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 Digest 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 Paul. Similar to its Romanic predecessor, Islamic law also holds the principle that the onus of proof is on the claimant, based on a hadith documented by Imam Nawawi. The collapse of Western Modern Empire gave way to the rise of feudalistic justice system. Within it, there was no concept of
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 facie incompatible with Art6 of the ECHR, and must be scrutinized with great care in light of the principle of proportionality.
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 France, the ECtHR stated that some reverse burdens of proof are ‘convention compliant.
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 Sheldrake their Lordships also concluded that when conducting an assessment of proportionality, it was necessary to balance society’s interest in the effective suppression of a social