Wednesday, February 26, 2020

Evidence Burden Essay Example | Topics and Well Written Essays - 2500 words

Evidence Burden - Essay Example A defendant charged with murder could claim diminished responsibility or insanity1 permitting prosecution to adduce other defence and the same applies to unfitness to plead and stand trial. Woolmington ruling places the burden of proving on defendant2 and at times, had been questionable. Effect of Human Rights Act, 1998 on English Law had been extensive and the Courts3 have taken enormous trouble to read down legislations in order to avoid incompatibility with Convention Human Rights. Accused is innocent as long as he is proven otherwise4 and this enables the criminal statutes to transfer the burden of proof to the accused 'without violating the presumption of innocence'5. In the context of drug trafficking, Lord Hutton disagreed with other Law Lords stating that the social threat posed by drugs was sufficient justification for imposing persuasive burden6. Nowhere compatibility question was more relevant than in Sheldrake v DPP A-G's reference No 4 of 2002, where House of Lords unanimously held that Section 5(2) should not be read down. As per Terrorism Act, 2002, regarding the issue of being a member of terrorist organisations, House of Lords opined that 'Section 11(2) of the Act should be read and given effect as imposing on the defendant an evidential burden only7'. The Magistrates Courts Act, 1980 states that it is necessary to decide if the defendant is relying on exception, exemption, proviso, excuse or qualification, and if so, the burden of proof immediately will fall on him8. Environmental Protection Act, 1990 and its open connection with the Human Rights has become another area of legal difficulties and conflict between EU laws and UK laws9. Section 161 (1) of Highways Act 1980 provides the legal burden on the prosecution to prove that a person 'has left something suspicious or dangerous on the highway' and it has been slightly controversial10 where reverse onus of proof is concerned. Misdirection in a criminal trial on burden of proof can lead to a quashing of a conviction on an appeal11. In civil trials the party who asserts an issue also carries the burden of proving it. In a tort action for negligence the claimant does so and in a contract action, discharge of agreement or frustration, falls on the defendant12. If a particular issue is dependent on a substantive law, like lack of precedent, 'prove a positive' of 'prove a negative' might gain significance13. Privy Council had stated that burden of proof in mitigation of damage should be with defendant. Again the Common Law defences like self-defence, duress, provocation and non-insanity automatism come into picture. Instances of prosecution bearing the legal burden 'beyond reasonable doubt' and the degree of probability could wipe out the gingerly admitted evidence. The main question comes as whether the jury is satisfied that the guilt could be inadequate and usually the judge advises the jury beforehand14 and here Canadian justice differs from English law. Choo's argument that sometimes the proof of burden could be difficult to be proved depending on the circumstances and the rigid rule should be more flexible based on situations. I agree with all the above arguments of Andrew Choo. QUESTION 2: Evidence and proof in criminal proceedings and to a lesser extent, in civil proceedings are the

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