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44 Cards in this Set
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Criminal burden of proof: pros
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pros bears legal burden to prove:
AR MR disprove defences beyond r. doubt |
woolmington v DPP, viscount sankey
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criminal burden of proof: accused
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Accused/def bears evidential burden
to adduce evidence to raise defences not to satisfy defences false burden, no std |
woolmington v DPP, viscount sankey
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presumption of innocence
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throughout the web of English criminal law
one golden thread always to be seen: duty of pros to prove the prisoner's guilt subject to defence of insanity/ stat exceptions |
woolmington v DPP, viscount sankey
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reversal of legal burden
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accused bears legal burden not to prove AR/MR, but to prove a defence in 2 circ:
insanity stat exceptions std is lower: balance of prob |
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statutory reversal of LB
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express: parli uses express words in the statute to place burden on accused
implied: parli is silent/ unclear as to where bop lies intentional, for flexibility up to judicial rules of construction/interpretation to imply |
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implied reversal of LB: rules of construction
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1. s101 Magistrates courts act 1980
2. rule of convenience 3. Lawton formula 4. policy considerations |
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s101 magistrates courts act 1980
applies only where |
1. summary trials
2. if defence= e/e/p/e/q |
exception
exemption proviso excuse qualification |
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gatland v mpc
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applied s101 MCA1980 to s140 Highways Act 1959
offence for person to deposit anything on a highway UNLESS such person had LAWFUL AUTHORITY/ EXCUSE |
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Nagy v Weston
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s140 HA 1959 interpreted entirely differently: all words construed as offence
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contrast with Gatland on Highways Act 1959
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criticism of s101 MCA 1980 as a tool of construction applicable to reversal of LB
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poor tool
no room for application because distinction btw offence and defence in a section or statute is not always clear |
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rule of convenience
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if A has easier task to prove the defence (more difficult/ inconvenient for pros to prove) then LB shifts to A
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Lawton formula
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R v Edwards
Licrnsing Act 1964 s160 offence on indictment save if... qualifications (eepeq) applying Lawton formula, despite it being offence on indictment, burden shifts to A |
extension + resuscitation of s101 MCA 1980 to fill lacuna in the law pertaining to indictment trials and triable either way
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analysis of R v Edwards
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praise Lawton LJ for filling in lacuna in the law which parliament overlooked
commendable effort to encompass trials on indictment bearing in mind there is 3rd category of offences: triable either way |
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policy considerations
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R v Hunt
Misuse of Drugs Act 1971 s5 offence: possession of controlled drugs P3 sch1: s5 no effect if morphine < 0.2% |
Lord Griffiths, borrowing approach from Nimo v Alexander (scot) considered
1. RoC: resources of parties to test + likelihood of contamination 2. seriousness of offence thus concluded pros to bear LB |
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seriousness of offence
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if offence= serious (severe punishment) then any ambiguity should be resolved in favour of A
avoid miscarriage of justice non-severe offence= LB can shift to aa |
only where implied reversals are uncertain(parli silent)
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resisting reversal of LB: pre-2000
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A could not resist passing of LB to them
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R v Lambert
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Misuse of Drugs Act 1971: offence to possess + int to supply
defence: A to prove no knowledge substance in poss issues 1. can A use Art6(2) HRA to frustrate reversal of LB 2. does Art6(2) even apply? 3. if yes, what consequences? |
3 issues
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R v Lambert held
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pre-2000, A expected to bear LB when reversal took place, no room to resist
post-2000, Art 6(2)= gateway to resist Majority: Lambert (2001) treated as pre-HRA case (not fully implemented) GR in Woolmington applied minority: s6(1) HRA applied: public auth cannot act incompatibly with ECHR rights |
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effect on Lambert if Art 6(2) applied
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Steyn (obiter)
1. apply test of proportionality: should BoP pass to A or can A resist? 2. if passed, is it LB or EB? |
2 obiter issues
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Steyn (Lambert obiter)
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1. PoI is capable of modifications but must ensure public interest is upheld
2. Art 6(2) must be guideline in determining if reversal takes place: Art6 is couched in mandatory terms, national courts however still have margin of appreciation 3. whether LB reverses= must apply ToP: whether justified against public interest |
3 issues
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R v DPP ex p Kebeline
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1. what pros must prove in order for burden to shift to A: AR + MR
2. what is the burden on A 3. what is the nature if the threat to society which the Act is trying to prevent? (is shift justifiable) |
Lord Hope's 3-tiered ToP (theoretical)
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practical application of ToP
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1. identify Act
2. identify aim of Act (the jar) 3. apply measures: LB or EB: which is necessary+ proportionate to fulfil aim? (must not cause jar to overflow, go beyond aim of Act) |
the jar
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after applying ToP
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if reversal of LB does not go beyond achieving aim of Act by placing too heavy burden on A, then LB can shift and A cannot claim Art6(2) breach: court already considered his rights under HRA. reversal no longer auto
if reversal goes beyond aim, then a reading down takes place: only EB passed to A |
if jar is filled or if it overflows
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applying ToP to Lambert (MDA 1971)
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If LB shift, A to prove no knowledge of poss
Steyn (obiter) :simply bc pros finds difficult to prosecute drug cases, does not mean burden can be shifted to A : defence in section requires proof of MR, an element which onus to prove traditionally lies with pros : supports Woolmington PoI Hutton (dissenting) drugs is social prob + threat to society, reversal justified |
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is reading down of LB to EB an accurate reflection of the law?
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courts prefer to do so rather than to declare Act of Parli as incompatible with ECHR
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Warner v MPC
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Pearce + Reid: "prove" must mean LB not EB
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reading down or no reading down
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L v DPP
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A carrying knife in public
Act: CJA 1988 O: carrying bladed article in public D: A to prove good reason/ lawful auth ToP: aim + measures reversal of LB thus proportionate w aim, reversal justified obiter: pill LJ suggested if disproportionate, then better recourse= declare Act incompatible |
no court adopted obiter suggestion
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Sheldrake (HoL)
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A: RTA 1988
O: being in control of vehicle when alcohol level in breath > prescribed limit D: A to prove no likelihood of driving ToP: aim + measures, bearing in mind likelihood of driving is w/in A's peculiar knowledge |
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Sheldrake (held)
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HC: LB is proportionate
CoA: Reversed, read down to EB Defence refers to intention, MR to be proven by pros HoL: s5(2) defence gave Def opportunity to exonerate himself by showing no likelihood burden not arbitrary not objectionable for him to bear LB, reversal not beyond what was necessary parli gave Def a "bonus" matter which he is best placed to prove as long as he is given opp to fully advance his defence |
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Johnstone, Lord Nichols held (HoL)
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: those trading brand products are aware of need to guard against counterfeits, deal with reputable suppliers, keep records
: facts are readily available to A as it is within his knowledge : counterfeit = serious contemporary problem, adverse econ effect/ consumers :must strike balance btw public and indv interests :> serious the punishment, > compelling must the reasons be for imposing LB on A |
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Johnstone
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A: Trademarks Act 1994
O: applying to goods identical to reg TM D: A to show he reasonably believed not infringement Held: A to prove LB, in better position to know if infringed, proportionate to reverse |
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cases where Hope's (Kebeline) ToP applied and which reversed BoP
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Lambert (applied only obiter): Steyn reversal not prop, Hutton reversal justified
L v DPP: reversal justified Sheldrake: HC reversal prop, CoA read down to EB bc disproportionate, HoL bonus to A is proportionate Johnstone: reversal proportionate |
4 cases
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AG's Ref No 1 (2004), Sheldrake included: facts
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A: Terrorism Act 2000
O: s11: belongs to or PROFESSES to belong to a proscribed org D: s11(2): A must prove a) org was not proscribed AND b) not taken part in activities A told told another student he would bring explosives told housemate he was member of Hamas expressed joy at 9/11, said support Taliban teacher reported, arrested, told cops he was former member of Hamas but denied previous stts |
terrorism
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AG's Ref No 1 (2004) held (HoL)
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:conferred mere EB on A, to raise defences by adducing evidence only, PoI intact
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CoA initial decision in AG's Ref (Latham LJ)
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: initially conferred LB on A
: TA 2000 already subject to audit under HRA 1998 : parli counter checked provisions alongside ECHR rights, believed conferring LB on A= justifiable :ToP thus already done at draft stage, s11 compatible with Art 6(2) :aim of TA 2000= prevent political/ paramilitary violence + protect citizens, aims achieved if reversal of LB takes place :proof of membership sometimes difficult hence profession itself = criminal offence : reversal of LB not unreasonable |
aim of TA
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AG's Ref No1 (2004), HoL, Bingham majority, on the Offence
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s11
: offence of "extraordinary breadth" : potential to criminalize conduct that could not be regarded as blameworthy :def could have joined org in ignorance of proscribed :at time joined may not be proscribed :or joined in a country where not proscribed : literal wording of statute does not give cause to view such possibilities :real risk of unfair conviction + breach of PoI |
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AG's Ref No1 (2004), HoL, Bingham on Defence
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"impossible"
: def may have renounced ties with org but no means of proving : no records of cease members : how to prove dissociation, other members unlikely to come forward to swear def's noninvolvement which could lead to serious injury |
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burden + std for civil cases: GR
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Joseph Constantine Steamship v Imperial Smelting, Viscount Maugham:
ei encumbit probatio qui dicit, non qui negat he who asserts bears the burden to prove |
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3 factors of the civil standard
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1. onus still on asserter even if assertion is negative in form
2. contracting parties can agree on incidence of BoP 3. policy + rule of convenience |
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Soward v Leggatt
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LL alleged tenant did not repair house
argued since it was negative assertion, BoP should be on tn to prove he did do repairs |
held: onus still on cl despite negative assertion
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Abrath v North Eastern Railway
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action for malicious prosecution
Pl suggest def prove did not have reas to bring earlier action |
held: onus still on Pl
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Munro & Brice v War Risk Association
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party relying on EC in a contt bears burden to prove that facts fall withing the exception
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The Glendarroch
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shipment of cement, Pls sued non-delivery
EC in BoL exempt for damage caused by perils of sea for def to prove EC relied on: that facts within exception |
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Joseph Constantine
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explosion on vessel, sue non-d
carrier argued frus held: more difficult to prove absence of fault rather than to prove fault thus onus on Cl to prove fault, if unable = def is not at fault |
party in civil case having easier task may bear BoP
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