Home Office response on Burden of Proof

[Nicholas Bohm]

At 07:14 AM 8/5/1999 +0100, David Swarbrick wrote:
>In message <000101beddf1$0a2eab00$0100a8c0@director>, Caspar Bowden
><cb@fipr.org> writes
>>
>
>
>>To reiterate the points made in the explanatory notes published along with
>>the draft Bill on 23 July, Clause 12 makes it an offence to fail to comply
>>with a notice given under Clause 10.  It allows a *defence* (my emphasis) to
>>a person who shows that he did not have the key to the information in
>>question (or, where appropriate, the information itself) but gave as much
>>information as he had about how the key could be obtained; or that he did
>>what was required of him as soon as was reasonably practicable.  In common
>>with many other statutory offences, the burden to establish the exception is
>>on the accused.
>
>I think he should be asked just how someone might set about establishing
>this. It shows confusion between an 'exception' and a 'defence'
>
>>
>>But the prosecution will need to prove the offence beyond all reasonable
>>doubt in all cases.  Our belief, therefore, is that we have not reversed the
>>burden of proof with this Clause.  A person charged with an offence under
>>Clause 12, as with any other offence, remains innocent until he is proved
>>guilty by a court of law.
>
>Is a defendant to claim his exception/defence on the balance of
>probabilities or on a full, criminal standard? 
>
>The offence is _very_ carefully drafted not to require any evidence from
>the prosecution that the defendant has any capacity to decrypt it. He
>only has to establish that it 'appears' to an officer to be the case,
>not even that he has reason to believe, only that he asserts that his
>state of mind is like this. He does not have to show any reasonable
>cause for such surmise.
>
>The prosecution have the burden of proof, but what they have to prove is
>pure will o'the wisp surmise.
>
>The jumping hurdle for the prosecution has been reduced to a mere hop
>skip and a jump, and that created for the defence is a logical
>impossibility - but technically the burden of proof has not been
>reversed.

I agree with everything except this final point:  in my view, requiring the
accused to prove a defence (whatever the standard) is in fact reversing the
normal burden of proof, which is otherwise on the Crown.

Regards,

Nicholas Bohm

Salkyns, Great Canfield,
Takeley, Bishop's Stortford CM22 6SX, UK

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