2. Burden of proof

2019 ◽  
pp. 10-36
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Human Rights ◽  
Burden Of Proof ◽  
Case Law ◽  
Detailed Examination ◽  
European Convention ◽  
Presumption Of Innocence ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Law ◽  
Civil Cases

This chapter focuses on the burden of proof and presumption of innocence in criminal and civil cases under Article 6 of the European Convention on Human Rights (ECHR). It considers the influence of the UK’s Human Rights Act 1998 on the allocation of the burden of proof and compares legal/persuasive burden of proof with the evidential burden. It contains a detailed examination of the case law under this Act and the criteria developed to assess where reverse burdens should apply. It draws on academic commentary in making this analysis. It also looks at situations where the legal and the evidential burden may be split. It concludes with an overview of the law on presumptions.

2. Burden of proof and presumptions

2017 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Human Rights ◽  
Burden Of Proof ◽  
Case Law ◽  
Detailed Examination ◽  
European Convention ◽  
Presumption Of Innocence ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Law ◽  
Civil Cases

This chapter focuses on the burden of proof and presumption of innocence in criminal and civil cases under Article 6 of the European Convention on Human Rights (ECHR). It considers the influence of the UK’s Human Rights Act 1998 on the allocation of the burden of proof and compares legal/persuasive burden of proof with the evidential burden. It contains a detailed examination of the case law under this Act and the criteria developed to assess where reverse burdens should apply. It draws on academic commentary in making this analysis. It also looks at situations where the legal and the evidential burden may be split. It concludes with an overview of the law on presumptions.

The Retrospective Effect of S. 6 of the Human Rights Act 1998

2002 ◽  
Vol 66 (5) ◽  
pp. 445-457
Author(s):  
Gavin Dingwall
Keyword(s):  
Human Rights ◽  
Burden Of Proof ◽  
Case Law ◽  
European Convention ◽  
Presumption Of Innocence ◽  
Careful Scrutiny ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998

When the House of Lords delivered its judgment in Lambert, comment initially concerned the fact that their Lordships held that the legal burden of proof placed on defendants in s. 28 of the Misuse of Drugs Act 1971 contravened the presumption of innocence contained in Article 6(2) of the European Convention on Human Rights. This was indeed a major and potentially far-reaching finding, but it was in fact obiter dicta for the House also held that a defendant who was convicted prior to s. 6 of the Human Rights Act 1998 coming into force could not rely on that section in an appeal after the Act came into force, except in certain carefully prescribed circumstances. It is only now when subsequent case law has challenged this finding that its importance has been fully recognised. This article aims to respond to the academic neglect of this point through a careful scrutiny of the judgments in Lambert and will argue that, despite recent judicial criticism, the majority in Lambert deconstructed a complex statutory framework to expose Parliament's limited intention to ‘bring rights home’.

1. Introduction, principles, and key concepts

2017 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
Presumption Of Innocence ◽  
Key Concepts ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Law ◽  
The Right ◽  
Law Of Evidence

This chapter introduces the principles and key concepts underlying the law of evidence, with an emphasis on criminal evidence. It first explains the distinction between the law of evidence and evidence itself before turning to a discussion of fair trial by looking at Article 6 of the European Convention on Human Rights (ECHR), now part of English law as a result of the Human Rights Act 1998. The chapter then considers the main provisions related to evidence, including the presumption of innocence; privilege against self-incrimination; the right to examine witnesses; and admissibility of evidence obtained through covert surveillance, entrapment, or disclosure. It concludes by highlighting the importance of analysis of the relevance of the facts in a trial.

HUMAN RIGHTS, BURDEN OF PROOF, RETROSPECTIVITY AND PRECEDENT IN THE HOUSE OF LORDS

2002 ◽  
Vol 61 (1) ◽  
pp. 1-52
Author(s):  
I.D. Macphail
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Burden Of Proof ◽  
European Convention ◽  
Presumption Of Innocence ◽  
Criminal Proceedings ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998

R. v. Lambert [2001] UKHL 37, [2001] 3 W.L.R. 206 and R. v. Kansal (No. 2) [2001] UKHL 62, [2001] 3 W.L.R. 1562 are important decisions of the House of Lords in the field of human rights and criminal justice. Lambert is primarily concerned with a question as to the retrospective effect of the Human Rights Act 1998 in criminal proceedings, and with the question whether a reverse onus provision in section 28 of the Misuse of Drugs Act 1971 is compatible with the presumption of innocence in Article 6(2) of the European Convention on Human Rights. Kansal is primarily concerned with the former question. A majority of the House in Kansal decided that the decision of the majority of the House in Lambert on the issue of retrospectivity was wrong, but nevertheless should be followed.

1. Introduction, principles, and key concepts

2019 ◽  
pp. 1-9
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Key Concepts ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
English Law ◽  
The Law ◽  
Law Of Evidence

This chapter introduces the principles and key concepts underlying the law of evidence, with an emphasis on criminal evidence. It reviews Article 6 of the European Convention on Human Rights (ECHR), now part of English law as a result of the Human Rights Act 1998. It concludes by highlighting the importance of analysis of the relevance of the facts in a trial.

3. The Human Rights Act 1998 (HRA)

2017 ◽  
Author(s):  
Bernadette Rainey
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Public Authority ◽  
European Convention ◽  
Essential Information ◽  
The Future ◽  
Human Rights Act ◽  
Human Rights Act 1998

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on the Human Rights Act 1998 (HRA), which was introduced to allow individuals to argue cases involving rights contained in the European Convention on Human Rights (ECHR) directly before a UK court. It first explains the background and rationale underlying the HRA, focusing on the arguments for and against a Human Rights Act, as well as the human rights that are covered and not covered by the HRA. The chapter then discusses the judicial powers/duties and remedies under the HRA, along with powers of derogation and reservation, with an emphasis on ECtHR case law, the interpretation clause, and declarations of incompatibility with the Convention rights. In addition, it examines the HRA’s use of proportionality and judicial deference doctrines when deciding whether an act by a public authority is incompatible with a Convention right. The chapter concludes by assessing the future of the HRA.

scholarly journals Old age psychiatry and the law

2002 ◽  
Vol 180 (2) ◽  
pp. 116-119 ◽  
Author(s):  
Robin Jacoby
Keyword(s):  
Human Rights ◽  
Old Age ◽  
Case Law ◽  
European Convention ◽  
The Status ◽  
Human Rights Act ◽  
Old Age Psychiatry ◽  
Human Rights Act 1998 ◽  
Incapacitated Patients ◽  
Do So

BackgroundOld age psychiatry is no less subject to increasing legal and quasi-legal restraint than other branches of the profession, but the emphases are different. Two themes predominate: first, that of capacity or competence; and second, to what extent formal legal measures should be implemented in cases where incapacitated patients do not dissent from, as opposed to giving active consent to, admission to hospital or receiving treatment.AimsTo discuss the issues of capacity or competence, especially in relation to recent legislation and judgements and to proposed legislation in England and Wales.MethodSelective review and discussion of recent case law and current and proposed statute law.Results and conclusionsThe Bournewood case threatened but ultimately failed to upset the status quo. However, the European Convention on Human Rights and the British Human Rights Act 1998 may yet do so.

3. Land law and human rights

2016 ◽  
Author(s):  
Judith-Anne MacKenzie
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Land Law ◽  
Protection Of Human Rights ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Law

Course-focused and comprehensive, the Textbook on series provide an accessible overview of the key areas on the law curriculum. This chapter explains some provisions of the European Convention for the Protection of Human Rights and Freedoms and the Human Rights Act 1998 (HRA 1998), both of which are relevant to the study of land law. The significance of the HRA 1998 in land law cases is also discussed.

14. Privacy

Tort Law ◽  
2017 ◽  
Author(s):  
Jenny Steele
Keyword(s):  
Human Rights ◽  
Private Information ◽  
Common Law ◽  
European Convention ◽  
Invasion Of Privacy ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Law ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter focuses on the emergence of a new action to protect privacy under the Human Rights Act 1998, with particular reference to unjustified publication of private information. It begins by considering whether privacy is a protected interest at common law and whether privacy must be recognised and given protection through the law of tort. It then examines the tools which have been used in the partial absorption of privacy as a protected interest in common law, citing the provisions of the Human Rights Act 1998 and Article 8 of the European Convention on Human Rights. The controversies surrounding disclosure of private information and the power of injunctions are also considered, along with the issue of intrusion as an invasion of privacy.

scholarly journals Article 3 of the Human Rights Act 1998 and the treatment of prisoners

2010 ◽  
Vol 16 (2) ◽  
pp. 105-114 ◽  
Author(s):  
Martin Curtice ◽  
John Sandford
Keyword(s):  
Human Rights ◽  
Case Law ◽  
The State ◽  
European Convention ◽  
Progressive Improvement ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Degrading Treatment ◽  
John Howard

SummaryThe humane treatment of prisoners has long been considered a mark of a civilised society. Early prison reformers such as Elizabeth Fry and John Howard campaigned vigorously for the improvement of conditions for inmates and for institutions to be focused as much on reform and rehabilitation as on punishment. This progressive improvement in conditions for those imprisoned has been further advanced by the European Convention on Human Rights and its incorporation into UK law. The Human Rights Act 1998 is playing an ever-increasing role in determining the standards of treatment of those detained by the state. Article 3 of the Act – freedom from torture and inhuman and degrading treatment – is of particular importance for those detained in prisons, hospitals and other institutions. As Article 3 case law has evolved, so its interpretation has broadened to include a thorough scrutiny of prison conditions, prison healthcare and the treatment of prisoners in general.

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