Evidential or legal burdens on the defence

Sometimes the legislation creating an offence places a burden on the defendant, if he is to avoid conviction, to prove something. In the absence of any statutory specification of the standard of proof which is placed on the defence by such provisions, the common law has traditionally held them to impose a legal burden of proof on the balance of probabilities. If he fails to meet this burden, the accused may be convicted even though there might be a reasonable doubt about his guilt. In this sense, legal burdens infringe the presumption of innocence. Courts have recognised this, but have regarded the shift in legal burden as justified. Justifications have been the mischief at which the legislation is aimed, and the ease with which the burden may be met.

In Attorney-General’s Reference (No 4 of 2002) [2004] UKHL 43 (14 October 2004) (decided jointly with Sheldrake v DPP) the House of Lords had to consider the effect of human rights law on this position, in the light of its obligation pursuant to s 3 of the Human Rights Act 1998 [UK] to apply the law so as to conform with the jurisprudence of the European Court of Human Rights in its interpretation of the European Convention on Human Rights. Section 3(1) provides:

“3. – (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

Lord Bingham of Cornhill delivered the leading speech for the majority; the minority agreed with his statement of the law but differed in its application in relation to one of these two appeals. At para 9 the parallel concerns of domestic and European law were mentioned:

“The right to a fair trial has long been recognised in England and Wales, although the conditions necessary to achieve fairness have evolved, in some ways quite radically, over the years, and continue to evolve. The presumption of innocence has also been recognised since at latest the early 19th century, although … the presumption has not been uniformly treated by Parliament as absolute and unqualified. There can be no doubt that the underlying rationale of the presumption in domestic law and in the Convention is an essentially simple one: that it is repugnant to ordinary notions of fairness for a prosecutor to accuse a defendant of crime and for the defendant to be then required to disprove the accusation on pain of conviction and punishment if he fails to do so. The closer a legislative provision approaches to that situation, the more objectionable it is likely to be. To ascertain the scope of the presumption under the Convention, domestic courts must have regard to the Strasbourg case law. It has there been repeatedly recognised that the presumption of innocence is one of the elements of the fair criminal trial required by article 6(1): see, for example, Bernard v France (1998) 30 EHRR 808, para 37.”

Strasbourg law was summarised in para 21:

“From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case.”

The question comes down to proportionality. In the appeal over which the House of Lords was split, the question involved the interpretation of s 11 of the Terrorism Act 2000 [UK], which provides:

11 Membership

(1) A person commits an offence if he belongs or professes to belong to a proscribed organisation.

(2) It is a defence for a person charged with an offence under subsection (1) to prove—

(a) that the organisation was not proscribed on the last (or only) occasion on which he became a member or began to profess to be a member, and

(b) that he has not taken part in the activities of the organisation at any time while it was proscribed.

What standard of proof does subsection (2) carry? Six considerations were relevant (para 51):

“(1) … a person who is innocent of any blameworthy or properly criminal conduct may fall within section 11(1). There would be a clear breach of the presumption of innocence, and a real risk of unfair conviction, if such persons could exonerate themselves only by establishing the defence provided on the balance of probabilities. It is the clear duty of the courts, entrusted to them by Parliament, to protect defendants against such a risk. It is relevant to note that a defendant who tried and failed to establish a defence under section 11(2) might in effect be convicted on the basis of conduct which was not criminal at the date of commission.

(2) While a defendant might reasonably be expected to show that the organisation was not proscribed on the last or only occasion on which he became a member or professed to be a member, so as to satisfy subsection (2)(a), it might well be all but impossible for him to show that he had not taken part in the activities of the organisation at any time while it was proscribed, so as to satisfy subsection (2)(b). Terrorist organisations do not generate minutes, records or documents on which he could rely. Other members would for obvious reasons be unlikely to come forward and testify on his behalf. If the defendant’s involvement … had been abroad, any evidence might also be abroad and hard to adduce. While the defendant himself could assert that he had been inactive, his evidence might well be discounted as unreliable. A’s own case is a good example. He arrived as a stowaway. He described himself on different occasions as Palestinian and also as Jordanian. An immigration adjudicator concluded that he was Moroccan. The judge, as already noted, thought he might well be a fantasist. He was not a person whose uncorroborated testimony would carry weight. Thus although section 11(2) preserves the rights of the defence, those rights would be very hard to exercise effectively.

(3) If section 11(2) were held to impose a legal burden, the court would retain a power to assess the evidence, on which it would have to exercise a judgment. But the subsection would provide no flexibility and there would be no room for the exercise of discretion. If the defendant failed to prove the matters specified in subsection (2), the court would have no choice but to convict him.

(4) The potential consequence for a defendant of failing to establish a subsection (2) defence is severe: imprisonment for up to ten years.

(5) While security considerations must always carry weight, they do not absolve member states from their duty to ensure that basic standards of fairness are observed.

(6) Little significance can be attached to the requirement in section 117 of the Act that the Director of Public Prosecutions give his consent to a prosecution (a matter mentioned by the Court of Appeal in para 42 of its judgment) for the reasons given by the Court of Appeal in para 91 of its judgment in Attorney General’s Reference (No 1 of 2004) [2004] EWCA Crim 1025.”

Accordingly (para 53), since it was possible to “read down” the legislation, s 11(2) was held to place an evidential burden, not a legal burden on the accused. That means, as Lord Bingham began by saying (para 1):

“An evidential burden is not a burden of proof. It is a burden of raising, on the evidence in the case, an issue as to the matter in question fit for consideration by the tribunal of fact. If an issue is properly raised, it is for the prosecutor to prove, beyond reasonable doubt, that that ground of exoneration does not avail the defendant.”

This case has persuasive value for New Zealand courts, because the influence of the New Zealand Bill of Rights Act 1990 on our common law is comparable to the influence of the European Convention on Human Rights on English common law. It is an illustration of how the interpretation of the burden as evidential rather than legal is not “strained and unnatural” (as it had been described in R v Phillips [1991] 3 NZLR 175 (CA)).

In the two appeals considered by the House of Lords in the case reviewed here, one concerning a defence to an excess alcohol driving offence was held to require a legal burden on the defendant, while the other, in the context of alleged belonging to a terrorist organisation, was held to impose only an evidential burden on the accused.


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