The principle governing the phrase “the burden of proof” has been traced to Paulus, a Roman jurist, whilst in the second century A.D. it was also attributed to Akiba, a rabbinical teacher, and expressed by the Latin maxim “ei qui affirmat non ei qui negat incumbit probatio”: he who asserts a matter must prove it.In British Law the phrase “the burden of proof has two meanings:
- the risk of not persuading the jury and
- the duty of going forward with the evidence to satisfy the judge.
The latter meaning is frequently called the “presumption of innocence”, a presumption recognized as a cornerstone of English criminal law.
Although two exceptions to the “golden thread” or the so-called Woolmington principle were instantiated by Viscount Sankey LC in 1935, namely, insanity and express statutory exception (i.e. where a statute places the burden of proof on the defendant), a third exception has been added. The third or implied statutory exception applies where the burden of proof of a statutory defence is not expressly stated. In that case, the courts must look to the mischief at which the Act is aimed and the ease or difficulty that respective parties would encounter in discharging the burden.64
In the past seventy-five years since Woolmington the proliferation of express statutory exceptions have reached an alarming proportion. In the year 2000, at least twenty-nine statutory exceptions to the Woolmington principle were in force65. Furthermore, in a recent survey, it was found “that no fewer than forty per cent of offenses triable in the Crown Courts appear to violate the presumption [of innocence].”66 Indeed, there is some scepticism about the aptness of referring to the English criminal justice system as adversarial for several reasons. First, placing the burden on the defence reverses the burden of proof and renders the accused “a presumptive criminal”. Second, breaches of the principle of orality or spontaneity68 and adverse inferences from silence, which we shall discuss later, whittle down further the Woolmington principle, the evanescence of which lends credence to Professor Twining’s assertion that
Or perhaps there is a convergence of the adversarial system with the inquisitorial system or, more likely, a gradual disintegration of the adversarial system. The better view is that:
“Although some of the procedures in English criminal justice blur the line between the two, there is little doubt that the overall orientation is towards an adversarial model.”
It is in the light of this overall orientation towards the adversarial model that we must consider the impact of the HRA 1998 on the Terrorism Acts taking cognisance of the fact that the line between the inquisitorial system (the implementation of state policy to solve a “law and order” problem) and the adversarial system (a contest between identifiable parties) is blurred.