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Burden of Proof

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Introduction

Harold set up a business without obtaining a licence as required by statute. He insured his business premises under a policy covering loss or damage except where caused by arson. Shortly afterwards, the premises are burnt to the ground. Harold is now suing the insurers. They deny liability to pay on the ground that they are not satisfied the fire started accidentally. Further, Harold is being prosecuted by the local authority for carrying on his business without a licence. Explain the different burdens of proof that can be recognised and consider the application of these rules in relation to both the civil action brought by Harold and the prosecution by the local authority. The aim of this assignment is to explain the different burdens of proof that can be recognised and consider the application of these rules in relation to both the civil action brought by Harold and the prosecution by the local authority. When an issue of fact has to be proved in a court of law, it first necessary to consider the burdens borne by the parties and so, in order to do this one needs to establish what are the different burdens of proof that can be recognised1. The general meaning of the phrase 'burden of proof'2 is "...the obligation to prove"3. However the burden of proof can then be divided into two different principles known as the legal burden and the evidential burden. The legal burden of proof has also been referred to as 'the burden of proof', 'probative burden' or the 'ultimate burden'. Another name given is 'the burden of proof on the pleadings' to show that this burden is sometimes indicated by the pleadings. The legal burden is defined as; "...the obligation of a party to meet the requirement that a fact in issue be proved or (disproved)..."4. The evidential burden is also referred to as 'the burden of adducing evidence' and 'the duty of passing the judge'. ...read more.

Middle

In this case the opinions of the Lords were solicited before Parliament as to what procedure should be followed in the event of a defendant raising a defence of insanity and the conclusion was the emergence of the M'Naghten17 rules. In R v. Edwards18 a defendant was charged with selling alcohol without an appropriate licence. The defendant alleged that it was the duty of the prosecution to prove that he did not have the appropriate licence. The Court of Appeal said: "In our judgment this line of authority establishes that over the centuries the common law...has evolved an exception to the fundamental rule that the prosecution must prove every element of the offence charged...It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of a specified classes or with specified qualifications or with the licence or permission of specified authorities." Statute seems to make undesirable inroads on the basic presumption of innocence, as stated in Lambert19. The Court of Appeal decision in R v. Edwards20 was later confirmed by the House of Lords in R v. Hunt21 where it was said that Section 101 of the Magistrates Courts Act (1980) sets out the common law rule in statutory form. In Westminster City Council v. Croyalgrange Ltd22 by contrast, no reliance could be placed on Section 101 of the 1980 Act. A company had let premises to a person who used them for a sex business without a license. The Local Government (Miscellaneous Provisions) Act (1982) states that whereby a person knowingly causes or permits the use of premises, commits an offence. Paragraph 6 of the Act explicitly states that no person shall use any premises for the purposes of a sex business without the appropriate license. The House of Lords in this case held that Section 101 was inapplicable because the exception qualified the prohibition and not the offence. ...read more.

Conclusion

In that case practical considerations supported that the burden be borne by the defendant and it was justified by the fact that all the relevant facts were within the defendant's exclusive knowledge. The offence in question was a strict liability offence and the sentence was not a severe one which is proportionate to impose a burden on the defendant. It is common knowledge that parliament has legislated in a way which on closer scrutiny shows a complete and total disregard of the presumption of innocence. The judges are thus found to be reading down the statutes to mitigate their harshness on accused persons. The judges respect the will of parliament and at the same time respecting the presumption of innocence. 1 Colin Tapper; Cross & Tapper on Evidence; 11th edn; Oxford University Press 2007 2 Adrian Keane; Modern Law of Evidence; 6th edn; Oxford University Press 2006 3 Adrian Keane; Modern Law of Evidence; 6th edn; Oxford University Press 2006 4 Colin Tapper; Cross & Tapper on Evidence; 11th edn; Oxford University Press 2007 5 Adrian Keane; Modern Law of Evidence; 6th edn; Oxford University Press 2006 6 Human Rights Act 1998 7 Section 101 8 Magistrates Court Act 1980 (originated in the Summary Jurisdiction Act 1848 Section 14) 9 [1886] 12 App Cas 41, HL 10 [1968] AC 107 11 [2003] BLR 271, CA at [28] 12 [1942] AC 154, HL 13 [1918] 2 KB 78 14 [1894] P 226, CA 15 [1935] AC 462, HL 16 [1843] 10 CI & Fin 200, HL 17 [1843] 10 CI & Fin 200, HL 18 [1975] QB 27 CA 19 R v Lambert [2002] 2 AC 545 20 [1975] QB 27 CA 21 [1987] 1 All ER 1, HL 22 [1986] 83 Cr App R 155, HL 23 [1987] 1 All ER 1, HL 24 [1975] QB 27 CA 25 [1943] KB 607 26 Section 3(1) 27 [1999] 3 WLR 972, HL 28 Section 16(A) 29 Article 6(2) 30 R v Lambert [2002] 2 AC 545 31 [2003] EWHC 273 32 [2000] EWHC 272 ?? ?? ?? ?? Tehseen Afsar- 100011658 Larry Mead- 6LA008 ...read more.

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