Flash-Caselist-BofP.txt

• GoldenThread-P had the burden of proof-D was charged with the murder of his wife, by shooting her. He claimed that the gun had gone off accidently.
• 1-The trial judge rules that once the P had proved that the D had killed his wife, it was for the D to prove it was an accident
• 2-HL held: (quashing the conviction) The P had the burden of proving that the D had the mens rea for murder, the D�s defence of accident was a denial that he had the prerequisite mens rea. Therefore the P had to prove the elements of the offence and disprove the defence raised by the D.

• Even where there appears to have been an express reversal of the BofP, cts may read this as imposing only an evidential burden on-had an evidential burden under Misuse of Drugs Act 1971 as opposed to a legal burden as after evidential burden provrd by P>D has LB to prove def-reverse onus provision was in violation of the presumption of innocence-D then had an evidential burden under Misuse of Drugs Act 1971 as opposed to a legal burden. Lambert Lord Clyde referred to the traditional distinction in criminal law between acts that are “truly criminal” and acts that are not truly criminal but are regulated in the public interest. TD was convicted of possession with intent to supply a class A drug ie two kilos of cocaine in his rucksack . He denied all knowledge of the drugs His defence as per s.28(2)=not knowing/ suspecting the existence of some fact alleged by P which is necessary to prove D�s guilt. The burden of proof is expressly placed on D. In CA D argued that did not know that the bag contained cocaine . D submitted the fact that he had to prove this was incompatible with Art 6(2). CA held that the reverse burden was justified as Art 6(2) is concerned with offences not defences. Section 28 of the Misuse of Drugs Act 1971 placed on the defendant the burden of proving that he neither knew nor had reason to suspect that he was in possession of drugs.HL disagreed-Held:
• 1- this reverse onus provision was in violation of the presumption of innocence, and reinterpreted it as a mere evidential burden
• 2-reverse burdens are not necessarily incompatible with Art 6(2) - there (i) will be incompatability when the issue D is being asked to disprove is something peripheral to the offence or where the issue is not closely linked with the mens rea of the offence. (ii) Where the issue is central or connected to mens rea, there would be inconsistency with Art 6(2) but this may be justified and compatible if it achieves the legislative aim in a proportionate way ( i.e by achieving a proper balance between the general interest of the community and protection of the fundamental rights of the individual) In determining this balancing act, the ease of discharging the burden for both parties is relevant, as is the nature of the offence and the seriousness of the offence in terms of penalty
• 3-If the reversal it is not proportionate then there will be a declaration of incompatibility under s.4 HRA 1988, unless the statute can be �read down� (reinterpreted) so as to place an evidential burden only. Lord Clyde said that
• �the proper way by which that harshness should be alleviated is to recognise that the accused should have the opportunity to raise the issue of his knowledge but to leave the persuasive burden of proof throughout on the prosecution. Respect for the �golden thread of the presumption deserves no less�
• defendant's own knowledge or ready access as alternative relevant factors/ingredients of an offence contrary to section 11(1) of the Terrorism Act 2000-The important point for our purposes is that the defence in section 11(2) of the 2000 Act , with which we are concerned, is not one to which the provisions of section 118 apply. where the defendant is asked to establish a special defence, as opposed to disprove an element in the offence, then reversals are less objectionable. Other factors to take into account are the ease of disproof and the threat faced by society converting many persuasive burdens on the defence to mere evidential burdens.

• Sheldrake v DPP [ October 2004] Lord Bingham did not favour this restrictive approach, and stated that the earlier case of R v Johnstone had not intended to replace the more flexible approach adopted in Lambert. As per Lambert, each case has to be judged in its own context.
• The A-G brought a reference in cases which challenged a reverse burden as being incompatible with the presumption of innocence under the European Convention on Human Rights 1950 Art.6 (2).
• In this appeal, the defendant (D) was indicted on two counts under the Terrorism Act 2000 s.11(1) . Section 11(2) provided a defence if D could prove certain facts. At trial, it was accepted that s.11(2) imposed an evidential burden on D but the trial judge held that there was no case to answer. The Attorney-General referred the case to the CA (Attorney-General's Reference No 4 of 2002 (2003) which held that the ingredients of the offence were fully set out in s.11(1) and that s.11(2) imposed a legal burden rather than an evidential burden & was compatible with Art.6(2) and Art.10.
• HELD: (Allowing the appeal)-Parliament had intended that s.11(2) imposed a legal burden on the defendant, as was clear from s.118 which listed a number of sections which imposed an evidential burden and s.11(2) was not among those listed. However, such a burden was not proportionate or justifiable for a number of reasons, including that a defendant could be convicted on the basis of conduct which was not criminal at the date of commission. The CA had wrongly decided the point. If s.11(2) were held to impose a legal burden then, if the defendant failed to prove the matters specified in s.11(2), the court would have no choice but to convict him. Accordingly, s.11(2) was to be read down using the interpretative power under the Human Rights Act 1998 s.3 so as to impose an evidential instead of a legal burden.

• reverse burden/peculiar knowledge argument, in charge of vehicle while drunk. D drives to a party intending to drink only lemonade. His friends spike his lemonade with vodka, which D only realises when he is about to get into his car after the party. Mr Sheldrake gave evidence of his efforts to arrange alternative transport home, but the justices were unconvinced the HL upheld a reverse burden for the offence of being drunk in charge of a motor vehicle, which carries a possible prison sentence. Further, a presumption could only be justified if the facts presumed flowed inexorably from the facts proved, or if there were a rational connection between the fact proved and the fact presumed. In the instant case the likelihood of S's driving did not flow inexorably from his being drunk and in charge of a car in a public place, nor was there a rational connection between the latter fact and the likelihood of his driving-the mischief aimed at was to prevent driving whilst unfit through drink, and that accordingly the offence of "being in charge" was intended to convict those who were not driving but who in all the circumstances either had, or might yet form, the intention of driving the vehicle and therefore driving the vehicle whilst still unfit.The DPP appealed the decision of the Divisional Court ruling that the reverse burden as being incompatible with the presumption of innocence under the ECHR 1950 Art.6 (2). Section 5(2) of the Road traffic Act 1988 Act afforded S a defence if he could prove, on the balance of probabilities, that there was no likelihood of his driving the car. The justices held that he had failed to do so & accordingly convicted him as the imposition of the burden was upon him reasonable.
• 1-The Divisional Court held that s.5(2) violated the presumption of innocence in that it allowed a D to be convicted even where a ct could not be sure that there was a likelihood of his driving. On that basis, it concluded that s.5(2) only imposed an evidential burden on S. The DPP appealed.
• 2-Lord Bingham upheld the reverse onus provision because the offence, when originally introduced, had not provided for any defence at all. By adding the possibility of a defence, albeit with a reverse onus, Parliament was doing a limited favour to defendants, and the courts should not widen that favourable provision by placing the burden on the prosecution.
• HELD: (Allowing the appeal and re-instating the conviction). It was accepted that s.5(2) infringed Art.6(2). However, the burden placed on the defendant was reasonable because it was in pursuance of a legitimate aim: the prevention of death, injury or damage caused by unfit drivers. It was not objectionable to criminalise a defendant's conduct in such circumstances without requiring a prosecutor to prove criminal intent. Furthermore, it was easier for the defendant to prove he was not likely to drive as opposed to the prosecution proving beyond reasonable doubt that he was.
• Ashworth-The problem with this reasoning is that it proves too much.

• possession of morphine � H of L provided the following guidelines:
• o Should not be easily inferred that Parliament intended the accused have the legal burden;
• o Court should have regard to the intention of Parliament and the mischief of the section that the Act sought to prevent;
• o Court should have regard to the ease or difficulty the accused would have in discharging the burden;
• o The more serious the offence the less likely Parliament would have intended to place the onus on the accused;
• o Any ambiguity should be construed in favour of the accused.
• DETAILS: Police officers found in the appellant's home a paper fold containing 154 milligrams of a white powder which was found to be morphine mixed with caffeine and atropine. He was charged under the Misuse of Drugs Act 1971 s.5(2) with unlawful possession of a controlled drug, morphine. It was for the prosecution to prove that the defendant possessed morphine in a proscribed form, and not for him to prove that he did not. Under the Misuse of Drugs Regulations 1973 Reg.4(1) and para.3 of Sch.1 the following is an exception to the prohibition against possession of drugs: "Any preparation of medicinal opium or of morphine containing not more than 0.2 per cent of morphine...being a preparation compounded with one or more other active or inert ingredients in such a way that the opium or...the morphine cannot be recovered by readily applicable means or in a yield which would constitute a risk to health." The prosecution called no evidence as to the proportion of morphine in the powder and the defence submitted there was no case to answer. The judge ruled that there was a case to answer, and the appellant changed his plea to guilty. His appeal against conviction to the Court of Appeal was dismissed. He further appealed to the House of Lords.
• Held, allowing the appeal, that the burden of proving guilt was on the prosecution save in the defence of insanity and any statutory exception. Such exception might be express or implied, either in the same instrument or in a subsequent proviso, and whether it was an indictable or summary offence. The defendant would discharge it on a balance of probabilities.
• Birch-the issue was who bore the onus of proof on the question whether the morphine mixture which D had in his possession was of a kind exempted by Regulations made under the Misuse of Drugs Act 1971 from the prohibition on possession contained in section 5 of the Act. The form of the �exemption� taken in isolation might have suggested that the onus was on D, but other factors which influenced the answer, which was that the onus remained on the prosecutor, were the evidential difficulties which would face D if he had the onus,25 the extent to which the purpose of the legislation would be frustrated if the burden was on the prosecutor,26 and the status of the offence of possession as both absolute and serious.27 It was also stressed that any ambiguity should be resolved in D's favour. Hunt , no longer have to be established by the prosecution. Indeed, Hunt strengthens the case against shifting the burden, because it is the form of the Public Order Act, which hives off the mental elements of the five related offences into a single and simple separate section, which provides the only real indication that the mental element could be regarded as a statutory exception.45 Hunt tells us that form is not an infallible guide, and to that extent Mr. Mirfield owes the decision a debt of gratitude.
• On its wording s 101 applies to summary trials, but it has also been held to apply to trials on indictment.
• 1-guidelines in the speech of Lord Griffiths that were intended to help courts decide in a given case whether Parliament had impliedly placed a burden of proof on a defendant
• 2-interpretation of the Misuse of Drugs Act 1971

reversed legal burden upheld, liquor licence holds that when a statute creates a criminal offence that prohibits the doing of a certain act subject to provisos, exceptions and similar exclusions, the burden of proof that normally lies on the Crown shifts so that it is for the defendant to prove that he comes within such proviso, exception or exclusion. The burden on such a defendant is the persuasive (legal) burden as well as the evidential burden. The standard of proof is the balance of probabilities. Thus, on a charge of selling intoxicating liquor without a justices' licence, it is not for the prosecutor to prove that the defendant had no licence but for the defendant to prove that he had. CA held even if it is the prosecution that has the relevant knowledge, the burden may still lie on defendant. Court of Appeal said that, where an enactment prohibits the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications, it is for the defendant to prove that he was entitled to do the prohibited act

• - reverse legal burden. D was convicted of possessing some 500 bootleg recordings in breach of section 92 (1)(c) of the Trade Marks Act 1994. The def wished to rely on s.11(2)(b) & contended that the use of the performer's name on each of the CDs was not an indication of trade origin. It was merely to indicate who was the performer. Alternatively, Mr J wished to rely on the honest & reasonable belief defence under s.92(5). When the judge ruled that it was not necessary to prove a civil infringement, Mr Johnstone pleaded guilty.
• is not their real grievance infringement of their copyright or their performing rights, rather than of their trade mark? Bootlegging involves infringement, but not always trade mark infringement.
• House of Lords upheld a reverse onus under s.92(5) of the Trade Marks Act 1994 for a defence of reasonable belief that goods in the defendant's possession did not infringe registered trade marks. The offence under s.92(1) of possessing infringing goods with a view to gain or intent to cause loss to another carries a maximum penalty of 10 years. Trade Marks Act 1994 reverse legal burden was reasonable & proportionate-maintaining trade patent. T
• s is a derogation from the presumption of innocence contained in Art.6(2) of the European Convention on Human Rights, it requires justification. He identified two factors which, in his view, provide that justification. First, those who trade in branded products are aware of the need to be on guard against counterfeit goods. They are aware of the need to deal with reputable suppliers and keep records, and of the risks they take if they do not.
• Secondly, the s.92(5) defence relates to facts within the accused person's own knowledge: his state of mind, and the reasons why he held the belief in question. His sources of supply are known to him.
• Economical point only? Andrew Ashworth-. Lord Nicholls held that there must be �a compelling reason why it is fair and reasonable to deny the accused person the protection normally guaranteed to everyone by the presumption of innocence� , and that � the more serious the punishment which may flow from conviction, the more compelling must be the reasons� ,68 and yet he concluded that the strong public policy against counterfeiting and trade mark � piracy� justified upholding the statutory provision placing on the defendant the burden of proving reasonable belief that he was not infringing a trade mark.This is an offence for which the maximum penalty is 10 years' imprisonment, and for that reason the presumption ought surely to have been accorded much greater weight Four threats to the presumption of innocence

• -Legal Burden-Art6-the court had to consider a presumption of criminal liability laid down in the French Customs Code for every person found in possession of prohibited goods. The court noted that presumptions of fact and law operated in every legal system.
• Held: the Convention did not prohibit such presumptions in principle, but stated that the Convention required contracting states to remain within certain limits in this respect as regards criminal law ie reverse burdens do not violate Art 6(2). The imposition of a legal burden on D will only be incompatible if it is not justified in the circumstances of the case

held where the defendant is asked to establish a special defence, as opposed to disprove an element in the offence, then reversals are less objectionable. Other factors to take into account are the ease of disproof and the threat faced by society

held that the ingredients of the offence were fully set out in s.11(1) & that s.11(2) imposed a legal burden rather than an evidential burden and was compatible with Art.6(2) and Art.10.

• A- Judicial deference
• B-Classification of offences
• C-Construction of criminal liability: elements of offences &defences
• D-Significance of maximum penalties
• E-Ease of proof and peculiar knowledge
• F-Presumption of innocence