Statutory Presumptions—hidden Effects and Uncertain in Operation
| DOI | 10.1093/slr/3.1.23 |
| Pages | 23-30 |
| Date | 01 March 1982 |
| Year | 1982 |
| Published By | Oxford University Press |
Statutory Presumptions—Hidden
Effects and Uncertain in Operation
By G. R. Sneath, O.B.E., M.A.*
Introduction
The purpose of this paper1 is
to
suggest a need
for reform
in the
use
ofstatutory
presumptions. It concentrates on the need without suggesting any specific
measures for improving the drafting of our legislation in this respect. It is
submitted that the main defects at present are first that these statutory
provisions operate covertly
to
produce effects which should be legislated
for
in
a
more open and direct manner,
and,
secondly, that some of
diem
suffer
from
the
besetting weakness of legislation—ambiguity, in that their exact legal effect is
uncertain.
The primary object of statutory presumptions is simply to establish facts
both for dairy and for forensic use. For die most part they are either rebuttable
presumptions which require a fact to be treated as established until evidence is
introduced to disprove die existence of
that
fact; or else they are irrebuttablc
presumptions which require a fact to be treated as established irrespective of
any evidence to die contrary. This may result in die creation of a legal fiction.
One of die best known of these being that "little
perishers"
under die age of
10
are incapable of having guilty minds and so cannot be criminally liable for
breaking die law.3 The fact of having committed a particular crime is estab-
lished irrebuttabh/ by a conviction
for
diat offence for die purposes of
an
action
for defamation, but this presumption may be rebutted in civil proceedings
founded on some other cause of action.3
The mandatory nature of diese presumptions is reflected in their classifica-
tion as "legal presumptions." In 1945
Mr.
Justice Denning, as he dien was,
urged an abandonment of this division into presumptions of fact
and
presump-
tions of law, and its replacement by a classification into "provisional," "com-
pelling" and "conclusive" presumptions.4 This would reflect die effect die
particular presumption had on die burden of
proof.
Unfortunately this still
leaves die problem, which will
be
referred
to
in detail later, of determining what
weight attaches to a "provisional" presumption (of fact) when it b cast in
* Lecturer in Law, University of
Birmingham;
former Solicitor-General, Hong Kong.
1 This h a considerably expanded version of a short talk given at the Statute Lav/ Society'*
Conference on Legislation on October 31, 1981.
1 Children and Young Persons Act 1933 (c 12), s. 50. This Act was both a consolidating and
a hair-splitting measure It gave statutory form to what had been either a merciful presump-
tion or singularly blind judicial notice. It asserted a quibbling legislative authority by
raising the age from seven to eight years. In 1963 Parliament, seemingly intent on establish-
ing that decade as one in which there should be a general relief from responsibility, raised
the age to 10.
1 Civil Evidence Act 1968 (c 64), ss. 11 and 13.
4 (1945) 61 Law
QferUHy
Raitw 379.
23
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
