To what extent if at all, do principles or considerations
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To what extent if at all, do rules or considerations of policy inform the allotment of the load of cogent evidence in condemnable proceedings?
Soon, and in the absent of grounds to the contrary, a individual is presumed guiltless of a offense at jurisprudence, with the load of cogent evidence falling forthrightly on the shoulders of the party asseverating criminalism. This regulation has been long established since the announcement in the House of Lords by Lord Sankey [ 1 ] where he asserted, that the “presumption of artlessness was a cardinal rule of English condemnable jurisprudence: “Throughout the web of the condemnable jurisprudence, the prosecution’s responsibility to turn out guilt was an ever-visible “golden thread” .
In world, nevertheless, the place and load upon the accused can be a converse place to that asserted in the Woolmington instance. That the prosecution’s responsibility to turn out guilt is frequently limited, [ 2 ] and the accused is often required to turn out certain facts in order to procure an acquittal. The major concern which came to the head in regard of policy considerations and the load of cogent evidence in condemnable proceedings was the execution of the convention of Human rights via the Human Rights Act 1998 in to domestic jurisprudence. In that Act s. ( 6 ) 2 clearly provinces “Everyone charged with a condemnable offense shall be presumed guiltless until proved guilty harmonizing to law.”
On face value it would look that s. ( 6 ) 2 prohibits the infliction of contrary loads and that English tribunals should see the determinations of the Strasbourg tribunal. [ 3 ] The issue in this respect to change by reversal loads was considered by the House of Lords in R V DPP, ex parte Kebeline [ 1999 ] 4 All ER 801.
K and others were charged with offenses under the Prevention of Terrorism ( Temporary Provisions ) Act 1989, which provides: “A individual is guilty of an offense if he has any article in his ownership in fortunes giving rise to a sensible intuition that the article is in his ownership for a intent connected with the committee, readying or abetment of Acts of the Apostless of terrorist act to which this subdivision applies.” [ 4 ]
The elements of this offense are established even though the prosecution do non hold to turn out any terrorist intent or purpose ; Verification of a province of personal businesss giving rise to intuition will do. If the accused has no such intent, it is for to him/her to turn out the reverse, under s. 16A ( 3 ) . Furthermore, cogent evidence of ownership is made possible by s. 16A ( 4 ) , under which, if it is proved that K and the article in inquiry were both present on the same premises the tribunal may deduce that cogent evidence of ownership is satisfied. [ 5 ]
( Unless he proves that he did non cognize of its presence and had no control over it. )
After the Divisional tribunal granted the right of Judicial Review to K and others, Lord Bingham stated that s.16 A “undermined, in a blatant and obvious manner, the given of artlessness. Therefore those subdivisions were abhorrent to the right to a just test contains in article 6.2 of the convention from which it was non possible for a catching province to derogate.” Laws LJ agreed.
However, the instance attracted the attending of several Law Lords in the house whose remarks were, all be it obiter, and did non over regulation Lord Bingham’s determination even though they do project some uncertainty with respect to the truth and rightness of their logical thinking in the instance. [ 6 ] Clearly, I think, that Kebeline suggested, ( although the Human Rights Act 1998 was non available to him at that clip ) , that the reversal of the legal load of cogent evidence in condemnable instances might non conflict or be incompatible with Art ( 6 ) 2, nor so the given of artlessness by and large, this was the place within Europe before this instance come before the UK tribunals. [ 7 ]
The job was one of lucidity and the quandary was identified and articulated by Professor Sir John Smith “that statute law should be enacted every bit shortly as possible “so as to change over all rearward burden clauses to evidentiary loads only” in conformity with a long-shelved proposal of the Criminal Law Revision Committee. This would assist to understate the awaited pandemonium referred to above. It would besides promote the Woolmington rule, at long last, to the position of a genuinely aureate regulation. The opportunities of it go oning, nevertheless, are likely really slight” . [ 8 ]
The 2nd instance that came before the tribunals for consideration of conditions the rearward legal load was advanced to be contrary to the given of artlessness and, was one time once more an effort to asseverate that the Human Rights act should use retrospectively was that of Lambert. [ 9 ] In so far as that statutory proviso casts the legal load on an accused to supply material facts before he may have a benefit or so dispatch his guilt, and as a consequence, is incompatible with s. ( 6 ) 2 of HRA 1998.
L was charged with ownership of cocaine with purpose to provide [ 10 ] , puting trust on s 28 of the 1971 Act as a defense mechanism, asseverating that he did non “believe or surmise or hold ground to surmise that the bag which he had carried contained cocaine” . The test justice directed the jury that under s 28 the legal load was on the accused. The Appellate Court dismissed his entreaty against strong belief [ 11 ] , but the House of Lords were left will the quandary of conditions s.28 as applied in the instance of L contravened Art ( 6 ) 2 or weather it could be interpreted as puting an evidentiary load merely and therefore compatible with Art 6. [ 12 ]
Lord Hutton dissenting, “that s 28 is non compatible with Article 6 ( 2 ) but, under s 3 of the 1998 Act, may be read as enforcing merely an evidentiary load on the accused. The words ‘to prove’ in s 28 ( 2 ) ( and ‘if he proves’ in s 28 ( 3 ) ) can be taken to intend ‘to give sufficient evidence.”
Further, the jurisprudence Lords considered and approved the logical thinking of Dickson CJC in the Canadian Supreme Court. [ 13 ] “If an accused is required to turn out some fact on the balance of chances to avoid strong belief, the proviso violates the given of artlessness because it permits a strong belief in malice of a sensible uncertainty in the head of the court of fact as to the guilt of the accused” .
However they besides agree that there was nonsubjective justification for illations to be applied in the 1971 Act. [ 14 ] This is seemingly a curious consideration in drug related offenses, in that, the ownership of goods whether in a bag, suit instance or even a container implies some cognition of its contents in the absence of grounds, and that grounds to the reverse is for the suspect to turn out before Trial. [ 15 ]
Lambert was distinguished in Drummond [ 16 ] who was convicted of drink driving although he advanced the defense mechanism that he had taken a drink from his hip flask after driving but before taking the trial to determine his blood intoxicant degree under the Road Traffic Offenders Act 1988, s.15, where the tribunal justified that legislative intervention with the given of artlessness in relation to the contrary load in s.15 was “no greater than necessary” . “That if an accused drinks after the event, it is he who defeats the purpose of the legislative assembly by doing the trial potentially undependable ; and that the relevant scientific grounds to put against the specimen consequence is within the cognition or agencies of entree of the accused.
There have been several instances through the old ages following the execution of the HRA 1998 that have relied on the fact that Art ( 6 ) 2 has been breached or is incompatible with UK statute law in respect to the given of artlessness. [ 17 ] The tribunals have reiterated the pronouncement of Lord Steyn in Lambert as to the heavy load on those seeking to carry the tribunal of the necessity of enforcing a legal instead than an evidentiary load on the accused. In the Carass instance the held “that even an evidentiary load under s 206 ( 4 ) , which would necessitate an accused to bring forth some grounds that any constituted privacy was non with the purpose to victimize, would be rather hard to dispatch ; and that if discharged, it would be less than satisfactory if an accused could still be convicted if the jury were non certain that he had intended to defraud.” Notwithstanding that Waller LJ stated that if a rearward legal load should be imposed upon a suspect it should be justifiable, and that the tribunal in the present instance could non warrant this infliction under s.206 ( 1 ) a of the Insolvency Act 1986.
The present job that exists today lies at the bosom of the instance of Sheldrake [ 18 ] who has been successful in obtaining an entreaty on the footing of contending the infliction of contrary loads in both of the offenses to which he is charged.
This reversal of two good sound determinations of the lower tribunals can and by and large will make divisions on future opinions by Judgess who are left with conflicting positions on the right reading and application of statute law.
It is without uncertainty that the lone rational decision that one can get at is that the country of Human Rights jurisprudence will turn out to be complicated despite the counsel provided in the aforesaid instances, Obviously the House of Lords will one time once more have the last word on the affair of contrary loads but there is no clear indicant that the morass of instance jurisprudence on the reversal of legal loads and the issues of the given of artlessness will melt off. On the contrary there is an huge sum of condemnable statute law where it is non wholly certain who must turn out what to whom? Notwithstanding the intense activity of the executive and legislative enacting jurisprudence that can merely resemble a frenetic effort to piece a leaky pipe. In short there are no policy considerations when using contrary loads.
Burrow, J ( 2000 ) NLJ May 19Thursdayp763-767
Hannibal, M ( 2005 ) LPC Handbook Criminal Litigation, OU Press.
Keane, A ( 2000 ) Modern Law of Evidence, Butterworths.
Metcalfe, P ( 2000 ) CLR p486-490. Sweet & A ; Maxwell
Phipson ( 2000 ) Phipson on Evidence, 15Thursdayed Sweet & A ;
Tousa, D ( 1999 ) CLR p994-998, Sweet & A ; Maxwell