The Justification Of The Obiter Dicta Of Lambert

Register to read the introduction… The courts then formed a test called the test of proportionality. This test was originally created by Lord Hope in the case of Kebeline but it was amplified in Lambert and was explained further in Brown v Scott . The test holds three limbs which are, what the prosecution must prove in order for the burden to shift to the accused, what is the burden of the accused and what is the nature of the threat to society which the Act in question is trying to prevent. If the reverse burden given to the accused will achieve the aim or objective of the Act in consideration, the reversal of burden will take place. The purpose of the test is that to prevent the infringement of Art 6(2) and had it not been for Article 6(2), there would not be such a test to justify a reversal of …show more content…
If yes then the reverse burden is more easily justifiable. Lord Steyn in Lambert noted that the difference between elements of offence and defense are sometimes just a matter of drafting technique and went on to state that substance is the issue to be focused on, in preference . In Attorney General’s Reference (No. 4 of 2002) the defendant was accused of membership of a proscribed organization contrary to s11(1) of the Terrorism Act 2000 . The defense in 11(2) required him to prove that the organization was not proscribed on the last occasion on which he became a member and that he has not taken part in the activities of the organization at any time while it was proscribed. Though the offences were directed towards the legitimate end of deterring people from becoming members of such organizations and taking part in their terrorist activities, which was the view of Lord Rodger, Lord Bingham noted the extraordinary breadth of s11(1) considering a series of instances, such as joining the organization before proscription or joining with complete ignorance of its proscription, which might render a person liable to conviction without being guilty of any conduct which could reasonably be regarded as blameworthy. There may be very great difficulties in proving non participation in the activities of an organization and the penalty for the failure establish it is up to ten years …show more content…
The presumption of innocence was a part of the six cardinal rules to emphasize the importance of the principle of presumption of innocence. As the six cardinal principles may increase the effectiveness of judges in this particular area, the courts may choose not to apply the principles if it allows justice to be achieved. It is also noted that courts need not satisfy all the principles, only that it has been looked at and