Implied Reversals of the Legal Burden of Proof

Implied Reversals and Tools of Legal Interpretation

Implied reversals are interpreted by the courts using specific tools of interpretation, including Section 101 of the Magistrates' Courts Act 1980, the Lawton formula, rulings of convenience, and policy considerations. For instance, Section 140 of the Highway Act 1959 contains an implied reversal; it states that placing anything on the highway is an offence unless the person had lawful authority or excuse. This shows that even though Parliament did not express the allowance of a reversal, it can be interpreted that it implied one.

The Impact of the Human Rights Act 1998

Before the Human Rights Act 1998 (HRA), there was no need to comply with Article 6(2), so all reversals were automatic. However, Article 6(2) has now come into the picture due to the codification of the HRA. Thus, there can no longer be automatic reversals. Due to this, the courts utilize the test of proportionality to determine whether the Act would require the shifting of the Legal Burden (LB) for its aim to be achieved.

Proportionality and Judicial Remedies

If a reversal would achieve the aim of the Act, the reversal would most likely occur. However, if a reversal would go beyond the legislative intention, the court will either read down the Act to make it compatible or declare incompatibility under Section 4 of the HRA. Lord Steyn in Ghaidan v Godin-Mendoza stated that the latter is a last option. In determining whether a reversal would be proportionate, the court utilizes the six cardinal principles by Ian Dennis, who stated there are six factors to be taken into consideration when deciding whether a reversal of the LB would be proportionate.

Mala In Se vs. Mala Prohibita Offences

It is hard for courts to determine whether the crime being dealt with is Mala in Se (a truly criminal crime) or if it is Mala Prohibita (a regulatory crime). Lord Clyde in R v Lambert explained that mala prohibita regulates the conduct of a particular activity in the public interest, such as requirements to apply for a license or health and safety issues. As opposed to truly criminal crimes, being found guilty of a regulatory crime would not carry any real social disgrace. Therefore, Glover stated that courts are willing to shift the LB if the offence is categorized as mala prohibita. However, Cooper raised the question of whether the courts would shift the LB if death occurs due to a mala prohibita offence, as the distinction between mala in se and mala prohibita hasn't found universal favor.