The Principle of Judicial Defence: Upholding Parliament Intention and Presumption of Innocence

The Principle of Judicial Defence: Upholding Parliament Intention and Presumption of Innocence - The support for the judiciary idea should not step in parliament. Lord Nicholas stated that the courts generally uphold parliament's intention unless parliament disregards A6(2). In AG reference, it was ruled by L. Woolf that we must always assume that without a good enough reason, parliament would make an exception to the presumption of innocence. However, in Sheldrake, L. Bingham stated that there should be more consideration towards the POI and court obligation, so s.3HRA, as opposed to putting a provision under view. Following this, Scarmuzza suggested that adhering to parliament's intention weakens the POI, while freedom stated that A6(2) should prevail over parliament's intention. || L. Woolf in AG of HK v Lee Kwong Kut states that if a defendant is asked to prove a defense, then the shifting of LB is acceptable. The HOL held unanimously in the case of Sheldrake that a reversal of LB onto the appellant was acceptable as the circumstances required the appellant to prove something within his knowledge, which clearly would be easier for the defendant compared to the prosecution. However, L. Steyn in R v Lambert stated that the duty of the prosecution would not be proportionate to the Act of parliament never intended a reversal to ease the task of prosecution. Williams stated that there is always a risk on defense is warded to seem like a defense. Hence, it is submitted that it is better to focus on moral worthiness. || Ashworth stated that max penalties are an indicator for the degree of serious offense. Later in Lambert, L. Steyn stated that shifting LB will likely infringe A6(2) if the offense concerned carries max penalties. This is due to reasons given by LJ Tales in Daries v Health & Safety executive whereby he stated that absence of risk imprisonment can serve as an important factor in shifting LB. Otf Ashworth: courts always favor the defendant if the offense carries max penalty. Same in Sheldred, where LB was shifted onto the defendant who was accused of an offense that only carries the penalty for 6 months. However, in R v Johnstone, the LB was shifted to the defendant even though the penalty offense carried was 10 years in prison. || L. Hope in Kebeline explained that if the defense is within the defendant's knowledge, reversal will be justified.