ROCKVIEW UNIVERSITY

Profficience and excellence

Name : PSALM KANYEMU

Student Id : 202202069
Program : BACHELOR OF LAWS
Course : LLB 213
Lecturer : MR MANENGU
Mode of study : FULL TIME
Intake : JANUARY 2022
Term : TWO
Assignment : ONE
Year : 2023
Due date : 2OTH JUNE 2023
Question : Lord Sankey in his decision in the case of

Woolmington v DPP [19351AC462, propounded the now famous statement

to the effect that "Throughout the web of the English Criminal Law, one golden thread is
always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt." Discuss.
This piece of academic writing is aiming at discussing dictum of Viscount Sankey LC in
Woolmington v DPP. It is important to be familiar with his dictum where he said, throughout
the web of the English criminal law one golden thread is always to be seen, that it is the duty
of the prosecution to prove the prisoner’s guilt subject to the defense of insanity and subject
also to any statutory exception’.

To begin with, the Viscount statement of the nature of the legal burden of proof in criminal
trials is, simply a restatement of a fundamental presumption, that a person is presumed to be
innocent until proven guilty. Historically Blackstone (1753-1765) maintained that: “the law
holds that it is better that ten guilty persons escape than that one innocent suffer.”

The presumption of innocence has evolved as a principle at common law from McKinley’s
case to the present, including Human Rights Convention protections. The dictum of Lord
Gillies in McKinley’s case said that, “It is impossible to look at it without suspecting, and
thinking it probable, it imports an obligation to commit a capital crime. That has been and is
my impression. But the presumption in favor of innocence is not to be reargued by mere
suspicion. I am sorry to see, in this information that the public prosecutor treats this too
lightly; he seems to think that the law entertains no such presumption of innocence. I cannot
listen to this. It is a maxim which ought to be inscribed in indelible characters in the heart of
every judge and juryman; and I was happy to hear from Lord Hermand he is inclined to give
full effect to it. To overturn this, there must be legal evidence of guilt, carrying home a decree
of conviction short only absolute certainty.”

In English jurisprudence this presumption was explained in McIntosh v Lord Advocate1,

Lord Bingham of Cornhill referred to the judgment of Sachs J in State v Coetzee2 where the
significance of this presumption was explained.

The learned judge said, “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. The starting point of any balancing inquiry where constitutional rights are
concerned must be that the public interest in ensuring that innocent people are not convicted
and subjected to ignominy and heavy sentences massively outweighs the public interest in
ensuring that a particular criminal is brought to book.

1
Hcj 31 oct 2000
2
(CR71-2019) NAHCMD365
The obligation of proving facts, the obligation, in the sense of establishing a case, generally
rests on the party who asserts the affirmative of the issue and it does not shift, being fixed at
the beginning of the case e.g. in a criminal case, the burden of proving the guilty of the
accused rests on the prosecution; in a negligence case, the onus of proving negligence rests
on the plaintiff and of proving contributory negligence rests on the defendant.

The burden of proof, in the sense of adducing evidence, rests on the party who would fail if
no evidence at all, or no more evidence, as the case may be, were given on either side. This
Burden will rest on the party substantially asserting the affirmation of the issue at the start of
the case, but as evidence is presented, the Burden may shift constantly throughout the case,
but also because of presumption of the law, or statutory requirements which sometimes put
proof of Authority, consent or Lawful excuse on the accused.

The principle of the burden of proof enshrines the presumption of innocence of the accused
not only in criminal cases but also in civil cases to and it will be shown that the presumption
is not only a provision within the Irish Constitution but also a provision within the E.C.H.R
Act, 20033. The Presumption can shift depending on the circumstances of the case or within
the wording of any Statute. It should be noted that the Legal Burden of Proof should not be
mistaken by the Evidential Burden of Proof, the Evidential Burden can and often shifts to the
accused and this principle is acceptable in Irish Law and subsequently in International Law as
well. Both circumstances have to maintain the principles of the fair Trial and procedures.4

Legislation could provide that the onus of proving that specific items were innocently
acquired be on the defendant. Alternatively, the onus is placed on the applicants for such an
order who presumably would have to meet the lower standard applicable in civil proceedings,
i.e. proof on the balance of probabilities. It would seem that this would be the appropriate
standard of proof in a forfeiture proceeding of this nature, although the matter is not free from
doubt.

While civil procedure of this nature is in itself presents serious constitutional difficulties. The
court would be depriving someone of their property on the basis of allegations of criminal
activity, where there has been no conviction or proof. The procedural safeguards surrounding
a criminal trial leading to confiscation are absent in civil proceedings. As was seen in

3
E.C.H.R 2003
4
IBID
Gilligan v Criminal Assets Bureau the Supreme Court held, the provisions of the Proceeds
of Crime Act, 2006 requires the respondent to show that the property was not the proceeds of
crime was constitutional; the respondent was in a unique position to account for it.

In a more recent case where the Burden has shifted from the defendant to the Prosecuting
party in a civil case based on the principle that the one whom asserts must prove. As it is in
civil cases on the balance of probabilities, in Mc Cann -v- Judges of Monahan District
Court & Ors5 the prosecuting parties had to prove beyond reasonable doubt, Justice Lafoy
held.

“The burden of proof that failure to pay is not due to his or her willful refusal or culpable
neglect is, effectively, imposed on the debtor, so that there is no onus on the creditor to
establish that the failure to pay the debt is not due to lack of means or inability to pay on the
part of the debtor. Such onus should be borne by the creditor and should only be discharged
by the application of the standard of proof in a criminal matter, proof beyond reasonable
doubt. The right to a “fair hearing” is the other notion which applies to civil cases which
differs from its application to criminal cases. In Dombo Beheer B v The Netherlands6,
contracting States have a greater latitude when dealing with civil cases concerning civil rights
and obligations than they have when dealing with criminal cases”

In the criminal proceedings, In the US the presumption of innocence is part of the due
process clause of the 14th Amendment, and is strictly observed in criminal proceedings.

In Donal O’Leary v Attorney General7, where the constitutionality of s24 of the Offences
Against the State Act 1939 and s3(2) of the Offences Against the State (Amendment) Act,
1972 was in issue. The first of these sections provides that, where a person is charged with
being a member of an unlawful organization, proof to the satisfaction of the court that an
incriminating document relating to the organization was found on him or on premises owned
or occupied by him is to be evidence that he was a member until the contrary is proved. The
second section provides, in relation to the same charge, that where a specified officer in
giving evidence states that he believes that the accused was at a material time a member, the
statement is to be evidence that he was such.

5
[2009] IEHC276
6
ECHR 27 OCT 1993
7
[S.C. No. 336 of 1990]
The defense of insanity is one of the exceptions where the Burden of proof shifts to the
accused asserting this defense. This is due to the fact that the English law Evidence does not
require the adoption of any particular rules of evidence; this is a matter for domestic law. At
common law in McNaughten [1843]8 it was not for the prosecution to disprove the defense,
this principle was approved in AG v Boylan9 Now, in charging the jury the learned Judge
directed the particular attention of the jury to the evidence of the three doctors, which he dealt
with in great detail, and this Court is satisfied that that evidence and the case made on behalf
of the accused was most fully and fairly put before the jury. But it is contended that the Judge
misdirected the jury as to the test that they should apply in determining whether the accused
was insane on the night in question.

The Judge directed the jury in accordance with what is called “the rule in McNaughton’s
Case” that in order to establish the defense of insanity it must be proved that at the time the
act was committed the accused was laboring under such a defect of reason, from disease of
the mind, that he did not know the nature and quality of the act he committed, or, if he did,
that he did not know that what he was doing was wrong.

The direction given by the Judge on that matter was that, the onus of proving the crime rests
upon the State, but insanity is a matter of defense, and the onus of proving that rests upon the
accused. The State must prove the facts of the crime, but where the defense is insanity it is
the accused who must prove it, and must prove it to your satisfaction. When you are
considering the question of insanity you are considering, of course, the state of mind of the
accused at the time this act was committed.

To sup with, the burden of proof of the charge is on the prosecution and the accused has the
benefit of doubt. No guilt can be presumed until the charge has been proved beyond
reasonable doubt. Further, the presumption of innocence implies a right to be treated in
accordance with this principle. It is, therefore, a duty for all public authorities to refrain from
prejudging the outcome of a trial.

8
(1943) 10 Cl. &F. 200
9
[1937] I.R 449
BIBLIOGRAPHY

Murdoch’s Dictionary of Irish Law 4th ed., Henry Murdoch, Dublin, Tottel, 2004.

The Law Reform Commission, (LRC 35-1991) Report on the Confiscation of the Proceeds
of Crime, First Published January 1991.

Right to a Fair Trial in Criminal Matters Under Article 6 E.C.H.R. Paul Mahoney, 2004.

The Right to a Fair Trial in Civil Cases, Christos Rozakis, 2004.

Evidence, Declan McGrath, Thomson Round Hall, Dublin, 2006.

European Convention on Human Rights Act, 2003.

CASES REFERED TO

McNaughten [1843] 10 Cl. &F. 200

AG v Boylan [1937] I.R 449

McIntosh v Lord Advocate Hcj 31 oct 2000

State v Coetzee (CR71-2019) NAHCMD365

Mc Cann -v- Judges of Monahan District Court & Ors [2009] IEHC276

Donal O’Leary v Attorney General [S.C. No. 336 of 1990]