Law of evidence

September 9, 2017 Law

Why are rearward burdens debatable for the jurisprudence of grounds? How should the jobs they raise be resolved?

It is by and large accepted that the load of cogent evidence in condemnable jurisprudence is on the prosecution ; nevertheless, there are a figure of exclusions were this load is reversed [ 1 ] and the suspect is placed in the place of holding to support themselves. Under condemnable jurisprudence the basic regulation stated by Viscount Sankey in Woolmington V DPP [ 2 ] is that

‘Throughout the web of the English condemnable jurisprudence one aureate yarn is ever to be seen, that is the responsibility of the prosecution to turn out the prisoner’s guilt.’

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This reversed load can be debatable particularly in evidentiary footings as the suspect does non hold entree to the same resources as the prosecution have for proving evidentiary findings [ 3 ] . There is nevertheless cases when the accused is better placed than the constabulary to turn out the evidentiary load. In the instance of R. v Drummond [ 4 ] the tribunal held that the defense mechanism offered by the accused that he was non intoxicated before the accident and that the ground he registered as over the forbidden bound when tested by constabulary officers was due to the fact that he had had a drink on returning place. The tribunal stated it would be impossible for the constabulary to turn out or confute the averment made by the accused and that it was hence right to put the legal and evidentiary load on the accused to turn out that he was non drunk at the clip of the accident.

Similarly in Sheldrake V DPP [ 5 ] the tribunal held that the legal and evidentiary load of cogent evidence to demo that he could non hold driven a vehicle due to his poisoning was on Sheldrake and that failure to turn out this would take to a strong belief. In this peculiar instance the tribunal were non satisfied by the grounds supplied by Sheldrake and the strong belief was upheld.

There have been several instances over the old ages were the load has been reversed were the jury have convicted people on the footing that they could non turn out themselves guiltless [ 6 ] . The Criminal Law Revision Committee in their 11Thursdaystudy pointed out that in their sentimentit was abhorrent to principle that a tribunal left in uncertainty as to the defendant’s purpose would be bound to convict[ 7 ] . This could originate if the prosecutions instance is that the wrongdoer acted with blamable purpose and the load is placed on the suspect to turn out that he acted innocently [ 8 ] .

The whole impression of reversed load of cogent evidence would look to travel against the Human Rights Act 1998. Article 6 ( 2 ) provinces that

‘Everyone charged with a condemnable offense shall be presumed guiltless until proved guilty harmonizing to jurisprudence.

This would look to propose that if a suspect is required to turn out their artlessness [ 9 ] instead than the prosecution turn out their guilt that a breach would hold occurred and the suspect should be able to convey an action in the European Court of Human Rights to acquire the determination overturned. Unfortunately instance jurisprudence in this country does little to help a suspect as a battalion of instances decided in the ECHR have added weight to the impression that Article 6 ( 2 ) does non enforce an absolute prohibition on the commissariats of contrary load [ 10 ] .

Of the instances brought before the ECHR that have allowed the contrary load to be placed on the suspect the overall reading of the determinations would look to propose that the ECHR accept that there has been no breach of Article 6 if the suspect raises an issue as their defense mechanism that has non been raised by the prosecution [ 11 ] . Where the defense mechanism of ego defense mechanism [ 12 ] or aggravation [ 13 ] are raised it has been accepted that this is non incompatible with Article 6 ( 2 ) based on the impression that no breach of the given of artlessness has occurred as the suspect has admitted the offense in portion.

The tribunals besides seem to hold accepted that if the intervention with the given of artlessness is proportionate to the offense than it is acceptable and does non impugn a breach of Article 6 ( 2 ) . The instance of R v Lambert [ 2001 ] [ 14 ] was such an illustration. In this instance the suspect was trusting on s28 of the Misuse of Drugs Act 1971 to demo that he had no ground to surmise that the bundle he was transporting contained illegal drugs. Due to his trust on this clause the tribunal held a legal was placed on him.

Erosion of the prosecutions responsibility to turn out every component of the offense charged began in 1974 with the instance of R V Edwards [ 15 ] . This instance set the phase for the rule to be established that where a prohibited act is entitled to trust on provision and exceptions the prosecution can trust on the exclusion with the consequence that the suspect has the load to turn out that it was lawful for him to make that prohibited act in the fortunes [ 16 ] . The exclusion was stretched farther following the opinion in R V Hunt [ 17 ] were Robert Goff LJ reasoned that the ‘tribunal should non restrict its attending to the signifier of the statutory commissariats applicable and to a actual examination of the words used, but ought to pull without suppression on its common sense and have recourse to affairs of general policy connected with convenience ground and justice.’

Leting the prosecution to utilize these exclusions could be unsafe as it could be possible to paraphrase many of the statutory ordinances in such a mode as to take the given of artlessness wholly from the condemnable justness system. An illustration of where the tribunal used an exclusion to change by reversal the burden of load of cogent evidence in recent times is the instance of R v DPP ex parte Kibilene [ 18 ] . In this instance the tribunal utilizing the diction of subdivision 16A of the Prevention of Terrorism ( Temporary Provisions ) Act 1989 and the Criminal Justice and Public Order Act 1994 stated that it was for the suspect to turn out thatthe article he had in his ownership was non for a intent connected with the committee, readying or abetment of Acts of the Apostless of terrorist act[ 19 ].Initially on appeal the tribunal held that s16A was incompatible with Article 6 ( 2 ) of the HRA but this was subsequently overturned in the House of Lords. Whilst non holding that s16A is compatible with Article 6 ( 2 ) it stated that it was arguable that it might be compatible. The Terrorism Act 2000 [ 20 ] has since removed the legal load from the suspect and now merely requires them to demo an evidentiary load that the article was carried for bona fide intents.

Many jobs revolve around reverse burden loads particularly when covering with terrorist offenses. In an effort to forestall terrorist onslaughts statute law in this country has made it lawful to collar individuals on intuition of preparative Acts of the Apostless of terrorist act. The legislative act is so used against the accused with the consequence of doing them turn out that the Acts of the Apostless they were making were non connected with terrorist activities.

Reverse burden is often used where the defense mechanism lodged by the accused is one of ego defense mechanism [ 21 ] or aggravation [ 22 ] . In these cases the accused is acknowledging to the offense but offering a plausible alibi. With such instances there is no breach Article 6 ( 2 ) of the Human Rights Act as the given of artlessness does non be. The accused has by his actions admitted to doing the hurt. By doing such a supplication the accused is placed with both the legal and the evidentiary load of turn outing that which he is asseverating [ 23 ] . The usage of such defense mechanisms are seen in the legal domains as a signifier of confession and turning away whereby the suspect admits certain facts but raises a new issue to avoid the effects of their admittance [ 24 ] .

With a defense mechanism of ego defense mechanism the accused is under a load to turn out that that he believed that an onslaught on him was imminent. Lord Griffith in Beckford V R [ 25 ] stated

A adult male about to be attacked does non hold to wait for his attacker to strike the first blow or fire the first shooting ; fortunes may warrant a preemptive work stoppage.

Such a defense mechanism to a charge of assault will neglect if the some clip had elapsed from the clip in which the accused was to the accused retaliating [ 26 ] . If the accused was still being attacked at the clip they retaliated so the cogent evidence they will be required to demo is that the force used to drive their aggressor was proportionate and sensible [ 27 ] . The trial for sensible for is subjective and was explained in R V Owino [ 28 ] as

A individual may utilize such force as is [ objectively ] sensible in the fortunes as he [ subjectively ] believes them to be.

If an accused can successfully turn out that his actions were done in ego defense mechanism he could happen himself wholly exonerated. Where the tribunal accepts the supplication of self defense mechanism but are non satisfied that sensible force was used the accused is likely to still confront some signifier of punishment for the hurts he has caused.

Aggravation is merely accepted as a defense mechanism in instances of slaying. Using a defense mechanism of aggravation the accused’s load is to demo that sensible adult male would hold responded in the same manner as he did in the same fortunes. The accused must besides demo that the violent death was the consequence of a sudden and impermanent loss of ego control [ 29 ] . Aggravation was included in the Homicide Act 1957 and specifies a loss of ego control as the make up one’s minding standards. In the instance of R v Duffy [ 30 ] the justice when summing up for the jury stated that

Aggravation is some act, or series of Acts of the Apostless, done by the dead adult male to the accused which would do in any sensible individual, and really causes in the accused, a sudden and impermanent loss of ego control, rendering the accused so capable to passion as to do him or her for the minute non maestro of his head[ 31 ].

The consequence of such a defense mechanism would non hold the consequence of assoiling the accused of slaying but of merely cut downing the charge to manslaughter for which the sentencing powers are lessened.

A farther country where the load of cogent evidence will be placed on the accused is where the accused relies on the defense mechanism of insanity [ 32 ] or automatism [ 33 ] . The tribunals are loath to accept a supplication of automatism where the status has been brought about by the accused’s ingestion of intoxicant [ 34 ] . In Woolmington V DPP [ 35 ] Viscount Sankey made the remark that where the defense mechanism is one of insanity or where there are any statutory exclusions, the load of turn outing the supplication of insanity must lie with the suspect [ 36 ] . Devlin, J in Hill V.Baxter [ 37 ] stated at page 285

‘…insanity is the lone affair of defense mechanism in which under the common jurisprudence the load of cogent evidence has been held to be wholly shifted.’

In general the accused should merely hold an evidentiary load to turn out that they did non perpetrate the offenses they have been accused of or that they have a lawful alibi for perpetrating those offenses. Those with an evidentiary load can utilize grounds from informants on the other side either in cross-examination or when grounds is given as evidence-in-chief [ 38 ] . An evidentiary load merely requires the accused to be able to indicate to some grounds doing the issue in inquiry a unrecorded issue [ 39 ] .

It is of import to look at how Judgess view the legal and evidentiary load and how they discharge their responsibilities in regard of these loads when seting information before the jury. Judges see the evidentiary load as ordering what he does in regard of go forthing the inquiry to the jury [ 40 ] or retreating them from it [ 41 ] whilst the legal load governs what he says when directing the jury on how they should make their finding of fact [ 42 ] . The manner in which Judgess use these loads makes it even more compelling that the loads should be right apportioned.

Allegations of corruptness have besides been found to do jobs as statute law [ 43 ] as the consequence of puting the load on the accused to turn out that they were non involved in any signifier of corruptness. The diction of the 1916 Act is such that there is a given of corruptness if the individual providing the gift is keeping or seeking to obtain a contract [ 44 ] . The Act places the burden onto the suspect to turn out on the balance of chances [ 45 ] that there has been no such corruptness.

The consequence of the given was explained by Lord Lane in R v Braithwaite [ 46 ] explained the consequence of the given.

The consequence of subdivision 2 is that when the affairs in this subdivision have been fulfilled the load of cogent evidence is lifted from the shoulders of the prosecution and descends on the shoulders of the defense mechanism. It so becomes necessary for the suspect to demo that what was traveling on was non reception corruptedly as incentive or wages. In an appropriate instance it is the Judgess responsibility to direct the jury foremost of all that they must make up one’s mind whether they are satisfied so they are certain the suspect received money or gift or consideration and so travel on to direct them that if they are so satisfied so under subdivision 2 of the 1916 Act the load of proof displacements.

This given can merely be rebutted by grounds of an guiltless account and non by a simple averment by the suspect that is non supported with grounds [ 47 ] .

The Home Secretary Mr H Samuel in 1916 defended the given inserted in the Act when he stated

I am certainly the House will hold that it is both sensible and just to set the load of cogent evidence on the individual charged. If the payment was innocently made…it would be easy to turn out in Court… and there would be no hazard of guiltless work forces being unjustly convicted[ 48 ].

To decrease the jobs caused by the contrary burden being placed on the accused each instance should be judged individually and evaluated to measure what elements the accused is able to turn out or confute harmonizing to the resources available to him. It could in some fortunes be blatantly unjust for an accused to hold to turn out that an point he is found in ownership of is non a stolen point. It may good be that he has purchased an point from a friend believing it belonged to the friend and was his to sell. The tribunals in this regard have on juncture placed the load of turn outing that the accused knew the goods to be stolen particularly where the acquisition of the goods is a considerable clip after the larceny [ 49 ] . Where the suspect is caught in ownership shortly after the committee of the larceny the burden is normally on the accused to turn out that he did non cognize these to be stolen [ 50 ] .

The Criminal Law Revision Committee stated in paragraph 140 of its 11Thursdaystudy that

‘We are strongly of the sentiment that, both on rule and for the interest of lucidity and convenience in pattern, burdens on the defense mechanism should be evidentiary only.’

At present these recommendations have non been incorporated into statute law or set into action in the tribunals with the terminal consequence being that there is no certainty as to when the accused will be faced with a legal load every bit good as an evidentiary load. The danger this poses for those accused of serious offenses is that they could be faced with seeking to turn out something which is beyond their abilities to make. There needs to be clearer guidelines and controls in topographic point to modulate rearward load burdens otherwise there could be an inflow in the hereafter of abortions of justness.


Allen, C,Practical Guide to Evidence,2neodymiumEd, 2001, Cavendish Publication

Elliott, C, & A ; Quinn, F,Condemnable Law,3rd Ed, 2000, Pearson Education

Murphy, P,Blackstone’s Criminal Practice,2002, Oxford University Press

Glazebrook, P R,Legislative acts on Criminal Law,2001, Blackstone’s

Huxley, P, & A ; O’Connell, M,Legislative acts on Evidence,5ThursdayEd, Blackstone’s

Legislating the Criminal Code: Corruptness, Law Commission Report 145 ( 1997 )

Tadros, V and Tierney, S [ 2004 ]Given of artlessness and the Human Rights Act67 MLR 402

Ashworth, A and Blake, MThe given of artlessness in English jurisprudence[ 1996 ] Crim LR 306 Tocopherol

Lewis, P,The HRA 1998: Switching the Burden[ 2000 ] Crim LR 667

Jones, T H,Insanity, Automatism and the Burden of Proof on the Accused( 1995 ) 111 LQR 475

Zuckerman, A.The Third Exception to the Rule in Woolmington( 1976 ) 92 LQR 402

Zuckerman, A NoThird Exception to the Rule in Woolmington( 1987 ) 103 LQR 170

Smith. J C, Thegiven of artlessness( 1987 ) NILQ 223 B

Table of Cases

Ashley V Chief Constable of Sussex [ 2006 ] EWCA Civ 1085 ( 2006 ) 103 ( 32 ) L.S.G. 20 Times, August 30, 2006

Beckford V R ( 1988 ) 1 AC 130

Bullard v The Queen [ 1957 ] AC 635

DPP V Morgan [ 1976 ] AC 182

Finegan ( Graham Terrence ) V Heywood 2000 J.C. 444 2000 S.L.T. 905 2000 S.C.C.R. 460 2000 G.W.D. 15-633 Timess, May 10, 2000

Hansard ( HC ) 31 October 1916 Vol 86 gap 1636

Hill V.Baxter [ 1958 ] 1 Q.B. 277

Hussain V United Kingdom ( 8866/04 ) ( 2006 ) 43 E.H.R.R. 22 Timess, April 5, 2006

Lloyd V DPP [ 1996 ] C.L.Y. 1337 1995

Mancini V DPP [ 1942 ] AC 1

Palmer v The Queen [ 1971 ] AC 814

Paria V Queen, The [ 2003 ] UKPC 36 ( 2003 ) 147 S.J.L.B. 537

R V Attorney General Ex p. Rockall [ 2000 ] 1 W.L.R. 882 [ 1999 ] 4 All E.R. 312 Times, July 19, 1999 Independent, July 26, 1999

R V Rashford ( 2005 ) AER 192

R V Ahluwalia ( 1992 ) 4 AER 889

R V Bonnick ( 1978 ) 66 Cr App R 266

R V Braithwaite [ 1983 ] 1 WLR 385

R v Carr- Briant [ 1943 ] KB 607

R V Charlton ( 2003 ) EWCA Crim 415

R V DPP ex parte Kibilene [ 1999 ] 3 WLR 972

R V Duffy [ 1949 ] 1 All ER 932

R V Edwards [ 1986 ] 2 WLR 225

R V Edwards { 1975 ] 1 QB 27

R V Galbraith [ 1981 ] 1 WLR 1039

R V Gill [ 1963 ] 1 WLR 841

R V Hill ( 1988 ) 89 Cr App R 74

R V Lambert [ 2001 ] 2 Cr App R 511

R Vs Lindsay ( 2005 ) AER ( D ) 349

R V Mills ( 1978 ) 68 Cr App R 5

R V Owino ( 1996 ) 2 Cr. App. R. 128

R V Pommell [ 1995 ] 2 Cr App R 607

R V Schofield ( Stephen Paul ) [ 2004 ] EWCA Crim 369

R V Whyte ( 1988 ) 51 DLR ( 4Thursday) 481

R. ( on the application of P ) v Liverpool City Magistrates Court [ 2006 ] EWHC 887 [ 2006 ] E.L.R. 386 [ 2006 ] A.C.D. 73 ( 2006 ) 170 J.P.N. 453 ( 2006 ) 170 J.P.N. 814

R. V Cash ( Noel ) [ 1985 ] Q.B. 801 [ 1985 ] 2 W.L.R. 735 [ 1985 ] 2 All E.R. 128 ( 1985 ) 80 Cr. App. R. 314 ( 1985 ) 82 L.S.G. 1330 ( 1985 ) 129 S.J. 268

R. V Drummond [ 2002 ] EWCA Crim 527 [ 2002 ] 2 Cr. App. R. 25 [ 2002 ] R.T.R. 21 Daily Telegraph, March 14, 2002

R. V Martin ( Anthony Edward ) [ 2001 ] EWCA Crim 2245 [ 2003 ] Q.B. 1 [ 2002 ] 2 W.L.R. 1 [ 2002 ] 1 Cr. App. R. 27 ( 2001 ) 98 ( 46 ) L.S.G. 35 ( 2001 ) 145 S.J.L.B. 253 Times, November 1, 2001

R. V McPherson ( Franklin Rupert ) ( 1957 ) 41 Cr. App. R. 213 1957

R. V Roach ( Michael ) [ 2001 ] EWCA Crim 2698

R. V Wilson ( Stacey Leon ) [ 2006 ] EWCA Crim 1880

Salabiaku V France ( 1988 ) 13 EHR R 379

Saunders v United Kingdom [ 1997 ] B.C.C. 872

Sheldrake v. Director of Public Prosecutions [ 2004 ] UKHL 43

Sodeman v The King [ 1936 ] 2 All ER 1138

Woolmington V DPP [ 1935 ] AC 462

Table of Legislative acts

Condemnable Justice and Public Order Act 1994

Homicide Act 1957

Human Rights Act 1998

Misuse of Drugs Act 1971

Prevention of Corruption Act 1916

Prevention of Terrorism ( Temporary Provisions ) Act 1989

Terrorism Act 2000



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