The reverse burden of proof in Uganda

The reverse burden of proof applies where a party to proceedings such a defendant or accused person who does not ordinarily bear the burden of proof is required to prove certain facts after the party with the burden of proof has proved certain propositions. Historically a reverse burden of proof applied to the defence of insanity requiring the accused person to show on the balance of probabilities that he or she was suffering from a disease of mind that prevented him or her from understanding the nature of his or her actions or that his or her conduct is wrong at the time of committing the offence. The reverse burden of proof also applies to the corruption offense of illicitly acquired wealth.

Ordinarily in a criminal trial the burden of proof is on the prosecution to prove the guilty of the accused persons beyond reasonable doubt and this burden never shifts even though the evidentiary burden to introduce certain facts into evidence might shift to the accused person. A party bearing the legal burden on a particular issue usually also bears the evidential burden of proving that issue. There are three exceptions to this rule:

  • Certain criminal defences such as insanity.
  • Presumptions, and
  • Reverse burdens

A reverse burden of proof is usually treated as an evidential burden only, in order to ensure compatibility with Article 28 of the Constitution of Uganda which imposes a presumption of innocence (the right to a fair trial).See, R v Davies [2002] EWCA Crim 2949, R v Keogh [2007] EWCA Crim 528: However parliament can create a reverse legal burden of proof where it is justified and reasonable to do so. R v Lambert [2001] UKHL 37:

“If [a legal burden of proof on an accused] is created the matter in question must be taken as proved against the accused unless he satisfies the jury on a balance of probabilities to the contrary … If [an evidential burden only on the accused] is adopted the matter must be taken as proved against the accused unless there is sufficient evidence to raise an issue on the matter but, if there is sufficient evidence, then the prosecution have the burden of satisfying the jury as to the matter beyond reasonable doubt in the ordinary way … A transfer of a legal burden amounts to a far more drastic interference with the presumption of innocence than the creation of an evidential burden on the accused” (Lord Steyn, para 37).

Ordinarily every reverse burden of proof is interpreted as an evidentiary burden only with the prosecution retaining the burden to prove the guilty of the accused person. A legal reverse burden of proof is theoretically only possible where parliament expressly and clearly imposes one and it serves a very important state interest, is the least restrictive means of achieving the important state interest and only imposes a minimal burden on the right to be presumed innocent until proven guilty.


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