This Article documents the increasing range of instances in which the presumption of innocence has been abrogated by legislation. Legislatures are responding to fears around terrorism and general community anxiety about law and order issues by increasing resort to reverse onus provisions. While the right of the legislature to enact laws thought to further public safety is acknowledged, the presumption of innocence is a long-standing, fundamental due process right. This Article speciﬁcally considers the extent to which reverse onus provisions are constitutionally valid in a range of jurisdictions considered comparable. It ﬁnds that the approach in use in some jurisdictions studied, testing the constitution- ality of reverse onus provisions on the basis of whether they practically permit an accused to be found guilty although there is reasonable doubt about their guilt, has much to commend it. However, this is part-solution only, since legislatures may then be driven to redeﬁne crimes to seek to effectively cast the burden of proof onto an accused by redeﬁning what is in substance an element of a defense. Thus, it favors a substantive approach to determining what the prosecutor must show to obtain a conviction, utilizing concepts such as moral blameworthiness and actus reus/mensrea.
the liability of citizens should be ascertained by determinate legal rules, and we need to begin by getting that distinction clear. Both involve rule of law values. The latter, which is sometimes known as the principle of legality, requires that no-one should be convicted of any offence unless a law exists that designates her conduct a crime: nullum crimen sine lege, no crime without law. It also requires that the law should be prospec- tive, not retrospective. Nowadays, it is a constitutional matter: the common law contains a presumption against retrospective crimes, buttressed by Article 7 of the ECHR, which plainly interdicts retro- active criminal laws. The law, especially the criminal law, should be fixed and definite, not alterable. The potential for criminal liability of a would-be actor should exist before she acts, not originate in the subsequent discretion of others.
Alabama’s scheme of default rules is very similar to New York’s. One significant difference is that while the Alabama Code classifies offenses as strict liability if they lack culpability with respect to any element, it also classifies offenses as offenses of culpability if they require culpability with respect to any element. Thus, it is less clear that Alabama’s presumption of culpability is pervasive. On the other hand, Alabama has the homicide default rule. Like New York, Alabama has the “necessarily involved” rule. All three rules would be satisfied by a mental element of negligence. The current Alabama statute conditions felony murder liability on causing death in the course of enumerated dangerous felonies “or any other felony clearly dangerous to human life.” 123 The official commentary on this provision explains this requirement of dangerousness to life as a requirement of foreseeability and reasons that an unrestricted felony murder rule—punishing unforeseeable deaths—is no longer defensible. At the same time, the commentators decline to require “subjective” awareness of the risk of death. 124 Thus, without mentioning the negligence default 123. Ala. Code §13A-6-1 (1994) (“Definitions. The following terms shall have the meanings ascribed to them by this section: (1) Homicide. A person commits criminal homicide if he intentionally, knowingly, recklessly or with criminal negligence causes the death of another person. . . . (3) Criminal homicide. Murder, manslaughter, or criminally negligent homicide.”).
In all other cases, the attenuated subjectivist approach helps us frame the discussion by shifting the focus away from whether there was a de- liberate choice to cause or risk harm towards a more expansive analysis of blameworthiness. Where that analysis cannot be grounded in stable premises, such as those provided by the licensing context, I think we should err on the side of presuming that objective mensrea offences in- fringe section 7. As noted above, I agree with Roach that the government should then have the opportunity to justify such offences under section 1. My proposed approach thus encourages a multifaceted analysis of blameworthiness; one that places the burden on the government to justify objective mensrea offences except in clear cases of presumptive blame- worthiness like those situated in the licensing context. This approach is more nuanced than the other two approaches. Contextualism focuses on policy considerations without sufficient regard to the defendant’s mental state. Strict subjectivism truncates and abstracts the fault analysis by fix- ating on the issue of deliberate choice.
This, however, is assuming that the standard will even be followed literally. Based on the splintering of case law subsequent to Global-Tech in fields outside of the FCPA, it seems that generally lower courts will have great difficulty figuring out how to apply the standard at all. Some courts may ignore the changes altogether. Others may allow many sorts of circumstantial evidence to be sufficient to prove deliberate igno- rance. This will make it so that, depending on where an FCPA case is brought, it will be extremely difficult to predict how a given case will go. Different courts may find differently depending on their application of the standard. This will create a total lack of uniformity for FCPA prose- cutions as it is completely unclear what kind of evidence is necessary to even meet the second prong of the Global-Tech willful blindness stan- dard. Additionally, the legislative intent behind the mensrea of the FCPA seems to be getting lost in the shuffle. In any of these situations, FCPA prosecutions will face great difficulties moving forward.
8 See the thorough and systematic analysis of civil and common law jurisdictions with regard to the mensrea required for recklessness or dolus eventualis as adopted by Blasˇkic´’s Defence in Prosecutor v. Tihomir Blasˇkic´, (Case No. IT-95-14-A), Appellant’s Appeal Brief, 14 January 2002, Section VIII, pp. 128–132 (on ﬁle with the author); In Jelisic´, the Ofﬁce of the Prosecutor (OTP) argued that the concept of dolus specialis, which is a civil law term used to describe the mensrea of a crime, set too high a standard, and could not be equated with the com- mon law concepts of “speciﬁc intent” or “special intent”, as a consequence, the OTP undertaken a comparative analysis with respect mensrea standards in both civil and common law systems,
224 The Ministries Case, 14 T RIALS U NDER CCL N O . 10, supra note 182, at 622. 225 Id.
226 See id. at 622 (noting that lending money to evil people or business is probably ethically rep-
rehensible but not illegal, hence implicitly emphasizing the actus reus). But see Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259 (2d Cir. 2009) (citing The Ministries Case, 14 T RIALS U NDER CCL N O . 10 for a higher purpose mensrea); Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254, 276 (2d Cir. 2007) (Katzmann, J., concurring) (surmising that the Ministries Case tri- bunal did not find the requisite purpose).
6. General Remarks and Conclusion
The present study reveals the evolutionary developments of the law of mensrea in the jurisprudence of the ICTY. Through its jurisprudence, the
Yugoslavia Tribunal has employed different mensrea terms and maxims in order to maintain the culpability levels required for serious violations of international humanitarian law. The first types of culpability terms used by the ICTY are ‘specific intent’ or ‘dolus specialis’, both terms seem to be used interchangeably. It is evident from the case law of the ICTY that these terms are attributed to particular classes of crimes which require a surplus of intent, a particular intent to achieve some further consequence beyond the result that constitutes the actus reus of the offence in question. As noted by Professor
For present purposes, interest is directed towards automatism’s actual operation in terms of the way in which the courts apply it to elide blameworthiness. There appears to have been no significant case since Drury. Thus, there has been no occasion to challenge automatism’s status as a free-standing defence coming into play after establishment of actus reus and mensrea. We may therefore accept that it is correct to characterise it as working solely to demonstrate the accused’s lack of culpability where, prima facie, there is clear evidence that s/he is the medium by which the proscribed harm constituting the gravamen of the charge has been brought about. In his judgment in Ross, Lord McCluskey made no bones about this. He said: ‘I know of no exceptions, other than statutory ones, to the rule that the Crown must prove mensrea beyond reasonable doubt. ... If
gress, could thoughtfully deliberate every time an issue of state law pre- emption arises. As a consequence, we might not need a presumption against preemption to prompt deliberation. To the contrary, however, the evidence suggests that agency preemption is not likely to be well consid- ered. Again, one reason for the presumption against preemption is to en- sure that states and the federal government participate in a real dialogue over whether state law should yield to federal law. I have argued elsewhere that agencies have some incentives to consider state interests in deciding whether state laws should be preempted. To summarize my analysis, agen- cies may have political incentives to respond to state interests because they are accountable to the President, the winner in a national election. 116 Fur-
In arguing that the individualized integration presumption keeps children from placements they need, Professor Colker has a difficult task. The integration presumption is, after all, just a presumption. The statutory provision creating it requires integration only “[t]o the maximum extent appropriate,” and it specifically contemplates that “special classes, separate schooling, or other removal of children with disabilities from the regular educational environment” will occur when “the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 6 That provision, by its very terms, requires an individualized analysis to determine what place- ment is “appropriate” for each child with a disability.
Receivers and trustees are equipped with fraudulent transfer reme- dies designed to redress the victims of fraudulent schemes. When they seek to recover transfers under the actual fraud theory, they only need to prove one element: whether the debtor made the transfer with ac- tual intent to defraud. And when they can prove that the companies now under their control operated as a Ponzi scheme, they are entitled to a presumption of actual intent to defraud. But this means that in every other investment fraud case, including those that closely resem- ble Ponzi schemes, trustees and receivers must undertake the “badges of fraud” analysis. This approach is difficult and unpredictable. As one bankruptcy court noted, “[P]roof of intent under a badges-of- fraud analysis is not like a carnival dart game, where simply popping a given number of balloons entitles one to the big prize.” 241 More im-
Kenneth Campbell argued that a substantive view needed to be taken, and that in substance an offence included things against which the law said there was a prima facie reason, while a defence in substance related to exonerating conditions: Criminal Law and Justice: Essays from the W G Hart Workshop (1987) p73; Victor Tadros and Stephen Tierney, ‘The Presumption of Innocence and the Human Rights Act’ (2004) 67 Modern Law Review 402; Victor Tadros, ‘Rethinking the Presumption of Innocence’ (2007) 1 Criminal Law and Philosophy 193; Richard Glover, ‘Regulatory Offences and Reverse Burdens: The ‘Licensing Approach’ (2007) 71 Criminal Law Journal 259; Glanville Williams, ‘Offences and Defences’ (1982) 2 Legal Studies 233; Glanville Williams, ‘The Logic of Exceptions’ (1988) 47(2) Cambridge Law Journal 261 agreed that a substantive view needed to be taken. See Andrew Stumer, The Presumption of Innocence: Evidence and Human Rights Perspectives (Hart, 2010) ch 3. Some support for this view appears in dicta comments of Gummow J in Nicholas v The Queen (1998) 242 CLR 1, 64, who suggested in obiter that a law that deems to exist a fact that is an element of the offence with which the accused is charged might be a breach of Chapter III requirements.