2014 ZA Q4 “it is not surprising that the outcomes of judicial decisions on the
compatibility of statutory provision that place the BOP on D are
unpredictable. The courts have completely failed to establish any
principled basis of decision making on this issue” Discuss.
2014 ZB Q2 “The decision of the HOL failed to provide the court with any clear
guidance on how to interpret statute that impose a BOP on the D. This is
deeply unsatisfactory.” Discuss.
2015 ZA Q4 “If the courts are to uphold the presumption of innocence they should
always use the HRA 1998 to turn any legal burden on the defence into
an evidential burden only. Unfortunately the court have found dubious
reason not to do this.” Discuss.
2016 ZA Q1 “Article 6 of the ECHR has proved ineffective in guaranteeing the right to
a fair trial for accused person in English courts” Discuss in relation to the
BOP.
2016 ZB Q3 “The decisions of the UKSC have failed to provide the courts with any
clear guidance on how to interpret statutes that impose a BOP of the D.
This is deeply unsatisfactory”. Discuss.
2016 Oct -
2017 ZA Q2 “Where a statute defines a defence in terms that make it clear that the D
bears the legal BOP, then the courts should always defer to Parliament
intentions.”. Discuss.
2017 ZB Q2 “Where a statute defines a defence in terms that make it clear that the D
bears the legal BOP, then the courts should always defer to Parliament
intentions.”. Discuss.
2018 ZB Q2 “The criminal justice system has tilted too far away from protecting the
D’s right to a fair trial”. Discuss in relation to the law on the BOP.
2018 Oct Q4 To what extent have the courts developed a coherent rationale for
determining the proportionality of provisions which reverse the BOP in
criminal matters?
2019 ZA Q1 “The POI is important but terrorism and drug dealing are such serious
current threats to the community and pose such problem of proof for the
prosecution, the reverse burdens are justified”. Discuss with reference to
case law.
2020 ZB Q2 “Unfortunately the case-law on the circumstances in which it will be
compatible with a D’s right to a fair trial for the legal burden to be placed
on a D are far from clear. The limited guidance that is provided suggests
that little importance is attached to the POI in today’s climate of law and
order”. Discuss.
2020 Oct “Case-law on the allocation of BOP demonstrates the importance
attached to the POI in England and Wales, and it is less than might be
expected from a signatory to the ECHR.” Discuss.
, BURDEN OF PROOF
Intro
The phrase “innocent until proven guilty” was first coined in late 18th century by English
lawyer Sir William Garrow, but courts’ understanding of presumption of innocence is
rooted in famous claim by Viscount Sankey in Woolmington. In 1935, with missionary
zeal, Viscount Sankey refer presumption of innocence principle as a “golden thread” and
pronounced that “no attempt to whittle it down can be entertained”. Evidently, the maxim
“ten guilty men should escape rather than one innocent man should suffer” is dear to the
hearts of Englishmen (Hobson).
Exception
Nevertheless, “golden thread” never been absolute from beginning since Lord Sankey
himself identified that common law exception of insanity and statutory exceptions may
cause golden thread to become frayed. That means, there are some circumstances in
which defendant will bear legal burden on balance of probabilities in respect of specific
defence to prove his innocence (Carr-Briant).
HRA
HRA 1998 drew much inspiration from ECHR and specifically enshrined presumption of
innocence by adopting Art.6(2) wholesale from ECHR. By implementation of HRA,
doctrine of presumption of innocence underpins whole range of rules intended to ensure
fairness to defendants.
Express Reversal
Until the advent of HRA, nobody had successfully challenged Parliament’s constitutional
right to determine whether it was appropriate for defendant to prove his innocence, as
Lord Sankey stated quite categorically that statutory exceptions were to be regarded as
an exception to golden thread. That means, reversal of burdens prior to HRA was
“automatic” if it was expressly provided in statute and this was undeniably alarming. As
such, it could be said HRA has bestowed upon it, or at the least, has reinforced its
constitutional status.
Implied Reversal
Besides being legislators were able to expressly exclude general rule, disquietingly there
were plethora of cases in which statute were interpret as impliedly imposing a burden on
defendant. In Edwards, on a charge of selling intoxicating liquor without a justices’ licence,
it is not for prosecutor to prove that defendant had no licence but for defendant to prove
that he had. COA demonstrates their ability to imply a reversed burden when statute
prohibited an act save in specified circumstances. Implied reversal burden was so
widespread under common law that the whole idea incorporated into s.101 Magistrate’s
Court Act 1980, subsequently enabling reversal of burden in summary courts to be
governed by statute. It was only a matter of time until golden thread became so frayed that
presumption of innocence turned into an exception to a different general rule.
Insanity
Whereas, defence of insanity has long been an uncontroversial exception to Viscount
Sankey’s “golden thread” (McNaghten), save for recommendation on evidential burden
from Criminal Law Revision Committee in 1972, and Ian Dennis. Having discuss, it can
be confidently concluded that ‘golden thread’ has never actually been absolute (Lord
compatibility of statutory provision that place the BOP on D are
unpredictable. The courts have completely failed to establish any
principled basis of decision making on this issue” Discuss.
2014 ZB Q2 “The decision of the HOL failed to provide the court with any clear
guidance on how to interpret statute that impose a BOP on the D. This is
deeply unsatisfactory.” Discuss.
2015 ZA Q4 “If the courts are to uphold the presumption of innocence they should
always use the HRA 1998 to turn any legal burden on the defence into
an evidential burden only. Unfortunately the court have found dubious
reason not to do this.” Discuss.
2016 ZA Q1 “Article 6 of the ECHR has proved ineffective in guaranteeing the right to
a fair trial for accused person in English courts” Discuss in relation to the
BOP.
2016 ZB Q3 “The decisions of the UKSC have failed to provide the courts with any
clear guidance on how to interpret statutes that impose a BOP of the D.
This is deeply unsatisfactory”. Discuss.
2016 Oct -
2017 ZA Q2 “Where a statute defines a defence in terms that make it clear that the D
bears the legal BOP, then the courts should always defer to Parliament
intentions.”. Discuss.
2017 ZB Q2 “Where a statute defines a defence in terms that make it clear that the D
bears the legal BOP, then the courts should always defer to Parliament
intentions.”. Discuss.
2018 ZB Q2 “The criminal justice system has tilted too far away from protecting the
D’s right to a fair trial”. Discuss in relation to the law on the BOP.
2018 Oct Q4 To what extent have the courts developed a coherent rationale for
determining the proportionality of provisions which reverse the BOP in
criminal matters?
2019 ZA Q1 “The POI is important but terrorism and drug dealing are such serious
current threats to the community and pose such problem of proof for the
prosecution, the reverse burdens are justified”. Discuss with reference to
case law.
2020 ZB Q2 “Unfortunately the case-law on the circumstances in which it will be
compatible with a D’s right to a fair trial for the legal burden to be placed
on a D are far from clear. The limited guidance that is provided suggests
that little importance is attached to the POI in today’s climate of law and
order”. Discuss.
2020 Oct “Case-law on the allocation of BOP demonstrates the importance
attached to the POI in England and Wales, and it is less than might be
expected from a signatory to the ECHR.” Discuss.
, BURDEN OF PROOF
Intro
The phrase “innocent until proven guilty” was first coined in late 18th century by English
lawyer Sir William Garrow, but courts’ understanding of presumption of innocence is
rooted in famous claim by Viscount Sankey in Woolmington. In 1935, with missionary
zeal, Viscount Sankey refer presumption of innocence principle as a “golden thread” and
pronounced that “no attempt to whittle it down can be entertained”. Evidently, the maxim
“ten guilty men should escape rather than one innocent man should suffer” is dear to the
hearts of Englishmen (Hobson).
Exception
Nevertheless, “golden thread” never been absolute from beginning since Lord Sankey
himself identified that common law exception of insanity and statutory exceptions may
cause golden thread to become frayed. That means, there are some circumstances in
which defendant will bear legal burden on balance of probabilities in respect of specific
defence to prove his innocence (Carr-Briant).
HRA
HRA 1998 drew much inspiration from ECHR and specifically enshrined presumption of
innocence by adopting Art.6(2) wholesale from ECHR. By implementation of HRA,
doctrine of presumption of innocence underpins whole range of rules intended to ensure
fairness to defendants.
Express Reversal
Until the advent of HRA, nobody had successfully challenged Parliament’s constitutional
right to determine whether it was appropriate for defendant to prove his innocence, as
Lord Sankey stated quite categorically that statutory exceptions were to be regarded as
an exception to golden thread. That means, reversal of burdens prior to HRA was
“automatic” if it was expressly provided in statute and this was undeniably alarming. As
such, it could be said HRA has bestowed upon it, or at the least, has reinforced its
constitutional status.
Implied Reversal
Besides being legislators were able to expressly exclude general rule, disquietingly there
were plethora of cases in which statute were interpret as impliedly imposing a burden on
defendant. In Edwards, on a charge of selling intoxicating liquor without a justices’ licence,
it is not for prosecutor to prove that defendant had no licence but for defendant to prove
that he had. COA demonstrates their ability to imply a reversed burden when statute
prohibited an act save in specified circumstances. Implied reversal burden was so
widespread under common law that the whole idea incorporated into s.101 Magistrate’s
Court Act 1980, subsequently enabling reversal of burden in summary courts to be
governed by statute. It was only a matter of time until golden thread became so frayed that
presumption of innocence turned into an exception to a different general rule.
Insanity
Whereas, defence of insanity has long been an uncontroversial exception to Viscount
Sankey’s “golden thread” (McNaghten), save for recommendation on evidential burden
from Criminal Law Revision Committee in 1972, and Ian Dennis. Having discuss, it can
be confidently concluded that ‘golden thread’ has never actually been absolute (Lord
