F3.9 – Express Statutory Exceptions Flashcards
Prior to the HRA 1998, what kind of burden was put on the defence by statutory provisions which put on the accused an obligation to ‘prove’ a particular matter?
A legal burden.
Subject to the decision of the House of Lords in Lambert [2001] UKHL 37, [2002] 2 AC 545, where it is said that in appropriate circumstances where statutory provisions which put on the accused an obligation ‘to prove’ (or ‘to show’ where it is interpreted as synonymous in the context) a particular matter maybe read down under s3 the HRA 1998, what kind of burden is imposed on the defence in such circumstances?
An evidential burden.
Homicide Act 1957 s2(2) ‘On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder’.
(i) Does s2(2) of the HA 1957 contravene Art 6(2) ECHR?
(ii) What does this mean about the type of burden it imposes on the defence?
(i) No.
Where the defence of diminished responsibility is raised, the onus is on the defence to prove it on a balance of probabilities (Dunbar [1958] 1 QB 1; Grant [1960] Crim LR 424).
(ii) a legal burden (i.e. should not be read down as imposing on the defence only an evidential burden (Wilcocks [2016] EWCA Crim 2043, [2017] 1 Cr App R 23 (338), applying Foye [2013] EWCA Crim 475).
Homicide Act 1957 s2(2) ‘On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder’.
(i) Who does this leave the decision of who to raise the issue of diminished responsibility?
(ii) What happens if it is not raised but the judge detects evidence of it?
(i) the defence
(ii) the judge is not bound to direct the jury to consider the matter but, at most, should (in the absence of the jury) draw the matter to the attention of the defence so that they may decide whether they wish the issue to be considered by the jury.
(Campbell (1986) 84 Cr App R 255, per Lord Lane CJ, obiter).
