Case No. UKUT-00376-(IAC)

[2005] 2 AC 467 at paragraph 20 . In particular it should be noted that in domestic proceedings the necessary evidential burden does not impose a need for the accused to establish duress on a balance of probabilities. 57. As we noted earlier, The Secretary of State submitted that the decision of the Canadian Federal Court in Oberlander provided support for the contention that the burden of establishing duress lies on the appellant . Article 66 of the ICC Statute provides that the presumption of innocence applies to the accused, that the onus is on the prosecutor to prove guilt and that the standard of guilt must be established beyond reasonable doubt. Article 67 identifies the rights of the accused and provides: “1. In the determination of any charge, the accuse d shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially , and to the following minimum guarantees, in full equality: (i) not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal” This provision would seem to undermine the Secretary of State’s contention. In addition , Rule 80 of the ICC Rules of Procedure and Evidence provides that the defence must give notice to both the Trial chamber and the Prosecutor if it intends to raise a ground for excluding criminal responsibility under article 31 . The purpose of this notice is to give the Prosecutor adequate opportunity to prepare for trial. The Rule also provides that the Trial Chamber may give t he Prosecutor an adjournment to address the ground of defence raised. All of this goes to further underpin the statement that the onus remains on the prosecution to disprove any defence validly raised. 58. Further guidance might be found in the decisions of other tribunals applying international law. The impact of the defence of duress has been considered by the United Nations Special Panel for East Timor in the context of cases prosecuted before it where the definitions of the crimes and the available defences replicate those found in the ICC Statute. In the Court of Appeal decision in the case of