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Presumption of innocence: enshrined in Art 6(2) ECHR and the Golden thread (Where the fair trial is the

e entire clothing) o DPP V Woolmington - Viscount Sankey: duty on prosecution to prove defendants guilt BUT may be put on the defendant where it doesnt infringe the right to a fair trial. principle acknowledges the disparity of bargaining powers between the state and the accused. David Hamer - primary goal of the golden thread is to minimize the expected cost of unsafe verdicts. Magistrates Courts Act 1980 S.101: if D relies on any excuse etc, it is for him to prove it - on a balance of probabilities. (R v Edwards) o Sheldrake v DPP: starting point for the court is to consider whether the reversal affect the right to a fair trial, and not whether it should be imposed. Reading Down o S. 3: Court must interpret domestic law in compatibility with the HRA. o S. 4 HRA: if there is ever contravention, to fulfil S. 3, the court must read down to be only an evidential burden. Simon Cooper: of the opinion that the burdens on the defence should be evidential only This is for the sake of clarity and convenience in practice o Lord Woolf - AG Ref No 1 of 2004: assumption should be that Parliament would not have made an exception to the presumption of innocence without good reason. o Sheldrake - Lord Bingham: criticized Lord Woolf's stance - may lead the court to give too much weight to the enactment under review and too little on the obligation imposed on the court by s.3 of the HRA. Choo and Nash: argued that where there is a direct conflict with legislation it may not be possible to read down the provision Then, courts should not strive for compatibility by changing the meaning of those words as to give them a sense that they cannot possibly bear.

Salabiaku v France: emphasised that any interference with this right must be proportionate in order for it not to contravene Art. 6 Lambert - Lord Hope: the importance of achieving an appropriate balance between competing interests (of society and the individuals fundamental rights) doenst impose an absolute prohibition on reverse onus o Factors for Proportionality Lambert: gravity of the conduct; the seriousness of the offence Johnstone:

justification for placing the burden on the accused; the degree of difficulty that the accused may have in discharging that burden; moral blameworthiness. **Judiciary will follow legislature o unless not enough emphasis placed on the presumption of innocence Counterfeit CD - defence to show that he believed on reasonable grounds that the trademark was not being infringed o i. Counterfeiting is a serious fraudulent crime with adverse economic effects affects consumers in terms of quality and health issues o ii. Those who trade in brand products are aware of the need to be on guard against counterfeit goods and to deal with reputable suppliers o iii. It is very difficult for the police to prove guilt as counterfeit goods suppliers are unlikely to be cooperative fewer investigations if burden on the defendant R v Hunt: court should look to the intention of Parliament, such as the mischief at which the Act was aimed AG Ref No 1 of 2004: may be instances where it is fair to deny the defendant the protection of the presumption of innocence and to place the legal burden on the defendant o Easier it is for the defendant to discharge the burden, the more likely it is justified. o The more serious the offence, the more important it is that there is no interference with the presumption of innocence. Sheldrake v DPP: A provision could, if widely or unreasonably worded, have the same effect as a presumption of guilt, and it was not sufficient to examine only the form in which it was drafted. The substance and effect must also be examined. o Iain Dennis: On the basis of Sheldrake it seems that it will almost always be possible to do read down the provision; it is hard to envisage a case that would not come within the scope of Lord Bingham's reasoning. Accordingly a declaration of incompatibility of a reverse onus will almost never be necessary. Sheldrake v DPP: first consider whether the statutory provision imposes a reverse burden of proof. If not, then it is compatible with Art 6 of the ECHR. o If yes, then is the burden a legal or evidential burden? If evidential = then compatible (AG Reg No 1 of 2004). If legal burden = is it proportionate to the legitimate aim of the provision. If proportionate, then compatible (Lambert). o Must go no further than reasonably necessary to achieve the aim (AG Ref No 1 of 2004)

If not proportionate = court should read down the provision to a mere evidential burden. o If cannot be read down and does not meet the above criteria = declaration of incompatibility must be given (S. 3(2) of the HRA.)