The court objected to the insistence on leaving the burden throughout a prosecution on the defendant on the ground that ‘the discharge of an evidential burden proves nothing – it merely raises an issue’. The House emphasised the special nature of the provisions, saying there was little doubt that the occasions upon which a statute will be construed as imposing a burden of proof upon a defendant outside the formulation of this case were likely to be exceedingly rare. Where it was not clear that a statute imposed a burden of proof on a defendant, the court should look to the mischief sought to be remedied by the Act.
Lord Ackner said that the phrase ‘statutory exception’ is not limited to express statutory exception but extends to the imposition by Parliament of such a burden of proof ‘either expressly or by necessary implication’ which included not only the necessary implication contained within section 101 of the Magistrates Courts Act 1980 (‘Where the defendant to an information . . relies for his defence on any exception, exemption, proviso, excuse or qualification . . the burden of proving the exception, exemption, proviso, excuse or qualification shall be on him . . ‘) but also to trials on indictment.
Lord Griffiths said that: ‘I would summarise the position thus far by saying that Woolmington [1935] AC 462 did not lay down a rule that the burden of proving a statutory defence only lay upon the defendant if the statute specifically so provided: that a statute can, on its true construction, place a burden of proof on the defendant although it does not do so expressly: that if a burden of proof is placed on the defendant it is the same burden whether the case be tried summarily or on indictment, namely, a burden that has to be discharged on the balance of probabilities.
The real difficulty in these cases lies in determining upon whom Parliament intended to place the burden of proof when the statute has not expressly so provided. It presents particularly difficult problems of construction when what might be regarded as a matter of defence appears in a clause creating the offence rather than in some subsequent proviso from which it may more readily be inferred that it was intended to provide for a separate defence which a defendant must set up and prove if he wishes to avail himself of it. ‘
Lord Griffiths then analysed the case of Nimmo saying: ‘The question before the House was whether the burden of proving that it was not reasonably practicable to make the working place safe lay upon the defendant or the plaintiff in a civil action. However, as the section also created a summary offence the same question would have arisen in a prosecution. In the event, the House divided three to two on the construction of the section, Lord Reid and Lord Wilberforce holding that the section required the plaintiff or prosecution to prove that it was reasonably practicable to make the working place safe, the majority, Lord Guest, Lord Upjohn and Lord Pearson, holding that if the plaintiff or prosecution proved that the working place was not safe it was for the defendant to excuse himself by proving that it was not reasonably practicable to make it safe. However, their Lordships were in agreement that if the linguistic construction of the statute did not clearly indicate upon whom the burden should lie the court should look to other considerations to determine the intention of Parliament such as the mischief at which the Act was aimed and practical considerations affecting the burden of proof and, in particular, the ease or difficulty that the respective parties would encounter in discharging the burden. I regard this last consideration as one of great importance for surely Parliament can never lightly be taken to have intended to impose an onerous duty on a defendant to prove his innocence in a criminal case, and a court should be very slow to draw any such inference from the language of a statute.’
Judges:
Lord Griffiths, Lord Ackner
Citations:
[1987] 1 AC 352, (1986) 84 Cr App R 163, [1986] 3 WLR 1115, [1987] AC 352, [1987] 1 All ER 1
Statutes:
Magistrates Courts Act 1980 101
Jurisdiction:
England and Wales
Citing:
Cited – Woolmington v Director of Public Prosecutions HL 23-May-1935
Golden Thread of British Justice – Proof of Intent
The appellant had been convicted of the murder of his wife. She had left him and returned to live with her mother. He went to the house. He said he intended to frighten her that he would kill himself if she did not return. He wired a shotgun to . .
Approved – Regina v Edwards 1975
On a charge of selling intoxicating liquor without a justices’ licence, it is not for the prosecutor to prove that the defendant had no licence but for the defendant to prove that he had. The burden of establishing a statutory exemption by way of a . .
Cited – Nimmo v Alexander Cowan and Sons Ltd HL 1967
The employer was prosecuted under the 1961 Act.
Held: the burden of proving that it was not reasonably practicable to make and keep a place of work safe rested upon the defendant employer. If an exception was to be established, it was for the . .
Cited by:
Cited – Lynch v Director of Public Prosecutions Admn 8-Nov-2001
The defendant challenged a conviction for having a locked bladed article in his possession in a public place, on the basis that it placed on him a burden of proof contrary to the convention.
Held: Salabiaku permits a reverse onus but requires . .
Cited – Regina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Cited – Clarke v Regina CACD 23-Apr-2008
The defendant appealed his conviction for providing immigration services when not qualified to do so. . .
Cited – Director of Public Prosecutions v Wright; Regina (Scott) v Taunton Deane Magistrates Court Admn 4-Feb-2009
The court heard appeals from rulings under the 2004 Act.
Held: In section 1, the hunting of a wild mammal did not include the search for an animal with a view to flushing it from cover. As to the exemptions, the operation of the 1980 Act and . .
Cited – Webster v Regina CACD 1-Dec-2010
The defendant appealed against his conviction under the 1889 Act for making a corrupt gift to a local government officer. He said that the 1916 Act placed an unfair burden on him to prove that the gift was not corruptly given.
Held: The appeal . .
Cited – Grundy and Co Excavations Ltd and Another, Regina (on the Application of) v Halton Division Magistrates Court Admn 24-Feb-2003
A reverse legal burden applied to defendants accused of an offence under section 17 of the Forestry Act 1967 which, in specified circumstances, created an absolute offence of felling a tree without a felling licence. Clarke LJ said: ‘It is thus . .
Cited – Regina v Alath Construction Ltd CACD 1990
The defendant company was accused of felling a tree in breach of a tree preservation order. Recorder Zucker QC had ruled held that the prosecution did not have to prove that the tree in question was not dying, or dead or dangerous or creating a . .
Lists of cited by and citing cases may be incomplete.
Criminal Evidence
Updated: 04 July 2022; Ref: scu.184849