Chapter 1 Interactive key cases

D appealed against his conviction for possession of a class A drug with intent to supply. He had been found in possession of a bag containing a drug but said he neither knew, nor suspected, nor had reason to suspect the nature of the contents of the bag. The question on appeal was whether he had to prove his lack of knowledge of the contents, or if the prosecution had to prove he did know. The section in issue was s 28 Misuse of Drugs Act 1971.

Section 28, insofar as it contained an express reverse proof burden, should be ‘read down’ as imposing an evidential burden only on the accused (note: this is in fact obiter as the majority of the House held that the Human Rights Act 1998 did not have retrospective application).

Sheldrake: D was convicted of drink-driving. He appealed on the ground that the defence, which cast upon the defendant the burden of proving that there was no likelihood of his driving the vehicle while over the limit, violated his right to a fair trial under Article 6.

Attorney-General’s Reference: D was charged with two offences relating to terrorism (belonging to and professing to belong to a proscribed organization). The appeal concerned the elements of the offences and related defences, and who had to prove them.

The House of Lords held that the allocation of a proof burden to the accused did not violate Article 6. It was directed to a legit¬imate objective (the prevention of death, injury, and damage caused by unfit drivers); and the likelihood of the defendant driving was a matter so closely conditioned by his own knowledge as to make it much more appropriate for him to prove on a balance of probabilities that he would not have been likely to drive than for the prosecution to prove, beyond reasonable doubt, that he would. In addition, the imposition of a legal burden on D did not go beyond what was necessary and reasonable, and was not in any way arbitrary. The House held that if there was a reverse proof burden, there was a real risk that a person who was innocent of any blameworthy or properly criminal conduct, but who was unable to establish a defence to one of these charges, might nevertheless be convicted. The provisions in question therefore breached the presumption of innocence.

D was charged with murder. The trial judge directed the jury that, once the prosecution had proved a person had died at D’s hands, it was for D to prove it was not murder.

Viscount Sankey held that the burden of proof lies on the prosecution, and that includes proof of each element of the crime, and the elements of any defence, other than the defence of insanity and other ‘statutory provisions’.

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