There is a paradox at the heart of all criminal procedure in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become.’ State v Coetzee 1997 (3) SA 527 per Sachs J, p612.
Explain, whether, in your view, the protection of the presumption of innocence in current English law would satisfy the standard articulated by Sachs J.in the above quotation.
The scope of the question:
This is a wide ranging question which is asking you to assess whether the presumption of innocence has been eroded in English law. Has there been a departure from the principle that the burden of proof should be on the prosecution, in particular for the more serious offences as the quotation suggests? Note that the question is not asking you to rehearse all the arguments for and against having a flexible rather than an absolutist approach to the allocation of the burden of proof. It concentrates on the narrower question of whether English law satisfies the high importance Sachs J puts on ‘constitutional protections for the accused’. This is an area where you will shine if you have read some of the extensive academic literature on the topic. You would be well prepared for this question if you were familiar with the article by Dennis (2005 see Concentrate p 19) which sets out a typology of the law on shifting the burden. You need to adopt an analytical not a narrative approach.
You should demonstrate in your answer that you are aware that in a criminal trial there may be several elements to the burden and that although the prosecution may have the burden of proving the elements of the offence the courts have never adopted the position that the burden of some defences could not pass to the defendant. The question is whether it is justified to do so. You should also show that you are aware that the HRA has had a significant effect in this area. You could start with citing Article 6.2 of the European
Convention on Human Rights which reads ‘everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law’. This expresses the general principle that the prosecution should bear the burden of proof. However, in neither the Strasbourg nor the English jurisprudence has this been an absolute. A possible plan for your essay is:
Does English law allow the shifting of the burden of proof in serious cases?
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