Show description

Because this is an area where attempts to find unifying features have been made so unsuccessfully, you may find classification confusing. When a writer refers to a presumption, you need to be sure about how he is using the word. The sort of presumption that you will be trying to learn about (of death, legitimacy, etc) is what is often called a ‘rebuttable presumption of law’. In my view, it confuses things to talk about anything else as a ‘presumption’. If someone refers to a ‘presumption of fact’ he should mean an inference about facts which is part of an ordinary reasoning process, having nothing specially to do with law at all.

This popular essay topic can be presented in many forms. All the examiner has to do is reproduce a pro-defence excerpt from Lord Sankey’s speech and either ask the sort of question which appears below, or simply say ‘Discuss’. Obviously, you must read any question carefully, but if you see something on these lines in the examination paper, it is likely that you are being asked to write about this problem. The standard of proof is less likely to occur as an essay topic because it raises too many theoretical issues.

According to the presumption of regularity, upon proof of the fact that some official or public act has been performed, or that a person acted in an official capacity, it is presumed that the act which was done complied with any necessary formalities, or that the person so acting had been properly appointed. In Dillon (1982), a police officer had been charged in Jamaica with the offence of negligently permitting two prisoners, lawfully in his custody, to escape. The prosecution failed to call any Presumptions, Competence and Compellability 29 evidence to show that the officer had authority to hold the prisoners in custody, a matter which they had the burden of proving.