Distinguishing between the Criteria of Legitimacy and Proportionality

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In Attorney-General’s Reference (No.4 of 2002) , the Court of Appeal adopted an analogous approach. The court held that Art 6(2) requires the prosecution to prove the “true nature” or the “gravamen” of the offence. It appears that this requires the court to discover the rationale of the offence, including any elements of moral blameworthiness. The court took the view that the application is not dependant on a formal statutory separation of elements and defences. Some statutory defences might not form part of the “gravamen” of the offence, whereas others might. Lambert is a case of the latter where the issue of the defendant’s guilty knowledge of his possession of a controlled drug was part of the gravamen of the offence, but it appeared in the statute as a formal defence that imposed a reverse onus.
(3)Judicial deference
In relation to judicial deference, it is important to distinguish between the criteria of legitimacy and proportionality. The relevant questions to be ask is; (1) Is the reverse onus imposed in pursuance of a legitimate aim, and; (2) whether it is proportionate to the achievement of that aim.
For Laws L.J., deference is a way to resolve the tension between parliamentary sovereignty and fundamental rights created by the Human Rights Act. The question thus arises, how far should the court defer to the judgment of the Parliament? Dennis pointed to the statement of Lord Hope in R. v DPP Ex p. Kebilene where he said, “In some circumstances it will be appropriate for the courts to recognize that there is an area of judgment within which the judiciary will defer, on democratic grounds…” It appears that His Lordship recognized the need for judicial deference. After all, the courts are there to “assess the need for p...

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... Third Knot in the Golden Thread” [1988] Crim. L.R. 31.
Attorney-General’s Reference (No.4 of 2002) [2003] EWCA Crim 762;[2003] 2 Cr. App.R. 22 (p.346).
Lambert [2001] UKHL 37; [2002] 2 A.C. 545.
I Dennis, 'Reverse Onuses and the Presumption of Innocence' [2005] Crim L.R. 902.
R. v DPP Ex p. Kebilene [2000] 2 A.C. 326.
R. v DPP Ex p. Kebilene [2000] 2 A.C. 326 at 381.
Johnstone [2003] UKHL 28 ; [2003] 2 Cr. App.R. 493.
Dyson LJ, 'Some Thoughts on Judicial Deference' [2006] 103, 103
Ibid.
Secretary of State for the Home Department v Rehman [2001] UKHL 47 [2003] 1 AC 153 at [62]
International Transport Roth GmbH v Secretary of State for the Home Department [2002] 1
C.M.L.R. 52.
I Dennis, The Law of Evidence (4th, Sweet & Maxwell, 2010) 475
I Dennis, The Law of Evidence (4th, Sweet & Maxwell, 2010) 476
Lambert [2001] UKHL 37; [2002] 2 A.C. 545

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