In Criminal cases, the general principle is that when it comes to proving the guilt of an accused person, the burden of proving this rests with the prosecution . In the case of Woolmington v DPP , it was stated in the judgment of Lord Sankey that; “Throughout the web of the English Criminal law one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner’s guilt subject to….. the defence of insanity and subject also to any statutory exception”. From the Judgment of Lord Sankey, the following circumstances where the accused bears the legal burden of proof in criminal cases were established; where the accused pleads the defence of insanity, where a statute or Act of Parliament expressly imposes the legal burden of proof on the defence, and where a statute or Act of Parliament impliedly imposes the legal burden of proof on the defence. An accused person will also bear the legal burden of proof of the statutory defence of diminished responsibility which is covered by section 2(2) Homicide Act 1957. In the cases of Lambert Ali and Jordan , the Court of Appeal held that imposing the legal burden of proof of proving diminished responsibility on the defence does not infringe Article 6 of the European Convention on Human Rights.
In relation to the express statutory exceptions to the general rule which is also known as ‘Reverse Onus Provisions’, i.e. one of the circumstances where an accused person bears the legal burden of proof in a criminal case, there is a possibility of these provisions falling foul of or being incompatible with Article 6(2) of the European Convention on Human Rights which provides that; ‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according law’. This presumption is the foundation of the general rule stated earlier that the prosecution bears the legal burden of proof to prove the defendant’s guilt of the offence beyond reasonable doubt . The problem that this creates is that the courts are faced with some difficulty in implementing a reverse onus because section 6 of the Human Rights Act 1998 provides that it is unlawful to act in a way that is incompatible with a Convention right.
It is however possible for a court faced with a problem of incompatibility to avoid it, if it can interpret the legislation so as to impose only an evidential burden and not a legal burden on the defendant .It may also be possible for a court to use its power under section 3 of the Human Rights Act 1998 to ‘read down’ the legal burden to an evidential burden.
In the case of R v Lambert , which involved an offence under the Misuse of Drugs Act 1971 and section 28(3) of the Act stated that the defendant had to prove on the balance of probabilities that he was not aware of the nature of what he possessed . The House of Lords in construing Article 6 ECHR in relation to the reverse onus provison held that Article 6 would now require that the Misuse of Drugs Act be read so...