LLB Law Of Evidence coursework Essay Example | Topics and Well Written Essays - 1500 words

LLB Law Of Evidence coursework - Essay Example On the other hand, the defendant can easily claim that they did not have knowledge of what was inside the package, but that the package contained other things, something hard for the prosecutor to rebut. The aim of this paper is to advise Jim who is appealing against his conviction for supply heroin based on evidential issues arising from the judge’s summing up. Discussion Ever since the effecting of Human Rights Act 1998, criminal evidence has become the most significant development due to various disputes under Article 6 which entails the right to a just trial against the application of a legal weight on the defendant to establish one or more particulars in the issue2. The fact that Jim is seeking a declaration that section 28(3) (b) (i) to be declared contrary to Human Rights Act 1998 as it infringes on his right to a just trial under Article 6 of European Convention on Human Rights 1950, he is placing the court with a question on whether it has the jurisdiction to consider appeal and, if it did, whether section 28(3) (b) (i) the Act was unsuited with his right to a just trial3. ... Therefore, in order to establish the defence under section 28(3) of the Act, Jim has to prove on the equilibrium of probabilities that he did not know that the box contained heroin4. The real apprehension is not if the defendant should disprove evidence but that the defendant may be convicted though a reasonable doubt subsists. In particular, the Misuse of Drugs Act 1971 does not have a clear characterization of possession, and in section 37(3) it elaborates that an item which an individual has in his or her possession to include anything subject to his or her control, and which is in the guardianship of another person. Therefore, unless the item is in that individual control though still under care of another person, it cannot be categorized to be in the accused in this case Jim possession5. This then leads to what the directions the jury was given by the trial judge, and it is evident that though it was essential for the prosecution to establish that Jim knew that the box was in hi s control, it was not essential for the prosecution to establish that Jim knew that the item inside the box was a controlled drug. For this reason, then there would be the likelihood of an infringement in terms of presumption of innocence. This became evident in R v Edwards,6 whereby the defence was identified to have so closely associated with the mens rea principle and moral guilt that it derogated from presupposition to reassignment of legal burden to the defendant. Although subsections (2) with (3) of Misuse of Drugs Act 1971 define specifically of the defendant proving something, then this does not necessarily mean that in order to ascertain a defence then the defendant must essentially offer evidence. Thus, the essential evidence might arise such as from any varied