Wednesday, April 09, 2008

Burden of proof

If a public body has interfered with your human rights the Courts must look, with 'anxious scrutiny', to see if the interference was really necessary to achieve one or more of the stated aims recognised by the Convention. If the answer is no, the Courts will find that the public body has acted unlawfully.

One significant advantage for the citizen is that the burden of argument shifts from the claimant to the defendant public authority. The claimant no longer has to demonstrate unreasonableness, but rather the defendant (public authority) needs to produce a justification for the decision that satisfies the court that it was properly made.

If the courts use this approach, why do Local Government Ombudsmen,
when they know human rights issues are involved, still place the burden of proof on the complainant rather than the public authority concerned?

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