The Effect of the Human Rights Act of 1998 on English Law - Essay Example

168953 Question I agree with Choo with most of the points he has presented in this chapter, first of all being the defence of insanity, where burden of proof is different from other common law under English law. It is a bit bizarre that the presumption of insanity has to be proved by the accuser which implies that insanity is not an issue in the trial until the accuser makes it a live issue by proving with sufficient evidence. He also has to prove that he is not acting in self defence, under duress and under provocation, or 'in a state of non-insane automatism. Legal burden on prosecution could make it almost impossible to negate the claim of defence, and in most of the cases placing legal burden on prosecution might not be unfair. A defendant charged with murder could claim diminished responsibility or insanity1 permitting prosecution to adduce other defence and the same applies to unfitness to plead and stand trial. Woolmington ruling places the burden of proving on defendant2 and at times, had been questionable. Effect of Human Rights Act, 1998 on English Law had been extensive and the Courts3 have taken enormous trouble to read down legislations in order to avoid incompatibility with Convention Human Rights. Accused is innocent as long as he is proven otherwise4 and this enables the criminal statutes to transfer the burden of proof to the accused 'without violating the presumption of innocence'5. In the context of drug trafficking, Lord Hutton disagreed with other Law Lords stating that the social threat posed by drugs was sufficient justification for imposing persuasive burden6. Nowhere compatibility question was more relevant than in Sheldrake v DPP A-G's reference No 4 of 2002, where House of Lords unanimously held that Section 5(2) should not be read down. As per Terrorism Act, 2002, regarding the issue of being a member of terrorist organisations, House of Lords opined that 'Section 11(2) of the Act should be read and given effect as imposing on the defendant an evidential burden only7'. The Magistrates Courts Act, 1980 states that it is necessary to decide if the defendant is relying on exception, exemption, proviso, excuse or qualification, and if so, the burden of proof immediately will fall on him8. Environmental Protection Act, 1990 and its open connection with the Human Rights has become another area of legal difficulties and conflict between EU laws and UK laws9. Section 161 (1) of Highways Act 1980 provides the legal burden on the prosecution to prove that a person 'has left something suspicious or dangerous on the highway' and it has been slightly controversial10 where reverse onus of proof is concerned. Misdirection in a criminal trial on burden of proof can lead to a quashing of a conviction on an appeal11. In civil trials the party who asserts an issue also carries the burden of proving it. In a tort action for negligence the claimant does so and in a contract action, discharge of agreement or frustration, falls on the defendant12. If a particular issue is dependent on a substantive law, like lack of precedent, 'prove a positive' of 'prove a negative' might gain significance13. Privy Council had stated that burden of proof in mitigation of damage should be with defendant. Again the Common Law defences like self-defence, duress, provocation and non-insanity automatism come into picture. Instances of prosecution bearing the legal burden 'beyond reasonable doubt' and the degree of probability could wipe out the gingerly admitted evidence. The main question comes as whether the jury is satisfied that the guilt could be inadequate and usually the judge advises the jury beforehand14 and here Canadian justice differs from English law. Choo's argument that sometimes the proof of burden could be difficult to be proved depending on the circumstances and the rigid rule should be more flexible based on situations. I agree with all the above arguments of Andrew Choo. QUESTION 2: Evidence and proof in criminal proceedings and to a lesser extent, in civil proceedings are the most important part of trial. Traditionally evidence and its providing relies on various rules like admissibility, reception, weighting of material, and sometimes these rules apply undue pressure on either defendant or the prosecution, in certain almost impossible situations and Andrew Choo examines such situations in his Chapter 12 of Evidence. It is a theoretical understanding with the underlying concepts of reliability, fairness, proof, authenticity of source and allocation of functions between prosecution and defence in adversarial systems. Recently due to the prevalent terrorism, laws and rules have been under higher pressure as hitherto unforeseen situations have arisen, defying the conventional set of rules and necessitating House of Lords to interpret them in best possible way. In addition, adherence to EU laws have put strain on national legal system and Law Lords are constantly defining ways and means to escape conflict with EU Convention of Human Rights while retaining sovereignty and national security concern in mind. As a result factual reasoning, confessions/ statements of the accused, evidence identification, privileges, immunities, vulnerability of accused and witnesses, reliability on expert evidence, silence as evidence, pre-trail disclosure and detaining, hearsay evidence, photographic evidence, taped evidences, status of accused as a witness, insanity as a defence, evidence collected by torture or under duress and hostility of witness - all these matters have gone through a sea change in recent years, mainly because they do not come under the traditional landscape of law of the land. To some extent, the chapter briefly touches the issue of suppressing or avoiding truth and judicial exclusion of illegally obtained evidence in US, Canada, Australia and Britain. In general British law burden and standard of proof evidence beyond a reasonable doubt could produce conflict and indecision15. Prima Facie evidence in rare cases could shift the burden on the other party. "Two different effects are conceivable for prima facie evidence: It effects can be inevitable, or else only probable. Its primary effect is on the burden of evidence. Wherever provided, prima facie evidence shifts the burden of evidence from the proponent of the burden of proof to the other party," Kazazi (1996, p.332). Law of Evidence is a highly coherent part of law and could only be blamed for being slightly rigid. There are arguments that hearsay rule should be abolished, but due to current situations, this could be difficult, because many recent cases, especially of ongoing terrorism, depend upon a statement or assertion, evidence statement, that has been given in order to prove the almost definite truth are sometimes grounded on hearsay. It also connects to the fingerprint evidence using digital imaging techniques, which would have sounded frivolous in olden days. While the main purpose still remains that a miscarriage of justice should not happen, judicial discretion has to prevail on evidence unfairly, unlawfully and improperly obtained that might affect Human Rights Act, 1988. Hence, issues like Hearsay law cannot be deleted offhand. Reliability of eye witness too could be questioned and sometimes it could be pitted against the evidence of forensic science. Admissibility of evidence has changed with technological development and naturally the burden of proof cannot be rigid beyond a certain point. It has to be remembered that some of these laws are centuries old. Admissibility of psychology in the court room and multi-dimensional quality of domestic violence has shaken the burden of proof further. The Law of Evidence governs the use of testimony including oral, written (affidavit) statements, exhibits, admissible by Trier of fact documentary material. According to Anglo-American16 tradition it is a vast subject of extensive importance that shows distinction between demonstrative and moral evidence. Evidence has to be relevant, admissible and should support the probability. Other factors are not as rigid as burden of proof and sometimes are interpretable. Burden of proof has to be beyond reasonable doubt, clear and convincing and preponderance of evidence17. In some jurisdictions there are burden-shifting provisions, mainly in the region of proving and disproving it. Judicial notice could be taken by the court under special category and this could cover any evidence, even evidence stemming from other areas of law. In the Common Law burden of proof is an obligation to prove allegations or to defend a position 'against a prima facie other position'. Legal burden, also called a burden of persuasion remains on a single party and has to be discharged to the satisfaction of Trier of fact depending on factors like presumption of innocence, standard of proof, balance of probabilities and proving beyond a reasonable doubt. . A tactical burden is similar to evidentiary burden and should have the air of reality above reasonable suspicion. Today burden of proof is an embattled field with expert witnesses, forensic evidence, autopsy report, scientific consensus etc. In civil law it is different from the burden of going forward and has not changed much in recent years. Article 6, ECHR lays down the principles of human rights of all kinds that are against all derogation and essential for self-protection from wrongly being accused and imprisoned and be assured of a fair trial and at times it clashes with the burden of proof18. Whenever common law or statute places the burden on a defendant, or implies it, consideration should be given by presumption of innocence according to ECHR, article 6 (2) which state that accused is innocent till proven otherwise. "Now that the Human Rights Act 1988 is in force, the court has power to make a declaration that provisions in legislation are incompatible with a right under the Convention. Unsurprisingly perhaps, the appellate courts have, on several recent occasions, been faced with arguments that placing a legal burden of proof on a defendant in a criminal case contravenes Article 6(2) of the Convention" and this still remains a matter of contention, whether the rigidity of law should be maintained or whether it should be modified according to circumstances. QUESTION 3: English law started with the rather dubious 'Irrational Proofs' a seventeenth century intellectual crisis, which was mercifully replaced by the jury trial. There had been extensive support for the legal system and the evidence production on which the system relies, especially in criminal cases. "We may then suppose litigants to be taking part in the contest of case-strength or case weight, rather than dividing a determinate quantity of case-merit. The only possibility of injustice that is then officially countenanced is the possibility that one side may not have put forward as strong a case as it could. But where that happens it is the fault of the litigant or of his lawyers or witnesses, not of the legal system," says Murphy (2003, p.324). In English Law mostly it is for the prosecution to shoulder the burden of proof, unless it is expressly stated that the defendant is liable to do so. The general rule has been 'he who asserts must prove'. Criminal standard of proof has to be of high order beyond any doubt19. Many changes have occurred in recent cases20and even in recent years, reverse burden has been allowed. There had been social criticism that burden of proof rules assumed by those who defend discrimination are unlawful. "In social criticism, there are no shared values which would uncontroversially determine what is the reasonable presumption and who has the burden of proof, nor are there formal rules which would end the debate and determine the winner at a specific point" http://www.ingentaconnect.com/content/klu/argu/1997/00000011/00000004/00122120 There had been recent problems in sex discrimination area of employment, rape cases with reference to burden of proof21. Area of sex discrimination has become multi-dimensional with issues like indirect discrimination, racial sex discrimination, homosexuals and transsexuals (Sexual Orientation Regulations, 2003), and in all of them, burden of proof figures in the most prominent way. All these rules and regulations about discrimination and even the recent religious discrimination are all very recent, and burden of proof has not changed according to the new circumstances. It has stayed very importantly in the heart of legal dialogues not just in Britain, but in America22 too. There had been recent discussions in the press23 regarding the necessity of a fresh approach. The most famous shift about burden of proof came from David Hume in his famous work, Enquiry Concerning Human Understanding24 where he says: "When we look about us towards external objects, and consider the operation of causes, we are never able, in a single instance, to discover any power or necessary connection; any quality, which binds the effect to the cause, and renders the one an infallible consequence of the other.... Consequently, there is not, in any single, particular instance of cause and effect, any thing which can suggest the idea of power or necessary connection [p. 63] (ibid). "At another, deeper, level the presumption of innocence reflects moral and political values which are regarded as sufficiently important in liberal states to elevate the rule about the burden of proof to the status of a fundamental human right" says Dennis (2002, p.374). All do not agree that judge's role should be of a balancer. "It has been convincingly argued, however, that a better approach, also involving no usurpation of the function of the jury, would be for the judge to decide the issue exactly in the same way as he is required to decide whether an evidential burden has been discharged25. In other words, the judge should not be required to be satisfied on a balance of probabilities..." Keane (1996, pp. 96-97). With all those arguments for a difference, we also have to notice that burden of proof is subtly changing in recent years not just in UK, but also in other western countries26, because the legal face of legal proceedings have undoubtedly changed owing to terrorism, drug trafficking, discrimination27, sexual orientations, modern crimes, child pornography, racism28, immigration, asylum seeking, abduction and rape, domestic violence, cultural crimes like blood money collection/dowry killing/honour killing and technological29 advancement30. Definitely there had been no change in the legal system, but there had been empowerment of legal branches and law keepers' rights and law enforcement has become too visible due to fear of carnage. Spanish Government has expressed its intention of changing some legal sphere accordingly31. But this cannot be successful at all instances32. In recent years, shift has arrived in the form of unwritten law. BIBLIOGRAPHY: 1. Dennis, I.H. (2002), The Law of Evidence, Sweet & Maxwell, London. 2. Keane, Adrian (1996), The Modern Law of Evidence, Butterworths, London. 3. Kazazi, Moztaba (1996), Burden of Proof and Related Issues, Amazon. 4. Murphy, Peter (2003), Evidence, Proof, and Facts, Oxford University Press. ONLINE SOURCES: 1. http://www.ingentaconnect.com/content/klu/argu/1997/00000011/00000004/00122120 2. http://www.friesian.com/hume.htm 3. http://www.cafalawblog.com/legal-publications-and-articles-this-burden-of-proof-issue-is-getting-some-press-and-not-just-from-the-cafa-law-blog.html 4. http://www.pwc.com/us/eng/tax/its/Spain-TP-11292005.pdf 5. http://blog.case.edu/singham/2006/05/09/burden_of_proof 6. http://www.cre.gov.uk/legal/rra_burden.html 7. http://news.zdnet.co.uk/internet/0,1000000097,2073915,00.htm 8. http://www.scribd.com/doc/2139/Prosecutorial-Discretion-and-the-Burden-of-Proof-in-Criminal-Cases 9. Read More