Report No. 69

IV. English Law

47.14. English Law.-

It would be of interest to note the English law on the subject. In English law, the exact scope and nature of burden of proof relating to a fact within the knowledge of a person seems to have fluctuated ever since the matter was considered. Discussion of the Subject usually begins with R. v. Turner, (1816) 5 M&S 206, in which the accused was charged with possessing certain game without legal authority, contrary to a statute. The statute provided for ten exceptional cases in which possession was to be regarded as with legal authority.

It was held that it was not incumbent upon the Crown to attempt to prove that none of the exceptions applied, and it was for the accused to adduce evidence to show that his case was within one of the exceptions. The facts are reminiscent of section 105 of our Act, and, in fact, Lord Ellenborough C.J. did not put the principle in terms of "peculiar knowledge," but decided the matter by applying the test that the statute, in effect, is "a prohibition on every person to kill game unless he brings himself within some one of the qualifications allowed by law, the proof of which is easy on the one side, but almost impossible on the other."

However, Bayley J. put the matter more widely, observing that "if a negative averment be made by one party, which is peculiarly within the knowledge of the other, the party within whose knowledge it lies and who asserts the affirmative is to prove it and not he who avers the negative."

Thus, the case was really of a statutory exception to penal liability, but the observations of Bayley J. raised the interesting aspect of "peculiar knowledge".

47.15. Rationale whether of peculiar knowledge.-

In some English cases "peculiar" knowledge and the need to avoid making a party prove the negative have been held, without express statutory words, to put an "evidential" burden on the accused: this commonly arises in crimes of carrying on some activity without a licence or certificate.1

1. John v. Humphreys, (1955) 1 All ER 793: 1 WLR 325.

47.16. Rationale.-

The placing of such burden is usually justified by the triviality of these offences and the desirability of lightening the prosecution burden in respect of them. For example, it has been held1 that the prosecution need not show that a person charged with practising a certain profession of carrying on a certain activity without a licence had no licence.

1. See cases in Phipson Manual of Evidence, (1972), p. 222.

47.17. There may be situations involving serious offences. In Hill v. Baxter, (1958) 1 All ER 193, the accused in a prosecution for dangerous driving pleaded that he be came unconscious as a result of sudden illness. He produced no evidence in support of his plea. The Magistrate acquitted him, and the prosecutor successfully appealed to the Divisional Court. Lord Goddard, C.J. held that the onus of proving that he was in a state of automatism was on the accused. This, he said, is not only akin to the defence of insanity, but it is a rule of the law of evidence that the onus of proving a fact, "which must be exclusively1 within the knowledge of a party", lies on him who asserts it. Of course, he added, in a criminal case, this onus on the defendant is not as high as it is on the prosecutor. It may be noted that in these observations, the word used is "exclusively" and not "peculiarly" or "especially2". Obviously, it was used in view of the special facts of the case.

1. Note the word "exclusively".

2. The word "exclusively" was also used by Lord Goddard in Cohen, (1951) 1 All ER 203 (206).

47.18. Rule limited to negative averments peculiarly within the knowledge.-

The rule as to peculiar knowledge is, however, in general, believed to apply in England only to negative averments where facts are within the peculiar knowledge of a person. Similarly, the rule does not apply even to negative averments, where the subject-matter is not peculiarly within the knowledge of the accused. For example, the prosecution must establish the absence of consent in cases of rape or criminal assault,1 even though consent is a matter within the special knowledge of the accused.

1. R. v. Donovan, (1934) 2 KB 498.

47.19. Thus, in Abrath's case,1 it was held by the Court of Appeal that in an action for malicious prosecution, the burden of proving the absence of reasonable and probable cause and also the burden of proving the factum of the offence was on the plaintiff. Bowen, L.J. (with whom Brett, M.R. and Fry L.J. concurred) put it on the principle that the correct test was to ask oneself which party would be successful if no evidence is given, or if no more evidence is given than has been given at a particular point of the case.

"If the assertion of a negative is an essential part of the plaintiff's case, the proof of assertion still rests upon the plaintiff". Noting the argument that sometimes it is said that an exception exists in those cases where the fact is peculiarly within the knowledge of the party, Bowen L.J. said that counsel had not gone to the length of contending that in all those cases, the onus shifts. "I think a proposition of that kind cannot be maintained, and that the exceptions supposed to be found amongst cases relating to the game law may be explained on special grounds."

1. Abrath v. North Eastern Rail Company, (1883) 11 QBD 440.

47.20. Burden whether legal or evidential.-

Where the rule applies on the facts, it is for the person concerned to prove that he had the requisite licence, but it is not clear whether this is merely an evidential burden or a legal burden. The distinction becomes of importance in this context because, if it is only the evidential burden, then even if the accused does not discharge that burden by producing his own evidence of the requisite licence or other qualification, he is not to be convicted if any reasonable doubt on any part of the case remains in the mind of the court.

This is because the "legal" burden of the prosecution remains undischarged, in view of the reasonable doubt that survives. However, there are dicta in a case1 decided by the Court of Appeal, suggesting that the accused has the burden of persuasion (legal burden) and must prove his qualification or licence on the balance of probabilities. It was believed upto 1944 that the prosecution must give prima facie evidence. But the Court of Criminal Appeal in Oliver2, held that the prosecution need not give even prima facie evidence.

1. R. v. Evens, (1967) 1 QB 322.

2. Oliver, 1944 KB 68: (1943) 2 All ER 800.

47.21. Some Judges in England seem to be prepared to go to the length of saying that whenever a fact is peculiarly within the knowledge of the accused, the burden of proof in respect of it is on him.1 If this means the persuasive burden, it would go far to destroy a cherished principle of law2. However, a close examination of the judgment in the later case of Cohen3 indicates that all that is referred to is the evidential burden. Moreover, the rule4 does not apply to every issue in respect of which the accused has peculiar knowledge of the facts, but (it would appear) is confined to statutory defences of licence, permission and the like.

1. Oliver, 1944 KB 68: (1943) 2 All ER 800

2. Williams Criminal Law, (1961) p. 983, para. 293(2).

3. Cohen, (1951) 1 KB 505: (1951) 1 All ER 203.

4. Williams Criminal Law, (1961), p. 983, para. 293(2).

47.22. If the persuasive burden of all facts within the knowledge of the accused were cast upon him, the rule would be directly contrary to the principle of Woolmington, for there is nothing more obviously within the knowledge of the accused than his own state of mind, yet the burden of proving this rests on the Crown.

47.23. Proof of defence.-

In England, the rule may not extend to defences. In R. v. Spurge, (1961) 2 QB 205, the accused raised the defence of mechanical defect as a defence to a charge of dangerous diving. His appeal against conviction failed, because he was aware of the defect. The following observations, however, are relevant as to the burden of proof:

"It has been suggested by counsel of the Crown that the onus of establishing any defence based on mechanical defect must be upon the accused, because necessarily the facts relating to it are peculiarly within his own knowledge. The facts, however, relating to a defence of provocation or self-defence to a charge of murder are often peculiarly within the knowledge of the accused, since often the only persons present at the time of killing are the accused and the deceased.

Yet, once there is any evidence to support these defences, the onus of disproving them undoubtedly rests upon the prosecution1. There is no rule of law that where the facts are peculiarly within the knowledge of the accused, the burden of establishing any defence based on these facts shifts to the accused. No doubt, there are a number of statutes where the onus of establishing a statutory defence is placed on the accused, because the facts relating to it are peculiarly within his knowledge. But we are not here considering any statutory defence."

1. Emphasis supplied.

47.24. View of Dr. Williams.-

Writing in 1961, Glanville Williams thus summarised the position1:

"To sum up this discussion, the position is that where a statute prohibits an act but provides exceptions, and the question whether he comes within the exceptions is peculiarly within the knowledge of the accused, the prosecution satisfies the evidential burden by giving evidence of the commission of the act, and the evidential burden of qualification or excuse is then on the accused. But the persuasive burden (it may be though) remains with the prosecution.2

Outside this rule, the prosecution must generally give some evidence of the commission of crime, even in respect of elements that lie peculiarly within the knowledge of the accused, before the case will be left to the jury; but where the matter is peculiarly within the knowledge of the accused, comparatively slight evidence on the part of the prosecution will be accepted."

1. Williams Criminal Law, (1961), p. 904, para. 293(2).

2. Emphasis added.

47.25. Recent case of R. v. Turne based on the frame of the offence.-

In a decision of the Court of appeal,1 reported in 1974, however, a different approach seems to have been taken. In that case, the accused was charged, on indictment, with selling by retail intoxicating liquor without holding a liquor licence to be issued by the Justices of the Peace authorising the sam.- such a sale being an offence under section (160)(1) of the Licensing Act, 1964. The prosecution had proved that the accused sold intoxicating liquor, but did not adduce any evidence to show that he did not get a licence.

Nevertheless, the accused was convicted, and his appeal was dismissed (after reviewing a number of authorities), by Lawton L.J., who said that as a result of experience an exception had been evolved to the fundamental rule that the prosecution must prove every element of the offence charged. The statement of law contained in his judgment differs in some respects from what was previously understood to be the position. The position as previously understood wa.- to state the matter broadl.- that the principle was confined to cases in which the accused had peculiar means of knowledge of the positive of a negative averment forming part of the case of the prosecution. Lawton L.J., after referring to the exceptional rule throwing the onus on the accused, put the reason for the rule in these words-

"This exception, like so much else in the common law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances2 or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge was laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisos3 exceptions and the like, then the prosecution can rely on the exception" (i.e. the exceptional rule as to burden of proof).

1. R. v. Edwards, (1974) 2 All ER 1085 (CA).

2. Emphasis added.

3. Emphasis supplied.

47.26. Position in England summed up.-

It would, thus seem that the law in England is in a fluid state. This is fairly clear if one takes into account the pronouncements in R. v. Spurge, supra, and R. v. Edwards, (1974) 2 All ER 1085, supra. The statement of the rule merely in terms of "facts within peculiar knowledge" may, it seems, well require some qualifications. The emphasis in the recent decision of R. v. Ewans, (1973) 2 WLR 1372 (1378), is on the aspect of exception to criminal liability- apparently, peculiar knowledge is also required.

47.27. In R. Ewans, it was observed1:

"There are several authorities in which reference has been made to the importance of the consideration that the facts which bring a defendant within the ambit of a particular exception, if they are peculiarly or exclusively within the knowledge of the defendant, should be regarded as matters which it is for him to establish and, that is not a mere matter of convenience. It is tolerably plain that there must be many statutory prohibitions which would become incapable of enforcement if the prosecution had to embark upon inquiries necessary to exclude the possibility of a defendant falling within a class of persons excepted by the section when the defendant himself knows perfectly well whether he falls within that class and has or should have readily available to him the means by which he could establish whether or not he is within the excepted class.

That consideration has proved a powerful one in enabling courts in the past to construe enactments such as the section now before us and we think that it is of the utmost persuasive importance in relation to this section and we take the view that the burden did lie on this defendant to show that he fell within the excepted class of a person who has possession of this scheduled drug as a result of the prescription of a qualified medical practitioner."

As to the nature of the burde.- i.e. whether the burden is legal or evidentiar.- again, there is, in England, some obscurity though, the better view seems to be' that it is evidentiary.

1. Cohen, (1951) 1 KB 505.

V. Conclusion

47.28. Conclusion.-

We have considered this discussion necessary for a proper appreciation of the position in regard to certain aspects of the application of the section. To make the discussion complete, we have referred to the fluctuating and uncertain position in England. But it is not our intention that our Courts should be guided by English cases in this context. We do not recommend any change in the section. The principle is sound, and if properly applied, the section will not lead to injustice.