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Flashcards in Presumptions Deck (16):

What is a presumption?

A presumption is an inference as to the existence of one fact from knowledge of another fact.


What is a rebuttable presumption of law?

These are distinguished from presumptions of fact, i.e. inferences to be drawn form certain types of established evidence.

They are presumptions which must be made unless surmounted by evidence to the contrary.


What are some examples of presumptions of law?

⁃ A) Presumption of parentage[ A man is presumed to be the father of a child born to his wife - this may be rebutted by contrary evidence on the balance of probabilities. (Law Reform (Parent and Child) (S) Act 1986 s 5.)]

⁃ B) Presumptions arising from previous criminal convictions[ Under the Law Reform (Miscellaneous Provisions) (S) Act 1968 s 10, in any criminal proceedings it shall be presumed that if a person has been convicted previously of an offence that he did commit that offence.]

⁃ C) Presumption of property owned in common by spouses or civil partners[ Under FL(S)A 1985 s 25 there is a presumption of equal shares in household goods. Under s 26 concerns a presumption about money and property deriving from a housekeeping allowance.]

⁃ D) Presumption of regularity[ Look this one up. Authority for the point if the case of Marr v Procurator Fiscal (1881)]

⁃ E) Presumption against misconduct[ Gibson v National Cash Register 1925 - potentially fraudulent sale of cash registers - the court held that there was a presumption that there was no misconduct.]

⁃ F) Presumption against donation[ There is a presumption that a person hasn't donated their property to another individual:


Macaulay v Milliken 1967

Presumption that property had not been donated, but this could be overcome by evidence that it had been - the onus would rest upon the 'donee' to challenge this presumption of law.


What is an irrebuttable presumptions of law?

Irrebuttable presumptions of law aren't technically presumptions at all, but rather rules - usually delineated in statute - of substantive law which cannot be rebutted.
⁃ e.g. there is a rule that a child under the age of 8 cannot be guilty of a criminal offence (CP(S)A 1995 s 41).


Is the presumption of innocence a real presumption?

The most common 'presumption' is the 'presumption of innocence.' However this is not strictly a presumption, it is merely about the allocation of the burden of proof.

So in criminal trials, the 'presumption of innocence' is about allocating the burden of proof to the state and also setting the standard of proof as beyond reasonable doubt.


Slater v HMA 1928

jury misdirected when told 'what is familiarly known as the presumption of innocence applied less to the appellant because he had an ambiguous character, and a man whose character was less open to suspicion would have a stronger presumption of innocence.' The appeal court held that this was a misdirection since the 'presumption of innocence' applies to every person charged with a criminal offence in precisely the same way.


*HMA v Hayes 1973

reiterates the rationale for the judgement in Slater.
⁃ There is also a useful statement in Hayes about what constitutes a reasonable doubt. It was stated that it must be a doubt based upon reason, something material, not a mere scruple or a mathematical or philosophical doubt. In essence this is something that would make you undecided in the course of your normal life as to whether you're going to say yes or know because its an issue of importance in your own affairs.


Article 6(2) ECHR

In addition to common law authority, Article 6(2) ECHR states that everybody charged with a criminal offence shall be proved guilty according to law.


What are presumptions of fact?

These are not rules of law but descriptions of inferences based on ordinary experiences


What is res ipsa loquitur?

(the case speaks for itself)
⁃ This is a reputable presumption of fact / inference that the defendant was negligent because of a certain state of affairs.

*Devine v Colvilles 1969 - there was an inference of res ipsa loquitur which hadn't been rebutted by the defenders so the inference stood.


What is the presumption of ownership based on possession?

There is a presumption that the possessor of corporeal moveables is the owner. - George Hopkinson Ltd v N G Napier & Son 1953 SC 139


What is the presumption of intending natural and probable consequences of action?

⁃ This is a criminal presumption whereby an individual is deemed to have intended the natural and probable consequences of his actions.

HMA v Rutherford 1947 - man on trial for murder after strangling woman. He stated that the woman had asked him to strangle her. She died - he reported it to the police immediately, arguing he had no intention of harming her. He was deemed not to have the requisite mens rea for murder, but was found guilty of culpable homicide since he was deemed to have intended the natural and probably consequences of his action (which in this case was death).


What is the presumption of recent possession of stolen property?

⁃ A person found in possession of stolen property is presumed to be guilty of either theft or reset, but this can be rebutted (so the presumption of fact places a burden on the accused to discharge the presumption). This is merely a tactical burden - the strategic necessity for an individual to discharge the evidence.[ However, pragmatically, if the individual doesn't manage to rebut this presumption it is pretty difficult to evade conviction.]


*Fox v Patterson 1948

man charged with theft of stolen bronze but then convicted of reset of that property. He was found in possession of property that had been stolen - he claimed it had not been stolen and that he had legitimately bought it and gave evidence as to the existence of a person who could substantiate this, but this person could not be traced. At trial the Sheriff disbelieved that there was a legitimate origin and held the accused to be guilty of reset. This was challenged on appeal and the appeal court laid down a three part rule:
⁃ 1) The goods must be found in the individual's possession
⁃ 2) Those goods must have been recently stolen
⁃ 3) There must be other criminative circumstances.


McDonald v HMA 1989

this shows that Fox does not lead to an inference of fact that will lead to the accused needing to prove his innocence, rather if the 3 criteria in Fox are satisfied, the accused needs to rebut the prosecution case using evidence (so its a tactical burden, not a persuasive one, yet it is quite a weighty burden).