Lord Scarman’s modest approach towards reverse burdens of proof was correct, says Richard Glover
As is well-known, the late Lord Scarman was a leading advocate of a Bill of Rights, which is back on the political agenda with Gordon Brown as prime minister. However, less well-known is Lord Scarman’s view of another contemporary issue—statutes that place an onus of proof on a defendant, so-called “reverse burdens”.
It will, perhaps, come as a surprise to those who regard reverse legal burdens as unavoidably illiberal that the man described by Lord Woolf as “the father of human rights in this jurisdiction” favoured these over reverse evidential burdens. However, Lord Scarman’s view is evident from a letter he wrote while chairman of the Law Commission and there is nothing to suggest that he later resiled from this view.
Why is Lord Scarman’s view of reverse legal burdens important today? There are three reasons that may be identified:
- Lord Scarman was a most distinguished and influential judge and, accordingly, his opinions demand particular respect.
- His view is especially pertinent
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