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Lack of consistency/principle
Dennis: "forensic lottery"
Roberts and Zuckerman "blizzard of single instances"
Munday: "Court will find itself wandering in Tennyson's wilderness of single instances"
Tausz and Ashworth: "the only certainty is that courts should use s.3 of the HRA fully".
Relevance in practice
Ashworth and Blake: 40% of offences triable in Crown Court appeared to place burden of proof on D or impose SL. Burden of proof = is it a matter for purely procedural or substantive analysis?
- Seems against British constitution for courts to analyse the correctness of the offences substantively, but in Kebilene and Lambert the judges seemed to take that approach.
Salabiaku v France - accepted that presumptions operate in every legal system but that they must stay 'within reasonable limits' which take into account what is at stake and maintain the rights of the defence. o Take account of whole trial process and need for fair trial more generally Ashworth - ECHR jurisprudence here was "flaccid" = no details.
The Substantivist View = Tadros and Tierney Summary:
Substantive application of 6(2) broader than that applied by the courts - say it allows courts to review substantive content of criminal law, e.g. absence of MR in SL offences.
o Right is interfered with if the offence warrants conviction of those not the intended target of the offence.
o Judge must consider full effect of leg on the right, rather than formalistic approach.
They distinguish between purpose of offence and technical definition of the offence, and say 6(2) is infringed when it deliberately captures conduct which is not within intended purpose. Asking when the burden is interfered with: o Orthodox approach looks at extent to which burden is on accused for constitutive elements of the offence or defence. There is interference w/ presumption when BoP shifts in relation to definitional element.
So only has evidential consequences - the right sets the burden and standard of proof in relation to offences and defences.
Issues w/ orthodox approach: Parliament can just restructure the offence to get rid of the interference. o Example: 16A Prevention of Terrorism Act 1994 from Kebilene - prosecution had to prove BRD that D had article in possession which created reasonable suspicion that it was there to be used for a terrorist purpose. It is up to defence in 16A(3) to prove they were not for terrorist purposes.
Under Roberts' view: all elements of offence on prosecution - to prove possession and suspicion follows. Sees other part as a defence.
But T&T: it is not an offence to have articles giving rise to suspicion of terrorism, it is an offence to have articles for the purposes of terrorism. The offence, however, permits conviction of those who carry articles giving rise to reasonable suspicion = so there is no obligation on prosecution to prove element of offence of having terrorist purposes. o In Sheldrake the DivCourt said to look at the 'gravamen' of the offence rather than its technical definition
Lord Bingham looked back on Kebiliene and thought there was an interference once looked at what the AR and MR were - possession of articles which are intended to be used for terrorist purposes.
Roberts would say gravamen is 'wrong at which offence is aimed' - some offences there to forestall more serious wrongs -
T&T reject this - if true, all such offences of intent to supply/etc would interfere because the gravamen wasn't proven.
Sheldrake suggests gravamen to mean purpose - concerned RTA offence which was seen to be controlling those actually at risk of driving.
T&T think that its easier to discern purpose than Roberts' ''wrong'' approach. o So T&T: read 6(2) in context of purpose of offence rather than context of its technical definition- they say it accords w/ Parl Sov.
So protection even if prosecution must prove all elements of offence as technically defined - 6(2) has substantive and procedural protection. Strict liability o Barnfather: SL held to be compatible bc 6(2) about procedure regarding offences, not their substance.
Odd result since if not SL and just a reverse onus then would not be compatible. Factors: o Ease of proof - T&T don't like arguments that D can prove particular facts in Ds knowledge - can be difficult. o Seriousness of threat to society = paradoxical factor. Seriousness of offence =
greater harm to public but also greater risk to D. o Seriousness of the offence and of the penalty = can be decisive, but only clear indication is in trivial and regulatory crimes - Davies.
Note crticisim on using regulatory notions - can be as stigmatic for D etc.
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