presumptions

Question 1

nature of presumptions

Answer 1

party may be assisted in proving a case if you can show a presumption in your favour

Question 2

irrebuttable presumption

Answer 2

these are not pressumptions s such but rules of substantive law child under 8 cannot be guilty of crim offence 1995 act s.41 crim resp bill

Question 3

rebuttable presumptions

Answer 3

rebuttable presumptions is assumption that must be made unless overcome by evidence to the contrary. A party can lead evidence unless the other party can lead other evidence more convincing

Question 4

presumptions of fact

Answer 4

inferences to be drawn from certain types of established (circumstantial) evidence = true presumption exists unless other party can bring evidence to rebut

Question 5

presumption of parentage

Answer 5

man presumed to be father of child born to his wife. this may be rebutted by contrary evidence on balance of probabilities

Question 6

law reform (parent and child) Scotland act 1985 s.5

Answer 6

a man shall be presumed to be presumed to be the father of a child

Question 7

law reform (misc provisions) (scot) act 1968 s.10

Answer 7

presumptions arising from previous crim conviction convicted of denying evidence that you did something. civil impose 10(2) presumption that you did comit offence but the def can overcome it by proving that they didn’t do it on the balance of probs

Question 8

law reform (misc provisions) (scot) act 1968 s.12

Answer 8

conclusiveness of convictions for purposes of deformation actions conclusive proof that accused did it

Question 9

family law act s.25/26

Answer 9

presumption of property owned in common by civil or spouses. only saving house allowance = presumed
and household goods if cohabit in same house = presumed = equal

Question 10

marr, begbie and hoare v procurator fisc of midloathian

Answer 10

presumption of regularity.

someone does something without challenge presumption made that you were validly app

Question 11

Gibson v national cash register co ltd

Answer 11

presumption AGAINST misconduct. party not guilty of fraud. lecturer has reservation- crim behaviour alleged in civil context. not the case aledging reservation burden proven it

Question 12

macmaulay v miliken

Answer 12

presumption against donation. presumption you do not hold over property/ money for free. does not apply to parents who may well give gifts.

Question 13

echr 6

Answer 13

presumption of innocence but common law not a real presumption not a real presumption. have to prove guilt beyond all reasonable doubt.

Question 14

presumptions of fact

Answer 14

these not rules of law but descriptions of inferences based on ordinary experiences.

Question 15

devine v colvilles

Answer 15

RES IPSO LOQUTOR. rebut show that accient could have happened without being neg. divine blown 50 ft at work as pressured pipe ignited. res ipso locutor applied.
def had to show that this could not have happened without them being neg.
probable cause of fire = particles of matter = friction
BUT as they didn't lead evidence to shpow that def hadn't been neg in allowing particles to enter the pipe divine WAS ABLE TO INFER

Question 16

Pragnell-o’nell v Lady Skiffington

Answer 16

ownership based on pos. booted out of house after failed relationship. PO wanted his stuff back but Lady S. claimed argued that it was a gift. P.O failed to show that the property was not a gift therefore the court held that LADY S. had possession and presumption of ownership

Question 17

hm adv v Rutherford

Answer 17

intending natural and probable consequences of an action

Question 18

Mc Donald V HM ADV

Answer 18

accused prove innonce. appeal accused prove how they came to be in pos of the goods. depends on the items and how fast they can be shifted/ disposed.
avoid use of SUSPICIOUS must be CRIMINITVE circumstances.
A. if stolen goods found in possession of accused AND
B. interval was short between theft and pos AND
C. in Crim circumstances

Question 19

Fox v Patterson

Answer 19

accused found in recent possestion of stolen goods. provisional burden on them to prove that they are not guilty 3 circumstances must ALL concur for presumption of guilt to be applied
1. stolen goods found in pos of accused
2. interval between theft and discovery pos short
3. other criminitve circumstances
if above satisfied then burden of proof shifts to the accused to prove that they did not steal goods
v. thin line due to ECHR presumption of innocence