Reverse burdens of proof and Unexplained Wealth Orders Sean Molloy, Lecturer in Law, Northumbria University

Naomi Long- the Minister for Justice- has recently reaffirmed her intention to introduce Unexplained Wealth Orders (UWO) in Northern Ireland (NI). The Independent Reporting Commission (IRC) called for the move last November in a report which said the additional powers would help law enforcement tackle paramilitarism and organised crime. This would seem, to most, a perfectly legitimate approach and one that few would argue with. There are, nonetheless, some who have mounted opposition to them. This post does not attempt to advance a particular view on the presumption of innocence or reverse burdens, both of which are directly engaged in a discussion on UWOs. Rather, the purpose is to refute the argument that using UWOs will somehow lead to the roof falling in on the criminal justice system. As will become clear, reverse burdens are widely used in criminal law and have not led to the types of catastrophic scenarios that some unhelpfully seek to suggest when mounting their opposition.

Reverse burdens of proof and unexplained wealth orders
The context of the discussion at hand is the announcement by Justice Minister Naomi Long to introduce UWOs in Northern Ireland. UWOs were introduced in other jurisdictions two years ago under the Criminal Finances Act 2017 and have been used against people suspected of committing huge fraud or embezzlements abroad and then laundering that through property or other assets. The orders, obtained in court, reverse the burden of proof, forcing an individual to explain the source of assets of more than £50,000. Persons who fail to account are liable to have assets seized after the relevant agency (National Criminal Agency in England and Wales) makes a successful appeal to the High Court. In the context of Northern Ireland (NI), Ms Long proposes to use new powers to go after paramilitary and crime gang assets.

Against this backdrop, a blog on a website that goes by the name of Unionist Voice proposes the following: “Let us break down the logic of UWO’s; the positive intent is to deprive criminals of assets obtained by fruits of their crime. The means by which this is done is effectively shifting the burden of proof onto the ‘suspect’, and if the suspect is unable to discharge that burden then their private property becomes recoverable. That places incredible power in the hands of the state, which is no longer even required (unlike confiscation proceedings under POCA) to secure a criminal conviction in order to seize the assets of a person labelled as a suspected criminal, rather in theory a person who has never been tried by a jury of peers and as such has no criminal record, could be deprived of their property.”

The central issue in this statement- what the author terms a ‘legal philosophy’- is, in reality, a widely held one, not in any way unique but nevertheless important. It is that those accused of wrongdoing are presumed innocent until it is proven otherwise. This principle has a rich pedigree in common law systems and corresponds with the requirement that the burden of proof rests with the prosecution in criminal cases (or a claimant in a civil case). In the seminal judgement in Woolmington v DPP (1935), Lord Sankey LC in the House of Lords articulated this basic principle. He pronounced that “[t]hroughout 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.” In the context of criminal law, Article 6(2) of the European Convention on Human Rights, (ECHR) incorporated domestically via the Human Rights Act (HRA) 1998, reaffirms the principle in providing that: Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

In addition to countless national constitutions, the presumption can be found in article 48 of the EU Charter of Human Rights, Art. 7(1)(b) of the African Charter on Human and Peoples’ Rights, Art. 14 (2) of the International Convention for Civil and Political Rights, and in conventions that guarantee rights of a specific (vulnerable) group, such as children (Art. 40(2)(b)(i) of the Convention on the Rights of the Child), migrants (Art. 18(2) of the International Convention on the Protection of the Rights of Migrant Workers), and detainees (Principle 36 of the Body of Principles for the Protection of all Persons under any form of Detention or Imprisonment).

Underpinning this legal protection is, amongst other things, the recognition that ‘mud sticks’ and even accusations of wrongdoing can have very real consequences. The argument then is that by imposing the burden on an accused to prove that assets held are not the proceeds of crime, the presumption of innocence is violated and this can have many additional consequences, with very real life impacts. While most would disagree with the philosophy when applied to counteracting criminal activities of paramilitaries, the presumption of innocence is a salient principle and one held by many.

Reverse burdens: The beginning of the end?
The Unionist Voice blog nevertheless proceeds to note that: “If the proposition is that the ends justify the means in fighting crime; then why not apply the same logic to the investigation of the crime itself? Why not simply permit the state to discharge a ‘reasonable suspicion’ burden and convict and imprison suspected criminals on that basis? Why not apply the same logic to the investigation of the crime itself?”

These remarks are a different matter entirely. The narrative shifts from presenting a legal philosophy to instead proposing a wholly unrealistic and ultimately futile hypothetical set of questions and scenarios, which the author presumably believes justifies opposition to UWOs. In order to have the type of impact desired, this requires the recipient to have little knowledge of the use of reverse burdens. The argument forebodes that if reverse burdens are permitted in relation to UWO’s, it is unclear where their use will end. We might, it is suggested, end up convicting on the basis of reasonable suspicion, absent necessarily criminal standards and procedure. The essence of these remarks is that we are at a critical moment in the life of the legal system; one that could have profound and adverse impacts on the criminal justice system. It is, as noted, a ‘slippery slope’, with the implication that the use of reverse burdens in relation to UWOs could be used in far more intrusive ways.

The reality, however, is quite different. Legislatures frequently use reverse burdens and they are widely recognised as a legitimate legislative technique. The leading case before the European Court of Human Rights on the presumption of innocence- Salabiaku v France– affirmed that reverse burdens do not infringe Art. 6(2). It is for contracting parties to decide and the elements of a crime (offences and defences) are within the purview of state discretion. Lord Sankey’s remarks in the aforementioned case of Woolmington- the seminal judgement, which laid down the ‘golden thread rule’- acknowledged the existence of exceptions to the rule including the defence of insanity and statutory exceptions. Today, examples are not difficult to find. Strict liability, or regulatory offences, for instance, often consist of conduct which is criminal simply because it has been prohibited e.g.: driving or health and safety offences. These offences do not even invite the opportunity to mount any evidence to refute them. The defences of insanity and diminished responsibility impose legal burdens of proof on the accused on a balance of probability. They apply where the mental capacity of the accused at the time of the crime was in doubt. Most other criminal offences (with some exceptions, for example, murder) are found in statutes (for instance, the Theft Act 1968) and contrary to the rule that an accused does not have to prove his innocence, many of these offences also contain a defence which either expressly, or implicitly, reverses the burden of proof. Even over twenty years ago, Ashworth and Blake had already found that some 40 per cent of the most common indictable offences were found to have onus-reversing provisions [1].

Yet, despite the frequent use of reverse legal burdens, in proposing the series of questions cited above, there is an attempt to advance the possibility that we are in fact moving towards a scenario where, upon reasonable suspicion, people can be imprisoned on the basis of these presumptions.

As it is noted in the Unionist Voice blog: “That seems absurd; but it is not extremely far down the road upon which we have already embarked. If the fruits of alleged crime can be seized based on a reverse burden, then it is not extreme to imagine the next step is that convictions for the commission of crime itself will soon be based on similar reverse burdens.”

It is absurd and they will not; reverse burdens are widely used, have been for some time and have not led to anything of the sort.

The role of the courts
But even if we entertain the hypothetical that legislative bodies could begin to rapidly and arbitrarily insert reverse presumptions throughout and within criminal statutes, courts have long demonstrated their willingness to intervene when necessary. In R. v Lambert (Steven), for instance, the imposition of a legal burden on the accused in relation to serious drugs offences was held to be incompatible with Art.6(2) ECHR as it would lead to an accused being convicted of a charge carrying a maximum penalty of life imprisonment even if the jury thought it was as likely to be true that the accused did not know that a package contained drugs. Such an outcome was regarded as seriously unfair, since a conviction might rest on conduct which was not in any way blameworthy. However, the House of Lords applied S.3 of the HRA 1998 to read down the relevant statutory offence provisions, so that they only placed an evidential burden on the accused. An evidentiary burden requires only that an accused adduce some evidence to refute an allegation, with the burden then passing back to the prosecution to disprove (see for other examples, R. v Keogh, , R. v Webster (Matthew) and Shepherd v Information Commissioner,). For anyone who attempts to promote a view that somehow the inclusion of reverse burdens in the context of UWOs will lead to the widespread use of reverse burdens in all areas of criminal law, it is a simple exercise to challenge this position by a brief reference to case law, which illustrates the role of the courts in counteracting anything resembling these type of activities.

Individual rights v the public interest
It is nevertheless true that, at times, legislatures include reverse burdens that are upheld by courts. That courts do so reflects the complexity of criminal justice systems. This complexity is part of a recognised reality that criminal law and procedure must attempt to balance individual rights against other considerations, such as the interests of society. An inevitability of this tension is that one set of considerations must often prevail over the other. It is useful to consider some examples of courts attempting to achieve this equilibrium, not least because they help to demonstrate the types of public interest grounds that are deemed legitimate for encroachments on the presumption of innocence. For instance, in R. v Drummond it was held that S.15 of the Road Traffic Offenders Act 1988, which provides for a presumption in the use of specimens in proceedings for an offence under S.4 or 5 of the Road Traffic Act 1988, imposed a legal burden on the accused and was justified and proportionate to the aim of tackling the social evil of drink driving. In R. v Matthews (Mark Anthony), the Court of Appeal held that the derogation from the presumption of innocence in this case was objectively justified and the reverse onus was proportionate, striking a fair balance between the general interest in protecting the public from the risks posed by individuals having bladed articles in public without good reason, and protection of the fundamental rights of an accused.

It follows that the courts have on countless occasions held that the use of reverse legal burdens by legislatures can be justified in the public interest. But there is no free-for-all; balancing competing interests is a central feature of any criminal justice system. To perform this balancing act, the courts at times accept the common-sense approach that, in exceptional circumstances and when deemed in the public interest, those that are able to refute an allegation can quite easily dispense of the burden. Again, such an approach is not whimsically adopted without due regard to competing interests; it is part of the legitimate balancing act that the criminal justice system performs. For instance, in Gough v Chief Constable of Derbyshire, the requirement for a person subject to a ban on travelling abroad for the purpose of attending football matches to demonstrate that his foreign travel was for another purpose was compatible with Art.6(2), particularly as proof of the reason for travelling was likely to be within his knowledge, and proving such matters should not be very difficult. In 2016, in the case of Public Prosecution Service v Bryson, the defendant (B) appealed against his conviction for four offences of taking part in an unnotified procession contrary to the Public Processions (Northern Ireland) Act 1998 S.6(7). While accepting that he had taken part in the processions, the defendant relied on the defence provided by S.(8) of the Act, arguing that he had not known that the processions had not been notified as required by S.6(7). At trial, the defendant argued that the S.6(8) defence placed an evidential rather than a legal burden upon him. The judge, however, held that S.6(8) required her to consider matters that were within B’s knowledge and which he could readily prove, and she concluded that the imposition of a legal burden upon him was proportionate, within reasonable limits and not arbitrary.

Thus, despite their widespread and long-term use, there has not been a scenario where we convict on the basis of investigative presumptions and courts have proven more than capable of intervening in the interests of fairness when so required. But they do recognise that in some cases reversing the burden is wholly legitimate. For many, preventing the exploitation of innocent people from paramilitaries would be one such reason.

The sky will not, in fact, fall in
As should be clear, this post is not at all concerned with views as they pertain to the presumption of innocence. Arguably, there are reasonable exceptions to this presumption and legal theory is often required to give way to legal reality. Although it is difficult to conceive of an area more fitting for the use of a reverse burden than those proposed by Ms Long, that is a matter of personal opinion, open to debate and not the focus of this post.

The problem is that some seek to overstate the potential implications of utilising a reverse burden in relation to UWOs. Promoting unrealistic hypotheticals do not reflect reality and are wholly counterproductive to meaningful and informed debate. In conflating the presentation of a long-standing legal philosophy with unfounded hypothetical scenarios and obsolete questions, efforts to support arguments in opposition to reverse burdens is poor form and not at all convincing. At worst, those who attempt to do so demonstrate a poor understanding of the law in this area.

For clarity then, reverse burdens have long been used by legislatures and scrutinised, read down or upheld by courts. Despite claims to the contrary, the notion that they are the beginning of a complete erosion of due process or a ‘slippery slope’ is nothing short of fantasy, demonstrated by the fact that despite their widespread and long-term use, such circumstances have not come to pass. Arguments along these lines can be easily dismissed by looking to the rich history of legislation and case law on reverse burdens, noting as one does the continued absence of the dismembering of the criminal justice process that some attempt to suggest will come to pass.

[1] Andrew Ashworth and Meredith Blake, The Presumption of Innocence in English Criminal Law [1996] Crim.L.R. 306.