In the recent case of Urquhart v HMA  HCJAC 101, the Appeal Court held that the reverse burden placed on an accused by section 38(2) of the Criminal Justice and Licensing (Scotland) Act 2010 is an evidential, not a legal, one.
Mr Urquhart was convicted of contravening section 38(1) by shouting, swearing and brandishing a sword at police officers. Perhaps surprisingly, given the terms of the libel, he had mounted a defence based, inter alia, on section 38(2).
Section 38(2) states, “It is a defence for a person charged with an offence under subsection (1) to show that the behaviour was, in the particular, circumstances, reasonable.”
Article 6(2) enshrines the presumption of innocence as a component of the right to a fair trial. This means that the burden of proving guilt rests with the prosecution. However, presumptions of law (legal burdens) and presumptions of fact (evidential burdens) are permitted provided they are kept within reasonable limits, the rights of the defence are maintained and they take proper account of the importance of what is at stake (Salabiaku v France (1991) 13 EHRR 379).
Mr Urqhuart did not argue that section 38(2) could not be compatible with Article 6. Rather the question for the Court was whether this provision imposes a legal burden, meaning that the accused has to prove the defence on balance of probabilities; or an evidential burden, meaning that accused has to raise the issue in evidence, with the burden remaining on the prosecution to disprove it.
Previous authorities (e.g. Glancy v HMA 2012 SCCR 52) make clear that in deciding this question, the Court should examine (i) the relevant statutory provisions; (ii) the activity prohibited and the measures directed at it by the statute; and (iii) the justification for the departure from the presumption of innocence.
Applying that analysis to section 38(2), the Court first noted that the language of the section was that the person charged needed “to show” rather than “to prove” or “to establish”. This, the Court said, supported the conclusion that the burden was only an evidential one. In fact, this may be a rather weak indicator of an evidential burden, since legal burdens have been found to exist in other statutory defences where the expression “to show” is used (e.g. R v Johnstone  UKHL 28 and Glancy v HMA 2012 SCCR 52).
Looking next at the activity prohibited by section 38(1), the Court’s view was that the offence created did not obviously support the imposition of a legal burden, given the spectrum of behaviour potentially criminalized by it. In other words, the mischief tackled by the provision might be minor, making a legal burden unreasonable.
Last the Court considered the justification for interpreting section 38(2) as imposing a legal burden. Legal burdens have been held to arise where the defence relates to matters closely conditioned with the accused’s own knowledge or state of mind and where the prosecution would face particular problems securing a conviction in the absence of a legal burden (Sheldrake v DPP Attorney General’s Reference (No. 4 of 2002)  EWCA Crim 762). In the context of section 38(2), however, the Court observed that the assessment of reasonableness is an entirely objective test and is not, of itself, amenable to proof. In other words, in order to rely on the defence, the accused may need not adduce any additional evidence beyond that led by the Crown in proof of its case.
It is, on the facts, not surprising that the Court decided that Mr Urquhart’s behaviour could not on any view be construed as reasonable. But in future cases, it will be interesting see whether there are circumstances in which the Court will conclude that, applying an objective test, the behaviour libelled was likely to cause a reasonable person fear or alarm, and yet the behaviour was, objectively, reasonable in the circumstances.