Question:
“It is now well settled that the principle which is to be applied requires a balance to be struck between the general interest of the community and the protection of the fundamental rights of the individual. This will not be achieved if the reverse onus provision goes beyond what is necessary to accomplish the objective of the statute”. (Lord Hope, R v Lambert [2002] AC 545, 88)
Critically assess the circumstances in which a court may infer that a burden of proof should be placed on the defendant in a criminal case and the extent to which this conflicts with the presumption of innocence.
Please follow the essay Plan :
Introduction :
-How people should be given the right of a fair trial ? ( Human Rights Act 1998 Article 6 )
-Presumptions of Innocence ,innocent until proven guilty .
Main Body:
-what is burden of proof ? Definition.
-Legal and Evidential Burden ? Definitions , add Cases which are :
Woolmington V DPP
Levison V Patent Steam Cleaning Co. 1978
-How Common Law has developed that burden of proof is on the prosecution?
-Reverse burden of proof ?
-Reverse Burden will only be acceptable if proportionate and in the interest of the defendant ?
-Prosecution beyond reasonable doubt , Defence balance of probability .
– use cases :
R V Lambert 2002- which is the main case , prosecution has to prove beyond reasonable doubt more than the defendent , if it was the defendent they should slightly more than the prosecution and how was the law before and after this case, there were 3 judges and each judge disagrees from one another read all three.
R V Johnstone 2003
Attorney General Reference 2004
Sheldrake V DPP Attorney General 2005
Conclusion :
for conclusion answer these both question :
1- when do the courts put burden of proof on the defendants ?
2- How does this conflict with presumptions of innocence ?
The Referencing should be OSCOLA Style .
Include England and Wales Acts
Law should only be from England and wales NOT USA.
Criminal Justice Act 1988 , use this where applicable
use british books ,
– the modern law of evidence , Adrian & Paul Mckeown 2012
– Evidence – Mundy publisher OuP 2013
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