Reverse burden for curfew exemptions

THE EDITOR, Madam:

IT IS a general and wellestablished principle in law that a person is presumed innocent until proven guilty. That presumption gives credence to a further general legal principle, that the burden of proof rests on the Crown to prove the guilt of a person accused or charged with committing an offence in breach of our laws. An exception to this general principle is the principle of reverse burden.

A reverse burden is introduced in circumstances where a statute imposes a duty or responsibility on an accused to prove particular facts. In reviewing The Disaster Risk Management (Enforcement Measures) (No.2) (Amendment) (No.2) Order 2020, I have identified that a reverse burden has been imposed by this Order.

PROOF OF IDENTIFICATION

The Order specifies professionals or groups that are exempt from the imposed curfew. The Order goes further to state that such professionals or groups “shall, on being requested to do so by an authorised officer, produce satisfactory proof of identification as a person referenced in the subparagraph [the professional or group member]”.

Even if one were to entertain the thought that the Order was not explicit in its request for proof of identification from a person claiming to fall under the exempted category, a reverse burden would still be implied under the Order. This is so because the Order identifies specific categories of exemption. An individual who claims to fall within that exempted category would be required to provide proof in support of their claim. This principle was approved by the Privy Council in the case of Vasquez v R, a portion of which I extract for completeness:

“Where an enactment made the doing of a particular act an offence, save in specified circumstances, or by persons of specified classes or with special qualifications or with the permission or license of specified authorities, and on its true construction, the effect of the enactment was to prohibit the doing of the act in question subject to a proviso, exception, excuse or qualification …”

As the Government draws another notch on the curfew restrictions, it is imperative that our citizens that fall within the exempted groups, most of whom are ‘essential’ workers, equip themselves with relevant identification that sufficiently attaches them to their respective exempted category. While our Jamaica Constabulary Force and Jamaica Defence Force officers may exercise their discretion to allow ingress or egress during the curfew hours, we must all err on the side of caution.

Have a holy Easter holiday! CHADWYCK GOLDSMITH Attorney-at-law