Reverse Burden of Proof

Reverse Burden of Proof

1. S.101 Magistrates Act 1980

   • Only applies to magistrates proceedings - if defendant wants to rely on fact he had a licence, burden switches to him

2. R v Edwards

   • D accused of selling alcohol without appropriate licence - 101 applies: defence must prove that he had a licence

3. R v Hunt

   • police found white powder in Ds possession - charged s.5(2) Misuse of Drugs Act 1971
     • ot an offence to possess morphine if less than 0.2% and not easily separable
       • Reverse burden of proof - D could not prove how much morphine was in the powder
         • Statute not clear - this burden needs to fall on the prosecution

4. Human Rights

   • R v Lambert
     • quantity of cocaine in rucksack, for prosecution to prove that he knew he had bag containing drug - then for D to prove that he didn't know
       • Accused therefore bears the burden of proof - he is innocent if he can show that he didn't have cocaine
         • Not in fitting with the presumption of innocence - innocent until proven guilty
     • Reverse onus violated human rights

5. When cases breach HRA - apply Lord Steyn's 3 stage test

   • 1 - Legislative interference, 2 - objective justification, 3 - proportionate?
     • Of Article 6(2)
     • is this interference objectively justified?
     • Is the interference proportionate?

6. Liberty at question

   • S.28 incompatible with Article 6
     • The word 'prove' should be read down to give sufficient evidence
       • Every reverse onus clause in English law must be measured for contention compliance on a case by case basis

7. R v Johnstone

   • Courts role is one of review

8. Sheldrake

   • Not incompatible with Article 6 - based on public policy (drink driving)
     • Lord Bingham - overriding concern should be right to fair trial

9. AG Reference (no 4 of 2002)

   • Member of terrorist organisation - raises defence that organisation was not on the list when last participated in activities
     • Court applied Lambert - policy
       • Difficult to prove that a person has 'not' participated - therefore the reverse burden is unreasonable
         • Should be read down to an evidential burden despite public policy

10. David Harner - 'complexity of the issue: unrealistic to expect the law to operate mechanically - matter of judgment'

11. Ian Dennis

    • Factors he considers
      • Maximum punishment
        • Significance - Should expect correlation between maximum penalties and decisions on compatibility
          • If provision cannot be read down, the court should make 'declaration of incompatibility'
            • Still a large problem - reverse cases: found in 40% of indictable statutory offences
      • Danger in convincing the innocent
      • Judicial deference
        • Lord Woolf - assumption should be that Parliament wouldn't have made an exception to presumption without good reason
      • Ease of proof
      • Classification of offence
        • Lambert - distinction between 'truly criminal acts' and those regulated in the public interest
          • Distinction not robust
      • Social danger/public policy