Statute (express)
These reverse burdens are controversial given the potential effect they may have on a defendant’s right to a fair trial. It is contended that such reverse burdens do not affect a defendant’s right to a fair trial as they affect only the requirement to prove the existence of a defence and not to disprove an element of the offence. The presumption of innocence remains intact by requiring the prosecution to prove that an offence took place; it is only fair that the defence bears a limited burden of proving the existence of a defence. In circumstances where the reverse burden appears to require the defendant to disprove an element of the offence, the courts have been quick to ‘read down’ the provision under s 3(1) of the HRA 1998, such that it merely imposes an evidential burden. This was evident in the case of R v Lambert [2001] UKHL 37 concerning a charge of possession of drugs.
In AG’s Reference (No 4 of 2002) [2005] 1 AC 264, the House of Lords held that in order for a reverse burden of proof to be legitimate, there must be compelling reasons justifying why it is fair and reasonable to deny the accused person the protected right under the ECHR. See Dennis, ‘Reverse Onuses and the Presumption of Innocence’ [2005] Crim LR 901 for a discussion of the lawfulness of such reverse burdens.
Standard of proof
In criminal cases, the standard of proof refers to the level or degree of proof that must be established. Two standards of proof exist, namely:
•the criminal standard: ‘beyond a reasonable doubt’; and
•the civil standard: ‘on the balance of probabilities’.
The criminal standard is expressed as a requirement to satisfy the burden of proof ‘beyond a reasonable doubt’. This standard is quite often expressed as ‘a’, ‘all’ or ‘any’ reasonable doubt and has been defined by Lord Denning in Miller v Minister of Pensions [1947] 2 All ER 372 as follows:
It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it admitted of fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt but nothing short of that will suffice.
This criminal standard applies in all criminal trials, whether before magistrates or on indictment before a jury, and if there is a reasonable doubt created by the evidence adduced either by the prosecution or by the defence, the prosecution has not made out its case and the burden is not satisfied. The criminal standard has also been expressed over the years in terms of ‘so that the jury are “sure”’ (R v Majid [2009] EWCA Crim 2563). In R v Folley [2013] EWCA Crim 396, the Court of Appeal expressed these two terms as synonymous with each other.
The civil standard is expressed as a requirement to satisfy the burden of proof ‘on the balance of probabilities’. Lord Denning offered a definition of this term, also in the Miller case, as: ‘If the evidence is such that the tribunal may say “we think it is more probable than not” the burden is discharged, but if the probabilities are equal it is not.’ In a similar vein, the Court of Appeal in R v Carr-Briant [1943] KB 607 reasoned that the burden of proof will be discharged where the arbiters of fact conclude that it is ‘more likely than not’ that the fact existed.
The correct ‘use’ of the standard of proof depends on the party who bears the particular burden of proof. This is detailed in Table 1.7.
Table 1.7The appropriate standard of proo f
| Where the burden is on the … | The standard is… |
| Prosecution | ‘Beyond a reasonable doubt’ |
| Defence | ‘On the balance of probabilities’ |
1.7.3 Sentencing
The law on sentencing in criminal cases is detailed and complex. Textbooks, both academic and practitioner, are available solely dealing with the topic of sentencing. This section is aimed at giving you a brief overview of sentencing powers, the rationale for sentencing and the procedure involved.
1.7.3.1 Purposes of sentencing
Sentencing is best described as the manner in which the court deals with an offender who has been convicted of an offence. As a starting point, the ‘purposes’ of sentencing can be identified by reference to s 142(1) of the CJA 2003, which provides:
Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing—
(a) the punishment of offenders,
(b) the reduction of crime (including its reduction by deterrence),
(c) the reform and rehabilitation of offenders,
(d) the protection of the public, and
(e) the making of reparation by offenders to persons affected by their offences.
It is worth noting at this stage that s 142(1) is applicable only to adult offenders. The law treats youth offenders in a different respect. By s 142A(3), the courts must take into account all of the purposes listed above with the exception of (b) ‘the reduction of crime’, and in addition must have regard to the ‘principal aim’ of the youth justice system, namely ‘to prevent offending and re-offending’ (Crime and Disorder Act 1998, s 37(1)). Furthermore, the welfare of the offender must be taken into account (Children and Young Persons Act 1933, s 44).
1.7.3.2 Sentencing Council
Established in April 2010 to replace and amalgamate the roles of the Sentencing Advisory Panel and the Sentencing Guidelines Council, the Sentencing Council for England and Wales is an independent body designed to create and issue guidelines on sentencing which courts must follow. See Part IV, Chapter 1 of the Coroners and Justice Act (CAJA) 2009.
As part of its role, the Council is responsible for:
•developing
