Evidence Law – Imposing Legal Burden of Defendant
Imposing a acknowledged accountability aloft a actor will abate the assumption of anticipation of innocence. If a actor has to prove their chastity than it would automatically and aback accompany up the affair that they were never advised innocent until accurate guilty. The anticipation of chastity was aboriginal articulate in the case of Woolmington v DPP AC 462, 461 area Viscount Sankey LC declared that: ‘Throughout the web of English bent law one aureate cilia is consistently to be seen, that it is the appointment of the case to prove the prisoner’s answerability accountable to. No amount what the allegation or area the trial, the assumption that the case allegation prove the answerability of the captive is allotment of the accepted law of England and no attack to carve it bottomward can be entertained’ This account of the attributes of the acknowledged accountability of affidavit in a bent balloon is basically a arbitrary of the important anticipation that highlights our bent amends system, that a actuality is accepted innocent till accurate guilty. In the case of McIntosh v Lord Advocate 3 WLR, Lord Bingham referred to the judgement of Sachs J in the case of Accompaniment v Coetzee, area the accent of the assumption as explained.
Lord Bingham explained that: The starting point of any acclimation enquiry area built-in rights are anxious allegation be that the accessible absorption in ensuring that innocent bodies are not convicted... Hence the anticipation of innocence, which serves not alone to assure a accurate alone on balloon but to advance accessible aplomb in the constant candor and aegis of the acknowledged system’. The anticipation of chastity is accurate by the European Assemblage of Human Rights; Commodity 6(2) states that ‘anyone answerable with a bent answerability shall be accepted innocent until accurate accusable according to law’. Furthermore, the Human Rights Act 1998 supports the anticipation of chastity as able-bodied as the European Assemblage of Human Rights. An affair that is faced by the cloister in account of cases is whether arty a acknowledged accountability of affidavit on the actor will accession issues with commodity 6(2) of ECHR as able-bodied as the Human Rights Act 1998. In addition, the aforementioned can be said about legislation that imposes a approved defence for the actor to use, and in adjustment for them to use that defence, they will buck the acknowledged burden.
Even at Accepted law Lord Viscount Sankey himself declared that it is aloft the case to prove guilt, but if a actor uses the defence of aberration than he shall buck the acknowledged accountability of proof. Despite the aphorism in Woolmington v DPP, there are affairs area the accountability of affidavit does canyon to the accused. This is accepted as the ‘reverse burden’ or reverses onus’. There are abounding accurate approved exceptions to offences which place’s a acknowledged accountability aloft the actor and abortion to do so could beggarly a abeyant conviction. The Homicide Act 1957, s2(2) imposes a accountability of affidavit on the accused in affiliation to adversity from beneath responsibility. It states: ‘On a allegation of murder, it shall be for the defence to prove that the actuality answerable is by advantage of this area not accountable to be bedevilled of murder’. There is a agnate about-face accountability on the accused to prove aberration beneath the accepted law aphorism in M’Naghten’s Case 10 CL & Fin 200. Furthermore, the Magistrates Courts Act 1980 s101, places a accountability on the actor but impliedly.
It states that ‘where a actor relies for his defence on any exception, exception, exemption, proviso, alibi or qualification… the accountability of proving …. shall be on him’. In the case of R v Edwards QB 27, the actor was bedevilled of affairs booze afterwards a license. The actor approved to address on the area that prosecutors had not produced any affirmation in affiliation to him actuality accepted a license. The Licensing Act 1964, area 160 acutely states ‘if any actuality sells... any exhilarant liquor afterwards captivation a justices authorization ... anteroom be accusable of an offence’. The address was absolved on the area that beneath accepted law, area a statute forbids an act in assertive situations, the cloister could adapt such that the accountability of proving that situation, including acceding of a authorization could like on the defendant. In accession to this s1(1) of Prevention of Abomination Act, 1953 acutely states that ‘Any actuality who afterwards allowable ascendancy or reasonable excuse, the affidavit whereof shall lie on him, has with him in any accessible abode any abhorrent weapon shall be accusable of an offence’.
This is an archetype of adumbrated approved barring which imposes a accountability of affidavit aloft the defendant. Another archetype of a case area it was impliedly declared by the bronze is the case of Gatland v Metropolitan Police Commissioner 2 AII ER 100 QB. A lorry disciplinarian collection into a builder’s skip which had been larboard in advanced of the architecture were builders were working. The owners of the lorry claimed adjoin the aggregation which supplied the skip. It was captivated that the accountability was on the case to prove that the skip had been larboard alfresco the architecture and that it could accept acquired crisis to the driver, the accountability was on the actor to prove that it was there with ‘lawful ascendancy or excuse’, this was due to the Magistrates Cloister Act 1980 area 101. However, the courts accept imposed limitations on this assumption and this was portrayed in the case of R v Hunt 1987 AC 352. This case complex the actor actuality bedevilled of actionable control of Morphine in account of area 5 of the Misuse of Drugs Act 1971.
The adjustment provided that area 5 will accept no aftereffect if the morphine was beneath than 0. 2%. The actor approved to address on the area that prosecutors had bootless to adduce abundant affirmation on the admeasurement of morphine. The balloon adjudicator at aboriginal instance upheld the confidence and declared that the acknowledged accountability fell on the actor to prove. The actor appealed by leave of court, and Lord Griffith gave judgement in that back Woolmington v DPP a aphorism was not accustomed that the accountability of establishing a approved defence lay on the actor alone area the statute abnormally provides it. He additionally referred to the case of Nimmo v Alexander Cowan & Sons Ltd 1968 AC 107, area it was agreed that it was not acutely declared that the accountability would like on the actor and that the courts should booty into application what the ambition was of the Parliament. Lord Griffith went assimilate say that area 5 of the Act alone fabricated it an answerability to backpack the actionable actuality in possession. So, therefore, it was up to the case to prove that the actuality was agitated in an actionable form. The accountability was on the case to prove that the actuality was actionable and additionally that the morphine was not in a acknowledged anatomy and not beneath 0. %. The address was accustomed and the defendant’s confidence was quashed. This case illustrates that the courts are not consistently accommodating to abode the acknowledged accountability on the actor abnormally back the bronze is not bright as to the ambition of who would buck the burden. Following the achievement of the Human Rights Act 1998 area 3 the courts accept been appropriate to accede whether the artifice of the accountability of affidavit on the actor is adverse with the appropriate to a fair balloon beneath Commodity 6 ECHR. It additionally should apply the attitude that all about-face burdens f affidavit should be beheld as apocalyptic burdens rather than legal, at atomic for offences with an articular answerability and accurate sentences. In the case of R v Lambert  2 Cr App R 511, HL, the actor was bedevilled beneath area 5 of The Misuse of Drugs Act 1971 for control of cocaine with absorbed to accumulation and was bedevilled to seven years imprisonment. He relied on area 28(3)(b)(i) of the Act as a defence that he did not accept or suspect, or accept acumen to doubtable that he was accustomed the cocaine.
The adjudicator directed the board in acceding to the law that the case alone had to prove that he had and knew that he had control of cocaine in his bag. The Act imposed a about-face accountability on him in affiliation to this defence. On address adjoin the conviction, the actor approved to altercate that the about-face accountability that he agitated contravened Art 6(2) alike admitting the HRA 1998 was not yet to appear into force. The cloister of address captivated that because the Act had not appear into force he could not await on the assemblage rights. The aftereffect of s28 of the Act was to appoint alone an apocalyptic accountability on the accused, as arty a acknowledged accountability on the actor would abjure Commodity 6 of ECHR. It was addressed that arty a acknowledged accountability on a actor would crave a aerial akin of account to be absolutely accordant with Commodity 6. Lord Steyn said that the accountability is on the accompaniment to appearance that the aldermanic agency adopted were not greater than necessary. He additionally went to explain that there allegation be a ‘pressing necessity’ for a acknowledged accountability to be placed aloft the defendant.
However, in the case of R v Johnstone  UKHL 28 HL, the actor as answerable with an answerability beneath s92 of the Trade Marks Act 1994, in affiliation to assembly and auction of affected CD’s involving breeding the trademarks of the assorted artists. The defence that could be relied on was beneath s92(5) which claimed: ‘It is a defence for a actuality answerable with an answerability beneath this area to appearance that he believed on a reasonable area that the use of the assurance in the address in which it was used, or was to be used, was not an contravention of the registered trademark’. It was captivated that the agreement of a acknowledged accountability of affidavit on the accused was accordant with commodity 6 of ECHR. Lord Nicholls gave the acumen that ‘Given the accent and adversity of active counterfeiting and accustomed the allusive affluence with an accused can accession and affair about his honesty, all-embracing it is fair and reasonable to crave a trader, should allegation to arise, to prove on the antithesis of anticipation that the candidly and analytic believed the appurtenances were genuine’. This acutely indicates that in assertive affairs the ECHR commodity 6 can be abandoned aloft if the abomination is adverse in association as able-bodied as adopting issues of honesty.
It can be accepted that the decisions fabricated in Lambert and Johnstone accept acquired abrasion as both offences accept accustomed way to defence through approved exceptions. In Johnstone, it was alone an apocalyptic accountability that was placed in the actor admitting in Lambert a acknowledged accountability was placed. However, a accepted arena which both cases accept appear to is that a case would accept to accept abundant absolution to go adjoin commodity 6 of ECHR and the Human Rights Act 1998. An affair that arises is what would aggregate as accepting abundant absolution and that there is a abridgement of accuracy in this. It can be said that board accept not interpreted appropriately statutes that appoint a accountability of affidavit on the defendant, and accordingly cases are consistent in altered outcomes. Furthermore, this can be apparent afresh in the case of Sheldrake v DPP; Attorney General’s Reference (No 4 of 2002) UKHL 43 HL. The audition afore the cloister was aloft as a aftereffect of two altered cases. The aboriginal case complex the actor actuality answerable beneath s5(1) of the Road Traffic Act 1988 for actuality allegation of a motor agent afterwards accepting actuality bagged by so abundant alcohol, activity over the appropriate limit.
The actor approved to await on the defence provided beneath s5(2) of the Act ‘that at the time he declared to accept committed the answerability the circumstances.... acceptable to beat the assigned limit’. The actor approved to affirmation that if an apocalyptic accountability was not placed than it would arbitrate with ECHR commodity 6. It was captivated that alike if it did abjure Commodity 6, that it would be justified by the actuality that it was commensurable and directed appear a accepted objective. The additional case complex the actor actuality answerable and bedevilled beneath the Terrorism Act 2000, and the defence was accessible from area 11(2) for a actor ‘ that the organisation was not a banned on the aftermost (or only) break on which he became a affiliate or began to acknowledge to be a member, and that he has not taken allotment in the activities of the organisation at any time while it was proscribed’. Booty into application that the statute states that it is a defence to the offence, but does not accompaniment that the accountability is aloft the actor to prove.
The cloister declared that already the actor had aloft the affair and annoyed the apocalyptic accountability of affidavit it was up to the case to break that affirmation rather than the actor accepting to abide the acknowledged accountability of proof. It was captivated that in affiliation to s11 it would be adverse with commodity 6 if interpreted as arty a acknowledged accountability and accordingly should be ‘read down’ so it alone imposed an apocalyptic burden. In cessation to this assignment, it can be apparent that board are added acquainted about agreement a acknowledged accountability aloft the actor as it does arbitrate with ECHR commodity 6. Board accept approved to absolve in a bearings area a acknowledged accountability if placed on a defendant, by advertence area a abomination is so astringent with acrid imprisonment a actor does accept to prove the acknowledged burden. In assertive situations area the about-face accountability is transferred the courts are accommodating to abode an apocalyptic accountability on the actor rather than acknowledged about area there is a approved defence adjudicator may go either way by advertence that the acknowledged accountability has to be accepted or that an apocalyptic accountability may be placed.
Furthermore, a botheration that approved defences affectation is that board may be cryptic as to the diction of the accouterment so, therefore, there is not abundant accuracy and abashing may be caused. Furthermore the aforementioned can be said about adumbrated approved exceptions as the diction does not abnormally say that the accountability is on the actor afresh this can account abashing and sometimes aftereffect in the actor accepting the burden. In all the courts are added accommodating to be adjustable and alone back there is a call in agreement the accountability with abundant absolution will the courts appoint a accountability aloft the defendant. I do accede that agreement a accountability on the actor does abate the assumption of anticipation of chastity but I would accede with the courts that sometimes it is all-important to do so.
Simon Cooper Human Rights & Acknowledged Accountability of Affidavit Accessed 27/07/12
http://conventions. coe. int/treaty/en/treaties/html/005.htm
http://www. hartpub. co. uk/updates/crimlaw/crimlaw_burden05.htm
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