Burdens of Proof and the Presumption of Innocence

Abstract

Abstract This chapter situates orthodox common law analysis of burdens of proof and presumptions within the broader conceptual framework of ‘presumption of innocence’ (PoI), an expanded normative framing directly rooted in constitutional and human rights principles. One vital conceptual refinement is that PoI is not a ‘presumption’ in the common lawyer’s traditional evidentiary sense. At common law, Woolmington established the burden and standard of proof as fundamental constitutional principles. ECHR Article 6(2) introduced a more capacious (albeit still ‘procedural’) conception of PoI into English criminal jurisprudence, via HRA 1998, s.2. Burdens of proof and evidentiary presumptions can both be conceptualized as techniques for allocating the risk of non-persuasion between litigants. Any party failing to discharge an onus of proof loses on that issue (or, in relation to ultimate probanda, loses the case as a whole). The political morality of PoI (incorporating Woolmington) is institutionalized through a steeply asymmetric proof structure, requiring the prosecution to establish guilt to a very high standard (traditionally, ‘beyond reasonable doubt’, BRD). English law’s ongoing commitment to PoI is explored through doctrinal developments in jury directions on the standard of proof (‘being sure’ has replaced BRD) and the three recognized ‘exceptions to Woolmington’, where the accused is required to bear the burden of proof. Hunt conceded the possibility of implied burdens on the defence, but cautioned against inferring them. Such ‘reverse onus clauses’ must now be tested for compatibility with HRA 1998, precipitating a large, complex, and contentious jurisprudence (including five visits to the House of Lords). Whether express or implied, a statutory reverse onus clause might be ‘read down’, pursuant to HRA 1998 s.3, to a merely evidential burden of production if it would otherwise be incompatible with ECHR Article 6(2). Leading authorities, including Sheldrake, prescribe detailed criteria for assessing compatibility.