Carrying the burden of proof

Kevin Roberts offers advice to solicitor-advocates facing a reverse burden of proof

Q How do I approach a case that involves a reverse burden of proof?

A In the recent decision of Lord Justice Clarke in Sheldrake v DPP [2003] EWHC 273, clarification was given in relation to the Human Rights Act 1998 and offences that impose a reverse onus of proof.

In particular, Lord Justice Clarke examined the question of reverse burdens in the context of criminal and regulatory matters, and sought to clarify the distinction.

His approach may be contrasted with the decision of Lord Justice Rose in the Court of Appeal in the case of Roger S v London Borough of Havering [2002] PWCA Crim 258.

The first question is whether statute imposes a legal or evidential burden on the accused.

If a legal burden is imposed, consideration should be given to whether this amounts to a prima facie interference with the presumption of innocence contained within article 6(2) of the European Convention on Human Rights, and section 3(1) of the Human Rights Act 1998.

Article 6(2) states: 'Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law.' If a legal burden is imposed, can this be read down under section 3 of the Act to impose only an evidential burden? Finally, if the legal burden remains, can the court be persuaded that this effectively precludes a sentence of imprisonment?

Q What is a legal or persuasive burden?

A A legal burden is often easier to identify than to describe.

A classic legislative tool for imposing a legal burden is the expression 'it is a defence...

to prove' or 'it shall be a defence for the defendant to prove or show'.

(See Crown v Lambert [2002] QB 1112 (CA); [2002] 2 AC 545 (HL) (E)) per Lord Hope had paras 76, 132 and 182, and Havering per Lord Justice Rose.) An example is section 450 of the Companies Act 1985 - breach of which is punishable by up to seven years' imprisonment - which says: 'An officer of a company...

who...

destroys, mutilates or falsifies...

a document relating to the company's affairs...

is guilty of an offence unless he proves that he had no intention to conceal the state of affairs of the company or defeat the law.'

Q What is an evidential burden?

A Paragraph 138 of the 11th report of The Criminal Law Review Commission describes an evidential burden as follows: 'The relevant matter must be taken as proved against the accused, unless there is sufficient evidence to raise an issue on the matter but that, if there is sufficient evidence, then the prosecution have the burden of satisfying the jury or justices of the matter beyond a reasonable doubt.' A real issue of fact must be raised.

Chief Justice Dickson in R v Whyte (1988) 51 DLR 4th 481 summarised the distinction between legal and evidential burdens: 'The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted whilst a reasonable doubt exists.

Where that possibility exists, there is a breach of the presumption of innocence.' There is no fundamental incompatibility between a legal burden on the defendant and the European Convention on Human Rights.

In Salabiaku v France (1988) 13 EHRR 379, the convention stated: 'The convention does not prohibit such presumptions in principle.

It does...

require states to confine them with reasonable limits which take into account the importance of what is at stake and maintain the rights of the defendant.'

Justification, proportionality and necessity are required if a legal burden on the defendant is to withstand challenge under the Human Rights Act.

A succinct definition is found in R v Carass [2001] EWCA Crim 2845 1 WLR 1715: 'If a reverse burden is to be imposed...

it must be justified and in particular it must be demonstrated why a legal or persuasive rather than an evidential burden is necessary.'

In Sporrong & Lonnroth v Sweden (1983) 5EHRR 35, proportionality was addressed: 'The court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights.' In Havering, Lord Justice Rose set out seven factors which could be taken into consideration in justifying the imposition of a legal burden: public policy; whether the subject matter is peculiarly within the knowledge of the accused; whether an effective and workable regime requires a legal burden; whether the offence is essentially regulatory in nature; whether the prosecution has to prove other matters beyond a reasonable doubt before liability can attach to the accused; sentence; and practicality.

If the tests of justification, proportionality and necessity are met, then the legal burden remains and it is for the defendant to prove on a balance of probabilities the matters set out in the statute.

Q Can an evidential burden be read down?

A If the test is not met by the Crown, can legislation be read down so as to impose an evidential burden? For example, the offence in Carass was one of concealing the debts of a company in anticipation of a winding-up contrary to section 206(1)(a) of the Insolvency Act 1986.

The reverse onus provision is contained in section 206(4) which provides: 'It is a defence for a person charged under paragraph a or f...

to prove that he had no intent to defraud.'

Sub-section 4 was read down so as to impose an evidential burden of proof because the test of necessity was not satisfied.

In any case involving a reverse burden, the defence should invite the Crown and the court to accept that any burden placed on the defendant is an evidential one.

It is submitted that the test of whether a burden is compatible with the convention is for the Crown to meet in each case.

Q Is an offence regulatory or criminal?

A Justification, proportionality and necessity are central to the question of whether an offence is regulatory or criminal.

Where an offence is deemed to be regulatory, the court is more likely to find that the imposition of a legal burden was necessary, justified and proportionate.

But note the decision of the Court of Appeal in R v Mathews [2003] EWCA Crim 813, which involved an offence of possession of a bladed article.

Lord Justice Rose determined that an offence carrying up to ten years' imprisonment was regulatory rather than criminal, thereby justifying the imposition of a legal burden.

Nevertheless, the distinction between criminal and regulatory offences may ultimately be useful for defendants.

In Davies v Health & Safety Executive [2002] EWCA Crim 2949, the court distinguished between 'truly criminal and regulatory offences'.

One of the factors was whether there was a risk of imprisonment.

A further consideration was the objective of the legislation.

While a court could determine that a matter was regulatory even where statute imposed a penalty of imprisonment, a judge that deemed a matter to be regulatory would arguably be in some difficulties in justifying a later sentence of imprisonment.

Kevin Roberts is a solicitor on the business crime team in the London office of Irwin Mitchell.

This column is prepared by committee members of the Solicitors Association of Higher Court Advocates.

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