Regulatory Offences and Reverse Burdens: The ‘Licensing Approach’

Abstract

The recent case law on burdens of proof and the presumption of innocence has been inconsistent and, at times, unclear. This article argues that where legislation appears to create a reverse legal burden this may generally be justified for regulatory offences, as defined by the ‘licensing approach’ proposed here (rather than by reference to moral stigma and blame). It will be suggested that there is existing authority for this approach and that it provides the potential for greater clarity and consistency in the law.