Reversal of Legal Burden of Proof in Criminal Case could interfere with the right to a fair trial, Commission Argues

The Irish Human Rights and Equality Commission (the ‘Commission’) has argued before the Supreme Court that a law that reverses the burden of proof on to an accused person, thereby putting a legal burden on them to disprove an element of an offence, interferes with their right to a fair trial as protected by the Constitution.

The Commission, in its function of amicus curiae (‘Friend of the Court’) in the case of CW v Minister for Justice, Ireland and the Attorney General, submitted that a clear and compelling justification is required for such a step to be taken and that the Court must be satisfied that the interference is not so great as to render a trial outside of “in due course of law” as used in Article 38.1.

The High Court in this case found that the defence of reasonable mistake as to age, as set out in section 3(5) of the Criminal Law (Sexual Offences) Act 2006, could not be regarded as a ‘special defence or exception’, as it imposed a legal, as distinct from an evidential burden, on the accused person, which could amount to a breach of the presumption of innocence and therefore be unconstitutional. The State appealed that decision to the Supreme Court.

In legal submissions made this week before the Supreme Court, the Commission argued that the transfer of legal burden cannot be justified solely by reference to the gravity of an offence or the importance of rights protected by that offence.

To assist the Court, the Commission cited Canadian case law that endorsed a standard where the justification for the transfer of the burden required that prosecution of an offence would otherwise be rendered ‘unworkable’. The Commission goes on to say that “[t]he justification for transferring the legal burden is not primarily dependent on questions of social policy, like the delineation of criminal liability is. It is the impact of the transfer on the fairness of a criminal trial which determines whether the measure is proportionate and constitutional”

The Commission was using its powers under the Irish Human Rights and Equality Commission Act 2014. It allows us to apply for permission to appear as amicus curiae in the High Court, Court of Appeal and the Supreme Court, in cases concerning human rights and equality that have consequences in the wider public interest.

Sinéad Gibney, Chief Commissioner of the Irish Human Rights and Equality Commission stated:

“Given its importance to the integrity of the justice system, a reversal of the burden of proof, particularly in a criminal case where the accused person’s right to liberty is at stake, must always be subject to the highest tests and exist within the parameters set by the Constitution.

We are grateful that we could assist the Supreme Court in this important constitutional case.”

For further information, please contact:
Sarah Clarkin, IHREC Communications Manager,
01 852 9641 / 087 468 7760
Follow us on twitter @_IHREC

Editor’s Note

The Commission’s written submissions to the Supreme Court in the proceedings are available at the following link:

Irish Human Rights and Equality Commission

The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act (2014) to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State.

The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.