The Police and the Law
| Published date | 01 October 1935 |
| Date | 01 October 1935 |
| DOI | http://doi.org/10.1177/0032258X3500800403 |
| Subject Matter | Article |
The Police and the Law
The Burden
of
Proof in Murder Cases
THE
judgment delivered by the Lord Chancellor in the
House of Lords in Woolmington v, Director
of
Public
Prosecutions (mentioned briefly in the last issue of this
JOURNAL and now reported in
51
Times
L.R.
446) is of general
interest quite apart from the actual decision reached. It is
astriking illustration of the vitality of the basic principles
of our common law. No one who knows anything at all
about the criminal law of England is unaware that the onus
is on the prosecution to prove that the accused is guilty
and that
it
is not for the prisoner to establish his innocence ;
and this principle is generally understood as meaning that,
subject to certain special statutory exceptions and cases
where insanity is the defence, no burden of proof is ever
put
on the accused.
It
is in relation to this principle that
our law differs fundamentally from the law which prevails
in most continental States; and we make rather astrong
point of this difference. Unfortunately, as a result of a
sentence written by a very learned writer of the eighteenth
century-Sir
Michael Foster, who was also a distinguished
judge-and
of a judicial decision in 1837 (R. v. Greenacre,
8C.
&J
P.35), there has for generations been on record in
the textbooks a proposition which suggests that in cases of
homicide there was an exception to this principle of onus
of proof. This exception is based on the
proposition-now
held to be incorrect in the sense in which it has been under-
stood-that
all homicide is presumed to be malicious and
murder unless the contrary appears from circumstances of
alleviation, excuse, or justification; and (as stated in Halsbury.
Laws
of
England, znd edition, vol. 9, p. 426), " when it has
been proved that one person's death has been caused by
another there is a prima facie presumption of law that the
394
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