The court considered references by the Attorney-General with regard to offences imposing a burden of proof upon the defendant. ‘An evidential burden will be discharged by a defendant by ensuring that there is some evidence before the court which could result in a reasonable court or jury determining the issue which is the subject of the reverse burden in the accused’s favour. A classic every day example is self defence; if the defendant adduces some evidence raising the issue, the prosecution then has the burden of disproving self defence. The defendant does not have to prove that he was acting in self defence. Rather the prosecution must prove beyond reasonable doubt that he was not so acting. A ‘legal burden’ is a greater hurdle for the defendant to clear, as he must satisfy a court on the balance of probabilities (but not beyond reasonable doubt) on the issues that are the subject of the reverse burden. The imposition of an evidential burden is therefore considerably easier to justify than a legal burden. ‘ The court gave detailed guidance on when a reverse legal burden of proof might be acceptable. A reverse evidential burden should not be a problem. The court also explained and described the different purposes and consequences of pre-trial and preparatory hearings. ‘Courts should strongly discourage the citation of authority to them other than the decision of the House of Lords in Johnstone and this guidance. Johnstone is at present the latest word on the subject.’
Judges:
Mr Justice Elias Mr Justice Gage Lord Justice Judge Justice, Lord Chief Justice Mr Justice Stanley Burnton
Citations:
[2004] EWCA Crim 1025, Times 30-Apr-2004, Gazette 20-May-2004, [2004] 1 WLR 2111, [2004] 2 Cr App R(S) 27
Links:
Statutes:
European Convention on Human Rights 6, Criminal Procedure and Investigations Act 1996 29
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Johnstone HL 22-May-2003
The defendant was convicted under the 1994 Act of producing counterfeit CDs. He argued that the affixing of the name of the artist to the CD was not a trade mark use, and that the prosecution had first to establish a civil offence before his act . .
Cited by:
Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Cited – Director of Public Prosecutions v Barker Admn 19-Oct-2004
Driving whilst disqualified – ban expired but no test taken – burden of evidence . .
Cited – Goodyear, Karl, Regina v CACD 19-Apr-2005
The defendant complained that he had pleaded guilty to a charge of corruption on the basis of an indication from the judge that he would not receive a custodial sentence. Having pleaded guilty he had then been sentenced to a six months prison . .
Applied – Regina v L, G etc CACD 17-Jun-2005
A cash sum of andpound;87,000 was transferred. The defendants appealed against a ruling under the 1996 Act, saying that at the time of its transfer, the property did not represent criminal property under the Act.
Held: The pre-conditions for . .
Lists of cited by and citing cases may be incomplete.
Crime, Human Rights, Evidence
Updated: 10 June 2022; Ref: scu.196055