A reverse legal burden applied to defendants accused of an offence under section 17 of the Forestry Act 1967 which, in specified circumstances, created an absolute offence of felling a tree without a felling licence. Clarke LJ said: ‘It is thus clear that, while the general principles are those set out in Edwards, each case depends upon the construction of the particular statute. The question in each case will be whether the provision concerned is an ‘exception, exemption, proviso, excuse or qualification’ within the meaning of section 101 of the Magistrates’ Courts Act 1980. It is also clear from Hunt, and indeed from the express terms of section 101, that in such a case ‘the burden of proving the exception, proviso, excuse or qualification, shall be on the defendant’.
As I read the decision in Hunt, the House rejected the submission that any burden on the accused should be construed as evidential and not legal . . Lord Griffiths rejected the submission in this way . .
‘My Lords, I am, of course well aware of the body of distinguished opinion that urges that wherever a burden of proof is placed upon a defendant by statute the burden should be an evidential burden and not a persuasive burden, and that it has the support of the 11th Report of the Criminal Law Revision Committee, Evidence (General) 1972 (Cmnd 4991). My Lords, such a fundamental change is, in my view, a matter for Parliament and not a decision for your Lordships’ House.’
It is thus quite clear that where, applying the principles in Edwards and Hunt and the provisions of section 101 of the Magistrates’ Courts Act 1980 there is a burden on the accused, it is a legal burden and not an evidential burden.’
Judges:
Lord Justice Clarke Mr Justice Jack
Citations:
[2003] EWHC 272 (Admin), [2003] 1 PLR 89
Links:
Statutes:
Forestry Act 1967 9(1), Magistrates’ Courts Act 1980 101
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Edwards 1975
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. The burden of establishing a statutory exemption by way of a . .
Cited – Regina v Hunt (Richard) HL 1987
The court objected to the insistence on leaving the burden throughout a prosecution on the defendant on the ground that ‘the discharge of an evidential burden proves nothing – it merely raises an issue’. The House emphasised the special nature of . .
Cited by:
Cited – Clarke v Regina CACD 23-Apr-2008
The defendant appealed his conviction for providing immigration services when not qualified to do so. . .
Lists of cited by and citing cases may be incomplete.
Crime, Human Rights
Updated: 07 June 2022; Ref: scu.179691
