burden of proof

2
Burden and standard of proof; presumptions
Introduction
The allocation of the burden of proof in both civil and criminal trials turns on the decision as to who should bear the risk of losing the case. That allocation is decided by common law and by statute. In criminal trials the ‘presumption of innocence’ means that the burden of proof will be on the prosecution, unless this is reversed by some express or implied statutory provision. Here the law of evidence safeguards what in some other jurisdictions is a matter of individual civil rights backed up by a tenet of the constitution.
In answering questions in this area, you must understand the difference between the legal and the evidential burden and the occasions where they are separately allocated. It is helpful to see the evidential burden primarily as an aspect of the sensible proposition that there must be a degree of evidence on asserted issues before they can be a matter for the trial. It is for the judge then to decide whether the assertion can go before the jury. Thus the prosecution has to adduce enough evidence of the guilt of the accused for the judge to be satisfied that there is a case to answer. In other words, it has the evidential burden. Here, the prosecution also has the legal burden on the same matter and this is the normal state of affairs directed at convincing the jury of the defendant’s guilt beyond reasonable doubt (the criminal standard). The tricky areas are those where there is a divorce of the legal and evidential burden. These arise primarily in situations where the prosecution cannot be expected to put up evidence to anticipate every specific defence the accused may present. Thus in order to plead self-defence the accused will have to provide some evidence to enable the court to consider the matter.
The legal burden stays with the prosecution.
It is somewhat misleading to refer to a single burden of proof in a trial. The burden may relate to several different specific facts in issue. Burdens may be allocated

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between the parties in relation to these different facts in issue. This is particularly so in civil cases but may also occur in criminal cases. In civil cases the principle ‘He who asserts must prove’ means that the burden may shift according to who is trying to establish a relevant fact in issue. In criminal cases the presumption of innocence means that as a general principle the burden of proving actus reus and mens rea lies on the prosecution. Statutes may impliedly or expressly shift that burden, however. The enactment of the Human Rights Act 1998 has affected the allocation of the burden of proof in criminal cases. It is arguable that to place the burden on the accused violates the presumption of innocence in art. 6(2) of the European Convention on
Human Rights. The Strasbourg case-law suggests, however, that placing the burden on the prosecution is not an absolute rule. For example, in Salabiaku v France
(1988) 13 EHRR 379 the European Court of Human Rights found that there was no principled objection to the imposition of strict liability in criminal cases. However, it stressed that this should be applied ‘within reasonable limits’ meaning that the test of proportionality will apply. One consideration would be the seriousness of the offence in question. The House of Lords and the Court of Appeal have considered the impact of the Human Rights Act on the allocation of the burden of proof in several cases: see
Table 1, page 6.
The standard of proof is a less complex topic. In this area, as in all areas of evidence, you must be careful to apply the appropriate rules according to whether the case is a civil or a criminal one. You will be unlikely to have questions which mix the two. In problem questions you may be asked to comment on the possible flaws in a judge’s summing-up. You will then have to see if the legal burden has been allocated according to law and if the appropriate standard has been applied. Other questions may ask you to advise on burden and standard and here it is probably helpful to dissect the facts in issue into their various components and decide how the legal and evidential burdens should be distributed.
Presumptions can obviate the need for proof, or make the process easier; on occasions they are irrebuttable. The word presumption has been used in various ways.
Evidence courses nowadays usually concentrate on what are known as ‘rebuttable presumptions of law’, i.e., those of death, legitimacy, marriage and here we deal only with them. Other presumptions, including ‘irrebuttable presumptions of law’, such as the age of criminal liability, belong more properly to the substantive law. Finally
‘presumptions of fact’ are really aspects of logical reasoning. Since questions on presumptions are not commonplace in Evidence examinations, only one is included here. A second is available on the website.
Example of Allocation of Burden of Proof in a Criminal Case

Joan is accused of growing an illegal drug in a window box at her flat, contrary to ss. 5 and 28 of the Misuse of Drugs Act 1971. She pleads not guilty, arguing that she thought the plants she was growing were tomato plants since they looked similar to a picture she had in a book Growing Tomatoes in Small Places. See Table 2, page 7.

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Example of Allocation of Burden of Proof in a Civil Case

Cowboys Ltd are engaged to transport a racehorse, Diana, belonging to Sam Sloane.
The contract specifies that Cowboys will not be liable for damage caused to Diana in transit if Sloane has not organised to have her given a clean bill of health by a veterinary surgeon before the journey. Diana dies of a heart attack during the journey.
Sloane is suing Cowboys Ltd for breach of contract. Cowboys rely on the exclusion clause. See Table 3 below.
Table 1 The Human Rights Act and the burden of proof
Case

Court

Statute

Outcome

R v DPP ex parte
Kebilene [2000]
2 AC 326, HL

HL

Prevention of Terrorism (Temporary Provisions) Act 1989 ss. 16A and 16B

No conclusion possible since HRA not in force but reverse legal burden might have to be interpreted as only an evidential burden1

R v Lambert, Ali and
Jordan [2002]
2 AC 545, HL

HL

(a) Misuse of Drugs Act
1971 s. 28(3)
(b) Homicide Act 1957
s. 2

(a) Evidential burden only on accused
(b) Legal burden on accused2 R v Chargot Ltd
[2009] 1 WLR 1

HL

Health and Safety at
Work Act 1974 s. 40

Legal burden on defendant to prove ‘it was not reasonably practicable to do more than was in fact done’3

R v Johnstone [2003]
1 WLR 1736

HL

Trade Marks Act 1994
s. 92 (1)(b) and s. 92(5)

Legal burden on accused Attorney General’s
Reference (No. 1 of 2004) [2004]
1 WLR 2111

CA

(a) Insolvency Act 1986 ss. 353, 357
(b) Protection from
Eviction Act 1997
s. 1(2)
(c) Homicide Act 1957
s. 4
(d) Criminal Justice and
Public Order Act 1994
s. 51(1)

(a) Legal burden on accused in s. 353 but evidential burden in
s. 357
(b) Legal burden on accused (c) Legal burden on accused (d) Legal burden on accused4 L v DPP [2003] QB 13

Divisional Ct

Criminal Justice Act
1988 s. 139(4)

Legal burden on accused5 (continued overleaf)

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Table 1 continued
Case
Sheldrake v DPP;
Attorney General’s
Reference (No. 4 of
2002) [2004] 3 WLR
976

Court

Statute
(a) Road Traffic Act
1988 s. 5(2)
(b) Terrorism Act 2000
s. 11(1) and (2)

HL

Outcome
(a) Legal burden on accused (b) Evidential burden on accused6

1

In the Terrorism Act 2000, replacing the 1989 Act, Parliament included s. 118 converting some, but not all, reverse legal burdens in the Act to evidential burdens.
2
Relevant factors in deciding that proof of diminished responsibility lay with the defence were that there was no power to examine a defendant and that the prosecution was required to prove all the elements of the defence.
3
This is just one example of offences which are not regarded as truly criminal and so reverse burdens are acceptable.
See also, however, R v S [2003] 1 Cr App R 602, where a conviction under the Trade Marks Act 1994 could result in imprisonment. 4
The Court, noting the different approaches in Lambert and Johnstone, stated that if in doubt courts should follow that of Lord Nicholls in Johnstone. Lord Woolf CJ set out ten general principles as guidance but see now Sheldrake v DPP;
Attorney General’s Reference (No. 4 of 2002).
5
Lambert was distinguished in this case involving a defence to possession of a flick-knife in a public place. The defendant had to prove he had good reason or lawful authority.
6
This section was not covered by s. 118 (see above n. 1). Six reasons were given for the decision. The House acknowledged that there could be no doubt that Parliament intended to impose a legal burden on the accused. The House held that both Lambert and Johnstone were the primary domestic authorities on reverse burdens and that Johnstone did not depart from Lambert. Lord Woolf’s guidance notes (see n. 4 above) were not endorsed, Lord Bingham questioning the assumption that Parliament would not have made an exception without good reason. See also R v Keogh [2007] EWCA
Crim 528.

Table 2 Burden of proof—criminal cases
Facts in issue

Who has evidential

Who has legal

What is the standard

burden?

burden?

of proof of the legal burden? Possession of window-box Prosecution

Prosecution

Beyond reasonable doubt Defendant’s knowledge of possession of window-box

Prosecution

Prosecution

Beyond reasonable doubt Identity of plant as cannabis Prosecution

Prosecution

Beyond reasonable doubt Defendant’s knowledge of identity of plants

Defence*

Prosecution*

Beyond reasonable doubt *Following R v Lambert (2002).

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Table 3 Burden of proof—civil cases
Fact in issue

Who has legal

Who has evidential

What is the standard

burden?

burden?

of proof on legal burden? Existence of contract

Sloane

Sloane

Balance of probabilities Death of Diana

Sloane

Sloane

Balance of probabilities Absence of veterinary surgeon’s examination

Cowboys

Cowboys

Balance of probabilities Question 1
‘In order to merit its reputation as a fundamental constitutional guarantee, the presumption [of innocence] must be reasonably extensive and not too easily defeated.’ (Roberts and Zuckerman,
Criminal Evidence (Oxford, 2010, p. 223).) How far does the current law in this area meet the requirements set out by Roberts and Zuckerman?

Commentary
The question requires you to analyse why the presumption of innocence should be regarded as a constitutional right and how far it is safeguarded in current law. The Human Rights Act 1998 has played a part in generating an increasingly jurisprudential approach to the law of Evidence and this question requires you to demonstrate your appreciation of the principles enshrined in the technically somewhat complex law relating to the presumption of innocence. This presumption is also fully acknowledged by the common law. Your answer will therefore have to examine the law before and after the 1998 Act and the extent to which inroads into the presumption were and are currently allowed.
There have been a number of House of Lords decisions in this area including Woolmington v DPP [1935] AC 462, R v Hunt [1987] AC 352, R v Lambert, Ali and Jordan [2002] 2 AC 545 and
Sheldrake v DPP; Attorney General’s Reference (No. 4 of 2002) [2004] 3 WLR 976. (See Table 1, page 6.) But you must avoid giving a bare narrative of the decisions, since the question is clearly centred on analysing an abstract constitutional principle.

Answer plan
•

Outline the reasons why the presumption of innocence is a constitutional guarantee and why it has a place in ensuring a fair trial.

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•

Outline the evolution of the principle in English law demonstrating how it was never an absolute right.

•

Consider the impact of the European Convention on Human Rights and the pragmatic approach taken in Salabiaku.

•

Trace the impact of the Human Rights Act and leading cases, e.g. Lambert.

•

9

Conclude with a review of the jurisprudential issues involved such as the overlap of substantive and procedural rights, and the possibility of decriminalising regulatory offences. Suggested answer
A criminal conviction and subsequent state-imposed punishment subjects individuals to moral denunciation and physical hardship. The constraints imposed by the law of evidence on the trial process exist in large part to try to ensure that only the guilty are convicted and that the trial process is fair. In other words trials should have factual and moral legitimacy. The presumption of innocence is recognised in many jurisdictions as one of the most important constitutional foundations of this legitimacy. Its constitutional significance is that it recognises the vulnerability of the defendant faced with state prosecution and concomitant ‘inequality of arms’. The individual liberty of the subject is safeguarded by placing the task of proving the case firmly on the prosecution. The prosecution, in other words, has the burden of proof, must carry out the task of amassing and presenting the evidence and in order to succeed has to do this to an exacting standard. The defendant is entitled to receive the benefit of reasonable doubt. The prosecution bears the risk of losing. Reference to the presumption of innocence is to be found in all major international human rights treaties but until the enactment of the Human Rights Act 1998 its acknowledgement by English law is to be found in judicial observations. Viscount Sankey’s ‘golden thread’ speech in Woolmington v DPP [1935] AC 462 is one of the most celebrated passages in English criminal law: ‘No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’
Closer examination reveals that the Woolmington principle itself has never been absolute. Indeed, if it is so much part of the common law of England, it does seem strange that a trial judge and the Court of Criminal Appeal as late as the twentieth century could have made so fundamental an error as to place the burden of proving lack of mens rea on the defendant. In fact, the concept that the prosecution bears the legal burden on mens rea and actus reus was still somewhat undecided until the last century. For example, the common law recognised the principle that if the defendant has possession of facts known only to him, it is for the defendant to produce the relevant evidence.

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Furthermore, Woolmington itself cited exceptions to the principle, notably the common law defence of insanity and statutory reversals of the burden. The constitutional principle of parliamentary sovereignty meant that Parliament could expressly shift the burden of an element of the offence to the defendant.
Research by Ashworth and Blake (1996) revealed that the 40% of offences triable in the Crown Court appeared to violate the presumption of innocence by placing a legal burden of proof on the defendant or imposing a form of strict liability. Doubtless the number has much increased in the subsequent years.
The justification for this is the consequentialist argument that on occasion the social good of crime reduction achieved by reducing the burden on the prosecution takes precedence over the defendant’s rights. Particular controversy arose, however, over the clearer acknowledgement, post-Woolmington, of a third exception to the ‘golden thread’, namely implied statutory exceptions.
Historically the starting point was what is now s. 101 of the Magistrates’ Court
Act 1980, which covers situations where a defendant relies for his defence on an ‘exception, exemption, proviso, excuse or qualification’ whereby specified conduct is allowed in permitted circumstances. In such situations it was for the defendant to prove that he falls within the exception, etc.
The objective of such legislation was to make it easier for the authorities to prosecute certain regulatory offences, such as driving without a licence. The approach of the courts, however, was to extend the possibility of shifting the burden to the defendant in a wider range of circumstances. This was illustrated in the landmark cases R v Edwards [1974] 3 WLR 285 and R v Hunt [1986] 3 WLR
1115. In both cases it is arguable that the constitutional principle of the presumption of innocence was secondary to policy considerations. Thus in Edwards the
Court of Appeal adopted what Stein (1991, p. 1) called a ‘syntactical approach’ and classified defences on their syntactical status or sectional location in the statute.
It held statutes could be interpreted to have impliedly shifted the burden for trials on indictment as well as summary offences, and that where the burden shifted it would be the legal, not simply the evidential, burden. One safeguard was that the standard imposed on the defendant was only the balance of probabilities. In the subsequent case of Hunt the House of Lords set out more fully the circumstances in which the courts would interpret legislation as permitting placing the legal burden on the defendant. Stein (1991) points out that the House of Lords in Hunt, while upholding Edwards, saw the issue as more complex. Attention should be paid not only to the linguistic structure of the Act but also to the mischief at which it was aimed and various practical matters which affect the burden of proof.
As regards general guidelines these were as follows. Firstly, the courts should recognise that Parliament can never lightly be taken to have intended to shift the burden of proof onto the defendant. Secondly, a factor of great importance was the ease or difficulty that parties met in discharging the probative burden. Here the courts drew on the House of Lords decision in Nimmo v Alexander Cowan &
Sons Ltd [1968] AC 107, where the plaintiff employer was allocated the burden

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of proof on the issue of whether it was ‘reasonably practicable’ to observe health and safety standards. Finally, the gravity of the offence should be borne in mind.
In Hunt itself the House of Lords reversed the Court of Appeal and held that on the proper construction of the statute, the composition of the alleged prohibited drug was an element of the offence which the prosecution should prove. However, a number of critics, while applauding the actual decision, pointed out its dangerous implications. By abdicating on the matter of principle the House arguably opened the door to serious inroads on the presumption of innocence. In cases of ambiguity in the statute, instead of relying unequivocally on the presumption of innocence, their Lordships were prepared only to see the necessity of avoiding the imposition of ‘onerous burdens’ on the defendant.
If Hunt and Edwards marked a retreat from constitutional principle then the Human Rights Act 1998 clearly signalled a return and, as Roberts and
Zuckerman advocate, the courts have set clearer limits to the shifting of the burden in interpreting statutes. The Act requires the courts to take account of the Strasbourg jurisprudence in interpreting legislation. The outcome has been to a large extent a return to the Woolmington principled approach. This has been examined by the House of Lords in several landmark cases. Firstly in
R v DPP, ex parte Kebilene [2000] 2 AC 326 the House of Lords was asked to consider, inter alia, whether s. 16A of the Prevention of Terrorism (Temporary
Provisions) Act 1989 violated the principle of the presumption of innocence guaranteed by art. 6(2) of the European Convention on Human Rights. It held that it was open to the accused on a prosecution under that section to argue that no more than an evidential presumption had been raised which could be displaced by the raising of a reasonable doubt as to guilt rather than a reverse onus of persuading the jury as to guilt or innocence. Lords Cooke, Hope and
Hobhouse held that it was open to argument that art. 6(2), although expressed in absolute terms, was not to be regarded as imposing an absolute prohibition on reverse onus provisions. The House considered some of the Strasbourg cases which indicated that reverse onus of proof provisions are not necessarily a violation of the Convention. In Salabiaku v France (1988) 13 EHRR 379, for example, the Strasbourg Court accepted that there was no objection in principle to the operation of strict liability in criminal law. However, it clearly indicated that a powerful consideration will be the question of proportionality since presumptions of fact or law were not to be regarded with indifference in criminal cases. States should confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence. In Kebilene Lord Bingham in the Divisional Court had held that s. 16A of the 1989 Act undermined in a blatant and obvious way the presumption of innocence. Although the House of Lords did not pronounce on the matter in Kebilene, it is clear that courts will have now to weigh a number of considerations in applying statutes which appear to place the onus of proof on the defendant. Following Hunt they were not restricted to the form or wording

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of the statutory provision but must consider also policy matters. Pepper v
Hart [1993] 1 All ER 42, of course, allows recourse to Hansard as a means of statutory interpretation. The Human Rights Act has now, however, reasserted the Woolmington principle.
This is even clearer in the second of this series of House of Lords cases namely, R v Lambert, R v Ali, R v Jordan [2001] 3 WLR 206. By a majority of four to one the House decided that in the context of reverse burdens of proof,
‘prove’ in a statute could be interpreted as imposing an ‘evidential burden’.
Lord Steyn, in giving the majority judgment, stated that ‘legislative interference with the presumption of innocence requires justification and must not be freer than necessary. The principle of proportionality must be observed.’ A transfer of the legal burden would amount to a disproportionate interference with the presumption of innocence. Ashworth (2001, p. 865) favourably contrasted
Lambert with that of the Strasbourg Court in Salabiaku v France (1988) 13
EHRR 379. In the latter case the Court accepted that legislatures may reverse the burden of proof ‘within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence’. Ashworth comments that it ‘must be said that the Strasbourg jurisprudence on art. 6(2) is underdeveloped, not to say flaccid, and it is British judges, taking their cue from Commonwealth constitutional courts, who have sought to give greater sharpness to the right and any exceptions’.
In R v Johnstone [2003] UKHL 28 the House of Lords gave fuller guidance on reverse burden provisions. They were permitted so long as they were confined within reasonable limits that took account of the importance of what was at stake and maintained the rights of the defence. The case involved an offence under
s. 92(6) of the Trade Marks Act 1994 and the section concerned with the burden of proof read, ‘it is a defence for a person charged with an offence under this section to show that he believed on reasonable grounds that the use of the sign in the manner in which it was used, or was to be used, was not an infringement of the registered trademark’. Lord Nichols gave the majority judgment, cited a number of policy reasons why there should be a legal burden on the case and also identified s. 92 as imposing an offence of almost strict liability. Subsequent case-law has demonstrated that the courts place much importance on the nature of the offence and are more ready to allow a shift of the burden in the case of regulatory offences. Reverse legal burdens were probably justified if the overall burden remained on the prosecution but Parliament had for significant reasons concluded that it was fair and reasonable to make an exception in respect of a particular aspect of the offence (Attorney General’s Reference (No. 1 of 2004)
[2004] EWCA 1125). However, Parliament’s intentions may be disregarded if the fairness of the trial is threatened (Attorney General’s Reference (No. 4 of 2002)
[2004] UKHL 43). In the latter case there was no doubt that Parliament in the
Terrorism Act intended to shift the legal burden but ‘it was not the intention of

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Parliament in the 1998 Act’ (para. 51) and the House imposed only an evidential burden on the accused. It held that both Lambert and Johnstone were leading cases on reverse burdens and that, despite the statement of Lord Woolf in Attorney
General’s Reference No. 1 of 2004, Johnstone did not depart from Lambert.
Lambert itself left a number of unanswered questions. First, Lord Hutton argued in a powerful dissenting speech that the effect of upholding the defendant’s right was to endanger society. Defendants would now easily be able to raise defences under the statute. He stated that ‘the threat of drugs to the well-being of the community and the peculiar difficulty of proving knowledge in such cases justifies an exception to the general principles. . . In my opinion, it is not unprincipled to have regard to practical realities where the issue relates to knowledge in a drugs case’.
Secondly, the law is left in a state of some uncertainty. As Munday argues
(2009, p. 115) ‘One ought not to run away with the idea that Lambert and subsequent decisions has led to wholesale abandonment of the idea that
Parliament can legitimately cast a legal burden of proof on a defendant.’ He pointed out that in L v DPP [2003] QB 137 the Divisional Court interpreted
s. 139(4) of the Criminal Justice Act 1988 as amended as placing a legal burden on the accused ‘to prove that he had good reason or lawful authority for having
[an offensive weapon] with him in a public place’. This interpretation struck the correct balance between protecting society on the one hand and the rights of the defendant on the other. Here, by contrast to Lambert, derogation from the principle of the presumption of innocence was acceptable. As Munday (2009,
p. 118) commented; ‘whenever construing a statutory provision that purports to impose a legal burden of proof upon a defendant, the court will find itself wandering in Tennyson’s “wilderness of single instances (see Aylmer’s Field)” ’.
A further criticism of the Lambert approach is elegantly argued by Roberts and Zuckerman. They point out (2004, p. 388) that: ‘Article 6(2) was extended to the proof of facts that were not elements of the offence that the prosecution had to prove to secure a conviction.’ By treating an affirmative defence as if it were an element of the offence, thereby applying art. 6(2), they argue, the court imbues the presumption of innocence ‘with a measure of substantive content in
English law’. English courts are not equipped for this degree of statutory judicial review and the risk is that Parliament might withdraw affirmative defences altogether. This, they suggest, has happened in the US. Roberts is critical of the reasoning in Lambert. He commented (2002(a), p. 36) that the courts were in effect using the evidential principle of the presumption of innocence to undermine the substantive law in relation to strict liability offences. There is thus a clash of the two constitutional principles, parliamentary sovereignty and the presumption of innocence. Roberts argued that the legislative precursors of the 1971 Act created absolute liabilities for possessing drugs and that this was
‘wholly dispositive’ of art. 6(2) issues.

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These observations illustrate the difficulty of deciding the parameters of a
‘fundamental constitutional guarantee’ and that the courts have not taken an absolutist stance. They have been prepared, however, on occasion to depart from the intention of Parliament, which does suggest that the presumption of innocence may override the popular will.
Thus in English law, as in the Strasbourg jurisprudence, the presumption of innocence is not quite an absolute. In Lambert, however, the Court moved closer to the Woolmington principle by requiring close examination of all statutory reverse onus provisions. But reverse onus provisions will still exist either by virtue of unambiguous wording of the statute or judicial interpretation of ambiguous statutes. As the above analysis has shown, the current position has left some uncertainty and theoretical incoherence. One way forward suggested by Roberts and Zuckerman (2010, p. 289) is a ‘planned programme of de-criminalisation’ of the regulatory offences which are most often at issue in this area of statutory interpretation. Such criticisms are endorsed by Padfield
(2005). The legal landscape in relation to the presumption of innocence thus demonstrates that the position advocated by Roberts and Zuckerman is difficult to achieve. The courts and Parliament, particularly by the mechanism of separating the evidential and legal burdens on occasion, acknowledge that public policy considerations impact of constitutional rights to a fair trial.
The presumption of innocence, together with the high standard of proof required, is generally regarded as a necessary right, safeguarding the citizen against an all-powerful state. The above account has illustrated, however, that it is also accepted that there may be compromises to this principle. Some parts of the burden may be shifted to the defendant in some cases. This has been imposed by both Parliament and the judges. In Lambert the House of Lords, stretching the linguistic interpretation somewhat, signalled a return to the principled approach of Woolmington away from the pragmatism of Hunt. The principles should, the majority held, not be easily defeated. Public interest arguments for the opposite stance did not prevail, a stance that showed more respect for the presumption of innocence than Strasbourg showed in Salabiaku. However, principle and pragmatism currently go hand in hand, creating what Roberts and
Zuckerman have called (2010, p. 281) a ‘blizzard of single instances’.

Question 2
Answer all parts:
(a) Harry is refused entrance to a nightclub by a bouncer called George. A scuffle breaks out and George suffers a broken nose. Harry is prosecuted for assault and claims that George

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struck the first blow. In her summing up the judge says, ‘Ladies and gentlemen of the jury you have heard the defendant claim that he acted in self-defence. It is for the prosecution to prove however that he did not act in self-defence.’
Comment on the judge’s summing-up.
(b) ‘Are we to infer that M’Naghten (and Woolmington) have been overruled, to the extent that the accused no longer has to prove insanity (on the balance of probabilities) but only to raise enough evidence to pass the judge?’ P. Roberts, ‘Criminal Procedure, Drug
Dealing and the Presumption of Innocence: The Human Rights Act (Almost) Bites’ (2002)
6(2) International Journal of Evidence and Proof 17 at p. 37.
Comment.
(c) Janet is facing two charges under the (imaginary) Tenant Protection Act 2010. Section
1(1) reads ‘it is an offence to include car parking space in the tenancy except where the landlord has a licence from the local authority’. Section 1(2) reads: ‘it is an offence for a landlord to enter a tenanted room after 10.00 p.m. without permission from the tenant and without a reasonable excuse’. The prosecution allege that Janet let a parking space to her tenant Zara without a licence. They also allege that Janet entered the flat of her tenant
Abdul while he was away and without his permission at 2.00 a.m. Janet claims she had an anonymous phone call about a smoke alarm. Advise Janet on the burden and standard of proof on both these charges.

Commentary
These three questions require you to be familiar with situations where the burden of proof may shift in criminal trials. You will need some knowledge of the evolution of the law in this area and the impact of recent case-law under the Human Rights Act 1998. You must be careful to use the correct terminology and in particular to understand the difference between the legal and the evidential burdens. The legal burden is the obligation placed on a party to prove a fact in issue, whereas the evidential burden (the ‘burden of passing the judge’) is that placed on a party to adduce sufficient evidence on a fact which is asserted for it to become an issue in the trial. There is a significant amount of academic literature in this area and your answers would be improved by familiarity with it.
(a) This part requires an outline of the evidential rules concerning a claim of self-defence.
(b) In this article Paul Roberts is critical of the logic behind the majority ruling of the House of
Lords in Lambert. He outlines the uncertainties it has created in the law over reverse onus clauses, including the defence of insanity.
(c) Your answer requires knowledge of the nature of implied statutory exceptions in relation to the burden of proof. The law in this area has been dominated by the cases of R v Hunt and
R v Edwards. In your answer you should demonstrate an academic knowledge of the historical development of the law but concentrate on giving practical advice in the light of some more recent cases since 2000. It is important to show you understand that there may be several elements to an offence and the allocation of the legal and evidential burdens of proof will not be the same for all of them.

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Answer plan
(a)
•

Trace the common law position through the case-law.

•

Distinguish the evidential and legal burdens and the standard of proof in both.

(b)
•

State the Woolmington position on insanity.

•

Discuss the potential impact of the Human Rights Act in this area.

•

Law Commission reform proposals.

(c)
•

Identify the elements of the actus reus.

•

Refer to s. 101 Magistrates Court Act, Hunt and Edwards.

•

Assess the impact of the Human Rights Act and the possibility of construing a statutory provision to place an evidential burden on the defendant.

•

Show some familiarity with relevant recent case-law, Sheldrake v DPP [2004] 3 WLR 976 and
L v DPP [2003] QB 13.

Suggested answer
(a) The judge in her summing-up has directed the jury’s attention to Harry’s use of self-defence based on the common law. It is a well-established principle that the prosecution does not have to anticipate every claim the defendant makes.
If the defendant wishes to plead self-defence then he must adduce sufficient evidence to convince the judge that this can be a live issue at the trial. In other words the defendant has what is popularly known as the evidential burden.
As Roberts (2002(a), p. 34) points out the ‘evidential burden is not a burden of proof at all, but only a burden of adducing evidence’. The judge therefore does not have to refer to the evidential burden in her summing-up because it is not a matter for the jury at all. Here the judge is correct to point out that the legal burden remains with the prosecution on this issue (Lobell [1957] 1 QB
547). A failure to do this could lead to an appeal (R v Moon [1969] 1 WLR
1705). More recently in R v O’Brien [2004] EWCA Crim 2900 the Court of
Appeal held that a failure by the judge to direct the jury that it was the task of the prosecution to prove the defendant was not acting in self-defence was
‘an important misdirection in relation to a very significant aspect of the law of self-defence’. In the question set there is no reference to the standard of proof in the summing-up. There is considerable case-law on the words judges should use in directing juries on the standard of proof. Where the prosecution bears the legal burden the standard of proof required for conviction is beyond

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reasonable doubt. The Judicial Studies Board has drafted a model direction as follows:
How does the prosecution succeed in proving the defendant’s guilt? The answer is—by making you sure of it. Nothing less than that will do. If after considering all the evidence you are sure that the defendant is guilty you must return a verdict of ‘Guilty’. If you are not sure your verdict must be ‘Not Guilty’ (www.jsbni.com/
Publications/BenchBookRevisedApr2010.doc).

The judge would therefore be expected to include in her summing-up a direction along those lines. The Court of Appeal has over the years pronounced on unacceptable judicial directions in this area. In R v Yap Chuan Ching (1976)
63 Cr App R 7, 11 Lawton LJ observed that ‘if judges stopped trying to define that which is almost impossible to define there would be fewer appeals’. In this case, however, the Appeal Court stated that judges should avoid defining
‘reasonable doubt’. Lord Denning in Miller v Minister of Pensions [1947] 2 All
ER 372, 373 gave a celebrated definition:
Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt.
The law would fail to protect the community if it admitted to fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave one a remote possibility in his favour which can be dismissed with the sentence,
‘of course it is possible, but not in the least probable,’ the case is proved beyond reasonable doubt but nothing short of that will suffice.

Thus the judge’s summing-up in this instance is correct on the burden of proof but incomplete on the question of the standard of proof.
(b) The classic common law summary of the burden of proof in criminal cases is given in Woolmington. Lord Sankey identified two exceptions to the placing of the burden of proof on the prosecution, namely statutory exceptions and that created in M’Naghten’s Case (1843) 10 Cl & Fin 200. The latter specifies that where the defendant in a murder trial makes a plea of insanity the burden of proving insanity is on him.
The quotation in this question acknowledges the importance of this exception to the ‘golden rule’ while at the same time acknowledging its status may be under threat from current judicial attitudes. To take the first point it is salutary to realise that, as Roberts and Zuckerman point out, the insanity exception is
‘of limited practical significance’ (2010, p. 266). They point out that a finding of ‘not guilty by reason of insanity’ meant ‘mandatory detention in a secure hospital’, and although other sentencing options are now available, ‘a plea of insanity remains an unattractive option for most accused, and the defence is seldom raised’.
In the article cited in the question, however, Roberts goes further by outlining the shaky intellectual basis for the exception. The House of Lords in Lambert,

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argues Roberts, is close to saying that the only burdens on the defence should be evidential ones. He finds the reasoning in this case doctrinally incoherent,
‘with scant regard for established evidentiary concepts and taxonomies’. In particular he criticises the judgment because the analysis fails to acknowledge the conclusive nature of the specific statutory section, namely that it creates an offence of strict liability and therefore the discussion on burden of proof in relation to guilty knowledge is theoretically incoherent.
This approach leads Roberts to speculate about the possible implications for other seemingly entrenched doctrines, including the burden of proof on an insanity defence. He mentions that the Canadian courts have re-examined the approach to this in the light of fair trial right considerations, although this is not specifically included in the House of Lords’ Lambert ruling. Roberts points out, however, that the Canadian courts have acknowledged that the traditional reverse onus clause in relation to insanity was upheld as a justifiable derogation from the presumption of innocence under the general saving clause, s. 1 Canadian
Charter of Rights of Freedoms. He adds that there is no comparable provision in art. 6 European Convention on Human Rights.
In short, Roberts is arguing that the implications of the Lambert judgment are far-reaching. Although putting an evidential burden rather than a legal burden on the defence might be welcome from a human rights standpoint, the uncertainty and intellectual confusion the judgment has prompted is troubling.
In fact, since Roberts penned this observation the courts have retreated somewhat from an overly robust readiness to refuse to interpret reverse onus clauses so that the legal burden is not placed on the defence and have adopted a case-by-case approach. This, however, succeeds only in perpetuating the uncertainty, as a number of commentators have pointed out (Choo (2009,
p. 38) for example, comments in relation to the leading case Sheldrake v DPP;
Attorney General’s Reference (No. 4 of 2002) [2004] 3 WLR 976 that it has
‘served to bring the problem of uncertainty and unpredictability into even sharper focus’.
With regard to the principled question in relation to insanity, namely should the burden of proof be on the defendant, it is certainly arguable that the
M’Naghten decision itself is a historical anomaly and is arguably difficult to justify in the light of art. 6 provisions. The European Court of Human Rights has held, however, that the rule does not violate the presumption of innocence,
H v UK (1990) App No 15023/89. Jones (1995, p. 475), however, cites arguments that the burden on the defence should be evidential only. Jones acknowledges that the courts are just as concerned with social protection as they are with issues of individual fairness or responsibility and that ‘there is a constant tension between these two competing values, which goes some way to explaining (but not justifying) the complexities and paradoxes which pervade this area of law’. The Law Commission has produced a draft report on the issue, the Draft Criminal Code: Criminal Liability and Mental Disorder

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(2002). It proposed that the general law relating to mental illness should be rationalised and a new term ‘mental disorder’ should replace ‘insanity’. The burden of proving the defence would remain on the accused on the balance of probabilities. Loughran (2007) has suggested that a concept of ‘manifest madness’ may provide a theoretical frame for interpreting the evidentiary and procedural aspect of the defence. She suggests that the defence is in effect limited to cases where the madness is encoded in the defendant’s acts and its nature is intelligible to lay observers.
(c) The elements of the first offence are letting a parking space for a tenant without a licence. The courts will be likely to consider this scenario as being covered by
s. 101 Magistrates’ Courts Act 1980. This provides that ‘where the defendant to an information or complaint relies for his defence on any exception, exemption, excuse or qualification, whether or not it accompanies the description of the offence or matter of complaint in the enactment creating the offence or on which the complaint is founded, the burden of proving the exception, exemption, proviso, excuse or qualification shall be on him, and this notwithstanding that the information or complaint contains an allegation negativing the exception, exemption, proviso, excuse or qualification’. Janet should be advised that it is immaterial in relation to this provision whether the trial takes place in the magistrates’ court or the Crown Court. It is a fundamental rule that the burden of proving the defendant’s guilt rests on the Crown which will have to prove the actus reus of letting the car parking space and, presumptively, the mens rea of doing it knowingly. Janet should be advised, however, that the court is likely to decide that she has the burden of proving the existence of a licence rather than the prosecution its non-existence.
The use of the word ‘except’ clearly signals that the existence of the licence would be an ‘excuse’, ‘proviso’ or ‘exception’ which would provide a defence to criminal liability. Janet will have to prove the existence of the licence on the balance of probabilities.
The wording of the second offence brings into play the possibility of an alternative statutory construction. The court will examine whether ‘without reasonable excuse’ constitutes an exception which must be proved by the defendant. On its face the statute is not apparently worded to clearly indicate that s. 101 Magistrate’s Courts Act 1980 should apply. The leading cases of Hunt and Edwards indicate a move away from an overly semantic or grammatical approach to statutory interpretation to one where police considerations apply.
Following the Human Rights Act 1998 the courts will apply a series of tests to decide if a reversal of the burden of proof in a statute is a proportionate response.
In Sheldrake v DPP [2004] UKHL 43 the House of Lords examined the status of the burden of proof in a case involving the application of the Road Traffic Act
1988. At issue was whether, where the defendant was on trial for being in charge of a car while intoxicated, the defence under s. 5(2) placed the burden on him or

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on the prosecution. The defence was held to be available on proof that there was no likelihood of the defendant driving his car. In giving the lead judgment, Lord
Bingham referred to Lord Griffith’s statement in R v Hunt. This stated that if the statute was unclear the court should look to other considerations to determine the intention of Parliament. These included the mischief at which the Act was aimed and practical considerations affecting the burden of proof including the ease or difficulty the parties would find in discharging the burden. In Sheldrake the House placed the burden on the defendant. In L v DPP [2002] QB 13 the
Divisional Court interpreted s. 139(4) of the Criminal Justice Act 1988 so as to place the legal burden on the accused to prove he had a good reason or lawful authority as a defence to a charge under s. 139(1). The actus reus was having a bladed article in his possession in a public place. The prosecution had to prove possession, and that the accused knew he had the relevant article.
The court agreed that there was a strong public interest in suppressing this crime. The accused was being asked to prove something within his knowledge.
Placing the burden on him as a proportionate response which maintained the balance between the public interest and individual rights. The prosecution will argue therefore that Janet should have the burden since the existence of the phone call was within her knowledge and there was a strong public interest in protecting the privacy of tenants. The offence appears to be a regulatory one, not one where there would be limited moral opprobrium. Even if there is moral blameworthiness the prosecution may additionally rely on R v Johnstone
[2003] UKHL 28 and R v Davies [2002] EWCA Crim 2949, CA. In those cases the perpetrator engaged in a regulated activity but there was some element of moral blameworthiness, such as breaching the Trade Marks Act 1994. Dennis
(2005, p. 920) analyses these cases as involving the ‘voluntary acceptance of risk’ principle where the alleged offender obtained a benefit and so he, not the prosecution, should prove exculpation from the apparently wrongful acts. Janet as landlord gets to inspect her property by breaching the time regulation. On the other hand Janet may rely on R v Charles [2010] Crim LR 303. The case turned on the interpretation of s. 1(10) of the Crime and Disorder Act 1998 which provided that ‘if without reasonable excuse a person does anything which he is prohibited from doing by an anti-social behaviour order, he is guilty of an offence . . .’ The Court of Appeal held that the prosecution must prove a breach of the order to the criminal standard. If the defendant raises the evidential issue of reasonable excuse it is for the prosecution to prove lack of reasonable excuse.
Not all of the requirements under an ASBO were criminal offences and the court held that Parliament could not have intended to put the burden of proof on the defendant in s. 1(10) which criminalised conduct that Parliament had not criminalised. The statute in question here does not expressly create an ‘excuse’,
‘proviso’ or ‘exception’. The court will be likely to take a pragmatic approach and hold that placing the legal burden on Janet would embrace conduct that

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would be very broad in nature and undermine the fairness of the trial. Placing the evidential burden only on Janet would preserve the Woolmington principle.
If the legal burden is placed on the defence, the standard of proof will be the balance of probabilities.

Question 3
Loamshire District Council is suing Amy for money they allege was paid to her in error while she was working under contract as a temporary gardener. They claim she has fraudulently retained the money. She claims she has no idea she was overpaid since her pay was paid directly into her bank account and she did not receive pay slips. She has no records relating to the period and simply denies the liability. Amy claims further that if there were payments beyond her wages it was for a bonus the council promised to pay her. Loamshire are also claiming for a rake which they say she broke. She relies on a clause in the contract which exempts her from liability for damage to any tools providing she was not negligent.
Advise the parties on burden and standard of proof.

Commentary
Questions on the burden and standard of proof in civil cases do not raise as many controversies as those in criminal cases. The simplest approach is to realise that the burden generally lies on the party who pleads an issue. Two possibly problematic issues arise here. One is whether the standard of proof is affected because the council are alleging fraudulent retention by Amy of money not owing to her; secondly the burden in the exemption clause and its proviso will arguably shift from one to the other as assertion meets counter-assertion.

Answer plan
•

General principle in civil cases, he who asserts must prove. Council has burden on issue of overpayment, Amy has burden of proving her defence; both burdens are legal and evidential.

•

Case may be decided on burden of proof—Rhesa Shipping v Edmunds [1985] 1 WLR 948.

•

General rule that civil standard of proof is balance of probabilities.

•

Examine cases where quasi-criminal accusation is made in a civil case; despite some deviation from balance of probabilities House of Lords has decided there is no third standard—Re
B (Children) FC [2008] UKHL 35.

•

Concerning rake, council to prove breach of contract, Amy that she falls within the exemption clause—Munro Brice and Co v War Risks Association [1918] 2 KB 78.

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Suggested answer
The general principle in civil litigation is that the burden of proof lies on the asserter of a claim. It is thus for the council to prove the excessive payment under the contract. The incidence of the burden is thus here a matter of substantive law and the House of Lords held that it is usually clear from the pleadings: Wilsher v Essex Area Health Authority [1988] AC 1074. The council therefore have the legal burden of proof on the issue of the overpayment. They also have the evidential burden in the sense that they must put in some evidence to convince the court there is a case to answer.
Amy may simply deny liability but she runs the risk tactically of losing. She is, however, putting up a specific defence, namely that the overpayment was money due from a bonus. She has the legal and evidential burden of mounting this defence. The incidence of the legal burden of proof will decide the outcome of the case if the tribunal is not able to come to a decision on which to prefer.
In Rhesa Shipping Co. SA v Edmunds [1985] 1 WLR 948 the House of Lords, overturning the Court of Appeal, held that the judge had not been obliged to choose between two versions merely because the defendants had chosen to put forward their explanation of events.
Thus, the claimant, Loamshire District Council, has the task of proving its case more probable than not, not more probable than Amy’s version of events.
The standard of proof is on the balance of probabilities. There is a possible further consideration in that the council are alleging that Amy held the money fraudulently. The Bar’s Code of Conduct provides that counsel may not draft an allegation of fraud without specific instructions and unless he or she has reasonably credible material which, as it stands, establishes a prima facie case of fraud.
There have been some examples in civil cases where courts have held that certain matters must be proved to the criminal standard of proof, in Re a
Solicitor [1992] QB 69 for example. The issue was the standard of proof in a case before a solicitors’ disciplinary tribunal, where allegations of professional misconduct were made. The Divisional Court held that since what was alleged was tantamount to a criminal offence the criminal standard should apply. However, this has not been generally followed. In Hornal v Neuberger
Products Ltd [1957] 1 QB 247, a case involving an allegation of fraudulent misrepresentation, the Court of Appeal rejected the view that there was a higher standard necessary than balance of probability but rather puzzlingly commented per Denning LJ at p. 258 ‘the more serious the allegation the higher the degree of probability that is required’ and per Morris LJ at p. 266 ‘the very elements of gravity become a part of the whole range of circumstances which have to be

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weighed in the scale when deciding as to the balance of probabilities’. In Re H and Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 the
House of Lords in a majority decision rejected the concept of a third standard in civil cases of this sort.
The issue seems to have been conclusively settled by subsequent House of
Lords decisions, see Re B (Children) [2008] UKHL 35. On the facts as they are given here it is likely that the position stated in Re B should be applied and that the standard of proof required will be on the balance of probabilities but that cogent evidence of Amy’s alleged fraud will be required.
As regards the rake, again the council have the burden of proving that it was broken and that this constituted breach of contract. It is for Amy to prove it is a tool which falls within the exemption clause, although this is a matter of construction for the court: Munro Brice and Co. v War Risks Association [1918]
2 KB 78. However, it is arguable that if a claimant relies upon a proviso to an exemption clause the burden of proving that the facts fall within the proviso may be on the claimant: The Glendarroch [1894] P 226. Amy may argue by analogy with this reasoning that the claimant council will have to prove she was negligent. Question 4
Jane and Harry are legally married in 1960 in Birmingham. In 1961 Harry leaves to join a revolutionary group in Bolivia, but tells Jane he will return in a year. In fact Jane does not hear from him again and in 1963 gets a letter from the group leader saying Harry has been missing for six months following an expedition against counter-revolutionaries. Jane hears no more and in 1972 marries Oliver, an older man, in Paris. In 1973 Jane gives birth to twins Barry and John and in 1975 to Margaret. In 1995 Jane and Oliver are both killed instantly in a car crash. Shortly before he was killed Oliver told John that Margaret could not be his child because he had not had intercourse with Jane for a year before her birth. At the funeral, Alan, an old college friend of
Jane and Harry’s, who has been out of touch for years, tells John that he saw Harry in a cafe in La
Paz in 1971 but says Harry disappeared before he could speak to him. Jane’s will said that if she died after Oliver her estate should be divided between her children and a charity for distressed
Bolivian revolutionaries. Oliver’s will left all his property to his ‘legitimate children’. When John and Margaret, after the car crash, look through old photographs in the attic they come across one showing Oliver and an unknown woman. On the back is noted ‘Wedding day, 29 March
1969’.
Advise whether Margaret can claim under Oliver’s will and whether all children can succeed under Jane’s will.

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Commentary
Presumptions do not figure in all evidence courses, so you should check your syllabus. This is conceptually quite a tricky area and you need to keep in mind the difference between presumptions in civil cases and criminal cases and the traditional classification of irrebuttable presumptions of law, rebuttable presumptions of law and presumptions of fact. It is mainly the second with which you need to be concerned in this question. In addition, you will need to distinguish persuasive presumptions, that is those where the effect of the presumption is to put the legal burden of disproof on the party who wishes to challenge it, and evidential presumptions where the evidential burden only is placed on the party against whom it operates. As regards criminal cases it is generally accepted that presumptions can place an evidential burden on the accused only. Thus, for example, the Privy Council held that the prosecution could not rely on the presumption of regularity in Dillon v R [1982] AC 484. In this question, the examiner is looking for a clear application of the law on presumptions to the facts, rather than discussion on the rationale of presumptions more appropriate to an essay question. You should begin by listing the events in chronological order and stating the relevant presumptions. In your approach to presumptions, you must first acknowledge that the primary facts must first be proved; if they are, the specific presumption must be drawn from them, although it may be rebutted by other conflicting facts.
Thus you must first see if the presumptions apply and then see if they can be rebutted.

Answer plan
•

1960 Jane and Harry marry—presumption of validity of marriage.

•

1972 Jane and Oliver marry—does presumption of Harry’s death operate?

•

What is the effect of the 1971 sighting of Harry? Is validity of marriage challenged by 1969
‘wedding photograph’ of Oliver and unknown woman?

•

Does it matter marriage takes place in Paris?

•

1973 John and Barry born.

•

1975 Margaret born—presumption of legitimacy but does what Oliver told John rebut presumption of Margaret’s legitimacy? Does the ‘wedding photograph’ affect all children’s legitimacy? •

1995 Jane and Oliver killed—presumption of order of death and effect on inheritance.

Suggested answer
The order of death of Jane and Oliver is determined by their seniority (Law of
Property Act 1925, s. 184, but see Administration of Estates Act 1925, s. 46(3),
Intestates’ Estates Act 1952 and Law Reform (Succession) Act 1995). As Jane is the younger of the two, Oliver will be presumed to have died first, thus in accordance with the terms of her will her estate is divided between John, Barry and Margaret and the Bolivian charity.

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Oliver’s estate raises more complicated issues. John, Barry and Margaret can inherit only if they are legitimate. The validity of the marriage between Jane and
Oliver could affect the legitimacy of all three. The validity of the marriage is threatened by two pieces of evidence. One is the evidence of Alan that Harry may have been alive after he was presumed to have died. The other is the photograph which suggests that Oliver was not free to marry Jane. The presumption of the validity of a marriage is a very strong one. There are two presumptions which may be operative here. On proof of the celebration of a marriage ceremony, that is one which is capable of producing a valid marriage, the law will presume the formal validity of the marriage, that is to say that the formalities have been complied with. The primary facts thus are the evidence of the ceremony that is valid according to local law. In Mahadervan v Mahadervan [1964] P 233 it was argued that the presumption did not apply in favour of a foreign marriage but
Sir Jocelyn Simon P said (at p. 247):
To accept it would give expression to a legal chauvinism that has no place in any rational system of private international law. Our courts in my view apply exactly the same weight of presumption in favour of a foreign marriage as of an
English one, and the nationality of any later marriage brought into question is quite immaterial.

It is not significant therefore that the marriage took place in Paris.
This presumption is a persuasive one and there is a legal burden on the party seeking to rebut formal validity. The standard of proof to be met by that party is high. In Mahadervan Sir Jocelyn Simon P held that the presumption can only be rebutted by evidence which establishes beyond reasonable doubt that there was no marriage.
On proof of the celebration of a marriage ceremony, relying on the same primary facts, the ‘essential validity’ of the marriage will be assumed. This is that the parties had the necessary capacity of marrying and that their respective consents were genuine. There appears to be little doubt about the formal validity of the marriage of Jane and Oliver: the issue is its essential validity, in other words, were the parties free to marry? Again in civil proceedings the presumption is persuasive rather than an evidential presumption, but the standard of proof is lower than that in the case of the presumption of formal validity. In Re Peete,
Peete v Crompton [1952] 2 All ER 599 the issue arose as to the essential validity of a formally valid marriage in 1919. There was some evidence of the existence of an earlier marriage and the presumption of validity of the 1919 marriage failed. Even so, the photograph in itself is unlikely to be sufficient evidence to undermine the presumption that Oliver was free to marry Jane.
The issue whether Jane was free to marry is more complicated. Evidently, she relied on the presumption that Harry was dead when she went through the ceremony with Oliver. The rules relating to presumption of death were set out in

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Chard v Chard [1956] P 259. Harry is presumed dead when four circumstances apply: there is no acceptable evidence that he has been alive for at least seven continuous years; there are persons likely to have heard of him, had he been alive; who during that period have not so heard; all due enquiries have failed to locate him. We aren’t told whether Jane made enquiries about Harry after his disappearance, but assuming she did she was entitled to presume his death by 1970. Had she been properly advised she would have followed the special procedure laid down by s. 19 of the Matrimonial Causes Act 1973, petitioning for a decree dissolving the marriage and presuming the death of the spouse.
This does not require that enquiries be made, takes no account of the likelihood that the petitioner would have heard of the person had they been alive and restricts the issue whether the petitioner had no reason to believe in the spouse’s continued existence to events taking place in the last seven years.
If she had married Oliver without petitioning for a s. 19 decree, the marriage would not necessarily have been an act of bigamy since she could still rely on the common law presumption. Those wishing to challenge the presumption will have the evidential burden. In Prudential Assurance Co. v Edmonds (1877)
2 App Cas 487, a niece standing in a crowded street in Australia had briefly caught sight of a man she recognised as her uncle. The judge had first to decide whether or not she was mistaken. If she was, it made no difference to the presumption. If she was not, the onus was on the side claiming that he was dead to establish that he was. The House of Lords held that it was for the tribunal of fact to decide whether or not to accept the niece’s evidence and that if the jury had been satisfied that she was mistaken the basic facts giving rise to the presumption were established. Here Alan is available for cross-examination and the preliminary issue is ultimately one of fact.
The next issue concerns Margaret. Does what Oliver told John affect her legitimacy and claim under Oliver’s will? There is a presumption that a child born to the wife in lawful wedlock and conceived while the husband was alive is legitimate. This persuasive presumption can be rebutted by evidence which shows that it is more probable than not that the person is illegitimate and it is not necessary to prove that fact beyond reasonable doubt: Family Law Reform Act
1969, s. 26 and S v S [1972] AC 24. Oliver’s remark to John (admissible under the Civil Evidence Act 1995; see Chapter 5) is evidence which might be capable of rebutting the presumption that Margaret is legitimate. The presumption is a persuasive one, so the legal burden of disproof falls on John and Barry, assuming it is they who are challenging Margaret’s claim. However, against the remark should be set the provisional presumption (or presumption of fact) that sexual intercourse between husband and wife is likely to follow where opportunities for it occur. This is a weaker presumption: Piggott v Piggott (1938) 61 CLR 378, probably destroyed here by the remark itself. John and Barry have only the tactical burden of disproving it. Finally the issue might be resolved by DNA testing.

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Additional Reading
Ashworth, A., ‘Criminal Proceedings after the Human Rights Act: The First Year’
[2001] Crim LR 855.
Ashworth, A., ‘Four Threats to the Presumption of Innocence’ (2006) 10 E & P 241.
Ashworth, A. and Blake, M., ‘The Presumption of Innocence in English Criminal Law’
[1996] Crim LR 306.
Ashworth, A. and Rees, T., ‘Burden of Proof: Reverse Burden of Proof’ [2004] Crim LR
832.
Dennis, I., ‘Reverse Onuses and the Presumption of Innocence’ [2005] Crim LR 901.
Dingwall, G., ‘Statutory Exceptions, Burden of Proof and the Human Rights Act 1998’
(2002) 65 MLR 450.
Hamer, D., ‘The Presumption of Innocence and Reverse Burdens: A Balancing Act’
(2007) 66 CLJ 142.
Jones, T.H., ‘Insanity, Automatism and the Burden of Proof on the Accused’ (1995) 111
LQR 475.
Lewis, P., ‘The Human Rights Act 1998: Shifting the Burden’ [2000] Crim LR 667.
Loughran, A., ‘“Manifest Madness”: Towards a New Understanding of the Insanity
Defence’ (2007) 70 MLR 379.
Padfield, N., ‘The Burden of Proof Unresolved’ (2005) 64 CLJ 17.
Roberts, P., (a) ‘Drug Dealing and the Presumption of Innocence: The Human Rights
Act (almost) Bites’ (2002) 6 E & P 17.
Roberts, P., (b) ‘The Presumption of Innocence Brought Home? Kebilene Deconstructed’
(2002) 118 LQR 41, Part VIII.
Smith, J.C., ‘The Presumption of Innocence’ (1987) 38 NILQ 223.
Stein, A., ‘After Hunt: The Burden of Proof, Risk of Non-persuasion and Judicial Pragamatism’ (1991) 54 MLR 570.
Tadros, V. and Tierney, S., ‘The Presumption of Innocence and the Human Rights Act’
(2004) 67 MLR 402.

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