There is an wealth of legislation which impose on the presumption of innocence and the courts have been trying to interpret the provisions of statutes to be as compatible with the Human Rights Act (1998)26 as possible. For example in R v. DPP ex parte Kebilene27 which involved a contravention of the Prevention of Terrorism Act (1989)28, the court was asked to consider whether the reverse burden was compatible with the Human Rights Act 199829.
Though the House of Lords did not rule on the aspect of compatibility the tone of human rights had been imbued into the English Legal System. The courts in order to respect the presumption of innocence tend to 'read down' the persuasive burden and take it as imposing only the evidential burden. As was the situation in R v. Lambert30 where the defendant was charged with contravening Section 5(3) of the Misuse of Drugs Act (1971) and his defence provided by Section 28(2) and (3) of the same Act imposed a burden of proof on him.
The House of Lords said Section 28(2) and (3) could by the application of Section 3(1) of the Human Rights Act (1998) be read compatibly with the presumption of innocence in Article 6(2) as imposing an evidential burden only on the accused. In that case Lord Hope in his obiter dicta spoke in the language of balancing two competing interests. One interest is for the protection of the community and the other for the preservation of fundamental rights of the accused. He even stated that statute can impose a legal burden on the accused in pursuit of a legitimate aim so long as the nature of the burden is proportionate to the aim to be achieved.
Lambert's appeal would have been successful had his trial taken place after the coming into force of the Human Rights Act (1998). The issue of proportionality is a way of mitigate the harshness that the burden of proof places on accused persons. The courts are always trying to strike a balance between the fundamental rights of an individual and the protection of the community. In that quest, judges are found doing weighing exercises and at times use such words as proportionate to cure the mischief.
In DPP v Sheldrake31 which was a consolidated appeal involved a contravention of the Road Traffic Act and the Terrorism Act (2000). The Court held in respect of the contravention of Section 5 of the Road Traffic Act that the imposition of the legal burden on the accused was disproportionate to the objectives pursued by the statute. In respect of Section 11(2) of the Terrorism Act 2000, the court held that the section should be read down so as to be imposing an evidential burden only on the defendant as it was disproportionate to its objective.
The courts are being innovative so that they respect the statute at the same time placing the burden on the prosecution thus respecting the presumption of innocence. It seems the courts will attach greater importance as to where the burden should lie in more serious cases than in minor cases. For example in R (on the application of Grundy & Co Excavations Ltd) v. Halton Division Magistrates Court32 which involved the felling of a tree without a licence and the defendant having to prove that he had a licence thus the burden was imposed on the defendant by the Forestry Act.
In that case practical considerations supported that the burden be borne by the defendant and it was justified by the fact that all the relevant facts were within the defendant's exclusive knowledge. The offence in question was a strict liability offence and the sentence was not a severe one which is proportionate to impose a burden on the defendant. It is common knowledge that parliament has legislated in a way which on closer scrutiny shows a complete and total disregard of the presumption of innocence.
The judges are thus found to be reading down the statutes to mitigate their harshness on accused persons. The judges respect the will of parliament and at the same time respecting the presumption of innocence. 1 Colin Tapper; Cross & Tapper on Evidence; 11th edn; Oxford University Press 2007 2 Adrian Keane; Modern Law of Evidence; 6th edn; Oxford University Press 2006 3 Adrian Keane; Modern Law of Evidence; 6th edn; Oxford University Press 2006 4 Colin Tapper; Cross & Tapper on Evidence; 11th edn; Oxford University Press 2007