Statutory Exceptions, Burdens of Proof and the Human Rights Act 1998

AuthorGavin Dingwall
Publication Date01 May 2002
traditional approach in England before Morgan,
which exemplified possibility
regulation rather that probability regulation, at least when adjudicating a challenged
transaction inter partes.
Lord Scarman’s ‘inexplicability’ test thus seems too high,
but it was settled quite without reference to the fiduciary nature of the regulation
involved in relational undue influence cases. Lord Browne-Wilkinson may have
suspected as much by his reservation in Pitt, but it was a reservation virtually
ignored in the House’s approach to the suspicion of abuse criterion in Etridge.
Certainly, Etridge cannot be regarded as the last word on the subject. All that it can
safely be regarded as is further confirmation of the House’s lack of conceptual focus
that has, since Morgan, epitomised its approach to the law of undue influence.
Statutory Exceptions, Burdens of Proof and the Human
Rights Act 1998
Gavin Dingwall*
Despite the so-called ‘presumption of innocence’, a defendant who wishes to raise
certain defences to a criminal charge often finds that a statute expressly states that
the legal burden of proof rests on him to prove that issue on the balance of
Until recently
nobody had successfully challenged parliament’s
constitutional right to determine whether it was appropriate for the defendant in
effect to prove his innocence as the leading case of Woolmington vDirector of
Public Prosecutions
stated quite categorically that ‘statutory exceptions’ were to
be regarded as an exception to the general rule that the prosecution have the legal
burden of proving all of the constituent elements of the offence.
concern had focused instead on the fact that a defendant might obtain a legal
burden by implication if he wished to raise a particular defence;
a prospect which
88 As exemplified especially in Johnson vButtress, n 15 above, and in Lloyd’s Bank vBundy,n40
above per Sir Eric Sachs.
89 Obviously, charging a third party with another’s undue influence will involve probability regulation
rather than possibility regulation. There must be actual grounds for the third party to suspect an actual
or likely conflictual use of influence as between the parties to the special relationship of influence.
* Department of Law, University of Wales, Aberystwyth. I am grateful to my colleagues Neil Kibble and
Diane Rowland for discussing many of the issues raised in this paper and to the anonymous reviewers for
their helpful comments on an earlier draft. The usual disclaimer applies.
1 Alongside a considerable number of summary offences, there are a number of statutory offences
triable in the Crown Court which place a legal burden of proof on the defendant which, if he is unable
to discharge, would lead to a mandatory presumption of guilt. See the list contained in Director of
Public Prosecutions, ex p Kebilene and others [2000] 2 AC 326.
2 See Director of Public Prosecutions, ex p Kebilene and others [2000] 2 AC 326.
3 [1935] AC 462.
4 For the historical background to Woolmington see A. Stein, ‘From Blackstone to Woolmington: On
the Development of a Legal Doctrine’ (1993) 14 Legal History 14.
5 See most notably Edwards [1974] 3 WLR 285 and Hunt [1987] 1 AC 352; for the debate surrounding
this area see F. Bennion, ‘Statutory Exceptions: A Third Knot in the Golden Thread?’ [1988] CrimLR
31. A useful general analysis of the status of presumptions of innocence in the United Kingdom and
Ireland since Woolmington is provided in J. E. Stannard, ‘A Presumption and Four Burdens’ (2000)
51(4) Northern Ireland Legal Quarterly 560. A detailed analysis of the Scots law position can be
found in S. Summers, ‘Presumption of Innocence’ [2001] 1 Juridical Review 37.
450 ßThe Modern Law Review Limited 2002
The Modern Law Review [Vol. 65

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