R v Dica

Wednesday 5 May 2004 at 12:12 pm | In News | 1 Comment

The Court of Appeal has ordered a retrial in the case of Dica, for the jury to consider the issue of “consent”, not in the sense of consenting to intercourse but not consenting to the nature and quality of the act. The court has resoundingly quashed R v Clarence, which is no longer consider to be good law. Public policy reasons would prohibit the deliberate spreading of disease, including sexual disease, in the same way that it prohibits infliction of bodily harm. However, sexual intercourse often includes some risk, including that of pregnancy, and interference of this kind with personal autonomy, and its level and extent, may only be made by Parliament. The effect of this judgment in relation to s.20 is to remove some of the outdated restrictions against the successful prosecution of those who, knowing that they are suffering HIV or some other serious sexual disease, recklessly transmit it through consensual sexual intercourse, and inflict grievous bodily harm on a person from whom the risk is concealed and who is not consenting to it.
Whole case here

Simmons v British Steel plc [2004] HL

Tuesday 4 May 2004 at 9:12 pm | In News | 1 Comment

[Tort – remoteness of damage – primary victim – foreseeable harm includes psychiatric reaction following initial injury]
D, the steel company that employed C. C fell and hit his head at work. He suffered depression and a pre-existing skin disease flared up, not because of the original injury “but from his anger at the happening of the accident” (lack of apology or support following the accident, and failing to prevent the accident when warned of the danger).

Held: C was entitled to compensation for the consequences of the accident and not just for the physical injuries.
C’s anger was neither de minims nor an intervening act.
C was “a primary victim” according to the classification in Page v Smith (1996).

A wrongdoer takes his victim as he finds him Smith v Leech Brain & Co Ltd [1962] CA.
There must now be added these further qualifications:
(1) that a defender is liable although the damage may be a good deal greater in extent than was foreseeable, as he can escape liability only if the damage can be regarded as differing in kind from what was foreseeable: Hughes v Lord Advocate (1963) HL; and
(2) where it is established that physical injury to the pursuer was foreseeable, it is unnecessary to ask whether it was foreseeable that he would also suffer psychiatric injury: Page v Smith [1996] HL.

The general rule is that it must be shown that the injury would not have occurred but for the act or omission of the defender. But if a number of factors contributed to the injury it is sufficient that the contribution which the factor attributable to the defender’s fault made to the injury was material: Wardlaw v Bonnington Castings Ltd [1956] HL.

C won
Whole case here

Attorney General Reference No. 1 [2004] CA

Saturday 1 May 2004 at 11:59 pm | In News | Post Comment

[Requiring a defendant to prove his innocence is – in some cases – in accordance with Woolmington and Article 6 of the Human Rights Act 1998]  
There are 219 statutory offences that require the defendant to disprove or prove something, in order to prove his innocence; this is called a reverse burden provision.  These include strict (or absolute) liability offences.  This appears to be contrary to the rule in criminal law that the prosecution has the burden of proving the defendant’s guilt (Woolmington and Article 6 of the HRA). 
There has been a steady increase in number of technical challenges and the Court of Appeal took the opportunity of laying down some guidance.  An unusual 5 judge court sat to hear the arguments. 

Reverse burden provisions come in two forms, the legal burden and the evidential burden.  
The Legal Burden
This is a higher standard than the evidential burden. The defendant may, for example, wish to raise a defence that he did not know some particular fact, or that he was not going to drive whilst drunk, or that he was insane.  D has the legal burden to prove the issue he raises.  Failure to convince the jury or the magistrates of a defence will mean the defendant will be found guilty.  It is usually a “do or die” situation, because D will have probably admitted all the other ingredients of the offence, and be relying solely on the defence he raises, this is why it is described as a high standard
The standard the defendant has to reach is on the balance of probabilities.  

The Evidential Burden
An evidential burden is a lower standard, and refers to the burden on a defendant to raise an issue, say provocation or self defence, having simply raised the question the burden then shifts back to the crown to disprove it. 
The standard the defendant has to reach is on the balance of probabilities.  

The problem is, some offences where the reverse burden applies carry high penalties.  So the court was asked whether reverse burdens are always permissible, and should some offences require only the evidential burden  

Held: The evidential burden is consistent with Woolmington and Article 6.  The legal burden will not be consistent if it is not proportional to the objective of the reverse burden, and should be reduced (read down) to the evidential burden for serious offences.  Factors that the judge should take into account include, for example, if the evidence is only within the knowledge of the defendant.  The ultimate question is: would the exception prevent a fair trial? If it would, it must either be read down if this is possible; otherwise, it should be declared incompatible.   This case and R v Johnstone [2003] HL are only authorities that should be cited.  Johnstone arose out of the charging of the defendant with trademark offences.  The defendant had a defence if he could show that he honestly and reasonably believed that there was no infringement of the registered trademark, which imposed on D the legal burden of proving the relevant facts on the balance of probability.  

Whole case here.

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