The Lord Chief Justice has given the first substantial consideration to the validity of reverse burdens of proof following the implementation of the Human Rights Act 1998.The reverse burdens to prove diminished responsibility under s.2(2) Homicide Act 1957 and to prove innocence under s.5(4) read with s.28 Misuse of Drugs Act 1971 were each upheld.

The court emphasised that the primary obligation to prove the main ingredients of the offence must continue to fall upon the Crown but thereafter any reverse burden would be tested upon the reasonableness of all the circumstances including the purpose of the legislation, the fact that Parliament deemed it fit to pass the relevant statute and the ease with which the Crown could carry the burden were it to be placed upon the prosecution.The decision of the European Court in Khan v UK [2000] Crim LR 682 will come as a considerable disappointment to defence solicitors.

Here the Crown relied wholly on evidence obtained by an unlawful act of trespass when a tape recording was made from inside the defendant's home.

There was a clear breach of art.8, which was confirmed by the European Court.However, notwithstanding that breach, the court was not prepared to hold that the trial had been unfair within the provisions of art.6.

Solicitors will therefore need to distinguish this case in future applicat ions to exclude evidence under s.78 of Police and Criminal Evidence Act 1984 when seeking to rely on art.8.

The reliability of evidence on tape is the primary distinguishing feature.The dangers of a s.10 admission were again emphasised in R v Kolton [2000] Crim LR 761 where it turned out that the defence had admitted critical movements which significantly strengthened the prosecution case as they could not otherwise be proved.

The court would not allow these admissions to be withdrawn unless there was cogent evidence that the admission had been made by mistake or misunderstanding.In R v Z (Prior Acquittal) [2000] 3 All ER 385 the House of Lords has held that if facts meet the 'more probative than prejudicial' test for similar fact evidence, those facts may be referred to even if at an earlier trial the defendant was acquitted of an offence based on them.

The later prosecution cannot challenge the acquittal but the existence of those facts may assist a later jury in deciding whether a defendant (in this case claiming consent to sexual intercourse) had in relation to the latest prosecution been proved to be lying.