Rethinking the relationship between reverse burdens and the presumption of innocence
| Published date | 01 April 2021 |
| Date | 01 April 2021 |
| DOI | http://doi.org/10.1177/13657127211002285 |
| Subject Matter | Articles |
Article
Rethinking the relationship
between reverse burdens
and the presumption
of innocence
Jackson Allen
The University of Edinburgh School of Law, Edinburgh, UK
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). Unfort unately, 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.
Keywords
burden of proof, criminal evidence, presumption of innocence, reverse burden, reverse onus
clause
Introduction
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
Corresponding author:
Jackson Allen, The University of Edinburgh School of Law, Old College, South Bridge, EH8 9YL, Edinburgh, UK.
E-mail: jackson.allen@ed.ac.uk
1. References in this article to ‘reverse burdens’ or ‘reverse burdens of proof’ should be taken to refer to a burden placed on the
accused ‘to prove some matter, the effect of which is that he is not guilty of the offence charged’. This definition is adopted from
Dennis (2004: 901).
The International Journalof
Evidence & Proof
2021, Vol. 25(2) 115–134
ªThe Author(s) 2021
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DOI: 10.1177/13657127211002285
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is prima facie a breach of the PoI because it introduces the possibility that the accused can be convicted
despite reasonable doubt as to their guilt. This incompatibility between reverse burdens and the PoI has
long troubled academic commentators, which has led to a considerable volume of literature on reverse
burdens’ relationship with the PoI (Ashworth and Blake, 1996; Dennis, 2005; Hamer, 2007; Picinali,
2014; Roberts, 1995, 2002a, 2002b, 2014; Stumer, 2010; Tadros and Tierney, 2004). This article will
argue that this approach requires considerable refinement if it is to be of any value in analysing the PoI-
compatibility of reverse burdens.
Below, I will defend the claim that existing PoI approaches are deficient because they fail to
distinguish between two different meanings of the phrase ‘presumption of innocence’. Specifically, it
will be argued that the distinction between ‘thick’ and ‘thin’ conceptions of the PoI has received
inadequate attention in existing case law and literature on reverse burdens in England & Wales and the
United States.
2
As a result, proponents of existing approaches to reverse burdens invariably resort to one
of two undesirable and untenable propositions: either they reduce the entire PoI to its thin form, or they
merge the thick and thin PoI into one entity.
The former is unhelpful for analysing reverse burdens because it presents at best a partial explanation
of how reverse burdens and the PoI can be reconciled. Meanwhile, any insights gained from the latter
approach will always be suspect, as they fail to take account of the analytical distinction between the
thick and thin PoI. All of this should worry anyone who wants to understand how reverse burdens can be
used in a way which is compatible with the PoI. This suggests that what is needed is a fresh approach to
the whole issue.
This article will remedy the deficiencies described above and offer a new approach to determining
how to allocate a persuasive burden to the accused in a way which is consonant with the PoI. To do so,
I will first explain and build upon the distinction between thick and thin PoI and argue that a more
complete account of reverse burdens must engage with the relatively abstract values of the thick PoI
without merely reducing to the thin PoI. This can be done, I will argue, by distilling more concrete
‘guiding principles’ from the values of the thick PoI. I will then take on this task, drawing on a range of
Anglo-American scholarship and case law. The result will be a set of three guiding principles which can
help lawmakers who are tasked with deciding whether or not a reverse burden can be imposed in a way
which is PoI-compatible.
To accomplish the goals set out above, this paper will proceed in six further sections. The first section
will set out in greater detail the reasoning behind rethinking how the PoI is used to analyse reverse
burdens. In this section, I will argue that the distinction between thin and thick forms of the PoI has not
been sufficiently appreciated in existing analyses of reverse burdens and then flesh out the nature of this
distinction and its impact. Next, I will give an overview of a new approach to reverse burdens, one which
takes account of a thicker notion of the PoI but derives from it specific principles. In the following three
sections, I will then describe and explain three ‘guiding principles’ for reverse burden compatibility,
based on case law and legal scholarship from Anglo-American law. Finally, I will conclude the article
and offer a vision of how the guiding principles might be operationalised.
The need to rethink the relationship between the PoI and reverse
burdens
The nature of the relationship between the PoI and reverse burdens is a contentious subject among
criminal lawyers. Some see the PoI as prohibiting reverse burdens only with respect to the formal
elements of an offence, with anything labelled as a defence being beyond the scope of the presumption’s
2. The jurisdictions of the US and England & Wales have been chosen because they have the best developed and most accessible
literature on reverse burdens and the PoI, and because they are indicative of the broader issues faced by common law systems
trying to reconcile reverse burdens and the PoI.
116 The International Journal of Evidence & Proof 25(2)
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