Burden of Proof (Hansard, 13 November 2001)

§ Lord Hunt of Kings Heath

The following table lists 10 examples from enactments passed between 1979 and 1997 where a person charged with an offence can establish a defence if he proves a certain fact. The list is not necessarily exhaustive.

It is not strictly correct to say that this reverses the burden of proof. The accused will have a full defence if he can prove the ingredients of the defence on a balance of probabilities which the prosecution must rebut if he is to be convicted. The burden of proving the case beyond reasonable doubt remains with the prosecution. This also applies to the similar provisions in the Tobacco Advertising and Promotion Bill.

Act	Offence	Defence
Anatomy Act 1984 Section 11	Unlicensed and unauthorised carrying out of anatomical examinations or possession of body parts.	"where a person is charged … it shall be a defence to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence".
Registered Homes Act 1984	Various eg carrying on home without being registered.	"in any proceedings for an offence under this Act it shall be a defence for the person charged to prove that the commission of the

71WA

Act	Offence	Defence
		offence was due to a mistake… or some other cause beyond his control and that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence…".
Consumer Protection Act 1987 Section 10	Supply, offer or agreement to supply or exposure or possession for supply of any goods failing to comply with general safety requirement.	"in proceedings … under this section it shall be a defence for that person … to show that he reasonably believed that the goods would not be used or consumed in the United Kingdom".
Children Act 1989 Section 78	Employment of person in connection with provision of day care who is disqualified from caring for children.	"a person … shall not be guilty of an offence … if he proves that he did not know and had no reasonable grounds for believing that the person whom he was employing was disqualified".
Food Safety Act 1990 Sections 8 & 22	Selling offering, exposing for or advertising for sale food unfit for human consumption.	"in proceedings for an offence … consisting of the advertisement for sale of any food, it shall be a defence for the person charged to prove:
		(a) that he is a person whose business it is to publish or arrange for the publication of advertisements; and
		(b) that he received the advertisement in the ordinary course of business and did not know and had no reason to suspect that its publication would amount to an offence under that provision".
Human Fertilisation and Embryology Act 1990 Section 41	Prohibitions in connection with the storage and use of embryos.	"it is a defence for a person charged with an offence under this Act to prove … that he took all such steps as were reasonable and exercised all due diligence to avoid committing the offence".
Children and Young Persons (Protection from Tobacco) Act 1991 Section 4	Failure to display notice displaying the prohibition on sale of tobacco products to persons under 16.	"it shall be a defence for a person charged … to prove he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence"

72WA

Act	Offence	Defence
Clean Air Act 1993 Section 20	Emission of smoke from a chimney in a smoke control area.	"it shall be a defence to prove that the alleged emission was not caused by the use of any fuel other than an authorised fuel".
Criminal Justice and Public Order Act 1994 Section 61	Failure of trespasser to leave land when directed to do so and to return within 3 months.	"it shall be a defence for the accused to show … that he was not trespassing or … he had a reasonable excuse for failing to leave the land … or as the case may be again entering the land as a trespasser."
Noise Act 1996 Section 7	Emission of noise above permitted levels following service of a warning notice.	"it is a defence … to show that there was a reasonable excuse for the act in question …".