Key issues: • The structure of the criminal justice system • Blurring civil and criminal boundaries: ASBOs and similar • Proving guilt and innocence: burden and standard of proof • Adversarial and inquisitorial approaches • Recent trends in crime and criminal justice • Packer’s ‘due process’ and ‘crime control’ models • The human rights approach to criminal justice • The managerial approach to criminal justice • Where do victims ? t into these approaches? • Our approach: the ‘freedom’ model 1. 1 The nature and structure of ‘criminal justice’.
A book with a title as vague as ‘criminal justice’ should begin by saying what it is about. In thinking about criminal justice we all have our own images and assumptions. In this chapter we spell out our own assumptions. We also explain the theoretical framework within which we think criminal justice in England and Wales can most usefully be understood, criticised and reformed. We see the criminal justice system as a complex social institution1 which regulates potential, alleged and actual criminal 1 01_Sanders_Chap01. indd 1 See further Garland D, Punishment and Modern Society (Oxford: Clarendon Press, 1990) p 282.
6/24/2010 3:25:44 PM ? The aims and values of ‘criminal justice’ activity within limits designed to protect people from wrongful treatment and wrongful conviction. In the rst three editions of this book we focused mainly on police, prosecution and court powers and procedures in respect of alleged crime, resulting in either ‘diversion’ out of the system (eg, through the imposition of a police or prosecution caution) or court proceedings. But recent years have witnessed a recon guration of criminal law and criminal justice in favour of crime pre-emption through risk management techniques.
2 Underpinning this shi in orientation is the ideological view that public safety and the interests of victims should be given greater weight than civil liberties and the rights of suspects. It follows that while the determination of guilt and innocence is still hugely important, this must now be considered alongside the control of potential criminal activity through risk management devices such as dispersal and anti-social behaviour orders (see 1. 2. 2). In this section we introduce some of the key issues and tensions inherent in this recon guration of ‘criminal justice’ and also discuss the key terms ‘criminal’ and ‘justice’.
First we outline the structure and core terminology of the traditional English3 criminal process for readers unfamiliar with this jurisdiction, and explain how this relates to the organisation of this book. 1. 1. 1 The structure of the English criminal process 1. 1. 1. 1 Criminal process Anyone who thinks a crime may have been committed may (but need not)4 report this to a law enforcement body. As we will see in ch 7, there are many enforcement bodies. First, there are 43 ‘local’ police forces, roughly corresponding with local authority areas.
Second, there are also some national police bodies such as the Serious Organised Crime Agency and the British Transport Police. ird, many types of crime that would be called ‘administrative o ences’ in some other countries – eg health and safety violations, pollution, tax evasion – are dealt with by specialist agencies such as the Health and Safety Executive. In addition, a lot of ‘policing’ is done by private agencies, such as security rms, which, like ordinary witnesses and victims, generally call in the police if they detect suspected crimes and want further action taken.e police may seek to nd evidence of guilt through the use of powers such as stop-search (see ch 2), arrest (ch 3), detention and interrogation (chs 4–5) and a variety of other non-interrogative means including electronic surveillance (ch 6).
Enforcement bodies are not obliged 2 e extent to which this is merely a pendulum-like swing back to a risk management approach is debatable. See, for example, Bonner D, Executive Measures, Terrorism and National Security: Have the Rules of the Game Changed? (Aldershot: Ashgate, 2007). 3 By ‘English’ we actually refer to England and Wales.
Scotland is somewhat di erent, but increasingly less so as the two systems are converging. 4 W hile this is a general principle, there are exceptions. For example, s 117 of the Anti-terrorism, Crime and Security Act 2001 (inserting s 38B into the Terrorism Act 2000) created the o ence of failing to disclose to the police information thought to be of material assistance either in preventing an act of terrorism or in the apprehension, prosecution or conviction of a person for an o ence involving the instigation, preparation or commission of an act of terrorism.
01_Sanders_Chap01. indd 2 6/24/2010 3:25:44 PM ?.? The nature and structure of ‘criminal justice’ ? to prosecute even if they have overwhelming evidence of guilt. If the police do wish to prosecute, they pass the case on to the Crown Prosecution Service (CPS). e CPS decides whether to take matters further, and – if so – will prosecute, sometimes hiring specialist lawyers (barristers) for very serious cases. Specialised enforcement agencies (such as the Health and Safety Executive) generally prosecute their own cases.
Also, private policing bodies and individual victims may prosecute in their own right, though this is now unusual (see further ch 7). All prosecuted cases start in the lowest (magistrates’) courts – or, where the defendant is 18 or under, the youth courts (ch 9). In this lowest tier of the criminal courts, most cases are decided by a bench of three lay magistrates supported by a legal adviser, though increasingly professional judges (once referred to as stipendiary magistrates, but now known as District Judges) decide cases alone.
Very serious cases are quickly transferred out of the magistrates’ and youth courts to the Crown Court (ch 10). Here proceedings are more formal, and there is a professional judge (and, in contested cases, a jury). e division of business between the magistrates’ courts and the Crown Court is determined by the initial legal classi cation of an o ence as either ‘summary’ (triable in the magistrates’ courts only), ‘either-way’ (triable in either the magistrates’ courts or the Crown Court) or ‘triable on indictment only’ (triable only in the Crown Court).e latter two types of o ence are sometimes lumped together under the label ‘indictable o ences’.
Regardless of this classi cation, most prosecuted cases are uncontested, because the defendant pleads guilty (ch 8). People who are convicted of crimes may appeal to a higher court (ch 11): from the magistrates,/youth courts to the Crown Court (where a completely new hearing of the matter takes place) and/or the Court of Appeal; and from the Crown Court to the Court of Appeal. Exceptionally, a further appeal is sometimes allowed to the House of Lords (redesignated as the Supreme Court from 1 October 2009).
Appeals to courts other than the Crown Court are generally restricted to points of law, although fresh evidence is sometimes admitted. Once normal appeal rights are exhausted the nal avenue open to the convicted defendant is to persuade an administrative body, the Criminal Cases Review Commission (CCRC), that there is some fresh evidence or argument that, if put before an appeal court, would give rise to a real possibility of the conviction being overturned. If, following investigation, the CCRC accepts that there is such a possibility the case will be referred to an appellate court for determination.
Convictions can be ‘quashed’ by the Court of Appeal if a defendant is found to have been denied a fair trial, as in cases where the police fail to disclose evidence that undermined the prosecution case. Such malpractice, if adjudged severe enough, is said to render the conviction ‘unsafe’, and to amount to a ‘miscarriage of justice’, although such breaches of due process do not necessarily mean that the defendants concerned are factually innocent of the crime in question. 5 is means that there are two main.
5 See the discussion by Naughton M, Rethinking Miscarriages of Justice: Beyond the Tip of the Iceberg (Basingstoke: Palgrave Macmillan, 2007). 01_Sanders_Chap01. indd 3 6/24/2010 3:25:44 PM ? The aims and values of ‘criminal justice’ types of ‘wrongful conviction’ (which o en overlap). One is where the defendant (whether actually guilty or not) is convicted unfairly; in most of these cases, the lack of fair trial makes it impossible to judge whether the defendant is guilty or not. e other is where an innocent defendant is convicted (whether fairly or not).
e conviction through unfair means of those perceived or known to be actually innocent is the type of miscarriage of justice that gives rise to most public concern. Public concern can also be aroused by the acquittal of those perceived to be guilty, and some have argued that such acquittals amount to a di erent kind of miscarriage of justice. 6 e CPS is sometimes allowed to appeal against acquittals, especially when there is an alleged error of law, such as a refusal to let a jury hear prosecution evidence because the trial judge considers that the police lacked the legal power to secure that evidence. In rare cases, where new and compelling evidence of guilt emerges, entirely fresh proceedings can be brought against someone previously acquitted.
7 e decisions of the higher appeal courts apply to all future cases with similar circumstances. In this way, the ‘common law’ is in a continual process of evolution. 8 Another way in which common law is created in the criminal justice area is through challenges to the decisions of state agencies (‘judicial review’). For example, a victim of a crime can ask a court (usually the High Court, making this a civil, not a criminal, case) to rule on the lawfulness of a decision by the CPS not to prosecute.
Again, such decisions set ‘precedents’ that not only guide the decisions of courts, but also of enforcement agencies, therea er. Judicial review is one of a number of mechanisms that regulate the operation and policies of the criminal justice system. Others include government inspectorates and the Independent Police Complaints Commission (see ch 12). An element of criminal justice which is o en forgotten is criminal defence. Anyone arrested and taken to a police station is entitled to receive free legal advice from an accredited adviser (who is not necessarily a fully quali ed lawyer) either over the telephone or in person.
E state also provides funding for free legal representation in the magistrates’ courts and the Crown Court subject to a means test and a merits test. e former test means that middle class defendants (a relatively small proportion of the whole, leaving motoring o ences aside) generally pay for their own defence or represent themselves. e latter test means that rich and poor alike must pay for their own legal representation for the more mundane charges (such as speeding o ences or television licence evasion) that form the majority of cases in the magistrates’ courts.
Us a large proportion of defendants facing summary charges either represent themselves or rely on a duty solicitor present each day at court. In the Crown Court, by 6 en Prime Minister Tony Blair argued that: ‘It is perhaps the biggest miscarriage of justice in today’s system when the guilty walk away unpunished’ (cited and critiqued in Naughton, 2007: 21).
7 Criminal Justice Act 2003, part 10. 8 Britain has no criminal code. Legislation has been built up piecemeal, so courts have to ll in the gaps more than in ‘civil law’ systems, thus creating case law (o en known as ‘the common law’).
Moreover Britain has no constitution to guide how gaps should be lled. is also means that case law is subordinate to legislation. Even if legislation contravenes the European Convention on Human Rights, which was enshrined in the law in 1998 (see 1. 6) it is simply declared ‘incompatible’ rather than being rendered invalid. 01_Sanders_Chap01. indd 4 6/24/2010 3:25:45 PM ?.? The nature and structure of ‘criminal justice’ ? contrast, the overwhelming majority of defendants are relatively poor and face serious charges, and so are usually represented by solicitors and barristers at the state’s expense.
Issues relating to criminal defence are dealt with throughout this book. 1. 1. 1. 2 Civil and criminal boundary It is di cult to de ne the di erence between ‘civil’ and ‘criminal’ matters. In general the former are dealt with in civil courts (district courts, county courts and the High Court), and are for individuals to pursue rather than the state. Many ‘wrongs’, such as torts (eg negligence) and breach of contract, are civil matters. It is not possible to prosecute or seek the state punishment of the wrongdoer, but the wronged person (the plainti ) can sue with a view to obtaining a civil remedy, such as compensatory damages.
However the boundaries between the civil and criminal spheres are becoming increasingly blurred. First, some matters involving civil and criminal elements are most e ectively dealt with at one time. Domestic violence, in particular, may involve a crime (assault) which merits punishment but also an ongoing threat to safety necessitating a civil injunction requiring the aggressor to keep away from the family home. 9 e shi towards crime pre-emption encourages and reinforces this blending of civil and criminal justice.
Second, while criminal courts normally punish for crimes, leaving civil courts to compensate for loss,10 at the sentencing stage criminal courts frequently order defendants to compensate victims. However, victims are reliant upon the prosecution to seek this on their behalf and are not able to participate in criminal proceedings in the way that they can in a civil claim. ird, the actions (and inactions) of the criminal justice agencies such as the police and CPS can be subjected to scrutiny in the civil justice system through judicial review (as noted above), or an action for professional negligence or breach of the Human Rights Act 1998.
Finally, there are important new hybrid laws. Under the Proceeds of Crime Act 2002 (consolidated by the Serious Crime Act 2007) civil courts may allow enforcement agencies to seize or retain property that is more likely than not to have been obtained criminally without having to prove anyone guilty of a crime. 11 en there are ‘civil behavioural orders’ that embody civil evidential standards, but are dealt with in criminal courts. Over the last 12 years, around a dozen have been created (see table 1. 1).
12 For example, under the Crime and Disorder Act 1998, as extended by subsequent legislation, the police, local authorities, housing action trusts or registered social landlords can apply for an anti-social behaviour order (ASBO). Applications can be made to the magistrates’ court or as part of proceedings (such as for housing possession) in the 9 ere is pressure to design processes, and even special courts, to deal with overlapping civil and criminal proceedings in domestic violence cases. See further ch 9. 10 A lthough, to muddy the waters further, civil courts sometimes award punitive damages.
11 M illington T and Williams S, e Proceeds of Crime (Oxford: OUP, 2007). 12 is does not include other hybrid laws, such as civil protection orders for victims of domestic violence, that have criminal sanctions, and therefore criminal justice enforcement processes, for breach. 01_Sanders_Chap01. indd 5 6/24/2010 3:25:45 PM ? The aims and values of ‘criminal justice’ county court. 13 In either case the procedure involved is civil, not criminal. 14 A lthough this means that hearsay evidence is admissible,15 t he criminal – not civil – standard of proof is required (see 1. 2.2 below).
ASBOs are intended to prevent further ‘anti-social’ acts by the defendant, and can include prohibitions such as curfews, or commands to avoid certain places or individuals. 16 Doing anything in breach of the order (whether otherwise criminal or not), without reasonable excuse, is a criminal o ence carrying a penalty of up to ve years’ imprisonment. e ASBO thus acts like a personalised criminal law, and one that has real bite. 17 Over half of the 51 individuals who breached their ASBO and were taken to court in 2000 received a custodial sentence, including 13 juveniles.
18 By the end of December 2007 the total number of ASBOs imposed by courts had reached 14,975 of which 6,028 were known to have been imposed on those aged 10–17. 19 e blurring of civil and criminal law has thus facilitated a substantial expansion of formal state control of individuals. Further expansion has taken place through a reworking of the criminal law itself, as indicated below. 1. 1. 2 Criminal law and criminal behaviour What is de ned as criminal varies from society to society and across time.
Take England and Wales in the rst decade of the twenty- rst century. Its criminal law is generally thought of as proscribing people and corporate bodies from culpably (ie, intentionally or recklessly) acting in particularly harmful or socially undesirable ways. However, much of such behaviour is not criminalised (invasions of privacy, police abuse of suspects’ rights, and the wasteful misuse of the earth’s resources are possible examples) and many feel that much of what is criminalised should not be (examples might be smoking cannabis and swearing by football fans).
Moreover, the law criminalises many forms of behaviour where the actor has acted negligently or even, in the case of some strict liability o ences, where every care was taken to avoid harm. 13 Criminal courts may also make an order of their own volition following normal criminal proceedings for an alleged o ence which resulted in conviction, but only in addition to the sentence given for that o ence: Crime and Disorder Act 1998, s 1C, as inserted by s 64 of the Police Reform Act 2002.
14 R (on the application of McCann) v Manchester Crown Court  4 All ER 593. 15 e r ule against hearsay evidence in criminal proceedings is designed to prevent a party using evidence of an out-of-court statement for the purpose of proving the truth of any fact asserted in that statement. It ensures that direct evidence is given by those with personal knowledge of the relevant matters, thus allowing cross-examination to take place, demeanour to be assessed, and so forth. See Roberts P and Zuckerman A, Criminal Evidence (Oxford: OUP, 2004) ch 12.
16 Appellate courts are edging their way to requiring ABSOs to be clear, precise, targeted at the relevant anti-social behaviour, and proportionate to the risk to be guarded against. See Dean Boness & ors  EWCA Crim 2395. Despite this, less than 1% of all applications for ASBOs are rejected. 17 For a normative critique see Simester A and Von Hirsch A, ‘Regulating O ensive Conduct rough Two-Step Prohibitions’ in Simester A and Von Hirsch A (eds), Incivilities: Regulating O ensive Behaviour (Oxford: Hart, 2006).
18 Campbell S, A Review of Anti-social Behaviour Orders (Home O ce Research Study 236) (London: Home O ce, 2002) p 76. 19 (accessed 5 January 2010). 01_Sanders_Chap01. indd 6 6/24/2010 3:25:45 PM ?.? The nature and structure of ‘criminal justice’ ? Table 1. 1 E xamples of civil orders introduced to tackle criminal and sub-criminal behaviour20 Title of Order Behaviour to be Prevented Act Duration of Order Punishment for Breach Anti-Social Behaviour Order Anti-social behaviour Crime and Disorder Act 1998 Min – 2 years Max – inde? nitely.
Max – 5 years’ imprisonment Drinking Ban Orders Drinking related anti-social behaviour Violent Crime Reduction Act 2006 Min – 2 months Max – 2 years Max – Level Four Fine Forced Marriage Protection Orders Forced marriages Forced Marriage Civil Protection Act 2007 Max – inde? nitely Contempt of Court – 2 years max Non-Molestation Orders Domestic violence Domestic Violence, Crime and Victims Act 2004 Max – inde? nitely Max – 5 years’ imprisonment Parenting Orders Juvenile antisocial behaviour or criminality Crime and Disorder Act 1998 Max – 12 months Max – Level Three Fine Protection from Harassment Order Stalking and Protection from general Harassment Act harassing behaviour 1997.
Max – inde? nitely Max – 5 years’ imprisonment Risk of Sexual Harm Orders Sexual offending Sexual Offences Act 2003 Min – 2 years Max – inde? nitely Max – 5 years’ imprisonment Serious Crime Prevention Orders Serious crime Serious Crime Act 2007 Max – 5 years Max – 5 years’ imprisonment Sexual Offences Prevention Order Sexual offending Sexual Offences Act 2003 Min – 5 years.
Max – inde? nitely Max – 5 years’.imprisonment Terrorist Control Orders Terrorism Prevention of Terrorism Act 2005 12 months Max – 5 years’ imprisonment Violent Offender Orders Violent offending Criminal Justice Min – 2 years Max – 5 years’ and Immigration Max – 5 years imprisonment Act 2008 20 Brown K, ‘Charting the Expansion in the Number of Civil Orders to Tackle Criminal and Sub-Criminal Behaviour’ (unpublished). Many thanks to Kevin for permission to reproduce this table from his paper. 01_Sanders_Chap01. indd 7 6/24/2010 3:25:45 PM ? The aims and values of ‘criminal justice’
Decisions concerning which acts are to be criminalised are sometimes based on coherently expressed principles supported by an informed consensus; more o en they are the products of historical accident, political and administrative expedience, and shi ing, incoherent ideological notions of the appropriate reach of the criminal law. 21 us the recent lurch towards crime pre-emption is re ected in the ‘general tendency to expand the boundaries of criminal liability . . . with growing emphasis on inchoate liability and o ences of preparation far removed from the perpetration of harm’.
22 In the rst nine years of the Labour Government (1997 to 2006) over 3,000 new criminal o ences were created. While many are either trivial or brought old laws up to date, many others criminalised previously lawful behaviour. 23 Similar observations might be made about the way in which harmful (and potentially harmful) behaviours are in practice identi ed as criminal and responded to as such. For example, it may be that rowdy behaviour by unemployed scru y youths will be interpreted in quite a di erent way from that engaged in by university students following their nal examinations.
One person’s public disorder is another’s youthful high spirits. ese kinds of interpretative decisions are also in uenced by shi s in ideology. us, for example, feminist writers and activists have raised public awareness of domestic violence to the point where many more victims and police o cers now interpret what takes place within the ‘private’ sphere of the home as criminal. 24 And the Government’s focus on ‘anti-social behaviour’ has probably increased awareness, intolerance and formal reporting to the police, of people and acts previously seen as merely irritating or unconventional. 25.
Since criminal laws and perceptions of criminality are social constructs it is not surprising that much criminal justice activity re ects the interests of powerful groups and actors. ere are many more criminal laws and regulatory resources aimed at harmful behaviour by individuals (particularly children and young people) than at harmful corporate activity, for example. And, as we shall see in ch 7, bene ts fraud is prosecuted far more frequently than is tax fraud. Much criminal justice activity supports widely held social values while at the same time compounding wider social divisions and making no concessions for the social causes of crime.
26 For example, 21 See further Hillyard P, Pantazis C, Tombs S and Gordon D (eds), Beyond Criminology: Taking Harm Seriously (London: Pluto Press, 2004). 22 Virgo G, ‘Terrorism: Possession of Articles’ (2008) 67(2) CLJ 236. 23 Young R, ‘Street Policing a er PACE’ in Cape E and Young R (eds), Regulating Policing (Oxford: Hart, 2008). 24 See further, Wells C, ‘ e Impact of Feminist inking on Criminal Law and Justice: Contradiction, Complexity, Conviction and Connection’  Crim LR 503. 25 Tonry M, Punishment and Politics: Evidence and Emulation in the Making of English Crime Control Policy (Cullompton: Willan, 2004) 57.
26 us, measures to tackle ‘anti-social’ behaviour are o en targeted on the most disadvantaged communities and are about punitive responses rather than increased support (Brown A, ‘Anti-Social Behaviour, Crime Control and Social Control’ (2004) 43 Howard J Crim Justice 203; Ko mann L, ‘Holding Parents to Account: Tough on Children, Tough on the Causes of Children’ (2008) 35(1) JLS 113. See, more generally, Cook D, Criminal and Social Justice (London: Sage, 2006).
01_Sanders_Chap01. indd 8 6/24/2010 3:25:45 PM ?.? Guilt and innocence ? the laws protect poor people as well as wealthy people, but the prosecution and punishment of shopli ing has a greater impact on the poor than the wealthy, and upholds the value of private property whilst ignoring (or even reinforcing) poverty. In summary, the enforcement of the criminal law upholds social order for the benet of all, reinforces a hierarchical social order which bene ts some while disadvantaging others, and, in an unequal society, is bound to be morally problematic.
Consensus and con ict are thus likely to be interwoven in all attempts at ‘maintaining order’ and controlling crime. 1. 2 Guilt and innocence In a democracy, state punishment can be legitimately in icted only on those found guilty of crime. e criminal justice system insists on proof of guilt, rather than simply taking the word of the victim or the police. But proving guilt is not straightforward. If accused persons are truly criminal they will o en be concerned to hide the truth. So should we always disbelieve them?
Of course not – the police or prosecution witnesses may be mistaken, or they may be correct about some of the facts (for example, whether the accused punched someone) but simply not know other important details (for example, whether the punch was in self-defence). Occasionally prosecution witnesses themselves hide the truth, or even lie. us David Carrington-Jones spent nearly seven years in prison for a rape he always denied, even though he knew this would make early release on parole unlikely.
His conviction was quashed in 2008 when the Court of Appeal heard evidence that the complainant had a track-record of making unsubstantiated allegations of rape (against her step-father, brother, ance and a customer at work), two of which she later admitted were false. 27 It follows that when accused persons dispute guilt it is as likely that they are innocent as guilty, unless there is evidence pointing one way or the other. And it is rare for that evidence to prove conclusively that someone is guilty, in the way we (o en naively) expect scienti c and medical tests to provide conclusive truth.
e only way to completely prevent the conviction of the factually innocent would be to insist on incontrovertible proof, which would lead to very few (if any) convictions. is was recognised by the Court of Appeal in Ward (1993) 96 Cr App Rep 1 when it said that criminal justice: should be developed so as to reduce the risk of conviction of the innocent to an absolute minimum. At the same time we are very much alive to the fact that, although the avoidance of the conviction of the innocent must unquestionably be the primary consideration, the 27 e Mail on Sunday, 16 October 2008. e media frequently fuel a view that false allegations of rape are common. In fact there is no reliable evidence on the prevalence of false allegations, but they do undoubtedly occur.
See Rumney P, ‘False Allegations of Rape’ (2006) 65(1) CLJ 128. 01_Sanders_Chap01. indd 9 6/24/2010 3:25:46 PM ?? The aims and values of ‘criminal justice’ public interest would not be served by a multiplicity of rules which merely impede e ective law enforcement’ (at 52). is judgment, however, fudges two key issues.
No-one in their right mind would advocate a multiplicity of rules which ‘merely’ impeded e ective law enforcement. Rules protecting suspects from wrongful conviction, harsh treatment or invasions of privacy o en do impede ‘e ective’ law enforcement, but, in a democracy, this price is seen as worth paying in order to protect the liberty and dignity of the individual suspect. Second, does the Court of Appeal really mean that the risk of wrongful conviction of the innocent should be reduced to an ‘absolute minimum’? at vast numbers of guilty persons shall, if necessary to achieve this, go free?
Let us leave aside such rhetorical ourishes and ask to what extent is the acquittal of the innocent defendant a priority of English criminal justice in fact? e main theoretical safeguard o ered to suspects in the English system of criminal justice (and also under the European Convention on Human Rights) is the presumption of innocence. is presumption nds expression in the principle that guilt must be proved beyond reasonable doubt. ere are two aspects to this principle; rstly it places the burden of proof on the prosecution; and, secondly, it stipulates a high standard of proof.
1. 2. 1 The burden of proof Viscount Sankey LC described the burden of proof in Woolmington v DPP28 as the ‘golden thread’ which ran throughout criminal law. ‘No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. ’ In recognition of parliamentary supremacy over the courts, Lord Sankey noted, however, that this common law principle was subject to statutory exceptions.
ese are numerous; in the mid 1990s, Ashworth and Blake calculated that 219 out of the 540 indictable o ences in common use involved a shi ing from the prosecution to the defence of the burden of proof in relation to some elements of the o ence. For example there are many prosecutions under s 5 of the Public Order Act 1986 for using threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.
All the prosecution need prove is that defendants did as alleged (not that any alarm, etc was caused). Accused persons then escape liability only if they can prove on the balance of probabilities that their conduct was reasonable. Shi s in the burden of proof, sometimes referred to as a reverse onus, never require the defendant to prove something ‘beyond reasonable doubt’ but only, at most, ‘on the balance of probabilities’.
Nonetheless, this means that a court can convict in cases where the defendant’s story is as likely to be true as false. is might appear to be contrary to the European Convention on Human Rig