Monday, September 9, 2019

Reversing the Burden of Proof Essay Example | Topics and Well Written Essays - 2000 words

Reversing the Burden of Proof - Essay Example The International Covenant on Civil, Cultural and Political Rights (ICCPR) contains iron-clad guarantees to protect the rights of the accused facing trial for a crime. Articles 9, 14 and 15 spell out these rights in great detail - from the presumption of innocence to the right against self-incrimination to the right against double jeopardy and to the famous Miranda doctrine. Closer to home, under Article 6(2) of the European Convention on Human Rights, an accused enjoys a presumption of innocence. (Keane, 2006) At a time when human rights advocacy for the accused has been made unpopular by the rising rate of crime and thus, there is a greater risk of possible infringement of constitutional guarantees by overzealous constables, vigilance is imperative. '...the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become. The starting point of any balancing inquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences, massively outweighs the public interest in ensuring that a particular criminal is brought to book...Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system'. However, there are some statutes which attach a specific burden of proof on the defendant. As stated by Cooper (2003), "neither the courts nor the legislature have been slow to impose a legal burden of proof on a defendant in a criminal case." A concrete example of a statute where the shift of the burden of proof is present is the English law on libel. The onus is on the defendant to prove the truth of the statement or communication charged to be libelous. The prosecution enjoys a presumption that the statement is false. There is much agreement among legal scholars that English law is tilted in favor of the prosecution, and there is perhaps no case that has thrown English defamation laws under scrutiny and criticism as much as the McLibel case, or the case of Steel & Morris v United Kingdom (68416/01) [2005] E.M.L.R. 15 where the multi-billion dollar food chain won on account of English laws that shifts the burden on the defendants to prove that their claims were truthful. For coming up with a pamphlet entitled What's wrong with McDonald's: Everything they don't want you to know, the defendants were found guilty because they were not able to point-by-point prove the veracity of their allegations. It was a pyrrhic victory for McDonald's, and it led to the European Convention on Human Rights ruling that British laws on libel are antiquated and unfair to the defendants. In the law of evidence, however, it is rare that the burden of proof shifts completely to the defendant. He is merely required to prove an evidence of defense that refers to one particular element of the

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