To what extent has the 'presumption of innocence' enunciated in

the case Woolmington v DPP [1935] AC 462 vis-a-vis criminal

cases changed in light of the Human Rights Act 1998? Discuss.
History
The sixth century Digest1 of Justinian (22.3.2) provides, as a general
rule of evidence: Ei incumbit probatio qui dicit, non qui negat - Proof lies
on him who asserts, not on him who denies. It is there attributed to the
second and third century jurist Paul2. Similar to its Romanic predecessor,
Islamic law also holds the principle that the onus of proof is on the
claimant, based on a hadith3 documented by Imam Nawawi4.
The collapse of Western Modern Empire gave way to the rise of
feudalistic5 justice system. Within it, there was no concept of presumption
of innocence. Rather, it was the duty of the accused to prove his
1 Also known as the Pandects (Latin: Digesta seu Pandectae, adapted from

Ancient Greek pandektes, "all-containing"), is a name given to a

compendium or digest of Roman law compiled by order of the emperor
Justinian I in the 6th century (AD 530-533). It spans 50 volumes, and
represented a reduction and codification of all Roman laws up to that
time.
2 Julius Paulus Prudentissimus
3 Often translated as "prophetic traditions", meaning the corpus of the

reports of the teachings, deeds and sayings of the Islamic prophet

Muhammad.
4 Abu Zakaria Mohiuddin Yahya Ibn Sharaf al-Nawawi, popularly known as

al-Nawawi, an-Nawawi or Imam Nawawi (12331277)

5 Derived from Feudalism - . The political, military, and social system in

the Middle Ages, based on the holding of lands in fief or fee and on the
resulting relations between lord and vassal.

innocence, either by means of taking an oath of innocence or through

undergoing life-threatening ordeals. It could thus be reasonably inferred
that the defendants were required to prove their innocence beyond
reasonable doubt.

Contemporary Development
The presumption of innocence presumes the defendant to be
innocent until proven guilty, with the prosecution required to prove all the
elements of the offence beyond reasonable doubt. This principle was laid
down by Viscount Sankey6 in Woolmington v DPP7 : Throughout the web
of the English criminal law one golden thread is always to be seen - that it
is the duty of the prosecution to prove the prisoner's guilt subject to what
I have already said as to the defence of insanity and subject also to any
statutory exception...
This golden thread was subsequently affirmed in Article 6(2) 89 of the
European Convention on Human Rights10.

6 He has since been recognised as Lord Sankey LC

7 Woolmington v DPP [1935] AC 462.
8 Hereafter known as Art6(2)
9 Everyone charged with a criminal offence shall be presumed innocent

until proved guilty according to law.

10 Hereafter referred to as ECHR

While not a burden of proof per se, the defendant in a criminal trial
has an evidential burden11 where he is seeking to rely on any common law
defence other than insanity. Once the defence becomes a live issue, the
prosecution must again prove beyond reasonable doubt that facts dictate
otherwise before the jury can convict.
Woolmingtons decision was profound as it changed the previous law
by rejecting Fosters doctrine of the presumption of malice12. Secondly, its
reference to the duty of the prosecution to prove the accuseds guilt, and
holding that the prosecution also had the burden of disproving any
common law defences that the accused had specifically raised13. However
it is doubtful how far it has had either effect, even after the Human Rights
Act 199814.
Exceptions to the presumption
1. Insanity

11 An obligation on a party who wishes to raise a particular issue to point

to some evidence that is capable of making the issue a live one, fit for
consideration by a jury.
12 In that case Swift J, an experienced judge had directed the jury that

once the prosecution had proved that the deceased had died at the hands
of the accused, then that was presumed to be murder unless the
defendant could satisfy the jury that it was an accident. In this way the
judge clearly placed on the defendant the burden of proof of lack of mens
rea. Though heavily criticized by todays standards, there was
considerable authority for it was an accurate statement of law in that
time.
13 I Dennis, The Law of Evidence, 4th edition, 458.
14 Hereafter known as HRA 1998'

Apart from his Lordships exclusion in Woolmington, the authority of

McNaghtens15 case clearly placed the burden of proof of insanity on the
accused16 because 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 satisfaction17 However in H v UK

18

, the

European Court of Human Rights19 ruled that the insanity exception did
not breach Art 6(2) since the main concern was the presumption of
sanity.20
2. Express Statutory Reversal
His Lordship also excluded any statutory exception from the scope of
presumption of innocence. Statutory exceptions are commonly said to be
of two types: express and implied.21
When express statutory provision obliges the accused to prove his
defence, it will automatically shift a legal burden on him to prove his
defence on the balance of probabilities without any assessment attached.

15 McNaghten (1843) 10 Cl. & Fin.200.

16 Ian Dennis, The Law of Evidence, 4th edition, 459.
17 Charanjit Singh Landa and Mohamed Ramjohn, Unlocking Evidence, 2nd

edition, 35.
18 H v United Kingdom Appn No 15023/89, 4 April 1990 (unreported).
19 Hereafter known as ECtHR
20 Maureen Spencer and John Spencer, Evidence, 2nd edition, 14.
21 I Dennis, The Law of Evidence, 4th Edition,460 -461.

Ashworth and Blake22 demonstrated the extent to which Parliament

departed from Woolmingtons principle in relation to indictable offences.
Their research found that no fewer than 40 per cent of offences triable in
the Crown Court violated the presumption of innocence by requiring the
defendant to prove a statutory defence or disprove at least one element
of the offence.23
3. Implied Statutory Reversal
There are number of cases where an enactment may be constructed
as impliedly imposing a legal burden on the accused. S.101 of the
Magistrates Courts Act 1980 lays down the general principle in respect of
summary offences. The effect of the section is that where the conduct of
the accused creates an offence but in 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
accused. The principle originates partly from the notion that it is
favourable for the accused to prove that he falls within the scope of
defences because of the access to the relevant information and partly
from the original provision enacted in the s.39(2) of the Summary
Jurisdiction Act 1879.24

22 Ashworth and Blake (The Presumption of Innocence in English Criminal

Law, 1996 Crim. L.R. 306, at 309)

23 I Dennis, The Law of Evidence, 4th Edition, 461.
24 Charanjit Singh Landa and Mohamed Ramjohn, Unlocking Evidence, 2nd

edition, 37.

Presumption of Innocence: Post-HRA 1998

Since 2000, if the courts conclude that there is a violation of Art6(2), it
can either make a declaration of incompatibility under s.4 of the HRA 1998
or, alternatively, read down the provision under s.3, so that it becomes
convention compliant. In practice the latter is mostly the preferred course
for appellate courts.25
Lambert26 was the first case that demonstrated this effect27 - the
appellant was convicted of possession of a class A controlled drug with
intent to supply, contrary to s.5(3) of the Misuse of Drugs Act 197128. He
was found in possession of a bag which contained the substance, and his
defence, under s.28, was that he neither knew nor suspected that the bag
contained the drugs and was required to bear the legal burden of proving
this defence. He appealed on the grounds that the reversed onus29 in the
provision of s.28 conflicted with the presumption of innocence guaranteed
by Art6(2).30 The Court of Appeal dismissed his appeal, as the House of
Lords, citing that the law doesnt operate retrospectively31.
25 Durston, Evidence: Text and Material, 103.
26 R v Lambert [2001] UKHL 37; [2002] 2 A.C; [2001] 2 Cr. App.
27 This case is also a relevant example as to the application of an express

statutory reversal
28 Misuse of Drugs Act 1971, s.5(3).
29 Reversed legal burden
30 P Murphy, Murphy on Evidence,10th edition, 103.
31 This happened before the HRA 1998 came into force.

Nonetheless, in the obiter the majority of the House held the reverse
legal burden of s.28 was incompatible with Art6(2), as it had a high risk of
wrongful conviction32. With the result that s.28 must be read as if it
imposed only an evidential burden on the accused, the word proves as
used in s.28 must be construed to mean give sufficient evidence, by
employing s.3 of the HRA 1998.
Test of proportionality how could a reverse onus to be justified?
As a result of Lambert, it is submitted that the imposition of reverse legal
burdens of its prima facie33 incompatible with Art6 of the ECHR, and must
be scrutinized with great care in light of the principle of proportionality.

34

However, House of Lords also made it clear that not all legal burdens
were placed on a defendant in criminal trial violated the ECHR or Art6(2)
in particular. The court held, it was not an absolute right in all the
circumstances. In Salabiaku v France35, the ECtHR stated that some
reverse burdens of proof are convention compliant.36
32 Referring to Lord Steyns judgment: 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
hima 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.
33 Latin for on its face. Refers to establishing a case by firstly looking at

the bare facts.

34 P Murphy, Murphy on Evidence,10th edition, 90.
35 Salabiaku v France (A/141-A) (1991) 13 E.H.R.R. 379 ECtHR.
36 Gregory Durston, Evidence: Text and Material,104.

Hence the courts must ensure every reverse onus clause in English
law must be measured for convention compliance. Although it is apparent
that the onus on those seeking to persuade the courts that a reverse
burden is necessary is heavy, the courts continue to uphold such
provisions. In Sheldrake37 their Lordships also concluded that when
conducting an assessment of proportionality, it was necessary to balance
societys interest in the effective suppression of a social mischief against
the defendants right to a fair trial. When weighing up these two
competing interests, several factors38 could be considered.
This test depends upon the circumstances of the individual case. It
follows that a legislative interference with the presumption of innocence
requires justification and must not be greater than is necessary. The test
of proportionality requires courts to consider whether there was a
necessity to impose a legal burden on the accused.39
Ian Dennis six cardinal rules
Ian Dennis has summarized the following factors to be taken into account
when applying the test of proportionality - judicial deference, classification
of the offence, construction of criminal liability, significance of maximum
penalty, ease of proof and peculiar knowledge, presumption of Innocence.
37 Sheldrake v DPP [2004]UKHL 43.
38 Amongst them were the severity of the offence in terms of potential

sentence, the ease of proof for one party or the other in relation to
establishing the reverse burden, and the danger of convicting the
innocent.
39 P Murphy, Murphy on evidence, 10th edition, 92.

 Judicial deference
In response to the HRA 1998, how far should the courts defer to the
judgment of Parliament? In the case of Johnstone40, Lord Nicholls has
stressed that Parliament, not the court, is charged with. what should be
the constituent elements of a criminal offence, 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 an individual to be presumed innocent until proved guilty. Lord Woolf
CJ took a similar approach41 , ruling that the assumption should be that
Parliament would not have made an exception to the presumption of
innocence without good reason.

42

However, in Sheldrake Lord Bingham cast doubt on Lord Woolfs

proposition, saying that such an approach may lead the courts to give too
much weight to the enactment and too little to the presumption of
innocence and the obligation imposed by s3 of the HRA 1998.
Nonetheless, he reiterated in Brown v Scott

43

that substantial respect

should be paid by the courts to the considered decisions of democratic

assemblies and governments.

40 Johnstone[2003] UKHL 37.

41 Attorney-Generals Reference (No.1 of 2004) [2004] EWCA Crim 1025.
42 I Dennis, The Law of Evidence, 4th Edition, 475.
43 Brown v Scott [2003] 1 A.C. 681

The divergence of views leaves the issue rather unclear. However,

Lord Hopes statement in Kebilene44, which required the courts to make a
distinction between the legitimate aim and the proportionality, could be
considered. In identifying a legitimate aim requires the courts to consider
the policy goals of criminalisation being pursued by the relevant provision.
Then, the courts should ask themselves whether the imposition of the
reverse onus is proportionate to achieve Parliaments intentions.
Ian Dennis stressed that a strong principle of deference would seem to
be inappropriate, if there is no evidence that the Parliament gave thought
to the presumption of innocence when it enacted the reverse onus. It
should always be remembered that the importance of Art6(2) should
always prevail. It is for the state to justify derogation from the
presumption of innocence and justifying arguments should be compelling
if they are to succeed.

45

Classification of Offences
In Sheldrake, Jack J referred to the recognised distinction between truly
criminal offences and those which are regulatory and suggested that it is

44R v Director of Public Prosecutions, Ex Parte Kebeline and Others [1999]

UKHL 43
45 I Dennis, The Law of Evidence, 4th Edition, 474-476.

easier to justify an interference with the presumption of innocence the

lower in the scale the offences is.

46

However classification of offences into mala in se47 and mala

prohibita48 is said to be problematic as a guide to justifiable proportionality
of a reverse onus. First, the distinction is not particularly definitive. If it
depends on the moral quality of the act then it is likely to be contestable,
while some offences are attached with the morally reprehensible colour
but it only punishable under regulatory legislation only with a fine, as
illustrated in Davies v Health and Safety Executive49. If the distinction
depends on penalties, so that regulatory offences are characterised as
generally punishable by fine, however many regulatory offences now carry
the possibility of a custodial sentence on conviction. Moreover, some
summary offences punishable only by a fine may be far from mere
regulatory criminality but may be of great social and emotional
importance to a large number of people

50

46 I Dennis, The Law of Evidence, 4th Edition, 476.

47 (the singular is malum in se) is a term that signifies crime that is

considered wrong in and of itself. The phrase is Latin and literally means
wrong in itself.
48 the Latin term for "wrong because they are prohibited."
49 Davies v Health and Safety Executive [2002] EWCA Crim 2949; an

employer was charged under health and safety legislation with failure to
ensure that his employees were not to exposed to health and safety risks.
The relevant employee had died.
50 I Dennis, The Law of Evidence, 4th Edition, 476.

Secondly, it does not follow that a statutory defence to a regulatory

offence will be any easier for the defendant to prove than an equivalent
defence to a truly criminal offence. There is no necessary relationship
between the degree of onerousness

51

of a reverse onus and the type of

crime involved.52
Summing up, the classification is shown to be dependent on the
judges personal opinion, which may be different from each other. In
Sheldrake, two of the divisional court judges thought that an offence was
not a regulatory matter, while Herinques J concluded the contrary.
Construction of criminal liability: elements of offences and
defences.
The general rule is that presumption of innocence requires the
prosecution to prove all essential elements of offences. In AttorneyGeneral for Hong Kong v Lee Kwong-kut

53

Lord Woolf remarked that if the

prosecution retained responsibility for proving the essential ingredient of

the offence, the less likely it is that an exception will be regarded as
unacceptable. In Lambert Lord Hope distinguished between the essential
elements of the offence and defence of the type referred to in Edwards54,
suggest that reversing onus of such defence is more easily justified.
51 Having or involving obligations or responsibilities, especially legal ones,

that outweigh the advantages

52 I Dennis, The Law of Evidence, 4th Edition, 477.
53 Attorney-General for Hong Kong v Lee Kwong-kut [1993] A.C.951.
54 R v Edward [1975] QB 27.

In the same case, Lord Steyn noted the difference between the
element of the offence and defensive issues was sometimes only a matter
of drafting technique. He suggested that it was preferable to focus on
moral blameworthiness. Defences such as those discussed in Edwards
should be distinguished from other cases where the defence is so closely
linked with mens rea and moral blameworthiness that it would derogate
from the presumption of innocence to transfer the legal burden to the
defendant. In AGs Reference (No.4 of 2002)

55

the courts held that

Art6(2) requires the prosecution to prove the true nature of the offence.
Application of this principle did not depend on formal statutory separation
of elements and defences.
Significance of maximum penalty
Generally the weight of presumption of innocence ought to increase in
proportion to the gravity of the offence. In Lambert, Lord Steyn attached
importance to the penalty of life imprisonment when reading down the
reverse onuses in that case. In Sheldrake, the House upheld the reverse
onus, as the maximum penalty of the offence was six months. In AGs
Reference (No.4 of 2002) the House read down the reverse onus, where
the maximum penalty was 10 years. These 3 cases were deemed to be
compatible of the guideline.
However, in Johnstone the maximum penalty for the offence is same
with the abovementioned AGs Reference case, yet the House upheld the
reverse onus. It would seem that maximum penalties are a very uncertain
55 Attorney-Generals Reference (No.4 of 2002) [2003]EWCA Crim 762.

guide as to whether a reverse onus will be held to be proportionate to the

legitimate aim of the offence in question. It ought to be the case that the
more serious the offence the more compelling should be the justification
for a reverse onus, but application of such a principle has been patchy to
say the least.

56

Ease of proof and peculiar knowledge

Ease of proof is by no means the same concept as peculiar knowledge.
In some circumstances defendant doesnt have peculiar knowledge (i.e
possession of a licence), because that knowledge is available to
prosecution from evidence (i.e registers), but it is more burdensome and
costly to locate it. On the other hand, sometimes defendant does have
peculiar knowledge57, but this doesnt mean that it will be easier for him to
prove the absence of mens rea than prosecution to prove its presence.

58

In Kebilene Lord Hope suggest that in striking the balance required by

the principle of proportionality, one of the questions to be asked was
whether the burden on the defendant related to something that was
within his knowledge or to which he readily had access. This suggestion is
followed by Lord Nicholls in Johnstone, he referred to defendants own
56 I Dennis, The Law of Evidence, 4th Edition, 479.
57 As he has privilege to access to his intention, knowledge or belief.
58 I Dennis, The Law of Evidence, 4th Edition, 480.

knowledge or ready access as alternative relevant factors in a decision

about compatibility of a reverse onus.
Conversely, it should also be remembered that in Lambert the factor
of 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 as true as not.
A reverse onus is to be justified by reference of ease of proof the focus
should be on the weight impose on the defendant but not look into
whether it would be difficult for the prosecution to prove guilt, as even
where proof of guilt would be difficult for the prosecution, doesnt mean
that it is easy for defendant to disprove his guilt.
However in Makuwa59 the Court of Appeal upheld a reverse onus under
s.31 of the Immigration and Asylum Act 1999, almost entirely on the basis
of the difficulty of proof for the prosecution. The court glossed over any
difficulties of proof that the defendant might have, emphasising instead
the policy need to maintain proper immigration controls by restricting the
use of forged passports.
In contrast the Divisional Court held in DPP v Wright60, that a burden
on the defendant to prove that his hunting was exempt, would be
oppressive, disproportionate, unfair, and an unnecessary intrusion on the

59 Makuwa[2006] EWCA Crim 175.

60 DPP v Wright [2009] EWHC Crim 105.

presumption of innocence. Schedule 1 of the Hunting Act 2004 contained

a list of exempt forms of hunting: some of the matters would be within
defendants knowledge, some would be easy for him to prove, but some
would be neither. In these circumstances the Act should be read as
imposing only an evidential burden on the defendant; once the
prosecution knew which form of exemption was in issue it would not be
unduly burdensome to require them to disprove it.

Presumption of Innocence
Presumption has been said to be the foundation of the right to fair trial
under Art 6. Domestic courts that have to decide on justifiability of reverse
onuses will generally be doing so before then trial when rulings on the
burden of proof have to be made.
There are 3 different conceptions of the presumption. The first
conception focuses more on process than outcome; the presumption is
seen as a norm of fairness rather than an instrument to ensure accuracy.
This is the Strasbourg courts approach which has emphasised procedural
of presumption of innocence. The second conception of the presumption,
which described as a morally substantive conception, emphasises fairness

in both process and outcome. The third one is described by Robert and
Zuckerman as a normative moral and legal standard encapsulating a
strong commitment to avoiding wrongful convictions, rather than a recipe
for factual inference and adjudication This characterises the presumption
as a device for the avoidance of a particular outcome of criminal
proceedings. It becomes a protective device rule for the defendant against
the risk of error in adjudication61.62
English law favours a more morally substantive view of the
presumption of innocence. Lord Steyn conceived the presumption as
ensuring the issues of the defendants moral blameworthiness had to be
proved by the prosecution. One of Lord Steyns reasons for rejecting a
reverse onus in Lambert was that it would oblige the court to convict the
defendant where it thought his version of fact was as likely to be true as
not. This was thought to be unfair and unacceptable for an offence
punishable with life imprisonment. Lord Bingham took a similar approach
in Attorney- Generals Reference (No 4 of 2002) to reverse the onus under
s11(2) of the Terrorism Act 2000.
Conclusion
Colin Tapper summarises presumption of innocence to be a
fundamental rule of criminal procedure and it is rightly so. And yet
Lamberts case stands out to show us just exactly what happens when this
ruling is carelessly ignored. Some legal systems today have employed de
61 Judgement
62 I Dennis, The Law of Evidence, 4th Edition, 483.

jure63 presumptions of guilt, such as at an order to show cause criminal

proceeding. Otherwise, accusations of presumption of guilt generally do
not imply an actual legal presumption of guilt, but rather denounce
failures to ensure that suspects are treated well and are offered good
defence conditions. Examples include the wrongful detention of suspects
in Guantanamo Bay64
Art6(2) will continue to have a lasting impact on the UKs legal
systems, as well as throughout the rest of the European Union. Yet English
judges take pride in the English judicial system and will seek to disregard
European legislation unless another Lambert occurs, but it has brought
justice that much closer to a defendants reach. As for Ian Dennis
invaluable cardinal principles, while it cannot be viewed as the final
solution to the abuse of the presumption of innocence, it has also opened
up more doors that were never there before. It can be concluded therefore
that the presumption of innocence is here to stay.

63 expression that means "concerning law", as contrasted with de facto,

which means "concerning fact".

64 Also referred to as Guantnamo, G-bay or GTMO (pronounced 'gitmo'),

a United States military prison located within Guantanamo Bay Naval

Base, which fronts on Guantnamo Bay in Cuba.

Bibliography
Books
Dennis I, The Law of Evidence (4th edn, Sweet & Maxwell 2013)
Murphy P, Murphy on Evidence, (10th edition OUP, Oxford 2010)
Charanjit S and Mohamed R, Unlocking Evidence (2nd edition, Routledge
2013)
Spencer M and Spencer J, Evidence, (2nd edition)
Durston G, Evidence: Text and Material
Articles
Dennis I, Reverse Onuses and the Presumption of Innocence: In Search of
Principle [2005] Crim 18 901-936
Ashworth and Blake, 'The Presumption of Innocence in English Criminal
Law,' 1996 Crim. L.R. 306, at 309

Table of Statutes
Human Rights Act 1998
Magistrates Courts Act 1980, s.101
Summary Jurisdiction Act 1879, s.39(2)
Misuse of Drugs Act 1971, s.5(3).
Misuse of Drugs Act 1971,s.28.
Hunting Act 2004, Schedule 1.
Terrorism Act 2000,s.11(2)
European Convention on Human Rights, Art6(2)
s.31 Immigration and Asylum Act 1999

Table of Cases
McNaghten (1843) 10 Cl. & Fin.200.
Woolmington v DPP [1935] AC 462.
H v United Kingdom Appn No 15023/89, 4 April 1990 (unreported).
R v Lambert [2001] UKHL 37; [2002] 2 A.C; [2001] 2 Cr. App.
Salabiaku v France (A/141-A) (1991) 13 E.H.R.R. 379 ECtHR.
Sheldrake v DPP [2004]UKHL 43.
Johnstone[2003] UKHL 28.
Attorney-Generals Reference (No.1 of 2004) [2004] EWCA Crim 1025.
Brown v Scott [2003] 1 A.C. 681
Davies v Health and Safety Executive [2002] EWCA Crim 2949
R v Director of Public Prosecutions, Ex Parte Kebeline and Others [1999]
UKHL 43
Attorney-General for Hong Kong v Lee Kwong-kut [1993] A.C.951
R v Edward [1975] QB 27.
Attorney-Generals Reference (No.4 of 2002) [2003]EWCA Crim 762.
Makuwa[2006] EWCA Crim 175.

DPP v Wright [2009] EWHC Crim 105.