Intro Woolmington v DPP (1935)- GR: Viscount Sankey created presumption of innocence (POI)= D need NOT prove his defence Prosecution has legal burden to prove defendant guilt (AR/MR) and disprove any defences. Truly a burden and a standard can be attached, beyond reasonable doubt. Defendant has evidential burden to raise (mention, not prove) defences. Not truly a burden and no standard can be attached. Body: Exception no more presumption of innocence =NO more EB, replaced by LB to prove the defence Legal burden can be shifted to defendant to prove his defence. It is true burden and a standard will be attached- balance of probabilities, R v Carr-Briant Two circumstances which the exception will be activated: defence of insanity on a BOP D has LB to prove the Statutory reversals a) express reversal give an example of an Act b) implied reversal (PLZ DON'T DISCUSS THE TOOLS OF INTERPRETATION) give an example of an Act body: Reversal of Legal Burden (express/ implied) and A6(2) ECHR R v Lambert (2001), L. Steyn=each time LB on D=a6 affected, the Q is : is it pro? S5(3) MDA 1971 Defence: S28(2): Defendant to prove that he had no knowledge (express reversal) Maj=no A6, pre Hra= LB+D Obiter: Is A 6(2) ( explain briefly A6(2)} absolute? 1. Answer: Brown v Stott- P.O.I is not absolute, can be modified. Salabiaku v France- A6(2) must be examined in light of marginal of appreciation (MOA) 2. UK has three options: i) ignoreA6(2) ii) ignore the reversal- iii) test the reversal against TOP -Test the reversal(defence) against of test of proportionate (T.O.P)- in English: Is the LB on the D justified against the aim of the Act/would LB on the D serve public interest? (R v DPP ex parte Kebeline) (pen down full version of TOP)
· PART I- upon testing the reversal of legal burden against T.O.P, there can be two outcomes: i) LB is justified on the defendant (LB =D, no infringement of A6) ii) LB is disproportionate on the defendant (to give LB would then infringe A6, therefore there are two options) . In deciding whether legal burden would achieve the aim of the act and not go beyond that, the Six Cardinal Principles (Reverse Onuses and the Presumption of Innocence: in search of principle 2005, Ian Dennis) · S4 HRA, and declare the defence (the reversal) as incompatible with A6 or ) (Pill LJ, L v DPP) · S3(1) HRA, to read English Law (the defence) to be compatible against 6 (this is done through a process known as 'Reading Down" ie LB will be read down as EB) P has LB to disprove the defence. D will have EB. PART II 1. Ease of proof/peculiar knowledge · Explain the principle · Use case law to elaborate (min 1, max 2) · Evaluation: how effective is this principle? 2. Maximum penalty o What is the punishment he faces in the event if he convicted o Severe punishment= unlikely for LB to be imposed on