Mapa mental
Reverse Burden of Proof
Conteúdo do mapa
Reverse Burden of Proof
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
R v Edwards
- D accused of selling alcohol without appropriate licence - 101 applies: defence must prove that he had a licence
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
- Reverse burden of proof - D could not prove how much morphine was in the powder
- ot an offence to possess morphine if less than 0.2% and not easily separable
- police found white powder in Ds possession - charged s.5(2) Misuse of Drugs Act 1971
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
- Accused therefore bears the burden of proof - he is innocent if he can show that he didn't have cocaine
- Reverse onus violated human rights
- 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
- R v Lambert
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?
- 1 - Legislative interference, 2 - objective justification, 3 - proportionate?
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
- The word 'prove' should be read down to give sufficient evidence
- S.28 incompatible with Article 6
R v Johnstone
- Courts role is one of review
Sheldrake
- Not incompatible with Article 6 - based on public policy (drink driving)
- Lord Bingham - overriding concern should be right to fair trial
- Not incompatible with Article 6 - based on public policy (drink driving)
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
- Difficult to prove that a person has 'not' participated - therefore the reverse burden is unreasonable
- Court applied Lambert - policy
- Member of terrorist organisation - raises defence that organisation was not on the list when last participated in activities
David Harner - 'complexity of the issue: unrealistic to expect the law to operate mechanically - matter of judgment'
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
- If provision cannot be read down, the court should make 'declaration of incompatibility'
- Significance - Should expect correlation between maximum penalties and decisions on compatibility
- 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
- Lambert - distinction between 'truly criminal acts' and those regulated in the public interest
- Social danger/public policy
- Maximum punishment
- Factors he considers
Informações
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- Mapa Mental sobre Reverse Burden of Proof, criado por grace_nisbet em 14-04-2016.
- Criado por
- grace_nisbet
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