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.
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 protection”. However, His Lordship failed to distinguish between the measures of legitimate aim and proportionality while identifying the limitations of judicial deference.
Similarly, in Johnstone, Lord Nicholls failed to distinguish between legitimacy and proportionality when he said, “…the court will reach a different conclusion from the legislature only when it is apparent the legislature has attached insufficient importance to the fundamental right of an individual to be presumed innocent until proven guilty.”
Dyson LJ once wrote an article in which he wondered if there is a need to question judicial deference. After all, all that matters is that the existence of deference or discretionary area of judgment is acknowledged by the courts and that it be applied with reasonable consistency. Dyson LJ also pointed out to the importance of deference in constitutional terms of ‘democratic principle’. According to Dyson LJ, ‘the democratic principle rationale is that deference is required to decisions made by the legislature and executive in relation to decisions which have serious potential results for the community’. He quoted Lord Hoffman in Secretary of State for the Home Department v Rehman , “such decisions...