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Reverse Legal Burden of Proof

Reverse liability must meet the “reasonableness” test set out in section 14. Let`s take an example from the 2012 POCSO law. Section 30 of the Act presumes the guilty state of mind of the accused for the prosecution of an offence against the law, unless it is definitively refuted. This hypothesis raises a question. Is the OOCHP conviction among these serious crimes reasonable and justified if the accused does not rebut the presumption beyond a doubt? In the Noor Aga case, the court held that the burden on the defendant could not be as heavy as that of the (arguably reasonable) prosecution. This automatic transfer of charges runs counter to the Court`s argument that a shift in the legal burden cannot be automatic and occurs only after the prosecution has reached the threshold for establishing actus reus and basic facts in accordance with established procedure. This arbitrary assumption reduces the cardinal principle of criminal law to a mere shadow. There may be a number of legitimate reasons why an accused is unwilling to testify. The reverse charge clause does not take into account the realities of the situation.

Failure to testify is not always an indication of guilt. This position was reinforced by G. Williams, who stated that no political considerations can justify this kind of condemnation. Section 139 of the Criminal Justice Act 1988 provides in simple terms that any person who has an object in a public place which has a blade or is pointed is guilty of a crime. The prosecution must prove beyond a doubt that the accused possessed a blade or a sharp object in a public place. The onus is then on the defendant to prove, after weighing the probability, that he had good reasons or legal powers for such possession. This is certainly more difficult than meeting the burden of proof (only sowing a seed of doubt in the minds of the jury). After all, to reach a conviction, the jury must believe beyond a doubt that the accused is guilty. This raises the fundamental question: why should the accused prove his innocence? The annulment of the evidence violates Maneka Gandhi`s thesis that a “legally established procedure” must not deprive a person of his life or personal liberty and must be “reasonable, just, just and equitable”. Depriving an accused of his right to liberty on the basis of such a method (presumption of guilt of the crime) would be unjust and would not constitute due process, as guaranteed by Article 21 of the Constitution of India. If the reversal of charges does not meet the criteria of articles 14 and 21, the accused is deprived of liberty and such a procedure would be unjust and would not constitute due process with the guarantee provided for in article 21 of the Constitution.

The thesis can be well understood in Sohan v. State of Haryana, where the Supreme Court complained that if the trial judge had remembered the presumption of innocence and the unequivocal standard, the whole direction of the approach would have been different and the accused would not have suffered from the perverse evaluation of the evidence. The importance of rational connection was emphasized in Tot v. United States, which requires an inferential link between the clause and the objective pursued. This inference is often absent from inverse load clauses. Reverse guilt leads to more convictions, which generally results in more erroneous convictions. The seriousness of the crime is not the only criterion that determines the degree of injustice caused by an unlawful conviction. Even for the same type of crime, some wrongful convictions are worse than others. The public interest objective is thwarted because it is never in the interest of a democratic society to lure innocent people into the rigour of the criminal law and does not help to reduce the incidence precisely of the crimes for which reverse burdens have been introduced. In addition, the reverse clause must be objectively and rationally linked to it. Typically, the “public interest” and “seriousness” arguments are used to justify burden reversal.

But the differences created on this basis are unreasonable and irrational. Alan Norrie notes that social harm, public interest and welfare arguments are too vague because all laws are designed to protect that well-being. The “public interest” and the “seriousness of the offence” are often misused to obscure the problems facing law enforcement. 17. The burden of proof is the obligation to provide sufficient evidence of a fact in question to justify, where appropriate, a positive decision of the judges or jury on that question. Whether the burden of proof is met is decided by the judge at the main hearing (for example, after the defence has argued that “there is no need to answer the case”). The prosecution must present sufficient evidence to prevent the judge from removing this issue from the jury. Even if the burden of proof on a particular issue is met, the evidence may not be sufficient to discharge the legal burden on that issue. In order to achieve this result, the Court used section 3 of the Human Rights Act 1998 to `read` the words `must prove` in section 28(3)(b)(i) as `evidence for`. Once the accused had presented evidence, it was for the prosecution to refute this without a doubt. The negative reading mechanism contradicted the assumption that when a word is used in more than one place in a statute, a word generally has the same meaning: in this subsection, the verb “prove” was used to determine the legal burden of proof on the prosecution.

While this decision was drastic in its burden on the meaning of subparagraph 28(3)(b)(i), it should be noted that the Law Lords recognized that not all legal burdens, whether express or implied, would necessarily violate subsection 6(2). This raises the difficult question of where we draw the line between acceptable legal burdens and those that violate Article 6 para. 2? n Is the decision compatible with Convention rights (the burden of proof is rarely likely to violate Article 6(2), but the legal burdens may do so, depending on the ease or difficulty with which the defence/prosecution deals with the issue and whether it is fair and reasonable to reverse some of the burden of proof). However, the reverse charge clause is an exception to this presumption. The guilt of the crime is presumed and the burden of denying mens rea is transferred to the accused. As a general rule, these clauses are limited to socio-economic crimes, but have also been extended to crimes under the pretext of public interest and prompt justice, which will prove to be a sloppy premise below. However, authorities have been criticized for not giving sufficiently clear instructions on how to arrange statues that represent a reverse burden. The factors mentioned above in Sheldrake are indicative at best, but do not provide conclusive evidence (Tadros and Tierney, 2004). It is therefore perfectly understandable that the proportionality test has been described as “inexact science”, which consists in balancing the enormity of evil directed against society against the rights of the accused. Dennis acknowledges that it is difficult to discern a trend in case law as to the relative importance of each factor, with the author noting that “the justification for certain reverse uses resembles a judicial lottery.” A reverse obligation clause is a provision of a statute that shifts the burden of proof to the specified person in order to rebut a piece of information.

As a general rule, this provision concerns the transfer of charges to a defendant either in the case of a criminal offence or in the case of a tortious claim. For example, the motor vehicle legislation of many countries stipulates that any driver who encounters a pedestrian has the burden of proving that he did not act negligently. When reviewing Article 29 of the 2012 POCSO Act, the court cited abuse of the reversal of the burden of proof and cautioned against viewing the prosecution`s version as gospel of truth, thereby abandoning the accused. In this context, Justice Khanna stated that nothing can redress the wrongdoing of an undeserved conviction and thus give a historic signal. Reverse onus clauses do not have the anvil of constitutional validity because they are unreasonable and irrational. The late Mr. Ram Jethmalani argued in relation to section 24 of the 2004 PMLA that the burden of proof that the proceeds of crime are uncontaminated property of the accused is unreasonable, irrational and constitutionally invalid, as this presumption does not arise from a proven fact. In Babu v. In the state of Kerala, the court found that the statutory provision on the presumption of guilt of the accused must meet the criteria of adequacy and freedom set out in Articles 14 and 21 of the Indian Constitution.

The burden never passes to the accused, and the reverse burden is nothing more than a discredited practice of forcing confessions with a thumbs. Criminal jurisprudence in the adversarial system has a constitutional dimension in which reverse obligation clauses are not satisfactory, as will be discussed below. In Pakistan, the National Accountability Ordinance 1999[4] places the burden of proof on the accused in cases where the defendant`s assets exceed his known sources of income. Once the National Accountability Bureau, the federal agency charged with prosecuting corrupt and corrupt practices, determines that a defendant has amassed wealth beyond its known sources of income, the responsibility shifts to the defendant to determine that its assets were accumulated through legitimate means. [5] The procedure under this Act takes place before special liability courts established under the National Liability Ordinance 1999. [4] 23.