To what extent has the 'presumption of innocence' enunciated in the case Woolmington v DPP  AC 462 vis-a-vis criminal cases changed in light of the Human Rights Act 1998? Discuss. History
The sixth century Digest of Justinian (22.3.2) provides, as a general rule of evidence: Ei incumbit probatio qui dicit, non qui negat - Proof lies on him who asserts, not on him who denies”. It is there attributed to the second and third century jurist Paul. Similar to its Romanic predecessor, Islamic law also holds the principle that the onus of proof is on the claimant, based on a hadith documented by Imam Nawawi. The collapse of Western Modern Empire gave way to the rise of feudalistic justice system. Within it, there was no concept of presumption of innocence. Rather, it was the duty of the accused to prove his innocence, either by means of taking an oath of innocence or through undergoing life-threatening ordeals. It could thus be reasonably inferred that the defendants were required to prove their innocence beyond reasonable doubt. Contemporary Development
The presumption of innocence presumes the defendant to be innocent until proven guilty, with the prosecution required to prove all the elements of the offence beyond reasonable doubt. This principle was laid down by Viscount Sankey in Woolmington v DPP : “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 what I have already said as to the defence of insanity and subject also to any statutory exception...” This ‘golden thread’ was subsequently affirmed in Article 6(2) of the European Convention on Human Rights. While not a burden of proof per se, the defendant in a criminal trial has an evidential burden where he is seeking to rely on any common law defence other than insanity. Once the defence becomes a live issue, the prosecution must again prove beyond reasonable doubt that facts dictate otherwise before the jury can convict. Woolmington’s decision was profound as it changed the previous law by rejecting Foster’s doctrine of the presumption of malice. Secondly, its reference to the duty of the prosecution to prove the accused’s guilt, and holding that the prosecution also had the burden of disproving any common law defences that the accused had specifically raised. However it is doubtful how far it has had either effect, even after the Human Rights Act 1998. Exceptions to the presumption
Apart from his Lordship’s exclusion in Woolmington, the authority of McNaghten’s case clearly placed the burden of proof of insanity on the accused because ‘every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction…’ However in H v UK , the European Court of Human Rights ruled that the insanity exception did not breach Art 6(2) since the main concern was the presumption of sanity. Express Statutory Reversal
His Lordship also excluded “any statutory exception” from the scope of presumption of innocence. Statutory exceptions are commonly said to be of two types: express and implied. When express statutory provision obliges the accused to prove his defence, it will automatically shift a legal burden on him to prove his defence on the balance of probabilities without any assessment attached. Ashworth and Blake demonstrated the extent to which Parliament departed from Woolmington’s principle in relation to indictable offences. Their research found that no fewer than 40 per cent of offences triable in the Crown Court violated the presumption of innocence by requiring the defendant to prove a statutory defence or disprove at least one element of the offence. Implied Statutory Reversal
There are number of cases where an enactment may be constructed as impliedly imposing a legal burden on the accused. S.101 of the Magistrates Courts Act 1980 lays down the...
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Table of Cases
McNaghten (1843) 10 Cl
Salabiaku v France (A/141-A) (1991) 13 E.H.R.R. 379 ECtHR.
Attorney-General’s Reference (No.1 of 2004)  EWCA Crim 1025.
Attorney-General’s Reference (No.4 of 2002) EWCA Crim 762.
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