Judicial Defence Principles and the Presumption of Innocence

The Principle of Judicial Defence

The principle of judicial defence supports the idea that the judiciary should not interfere with Parliament. Lord Nicholls stated that the courts generally uphold Parliament's intention unless Parliament disregards Article 6(2) of the ECHR. In AG Reference, Lord Woolf ruled that one must always assume that, without a sufficiently good reason, Parliament would make an exception to the presumption of innocence.

However, in Sheldrake, Lord Bingham stated that there should be more consideration towards the presumption of innocence and the court's obligation under s.3 of the Human Rights Act, as opposed to merely reviewing a provision. Following this, Scarmuzza suggested that adhering strictly to Parliament's intention weakens the presumption of innocence, while others argue that Article 6(2) should prevail over parliamentary intention.

Shifting the Legal Burden

Lord Woolf, in AG of HK v Lee Kwong Kut, stated that if a defendant is asked to prove a defence, the shifting of the legal burden is acceptable. The House of Lords held unanimously in Sheldrake that a reversal of the legal burden onto the appellant was acceptable, as the circumstances required the appellant to prove something within their knowledge, which would clearly be easier for the defendant compared to the prosecution.

Conversely, Lord Steyn in R v Lambert stated that the duty of the prosecution would not be proportionate if the Act of Parliament never intended a reversal to ease the task of the prosecution. Williams noted that there is always a risk that the defence is perceived as a burden; hence, it is submitted that it is better to focus on moral worthiness.

Maximum Penalties and Legal Risk

Ashworth stated that maximum penalties are an indicator of the degree of a serious offence. In Lambert, Lord Steyn stated that shifting the legal burden will likely infringe Article 6(2) if the offence concerned carries maximum penalties. This aligns with reasons given by LJ Tuckey in Davies v Health & Safety Executive, where he stated that the absence of a risk of imprisonment can serve as an important factor in shifting the legal burden.

Ashworth notes that courts always favour the defendant if the offence carries a maximum penalty. This was observed in Sheldrake, where the legal burden was shifted onto a defendant accused of an offence that only carried a penalty of six months. However, in R v Johnstone, the legal burden was shifted to the defendant even though the offence carried a ten-year prison sentence.

Knowledge-Based Justification

Lord Hope in Kebeline explained that if the defence is within the defendant's specific knowledge, a reversal of the burden of proof will be justified.