Conclusive presumption

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(Redirected from Doli incapax) Jump to: navigation, search A conclusive presumption (also known as an irrebuttable presumption) is a type of presumption used in several legal systems.

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1 England and Wales 2 Tasmania (Australia) 3 See also 4 References

[edit] England and Wales

In English law, a conclusive presumption is a presumption of law that cannot be rebutted by evidence and must be taken to be the case whatever the evidence to the contrary. For example, the doli incapax rule conclusively presumes that a child less than ten years old cannot be held legally responsible for their actions, and so cannot be convicted for committing a criminal offence. The age was seven at common law, and raised by the Children and Young Persons Act 1933 to eight (section 50) and by the Children and Young Persons Act 1963 to ten. A similar rebuttable presumption, that a child between the ages of ten and fourteen was not capable of committing a criminal offence, was abolished by the Crime and Disorder Act 1998. Now the age of criminal responsibility in England and Wales is 10. Many conclusive presumptions have been abolished in recent years. For example:

the rule that conclusively presumed that a boy under the age of 14 years cannot have sexual intercourse, and so cannot therefore be convicted as a principal for the offences of rape, buggery or any other offence where the actus reus involves sexual intercourse (abolished by the Sexual Offences Act 1993) the year and a day rule, which conclusively presumed that a death was not murder (or any other form of homicide) if it occurred more than a year and a day since the act (or omission) that was alleged to have been its cause (abolished by a Law Reform (Year and a Day Rule) Act 1996).

the rule that, by marriage, a wife was conclusively presumed to have given her irrevocable consent to sexual intercourse with her husband, so a husband could not rape his wife (the offence of rape was then defined in section 1 of the Sexual Offences Act 1956 as "unlawful" sexual intercourse without consent, and the word "unlawful" was taken to make a distinction from "lawful" sexual intercourse within marriage). This rule was overturned by the House of Lords in the case of R. v. R. in 1991, and its abolition made clear by the Criminal Justice and Public Order Act 1994, which deleted the word "unlawful" from the definition.

The new addition to the Crime and Disorder Act 1998 (c. 37) states Section 34: Abolition of rebuttable presumption that a child is doli incapax. The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is hereby abolished. [2] See also the case of R v JTB [2009] UKHL 20. Despite obiter comments in the earlier case of Crown Prosecution Service v P [2007] EWHC 946 (Admin) (27 April 2007), doli incapax as a defence and as a presumption for children aged 10 or above was abolished by section 34 Crime and Disorder Act 1998.

[edit] Tasmania (Australia)

In Tasmania, logging practices which are destroying habitat of threatened species were made legal after a clause was added to the Regional Forest Agreement which made the conclusive presumption that environmental management strategies and prescriptions were being applied. This prevented a legal case against the forestry industry being taken to a higher court.[1]

[edit] See also

Rebuttable presumption Presumption of fact

Rebuttable presumption
From Wikipedia, the free encyclopedia
Jump to: navigation, search Both in common law and in civil law, a rebuttable presumption (in Latin, praesumptio iuris tantum) is an assumption made by a court, one that is taken to be true unless someone comes forward to contest it and prove otherwise. A rebuttable presumption is often associated with prima facie evidence.

Rebuttable presumptions in criminal law are somewhat controversial in that they do effectively reverse the presumption of innocence in some cases. For example, in the United Kingdom, Section 75 of the Sexual Offences Act 2003 makes the rebuttable presumption that a person who is unconscious or asleep cannot consent to sexual activity.

[edit] See also

Presumption
From Wikipedia, the free encyclopedia
(Redirected from Presumption of fact) Jump to: navigation, search In the law of evidence, a presumption of a particular fact can be made without the aid of proof in some situations. The types of presumption includes a rebuttable discretionary presumption, a rebuttable mandatory presumption, and an irrebutable or conclusive presumption. The invocation of a presumption shifts the burden of proof from one party to the opposing party in a court trial. Presumptions are sometimes categorized into two types: presumptions without basic facts, and presumptions with basic facts. In the United States, mandatory presumptions are impermissible in criminal cases, but permissible presumptions are allowed. The ancient Jewish law code, the Talmud, included reasoning from presumptions (hazakah), propositions taken to be true unless there was reason to believe otherwise, such as "One does not ordinarily pay a debt before term."[1] The same concept was found in ancient Roman law, where, for example, if there was doubt as to whether a child was really the issue of someone who had left money in a will, the presumption was in favour of the child.[2] Medieval Roman and canon law graded presumptions according to strength: light, medium or probable, and violent.[3] These gradings and many individual presumptions were taken over into English law in the seventeenth century by Edward Coke.[4]

types: Rebuttable presumption, Conclusive presumption examples of presumption without basic facts: Presumption of innocence[5] example of presumption with basic facts: Death in absentia, e.g. law says if a person has been missing for 7 years or more (basic fact), that person shall be presumed to be dead.[citation needed]