Human Rights, Serious Crime and Criminal Procedure - College of ...

Why bother with Rights when Public Safety is at risk?prosecution will be unable to gain a conviction, and thereforethat requiring a defendant to establish a defence is to lightenwhat should be the prosecutor's burden.It is fair to expect the accused to adduce sufficient evidence toshow that he may fall within a particular defence (known as the"evidential burden"), not least because it would be ridiculouslydisproportionate to expect the prosecution to negative everypossible defence to the crime charged. But once a defence hasbeen thus raised as a live issue it ought to fall to the prosecutionto prove that it does not apply in this case, since that is anintegral part of proving guilt (the overall "burden of persuasion").33 Self-defence is a clear example of the proper approach:where a person is charged with a crime of violence, theprosecution does not have to negative self-defence unless thedefendant adduces sufficient'evidence to lay a foundation for it,in which case the prosecution bear the burden of disprovingself-defence beyond a reasonable doubt. Thus the real concern is"not whether the accused must disprove an element to prove anexcuse, but that an accused may be convicted while a reasonabledoubt exists." 34Both Parliament and the judges, however, have frequentlysuccumbed to the temptation to impose persuasive burdens onthe defence. Summary offences almost invariably impose theburden on the accused of bringing himself within any defence,exemption or proviso to an offence; 35 and a combination oflegislative provisions and judicial decisions has the effect ofimposing burdens of the defence in many indictable offencestoo. 36 Parliament has fairly routinely imposed burdens of proofon the defendant, without seeking special justification, and inparticular without addressing the argument that an evidentialburden on the defence would be sufficient. 37 Recently, however,there is evidence of judicial and parliamentary willingness toscrutinise the justifications for taking the step of imposing apersuasive burden of proof on the defendant, a move promptedby Article 6.2 of the European Convention, 38 although not by thedecisions of the Strasbourg Court. 39 The decision of the House ofLords in Lambert 40 is all the more powerful because the statutoryprovision was worded so as to impose the burden of proof onthe defence and did so in the context of drugs legislation, butthe House still held that it should be interpreted as imposingonly an evidential burden on the defendant, so as not to violatethe presumption of innocence. If this approach is followed,several other provisions will now have to be reinterpreted. 4117