The Impact of the Human Rights Act 1998 on the Law of Evidence in the United Kingdom

Essay, 2013

13 Pages, Grade: 60

Kacper Zajac (Author)













The purpose of this essay is to critically examine the impact of the Human Rights Act 1998 on the operation of the burden of proof and on the area of law concerned with the exclusion of evidence obtained by illegal or improper means.


The presumption of innocence is a fundamental principle in a democratic society.[1] According to the Human Rights Commission[2] the principle means that the burden of proof rests on the prosecution and it is not the defendant that has to convince the court of his innocence.[3] Unfortunately, in relation to the United Kingdom, Ashworth and Blake observed that ‘ no fewer than 40% of the offences triable in the Crown Court appear to violate the presumption.’[4]

The burden of proof might be lighter or heavier:[5] an evidential burden is to merely raise an issue and it is discharged accordingly[6] whereas a legal burden is ‘ the obligation imposed on a party by a rule of law to prove a fact in issue.’[7] The standard of proof in respect of the legal burden varies depending on who carries it. Accordingly, the prosecution would discharge the burden only if the fact is proved beyond a reasonable doubt[8] whereas the defendant needs only to demonstrate it on the balance of probabilities.[9] Although the standard carried by the defendant is lower, he or she might still be convicted even though the jury has a reasonable doubt as to the guilt.[10]

According to the case of Woolmington v DPP, apart from the defence of insanity and any statutory exceptions, it is the prosecution that must prove the defendant's guilt.[11] Under the M'Naghten Rules[12] every man is presumed to be sane, therefore for the defence of insanity to be successful, the defendant must discharge the legal burden.[13] Express statutory exceptions include legislation such as the Homicide Act,[14] Prevention of Crime Act,[15] Criminal Damage Act[16] or Prevention of Corruption Act.[17] Furthermore, the Magistrates' Court Act 1980[18] creates implied exceptions to the Woolmington principle in respect of the offences tried summarily.[19] This position was extended under common law in the case of R v Edwards[20] to cover relevant indictable offences as well.[21] Consequently, by approving the imposition of the legal burden of proof on the defendant, the Court created an extensive list of exceptions substantially undermining the presumption of innocence as a whole.[22]


Since the introduction of the Human Rights Act 1998 (HRA), such exceptions are open to challenge as incompatible with the presumption of innocence under the article 6(2)[23] of the European Convention on Human Rights (ECHR).[24] However, it must be remembered that the ‘ parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights’ [25] Although the Court may issue a declaration of incompatibility in relation to such a statute,[26] it does not affect its validity.[27] What the Court should do in the first place is to adopt, as far as possible, the interpretation that would be compatible with the Convention.[28] In doing so it should take into account the relevant jurisprudence of the European Court of Human Rights (ECtHR).[29] Accordingly, in the case of Salabiaku v France, the ECtHR ruled that a reverse onus of proof itself did not collide with Article 6(2) as long as it is confined ‘ within reasonable limits.’[30]


In the leading case on the subject, R v Lambert,[31] the House of Lords confirmed that since ‘ the art 6(2) right is not absolute and unqualified, the test to be applied is whether the modification or limitation of that right pursues a legitimate aim and whether it satisfies the principle of proportionality.’[32] Therefore, by virtue of the HRA,[33] the section 28 of the Misuse of Drugs Act 1971[34] has been ‘read down’ so that instead of the legal burden it would impose on the defendant merely the evidential burden.[35] Had not the HRA been introduced, the Act would have continued to place the legal burden of proof on the defendant.

Unlike prior to the HRA, the legal burden must satisfy the Lambert test, otherwise it would be either read down or declared to be incompatible with the Convention.[36] Accordingly, in the case of DPP v Wright[37] it was held that the relevant provision of the Hunting Act[38] reversing the burden of proof must be read down so that the burden is merely evidential.[39] Similar approach was taken in relation to gifts made prior to insolvency[40] under the Insolvency Act,[41] disclosure of information[42] under the Official Secrets Act[43] and others.[44]

The impact of the HRA upon the burden of proof is well illustrated in the case of R v DPP ex parte Kebilene.[45] Since the majority of Lords suggested that the legal burden placed on the defendant by the Prevention of Terrorism Act[46] might be in breach of Article 6(2), Parliament responded by enacting the Terrorism Act[47] which imposes only the evidential burden.[48]


However, ‘ not all apparently persuasive burdens have to be “read down” to be evidential burdens.’ [49] The burden might be either evidential or legal as long as it satisfies the test.[50] In the case of L v DPP,[51] the Court held that there were ‘good reasons’[52] for the Criminal Justice Act 1981[53] to impose the legal burden of proof on the defendant thereby the Act achieved a fair balance between the interest of the community and the protection of the fundamental rights of the individual.[54] Likewise, no infringement of Article 6(2) was found in regard to the intoxication-related offences[55] under the Road Traffic Offenders Act[56] and Road Traffic Act,[57] use of trademarks[58] under the Trade Marks Act,[59] and others.[60]


[1] Ashworth A . ‘Four threats to the presumption of innocence’ E. & P. 2006, 10(4), 241-279 at 249

[2] Under the International Covenant on Civil and Political Rights, article 14(2)

[3] HRC, General Comment 13, Article 14 (21st session, 1974), Compilation of the General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev. 1 at 14 (1994), § 7 cited in Trechsel S. ‘ Human Rights in Criminal Proceedings’ (Oxford University Press, Oxford 2005) at 167

[4] Ashworth and Blake 'The Presumption of Innocence in English Criminal Law ' [1996] Crim LR 306 cited in R v Lambert [2001] 3 All ER 577 at [32]

[5] Hill v Baxter [1958] 1 All ER 193 at 196 cited in Uglow S. ‘ Evidence, Text and Materials’ (Sweet and Maxwell Limited, London 2006) at 80

[6] R v Hunt [1987] AC 352 at 385

[7] Keane A. ‘ The Modern Law of Evidence’ (Oxford University Press, Oxford 2010) at 77

[8] Woolmington v Director of Public Prosecution [1935] AC 462

[9] R v Carr-Briant [1943] KB 607 [1943] 2 All ER 156

[10] R v Johnstone [2003] 3 All ER 884 at [50]

[11] op. cit. n 8 at 481

[12] Daniel M'Naghten's Case [1843] 8 ER 718

[13] Confirmed by the Commission as compatible with the article 6(2) in H v United Kingdom Appn No 15023/89, 4 April 1990 (cited in Sheldrake v Director of Public Prosecutions; Attorney General's Reference (No 4 of 2002) [2005] 1 All ER 237 at [14])

[14] Homicide Act 1957, s2(2)

[15] Prevention of Crime Act 1953, s1(1)

[16] Criminal Damage Act 1971, s1(1)

[17] Prevention of Corruption Act 1916, s2

[18] Magistrates' Court Act 1980, s101

[19] Ibid. s2(1)

[20] R v Edwards [1974] 2 All ER 1085

[21] Confirmed in R v Hunt [1987] AC 352

[22] Roberts P, Zuckerman A. ‘ Criminal Evidence’ (Oxford University Press, Oxford 2004) at 377

[23] ‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.’

[24] Keane A. ‘ The Modern Law of Evidence’ (Oxford University Press, Oxford 2010) at 81

[25] R v Secretary of State for the Home Department, ex parte Simms and Another [2000] 2 AC 115 at 131

[26] Human Rights Act 1998, s4(2)

[27] Ibid. s4(6)

[28] Ibid. s3

[29] Ibid. s2(1)

[30] Salabiaku v France [1988] 13 EHRR 379 at [28]

[31] R v Lambert [2001] 3 All ER 577

[32] Ibid. at [88]

[33] Human Rights Act 1998, s3

[34] ‘Subject to subsection (3) below, in any proceedings for an offence to which this section applies it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged.’

[35] To impose the legal burden would be disproportionate thereby incompatible with the Convention right to the presumption of innocence.

[36] Might be justified: ‘where the matter to be considered is within the defendant’s knowledge, where the main offence has otherwise been proved, and where there is a strong public interest in discouraging anti-social conduct’ (cited in Hoffman D., Rowe J., ‘ Human Rights in the UK: An Introduction to the Human Rights Act 1998’ (Pearson Education Limited, Edinburgh 2010) at 219)

[37] Director of Public Prosecutions v Wright [2009] 3 All ER 726

[38] Hunting Act 2004, s2

[39] Keane A. ‘ The Modern Law of Evidence’ (Oxford University Press, Oxford 2010) at 90-1

[40] Attorney General's Reference (No 1 of 2004) R v Edwards and other appeals [2004] All ER (D) 318

[41] Insolvency Act 1986, s357

[42] R v Keogh [2007] All ER (D) 105

[43] Official Secrets Act 1989, s2

[44] Hoffman D., Rowe J., ‘ Human Rights in the UK: An Introduction to the Human Rights Act 1998’ (Pearson Education Limited, Edinburgh 2010) at 220

[45] R v DPP, ex p Kebilene [2000] 2 AC 326, [1999] 4 All ER 801

[46] Prevention of Terrorism (Temporary Provisions) Act 1989, s16A

[47] Terrorism Act 2000, s118(2)

[48] Had not the HRA been in force, the Parliament would have probably not reconsider the matter.

[49] R v Drummond [2002] EWCA Crim 527 at [30]

[50] However, it seems that an evidential burden of proof is more likely to pass the test.

[51] L v Director of Public Prosecutions [2001] EWHC Admin 882 [2003] QB 137

[52] ‘there was a strong public interest in bladed articles not being carried in public without good reason; that the defendant was only being required to prove something within his own knowledge and was entitled under article 6 to expect the court to scrutinise all the evidence with a view to deciding if a good reason existed’

[53] Criminal Justice Act 1981, s139(4)

[54] Per Lord Hope in Brown v Stott [2001] 2 WLR 817 at 852 cited in L v Director of Public Prosecutions [2001] EWHC Admin 882 [2003] QB 137 at [13]

[55] R v Drummond [2002] EWCA Crim 527

[56] Road Traffic Offenders Act 1988, s15

[57] Road Traffic Act 1988, s5(2)

[58] R v S [2003] 1 Cr App R 602 CA

[59] Trade Marks Act 1994, s 92(1)

[60] Roberts P, Zuckerman A. ‘ Criminal Evidence’ (Oxford University Press, Oxford 2004) at 383

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The Impact of the Human Rights Act 1998 on the Law of Evidence in the United Kingdom
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Kacper Zajac (Author), 2013, The Impact of the Human Rights Act 1998 on the Law of Evidence in the United Kingdom, Munich, GRIN Verlag,


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