Proving Innocence (47)

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Fri 29 Aug 08, 7:57 AM
Sirebel
UK(N), 2 yrs

Just thinking allowed this morning. Does anyone have any examples where the defendent in a criminal case has to prove there innocence? If no one can come up with any examples then this might be a significant weekness in the new CIJA extreme porn section. It requires the defendent to prove things.

29 Aug 08, 8:26 AM
kisses_for_me
UK(IP), 2 yrs
Y!
Well Im not sure that there is a burden of proof on the defence under s63 technically, except as regards permitted defences. In the first instance the prosecution must prove that the images are "extreme porn" as laid out, and that the defendant possesed them.
The closest that comes to mind is Driving over prescribed alcohol limit. The accused has to supply anywhere between one and three or more specimens to allow the prosecution to prove their case, and failure to do so carries a similar penalty to the original offence. So whilst not technically not an example of proving innocence, it is certainly a case of being legally obliged to assist the prosecution in making their case.
Having pondered there are similarly permitted defences (or exemptions) other places in traffic law. Movement of vehicles by persons without relevant licence, drivers hours to name a couple, however in both of these offences, the prosecution must first prove that the offence actually occured.

It's easy to tell the difference between right and wrong. What's hard is choosing the wrong that's more right.
I tend to be suspicious of all true believers. Present company included.
Elise Kraft, The Siege.

29 Aug 08, 9:18 AM
Backdooruk
UK(BA), 9 yrs
Rape is the obvious example, where the defendant has to prove they reasonably believed the victim consented.
I don't think proving that pictures involved those who consented or that there was not actually a corpse involved is much different unfortunately.
- Chris
Anyone with a brain is manipulable. Only the truly unimaginative are difficult to control.

29 Aug 08, 9:46 AM
kisses_for_me
UK(IP), 2 yrs
Y!

Backdooruk wrote:
Rape is the obvious example, where the defendant has to prove they reasonably believed the victim consented.
I don't think proving that pictures involved those who consented or that there was not actually a corpse involved is much different unfortunately.
- Chris

But still initially the prosecution have to prove the offence, namely that intercourse occured without consent, belief of consent is a "permissable defence" for the defendant, although hard to prove, but similarly it should be as hard to prove that the victim did not consent. Perhaps the nearest analogy I can think of, one involving possesion of something illegal, would be possesion of controlled substance with intent to supply, where there there is the permissable defence (but only for a lower charge) of personal use. Still the prosecution have to prove the original offence, namely possesion of a quantity of controlled substance greater than could reasonably be expected for personal use. Thinking of which, was it not declared that HMC&E had acted illegally in the seizure of imported goods where they could prove no intent?
The problem is not so much one of innocence, as one of intent, many offences require an element of intent, theft, murder, fraud and the such, some are more like our problem, absolute offences with no need to have intended to break the law, or even a belief that the law was being adhered to, eg driving without insurance, you can believe in all honesty that you are insured, but still face stiff penalties if investigation shows you were wrong.
I cannot think of a single offence where the onus is on the defendant to prove the offence did not occur, I can however think of several offences that once proved the only defences are those laid out in law. There is in road traffic law a requirement for people to supply information or samples, which can be essential for the prosecutions case, but even then, rather than innocent until proven guilty, the person witholding information or samples becomes guilty of a different offence.
It's easy to tell the difference between right and wrong. What's hard is choosing the wrong that's more right.
I tend to be suspicious of all true believers. Present company included.
Elise Kraft, The Siege.

29 Aug 08, 9:56 AM
Backdooruk
UK(BA), 9 yrs

kisses_for_me wrote:
But still initially the prosecution have to prove the offence,
I assumed we are talking about Strict liability here and not anything to do with actus reus.
In terms of mens rea what I said stands about many sexual offences.
- Chris

Anyone with a brain is manipulable. Only the truly unimaginative are difficult to control.

29 Aug 08, 10:03 AM
kisses_for_me
UK(IP), 2 yrs
Y!
I thought we were talking about innocent til proven guilty
It seems a lot of people are thinking that possesion of extreme porn etc, automatically makes them guilty, forgetting that the prosecution have to prove the offence first then it is for the defendant to call a permissable defence.
So I guess my short answer to the OP is, I know of no offence where the accused has to prove their innocence of the offence, I know of several offences where the accused can try prove a permitted defence if the offence has been commited.
It's easy to tell the difference between right and wrong. What's hard is choosing the wrong that's more right.
I tend to be suspicious of all true believers. Present company included.
Elise Kraft, The Siege.

29 Aug 08, 10:36 AM
emark
UK, 5 yrs
Backdooruk wrote:
Rape is the obvious example, where the defendant has to prove they reasonably believed the victim consented.
According to http://news.bbc.co.uk/1/hi/uk/4467078.stm , the burden of proof has only shifted to the man in cases where it's been shown that the woman was asleep or unconscious. So yes, this counts as an example, but note that I don't think it's the case for all rape claims (and I would hope not).
Section 63 criminalises "extreme" images of consenting adults - see http://www.backlash-uk.org.uk/ and http://www.seenoevil.org.uk/wiki/index.php/Main_... .

29 Aug 08, 10:43 AM
Backdooruk
UK(BA), 9 yrs

emark wrote:
I don't think it's the case for all rape claims (and I would hope not).
As far as I'm aware it's always been the case that a defendant had to prove they genuinely thought the victim had consented. If they were reckless to consent (didn't care either way) then they were still guilty. The slight change was the test that this belief had to be reasonable. Although that was intended to cover the cases like the examples you give it applies to all charges of rape.
- Chris
Anyone with a brain is manipulable. Only the truly unimaginative are difficult to control.
Edited 29 Aug 08, 10:44 AM by Backdooruk

29 Aug 08, 10:50 AM
emark
UK, 5 yrs
Backdooruk wrote:
As far as I'm aware it's always been the case that a defendant had to prove they genuinely thought the victim had consented. If they were reckless to consent (didn't care either way) then they were still guilty. The slight change was the test that this belief had to be reasonable. Although that was intended to cover the cases like the examples you give it applies to all charges of rape.
But wouldn't this mean, in cases where it was one person's word against another as to whether there was consent, the man would be found guilty because he couldn't prove consent?
That doesn't seem to be the case (e.g., the case mentioned in the BBC link where the woman was too drunk to remember what happened, so the case collapsed). I know that the law was changed to add the "reasonable" test, but I'm not aware of the burden of proof ever being on the man to prove his innocence in rape cases?
Section 63 criminalises "extreme" images of consenting adults - see http://www.backlash-uk.org.uk/ and http://www.seenoevil.org.uk/wiki/index.php/Main_... .

29 Aug 08, 10:52 AM
kisses_for_me
UK(IP), 2 yrs
Y!

Backdooruk wrote:

emark wrote:
I don't think it's the case for all rape claims (and I would hope not).
As far as I'm aware it's always been the case that a defendant had to prove they genuinely thought the victim had consented. If they were reckless to consent (didn't care either way) then they were still guilty. The slight change was the test that this belief had to be reasonable. Although that was intended to cover the cases like the examples you give it applies to all charges of rape.
Not so, its one of the reasons for very low conviction rates in rape cases.
If it is simply one word against another, even with forensic evidence of penetration the prosecution still have to prove consent was not present. Even the addition of classic self defence injuries is often not enough to secure a conviction when the defendant fights the case.
If it were the case the defendant had to prove consent existed there would be a near 100% conviction rate for rape, including malicious allegations. How many times have any of us had intercourse? How often can we prove consent existed?
It's easy to tell the difference between right and wrong. What's hard is choosing the wrong that's more right.
I tend to be suspicious of all true believers. Present company included.
Elise Kraft, The Siege.

29 Aug 08, 10:57 AM
xjames
UK(SS), 2 yrs
In road traffic offences, when snapped by a camera, the registered keeper of the vehicle has to provide the name of the driver. Failure to do so is an offence. In order to avoid a criminal conviction you have to prove to the court that you could not know who the driver was at the time of the alleged offence. It's hard - but I did it at Sevenoaks Magistrates Court a couple of years ago.
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