Regulatory Offences and Reverse Burdens: The ‘Licensing Approach’
| DOI | 10.1350/jcla.2007.71.3.259 |
| Date | 01 May 2007 |
| Published date | 01 May 2007 |
| Subject Matter | Article |
Burdens: The ‘Licensing
Approach’
Richard Glover*
Abstract
The recent case law on burdens of proof and the presumption of
innocence has been inconsistent and, at times, unclear. This article argues
that where legislation appears to create a reverse legal burden this may
generally be justified for regulatory offences, as defined by the ‘licensing
approach’ proposed here (rather than by reference to moral stigma and
blame). It will be suggested that there is existing authority for this ap-
proach and that it provides the potential for greater clarity and consistency
in the law.
The principal purpose of this article is to navigate a way through the
inconsistent recent case law on burdens of proof and the presumption of
innocence and to suggest an approach to ‘reverse burdens’ that will
provide greater clarity than the current position. The House of Lords has
considered the issue four times in the last six years but it seems unlikely
that the issue is finally resolved.1 There has been an abundance of case
law but little agreement or consistency—for example, apparently similar
statutory provisions have attracted different burdens.2
In the Divisional Court in Sheldrake3 Clarke LJ argued that the correct
approach to regulatory and ‘truly criminal’ offences ‘points the way’ in
determining whether it is necessary to impose a legal rather than an
evidential burden on a defendant. It will be argued that this is a useful
approach but that the distinction between these types of offences is also
accompanied by definitional problems, if drawn in the conventional
way. Accordingly, a definition of regulatory offences based on, and
developing, Cory J’s ‘licensing justification’ for differential treatment of
regulatory and ‘truly criminal’ offences in Wholesale Travel Group4 will be
* Senior Lecturer, University of Wolverhampton; e-mail R.Glover@wlv.ac.uk.
This article is based on a paper delivered to the Socio-Legal Studies Annual
Conference at the University of Stirling in March 2006. I am grateful to Antony
Duff and Steve Griffin for their helpful comments on earlier drafts. Responsibility
for the finished piece and for the ideas expressed in it is, of course, mine alone.
1 R v DPP, ex p. Kebilene [2000] AC 326; Lambert [2002] 2 AC 545; Johnstone [2003] 1
WLR 1736 and Sheldrake v DPP [2005] 1 AC 264. It is also notable that it was
stated clearly by the five-judge Court of Appeal in Attorney-General’s Reference (No. 1
of 2004) [2004] 2 Cr App R 424 that Johnstone was to be preferred to Lambert.
However, Lord Bingham in Sheldrake stated that the latter had not been
‘superseded or implicitly overruled’([2005] 1 AC 264 at [30]).
2 For example, in Attorney-General’s Reference (No. 1 of 2004) [2004] All ER (D) 318
the Court of Appeal held that s. 352 of the Insolvency Act 1986, when read
together with s. 357 of the same Act, breached Art. 6(2) of the European
Convention on Human Rights if it was interpreted as imposing a legal burden.
However, there was no breach if s. 352, when read with s. 353(1), was interpreted
as imposing a legal burden.
3 [2003] EWHC 273 (Admin), [2004] QB 487 at [80].
4 (1991) 84 DLR (4th) 161.
259
The Journal of Criminal Law
suggested as preferable. This ‘licensing approach’ to defining regulatory
offences is proposed as a novel method for resolving the problem of the
courts’ inconsistent approach to reverse legal burdens. It will be argued
that recent authority confirms this approach5 and that it is also inherent
in Lord Griffiths’ judgment in Hunt.6
First, it is important to clarify briefly what is meant by the burden of
proof and to examine recent arguments regarding the so-called ‘gra-
vamen’ of an offence and the presumption of innocence.
The burden of proof
The legal burden may be conveniently described as the burden of
persuasion7 or the burden of proving facts in issue, either to the prosecu-
tion standard ‘beyond reasonable doubt’,8 or the defence or civil stan-
dard ‘on the balance of probabilities’.9 The party bearing a legal burden
will lose if he fails to discharge the burden by persuading the tribunal
of fact to the relevant standard. The evidential burden is the burden of
production of evidence in support of a case and is discharged if either
the defence or the prosecution have ‘raised an arguable case’.10 Lord
Bingham provided a valuable definition in Sheldrake:11
An evidential burden is not a burden of proof. It is a burden of raising, on
the evidence in the case, an issue as to the matter in question fit for
consideration by the tribunal of fact.12
He continued that if a defendant bore and discharged the evidential
burden:
it is for the prosecutor to prove, beyond reasonable doubt, that that ground
of exoneration does not avail the defendant.13
The general rule in criminal law is that the prosecution bears the onus of
proving the elements of an offence, subject to common law and statut-
ory exceptions—the ‘golden thread’ rule established by Viscount Sankey
LC in Woolmington v DPP.14 This underlines the presumption of in-
nocence in English law and since the commencement of the Human
Rights Act 199815 the courts have been preoccupied with whether these
exceptions, whereby the defendant bears the onus, are compatible with
5 Johnstone [2003] 1 WLR 1736 and Davies v Health and Safety Executive [2002]
EWCA Crim 2949, [2003] ICR 586.
6 [1987] AC 352.
7 Glanville Williams described it as ‘the persuasive burden’: Criminal Law (The
General Part), 2nd edn (Stevens: London, 1961) 762, para. 247.
8 Miller v Minister of Pensions [1947] 2 All ER 372 at 373–4.
9 R v Carr-Briant [1943] KB 607 at 612.
10 Lang and Deadman [2002] EWCA Crim 298 at [31], per Pitchford J.
11 Sheldrake v DPP [2005] 1 AC 264.
12 Ibid. at [1].
13 Ibid.
14 [1935] AC 462 at 481–2. See the text accompanying n. 108 below for the full text
of the ‘golden thread’ passage.
15 And even before, as in R v DPP, ex p. Kebilene [2000] AC 326.
260
Regulatory Offences and Reverse Burdens: The ‘Licensing Approach’
the protection provided under Article 6(2)16 of the European Conven-
tion on Human Rights. In a number of cases before the courts the so-
called ‘gravamen’ of an offence has been an influential concept in
relation to reverse legal burdens17 and, accordingly, this is now con-
sidered in some detail.
The gravamen of an offence and the presumption of
innocence
On the face of it, Viscount Sankey’s exceptions to ‘the golden thread’
rule in Woolmington do not appear to conflict with the presumption of
innocence, as they are not concerned with the elements of an offence.
However, this has been doubted in the recent case law, which has been
influenced by an analysis of statutory provisions that examines the so-
called gravamen of an offence. Glanville Williams’s contribution to this
area seems to have been particularly important (despite not expressly
referring to the gravamen). He states that an offence may be interpreted
to include, as an essential element, a provision drafted as part of a
defence18 and argues that the distinction between offences and excep-
tions (or defences) lacks logic and is often ‘purely verbal, a matter of
convenience in expression’.19 That is, the gravamen or ‘essence’ of an
offence may consist of a combination of the offence and defence, as
provided for in the particular statute.20 Accordingly, it is necessary to
concentrate not on the form of a provision or on ‘technicalities and
niceties of language but rather on matters of substance’.21
16 ‘Everyone charged with a criminal offence shall be presumed innocent until
proved guilty according to law.’
17 Paul Roberts has suggested that the concept of the gravamen has been ‘swiftly
adopted’ since Lord Bingham referred to it in R v DPP, ex p. Kebilene [2000] AC 326
at 371: P. Roberts, ‘Strict Liability and the Presumption of Innocence: An Exposé
of Functionalist Assumptions’ in A. P. Simester (ed.), Appraising Strict Liability
(Oxford University Press: Oxford, 2005) 151 at 163. However, the concept’s
ancestry can be traced back further: see J. Stone, ‘Burden of Proof and the Judicial
Process: A Commentary on Joseph Constantine Steamship Ltd v. Imperial Smelting
Corporation Ltd’ (1944) 60 LQR 262. Others have also considered the doctrine,
including: J. C. Jeffries and P. B. Stephan, ‘Defenses, Presumptions, and Burden of
Proof in the Criminal Law’ (1979) 88 Yale LJ 1325; P. H. Robinson, ‘Criminal Law
Defenses: A Systematic Analysis’ (1982) 82 Colum L Rev 199 and A. Zuckerman,
‘The Third Exception to the Woolmington Rule’ (1976) 92 LQR 402.
18 Glanville Williams, ‘Offences and Defences’ (1982) 2 Legal Studies 233 and ‘The
Logic of Exceptions’ (1988) Camb LJ 261. There have been references to his
approach in a number of cases, including: R v DPP, ex p. Kebilene [2000] AC 326 at
371, per Lord Steyn and at 373, per Lord Cooke; Lambert [2002] 2 AC 545 at 574,
per Lord Steyn and L v DPP [2003] QB 137 at 146–8, per Pill LJ.
19 Glanville Williams, above n. 18, ‘Offences and Defences’ at 234.
20 A number of attempts have been made to define the gravamen. Roberts defined it
as ‘the underlying harm or wrong at which the offence is aimed’, above n. 17 at
163. Tadros and Tierney suggested ‘the conduct which it is the purpose of the
offence to control’: V. Tadros and S. Tierney, ‘The Presumption of Innocence and
the Human Rights Act 1998’ (2004) 67 MLR 402 at 410–13. Ian Dennis preferred
‘the rationale of the offence’: I. Dennis, ‘Reverse Onuses and the Presumption of
Innocence: In Search of Principle’ [2005] Crim LR 901 at 912.
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