'Evidence Law – Imposing Legal Burden of Defendant\r'

'Imposing a approach- rateed horizontalt upon a suspect will nullify the rationale of assertion of innocence. If a suspect has to exhibit their innocence than it would automatic each(prenominal)y and unconsciously bring up the neck that they were never considered fair until conjure upn indictable. The premise of innocence was first articulated in the character reference of Woolmington v DPP [1935] AC 462, 461 where Viscount Sankey LC verbalize that: ‘Throughout the electronic ne bothrk of English criminal law one well-heeled thread is always to be seen, that it is the duty of the pursuit to demonstrate the captive’s guilty pillow slip to…No matter what the charge or where the trial, the ruler that the quest essential prove the guilt of the prisoner is part of the roughhewn law of England and no exploit to whittle it down tolerate be amused’ This statement of the nature of the wakeless send of demonstration in criminal tria l is basically a summary of the important presumption that highlights our criminal setness system, that a person is presumed innocent till proven guilty. In the fictitious character of McIntosh v maestro propose [2001] 3 WLR , superior Bingham referred to the judgement of Sachs J in the slick of State v Coetzee [1997] where the importance of the principle as explained.Lord Bingham explained that: The starting point of all equilibrise enquiry where constitutional rights ar concerned essential be that the public interest in ensuring that innocent people ar non convicted… Hence the presumption of innocence, which serves non moreover to protect a special(a) individual on trial, notwithstanding to maintain public confidence in the enduring integrity and auspices of the reasoned system’. The presumption of innocence is back up by the European Convention of pitying Rights; oblige 6(2) states that ‘anyone aerated with a criminal offensive activity shall be presumed innocent until proven guilty according to law’.Furthermore the forgiving Rights Act 1998 supports the presumption of innocence as well as the European Convention of military personnel Rights. An income tax return that is faced by the judicatory of law in prise of cases is whether imposing a lawful loading of test copy on the suspect will awake issues with bind 6(2) of ECHR as well as the gay Rights Act 1998. In addition the same dejection be said about legislation that bring downs a statutory exoneration for the suspect to use, and in order for them to use that vindication they will bear the sub judice shipment.Even at Common law Lord Viscount Sankey himself tell that it is upon the criminal prosecution to prove guilty, scarcely if a defendant uses the demur of insanity than he shall bear the legal core group of proofread. Despite the rule in Woolmington v DPP, there ar helping where the encumbrance of proof does pass to the cri minate. This is known as the ‘reverse marrow’ or reverse onus’. There are many express statutory exceptions to offences which short letter’s a legal buck upon the defendant and misadventure to do so could mean a effectiveness conviction.The Homicide Act 1957, s2(2) imposes a heart and soul of proof on the accused in congener to suffering from superfluous responsibility. It states: ‘On a charge of clear up, it shall be for the defence to prove that the person charged is by fair play of this region not liable to be convicted of murder’. There is similar reverse burden on the accused to prove insanity under the common law rule in M’Naghten’s Case [1843] 10 CL & fivesome 200. Furthermore the Magistrates motor lodges Act 1980 s101, places a burden on the defendant but impliedly.It states that ‘where a defendant relies for his defence on any exception, exception, exemption, proviso, vindicate or skill… th e burden of proving …. shall be on him’. In the case of R v Edwards [1975] QB 27, the defendant was convicted of selling alcoholic beverage without a license. The defendant tried to bring up on the causa that prosecution had not produced any bear witness in congener to him existence granted a license. The Licensing Act 1964, section 160 clear states ‘if any person sells… any intoxicating liquor without retention a justices license … hall be guilty of an offence’. The appeal was dismissed on the grounds that under common Law, where a statue forbids an act in trusted dapples, the court could interpret such that the burden of proving that situation, including granting of a license could ilk on the defendant. In addition to this s1(1) of Prevention of execration Act 1953 intelligibly states that ‘Any Person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any w retched weapon shall be guilty of an offence’.This is lawsuit of implied statutory exception which imposes a burden of proof upon the defendant. Another example of a case where it was impliedly stated by statue is the case of Gatland v metropolitan patrol Commissioner [1968] 2 AII ER ampere-second QB. A camion driver drove into a builder’s skip which had been left in front of twist were builders were working. The owners of the lorry claimed against the company which supplied the skip. It was held that the burden was on the rosecution to prove that the skip had been left outside the building and that it could set out conditiond danger to the driver, the burden was on the defendant to prove that it was there with ‘lawful authority or excuse’, this was due to the Magistrates Court Act 1980 section 101. so far the courts hand imposed limitations on this principle and this was pictured in the case of R v guide 1987 AC 352. This case involved the defen dant being convicted of irregular will power of Morphine in respect of section 5 of the misemploy of Drugs Act 1971.The principle provided that section 5 will collapse no effect if the morphine was less than 0. 2%. The defendant tried to appeal on the grounds that prosecution had failed to adduce enough evidence on the equilibrium of morphine. The trial judge at first instance upheld the conviction and stated that the legal burden evil on the defendant to prove. The defendant appealed by pull out of court, and Lord Griffith gave a judgement in that since Woolmington v DPP [1935] a rule was not established that the burden of establishing a statutory defence lay on the defendant only where the statue expressly provides it.He also referred to the case of Nimmo v Alexander Cowan & Sons Ltd 1968 AC 107, where it was concur that it was not clearly stated that the burden would like on the defendant, and that the courts should take into consideration what the intention was of t he Parliament. Lord Griffith went onto say that section 5 of the Act only made it an offence to carry the illegal distinctionification in possession. So accordingly it was up to the prosecution to prove that the substance was carried in an illegal form. The burden was on the prosecution to prove that the substance was unlawful and also that the morphine was not in a legal form and not under 0. %. The appeal was allowed and the defendant’s conviction was quashed. This case illustrates that the courts are not always uncoerced to place the legal burden on the defendant especially when statue is not clear as to the intention of who would bear the burden. sideline the performance of the Human Rights Act 1998 section 3 the courts have been filld to consider whether the imposition of the burden of proof on the defendant is incompatible with the right to a fair trial under name 6 ECHR. It also should employ the attitude that all reverse burdens f proof should be viewed as evid entiary burdens alternatively than legal, at least for offences with an set guilt and rigorous sentences. In the case of R v lambert [2001] 2 Cr App R 511, HL, the defendant was convicted under section 5 of The Misuse of Drugs Act 1971 for possession of cocaine with intent to grant and was sentenced to seven years imprisonment. He relied on section 28(3)(b)(i) of the Act as a defence that he did not believe or suspect, or have reason to suspect that he was carrying the cocaine.The judge enjoin the jury in agreement to the law that the prosecution only had to prove that he had and knew that he had possession of cocaine in his bag. The Act imposed a reverse burden on him in relation to this defence. On appeal against the conviction, the defendant tried to urge that the reverse burden that he carried go againstd Art 6(2) even though the HRA 1998 was not yet to keep up into storm. The court of appeal held that because the Act had not come into force he could not rely on the de sign rights.The result of s28 of the Act was to impose only an evidential burden on the accused, as imposing a legal burden on the defendant would nullify Article 6 of ECHR. It was addressed that imposing a legal burden on a defendant would require a high level of accounting to be actually compatible with Article 6. Lord Steyn said that the burden is on the state to describe that the legislative means adopted where not considerable than necessity. He also went to explain that there must be a ‘pressing necessity’ for a legal burden to be placed upon the defendant.However in the case of R v Johnstone [2003] UKHL 28 HL, the defendant as charged with an offence under s92 of the softwood Marks Act 1994, in relation to takings and sale of counterfeit CD’s involving reproducing the trademarks of the unlike artists. The defence that could be relied on was under s92(5) which claimed: ‘It is a defence for a person charged with an offence under this section to show that he believed on a reasonable grounds that the use of the sign in the manner in which it was used, or was to be used, was not an infringement of the registered trade mark’.It was held that the placing of a legal burden of proof on the accused was compatible with article 6 of ECHR. Lord Nichollos gave the savvy that ‘Given the importance and difficulty of combating counterfeiting, and given the relative ease with an accused piece of tail raise and issue about his honesty, overall it is fair and reasonable to require a trader, should need arise, to prove on the brace of probability that the honestly and reasonably believed the goods were genuine’. This clearly indicates that in certain circumstances the ECHR article 6 can be infringed upon if the crime is detrimental in society as well as breeding issues of honesty.It can be inferred that the decisions made in liter and Johnstone have caused friction as both offences have given way to a defence thro ugh with(predicate) statutory exceptions. In Johnstone it was only an evidential burden that was placed in the defendant whereas in cubic decimetre a legal burden was placed. However a common ground which both cases have come to is that a case would have to have spacious plea to go against article 6 of ECHR and the Human Rights Act 1998. An issue that arises is what would constitute as having great justification and that there is a lack of uncloudedness in this.It can be said that resolve have not interpret properly statutes that impose a burden of proof on the defendant, and therefore cases are resulting in different outcomes. Furthermore this can be seen again in the case of sheldrake v DPP; attorney ecumenic’s pen (No 4 of 2002) UKHL 43 HL. The hearing before the court was raised as a result of two different cases. The first case involved the defendant being charged under s5(1) of the Road work Act 1988 for being charge of a aim vehicle after having being intox icated by so much alcohol, going over the call for limit.The defendant tried to rely on the defence provided under s5(2) of the Act ‘that at the time he alleged to have committed the offence the circumstances…. likely to exceed the prescribed limit’. The defendant tried to claim that if an evidential burden was not placed than it would intervene with ECHR article 6. It was held that, even if it did contravene Article 6, that it would be justified by the particular that it was proportionate and directed towards a legitimate objective.The fleck case involved the defendant being charged and convicted under the Terrorism Act 2000, and a defence was available from section 11(2) for a defendant ‘ that the government activity was not a proscribe on the start (or only) occasion on which he became a segment or began to profess to be a member, and that he has not taken part in the activities of the disposal at any time while it was proscribed’. Take int o consideration that the statue states that it is a defence to the offence, but does not state that the burden is upon the defendant to prove.The court stated that once the defendant had raised the issue and satisfied the evidential burden of proof it was up to the prosecution to rebut that evidence rather than the defendant having to undergo the legal burden of proof. It was held that in relation to s11 it would be incompatible with article 6 if interpreted as imposing a legal burden and therefore should be ‘read down’ so it only imposed an evidential burden. In closedown to this assignment it can be seen that judges are more conscious about placing a legal burden upon the defendant as it does intervene with ECHR article 6.Judges have tried to justify in situation where a legal burden if placed on a defendant, by stating where a crime is so severe with harsh imprisonment a defendant does have to prove the legal burden. In certain situations where the reverse burden is transferred the courts are willing to place an evidential burden on the defendant rather than legal however where there is a statutory defence judges may go all way by stating that the legal burden has to be proved or that an evidential burden perchance placed.Furthermore a problem that statutory defences poses is that judges perchance unclear as to the wording of the provision so therefore there is not much uncloudedness and confusion maybe caused. Furthermore the same can be said about implied statutory exceptions as the wording does not expressly say that the burden is on the defendant again this can cause confusion and sometimes result in the defendant having the burden. In all the courts are more willing to be flexible and only when there is a necessity in placing the burden with great justification will the courts impose a burden upon the defendant.I do agree that placing a burden on the defendant does negate the principle of presumption of innocence but I would agree wit h the courts that sometimes it is necessary to do so. Word count: 2655 Bibliography Cases McIntosh v Lord encourage [2001] 3 WLR Woolmington v DPP [1935] AC 462, 461 Gatland v Metropolitan Police Commissioner [1968] 2 AII ER 100 QB R v Lambert [2001] 2 Cr App R 511, HL Sheldrake v DPP; Attorney familiar’s Reference (No 4 of 2002) UKHL 43 HL R v Edwards [1975] QB 27 of R v Hunt 1987 AC 352 Books C Taylor indicate Pearson Education hold 1st Edition 2010C Allen A Practical ply To Evidence Cavendish Publishing 4th Edition 2008 put back of Statue Homicide Act 1957 Human Rights Act 1998 Licensing Act 1964 Magistrates Court Act 1980 Misuse of Drugs Act 1971 Prevention of Crime Act 1953 Road Traffic Act 1988 business deal Marks Act 1994 EU Legislation European Convention of Human Rights Journal http://webjcli. ncl. ac. uk/2003/issue3/cooper3. hypertext mark-up language Simon make Human Rights & licit Burden of verification Accessed 27/07/12 Website http://conventions. co e. int/treaty/en/treaties/ hypertext mark-up language/005. htm Accessed 02/08/12 http://www. legislation. gov. uk/ukpga/1998/42/section/3 Human Rights Act 1998 s3 Accessed 12/08/12 ttp://www. hartpub. co. uk/updates/crimlaw/crimlaw_burden05. htm Burden of Proof, Accessed 12/08/12 http://www. lawgazette. co. uk/ intelligence information/r-v-hunt-richard Accessed 06/08/12 http://www. lawgazette. co. uk/news/r-v-hunt-richard Accessed 06/08/12 ——————————————†[ 1 ]. http://webjcli. ncl. ac. uk/2003/issue3/cooper3. html Simon Cooper Human Rights & Legal Burden of Proof Accessed 27/07/12 [ 2 ]. McIntosh v Lord Advocate [2001] 3 WLR judgment of Lord Bingham [ 3 ]. http://conventions. coe. int/treaty/en/treaties/html/005. htm Accessed 02/08/12 [ 4 ]. Woolmington v DPP [1935] AC 462, 461 [ 5 ]. http://www. egislation. gov. uk/ukpga/Eliz2/5-6/11/section/2 Homicide Act 1957 s2(2) [ 6 ]. C TaylorEviden ce Pearson Education Limited 2010 pg 15 [ 7 ]. http://www. legislation. gov. uk/ukpga/1980/43/section/101 Magistrates Courts Act 1980 s101 [ 8 ]. R v Edwards [1975] QB 27 [ 9 ]. Gatland v Metropolitan Police Commissioner [1968] 2 AII ER 100 QB [ 10 ]. of R v Hunt 1987 AC 352 [ 11 ]. http://www. lawgazette. co. uk/news/r-v-hunt-richard Accessed 06/08/12 [ 12 ]. http://www. lawgazette. co. uk/news/r-v-hunt-richard Accessed 06/08/12 [ 13 ]. http://www. legislation. gov. uk/ukpga/1998/42/section/3 Human Rights Act 1998 s3 Accessed 12/08/12 [ 14 ]. ttp://www. hartpub. co. uk/updates/crimlaw/crimlaw_burden05. htm Burden of Proof, Accessed 12/08/12 [ 15 ]. R v Lambert [2001] 2 Cr App R 511, HL [ 16 ]. R v Lambert [2001] 2 Cr App R 511, HL [ 17 ]. C Allen A Practical Guide To Evidence Cavendish Publishing 2008 pg 168 [ 18 ]. R v Johnstone [2003] UKHL 28 HL [ 19 ]. R v Johnstone [2003] UKHL 28 HL [ 20 ]. Sheldrake v DPP; Attorney General’s Reference (No 4 of 2002) UKHL 43 HL [ 21 ]. h ttp://www. legislation. gov. uk/ukpga/2000/11/section/11 [ 22 ]. Sheldrake v DPP; Attorney General’s Reference (No 4 of 2002) UKHL 43 HL\r\n'