D shot his wife and claimed the gun had accidentally gone off. It was up to the prosecution to disprove this defence as well as proving all the other elements of the case.
When a burden is put on the defendant, it will always be on the balance of probabilities
Example of statute expressly putting the burden on D
The Magistrates Court Act 1980 s.101
For summary offences, where D relied on an exception, exemption, proviso, excuse or qualification, the burden will be on D
Magistrates Court Act s.101 rule extended to the Crown Court
Edwards - licence required to sell alcohol (either way offence)
D charged with possessing morphine. It was NOT for D to prove that the substance contained less than 0.2% morphine (despite the Edwards rule)
ECtHR case re reverse burden
Salabiaku v France - reverse burden would not necessarily breach Art 6, it was a matter of proportionate response to the severity of the offence
A fair balance must be struck between the interests of the community and the rights of the individual
Kebilene (Lord Hope)
The courts' role is one of review only; they should only differ from parliament when it is clear that parliament have attached insufficient weight to the right to be presumed innocent until proven guilty
A legal burden on D to prove his defence (that he didn't know what was in the bag) would be disproportionate. The provision was 'read down' by the court so that it only imposed an evidential burden on D.
1) Does the provision reverse the burden of proof?
2) Is the reversal justified?
3) Is it also proportionate?
4) Is it possible to read it down to an evidential burden?
Who said that the real purpose of the offence should be looked at instead of the substantive elements of the offence, in order to see whether a burden is being placed on D to prove an essential part of the offence
Tadros and Tierney
Who said that all offences with exceptions that put a burden on D interefere with the presumption of innocence? Why?
Tadros and Tierney - the existence of an exception shows that the offence includes a wider range of conduct than it intends to control