Burden of proof and standard of proof essay

This divergence in opinion is plainly evident in Lambert. This problem is exacerbated by the temptation for Parliament to employ reverse burdens as a weapon in the fight against serious crime. The Courts have held, that where a legal burden is imposed, it must be legitimate and proportionate.

This exception can be further subdivided into express and implied statutory provisions. The appellant sought to rely on s. Firstly, the learned judge indicated that the defence of insanity is one such exception.

What's the difference between the burden of proof and the standard of proof?

There are now many express and implied statutory examples where the burden of proof is reversed where the defendant must discharge a legal burden to avoid conviction.

Every reverse burden will therefore involve a balancing exercise, involving several factors, to ensure that the burden is proportionate. We are both a law essay service and a law dissertation service with experience of helping hundreds of law students.

Evidence - Reverse Burden of Proof

The mechanism of reading down did injustice to the presumption that when a word is used in more than one place in a statute, a word will usually bear the same meaning: However, in the case of Sheldrake v DPP the Court held that Lambert should not be ignored and that it was perfectly compatible with Johnstone.

The same approach applies in cases involving indictable offences. The legal burden is the obligation on a party to establish certain facts in issue to the required standard.

We are a respected essay writing service that aims to delivery quality law essays and law dissertations to you first time. A comprehensive study by Ashworth and Blake in concluded that forty per cent of indictable offences involved the defendant discharging a legal burden of proof for some element of the offence.

The judge urged that the threat of drugs to the wellbeing of the community justified a legal burden in this case.

The Court held that in light of the enactment of the Human Rights Actwhich weaved the Convention principles directly into the domestic law of this jurisdiction, the appellant should be charged with an evidential burden only i.

Calling on several resources including Canadian human rights cases, jurisprudence of the Privy Council and academic opinion from eminent scholars such as Professor Glanville Williams, the majority noted a trend towards not placing a legal burden on the defendant too lightly.

In Lambert the Court emphasised that the prosecution always bear the primary obligation of proving the main elements of an offence. However, the authorities have been criticised as not providing clear enough guidance on how to interpret statues that impose a reverse burden.

However, Lord Hutton, in a powerful dissent, emphatically disagreed with the majority. We can provide you with the following help for exams and coursework on this topic: One limitation of this study is that it only considered serious offences, triable on indictment and before the Crown Court.

However, it is submitted that this regulatory category is not particularly robust and is likely to be challenged, as some quasi-criminal offences increasingly carry moral disapproval and the real possibility of a custodial sentence.

This burden further extends to any claims by the defendant that they are unfit to plead. A reverse burden of proof is held to be justified as pursuing a legitimate aim, the Court must then consider whether such an interference is proportionate.

The court will balance a number of factors in assessing this question, including i appropriate deference to the will of Parliament ii whether the crime is truly criminal or regulatory iii the nature of the penalty iv the ease with which the defendant can discharge the legal burden v the desirability of the prosecution proving the essential elements of the offence and vi the significance of the presumption of innocence as a general procedural safeguard.

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For example, in Johnstone a potential ten year maximum penalty did not prevent a legal burden being upheld in this case. While this decision was radical in its straining of the meaning of s. There have always been exceptions including the defence of insanity and statutory exceptions. An original model answer which will be written from scratch ii.

From reading the excerpt from Woolmington, one may assume that the defendant never bears the legal burden proof in any circumstances. As we shall explore, the law in this area is often complex and resembles a smorgasbord of often conflicting factors. Below you will see a law essay that received a first class mark in final year law.

This would then lead to the prosecution having to destroy the defence by leaving no reasonable doubt in the mind of the jurors that he knew he was in possession of a controlled drug. The law recognises two main burdens of proof: However, Lambert itself depicts the unpredictability of this proportionality exercise.

If it cannot be read down, then a declaration of incompatibility will be made under s. He further concluded that the imposition of any reverse burden should be fair and proportionate, taking into account various factors including the seriousness of the offence and the maximum sentence, the ease of proof by one party over the other and the danger of convicting the innocent.The legal or persuasive burden of proof is defined as the ‘burden of persuading the tribunal of fact, to the standard of proof required and on the whole of the evidence, of the truth or sufficient probability of every essential fact in issue’.

Free Essay: This paper discusses the meaning of “burden of proof” and “standard of proof” and will also explain the direction of the Judge given to the.

Burden Of Proof Essay This is a sample of our (approximately) 6 page long Burden Of Proof Essay notes, which we sell as part of the Criminal Procedure and Evidence Notes collection, a 75% package written at Oxford in that contains (approximately) pages of notes across 26 different documents.

Meaning of Burden of Proof and Standard of proof. Zambian Case Law. Words | 11 Pages. paper discusses the meaning of “burden of proof” and “standard of proof” and will also explain the direction of the Judge given to the jurors in the given set of facts.

1. BURDEN OF PROOF It is derived from the Latin expression onus probandi. The standard of proof in any case depicts both the amount and the quality of evidence which has to be lead in order for the burden of proof to be released.

In criminal cases this standard is said to be one of beyond reasonable doubt [ 33 ] therefore, the prosecution must prove the accused’s guilt beyond a reasonable doubt [ 34 ]. 2 Burden and standard of proof; presumptions Introduction The allocation of the burden of proof in both civil and criminal trials turns on the decision as to who should bear the risk of losing the case.

That allocation is decided by common law and by statute.

Burden of proof and standard of proof essay
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