Reverse burden of proof

[Nicholas Bohm]

It seems clear that the Home Office still maintain that the following does
not represent a reversal of the burden of proof:

49(2) In proceedings against any person for an offence under this section,=
 it
shall be a defence (subject to subsection (4)) for that person to show=97
(a) that the key was not in his possession after the giving of the notice
and before the time by which he was required to disclose it;

With the Lords well on their way towards this issue, I wanted to have
another shot at it here.

49(2) requires the accused, in order to escape, to prove, on the balance of
probabilities, that the key was not in his or her possession at the
relevant time.

The HO say this does not amount to reversing the burden of proof.  The only
basis that I can see for this contention is that it doesn't count as
"reversing" the burden unless you place on the accused exactly the same
burden as would normally fall on the prosecution (i.e. the burden of proof
beyond reasonable doubt).  "Reversing", the HO would presumably have it, is
a symmetric operation in which white becomes black and black becomes white,
and nothing less will do.

I have certainly never before come across the idea that "reversing the
burden of proof" means requiring the accused to prove his innocence beyond
reasonable doubt.  Such a requirement is never encountered in civilised
legal systems, I believe, and would certainly be a breach of the ECHR
requirement for maintenance of the presumption of innocence.  I have always
assumed that "reversing the burden of proof" meant no more than altering
the normal rule that the prosecution must prove the accused guilty, and
negative any relevant defences, and that the accused never had to prove
anything.

In my view the HO have invented their novel concept of "reversing the
burden of proof" from thin air in order to escape what they regard as an
unpleasant soundbite.

Reversing the burden of proof, in the sense of requiring the accused to
prove something on the balance of probabilities, is in fact neither unusual
nor necessarily unreasonable.

A typical example is requiring a driver charged with driving uninsured to
prove that he is insured.  This is reasonable both because it is easy for
the driver (all he has to do is produce a certificate, and duplicates of
lost ones are easy to get) and because it is difficult for the prosecution
to prove the relevant negative (must they call a responsible witness from
every potential insurer to testify that it has not insured the accused?).

The objection to 49(2) is that it is an UNREASONABLE reversal of the burden
of proof.  The accused who has deleted a key, or lost the piece of paper a
password was written on, or forgotten a password, cannot be expected to
have any evidence of these things beyond his own assertion.  The fact that
it may also be difficult for the prosecution to prove he has not deleted
the key, etc, is not by itself an adequate justification for putting even a
"balance of probabilities" burden on the accused.  There is simply no
reason why the normal rule should not apply, namely that if there is a
reasonable doubt, the accused must be given the benefit of it.  This rule
reflects the presumption of innocence, and any departure from it requires
cogent reasoned justification.  So far, this has been lacking.

I hope this explains the contentions plainly enough for Home Office readers
(and others who have been puzzled about the line taken by the HO).  If the
HO disagrees, I would like to know exacly what they disagree with; then we
might discover what this part of the argument is about.

I add one or two remarks about terminology.

If the accused must prove a defence beyond reasonable doubt, this is
sometimes called placing on him a "persuasive burden".

If the accused need do no more than raise a reasonable doubt, he carries
what is sometimes called an "evidential burden".  This sometimes puzzles
those who thought that there was no burden on the accused at all.  I hope
an example may explain the point.

Self-defence is a defence to a charge of murder.  If a bank robber kills a
cashier in the course of an armed robbery, the prosecution would not
normally set out to negative the existence of self-defence, and their
failure to prove that the killing was not done in self-defence would not by
itself entitle the accused to be acquitted.  The accused carries an
evidential burden, in the sense that he must introduce some evidence
(perhaps only his own assertion) that the killing was done in self-defence.
 If that evidence is sufficient to raise a reasonable doubt, then the
accused must be acquitted unless the prosecution prove beyond reasonable
doubt that the killing was not done in self-defence.

Regards,

Nicholas Bohm

Salkyns, Great Canfield,
Takeley, Bishop's Stortford CM22 6SX, UK

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