Rethinking the relationship between reverse burdens and the presumption of innocence

Jackson Allen

doi:10.1177/13657127211002285

Abstract

Criminal lawyers regard burdens of proof placed on the accused with deep suspicion. Recently, this suspicion has spurred an interest in how to reconcile these so-called ‘reverse burdens’ with the rule that it is for the prosecution to prove guilt beyond a reasonable doubt in a criminal trial. Though views on this differ among commentators, all reach their conclusions by reference to the presumption of innocence (PoI). Unfortunately, such analysis frequently falls prey to a serious error. Namely, the existing literature fails to adequately distinguish the thin conception of the PoI (a trial rule) from a thick PoI (a general norm of the criminal law) or ignores the distinction entirely. In either case, failure to appreciate this distinction and attend to its consequences raises significant doubt that existing analyses of reverse burdens are sound. This article addresses this failure and offers a fresh approach to reconciling reverse burdens and the PoI.

Highlights

To date, the typical approach to analysing reverse burdens of proof has been to do so solely in terms of the presumption of innocence (PoI).1 The rationale typically offered for this is that every reverse burden
Guiding Principle 3 (GP3) gives guidance as to the approach to offences which impose a specific type of responsibility on the accused, and can be stated as follows: Imposing a reverse persuasive burden will not infringe the PoI if it attaches to a ‘secondary’ responsibility which stems from the regulatory duty
In the absence of some independent justification, rationales based on the allocation of the burden of proof in civil law do not apply to reverse burdens in the criminal context

Summary

Introduction

The typical approach to analysing reverse burdens of proof has been to do so solely in terms of the presumption of innocence (PoI).1 The rationale typically offered for this is that every reverse burden. The PoI is purely procedural, and requires only that the accused not be made to bear the persuasive burden on any element of an offence, as formally defined by the legislature or common law

Results

Conclusion