Evidence Law – Imposing Legal Burden of Defendant

Imposing a efficacious essence upon a suspect leave alone invalidate the principle of presumption of whiteness. If a suspect has to prove their sinlessness than it would automatically and unconsciously bring up the issue that they were never considered innocent until proven guilt tripy. The presumption of innocence was first articulated in the shift of Woolmington v DPP 1935 AC 462, 461 where Viscount Sankey LC express that end-to-end the web of English deplorable law one golden thread is always to be seen, that it is the affair of the prosecution to prove the prisoners guilty subject toNo matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained This statement of the nature of the healthy institutionalise of verification in criminal trial is basically a summary of the important presumption that highlights our criminal justi ce system, that a person is presumed innocent till proven guilty. In the case of McIntosh v professional Advocate 2001 3 WLR , schoolmaster Bingham referred to the judgement of Sachs J in the case of State v Coetzee 1997 where the magnificence of the principle as explained. overlord Bingham explained that The starting point of any balancing enquiry where constitutional rights are touch on must be that the public interest in ensuring that innocent people are non convicted and so the presumption of innocence, which serves non scarcely to protect a particular individual on trial, but to adduce public confidence in the enduring integrity and security of the legal system. The presumption of innocence is supported by the European prescript of Human Rights bind 6(2) states that anyone charged with a criminal offensive shall be presumed innocent until proven guilty according to law.Furtherto a greater extent the Human Rights practice 1998 supports the presumption of innocence a s well as the European Convention of Human Rights. An issue that is faced by the approach in respect of cases is whether imposing a legal level of proof on the suspect bequeath raise issues with article 6(2) of ECHR as well as the Human Rights snatch 1998. In addition the kindred can be give tongue to about legislation that imposes a statutory refutation for the suspect to use, and in order for them to use that defending team they will be generate the legal weight.Even at Common law Lord Viscount Sankey himself stated that it is upon the prosecution to prove guilty, but if a defendant uses the demur of insanity than he shall bear the legal burden of proof. Despite the rule in Woolmington v DPP, there are circumstances where the burden of proof does pass to the accused. This is known as the sneak burden or reverse onus. in that respect are many express statutory exceptions to offences which places a legal burden upon the defendant and failure to do so could mean a potent ial conviction.The Homicide conduct 1957, s2(2) imposes a burden of proof on the accused in relation to suffering from diminished responsibility. It states On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section non liable to be convicted of murder. There is similar reverse burden on the accused to prove insanity chthonic the common law rule in MNaghtens Case 1843 10 CL & break water 200. Furthermore the Magistrates Courts ferment 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, remedy or qualification the burden of proving . shall be on him. In the case of R v Edwards 1975 QB 27, the defendant was convicted of selling alcohol without a license. The defendant tried to appeal on the intellect that prosecution had non produced any evidence in relation to him be granted a license. The Licensing Act 1964, sect ion 160 intelligibly states if any person sells any intoxicating liquor without attribute a justices license hall be guilty of an offence. The appeal was dismissed on the grounds that infra common Law, where a statue forbids an act in certain situations, the court could interpret such that the burden of proving that situation, including granting of a license could like on the defendant. In addition to this s1(1) of Prevention of Crime Act 1953 devolvely 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 offensive weapon shall be guilty of an offence.This is prototype of implied statutory exception which imposes a burden of proof upon the defendant. A nonher example of a case where it was impliedly stated by statue is the case of Gatland v Metropolitan police force Commissioner 1968 2 AII ER 100 QB. A camion driver drove into a builders skip which had been left in front of building 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 cod caused 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. However the courts realise imposed limitations on this principle and this was visualized in the case of R v Hunt 1987 AC 352. This case involved the defendant being convicted of unlawful possession of Morphine in respect of section 5 of the Misuse of Drugs Act 1971.The regulating provided that section 5 will swallow 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 equaliser of morphine. The trial judge at first instance upheld the conviction and stated that the lega l burden pilot on the defendant to prove. The defendant appealed by leave 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 agreed 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 the Parliament. Lord Griffith went onto severalise that section 5 of the Act only made it an offence to carry the illegal substance in possession. So therefore 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 below 0. %. The appeal was allowed and the defendants conv iction was quashed. This case illustrates that the courts are not always willing to place the legal burden on the defendant especially when statue is not clear as to the intention of who would bear the burden. Following the performance of the Human Rights Act 1998 section 3 the courts amaze been withdrawd to consider whether the imposition of the burden of proof on the defendant is in matched with the right to a fair trial under Article 6 ECHR. It also should employ the attitude that all reverse burdens f proof should be viewed as evidential burdens rather than legal, at least for offences with an identified 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 cocain with intent to supply and was sentenced to cardinal 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 th at he was carrying the cocaine.The judge directed the control panel 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 argue that the reverse burden that he carried contravened Art 6(2) even though the HRA 1998 was not yet to come into force. The court of appeal held that because the Act had not come into force he could not rely on the convention 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 contravene Article 6 of ECHR. It was addressed that imposing a legal burden on a defendant would require a high level of explanation to be actually compatible with Article 6. Lord Steyn said that the burden is on the state to show that the legislative means adopted where not greater than necessity. He also went to explain that there must be a pressing necessity for a legal burden to be primed(p) 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 Trade Marks Act 1994, in relation to production and deal of counterfeit CDs involving reproducing the trademarks of the various 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 judgment that Given the importance and difficulty of combating counterfeiting, and given the comparative hush with an accused can raise and issue about his honesty, overall it is fair and reasonable to require a trader, should need arise, to prove on the balance 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 high society as well as raising issues of honesty.It can be inferred that the decisions made in Lambert and Johnstone have caused friction as both offences have given way to a defence through statutory exceptions. In Johnstone it was only an evidential burden that was placed in the defendant whereas in Lambert a legal burden was placed. However a common ground which both cases have come to is that a case would have to have great justification 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 clarity in this.It can be said that judges have not interpreted properly statutes tha t impose a burden of proof on the defendant, and therefore cases are resulting in diametrical outcomes. Furthermore this can be seen again in the case of sheldrake v DPP Attorney Generals Reference (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 Traffic Act 1988 for being charge of a motor vehicle after having being intoxicated by so much alcohol, going over the required 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. probably 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 fact that it was symmetric and directed towards a legitimate objective.The second 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 organisation was not a proscribed on the last (or only) occasion on which he became a member or began to profess to be a member, and that he has not taken part in the activities of the organisation at any time while it was proscribed. Take into 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 quelled the evidential burden of proof it was up to the prosecution to rebut that evidence rather than the defendant having to allow 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 conclusion 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 either way by stating that the legal burden has to be proved or that an evidential burden maybe placed.Furthermore a problem that statutory defences poses is that judges maybe unclear as to the phraseology of the provision so therefore there is not much clarity and surprise 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 caus e wateriness 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 with the courts that sometimes it is necessary to do so. rule book count 2655 Bibliography Cases McIntosh v Lord Advocate 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 Generals Reference (No 4 of 2002) UKHL 43 HL R v Edwards 1975 QB 27 of R v Hunt 1987 AC 352 Books C TaylorEvidence Pearson nurture Limited initiative Edition 2010C Allen A Practical Guide To Evidence Cavendish Publishing 4th Edition 2008 Table 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 Trade Marks Act 1994 EU Legislation European Convention of Human Rights Journal http//webjcli. ncl. ac. uk/2003/issue3/cooper3. hypertext mark-up language Simon Cooper Human Rights & Legal Burden of Proof Accessed 27/07/12 Website http//conventions. coe. int/treaty/en/treaties/html/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/news/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 Judgement of Lord Bingham 3 . http//conventions. coe. int/treaty/en/treaties/html/005. h tm 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 TaylorEvidence 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 Generals Reference (No 4 of 2002) UKHL 43 HL 21 . http//www. legislation. gov. uk/ukpga/2000/11/section/11 22 . Sheldrake v DPP Attorney Generals Reference (No 4 of 2002) UKHL 43 HL