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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Director of Public Prosecutions, Ex Parte Kebeline (aks Kebilene) and Others, R v.  UKHL 43 (28 October 1999)
Cite as: (1999) 11 Admin LR 1026,  UKHRR 176,  HRLR 93,  1 Cr App Rep 275, (2000) 2 LGLR 697,  UKHL 43,  4 All ER 801,  Crim LR 486,  1 Cr App R 275,  2 AC 326,  3 WLR 972
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Lord Slynn of Hadley Lord Steyn Lord Cooke of Thorndon
Lord Hope of Craighead Lord Hobhouse of Woodborough
DIRECTOR OF PUBLIC PROSECUTIONS
EX PARTE KEBELINE AND OTHER
(ON APPEAL FROM A DIVISIONAL COURT OF THE QUEENS BENCH DIVISION)
ON 28 OCTOBER 1999
See:  EWHC Admin 277
LORD SLYNN OF HADLEY
I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Steyn. The opinion which I intended to write would have been largely repetitious of the views which he expresses. Accordingly and despite the fact that we are differing from forcefully stated conclusions of the Divisional Court I limit myself to saying that for the reasons which Lord Steyn gives I too would allow the appeal.
In the Divisional Court the Lord Chief Justice observed that this case raises important issues regarding the impact of the Human Rights Act 1998 on the exercise of the discretion of the Director of Public Prosecutions during the interim period between the enactment of the Act of 1998 and the bringing into force of its main provisions; and about the role and jurisdiction of the court in reviewing that exercise of discretion:  3 WLR 175. The Divisional Court held that the DPP had acted unlawfully and granted a declaration to that effect. The DPP now appeals to the House of Lords.
In 1997 officers of the anti-terrorist squad arrested Mr Kebeline, Mr Boukemiche and Mr Souidi. All three were Algerian nationals. They were charged with offences under section 16A of the Prevention of Terrorism (Temporary Provisions) Act 1989. Section 16A of the Act of 1989, so far as it is relevant, provides:
1. A person is guilty of an offence if he has any article in his possession in circumstances giving rise to a reasonable suspicion that the article is in his possession for a purpose connected with the commission, preparation or instigation of acts of terrorism to which this section applies.
3. It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence the article in question was not in his possession for such a purpose as is mentioned in subsection (1) above.
4. Where a person is charged with an offence under this section and it is proved that at the time of the alleged offence -
(a) he and that article were both present in any premises; or
(b) the article was in premises of which he was the occupier or which he habitually used otherwise than as a member of the public, the court may accept the fact proved as sufficient evidence of his possessing that article at that time unless it is further proved that he did not at that time know of its presence in the premises in question, or, if he did know, that he had no control over it.
Conviction on indictment carries a maximum penalty of 10 years imprisonment plus a fine in an unlimited sum. The particulars of offence against the three men were that they
The charges arose from items found during police searches at various addresses in London. The case against the three men was that as members of the Armed Islamic Group they had been engaged in sending equipment to Algeria for use in the civil war in Algeria.
Section 19(1)(aa) of the Act of 1989 requires the consent of the Director of Public Prosecutions for proceedings under the Act of 1989. In the Divisional Court the Lord Chief Justice explained that section 16A is directed not to unlawful possession of explosives or firearms, which may be the subject of prosecution without resort to section 16A but to the possession of articles and items of information innocent in themselves but capable of forming part of the paraphernalia or operational intelligence of the terrorist. The purpose of requiring the DPP's consent to prosecutions under section 16A is, to ensure that the decision to prosecute is taken at a very senior level in the CPS, following a careful consideration of all relevant matters including the public interest, and to protect defendants from the risk of oppressive prosecutions: see  3 WLR 175, at 182H-183A. In the present case the DPP gave his consent to the criminal proceedings under the Act of 1989.
The trial commenced on 9 March 1998 but was adjourned on the grounds of late service of evidence by the Crown Prosecution Service. The new trial started on 12 October 1998. Counsel for the three defendants applied for a stay on the ground that it proved impossible to obtain evidence from Algeria. The judge dismissed the application. On 27 October 1998 the jury was empanelled. At the close of the case for the prosecution the defence sought a ruling from the judge that section 16A of the Act of 1989 reversed the legal burden of proof and was therefore in breach of Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 6(1) of the Convention contains the general right to a fair trial. Article 6(2) provides: "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law." It must be read with Article 13 which requires an effective remedy in national courts for a breach of the rights defined in the Convention. The defence sought this ruling for two reasons. First, in order to persuade the DPP to reconsider his consent. Secondly, as an aid to a renewal of the abuse of process application made at the outset of the trial. On 20 November 1998 the judge ruled that section 16A was in conflict with Article 6(2). He gave the reasons for his decision on 23 November 1998. The solicitors for the defendants then wrote to the DPP requesting him to reconsider his consent to the proceedings. The DPP's view was that section 16A was not inconsistent with article 6(2) of the Convention. But he sought the advice of Mr Rabinder Singh, a barrister with extensive experience in this field. Mr Singh supported the DPP's view. On 26 November 1998 Mr Singh appeared on behalf of the DPP before the judge and attempted to persuade the judge to reverse his earlier ruling. Mr Singh made clear that the DPP did not agree with the judge's ruling. After hearing argument the judge adhered to his earlier ruling. The DPP then sought a further short adjournment after which the DPP indicated that it was his intention to proceed with the prosecution. The defence then placed another argument on abuse of process before the judge but the judge rejected it. On 14 December 1998 the judge discharged the jury because the prosecution had not fully complied with its disclosure obligations and prosecuting counsel required a lengthy adjournment to complete this task. A new trial date had to be fixed.
The application for judicial review
On 18 December 1998 the three defendants applied for leave to move for judicial review. Form 86A described the decision in respect of which relief was sought as being "the continuing decision of the Director of Public Prosecutions ("the DPP") to give his consent pursuant to section 19(1) (aa) of the Prevention of Terrorism (Temporary Provisions) Act 1989 ("the PTA") for the prosecution of the applicants for an offence contrary to section 16A of the PTA". Form 86A sought a declaration that "the decision of the DPP to give his continued consent to the prosecution of the applicants involves an error of law, namely an erroneous conclusion that the prosecution is compatible with Article 6(2) of the European Convention on Human Rights."
On 26 January 1999 Turner J. granted leave to move for judicial review to the three applicants as well as to a fourth applicant (Mr Rechachi).
The Proceedings in the Divisional Court
The importance of the issues led to the matter being heard in March this year by Lord Bingham of Cornhill, C.J., sitting with Laws L.J. and Sullivan J., judges with enormous experience in human rights law and public law issues. The Divisional Court granted a declaration that the DPP's decision to proceed with the prosecution was unlawful:  3 WLR 175. The Lord Chief Justice took the view that section 16A of the Act of 1989 undermines in a blatant and obvious way the presumption of innocence: at 190F. He observed that: "Under section 16A a defendant could be convicted even if the jury entertained a reasonable doubt whether he knew that the items were in his premises and whether he had the items for a terrorist purpose": at 190H: The Lord Chief Justice held that section 29(3) of the Supreme Court 1981 did not preclude the granting of relief. The Lord Chief Justice accepted that it is not for the DPP to disapply legislative provisions which Parliament has enacted. But relying on the judgment of Lord Hope of Craighead (given with the agreement the other members of the House) in Reg. v. Secretary of State for the Home Department, Ex parte Launder  1 WLR 839 at 867 the Lord Chief Justice held that it was appropriate for the Court to review the soundness of the legal advice on which the DPP acted. The Lord Chief Justice explained:
Laws L.J. gave a separate judgment. Except perhaps to the extent that Laws L.J. went further than the Lord Chief Justice by observing that the DPP was in law obliged to consider whether section 16A of the Act of 1989 was compatible with Article 6(2) of the Convention I have not discerned any material difference between the reasoning in the two judgements. Sullivan J. agreed with both judgments.
The Main Issues
Since the judgment was delivered in the Divisional Court the criminal proceedings against Mr Rechachi have been abandoned. The case against him had required an examination of section 16B of the Act of 1989. The appeals before the House are now only by Mr Kebeline, Mr Boukemiche and Mr Souidi. And the focus is only on section 16A of the Act of 1989. The principal issues debated before the House were as follows:
1) whether the decision of the Divisional Court failed to recognise the force and effect of Parliamentary sovereignty in the context of unambiguous primary legislation contained in section 16A of the Act of 1989;
2) whether, pending the coming into force of its central provisions, the Human Rights Act 1998 gives rise to a legitimate expectation that the DPP will exercise his discretion to consent to a prosecution in accordance with Article 6(2) of the Convention.
3) whether section 29(3) of the Supreme Court Act 1981 or a common law principle preclude the granting of relief in judicial review proceedings in respect of the DPP's consent to the prosecutions;
4) whether as a matter of interpretation subsections (1) and (3) of section 16A of the Act of 1989 create a reverse legal burden;
5) if question (4) is answered in the affirmative, is the reverse legal burden incompatible with article 6(2) of the Convention?
Issue 1: Parliamentary Sovereignty
My Lords, counsel for the DPP emphasised the principal features of the Human Rights Act 1998, which received the Royal Assent on 9 November 1998. The Act of 1998 will, when its substantive provisions come into force on 2 October 2000, give effect to Convention rights in domestic law. Section 3(1) enacts a strong interpretative obligation. It provides:
Section 4 empowers specific courts to make a declaration of incompatibility where such a court determines, notwithstanding the duty under section 3(1), that the statutory provision is not compatible with a Convention right. Section 4(5) lists the courts which have this power: they do not include the Crown Court. Section 4(6)(a) adds that a declaration of incompatibility
Section 6(1) states that
Section 6(2) adds:
"Subsection (1) does not apply to an act if
Section 7(1) identifies the procedural means by which section 6 may be enforced:
a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
b) rely on the Convention right or rights concerned in any legal proceedings,
Section 22(2) states that specified provisions of the Act and section 22 itself come into force on the passing of the 1998 Act. Section 22(3) states that the other provisions of the Act come into force on such day as the Secretary of State may by order appoint.
Section 22(4) states:
Section 22(4) is itself already in force as part of section 22. But section 7, to which it relates, is not yet in force. The Government has announced that it plans to bring the central provisions of the Act of 1989 into force on 2 October 2000.
It is crystal clear that the carefully and subtly drafted Human Rights Act 1998 preserves the principle of Parliamentary sovereignty. In a case of incompatibility, which cannot be avoided by interpretation under section 3(1), the courts may not disapply the legislation. The court may merely issue a declaration of incompatibility which then gives rise to a power to take remedial action: see section 10.
The Divisional Court was, of course, fully aware of the scheme of the Act of 1998 and of the fact that its main provisions are still not in force. Indeed the Lord Chief Justice expressly accepted in his judgment, at p. 186, the following part of the argument advanced on behalf of the DPP:
Nevertheless, the Attorney-General and Mr Pannick strenuously argued before the House that the judgment of the Divisional Court is in conflict with the principle of parliamentary sovereignty in the context of unambiguous primary legislation, viz section 16A. They submitted that the effect of the judgment was to invite the DPP to disapply primary legislation. In my view this argument is mistaken and fails to do justice to the reasoning of the Divisional Court. The Lord Chief Justice pointed out that in the present case the Director wished to know where he stood on the issue of compatibility of the legislation. The DPP sought and relied on legal advice on that issue. The Lord Chief Justice said that if the advice was wrong, the DPP should have the opportunity to reconsider the confirmation of his advice on a sound legal basis. As the Lord Chief Justice observed this approach is consistent with the judgment of Lord Hope of Craighead in Reg. v. Secretary of State for the Home Department, Ex parte Launder  1 WLR 839, at 867. In Launder Lord Hope observed: "If the applicant is to have an effective remedy against a decision [on extradition] which is flawed because the decision-maker has misdirected himself on the Convention which he himself says he took into account, it must surely be right to examine the substance of the argument." I respectfully agree. There was no infringement of the principle of Parliamentary sovereignty. I would reject this argument of the DPP.
Before I leave this part of the case it is necessary to refer to a sub-issue which arose on this appeal. The Lord Chief Justice adverted to the possibility of the trial resulting in convictions and appeals subsequently being lodged. He then observed [at 187C]:
On appeal to the House, but not in the Divisional Court, Mr Pannick argued that section 22(4), read with section 7(1)(b), is apt only to extend to the trial. It was an argument of some technicality. The language of the statute does not compel its adoption and a construction which treats the trial and the appeal as parts of one process is more in keeping with the purpose of the Convention and the Act of 1998. It is the sensible and just construction. I would reject the argument advanced on behalf of the DPP on this point.
Issue 2: Legitimate Expectations
Mr Lords, in their Case the Respondents submitted that in the light of section 22(4) read in the context of the Act of 1989, the Respondents have a legitimate expectation that pending the coming into force of the central provisions of the Act of 1998, the DPP would not give his consent to a prosecution which would violate Article 6. In cogently expressed reasoning the Divisional Court rejected this submission. In a carefully structured oral argument Lord Lester of Herne Hill Q.C., who appeared for the Respondents, did not press this argument. There is a clear statutory intent to postpone the coming into effect of central provisions of the Act. A legitimate expectation, which treats inoperative statutory provisions as having immediate effect, is contradicted by the language of the statute. This argument must be rejected.
Issue 3: Section 29(3)
Section 29(3) of the Supreme Court Act 1981 provides:
The DPP contends that section 29(3) of the Supreme Court Act 1981 is applicable and that it deprives the Divisional Court of power to entertain the present applications for judicial review. The purpose of section 29(3) was explained by Lord Bridge of Harwich in In re Smalley  A.C. 622, at 642-643, as follows:
This explanation was approved by Lord Slynn of Hadley (speaking for a unanimous House) in In re Ashton  1 A.C. 9,17. Mr Pannick argues that judicial review of a decision to prosecute is as likely to cause delay to criminal proceedings as judicial review of a decision of the Crown Court. Moreover, he says the decision to prosecute is inextricably linked with the trial itself, the complaint being that the judge will direct the jury in terms about which the Respondents complain. All this is true. But section 29(3) circumscribes the jurisdiction of the High Court. And the plain language of section 29(3) is only apt to exclude the High Court's jurisdiction in respect of orders directed to and affecting the Crown Court's exercise of its jurisdiction in matters relating to trial on indictment. On this point of interpretation I would accept the reasoning of the Lord Chief Justice and of Laws L.J. But Mr Pannick further submitted, that if section 29(3) is not applicable, the matter is covered by a common law principle which limits the High Court's exercise of discretion to entertain judicial review proceedings of a decision to prosecute. He acknowledged that this principle leaves untouched the jurisdiction of the High Court. But he contended that there is a common law principle that, absent dishonesty or mala fides or some other wholly exceptional circumstance, the High Court will as a matter of discretion not entertain judicial review proceedings of a decision to prosecute. There are some dicta to this effect: Reg. v. Panel on Takeovers and Mergers, Ex parte Fayed  B.C.C. 524, at p. 536; Reg. v. Chief Constable of Kent, Ex parte L  1 All E.R. 756, 770-771 and Elguzouli-Daf v. Commissioner of Police of the Metropolis  QB 335.
For my part I would not wish to base my decision on these observations. In the opposite case, namely a decision not to prosecute, judicial review is available: see Reg. v. Director of Public Prosecutions, Ex parte C.  1 Cr. App. R. 136. That is, however, a wholly different situation because in such a case there is no other remedy. Counsel for the Respondents also relied on Reg. v. Bedwellty Justices, Ex parte Williams  A.C. 225 where the House of Lords quashed a Magistrates Court's decision to commit a defendant on inadmissible evidence. A Magistrates' Court is, however, an inferior court. The present case involves a decision by the DPP in respect of a trial pending in the Crown Court which is a superior court. The decision of the House in Williams has no bearing on the problem before the House.
The starting point must be the analogical force of the statute which excludes the High Court's power to review decisions of the Crown Court. Thus section 29(3) would prohibit an application for judicial review of the decision of the Crown Court judge refusing to hold a prosecution to be an abuse of process by reason of an alleged breach of the Convention. It would be curious if the same issue could be raised in the Divisional Court by means of a challenge to the decision of the prosecutor to proceed with the prosecutions. The policy underlying the statute would be severely undermined if it could be outflanked by framing the case as a challenge to the prosecutor's decision to enforce the law rather than as a challenge to the decision of the Crown Court judge to apply the law. It is also noteworthy that it is rightly conceded that once the Act of 1998 is fully in force it will not be possible to apply for judicial review on the ground that a decision to prosecute is in breach of a Convention right. The only available remedies will be in the trial process or on appeal. It would be strange if in the interim period between the enactment of the Act of 1998 and the coming into force of its central provisions defendants in criminal trials were entitled to an additional remedy by way of judicial review. Given that reverse legal burden provisions appear in other legislation, the entertaining of such challenges outside the trial and appeal process might seriously disrupt the criminal justice system. Moreover, when section 6 of the Convention becomes part of our law, it will be the prism through which other aspects of our criminal law may have to be re-examined. If the Divisional Court's present ruling is correct, it will be possible in other cases, which do not involve reverse legal burden provisions, to challenge decisions to prosecute in judicial review proceedings. The potential for undermining the proper and fair management of our criminal justice system may be considerable.
Counsel for the Respondents accepted that there is a common law principle independent of section 29(3) which provides a strong presumption against the Divisional Court entertaining a judicial review application where the complaint can be raised within the criminal trial and appeal process. Counsel persuaded the Divisional Court that section 16A undermines the presumption of innocence in a blatant and obvious way. And that was also his submission before the House. He further submitted that the respondents have no effective remedy in the criminal trial or on appeal. Counsel for the DPP has persuaded me that this complaint is overstated. In the first place counsel for the Respondents are free to submit when the trial against the Respondents is continued that section 16A(1) and (3) should not be interpreted as provisions reversing the legal burden, with the risk of a defendant being convicted even if the jury is in doubt about terrorist intent. This argument involves treating the word "prove" in section 16A (3) as placing only an evidential burden on a defendant. The basis of such an argument was explained by Glanville Williams, The Logic of "Exceptions,"  C.L.J. 261 at 264-265. The thrust of the argument is that the real intent of such a provision is to impose on the defendant the burden of neutralising a prima facie presumption. That indeed is what counsel for the Respondents argued before the House. This is a respectable argument which is reinforced by the disfavour with which reverse legal burden provisions have been regarded by the Privy Council in Attorney-General of Hong Kong v. Lee Kwong-kut  A.C. 951 and leading judgments in other countries: see, for example, Reg. v. Whyte (1988) 51 D.L.R. (4th) 481, at 493; R. v. Oakes (1986) 26 D.L.R. (4th) 200; State v. Mbatha  2 L.R.C. 208, at 218. If the trial judge rules against the Respondents on this issue, and they are convicted, they will be able to raise this issue on appeal. Moreover, if the Respondents are convicted, they might also be able to challenge the DPP's interpretation by inviting the Court of Appeal (Criminal Division) to interpret section 16A(1) and (3) compatibly with their Convention right under article 6(2). This assumes that the Act of 1989 will by then be in operation. Given that the trial will apparently be a long one this seems a realistic assumption. Secondly, if this is indeed as blatant and obvious a case as counsel for the Respondents contends, it may arguably be open to the Respondents to submit that the prosecution is an abuse of process inasmuch as it is so unfair and wrong that the court should not allow a prosecutor to proceed with it: Hui Chi-ming v. The Queen  1 A.C. 34, at 57; Attorney-General of Trinidad and Tobago v. Phillip  1 A.C. 396, at 417 C-D. I express no view on the likely outcome of any such arguments. But it is not right to say that the Respondents are entirely without remedy in the criminal process.
Looking at the matter more broadly there is also an implausibility at the heart of the Respondents' case. They seek judicial review on the ground that the DPP's consent involves an error of law, namely that the prosecution is compatible with article 6(2) of the Convention. But the DPP may sometimes not have a concluded view of any kind. But he may nonetheless be persuaded that, despite some uncertainty about the law, a prosecution is justified as being in the public interest. There could then be no question of reviewing his decision for error of law. So far as Laws L.J. held that the DPP is at this stage legally bound to form a view on the issue of compatibility I would respectfully disagree: at 197F and 198F. And, if he is not so bound, why should his decision to consent to a prosecution be amenable to judicial review if he arrives at a firm view? After all, such a matter ought not to depend on the degree of confidence in the legal position of the DPP or his counsel. Moreover, it would be odd to allow the possibility of judicial review of the DPP's decision to prosecute to depend on the error being blatant and obvious. That excludes the case where this threshold test is not met. It is difficult to see on what principle such a distinction rests. It gives the appearance of introducing into our public law categories of illegality.
My Lords, I would rule that absent dishonesty or mala fides or an exceptional circumstance, the decision of the DPP to consent to the prosecution of the Respondents is not amenable to judicial review. And I would further rule that the present case falls on the wrong side of that line. While the passing of the Human Rights Act 1998 marked a great advance for our criminal justice system it is in my view vitally important that, so far as the courts are concerned, its application in our law should take place in an orderly manner which recognises the desirability of all challenges taking place in the criminal trial or on appeal. The effect of the judgment of the Divisional Court was to open the door too widely to delay in the conduct of criminal proceedings. Such satellite litigation should rarely be permitted in our criminal justice system. In my view the Divisional Court should have dismissed the Respondents' application.
Issues (4) and (5): Interpretation and Compatibility of Section 16A with Article 6(2)
Given the conclusion I have arrived at it would be wrong to express concluded views on issues (4) and (5). But as I have made clear I regard those issues as arguable. The effect is that those issues are undecided and entirely open at all levels in the criminal proceedings.
The Disposal of the Appeal
My Lords, I would allow the appeal and quash the orders of the Divisional Court.
LORD COOKE OF THORNDON
Having had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn, I am in general agreement with it and can confine my added observations to the following.
As the argument of this appeal developed, the main thrust of the submissions for the appellant appeared to change. In Mr. Pannick Q.C.'s reply the contention put in the forefront was based on the undesirability of satellite litigation attending cases to be tried on indictment. It was said that the present criminal proceedings should not be interfered with by way of judicial review: that the trial and, if necessary, appeal processes should provide adequate remedies for the defendants if their human rights are violated. A risk of imminent violation could no doubt be dealt with similarly at the trial or on appeal.
To that contention I am willing to accede, although other parts of the argument in support of the present appeal appear to me more questionable. There seems to be no sound reason why, in principle, a consent given by the Director of Public Prosecutions should not be open to judicial review - although the concept of a continuing consent may want something in accuracy - but, in a case where it is obvious that the Director wishes a charge to go to trial, I think that the courts should be very slow to allow review of a consent to be used as a device for resolving points which would otherwise be dealt with in the ordinary course of the criminal proceedings. As a general rule, proceedings on indictment should not be delayed by collateral challenges. But, as Lord Bingham of Cornhill C.J.  3 WLR 175, 183-184 pointed out, there are cases where that cannot be avoided. The Lord Chief Justice cited Reg. v. Bedwellty Justices, Ex parte Williams  A.C 225, where a committal for trial in the Crown Court was quashed on judicial review. The relevant part of that decision of your Lordships' House was that the indictment process offered no way of curing the breach of the defendant's right to cross-examine witnesses before the examining justices. No equivalent feature is to be found in the present case.
In the present case I am the more ready to apply the general rule because I cannot help thinking that there is a degree of inconsistency in the Divisional Court's approach. They held that section 16A of the Prevention of Terrorism (Temporary Provisions) Act 1989 is repugnant to article 6.2 of the European Convention on Human Rights, and that in acting on a contrary view the Director had proceeded unlawfully. They had regard to the circumstance that, when the Human Rights Act 1998 is brought into force, section 7(1)(b) will have retrospective effect by virtue of section 22(4). But they felt bound in interpreting section 16A of the Act of 1989 to adopt the natural and ordinary meaning rather than the new rule of interpretation laid down by section 3(1) of the Human Rights Act.
My Lords, I see great force in the Divisional Court's view that on the natural and ordinary interpretation there is repugnancy. To introduce concepts of reasonable limits, balance or flexibility, as to none of which article 6.2 says anything, may be seen as undermining or marginalising the philosophy embodied in the straightforward provision that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. On its face section 16A of the Act of 1989 enables a person to be found guilty of a very serious offence merely on reasonable grounds of suspicion. It may be highly inconvenient that this should not be permissible, an inconvenience brought out by the list of broadly comparable provisions to be given by my noble and learned friend Lord Hope of Craighead, but at best it is doubtful whether article 6.2 can be watered down to an extent that would leave section 16A unscathed. The judgment of the Privy Council delivered by Lord Woolf in Attorney-General of Hong Kong v. Lee Kwong-kut  A.C. 951 strongly suggests that it cannot. One cannot exclude the possibility, however, that the European Court of Human Rights, whose jurisprudence in the field is not yet extensively developed, may be prepared to treat terrorism as a special subject or perhaps to found a reading down on "according to law".
But I am constrained to part company with the Divisional Court on their putting aside of section 3(1) of the Human Rights Act. In my respectful view, it is not altogether logical, nor is it necessary, to consider the likely impact of the other main provisions of that Act on United Kingdom law without taking into account also section 3(1), which is a key element in the Act.
When the whole Act comes into force, the new canon of interpretation will be that, 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. This is a strong adjuration. It seems distinctly possible that it may require section 16A of the Act of 1989 to be interpreted as imposing on the defendant an evidential, but not a persuasive (or ultimate), burden of proof. I agree that such is not the natural and ordinary meaning of section 16A(3). Yet for evidence that it is a possible meaning one could hardly ask for more than the opinion of Professor Glanville Williams in The Logic of "Exceptions"  C.L.J. 261, 265 that "unless the contrary is proved" can be taken, in relation to a defence, to mean "unless sufficient evidence is given to the contrary;" and that the statute may then be satisfied by "evidence that, if believed and on the most favourable view, could be taken by a reasonable jury to support the defence."
I must not conceal that in New Zealand the Glanville Williams approach was not allowed to prevail in R. v. Phillips  3 N.Z.L.R. 175. But, quite apart from the fact that the decision is of course not authoritative in England, section 6 of the New Zealand Bill of Rights Act 1990 is in terms different from section 3(1) of the Human Rights Act 1998. The United Kingdom subsection, read as a whole, conveys, I think, a rather more powerful message.
As this case has reached this House, there would appear to be something to be said for a resolution by your Lordships now of the question whether, when section 3(1) and the rest of the Human Rights Act is in force, it will be possible for provisions such as section 16A of the Act of 1989 to be read and given effect in a way which is compatible with the Convention rights. But the possibility of such a resolution had apparently not been foreseen by counsel; the argument on section 3(1) was by no means as full as is desirable if the effect of so major a new canon of interpretation is to be settled; and I accept that it would be premature to embark on the question. It should be left to be dealt with in this case, as far as may be found just or expedient, by the trial judge and on any subsequent appeals.
My only reservation is that, as I understood Mr.Pannick to suggest, the question should be treated as truly open to the trial judge on a renewed abuse of process application or otherwise, and thereafter, if necessary, in the Court of Appeal, Criminal Division, and your Lordships' House. That is to say, observations in this case or other cases should not be treated as at all fettering the trial judge or subsequent courts. Otherwise a catch-22 situation could arise in which, although the House allows this appeal on the ground that the defendants have their proper remedy in the course of the trial and appellate process, attempts to obtain any form of remedy or lightening of the defence onus are already destined to failure.
Subject to that caveat, I would allow the appeal.
LORD HOPE OF CRAIGHEAD
These proceedings have been brought to challenge by judicial review in the Divisional Court the decision of the Director of Public Prosecutions to consent to the institution of criminal proceedings against the respondents under section 16A of the Prevention of Terrorism (Temporary Provisions) Act 1989 which was inserted by section 82 of the Criminal Justice and Public Order Act 1994.
When the relevant legislation was being considered in Parliament in 1994 the focus was on familiar problems associated with terrorism in Northern Ireland. Similar provisions had been in force in the Province since 1973. It was also being considered before the initiatives were taken by the present Government which led to the enactment on 9 November 1998 of the Human Rights Act 1998. The circumstances in which your Lordships are now being asked to consider the effect of the legislation require it to be subjected to a more exacting scrutiny. We are dealing in this case with allegations that the respondents, who are all Algerian nationals, were involved with terrorism in Algeria. The security situation in that country creates difficulties for the defence in obtaining evidence to rebut these allegations which would not arise if that evidence were being sought in this country or in Ireland. Furthermore, although the 1998 Act is not yet in force, the vigorous public debate which accompanied its passage through Parliament has already had a profound influence on thinking about issues of human rights. It is now plain that the incorporation of the European Convention on Human Rights into our domestic law will subject the entire legal system to a fundamental process of review and, where necessary, reform by the judiciary.
In Attorney-General of Hong Kong v. Lee Kwong-kut  A.C. 951, 966 Lord Woolf referred to the general approach to the interpretations of constitutions and bills of rights indicated in previous decisions of the Board, which he said were equally applicable to the Hong Kong Bill of Rights Ordinance 1991. He mentioned Lord Wilberforce's observation in Minister of Home Affairs v. Fisher  AC 319, 328 that instruments of this nature call for a generous interpretation suitable to give to individuals the full measure of the fundamental rights and freedoms referred to, and Lord Diplock's comment in Attorney-General of The Gambia v. Momodou Jobe  A.C. 689, 700 that a generous and purposive construction is to be given to that part of a constitution which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled. The same approach will now have to be applied in this country when issues are raised under the 1998 Act about the compatibility of domestic legislation and of acts of public authorities with the fundamental rights and freedoms which are enshrined in the Convention.
The primary focus of attention in this case is upon the continuing decision of the Director. If the 1998 Act were in force, the appropriate remedy would be to raise at the trial or on appeal under section 7 of that Act the question whether, in terms of section 6(1) of the Act, he was acting or had acted in a way which was incompatible with a Convention right. That in turn would require section 16A of the 1989 Act as amended to be construed, in terms of section 3(1) of the 1998 Act, so far as it was possible to do so in a way which was compatible with Convention rights. But, as the legislation is not yet in force, we have not reached that stage. The procedures which are to be provided under section 7 are not yet available. So the issue as to compatibility was first raised at the trial in the context of an argument that there was an abuse of process. A ruling on the issue was sought from the trial judge. The Director decided to maintain his consent to the prosecutions on legal advice, after the trial judge had ruled that section 16A was incompatible with the presumption of innocence guaranteed by article 6(2) of the Convention. The trial was then adjourned on the grounds of late service of evidence by the Crown Prosecution Service, whereupon applications for judicial review of the Director's decision were made in the Divisional Court.
Among the detailed reasons which Lord Bingham C.J. gave for granting the applications was the following:  3 WLR 175, 187F:
I respectfully agree with this observation and with the process of reasoning on which it was based. I also agree that a review of the soundness of the Director's decision would not conflict in any way with the principle of Parliamentary sovereignty. The Director was not being asked to treat section 16A as if it had never been enacted. What he was being asked to do was to reconsider, on a sound legal basis, his decision as to whether prosecutions under that section should be authorised. If the advice on which he relied was unsound, the respondents were entitled to an effective remedy against that decision as soon as this was practicable.
At first sight, the obvious way of achieving this once the trial had been adjourned was to apply for judicial review in the Divisional Court. I am not aware of any other process under English law by which a remedy could be given during the adjournment of a trial. But the fact that it has not been the practice to bring a consent to a prosecution under judicial review means that no example of such an application could be cited to us as a precedent. Furthermore, for all the reasons which my noble and learned friend Lord Steyn has given, there are strong grounds for the view that, in the absence of dishonesty, bad faith or some other exceptional circumstance, the Director's decisions to consent or not to consent to a prosecution are not amenable to judicial review in that court. To this must be added the fact that the process of judicial review could do no more than require the Director to reconsider his decision. It could not require him to change his view. It would fall short of providing a remedy which is as effective as that which could be provided by the trial judge during the trial process or on appeal.
With regret, therefore, I have come to the conclusion that the appeals must be allowed on this ground and that the applications must be dismissed.
Nevertheless I consider that the issues which have been raised in this appeal, and which were fully and ably argued on both sides, are so important to a consideration of the impact of article 6(2) of the Convention upon so many of the statutory provisions which are to be found in our criminal law that the opportunity ought be taken to set out and review the competing arguments on this issue. I have in mind the fact that, while the Human Rights Act 1998 will not come into force in the United Kingdom until 2 October 2000, the Scotland Act 1998 is now in force. The Scottish Parliament has already embarked upon its first legislative programme, and members of the Scottish Executive are already taking decisions in the exercise of their functions under the Act. Legislation by the Scottish Parliament will be outside its legislative competence if it is incompatible with any of the Convention rights: section 29(2)(d) of the Scotland Act 1998. Members of the Scottish Executive have no power to make any subordinate legislation or to do any other act if to do so would be incompatible with any of the Convention rights: section 57(2) of that Act.
The Divisional Court held that the provisions of section 16A of the 1989 Act as amended violated the presumption of innocence and that they were thus repugnant to article 6(2) of the Convention. The legislative techniques which these provisions have employed are however not unique to that Act. The implications of that decision do not stop there. It is likely that the compatibility with article 6(2) of a large number of other statutory provisions, both in United Kingdom legislation and in legislation applying only to Scotland, will be called into question as decisions are taken as to whether to prosecute, or to continue to prosecute. Under Scottish criminal procedure these questions can be brought under the review of the High Court of Justiciary and dealt with by providing an effective remedy in the course of the criminal process at any time. A prolonged period of uncertainty as to whether these provisions are enforceable is undesirable.
The Presumption of Innocence
Article 6(2) of the Convention contains this declaration:
As a statement of fundamental principle that declaration is wholly consistent with the common law of both England and Scotland. In the well-known words of Viscount Sankey L.C. in Woolmington v. director of Public Prosecutions  AC 462, 481:
In Slater v. H.M. Advocate, 1928 J.C. 94, 105 the High Court of Justiciary took the opportunity, in the first appeal to come before the Court under the Criminal Appeal (Scotland) Act 1926, to say:
The only exception to this rule which the common law has recognised, as Viscount Sankey noted, is in regard to the defence of insanity. The judges throughout the United Kingdom have resisted the temptation to extend that exception to the defence of automatism: Bratty v. Attorney-General for Northern Ireland 1991 A.C. 386; Ross v. H.M. Advocate, 1991 JC 210. In Hill v. Baxter  1 Q.B. 277, 285 Devlin J. said:
The reason for the shifting of the burden in the case of the defence of insanity is that, as Viscount Kilmuir L.C. explained in Bratty's case at p. 407, normally the presumption of mental capacity is sufficient to prove that the accused acted consciously and voluntarily. The presumption is one of sanity, not responsibility. Although the prosecution need go no further to prove that the accused has mental capacity, it must nevertheless discharge the legal burden of proving mens rea: see Ross v. H.M. Advocate, at p. 221. As the presumption of innocence continues to occupy such a fundamental place in the common law, the judges have ensured that all common law presumptions which form part of the law of evidence are subordinated to this principle. An example is the rule of evidence in Scots law that, if the accused is found in possession of recently stolen goods in criminative circumstances, he must displace the inference of guilt raised by these circumstances. These rules do not place a burden of proof on the accused which he has to discharge on a balance of probabilities. All the accused has to do is raise a reasonable doubt as to his guilt. That is not to say that these evidential rules are insignificant. In many cases they can have a vital bearing on the outcome of the trial, depending on how easy or how difficult it is for the accused to rebut the presumption. But the burden of proving his guilt beyond reasonable doubt remains with the prosecution throughout the trial. It has not been suggested in this case that these common law evidential presumptions are incompatible with the presumption of innocence.
The difficulty lies in the area of legislation by Parliament. As Viscount Sankey L.C. noted in Woolmington v. Director of Public Prosecutions, it has always been open to Parliament by way of a statutory exception to transfer the onus of proof as to some matter arising in a criminal case from the prosecution to the accused. Glanville Williams, The Proof of Guilt (3rd ed., 1963), p. 184 observed that Parliament regards the principle with indifference. That may be overstating the matter; but it is clear that until now, under the doctrine of sovereignty, the only check on Parliament's freedom to legislate in this area has been political. All that will now change with the coming into force of the Human Rights Act 1998. But the change will affect the past as well as the future. Unlike the constitutions of many of the countries within the Commonwealth which protect pre-existing legislation from challenge under their human rights provisions, the 1998 Act will apply to all leislation, whatever its date, in the past as well as in the future.
The first stage in any inquiry as to whether a statutory provision is vulnerable to challenge on the ground that it is incompatible with article 6(2) of the Convention is to identify the nature of the provision which is said to transfer the burden of proof from the prosecution to the accused. Various techniques have been adopted. Some provisions are more objectionable than others. The extent to which they encroach upon the presumption of innocence depends upon the legislative technique which has been used. The field can be narrowed considerably by means of this preliminary analysis.
It is necessary in the first place to distinguish between the shifting from the prosecution to the accused of what Glanville Williams at pp. 185-186 described as the "evidential burden", or the burden of introducing evidence in support of his case, on the one hand and the "persuasive burden", or the burden of persuading the jury as to his guilt or innocence, on the other. A "persuasive" burden of proof requires the accused to prove, on a balance of probabilities, a fact which is essential to the determination of his guilt or innocence. It reverses the burden of proof by removing it from the prosecution and transferring it to the accused. An "evidential" burden requires only that the accused must adduce sufficient evidence to raise an issue before it has to be determined as one of the facts in the case. The prosecution does not need to lead any evidence about it, so the accused needs to do this if he wishes to put the point in issue. But if it is put in issue, the burden of proof remains with the prosecution. The accused need only raise a reasonable doubt about his guilt.
Statutory presumptions which place an "evidential" burden on the accused, requiring the accused to do no more than raise a reasonable doubt on the matter with which they deal, do not breach the presumption of innocence. They are not incompatible with article 6(2) of the Convention. They take their place alongside the common law evidential presumptions which have been built up in the light of experience. They are a necessary part of preserving the balance of fairness between the accused and the prosecutor in matters of evidence. It is quite common in summary prosecutions for routine matters which may be inconvenient or time-consuming for the prosecutor to have to prove but which may reasonably be supposed to be within the accused's own knowledge to be dealt with in this way. It is not suggested that statutory provisions of this kind are objectionable.
Statutory presumptions which transfer the "persuasive" burden to the accused require further examination. Three kinds were identified by the respondents in their written case. I am content to adopt their analysis, which Mr Pannick Q.C. for the Director did not dispute. First, there is the "mandatory" presumption of guilt as to an essential element of the offence. As the presumption is one which must be applied if the basis of fact on which it rests is established, it is inconsistent with the presumption of innocence. This is a matter which can be determined as a preliminary issue without reference to the facts of the case. Secondly, there is a presumption of guilt as to an essential element which is "discretionary". The tribunal of fact may or may not rely on the presumption, depending upon its view as to the cogency or weight of the evidence. If the presumption is of this kind it may be necessary for the facts of the case to be considered before a conclusion can be reached as to whether the presumption of innocence has been breached. In that event the matters cannot be resolved until after trial.
The third category of provisions which fall within the general description of reverse onus clauses consists of provisions which relate to an exemption or proviso which the accused must establish if he wishes to avoid conviction but is not an essential element of the offence. In Reg. v. Edwards  Q.B. 27 a provision of this kind was held to impose a burden of proof on the defendant to establish on the balance of probabilities that he had a licence for the sale of the intoxicating liquor. Lawton L.J. said, at pp. 39-40, when giving the judgment of the court ,that this exception to the fundamental rule that the prosecution must prove every element of the offence charged was limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with special qualifications or with the licence or permission of specified authorities. In Reg. v. Hunt (Richard)  A.C. 352, 375 Lord Griffiths emphasised the special nature of these provisions when he said that he had little doubt that the occasions upon which a statute will be construed as imposing a burden of proof upon a defendant which did not fall within this formulation are likely to be exceedingly rare. These provisions may or may not violate the presumption of innocence, depending on the circumstances.
Two further important points need to be made about this classification. The first is that this is not an exact science. The provisions vary so widely in their detail as to what the prosecutor must prove before the onus shifts, and their effect on the presumption of innocence depends so much on circumstances. These matters may not be capable of being fully assessed until after the trial. The best that can be done, by way of a preliminary examination, is to see whether the legislative technique which has been adopted imposes a persuasive or merely an evidential burden, whether it is mandatory or discretionary and whether it relates to an essential element of the offence or merely to an exception or proviso. The second is that, even if the conclusion is reached that prima facie the provision breaches the presumption of innocence, that will not lead inevitably to the conclusion that the provision is incompatible with article 6(2) of the Convention. The European jurisprudence, which I shall examine later, shows that other factors need to be brought into consideration at this stage. In my opinion, for reasons which I shall explain, the Divisional Court did not attach sufficient weight to these factors.
The Discretionary Area of Judgment
This brings me to another matter on which there was a consensus between counsel and which, I believe, needs now to be judicially recognised. The doctrine of the "margin of appreciation" is a familiar part of the jurisprudence of the European Court of Human Rights. The European Court has acknowledged that, by reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed to evaluate local needs and conditions than an international court:Buckley v. United Kingdom (1996) 23 EHRR 101, 129, paras. 74-75. Although this means that, as the European Court explained in Handyside v. United Kingdom (1976) 1 EHRR 737, 753, para. 48, "the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights", it goes hand in hand with a European supervision. The extent of this supervision will vary according to such factors as the nature of the Convention right in issue, the importance of that right for the individual and the nature of the activities involved in the case.
This doctrine is an integral part of the supervisory jurisdiction which is exercised over state conduct by the international court. By conceding a margin of appreciation to each national system, the court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of the national courts also the Convention should be seen as an expression of fundamental principles rather than as a set of mere rules. The questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality.
In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention. This point is well made at p. 74, para. 3.21 of Human Rights Law and Practice (Butterworths, 1999), of which Lord Lester of Herne Hill Q.C. and Mr David Pannick Q.C. are the General Editors, where the area in which these choices may arise is conveniently and appropriately described as the "discretionary area of judgment." It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection. But even where the right is stated in terms which are unqualified the courts will need to bear in mind the jurisprudence of the European Court which recognises that due account should be taken of the special nature of terrorist crime and the threat which it poses to a democratic society: Murray v. United Kingdom (1994) 19 EHRR 193, 222, para. 47.
Section 16A of the 1989 Act
Section 16A creates an offence which is described in the side note as possession of articles for suspected terrorist purposes. It is made up of six subsections, of which those which are relevant to the issues raised by article 6(2) of the Convention are subsections (1), (3) and (4). Subsection (1) creates the offence. It is based on reasonable suspicion. All the prosecution has to do is prove that the accused was in possession of the article in circumstances which give rise to a reasonable suspicion that they were in his possession for a purpose connected with terrorism. Although the essence of the offence is the possession of articles for a purpose connected with terrorism, the prosecution does not have to prove that that was in fact the purpose. There is therefore a presumption that this was the purpose. It takes effect once circumstances giving rise to a reasonable suspicion have been proved.
The severity of this approach is tempered by subsection (3). It provides that it is a defence for the accused to prove that the article was not in his possession for a terrorist purpose. Nothing is said expressly about the burden or standard of proof. But Mr Pannick accepted that, according to the ordinary principles of construction, this provision has the effect of transferring the burden of proof as to the purpose for which the article was in his possession to the accused. Then there is subsection (4). This deals with the question of possession. In the ordinary case knowledge and control are essential elements which the prosecutor must prove in order to show that the accused was in possession of an article. This subsection enables a court to find these facts to been established by evidence that the accused and the article were both present in any premises or that the article was in premises of which he was the occupier or habitual user, unless he proves that he did not know of its presence in the premises or, if he did know, that he had no control over it. The burden of proving lack of knowledge or control is on the accused. But the court is told only that it "may" draw the inference, not that it must do so. In view of the width of the meaning which is given to the expression "premises", the question whether it would be right for the court to rely on the evidence described in subsection (4) as sufficient evidence will obviously vary according to the circumstances.
According to the classification which I have outlined, subsection (3) of section 16A imposes a persuasive burden of proof on the accused, on a balance of probabilities, that the article was not in his possession for a purpose connected with terrorism. If that burden is not discharged, or the accused elects not to undertake it, subsection (1) contains a mandatory presumption that the article was in his possession for a purpose connected with terrorism which is applied if the prosecutor proves that it was in his possession in circumstances giving rise to a reasonable suspicion that it was in his possession for that purpose. Subsection (4) imposes a persuasive burden of proof on the accused that he did not know that the article was in the premises or, if he did, that he had no control over it. If that burden is not discharged, or the accused elects not to undertake it, the subsection contains a discretionary presumption that he was in possession of the article.
Lord Lester Q.C. for the respondents recognised the discretionary nature of the persuasive burden in subsection (4) of section 16A. He also recognised the force of the decision of the Court of Appeal in Northern Ireland in Reg. v. Killen  N.I. 220, in which it was held that an identical provision in section 7(1) of the Northern Ireland (Emergency Provisions) Act 1973 placing an onus on the accused to disprove his knowledge of possession should not be used unless, having done so, the court would be left satisfied beyond reasonable doubt of the guilt of the accused. So he did not press the argument which was advanced in the Divisional Court that subsection (4) was in breach of the presumption of innocence. Mr Weatherup Q.C. explained that in practice the application of section 7(1) of the 1973 Act was treated as a discretionary matter in Northern Ireland, with the result that it was not always necessary for the accused to provide an explanation in reply to the Crown case. But Lord Lester maintained his argument that that presumption was breached by subsections (1) and (3). In the Divsional Court Lord Bingham C.J.  3 WLR 175, 190 said that this section, and section 16B which is no longer in issue as the Director has discontinued proceedings against the fourth named respondent, undermined "in a blatant and obvious way" the presumption of innocence.
These techniques are however not unique to section 16A of the 1989 Act as amended. Section 16B(1) of that Act contains a provision which imposes the persuasive burden of proof of lawful authority or reasonable excuse on the accused. But there are a substantial number of other statutory offences triable in the Crown Court which place a persuasive burden of proof on the accused, coupled with a mandatory presumption of guilt if it is not discharged, in circumstances which fall outside the scope of the exception recognised in Reg. v. Edwards  Q.B. 27 and Reg. v. Hunt (Richard)  A.C. 352. Your Lordships were provided with an agreed list of these provisions. They comprise the Prevention of Corruption Act 1916, section 2; the Sexual Offences Act 1956, section 30(2); the Obscene Publications Act 1959, section 2(5); the Obscene Publications Act 1964, section 1(3); the Misuse of Drugs Act 1971, section 28; the Public Order Act 1986, sections 18(4), 19(2), 20(2), 21(3), 22(3)-(5) and 23(3); the Criminal Justice Act 1988, section 93D(6); the Prevention of Terrorism (Temporary Provisions) Act 1989, sections 10(2)-(3), 11(2), 16A(3), 16B(1) and 17(3)(a) and (3A)(a); the Official Secrets Act 1989, sections 1(5), 2(3), 3(4) and 4(4)-(5); and the Drug Trafficking Act 1994, sections 53(6) and 58(2)(a). To this list there may be added the Explosive Substances Act 1883, section 4(1): see Reg. v. Fegan  N.I. 80; Reg. v. Berry  A.C. 246. As Lord MacDermott L.C.J. said in Reg. v. Fegan at p. 82, the legislative problem which these provisions seek to address is how to curb a grave evil which postulates a guilty mind or mental element on the part of the offender, when proof of that guilty mind or mental element is likely to be a matter of inherent difficulty.
Mr Pannick submitted that decisions of the European Commission of Human Rights and of the European Court of Human Rights showed that article 6(2) was not seen as containing an absolute prohibition on statutory provisions which imposed a burden of proof on the accused, and that the Convention did not permit the court to review the legality of national legislation in the abstract but only with reference to particular cases after the proceedings are complete. Lord Bingham C.J. recognised in the Divisional Court that there was a measure of truth in this argument:  3 WLR 175, 189D. But he rejected it, on the view that the court was not precluded from considering the question of compatibility before the completion of the trial and that if, properly construed, a provision of domestic legislation truly infringes the presumption of innocence, any conviction based on that provision is likely, judged by the yardstick of the Convention, to be unsafe: p. 190A. Laws L.J. rejected it for similar reasons, on the ground that the compatibility or otherwise of the impugned legislation with article 6(2) fell to be judged by reference to the statutory provisions irrespective of the facts of the particular case: p. 201G.
I agree with both Lord Bingham C.J. and Laws L.J. that the national court is not precluded from considering the issue of compatibility before completion of the trial. There will, of course, be no question about this once the Human Rights Act 1998 is brought into force, and issues of compatibility are already being raised before trial in the Scottish courts under the Scotland Act 1998. In principle I can see no reason why, in a clear case where the facts of the case are of no importance, a decision that a provision is incompatible should not be capable of being taken at a very early stage. I do however, with great respect, part company with them on the question whether a finding that section 16A is incompatible with article 6(2) is inevitable.
Lord Lester's concession, in the light of the decision in Reg. v. Killen, that the discretionary presumption in subsection (4) could not reasonably be objected to at this stage deprives the Divisional Court's reasoning of some of its force. This leaves the more powerful objections to the provisions of subsections (1) and (3). But I think that even in their case there are good reasons for thinking that they may not be as damaging to the presumption of innocence as might at first sight appear. There is also the question of balance, as to the interests of the individual as against those of society. The Convention jurisprudence and that which is to be found from cases decided in other jurisdictions suggests that account may legitimately be taken, in striking the right balance, of the problems which the legislation was designed to address.
In Salabiaku v. France (1988) 13 E.H.R.R 379, the Court was concerned with an article in the Customs Code dealing with the smuggling of prohibited goods. Where possession of prohibited goods was established, the person was deemed liable for the offence of smuggling. Read strictly, the provision appeared to lay down an irrebutable presumption. The code did not provide expressly for any defence. But the Court held that there was no failure to comply with article 6(2), because in practice the courts were careful not to resort automatically to the presumption but exercised their power of assessment in the light of all the evidence. At p. 388, para. 28 the Court gave this guidance:
As a matter of general principle therefore a fair balance must be struck between the demands of the general interest of the community and the protection of the fundamental rights of the individual: see also Sporrong and Lönnroth v. Sweden (1982) 5 E.H.R.R. 35, 52, para. 69.
The guidance which was given in Salabiaku was applied by the Commission in H. v. United Kingdom, Application No 15023/89, in which the complaint was that the burden on the accused in criminal proceedings to prove insanity on the balance of probabilities was contrary to the presumption of innocence and in violation of article 6(2); and in Bates v. United Kingdom, Application No. 26280/95, in which the complaint was that article 6(2) had been violated by the presumption of fact in section 5(5) of the Dangerous Dogs Act 1991 by which it is to be presumed that the dog is one to which section 1 of that Act applies unless the contrary is shown by the accused. In the Bates case the Commission held that section 5(5) fell within reasonable limits, even in the light of what was at stake for the applicant, given the opportunity expressly provided to the defence to rebut the presumption of fact and that section 5(5) was applied in a manner compatible with the presumption of innocence. The cases show that, although article 6(2) is in absolute terms, it is not regarded as imposing an absolute prohibition on reverse onus clauses, whether they be evidential (presumptions of fact) or persuasive (presumptions of law). In each case the question will be whether the presumption is within reasonable limits.
Reference was made to cases from various jurisdictions in the Commonwealth, including the decisions of the South African Constitutional Court in State v. Zuma  1 L.R.C. 145 and State v. Mbatha  2 L.R.C. 208 and decisions of the Supreme Court of Canada. The Canadian jurisprudence is to be found primarily in the judgments of Dickson C.J.C. in Reg. v. Oakes (1986) 26 D.L.R. (4th) 200 and Reg. v. Whyte (1988) 51 D.L.R. (4th) 481. These judgments were carefully analysed by Lord Woolf in Attorney-General of Hong Kong v. Lee Kwong-kut  A.C. 951. As Lord Woolf has explained, at pp. 970-971, the Canadian approach when applying the Canadian Charter of Rights and Freedoms is to examine the matter in two stages: to see whether the provision in question has violated the presumption of innocence in section 11(d) of the Charter, and then to apply the limitation set out in section 1 of the Charter. Section 1 states that the rights and freedoms which it guarantees are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". In Reg. v. Oakes at p. 223 Dickson C.J.C. said that it was highly desirable to keep these two sections analytically distinct. In the result a strict approach is adopted to the question as to whether these has been a contravention of section 11(d). A degree of flexibility is applied at the second stage.
In the present case, as I have said, Lord Bingham C.J. reached the conclusion that section 16A undermined "in a blatant and obvious way" the presumption of innocence. In support of this view he quoted a passage from Dickson C.J.C.'s judgment in Reg. v. Whyte at p. 493 where he was dealing with the tests to be applied at the first stage. But he did not go on to examine the issues which would have been relevant, under the Canadian jurisprudence, at the second stage. This omission is important because, as Lord Woolf observed in Lee Kwong-kut, the Canadian courts, applying the two stage approach, tend to come to the same conclusion as would be reached in other jurisdictions. In my opinion the criticisms which can be made of section 16A in the light of the discussion by Dickson C.J.C. of the tests to be applied to determine whether the provision is in breach of the presumption of innocence do not complete the process of examination which must be conducted in order to determine whether that section violates article 6(2) of the Convention. The better approach to the Convention, as Lord Woolf said in the context of the Hong Kong Bill of Rights, will be to avoid the somewhat complex two stage approach which is involved in the Canadian process of reasoning. But he gave this further guidance at pp. 972-973
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.
Striking the balance
Section 16A(1) sets out what the prosecution must prove. It was suggested by Lord Lester that the onus on the prosecution was a light one, because all that had to be established was a "reasonable suspicion" that the article was in the accused's possession for a purpose connected with terrorism. He referred to Lord Devlin's observation in Hussien v. Chong Fook Kam  AC 942, 948:
But that was an action for false imprisonment, in which the question was whether a police officer was entitled to arrest the respondents without warrant on the ground that he had a reasonable suspicion that they had committed an offence. Lord Devlin was careful to explain the distinction between reasonable suspicion at the time of arrest and prima facie proof at the trial:
What subsection (1) requires is prima facie proof, not mere suspicion. The prosecution must lead evidence which is sufficient to prove beyond reasonable doubt (a) that the accused had the article in his possession and (b) that it was in his possession in circumstances giving rise to a reasonable suspicion that it was in his possession for a purpose connected with terrorism. Possession may be established with the benefit of the presumption in subsection (4), but the onus is on the prosecution to lead sufficient evidence to establish beyond reasonable doubt that the accused was in possession of the article at the time. Subsection (1) allows for a conviction on reasonable suspicion, but the onus is on the prosecution to lead sufficient evidence to establish beyond reasonable doubt that the circumstances are such that the inference of connection with terrorism is justified. It should not be thought that proof to this standard will be a formality.
Section 16A(3) sets out the defence. The onus is on the accused, but at least it can be said that the matter is not left to inference or to the discretion of the trial court. This is a defence which is provided for expressly by the statute. It has to be seen in the context of subsection (4). If the accused can show that he did not know that the article was in the premises or that he had no control over it, he can by giving evidence to that effect deprive the prosecution of the presumption that he was in possession of the article. He will only need to rely on subsection (3) if he was in possession of the article and the circumstances are such as to give rise to the reasonable suspicion mentioned in subsection (1). A sound judgment as to whether the burden which he has to discharge is an unreasonable one is unlikely to be possible until the facts are known. It is not immediately obvious that it would be imposing an unreasonable burden on an accused who was in possession of articles from which an inference of involvement in terrorism could be drawn to provide an explanation for his possession of them which would displace that inference. Account would have to be taken of the nature of the incriminating circumstances and the facilities which were available to the accused to obtain the necessary evidence. It would be one thing if there was good reason to think that the accused had easy access to the facts, quite another if access to them was very difficult.
Then there is the nature of the threat which terrorism poses to a free and democratic society. It seeks to achieve its ends by violence and intimidation. It is often indiscriminate in its effects, and sophisticated methods are used to avoid detection both before and after the event. Society has a strong interest in preventing acts of terrorism before they are perpetrated - to spare the lives of innocent people and to avoid the massive damage and dislocation to ordinary life which may follow from explosions which destroy or damage property. Section 16A is designed to achieve that end. It would not be appropriate for us in this case to attempt to resolve the difficult question whether the balance between the needs of society and the presumption of innocence has been struck in the right place. But it seems to me that this is a question which is still open to argument.
Had it not been for the fact that the Director's consent is not amenable to judicial review, I would have been inclined to think that the problem of compatibility which is raised by this case would have to await a decision after trial. That also is the consequence of the view which I have reached that, on other grounds, these applications must be dismissed.
LORD HOBHOUSE OF WOODBOROUGH
The circumstances under which these appeals have come before your Lordships' House are exceptional. They arise from the trial of the three Respondents (whom, my Lords, I will refer to as the 'defendants') at the Central Criminal Court on charges under s.16A of the Prevention of Terrorism (Temporary Provisions) Act 1989. The indictment particularised the offence as having had "in their possession chemical containers, radio equipment, manuals, documents, credit cards and sums of money in circumstances which give rise to a reasonable suspicion that the articles were in their possession for a purpose connected with the commission, preparation or instigation of acts of terrorism." The prosecution case was that the three defendants had been involved in sending such articles to terrorists in Algeria. The defences of the three defendants were different. Souidi denied being involved with the articles at all. Boukemiche denied having sent to Algeria any material capable of being used in military activity. Kebeline admitted having sent to Algeria at least some of the materials referred to but said that they were not intended for use in connection with terrorism; they were intended for use by members of the Islamic community in the Metidja region of Algeria in defending themselves against unlawful violence by state-sponsored militias.
At the outset of the trial, counsel for Kebeline submitted that the proceedings should be stayed because of the obstacles to obtaining from Algeria evidence to support his defence. The Judge did not accede to that application and the trial proceeded. The Crown opened the case in terms of s.16A(1) and called its evidence. At the close of the prosecution case, counsel for the defendants asked the Judge to give a ruling upon the correct legal construction of s.16A. They asked for this ruling in order to assist them to advise their clients whether to submit no case to answer and whether to give evidence. The type of arguments which were raised at this stage derived from R. v. Berry (No.3)  1 W.L.R. 7, R. v. Edwards  Q.B. 27 R. v. Hunt  A.C. 352: What did the prosecution have to prove? (Att-Gen of Hong Kong v. Lee Kwong-kut  A.C. 951. However the arguments also extended to the consideration of Parliamentary material (purportedly under Pepper v. Hart  AC 593) and compatibility with Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and whether or not that Article could be used as an aid to construction.
The outcome was that the defendants apparently accepted that their construction argument could not succeed; they took the view that s.16A was irretrievably incompatible with Article 6(1). They asked the Judge to rule that it was incompatible. Their purpose was, they say, to obtain support for a renewed application for a stay on the ground of abuse of process and to assist them to persuade the Director of Public Prosecutions of his own motion to discontinue the proceedings. The Judge made the ruling for which the defendants asked. An adjournment was granted so that both sides could reconsider their position. On the prosecution side, the Director having taken advice from experienced counsel in this field, Mr Rabinder Singh, which suggested that the Judge's ruling was mistaken, instructed Mr Singh to apply to the Judge to reconsider his ruling. Having heard further argument, the Judge maintained his original ruling. The defendants then made an application for the proceedings to be stayed on the ground of abuse of process. The Judge refused this application. The trial then proceeded for a number of days with the defendants calling evidence. However on 14 December 1998, the trial had to be aborted and the jury discharged because of an unresolved problem in connection with the prosecution's compliance with its disclosure obligations.
In the ordinary course, the retrial would have taken place fairly soon after. But, before it could do so, the defendants applied for the judicial review of the Director's decision to continue with the prosecution. Originally they applied upon the basis that they had a reasonable expectation that they would not be prosecuted for an offence formulated in terms incompatible with Article 6(2). They, however, also relied upon the submission that the opinion of Mr Rabinder Singh was erroneous in law and therefore any decision of the Director to continue was vitiated by error of law and should be set aside so that he could reconsider it. It was this alternative submission which the Divisional Court upheld.
One of the features of a prosecution under s.16A upon which the defendants rely is the provision in s.19 of the Act of 1989 that "proceedings shall not be instituted .... except by or with the consent of" the Director. In relation to other offences under the Act the Attorney- General is the relevant person. Such provisions relate to the institution of proceedings. Unless the requisite consent has been given at that stage, the court will be acting without jurisdiction and, if convicted, the defendant will be entitled to have his conviction set aside on appeal. (See R. v. Whale and Locton  Cr. L. Rev. 692 also R. v. Cain  Q.B. 496 and R. v. Jackson  Cr. L. Rev. 293.) Having given his consent to the institution of the proceedings, it of course remains the duty of the Director as the person having the conduct of the prosecution to act responsibly; in this, he is subject to the directions of the Attorney-General and can in suitable cases offer no evidence or enter a nolle prosequi. This duty exists in all prosecutions, not merely ones which required his consent for their institution. In the present case it must be stressed that there is no suggestion that the Director has acted in bad faith or has abused his position. It is simply said, as evidenced by his acceptance of the advice of Mr Singh and his attempt to persuade the Judge to change his mind, that he has made an error of law and that his failure to discontinue the criminal proceedings by one means or another is accordingly flawed.
This is a remarkable proposition. Disputed questions of fact and law which arise in the course of a criminal prosecution are for the relevant criminal court to determine. That is the function of the trial in the Crown Court and any appeal to the Court of Appeal. Inevitably, from time to time, the prosecutor may take a view of the law which is not subsequently upheld. If he has acted upon competent and responsible advice, this is not a ground for criticising him. Still less should a ruling adverse to the prosecution provide the defence with an opportunity to by-pass the criminal process or escape, otherwise than by appeal, other decisions of the criminal court.
The defendants' case relies upon the provisions of the Human Rights Act 1998. This Act did not receive its Royal Assent until 9 November 1998. As regards existing law, it provisions do not come into force until a day or days to be appointed by the Secretary of State under s.22(2). No appointment has yet been made although the Government have indicated their intention to bring the Act fully into force in October 2000. The Bill was preceded by a White Paper published in October 1997 and was introduced in November 1997. As will be apparent it was the subject of prolonged Parliamentary proceedings before it was finally passed by both Houses. Independently of the Human Rights Act, the defendants were and remain able to rely upon established principles of construction in relation to ascertaining the correct effect to be given to s.16A. Thus they can, and have, relied upon cases such as Berry, Edwards and Hunt. They can pray in aid what was said by Lord Woolf in Att-Gen of Hong Kong v Lee Kwong-kut  A.C. 951 and by Lord Hope in Ex parte Launder  1 WLR 839. They can use construction arguments based upon a presumption of consistency with international obligations. (Ex parte Brind  1 AC 696). In your Lordships' House, Lord Lester QC for the defendants accepted that for the purpose of showing a need to resort to judicial review proceedings as opposed to relying upon the remedies open to them in the Crown Court and in the Court of Appeal (Criminal Division), he had to rely upon some additional legal consideration; he sought to extract that additional consideration from s.22(4) of the Human Rights Act.
In order to put the present judicial review proceedings in context in relation to the Human Rights Act, it is necessary to give some more dates. The offences were alleged to have been committed in May 1997. By early August all three defendants had been arrested and charged. On 13 August 1997 the Director gave his consent to the institution of proceedings against Kebeline and Boukemiche under s.16A and they were committed for trial the following day. For Souidi the corresponding dates were 3 and 16 October 1997. The original trial date was 9 March 1998. There then was a five day hearing of a defence application for a stay on the ground of abuse of process, which was refused and the trial date was re-fixed for October 1998. The trial, interrupted by many applications and submissions, extended between the first half of October and the middle of December when it was aborted. From this it will be appreciated that the Director's consent to institute proceedings was given before any Bill had even been introduced and that by the time that the Act received the Royal Assent the trial had been proceeding for some time and the defendants were in the charge of the jury.
The Divisional Court:
Full judgments were delivered by both Lord Bingham of Cornhill LCJ and Laws LJ. Sullivan J agreed with both judgments. The Divisional Court dismissed the case based on legitimate expectation. They were right to do so and there is no need to say anything more about it. They rejected the argument of the Director that s.29(3) of the Supreme Court Act 1981 precluded resort to judicial review proceedings in matters relating to trial on indictment in the Crown Court. They further held that there were no discretionary grounds for refusing relief.
Lord Bingham considered the position of the Director and held that he was amenable to judicial review. He had relied upon the advice which he had been given by Mr Singh. If that advice was wrong, the Director should be told so and, at the least, be given an opportunity to think again, taking into account what would be the consequences which would flow on the correct view of the law from the continuation of the prosecution. One such consequence was, he said, that when the Act had been brought fully into force the defendants would be entitled to rely upon s.7(1)(b) and s.22(4) and the defendants' convictions "would in all probability be quashed, at some not inconsiderable cost to the public purse and no obvious advantage to the public weal":  3 WLR 175, 187.
He held that s.16A was inconsistent with Article 6(2). (The other case before the Divisional Court concerned s.16B which he also held to be incompatible.) He said, at p. 190:
Lord Bingham clearly seems to have been of the view that the Crown's submission on compatibility was not even arguable and this no doubt coloured his decision as well as his choice of language. He however added, at p. 192:
Laws LJ rejected the argument of the Director on s.29(3) on the ground that it only applied to orders made by the Crown Court itself; there was a residual discretion to discourage satellite litigation but he did not find it persuasive on the facts of the present case. As to the review of the Director's decision not to end the prosecution, he, like Lord Bingham, attached importance to s.22(4) of the Human Rights Act and the provisions which would at some future date come into force. These provisions and their effect were circumstances which, Laws LJ said, the Director was under an obligation to consider:
Laws LJ accordingly proceeded to determine the question whether s.16A was incompatible with Article 6(2). He agreed with Lord Bingham that it clearly was. "The Act requires the defendant to disprove the offence's principal element." p. 201 He distinguished Salabiaku v. France (1988) 13 E.H.R.R. 379 , on the basis that the circumstances were irrelevant; the statutory provision should be looked at on its face and was bound to involve the obligation of the defendant to prove lack of terrorist intent. Like Lord Bingham, he declined to express any view upon whether s.3 of the Act of 1998 would, when it came into force, enable s.16A to be reconciled with Article 6(2).
The reasoning of the Divisional Court contains a number of steps. They first reject the argument that under s.29(3) and general principles of judicial review, the remedy was not available, or not appropriate, to challenge the failure of the Director to abandon the prosecution. Secondly, they held that it was necessary that the Director should have formed the correct view in law of the compatibility of s.16A with Article 6(2). Thirdly, they held the opinion of Mr Rabinder Singh was clearly wrong; s.16A was plainly incompatible. Accordingly the Director's decision to continue with the prosecution could not stand.
My Lords, I do not accept the first and second steps in this reasoning. The second step is, on analysis, inconsistent with the structure of the defendants' case in your Lordships' House. As to the third step, I do not accept that the question is as clear as the Divisional Court thought in the light of some of the decisions of the Court and the Commission to which we have been referred. Surprising though it may seem to those trained in the Common Law and the English traditions of statutory construction, there is clearly room for some doubt as to the outcome were the defendants to seek to challenge their convictions in Strasbourg. There is room for more than one view. Insofar as the reasoning and decision of the Divisional Court seems to have been fed by the view that the Director had got the law "blatantly" wrong, I will have to comment shortly on this aspect.
The Divisional Court also seems to have been influenced by the view that s.19 of the Act of 1989 concerning consent to the institution of proceedings somehow altered the role of the Director in the conduct of those proceedings at the trial in the Crown Court. However, this error was not essential to their reasoning and s.19 certainly underlined the importance of not abusing prosecutions of this kind. But it must be appreciated that, if their reasoning is correct in the present case, the same reasoning would be applicable in respect of any prosecution conducted under the control of the Director or Attorney-General. The implications of their reasoning are very far-reaching.
The Availability of Judicial Review:
A number of well established principles are relevant. One involves the relationship between criminal law and procedure and judicial review. Another is the refusal of judicial review where other legal remedies are available. The existence of these principles undoubtedly underlie s.29(3) of the Supreme Court Act 1981. But, even if s.29(3) does not itself preclude the application for judicial review, it will still be necessary to consider whether one of those principles does not do so.
S.29 defines the jurisdiction and powers of the High Court. S.29(3) provides:
This is a subject-matter provision. It applies the criterion whether the application for judicial review is "in relation to the jurisdiction of the Crown Court other than its jurisdiction in matters relating to trial on indictment." Guidance on the correct understanding of this provision has been given in a number of cases, particularly by Lord Browne-Wilkinson R. v. Manchester Crown Court, Ex parte Director of Public Prosecution  1 W.L.R. 1524 at 1530:
So far as their subject matter is concerned, the issues presently raised fell squarely within Lord Browne-Wilkinson's formulation. The validity of the Director's consent to the institution of the proceedings under s.19 was a matter which could have been raised in the Crown Court and, after conviction, in the Court of Appeal. (See the authorities cited earlier.) The question of abuse of process had, in the present case, the same character, as did any question of the construction or effect of s.16A and the question of burden of proof. The whole purpose of the arguments raised by the defendants in the Crown Court and in the Divisional Court was to bring about the delay or abandonment of the pending trial of the indictment. On the subject-matter test the application was precluded by s.29(3).
The Divisional Court avoided this conclusion by saying that it was the Director's decision which it was sought to review not that of the Crown Court Judge. My Lords, this reasoning places a gloss on the subsection. If the substance of what it is sought to review is the answer to some issue between the prosecution and defence arising during a trial on indictment, that issue may not be made the subject of judicial review proceedings. The issue is within the jurisdiction of the Crown Court judge and (subject to appeal) it is for him to decide it. The argument is that the issue will also affect the assessment of the Director whether to continue the proceedings (and would have affected his decision whether to institute or give his consent to the institution of the proceedings in the first place). Obviously if the Director is acting in bad faith or irresponsibly (which is not alleged in the present case), a cavalier attitude to defects in the criminal proceedings might give rise to scope for such an argument. But all that can be said here is that, having taken competent independent advice upon an issue raised in the course of the trial in the Crown Court, the Director has advanced submissions with which both the Crown Court Judge and the Divisional Court have disagreed. This is not infrequently the fate of litigants. It does not provide a basis for reviewing the decision of the litigator when one is precluded from reviewing the decision of the court. Suppose that the Crown Court Judge had accepted the submission of the prosecution on compatibility: would it be suggested that the defendants could go to the Divisional Court on the basis that the Director had taken a wrong view of the law and so obtain a reversal of the judge's decision? In my judgment, it is not correct either as a matter of the construction of s.29(3) or as a matter of principle to use the device of purporting to review the conduct of the Director to obtain the re-litigation in the Divisional Court of an issue in the criminal trial.
A possible escape from this conclusion is to refine down the issue concerned and say that it was not properly an issue which arose from the indictment, notwithstanding that both parties argued it before the Crown Court Judge and he gave his ruling upon it. I have some sympathy with this approach. Both the Court and the Director were bound by the existing state of the law. As the Divisional Court recognised, the prosecution must present the case upon the basis of the existing law and the judge must direct the jury in the terms of the law as it is. What would be the effect of the Human Rights Act when at some later date it came fully into force was irrelevant. Further, even then declaring that a statute was incompatible would not be within the jurisdiction of the Crown Court judge nor would any incompatibility affect the validity of the statute. (ss.3 and 4 of the Act of 1998) Indeed, I am at a loss to understand why the Judge allowed himself to be drawn into listening to argument or into ruling upon incompatibility once the construction argument had been abandoned by the defendants: he should have declined to entertain any argument on incompatibility.
However, this was not the way that the defendants put it: they said that incompatibility affected the validity of the Director's consent under s.19 and whether the continuation of the trial was an abuse of process. It seems that this was also the view of Laws LJ: he said that the Director was obliged to consider compatibility and come to the right conclusion in law.
In my judgment the first step in the Divisional Court's reasoning cannot be supported. They should have held s.29(3) to be applicable, either expressly or inferentially. They should have held that judicial review was not available and that the defendants should exercise the remedies open to them within the criminal justice system. The fact that that would lead to the law of the land being applied supports that conclusion and is no reason for finding a way in which to interfere obliquely with the trial of the defendants on this indictment in accordance with the Act of 1989.
The Human Rights Act:
Lord Lester made s.22(4) the corner-stone of his argument before your Lordships. It is important to understand why he did so. His reason partly recognises the force of the objection in principle to the grant of judicial review in this case. (The same recognition can be observed in the judgments of Lord Bingham and Laws LJ.) He accepts that the trial of the defendants will have to reflect the provisions of s.16A and that the same applies to any appeal heard before the date upon which the Human Rights Act comes fully into force. But he submits that the situation will be different once that date has passed. Courts will be required to apply s.3(1) and do their best to read and give effect to s.16A in a way which is compatible with the defendants Convention rights. This, he submits would entitle the defendants to invoke s.22(4) and s.7(1)(b) and obtain the quashing of their convictions on the ground that the Director and Crown Court had acted in a way made unlawful by s.6(1).
This part of Lord Lester's reasoning is radically different from that of the Divisional Court. The Divisional Court founded upon the incompatibility of s.16A and Article 6(2) and declined to express any view upon the s.3(1) point. Lord Lester recognised that this was not enough for him; irremediable incompatibility would not assist him. Implicitly, he was rightly recognising that he could not support the reasoning of the Divisional Court as being adequate to justify their conclusion.
The scheme of the Human Rights Act is that no decision of the courts can invalidate an Act of Parliament. Under s.4(2) a court (being one of those specified in s.4(5)) may, if satisfied that a provision of an Act of Parliament is incompatible with a Convention right, make a "declaration of that incompatibility." But, by s.4(6), such a declaration "(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made." S.3(2)(b) contains a similar reservation of validity. Thus, incompatibility does not found any right under the Act. The procedure to be followed after a declaration of invalidity is laid down in ss.10 and 20 of the Act and the second Schedule. Whether the incompatible legislation should be amended so as to confer the relevant Convention right is a matter for the minister and Parliament. Unless and until such an amendment is made, the existing law remains in force notwithstanding the incompatibility and things done in accordance with that law remain lawful. (See also s.6(6).) Whether any amendment had retrospective effect would also depend upon the terms of the amendment (Schedule 2 paragraph 1).
Similarly s.6(1) and (2) which govern the position of public authorities, which include courts, contain reservations for acting in accordance with legislation which, ex hypothesi, cannot be reconciled with the Convention. This creates difficulties for Lord Lester's argument based on s.22(4). S.22(4), with effect from 9 November 1998, provides:
This therefore refers one back to s.7(1)(b) which provides:
So his submission becomes dependent on s.6. The only element of retrospectivity which s.22(4) introduces is to allow earlier unlawful actions to be relied upon.
If s.16A is, on the existing principles of statutory construction compatible with the Convention, the defendants' ground for applying for judicial review falls away. The point is fully arguable within the criminal trial and any resultant appeal and the Crown Court or the Court of Appeal will give effect to s.16A so construed. If, on the other hand, s.16A is irretrievably incompatible, as the Divisional Court held that it was, the defendants' application again cannot succeed. Whether the Human Rights Act has come into force or not the position remains the same. The incompatibility does not deprive s.16A of its force and validity nor does it affect the criminal trial or any convictions resulting from the application of s.16A. The defendants' guilt or innocence has to be determined in accordance with s.16A. All this Lord Lester had to and did accept.
Lord Lester submitted that once the Human Rights Act comes into force, an additional and more potent principle of statutory construction will come into play. S.3(1) of the Act provides:
He submits that this provision will enable s.16A to be construed so as not to impose any burden of proof upon the defendants. This, he submits, will retrospectively render invalid any conviction based upon a direction to the jury that s.16A(3) does impose such a burden and that any convictions would then have to be set aside.
Whether this argument materially advances his submission is clearly open to contrary argument. Neither s.6 nor s.7 is retrospective; nor is, for that matter, s.3, as Lord Lester's argument recognises. It is therefore difficult to maintain that the prosecution and trial of the defendants in accordance with s.16A has involved any unlawful conduct or will do so or will provide them with any ground for having any convictions resulting from their trial quashed.
There are further arguable points: whether s.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 the case of Bates v. United Kingdom (Application 26280/95) where the Commission declined to admit a complaint that s.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 (A.141-A) and Pham Hoang (A.243) 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. This last point ties in with the use in s.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 s.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  A.C. 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 an 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 at 1988 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 s.3(1).
These are not matters which it is necessary or proper to enter upon on the present appeal. If they need at some later stage, in the Crown Court or elsewhere, to be decided in relation to these defendants or any of them under s.16A, that is the time at which they should be decided. The position is not as clear cut as the Divisional Court seem to have thought nor is it right that these proceedings by way of the attempted judicial review of the Director's conduct should be used as a vehicle for their decision now.
I agree that the Appeal should be allowed as proposed by your Lordships.