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England and Wales Court of Appeal (Criminal Division) Decisions
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Cite as:  EWCA Crim 2845,  1 WLR 1714
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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Under section 9(11) Criminal Justice Act 1987
|Royal Courts of Justice|
London, WC2A 2LL
B e f o r e :
MR JUSTICE ROUGIER
MR JUSTICE STANLEY BURNTON
- and -
Clive Louden CARASS
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
John Lodge and Nicholas Johnson (instructed by Hutchinson & Buchanan 77 North Street Ripon HG4 1DS for the Appellant)
James Eadie (instructed by Legal Services Group 10 Victoria Street London SW1H ONN for the Department of Trade and Industry)
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Waller :
“(4) It is a defence -
(a) for a person charged under paragraph (a) or (f) of subsection (1) …. to prove that he had no intent to defraud, ….”.
“… irremediable incompatibility would not assist [the appellant in that case].”
“7. Power to order a preparatory hearing
(1) Where it appears to a judge of the Crown Court that the evidence on an indictment reveals a case of fraud of such seriousness or complexity that substantial benefits are likely to accrue from a hearing (in this Act referred to as a “preparatory hearing”) before the jury are sworn, for the purpose of -
(a) identifying issues which are likely to be material to the verdict of the jury;
(b) assisting their comprehension of any such issues;
(c) expediting the proceedings before the jury; or
(d) assisting the judge’s management of the trial,
he may order that such a hearing shall be held.
(2) A judge may make an order under subsection (1) above on the application either of the prosecution or of the person indicted or, if the indictment charges a number of persons, any of them, or of his own motion.”
“The preparatory hearing
9. (3) He may determine
(b) any question as to the admissibility of evidence; and (c) any other question of law relating to the case.
(11) An appeal shall lie to the Court of Appeal from any order or ruling of a judge under subsection (3)(b) or (c) above, but only with the leave of the judge or of the Court of Appeal.”
“It is well established by a line of authority in this court that for there to be an interlocutory appeal to this court there must not also be a ruling as to admissibility of evidence or law made at the hearing held pursuant to the judge’s order that there be a preparatory hearing, but the ruling must also be for a purpose covered by the purposes set out in section 7(1) or 29(2) of the applicable Act. If the ruling is not for such a purpose, it does not fall within the preparatory hearing and there is no appeal under section 9(11) or 35(1)”. (see also R v M (CAT 5/10/01 paragraphs 7 and 17).
“(1) When a company is ordered to be wound up by the court, or passes a resolution for voluntary winding up, any person, being a past or present officer of the company, is deemed to have committed an offence if, within 12 months immediately preceding the commencement of the winding up, he has –
(a) concealed any part of the company’s property to the value of £120 or more, or concealed any debt due to or from the company, or ….
(4) It is a defence –
(a) for a person charged under paragraph (a) … of subsection (1) …. to prove that he had no intent to defraud, …”.
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.
“(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”
“(2) Subject to subsection (3) below, in any proceedings for an offence to which this section applies it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged.
(3) Where in any proceedings for an offence to which this section applies it is necessary, if the accused is to be convicted of the offence charged, for the prosecution to prove that some substance or product involved in the alleged offence was a controlled drug which the prosecution alleges it to have been, and it is proved that the substance or product in question was that controlled drug, the accused – (a) shall not be acquitted of the offence charged by reason only of providing that he neither knew nor suspected nor had reason to suspect that the substance or product in question was the particular controlled drug alleged; but (b) shall be acquitted thereof – (i) if he proves that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug; or (ii) if he proves that he believed the substance or product in question to be a controlled drug, or a controlled drug of a description, such that, if it had in fact been that controlled drug or a controlled drug of that description, he would not at the material time have been committing any offence to which this section applies.”
“Mr Pannick suggested that in considering where the balance lies it may be useful to consider the following questions: (1) what does the prosecution have to prove in order to transfer the onus to the defence? (2) what is the burden on the accused – does it relate to something which is likely to be difficult for him to prove, or does it relate to something which is likely to be within his knowledge or (I would add) to which he readily has access? (3) what is the nature of the threat faced by society which the provision is designed to combat? It seems to me that these questions provide a convenient way of breaking down the broad issue of balance into its essential components, and I would adopt them for the purpose of pursuing the argument as far as it is proper to go in the present case.”
“There are further arguable points: whether section 16A is incompatible with the Convention and whether all the defendants would properly be described as “victims” of any breach of the Convention. That these are arguable points can be illustrated by reference to Bates v United Kingdom (Application No. 2628) (unreported), 16 January 1996, where the Commission declined to admit a complaint that section 5(5) of the Dangerous Dogs Act 1991 infringed the Convention even though it provided that:
“If in any proceedings it is alleged by the prosecution that a dog is one to which [the Act] applies, it shall be presumed that it is such a dog unless the contrary is shown by the accused by such evidence as the court considers sufficient; and … he has given … notice of his intention to do so …”
This made the mere allegation suffice to impose on the defendant in a criminal trial the burden of disproving the allegation. He was guilty unless he proved his innocence; he might be convicted on the civil burden of proof even though the court was not sure that he might not be innocent. However the Commission following earlier decisions of the court in Salabiaku v France (1988) 13 E.H.R.R. 379 and Hoang v France (1992) 16 E.H.R.R. 53 did not regard the provision as objectionable. The provision was of a type that fell within reasonable limits. It gave the defendant an opportunity to adduce evidence to disprove the allegation. The defendant had failed at his trial to take advantage of that opportunity.
This case and other similar cases decided under the Convention show that it is necessary to examine each case on its merits. There may be a justification for the terms in which the legislation is drafted even though on its face it would appear to be contrary to the Convention. Similarly, it is necessary to examine whether the relevant provision has in fact resulted in an injustice to the complainant. The last point ties in with the use in section 7(1) of the Human Rights Act of the term “victim”. Criminal statutes which in certain circumstances partially reverse the burden of proof are not uncommon nor are they confined to the United Kingdom. The judgments and decisions of the European Court of Human Rights and the Commission (account of which must be taken under section 2 of the Act) show that they are not necessarily incompatible with the Convention. Such a need to look beyond the bare words of the statute is also borne out by what Lord Woolf said in Lee Kwong-kut  AC 951, 969 concerning the identification of the essential criminality which the prosecution must prove and the justification for requiring the defendant to prove that he comes within the exception to it. These are difficult concepts and, indeed, his approach may have been more stringent than is required under the European Convention. For myself, I am not presently persuaded that the approach advocated by Professor Glanville Williams in his article “The Logic of ‘Exceptions’”  C.L.J. 261 is the right one. Similarly there are clearly arguable questions as to the breadth to be ascribed to the construction of statutes which will be required of the courts by section 3(1).”
“Responding to Ex p Kebilene Parliament enacted the Terrorism Act 2000 which in section 118(1) and (2) provides that the reverse onus of proof is satisfied if the person adduces evidence which is sufficient to raise an issue with respect to the matter unless the prosecution can prove the contrary beyond reasonable doubt.” [see paragraph 40].
That was also noted by Lord Hope in paragraph 92.
“Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the contracting states to remain within certain limits in this respect as regards criminal law … Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires states to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.”
He then continues:
“This test depends upon the circumstances of the individual case. It follows that a legislative interference with the presumption of innocence requires justification and must not be greater than is necessary. The principle of proportionality must be observed.”
“The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence. The exact characterisation of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.”
“In the present case the defence under section 28 is one directly bearing on the moral blameworthiness of the accused. It is this factor alone which could justify a maximum sentence of life imprisonment. In my view there is an inroad on the presumption even if an issue under section 28 is in strict law regarded as a pure defence.”
“The burden is on the state to show that the legislative means adopted were not greater then necessary. Where there is objective justification for some inroad on the presumption of innocence the legislature has a choice. The first is to impose a legal burden of proof on the accused. If such a burden is created the matter in question must be taken as proved against the accused unless he satisfies the jury on a balance of probabilities to the contrary: 11th Report of the Criminal Law Revision Committee, Evidence (General) (1972) Cmnd 4991, para 138. The second is to impose an evidential burden only on the accused. If this technique is adopted the matter must be taken as proved against the accused unless there is sufficient evidence to raise an issue on the matter but, if there is sufficient evidence, then the prosecution have the burden of satisfying the jury as to the matter beyond reasonable doubt in the ordinary way: para 138. It is important to bear in mind that it is not enough for the defence merely to allege the fact in question: the court decides whether there is a real issue on the matter: para 138. A transfer of a legal burden amounts to a far more drastic interference with the presumption of innocence than the creation of an evidential burden on the accused. The former requires the accused to establish his innocence. It necessarily involves the risk that, if the jury are faithful to the judge’s direction, they may convict where the accused has not discharged the legal burden resting on him but left them unsure on the point. This risk is not present if only an evidential burden is created.”
“…. The article 6(2) right is not absolute and unqualified, the test to be applied is whether the modification or limitation of that right pursues a legitimate aim and whether it satisfies the principle of proportionality: …. It is now well settled that the principle which is to be applied requires a balance to be struck between the general interest of the community and the protection of the fundamental rights of the individual. This will not be achieved if the reverse onus provision goes beyond what is necessary to accomplish the objective of the statute.”
“It is not unreasonable to think that, if Parliament were now to have an opportunity of reconsidering the words used in section 28(2) and (3) of the 1971 Act, it would be content to qualify them in precisely the same way. …” [i.e. the way now adopted in the Terrorism Act 2000].
Thus he too would read the words to “prove” as if the words used were to “adduce sufficient evidence.
“But the decision may have to turn upon the particular circumstances. The focus of attention paid by the European Court of Human Rights tends to be directed at the particular circumstances of the case before them. Considerations which have weighed with the court in deciding in particular cases that there was no infringement have included a consideration of the whole evidence and such matters as these: that while the accused was deemed liable for the offence, he had the opportunity to put extenuating circumstances before the court and was entitled to be acquitted if he succeeded in establishing a case of force majeure, unavoidable mistake, or necessity (Salabiaku v France 13 EHHR 379 and Hoang v France 16 EHRR 53), that the domestic courts had also identified in the case an element of intent, even although they were under no legal obligation to do so (Salabiaku), and that the courts had also made a careful discrimination between the two charges originally brought against the accused and acquitted him of one of them while convicting him on the other (Salabiaku). But it would be of little assistance for the future to decide the present case simply on its own particular facts. Some more general opinion ought to be possible.”
“While it may be that offences under section 5 of the Misuse of Drugs Act 1971 may be described as regulatory they can lead to the most serious of consequences for the accused. Of course trafficking in controlled drugs is a notorious social evil, but if any error is to be made in the weighing of the scales of justice it should be to the effect that the guilty should go free rather than that an innocent person should be wrongly convicted. By imposing a persuasive burden on the accused it would be possible for an accused person to be convicted where the jury believed he might well be innocent but have not been persuaded that he probably did not know the nature of what he possessed. The jury may have a reasonable doubt as to his guilt in respect of his knowledge of the nature of what he possessed but still be required to convict. Looking to the potentially serious consequences of a conviction at least in respect of class A drugs it does not seem to me that such a burden is acceptable.
But I have no difficulty in finding the solution by an application of section 3 of the 1998 Act. It requires no straining of the language of section 28 to construe the references to proof as intending an evidential burden and not a persuasive one. Indeed, as I have already stated, it would be a construction to which I would in any event have inclined, even without the added compulsion of the 1998 Act.”
“Support for the appellant’s argument is to be found in the opinion of the Criminal Law Revision Committee in paragraph 140 of its 11th Report, Evidence (General) (1972) (Cmnd 4991) that: “both on principle and for the sake of clarity and convenience in practice, burdens on the defence should be evidential only.” But in my opinion the threat of drugs to the wellbeing of the community and the peculiar difficulty of proving knowledge in such cases justifies an exception to the general principle advocated by the Criminal Law Revision Committee, and this was clearly the view taken by Parliament in enacting sections 5 and 28 of the Act.”
Analysis of the offence under section 206(1)(a)
“There is obvious sense in, and justification for, this approach. It operates to make it for the defendant to prove matters which the prosecution would be highly unlikely to be able to know about and which it might be difficult, if not impossible, for them to rebut.”
“We would declare that the burden is evidential only and it is therefore appropriate to read the section as follows:-
‘It is a defence for a person charged under paragraph (a) … of subsection (1) (under subsection (2) in respect of the things mentioned in either of those two paragraphs) to adduce evidence sufficient to raise an issue that had no intent to defraud, unless, if he does so, the prosecution proves the contrary beyond reasonable doubt’”.