F3.18 – Incidence of the Legal Burden: the Human Rights Act 1998

Question 1

Any reverse onus is open to challenge on the basis of what?

Answer 1

Article 6(2) ECHR, which provides that ‘everyone charged with a criminal offence shall be presumed innocent until proved guilty according to the law’.

Question 2

Will reverse onus inevitably give rise to a finding of incompatibility?

Answer 2

No.

(per Lord Hope in Lambert [2001] UKHL 37, [2002] 2 AC 545 at [87]).

Question 3

What should the court focus on when determining compatibility of the reverse onus with Art 6(2) ECHR?

Answer 3

The particular circumstances of the case and strike a reasonable balance between the general interest of the community and the protection of the fundamental rights of the individual.

Question 4

What is the drawback to a test so reliant on notions of fairness, reasonableness and proportionality?

Answer 4

Views may reasonably differ so that in many cases it will be as possible to reach a rational conclusion of compatibility as incompatibility (see Keogh [2007] EWCA Crim 528).

Question 5

Choose the correct answer:

If a there is a declaration of incompatibility, a statute placing a burden of proof on the accused

(i) may

(ii) must

be read down.

Answer 5

Must