggests that peculiar knowledge can at best support the imposition of an evidential burden to raise the issue of those facts, in circumstances where the prosecution would not otherwise know in what form a defencemight arise.[60] The final factor identified by Dennis is the procedural significance of the presumption of innocence. Lord Bingham summarised the impact of the procedural rules thus: the overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that endthe substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable.[61] This has held particular sway in cases such as Lambert where to enforce a reverse onus would impose a life sentence on a defendant even if a jury felt that his defence was as likely to be true as not.[62] If an outcome would be patently unfair, the courts are entitled to use their procedural rights to examine an interference with the Convention, and read down the burden accordingly. It has become clear that much has been done by way of statutory reverse onuses to undermine and whittle away the Woolmington principle. Prior to the enactment of the Human Rights Act, a defendant faced with an implied statutory exception must have faced significant uncertainty as to the burden of proof that he would face. Whilst the House of Lords in Hunt attempted to lay down some interpretive guidance, that case too has been felt to pay insufficient regard to the Woolmington judgment. The real tragedy however is that the courts have made little effective use of the powers afforded to them under the 1998 Act. Their failure to agree on any consistent principles that may be relied upon to determine the proportionality of a legal burden of proof imposed on the defence is a failure for the rule of law in general. As Dennis notes, as long as courts are free to pick and choose amongst the six factors discussed abovethen almost inevitably the result will be uncertainty and inconsistency.[63] It is entirely regrettable that the courts have allowed such a situation to come about the whittling down of the Woolmington principle is perhaps something that one might expect from Parliament, but it is uncomfortable to find the judiciary facilitating this erosion through their inability to identify coherent general principles that may be applied consistently by the lower