B e f o r e :
LORD CHIEF JUSTICE OF ENGLAND AND WALES
LORD JUSTICE JUDGE
MR JUSTICE GAGE
MR JUSTICE ELIAS
MR JUSTICE STANLEY BURNTON
||IN THE MATTER OF:
Attorney General Reference No. 1 of 2004
||- v -
||- v -
||Denton & Jackson
||- v -
||- v -
r David Perry and Ms Adina Ezekiel for the Crown in the case of Edwards and AG Reference No. 1 of 2004
Mr Neil Hinton for Edwards
Mr David Holborn for the applicant in AG Reference No. 1 of 2004
Mr Nicholas Ham for the Crown in the case of Jackson and Denton
Miss Emma Goodall for Jackson and Denton
Mr Michael Burrows and Mr Bernard Linnemann for the Crown in the case of Hendley
Mr Nigel Sweeney QC for Hendley
Miss Azza Brown for the Crown in the case of Crowley
Mr Michael Newport for Crowley
Hearing dates : 23rd, 24th and 25th March 2004
HTML VERSION OF JUDGMENT
Crown Copyright ©
The Lord Chief Justice
This is the judgment of the Court to which each member of the Court has contributed.
- This judgment relates to a single Attorney General's Reference and four appeals. Except in the case of Crowley, a preparatory hearing was held in relation to each case and so we take this opportunity to give guidance as to when it is appropriate to hold a preparatory hearing. In addition, in all the cases, the defendants were alleged to have committed offences under legislation that purports to impose upon the defendant the burden of proving certain issues. We refer to these provisions as reverse burdens. In order to determine the Reference and the appeals it is necessary to try to clarify what a court's approach should be when determining whether a reverse burden contravenes Article 6(2) of the European Convention on Human Rights ("the Convention") and, if so, what should be the consequence of that contravention.
- Article 6 of the Convention provides:
"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law… .
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."
- Section 3(1) of the Human Rights Act 1998 ("HRA 1998") requires the courts to read and give effect to legislation, whenever enacted, in a way which is compatible with the Convention rights (including Article 6). If this is not possible and the legislation is incompatible with a Convention right the court, "may make a declaration of … incompatibility" (Section 4(2), HRA 1998). However, such a declaration "does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given" (Section 4(6)(a), HRA 1998). If primary legislation cannot be read or given effect in a way which is compatible with the Convention, a court will not be acting unlawfully if it gives effect to or enforces the legislation (Section 6(2)(b), HRA 1998).
- In relation to each reverse burden in the cases before us, it is necessary to consider first, whether it contravenes Article 6(2) of the Convention and secondly, if so, whether relying on section 3(1) of the HRA 1998, it is possible to interpret the legislation in a way that makes it compatible with Article 6, including, if this is possible, reading down the legislation. In practice, as we will explain, this will usually involve determining: (a) whether the particular provision imposing the reverse burden places an evidential burden on the defendant or a legal or persuasive burden (from now on referred to as a "legal burden"); (b) if it does impose a legal burden, whether the legal burden can be justified; and (c) if the legal burden cannot be justified, whether the legal burden can be read down so that it is only an evidential burden.
- The defendant is able to discharge an evidential burden by ensuring that there is some evidence before the court, whether as part of the prosecution's or defence's case, which could result in a reasonable court or jury determining the issue which is the subject of the reverse burden in the accused's favour (see Archbold (2004), para 4-382). Once this happens, the onus reverts to the prosecution to satisfy the jury so that they are sure as to that issue, in exactly the same way as they have this responsibility in the case of the remaining matters that have to be established to prove the accused's guilt. Because of the limited nature of the evidential burden and because the issue can be raised as a result of prosecution evidence alone, it is perhaps misleading to describe the evidential burden as a burden on the defendant at all. However, we will use that term given that it is in common currency.
- In the case of a legal burden, the defendant is under an obligation to satisfy a court on the balance of probabilities on the issues that are the subject of the reverse burden. The imposition of an evidential burden is therefore considerably easier to justify than a legal burden. Unlike the position in the case of a legal burden, in the case of the evidential burden there will be no question of a defendant being found guilty if the court is left with a reasonable doubt as to his guilt. The majority of domestic legislation that places a reverse burden on an accused, prior to the HRA 1998 coming into force, would involve the accused being under a legal burden rather than an evidential burden.
- Part III (sections 28 – 38) of the Criminal Procedure and Investigations Act 1996 ("CPIA 1996") extended the system of preparatory hearing where an indictment reveals a "case of such complexity, or a case whose trial is likely to be of such length that substantial benefits are likely to accrue" from such a hearing (section 29, CPIA 1996). There is an appeal to the Court of Appeal from any ruling of a judge at a preparatory hearing as to any question as to the admissibility of evidence or any other question of law relating to the case (Section 35(1), CPIA 1996).
- The provisions of the CPIA 1996 dealing with preparatory hearings are closely related to those which already existed for serious or complex fraud cases under the Criminal Justice Act 1987 ("CJA 1987"). A preparatory hearing under Part IV of the CPIA 1996 has to be distinguished from statutory pre-trial hearings which enable judges to make binding rulings on points of law before the start of the trial (in accordance with sections 39-43 of the CPIA 1996) and non-statutory plea and directions hearings in accordance with the consolidated practice direction (see generally Archbold (2004) para 4-85 – 90).
Why a Five Judge Court?
- A five judge court was convened to hear these cases because of the issues as to reverse burdens and preparatory hearings. As to both issues there is a need for guidance. In the case of reverse burdens, there are now a considerable number of authorities from decisions of the European Court at Strasbourg, from courts in other overseas jurisdictions, from this Court and from the House of Lords. In this jurisdiction, rulings have to be made by magistrates and Crown Courts up and down the country. This can involve the citation of a very large number of authorities, many of which conflict in the message which they give. The position is illustrated by the fact that five volumes of authorities were appropriately placed before us to help us determine this issue.
- At the time that the hearing of this appeal was arranged, we were unaware that in relation to two recent decisions of this Court, appeals are due to be heard in the House of Lords before the long vacation. When the existence of those appeals was brought to our attention, we decided that we should nonetheless try to simplify the task of lower courts when faced with reverse burdens. It is our opinion that, as Mr Perry who appeared on behalf of the Attorney General submitted, the time has now come when it is possible to attempt to pull together the authorities so as to identify the relevant principles to be applied. In addition, we consider that it could be useful to the members of the House of Lords hearing the forthcoming appeals to know the views of the members of this Court. We have, collectively, considerable experience of the problems that are now arising in the courts because of reverse burdens. We hope that the guidance that we will set out can be readily revised to take into account any views expressed by the House of Lords when deciding the further appeals.
- In the case of preparatory hearings, there is a need for clarification as to when it is appropriate to have a preparatory hearing. There is also the need for assistance as to the position of this Court if what is said to be a preparatory hearing takes place without a judge properly considering whether the statutory requirements for a preparatory hearing are fulfilled or if the judge holds a preparatory hearing when the statutory requirements are not fulfilled. So far, a restrictive view has been taken by this Court as to when a preparatory hearing can be held and as to the jurisdiction of this Court if a preparatory hearing is inappropriately held. Both situations, in part, give rise to questions of procedure which the House of Lords usually leaves to this Court. As to the jurisdiction of this Court, that issue is unlikely to be able to go on appeal to the House of Lords because, as the authorities stand at present, leave to appeal is unlikely to be given.
- Before setting out our guidance as to reverse burdens, it is necessary to review the most important authorities. Although we do so as briefly as possible this is not an insignificant task. The starting point is, of course, the classic statement of Viscount Sankey LC in Woolmington v Director of Public Prosecutions  AC 462 at p481:
"Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused."
- Viscount Sankey refers to statutory exceptions. The position as to statutory exceptions was considered by the House of Lords in Sweet v Parsley  AC 132. Lord Reid was concerned that the courts were too readily treating serious offences as being absolute offences which therefore did not require the prosecution to prove that the defendant had any specific intent. Lord Reid was at pains to point out that a reverse burden might be preferable to a strict liability offence, that is one not requiring proof of any intent. This is an important point to bear in mind since some of the recent decisions of the courts display a readiness to read down reverse burdens that could result in Parliament increasing the number of absolute offences. To avoid this happening Lord Reid dealt with the matter in this way at p150B-F:
"The choice would be much more difficult if there were no other way open than either mens rea in the full sense or an absolute offence; for there are many kinds of case where putting on the prosecutor the full burden of proving mens rea creates great difficulties and may lead to many unjust acquittals. But there are at least two other possibilities. Parliament has not infrequently transferred the onus as regards mens rea to the accused, so that, once the necessary facts are proved, he must convince the jury that on balance of probabilities he is innocent of any criminal intention. I find it a little surprising that more use has not been made of this method: but one of the bad effects of the decision of this House in Woolmington v. Director of Public Prosecutions  AC 462 may have been to discourage its use. The other method would be in effect to substitute in appropriate classes of cases gross negligence for mens rea in the full sense as the mental element necessary to constitute the crime. It would often be much easier to infer that Parliament must have meant that gross negligence should be the necessary mental element than to infer that Parliament intended to create an absolute offence. A variant of this would be to accept the view of Cave J. in Reg. v. Tolson (1889) 23 Q.B.D. 168, 181. This appears to have been done in Australia where authority appears to support what Dixon J. said in Proudman v. Dayman (1941) 67 C.L.R. 536, 540:
"As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence."
It may be that none of these methods is wholly satisfactory but at least the public scandal of convicting on a serious charge persons who are in no way blameworthy would be avoided."
- Lord Reid's observation that the technique of the reverse burden is surprisingly little used, even if true then, is certainly not so now. In a case to which it will be necessary to refer later, R v Lambert  2 AC 545 at p569, Lord Steyn points out that there are 219 statutory offences among the 540 offences triable in the Crown Court which include a reverse burden provision. Mr Perry relied on these figures to demonstrate the scale of the problems that can arise as a result of an aggressive application of Article 6. He reminded us that most of the litigation which has been generated by the European Convention becoming part of our domestic law has involved Article 6. That this should be the position is disturbing because Article 6 does no more than reflect the requirements of fairness which have long been part of English law. However, we can take some comfort from the fact that in other common law jurisdictions where a constitutional requirement such as that contained in Article 6 has been introduced, there have been similar problems to those by which we are faced, in making the European Convention directly enforceable. What is required is that the constitutional provisions of this nature should be applied reasonably and flexibly and in a manner that recognises the interests of democratically elected legislature in answering that the law can be enforced. Thus the Supreme Court of Canada, in R v Whyte (1988) 51 DLR (4th) 481, upheld a statutory presumption on a charge of having care or control of a motor vehicle while the accused's ability to drive was impaired by alcohol. The statutory presumption provided that when it is proved that the accused occupied the driving seat he shall be deemed to have the care or control of the vehicle unless he establishes that he did not enter the vehicle for the purpose of setting it in motion. The presumption did not violate the Canadian Charter of Rights and Freedoms. In his judgment Dickson CJ explained his approach to such a presumption by saying (at p495):
"There are two major criteria. First, the objective which the measure responsible for the limit on a right or freedom is designed to serve must be sufficiently important to permit overriding the constitutionally protected right or freedom (Oakes, supra, at p. 354 C.C.C., p. 138 D.L.R.). Secondly, to show that the measures are reasonable and demonstrably justified requires an analysis of the proportionality of the measures (Oakes, supra, at p. 355 C.C.C., p. 139 D.L.R.). There are three components to the proportionality test: the measures must be carefully designed to achieve the objective of the legislation, with a rational connection to the objective. The second component is that the measure should impair the right or freedom as little as possible. Finally, there must be proportionality between the effects of the impugned measures on the protected right and the attainment of the objective."
Later the Chief Justice added:
"The next stage of the proportionality inquiry is to ask whether the impugned measure impairs the right or freedom as little as possible. With respect to s. 237(1)(a), this is the most crucial and difficult aspect of s. 1 analysis. In my view, we must recognize that Parliament was faced with a difficult task in defining drinking and driving offences. The very fact that consumption of alcohol is an element of these offences renders problematic the element of intention. Justice precludes undue reliance upon strict or absolute liability. Social protection precludes undue emphasis upon the mental element to these offences. Parliament has decided to define the offence in terms of "care or control.""
- The judgment then refers to the fact that Parliament had adopted a compromise between two alternatives. The wish "to discourage intoxicated people even placing themselves in a position where they can set a vehicle in motion while at the same time providing a way for a person avoiding liability when there was a reason for entering the vehicle other than to set it in motion." There was "an attempt to balance the dangers posed by a person whose abilities to reason are impaired by alcohol with the desire to avoid absolute liability offences".
- This approach encourages flexibility and striking a balance. Attention was also drawn to the importance of this in R v Downey  90 DLR (4th) 499 at page 466. Curry J pointed out "the proportionality test can and must vary with the circumstances. Parliament is limited in the options which it has at hand to meet or address the problem. Rigid and inflexible standards should not be imposed on legislators attempting to resolve a difficult and intransigent problem".
- We would also refer to the decision of the Privy Council in the Attorney-General of Hong Kong v Lee Kwong-Kut  AC 951 which again emphasised the need for flexibility so as to allow a balance to be drawn between the interests of the person charged and the State. It was also indicated that if the prosecution retains a responsibility for proving the essential ingredients of the offence it is less likely that an exception would be regarded as unacceptable (See p969 at letter H).
- It is now convenient to refer to Salabiaku v France (1988) 13 EHRR p379, para 27. In this area Salabiaku can be regarded as Strasbourg's equivalent of Woolmington v Director of Public Prosecutions. As section 2(1) of the HRA 1998 requires our courts to take into account the decisions of Strasbourg, the decisions of that court are highly influential. Salabiaku makes it clear that the European Court recognises that the contracting states retain the ability to determine what should be the content of their substantive criminal law. Article 6 is concerned not with substantive law but the fairness of the procedure by which offences against the substantive law are tried:
"As the Government and the Commission have pointed out, in principle the Contracting States remain free to apply the criminal law to an act where it is not carried out in the normal exercise of one of the rights protected under the Convention and, accordingly, to define the constituent elements of the resulting offence. In particular, and again in principle, the Contracting States may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence. Examples of such offences may be found in the laws of the contracting states."
- The judgment then turns to consider how offences are proved. Although we are concerned here with reverse burdens, the judgment deals specifically with presumptions. However, for our purposes there is no difference between presumptions and the reverse burden issues which we are considering. The approach of the European Court appears from this passage of the judgment Salabiaku v France (1988) 13 EHRR p388, para 28:
"Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law. If, as the Commission would appear to consider, paragraph 2 of Article 6 merely laid down a guarantee to be respected by the courts in the conduct of legal proceedings, its requirements would in practice overlap with the duty of impartiality imposed in paragraph 1. Above all, the national legislature would be free to strip the trial court of any genuine power of assessment and deprive the presumption of innocence of its substance, if the words 'according to law' were construed exclusively with reference of domestic law. Such a situation could not be reconciled with the object and purpose of Article 6, which, by protecting the right to a fair trial and in particular the right to be presumed innocent, is intended to enshrine the fundamental principle of the rule of law.
Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence."
- The passage of the judgment to which we have just referred makes clear that there is nothing intrinsically indefensible in there being a reverse burden. It will, however, require to be justified. Whether or not it is justified will depend upon its terms and in particular whether it strikes the right balance between the interest of the State at stake and the rights of the defendant.
- We can now turn to consider the most important domestic decisions post the HRA 1998. The first of these cases is the decision of the House of Lords in R v DPP ex parte Kebilene  2 AC 326. Although this decision was decided after the HRA 1998 had come into force, it relates to facts that took place prior to the HRA 1998 coming into force. However, Lord Hope of Craighead gave some general assistance as to the HRA 1998 that provides a useful starting point for a consideration of our domestic decision. The first point Lord Hope made is that it is necessary "to identify the nature of the provision which is said to transfer the burden of proof from the prosecution to the accused because various techniques have been adopted and some are more objectionable than others" at (p378 F/G). In particular he identified the distinction between a legal burden and an evidential burden and makes the important point that in the case of an evidential burden:
"If it is put in issue, the burden of proof remains with the prosecution."
"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" (at p379 A/C).
- Examples of an evidential burden being placed on an accused by our law are not hard to find, a good example being provided by self-defence. However, in the case of statutes which reverse the onus of proof, the accused usually has to meet a legal burden. Lord Hope next turns to statutory presumptions. He classifies them in accordance with submissions which had been made by Mr Pannick, as follows:
"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." (at p379 D-G).
- As Lord Hope makes clear, the process of classification "is not an exact science". Furthermore, the fact that a provision breaches the presumption of innocence does not lead inevitably to the conclusion that the provision is incompatible with Article 6(2) (at p380 B-D).
- Lord Hope also deals with the area of choice left to the executive or the legislature to balance the rights of the individual against the needs of society. As he says:
"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 (1999), of which Lord Lester of Herne Hill and Mr Pannick 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." (at p381 B-E)
- The fact that there is this need for a balancing between the different interests involved was also emphasised by Lord Bingham of Cornhill in the Privy Council in Brown v Stott  1 AC 681. As Lord Bingham said, "judicial recognition and assertion of the human rights defined in the Convention is not a substitute for the processes of democratic government but a complement to them". (p834H-835A)
- We can now move forward to two decisions of the House of Lords which are of the greatest importance in considering the relationship between Article 6 and reverse burdens. The earlier of these two cases is R v Lambert  2 AC 545. Here, it is the speech of Lord Steyn that requires the most careful attention, although the parts of his speech on which we need to focus were obiter. There is no doubt that his views have influenced many later decisions. Lord Steyn suggests that the legislature in this jurisdiction has "frequently and in an arbitrary and indiscriminate manner made inroads on the basic presumption of innocence" (at p569 B).
- Lord Steyn cites the eloquent explanation of Sachs J as to the significance of the presumption on innocence in The State v Coetzee  2 LRC 593 at p677/8, para 220. However, while regarding the logic of Sachs J's reasoning as inescapable, Lord Steyn still recognises that "limited inroads on the presumption of innocence may be justified". The inroads require justification and must not be greater than necessary. In addition, the principle of proportionality must be observed (570 at F). Lord Steyn is also unimpressed by distinctions between the constituent element of a crime because they "sometimes will be unprincipled and arbitrary …sometimes a matter of which drafting technique is adopted: a true constituent element can be removed from the definition of the crime and cast as a defensive issue when any definition of an offence can be reformulated so as to include all possible defences within it. It is necessary to concentrate not on techniques and niceties of language but rather on matters of substance" (see para 35 at p570/571).
- Perhaps the most important part of Lord Steyn's speech is where he deals with proportionality. Here he considers in detail "the relative merits of the transfer of a legal burden on an important element or issue to the accused, as opposed to the creation of a mere evidential burden" (see para 37-41 commencing p572).
- In the context of the prosecution of drug cases, where the relevant facts are usually particularly within the knowledge of the possessor, Lord Steyn explains why, in his opinion, the fears centred on the ability of an accused in a drugs case to manipulate the system are not well founded. He refers to steps which have been taken to strengthen the hands of the prosecution. As a result he considers that the devices which may be attempted should "generally in practice receive short shrift". He finds support for his approach in the decisions in the jurisprudence of Canada and South Africa for a view "that a reverse legal burden is a disproportionate means of addressing the legislative goal of easing the task of the prosecution" in the cases under consideration.
- The views expressed by the other members of the House were not as forceful as those of Lord Steyn. Lord Slynn stated:
"If read in isolation there is obviously much force in the contention that section 28(2) imposes the legal burden of proof on the accused in which case serious arguments arise as to whether this is justified or so disproportionate there is a violation of article 6(2) of the Convention rights … in balancing the interests of the individual in achieving justice against the needs of society to protect against abusive drugs this seems to me a very difficult question but I incline to the view that this burden would not be justified under article 6(2) of the Convention rights. (p563 D/F)."
- Lord Hope was of the opinion that the burden should be an evidential one; however, he added that, "an evidential burden is not to be thought of as a burden which is illusory. What the accused must do is put evidence before the court which, if believed, can be taken by a reasonable jury to support his defence." The problem with this approach is that in our experience, it is in practical terms difficult to achieve this 'halfway house' favoured by Lord Steyn and Lord Hope. A defendant need do no more than raise the issue; indeed, it is only necessary that it should be raised and this may be as a result of evidence adduced by the prosecution. Lord Clyde was also of the opinion that the statutory provision imposed an evidential burden of proof on the accused, though he added, "it is to be noted that the practical effect of the burden on the defendant may not have been very significant". Lord Hutton, who took a different view, considered that the problem could not be "resolved by placing an evidential burden on the defendant and that it is necessary to impose a persuasive burden" (p625 E-G). Earlier he had said "the presumption is neither irrebuttable or unreasonable. To oblige the prosecution to prove that the defendant knew that the substance was a controlled drug in many cases would make it very difficult to obtain a conviction" (p620 D).
- Not surprisingly, courts in this jurisdiction have paid considerable attention to Lord Steyn's assessment of the position but perhaps not sufficient weight has been given to Lord Hutton's views. A substantial increase in the challenges to all reverse burdens which hitherto in accordance with our general domestic approach have been regarded as creating a legal burden has been generated. The indications are that this is leading us to repeat the experience of both Canada and South Africa as to the number of technical challenges which are being made as to statutory provisions containing reverse burdens.
- Lord Steyn did not consider that treating the reverse burdens as imposing merely an evidential burden gave rise to incompatibility. He considered the legislative provision could be read down under Article 3 so that it only imposed an evidential burden. However, reading down the statutory provision in this way has also given rise to difficulty, as we will see later.
- As to the difference in approach between Lord Hutton and Lord Steyn on the efficacy of a persuasive burden, it may be of assistance to the Appellate Committee to know that in practice our collective experiences are the same as Lord Hutton's. Some of the later decisions suggest a similar reaction by other members of the constitutions of this Court.
- The next case to which we should refer is the decision of the House of Lords in R v Johnstone  1 WLR 1736. Speeches were given by Lord Nicholls of Birkenhead and by Lord Walker of Gestingthorpe. All the other members of the Committee agreed with Lord Nicholls. The case arose out of the charging of the defendant with trademark offences contrary to section 92(1)(c) of the Trademarks Act 1994. The defendant has a defence under section 92(5) of the Act if he can show that he honestly and reasonably believed that there was no infringement of the registered trademark. Again, the decision on the relevant issues was obiter. Section 92(5) imposes on the accused person the legal burden of proving the relevant facts on the balance of probability. On this issue there were conflicting decisions in the Court of Appeal.
- To assist the House of Lords to determine what should be the right approach, there was an extensive citation of authority. Having referred to Coetzee, Kebilene and Lambert, Lord Nicholls indicated that:
"A sound starting point is to remember that if an accused is required to prove a fact on the balance of probability to avoid conviction, this permits a conviction in spite of the fact-finding tribunal having a reasonable doubt as to the guilt of the accused: see Dickson CJ in R v Whyte (1988) 51 DLR (4th) 481, 493. This consequence of a reverse burden of proof should colour one's approach when evaluating the reasons why it is said that, in the absence of a persuasive burden on the accused, the public interest will be prejudiced to an extent which justifies placing a persuasive burden on the accused. The more serious the punishment which may flow from conviction, the more compelling must be the reasons. The extent and nature of the factual matters required to be proved by the accused, and their importance relative to the matters required to be proved by the prosecution, have to be taken into account. So also does the extent to which the burden on the accused relates to facts which, if they exist, are readily provable by him as matters within his own knowledge or to which he has ready access.
In evaluating these factors the court's role is one of review. Parliament, not the court, is charged with the primary responsibility for deciding, as a matter of policy, what should be the constituent elements of a criminal offence. I echo the words of Lord Woolf in Attorney-General of Hong Kong v Lee Kwong-Kut  AC 951, 975:
"In order to maintain the balance between the individual and the society as a whole, rigid and inflexible standards should not be imposed on the legislature's attempts to resolve the difficult and intransigent problems with which society is faced when seeking to deal with serious crime."
The court will reach a different conclusion from the legislature only when it is apparent the legislature has attached insufficient importance to the fundamental right of an individual to be presumed innocent until proved guilty." (p1750, paras 50-51)
- Lord Nicholls also pointed out that the offences which he was considering attract a serious level of punishment. However, because those who trade in counterfeit products are aware of the need to be on a guard against counterfeit goods and the defence relates to facts within the accused person's own knowledge, he came to the conclusion that section 92(5) could appropriately place a legal burden on the accused without contravening Article 6. In doing so, he referred to the fact that in practice, if the prosecution had to prove "that a trader acted dishonestly fewer investigations would be undertaken and fewer prosecutions would take place".
- Lord Steyn and Lord Nicholls were considering different statutory provisions and it does not follow that they would have used the language which they did if they were considering other statutory reverse burden provisions. Nonetheless, it does appear there is a significant difference in emphasis between their approaches. In practice, a legal burden is much more likely to have to be reduced to an evidential burden on Lord Steyn's approach than it is on Lord Nicholls' approach. Indeed, it is likely that few provisions will be left as imposing a legal burden on Lord Steyn's approach. Lord Nicholls clearly gives greater weight to the language used by Parliament than does Lord Steyn. In addition, Lord Steyn considers, contrary to our experience, that there is little need to have a legal burden because he considers an evidential burden will suffice to achieve the objective of the reverse burdens. He also considers that to meet the requirement of proportionality a necessity for the legal burden to be imposed has to be shown if it is to survive. The combination of this standard of necessity, coupled with the suggestion that evidential burden will meet the need in most if not all situations leaves virtually no discretion to the legislators as to how to achieve their objective. If an evidential burden would suffice, no greater burden must be imposed. Lord Nicholls' approach is more flexible. He sees the court as reviewing the choice made by Parliament, although not in a judicial review sense, rather, in a sense that reflects the intent of the HRA 1998, which was to achieve a careful balance between the role of Parliament and the courts. Their statements in both speeches were obiter, but Lord Nicholls' was later in time and unlike Lord Steyn's speech was endorsed by the other members of the House. We suggest that until the position is clarified by a further decision of the House of Lords, lower courts should follow the approach of Lord Nicholls rather than that of Lord Steyn if they are in doubt as to what should be the outcome of a challenge to a reverse burden.
- The remaining authorities to which we should refer are decisions of this Court. We do so because they demonstrate the extent to which Lord Steyn has influenced later decisions in this Court. The first example was in the case of L v DPP  QB 137. In this case the approach of Lord Steyn in Lambert  1 AC 545 was distinguished. In the course of giving his judgment, Pill LJ referred to the views expressed by Lord Steyn and Lord Hope in Lambert. He then indicated that an evidential burden "may not in substance be a burden on the defendant at all. Evidence raising the issue will often emerge from the evidence direct and circumstantial called by the prosecution". We agree with this view. A judge when directing a jury must be circumspect not to withdraw an issue that has been raised for a jury's consideration. The robust approach recommended by Lord Steyn, based on dicta of Lord Lane CJ in a different context, could result in appeals to this Court by defendants as to whether an issue had or had not been raised so as to satisfy an evidential burden. Later Pill LJ said, with regard to a statutory requirement that a defendant should provide "proof", that an evidential burden was not the best example of the use of the word proof. It would deprive the word "proof" as commonly used inside and outside the criminal courts of any meaning.
- An example of this Court following the approach indicated in Lambert before the decision in Johnstone is provided by R v Carass  1 WLR 1714. (We will refer to this decision when expressing our conclusions as to the Reference and the appeal of Edwards.) In R v S  1 Cr App Rep 35, 602, despite the decision in Lambert, this Court in relation to section 92 of the Trademarks Act 1994 dismissed an appeal from a decision holding at a preparatory hearing that section 92(5) of the Trademarks Act 1994 imposed a legal burden. The language required the accused "to show that" he had the belief on reasonable grounds that the goods were genuine. The reverse burden was held not to relate to an essential element of the offence and therefore Article 6(2) had no application. In any event, the reverse burden was held by the Court to be necessary, justified and proportionate. It was not unfair.
- In contrast there is the decision in Sheldrake v Director of Public Prosecutions  2 WLR 1629 (one of the two cases due to be heard by the House of Lords). It is a decision of the Divisional Court, presided over by Clarke LJ. Henriques J dissented. It demonstrates clearly what can be the consequences of the Lambert approach. Like Whyte in the Supreme Court of Canada, it was a case where the defendant was accused of being in charge of a motor vehicle after consuming an excessive amount of alcohol, contrary to section 5(1)(b) of the Road Traffic Act 1988. Section 5(2) of the Road Traffic Act 1988 provided that:
"It is a defence for a person charged with an offence under subsection (1)(b) above to prove that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle while the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limits."
- Clarke LJ applied the approach indicated by Lord Steyn in Lambert. He decided section 5(2) had to be read down so it imposed only an evidential burden on the accused. The first of his key points that Clarke LJ identified is in these terms:
"It is to my mind wrong to regard the question whether there was likelihood or otherwise of the accused driving as a defence except in narrow common law terms. It is part of the essence of substance of the offence because the seriousness of the offence itself depends upon the risk of driving. It is driving while over the limit which threatens lives and property on the road." (Para 82(i))
It is true that the burden placed on the prosecution was relatively easily discharged; it was to prove that there was a real risk, as opposed to a fanciful risk, that the defendant would drive. Even so, we question whether this construction was required.
- A different approach is certainly possible. Parliament could have intended that because of the risks to the public from a person driving under the influence, a person in charge was to be guilty of an offence on these facts alone, and this was the substance of the offence. However, there was to be an exception, if and only if it was one of the rare cases where a driver could prove there was no likelihood of his driving whilst still over the limit. On this approach Parliament intended to send the message to those in charge of a vehicle when under the influence that they would be found guilty subject to this limited exception. We do not, as did Clarke LJ, regard the maximum punishment being 3 months as being contrary to this alternative approach.
- At the end of his judgment when dealing with this aspect of the situation, Clarke LJ states:
"It is only recently that it has been recognised that, in the context of reverse burdens which derogate from the presumption of innocence enshrined in Article 6(2) of the Convention, the question whether the particular provision should be construed as imposing a legal burden or read down as imposing an evidential burden is whether it was necessary to impose a legal burden." (p1653, para 84)
- This approach to the use of the word "necessary" obviously reflects Lord Steyn's approach. It fails to allow for the fact that the primary decision as to what action should be taken to protect the public from drivers who are in charge of vehicles when over the limit is for Parliament. It is not without interest that the Canadian decision in Whyte provides no support for this approach.
- In his dissenting judgment, Henriques J suggests that "a regime requiring the prosecution to prove that there was a likelihood of driving would be neither workable nor effective" and that "insuperable difficulties could confront the police in the event of an evidential burden" (See para 103). These observations continue to have some, albeit diluted, force even where the burden on the prosecution is only to establish a real risk.
- The case of Sheldrake was distinguished by this Court presided over by Latham LJ in the Attorney General's Reference (No. 4 of 2002)  2 Cr App Rep 22. Again, the decision in Lambert was carefully considered. The section involved was section 11 of the Terrorism Act 2000. That section provides:
"1. A person commits an offence if he belongs or professes to belong to a prescribed organisation.
2. It is a defence for a person charged with an offence under subsection 1 to prove (a) that the organisation was not prescribed on the last (or only) occasion on which he became a member or began to profess to be a member, and (b) that he has not taken part in the activities of the organisation at any time while it was prescribed. "
- The Attorney General referred two questions for the opinion of the Court, the second of which was "does the defence contained in section 11(2) of the Terrorism Act 2000 impose a legal rather than an evidential burden of proof on the accused and, if so, is such a legal burden compatible with Article 6(2) and 10 of the Convention". This Court came to the conclusion that Parliament intended that a person should be guilty of an offence irrespective of whether or not he had played any active part in the organisation. So, there was no breach of Article 6(2). Alternatively, any infringement of that Article by the imposition of a persuasive burden was justified and proportionate. In distinguishing both Lambert and Sheldrake, Latham LJ pointed out, on the approach adopted by the respective decisions, that in Lambert the gravamen of the offence was knowledge, while in Sheldrake the gravamen of the offence was a risk of driving. By contrast, in the case they were considering, it was clearly intended by Parliament that a person should be guilty of an offence irrespective of whether or not he had played any active part in the organisation.
- Finally, we refer to R v Daniel  1 Cr App Rep 6 because like the Reference before us and the case of Edwards it deals with an offence to which section 352 of the Insolvency Act 1986 ("IA Act 1986") provides "a defence". The judgment of the court was delivered by Auld LJ who presided. The primary ground for the decision was that the HRA 1998 was not in force at the time of the relevant decision. However, Auld LJ in his judgment dealt with the position as if the HRA 1998 had been in force and indicates the view that it would have been necessary to read down section 352 of the IA Act 1986 to give effect to Article 6(2) because the Court was bound by the decision in Carass. In doing so, the reasoning of the Court was clearly set out in the following paragraphs:
"In our view, unless it can be distinguished, the reasoning of the Court in Carass, albeit on different provisions of the IA Act 1986, is binding on us. The nature of the offence in section 206(1)(a) and (2) and that of the defence, with its reverse burden of proof in section 206(4), and their relationship one with another, are sufficiently similar in form and purpose to the later provisions in the Act that we are considering to make both the context and the reasoning of Carass indistinguishable. It, therefore binds us.
But for that conclusion, we could not have construed section 352 as imposing only "an evidential burden of proof", whatever that may mean, on a defendant. That is because, with respect to their Lordships' obiter views in Lambert and the Court's ruling in Carass, the words "if he proves" must, as a matter of plain English, mean more than the evidential raising of an issue for the protection to refute beyond reasonable doubt. See Professor Di Birch's commentary on R. v Lambert in  Crim. L.R. 807, especially the last paragraph to that effect on page 809, helpfully drawing attention to the following words of Lord Devlin, giving reasons for the advice of the Board in Jayasena v R.  AC 618 at 624C-E, PC (seemingly not cited in Lambert):
"Their Lordships do not understand what is meant by the phrase 'evidential burden of proof'. They understand, of course, that in trial by jury a party may be required to adduce some evidence in support of his case, whether on the general issue or on a particular issue, before that issue is left to the jury. How much evidence has to be adduced depends upon the nature of the requirement. It may be such evidence as, if believed and left uncontradicted and unexplained, could be accepted by the jury as proof. It is doubtless permissible to describe the requirement as a burden, and it may be convenient to call it an evidential burden. But it is confusing to call it a burden of proof. Further, it is misleading to call it a burden of proof, whether described as legal or evidential or by any other adjective, when it can be discharged by the production of evidence that falls short of proof. The essence of the appellant's case is that he has not got to provide any sort of proof that he was acting in private defence. So it is a misnomer to call whatever it is that he has to provide a burden of proof …"
It is true that section 3(1) requires courts, through the medium of interpretation, to strive for compatibility, if necessary to reading necessary safeguards into a statute or by giving a provision a meaning that it would not ordinarily bear. But there must be some limit to the extent to which the plain meaning of statutory language can be ignored or simply changed in the cause of securing compatibility. Those who are governed by, and seek to order their conduct according to, statutory words are entitled to a broad measure of certainty as to what they mean, not some contrary or wholly different meaning which a court, if and when the matter reaches it, might or might not consider permissible under section 3(1) driven by an imperative to find compatibility at all costs.
In our view, where there is plain incompatibility between the ordinary and natural meaning of statutory words whatever the context, and Article 6(2), the courts should take care not to strive for compatibility by so changing the meaning of those words as to give them a sense that they cannot, in the sense intended by section 3(1), possibly bear."
- We have set out Auld LJ's reasoning because it is important in relation to the Reference where in view of our conclusions, it will be necessary for us to consider whether we should read down what was intended to be a legal burden so that it becomes an evidential burden. This is a separate topic to which we must now come.
- Section 3 of the HRA 1998 requires an interpretative exercise. Auld LJ, dealing with the same section with which we are concerned, namely section 352 of the IA Act 1986, clearly sets out the difficulties in reading down that section. However, in the same way as Auld LJ would have followed Carass on this issue if it had been necessary so to do, we here apply Lambert where all their Lordships (except for Lord Hutton, who did not consider the issue) thought the burden could be treated as an evidential one. We also draw attention to the fact that sections involving reverse burdens deal with the onus of proof but make no reference to the standard of proof. This is invariably the case with legislation of this nature. When legislation puts the onus on the prosecution it does not state what is the standard of proof. It is taken for granted. The position is the same when the onus is placed on a defendant. The section is silent as to the standard of proof if this cannot be gleaned from the use of a word such as "proof". The Court then applies the appropriate standard. The exercise might not, therefore, strictly be one of interpretation. Rather, it is a case of Parliament having required a reverse burden and the court being left with the responsibility of applying the appropriate standard of proof according to the circumstances. On this approach, there should be no difficulty in a court deciding that an evidential standard is appropriate. Taking into account section 3 of the HRA 1998 and the general assumption that Parliament does not intend to legislate in a manner which contravenes Article 6, it is acceptable to treat the same section as requiring the application of a legal burden in one situation and an evidential burden in a different situation when the same statutory "defence" applies to different provisions in the same legislation (see the Reference and Edwards).
Guidance to the Crown and Magistrates Courts
- We are very conscious that we have discussed the authorities at length. However, we have not done so in an exhaustive manner. Many other authorities could have been referred to. At least our examination provides convincing evidence that the authorities would benefit from being reconciled so as to ease the task of courts of first instance who have to apply reverse burden provisions. The House of Lords will be in a much better position than we are to clarify the position. However, what we can attempt to do is to try to provide the same guidance for lower courts. The guidance is of a general nature and will need to be applied lightly and recognising that it may not be appropriate in all situations, lower courts should be robust and not allow extensive argument. Our hope is that, if courts bear in mind the following general principles, they will not go far wrong.
The General Guidance
A) Courts should strongly discourage the citation of authority to them other than the decision of the House of Lords in Johnstone and this guidance. Johnstone is at present the latest word on the subject.
B) The common law (the golden thread) and the language of Article 6(2) have the same effect. Both permit legal reverse burdens of proof or presumptions in the appropriate circumstances.
C) Reverse legal burdens are probably justified if the overall burden of proof is on the prosecution i.e., the prosecution has to prove the essential ingredients of the offence, but there is a situation where there are significant reasons why it is fair and reasonable to deny the accused the general protection normally guaranteed by the presumption of innocence.
D) Where the exception goes no further than is reasonably necessary to achieve the objective of the reverse burden (i.e. it is proportionate), it is sufficient if the exception is reasonably necessary in all the circumstances. The assumption should be that Parliament would not have made an exception without good reason. While the judge must make his own decision as to whether there is a contravention of Article 6, the task of a judge is to "review" Parliament's approach, as Lord Nicholls indicates.
E) If only an evidential burden is placed on the defendant there will be no risk of contravention of Article 6(2).
F) When ascertaining whether an exception is justified, the court must construe the provision to ascertain what will be the realistic effects of the reverse burden. In doing this the courts should be more concerned with substance than form. If the proper interpretation is that the statutory provision creates an offence plus an exception that will in itself be a strong indication that there is no contravention of Article 6(2).
G) The easier it is for the accused to discharge the burden the more likely it is that the reverse burden is justified. This will be the case where the facts are within the defendant's own knowledge. How difficult it would be for the prosecution to establish the facts is also indicative of whether a reverse legal burden is justified.
H) The ultimate question is: would the exception prevent a fair trial? If it would, it must either be read down if this is possible; otherwise it should be declared incompatible.
I) Caution must be exercised when considering the seriousness of the offence and the power of punishment. The need for a reverse burden is not necessarily reflected by the gravity of the offence, though, from a defendant's point of view, the more serious the offence, the more important it is that there is no interference with the presumption of innocence.
J) If guidance is needed as to the approach of the European Court of Human Rights, that is provided by the Salabiaku case at para 28 of the judgment where it is stated that "Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires states to confine them within reasonable limits which take into account the importance of what is at stake and maintains the rights of the defence".
- We now turn to consider preparatory hearings. Here it is necessary to distinguish between preparatory hearings under Part III of the CPIA 1996 and statutory pre-trial hearings under Part IV of the same Act. Both can make a valuable contribution to the effective judicial management of cases, the importance of which is increasing.
- The decision to order a preparatory hearing under Part III rather than a pre-trial hearing under Part IV has at least three immediate consequences for the trial itself. First, an order for a preparatory hearing, in effect, starts the trial (section 30). As explained in Re Kanaris  1 WLR 443 this impacts on the protection provided by section 2(2) of the Prosecution of Offences Act 1985 for defendants who are remanded in custody. Further, it establishes the identity of the trial judge who, having ordered and decided the preparatory hearing, should then normally preside over the subsequent trial (R v Southwark Crown Court ex parte Commissioners for Customs and Excise  1 WLR 764). Third, provided leave to appeal is obtained in the usual way, the decisions of the trial judge at the preparatory hearing may be appealed to this Court. If so, the empanelling of the jury must be postponed until the appeal is determined, or abandoned (section 35(1)). Therefore, although the trial is started, there is a simultaneous risk of delay due to the possibility of an interlocutory appeal to this Court. These significant consequences immediately distinguish the statutory regime of a preparatory hearing from the different statutory regime of a pre-trial hearing and ruling.
- We must notice two further developments, already enacted in the Criminal Justice Act 2003 ("CJA 2003"), and awaiting implementation. By sections 309 and 310 of the CJA 2003, amendments will be made to Part III of the CPIA 1996. We shall refer to them in their context. Perhaps more important, by Part 9 of the CJA 2003, the prosecution is given a general right of appeal in respect of evidentiary "rulings" made by the judge during or for the purposes of the trial, which include rulings that the defendant has no case to answer. In short, before long, the system of interlocutory appeals will be further extended. This will have implications for the work of this Court, in particular the arrangements for listing and disposing of appeals against conviction as well as sentence, and the organisation of limited resources. There is, therefore, a risk that an increased use of interlocutory appeals could gradually permeate the criminal justice system so that the need for trials to be driven forward to their eventual conclusion will somehow be perceived to be less imperative. As against this risk it needs to be recognised that appeals against preparatory hearings have a real advantage for long or complex cases. They can, for example, avoid the unnecessary quashing of convictions and retrials because of misdirections and they can substantially shorten trials.
- It follows that the decision whether to proceed to a preparatory or pre-trial hearing requires an informed judgment, and close attention to the statutory provisions which create the jurisdiction to order a preparatory hearing. By section 29 of the CPIA 1996 a judge of the Crown Court lacks power to order a preparatory hearing unless:
"(1) … it appears to [him] that an indictment reveals a case of such complexity, or a case whose trial is likely to be of such length, that substantial benefits are likely to accrue from a hearing –
(a) before the jury are sworn, and
(b) for any of the purposes mentioned in subsection (2) …
(2) For the purposes of those of
(a) identifying issues which are likely to be material to the verdict of the jury;
(b) assisting their comprehension of any such issues;
(c) expediting the proceedings before the jury;
(d) assisting the judge's management of the trial."
- The "seriousness" of the case will add to the criteria of complexity and length when the amendments made by sections 309-310 of the CJA 2003 come into force.
- It is clear that this jurisdiction cannot be vested by agreement between the parties, nor indeed just because a preparatory hearing may, notwithstanding the potential disadvantages already identified earlier in this judgment, be thought useful or beneficial. As Lord Bingham of Cornhill explained in R v Shayler  1 AC 247 at 265:
"… resort to this procedure is only permissible where the case appears complex or likely to lead to a lengthy trial. But in such cases the procedure can be highly beneficial."
- Before ordering a preparatory hearing, the judge must therefore identify factors relevant to the criteria, whether complexity, or likely length, or both, bearing in mind the specific, but limited purposes identified in section 29(2) of the CPIA 1996. By referring to what may be revealed by the indictment itself, the language of section 29(1) differs from that used in section 7 of the CJA 1987, which refers to "the evidence on an indictment …". In practical terms, however, the judgment cannot be made solely on the basis of a study of the terms or length of the specific indictment, which while likely to reveal something about seriousness (not yet a factor relevant to the judge's consideration) will provide him with negligible, and at times, positively misleading information about the complexity or potential length of the case. We do not think the enquiry can be so confined, and the statutory provisions in section 29(2) and (3) demonstrate that it is not.
- Consideration of the indictment on its own cannot assist the judge to evaluate all the purposes which he is expressly required to consider by section 29(2) of the CPIA 1996. If his analysis were confined to the indictment alone, in the vast majority of cases the judge would be unable to reflect and make decisions to enhance case management of the trial and its efficient progress before the jury. Moreover, section 29(3) requires that where the judge, considering whether to order a preparatory hearing, concludes that the evidence on an indictment reveals a case of fraud which comes within s 7(1) of the CJA 1987, he may not make an order under section 29 of the CPIA 1996 but must order the case to proceed under the CJA 1987. It seems to us improbable that the judge should be examining the evidence for this purpose, while he is simultaneously excluded from considering the evidence relevant to complexity or length for the purposes of section 29(1). In these circumstances, notwithstanding the difference in the language between section 7 of the CJA 1987 and section 29(1) of the CPIA 1996, the judge's decision should be made on a basis which achieves consistency between the two sections. Accordingly, under section 29(1) the judge is entitled to consider the evidence which is likely to be called and, having done so, to make his own judgment whether in the particular case he should order a preparatory or pre-trial hearing.
- When the judge in the Crown Court has purported to accept jurisdiction, it may be apparent that he misdirected himself by assuming jurisdiction on an impermissible basis, for example, simply that it would be "convenient" for a question of law to be decided, or, without referring to the hearing as a preparatory hearing at all, or because it might be useful for the prosecution to test his ruling on appeal before the trial (R v Ward & ors  2 Cr App Rep 315). If, however, the judge has addressed the issues of complexity and length, in the context of the declared purposes of any preparatory hearing, and decided to proceed on the basis that the potential advantages outweigh the disadvantages, this Court will be reluctant to set aside what under the section and, on the facts of the individual case, is a matter for judicial assessment and decision by the trial judge.
- There will be cases which obviously fit within the relevant statutory criteria and purposes. There will be others where these issues are not as clear-cut. The judge may, for example, decide to start the investigation on the basis that he has in mind to make a pre-trial ruling under Part IV, and then, during the course of the argument, decide that on analysis the relevant criteria are established. As a matter of jurisdiction we see no reason why, having heard from both sides and exercising his discretion, the judge may not conclude that a preparatory hearing should be ordered and start then and there.
- If there is no relevant material on which the judge can properly conclude that the case fell within section 29(1), there is no jurisdiction to make an order for a preparatory hearing under section 29 and unless the House of Lords concludes otherwise, this Court similarly lacks jurisdiction. This appears to follow from a consistent line of authority in relation both to section 7 of the CJA 1987 and section 29 of the CPIA 1996, of which R v Ward & ors provides an illuminating recent example. In R v Ward & ors, again consistent with authority, the court declined to hear any argument on the substantive point raised in the appeal. However, it does not necessarily and inevitably follow that this Court is precluded from inviting argument and making observations about the substantive issue for the assistance of the Crown Court, if it sees fit. Not to do so could lead to grave inconvenience if, for example, a case then as a result proceeded on a wrong understanding of the law.
- The present appeals provide a good example. The reverse burden of proof and the possible application of Article 6(2) of the European Convention of Human Rights, arise in different circumstances. It has been helpful to our decision of principle to hear and consider argument in each of the cases which raised different aspects of the same problem. Having done so, we can see no reason why we should, and practical reasons why we should not, decline to make any observations about the impact of the reverse burden of proof in every one of these cases, even where the trial judge failed to distinguish between a preparatory and a pre-trial ruling, or even where none of the necessary criteria for a preparatory hearing in fact existed. On any view, in each of these cases an important and potentially controversial point of law needed decision, or at the very least, analysis and discussion, and even if persuaded that the criteria for a preparatory hearing may not have been established in one or other of them, to the extent that we think appropriate, we are entitled to express our views on these issues as they impact on each case.
- It is convenient if we now turn to the facts of the individual cases and then set out our conclusions in respect of each case. However, we will begin combining our conclusions in respect of the Reference and Edwards as they involve a consideration of the same statutory provisions.
Attorney General No. 1 of 2004
- Section 353(1) of the IA Act 1986 provides that a bankrupt shall be guilty of an offence if:
"… (b) He does not inform the official receiver or the trustee of any disposal of any property which but for the disposal would be so comprised, stating how, when, and to whom and for what consideration the property was disposed of."
- Section 357(1) of the IA Act 1986 provides for a further offence by a bankrupt who,
"… makes or causes to be made, or has in the period of five years ending with the commencement of the bankruptcy made or caused to be made, any gift or transfer of, or any charge on, his property."
- Section 352 of the IA Act 1986 provides that, among others, the offences identified in section 353(1) and 357(1) shall not apply to the bankrupt who:
"… proves that, at the time of the conduct constituting the offence, he had no intent to defraud or to conceal the state of his affairs."
- This Reference by the Attorney General under section 36 of the Criminal Justice Act 1972 seeks this Court's consideration and opinion on two points of law:
(1) Does section 352 of the Act read with sections 357(1) and 353(1) of the Act breach Article 6 if interpreted as imposing a legal burden on the defendant?
(2) If so, can section 352 be interpreted, applying section 3 of the HRA 1998, so as to impose a merely evidential burden on the defendant?
- The relevant facts can be summarised very briefly. On 12 November 1999, UCB Home Loans Corporation Ltd had presented a petition in bankruptcy against the defendant. Her deficiency was estimated at £17,600. The defendant was declared bankrupt on 6 January 2000.
- On 21 January 2000 she attended the office of the Official Receiver. She therefore made a narrative statement and completed form B40.01. She stated that she had no cash held by anyone for her and that she had not in the previous five years transferred, sold or given away any of her possessions or assets for less than their value/cost. She declared that she had been the joint owner, with her brother, of three properties in Beech Station Road, but stated that she had received only £3,547 from the sale of these properties, and that she had repaid some of her debts from the proceeds of sale.
- The defendant failed to disclose that in the five years prior to her bankruptcy she owned a four bedroom detached property in Tomline Road which she sold on 17 August 1998 for £96,500. This formed the basis of the alleged contravention of section 353(1) of the IA Act 1986. The defendant also failed to disclose that a few days later, on 20 August 1998, she transferred £82,000 of the proceeds to her then partner of five years. This transaction formed the basis of the alleged contravention of section 257(1).
- Not long afterwards, on 4 September 1998, this sum was used to purchase another property at South Hill which became the home of the defendant, her partner and her young son which was sold in February 2001. Thereafter the relationship between the defendant and her partner broke down. His whereabouts is currently unknown. The official receiver was unable to recover any of the £82,000.
- When interviewed, the defendant explained that the transfer of the £82,000 had taken place when her partner promised to take care of her son should she die. At the time of the transfer she was suffering from depression. In evidence at trial, the defendant stated that she had been diagnosed with cancer in November 1997, and that following operative treatment, she recovered in January 1998.
- On 8 May 2003, at Ipswich Crown Court, before Mr Recorder Hamblen QC, at a pre-trial hearing, the trial judge ruled that section 352 of the IA Act 1986, read with sections 357(1) and 353(1) imposed a legal burden on the defendant to prove the lack of intent to defraud or to conceal on the balance of probability, but that the imposition of such a legal burden unjustifiably interfered with the presumption of innocence guaranteed under Article 6. Accordingly, these sections should be read down under section 3 of the HRA 1998 so as to impose no more than an evidential burden on the defendant.
- Following that ruling, the case proceeded as a trial before the jury. The defendant gave evidence. She was acquitted.
R v Edwards
- This is an appeal from a decision by HHJ Hooton at Winchester Crown Court on 21 October 2002 on a hearing treated by him as a preparatory hearing under section 29 of the CPIA 1996. During the course of that hearing he considered the same issue as Mr Recorder Hamblen QC in relation to section 357(1) of the IA Act 1986, and the reverse burden of proof in section 352.
- The defendant is charged on an indictment alleging six counts relating to the fraudulent transfer of property in the five years before her bankruptcy in 2000. The allegation is that she spent money on holidays and gifts while owing money to her creditors. She pleaded not guilty on the basis that she had no intention to defraud her creditors at the time when she was disposing of her property. In essence, she admits that she was bad at managing her financial affairs, but asserts that she was not dishonest.
- After hearing argument, Judge Hooton concluded that in due course he would "direct the jury that the defendant has the burden of proving on the balance of probabilities that she had no intention to defraud or conceal the state of her affairs." He could see no incompatibility with Article 6. He gave permission to appeal. When Mr Hamblen gave the ruling which has resulted in the present Reference by the Attorney General, he was not aware of Judge Hooton's ruling.
Conclusions as to Attorney General's Reference No. 1 of 2004 and R v Edwards
- Insolvency offences have long been regarded as subject to special rules. The Debtors Act 1869 created a number of offences on the part of bankrupts, and in several cases the onus was placed on the defendant to prove that he had no intent to defraud. So did the Bankruptcy Act 1914. The Companies Act 1948 included a similar code in relation to offences committed by those involved in insolvent companies. The Report of the Cork Committee into Insolvency Law and Practice of 1982 (Cmnd. 8558), which led to the enactment of the IA Act 1986, stated that the Law Commission considered that insolvency offences should continue to be dealt with outside the general criminal law because:
"being a bankrupt … justifies the imposition of more stringent criminal liability than would be appropriate for solvent citizens."
- The reasons for this are not difficult to see. The law gives those involved in the affairs of a company the benefit of its corporate personality and in the case of most companies the additional very great benefit of limited liability. In the case of individual insolvency, the law relieves the bankrupt of personal liability for his debts, which are met out of his estate. These benefits drastically affect the rights and remedies of creditors. The proper working of our insolvency law depends on the inclusion in the assets of an insolvent company and in the estate of a bankrupt of all the assets that should be comprised in them. It can be tempting for those involved in the management of a company or a bankrupt to conceal or to dispose of such assets to the disadvantage of creditors. Furthermore, such concealment or disposals may be done by a person alone and in private: a failure to record or to disclose an asset, or a disposal of stock at an undervalue or the making of a disposal for nil consideration, may be known only to those involved in the transaction. There may well be no independent witnesses to the act in question. Whether there has been fraud will often be known only to the individual or individuals who are alleged to have committed the fraud.
- In our judgement, these considerations will normally justify the imposition on a defendant, who is proved to have deliberately acted in a manner that gives rise to an inference that he sought to defraud his creditors, of the burden of proving, on a balance of probabilities, that he did not intend to do so. In such cases, we bear in mind that Parliament might have created an offence to which fraud was irrelevant. It will be less easy to justify a reverse burden of proof in other cases: such offences must be considered individually.
- In R v Carass this Court held that in order to avoid incompatibility with the Convention section 206(4) of the IA Act 1986 must be read as imposing only an evidential burden on the defendant, i.e., that the imposition of a legal burden of proof was unjustified and would infringe Article 6(2). The Court did not refer to the special considerations that apply to insolvency offences referred to above. That case was decided before the decision of the House of Lords in Johnstone. In Carass, Waller LJ, giving the judgment of the Court, said, at :
"Furthermore, what we would glean from R v Lambert is that albeit it may be possible to justify imposing a legal or persuasive burden, the onus on those seeking to persuade the court that that is necessary in any case is a high one."
- However, as appears above, the House of Lords has moved on since Lambert. The Court in R v Daniel was understandably doubtful as to the correctness of Carass. We think that the Court in Carass would have reached a different conclusion if it had adopted the approach subsequently expressed in Johnstone. It follows that the decision in Carass cannot stand with Johnstone, and must be treated as impliedly overruled.
- We turn to consider the offences that are the subject of the Attorney General's Reference, beginning with that created by section 357(1) of the IA Act 1986. Notwithstanding the drafting of that provision, it is clear that fraud is an integral constituent of the offence. We say this not only because of the side note "Fraudulent disposal of property" (as to the relevance of which see the observations of the House of Lords in R v Schildkamp  AC 1) and the description of the offence in Schedule 10 to the IA Act 1986 ("Bankrupt fraudulently disposing of property"), but because, more importantly, it is unlikely that Parliament would have wished to render criminal and punishable with up to two years' imprisonment a disposition of property made innocently up to five years before the commencement of the bankruptcy. Moreover, unless fraud is an integral constituent of the offence, the effect of bankruptcy is retrospectively to render criminal a disposition that was innocent when made.
- Section 352 of the IA Act 1986 in its ordinary meaning imposes a persuasive or legal burden of proof on the defendant to disprove that (in relation to section 357) he had an intent to defraud. The question therefore arises whether that is justified.
- The ambit of section 357 of the IA Act 1986 is very wide indeed. It applies to disposals of property made long before the commencement of bankruptcy, and possibly at a time when there was no indication of insolvency. The prosecution does not have to prove that the bankrupt was aware of the possibility of his insolvency when he made the gift or disposal. There is no time limit on prosecutions. They cannot be brought until the insolvent has been made bankrupt, and are unlikely to be brought until a significant time afterwards. There is no minimum value of the gift or transfer for which the bankrupt may be called to account. The prosecution does not have to establish anything unusual or irregular in relation to the gift or disposition.
- We have seen nothing to indicate that Parliament addressed these characteristics of the offence when imposing a reverse burden of proof. There was no similar offence in the Bankruptcy Act 1914. The Cork Committee referred to that Act, and stated, in paragraph 1888:
"Under section 157(1)(c), an offence is committed by a bankrupt who fails to account for the loss of any substantial part of his estate incurred within a period of one year prior to the presentation of the petition. We recommend that this period should be increased to two years and that there should be an obligation to account for any depreciation of assets as well as for any loss of assets. A similar amendment was made by section 265(1)(h) of the Australian Bankruptcy Act 1966, following the recommendations of the Clyne Committee."
- That recommendation was of a far more limited offence than that created by section 357 of the IA Act 1986. The Committee did not recommend the creation of that offence. Parliament did not implement this recommendation: see section 354(3) of the IA Act 1986.
- In our judgement, to require the bankrupt against whom it is proved only that he has made a gift or other disposal or created a charge within 5 years before his bankruptcy to prove that he had no intent to defraud is not justified and infringes Article 6(2).
- Mr Perry suggested that the fact that by virtue of section 350(5) no prosecution may be brought under Chapter VI of the IA Act 1986 except by the Secretary of State or by or with the consent of the Director of Public Prosecutions is relevant to the compatibility of the provisions of that Chapter with Article 6. We disagree. Article 6 is concerned with the procedure relating to the trial of a criminal offence. The decision whether or not to prosecute is not the subject of Article 6. The appropriateness of a reverse burden, like the fairness of the trial, cannot depend on who decides whether there should be a prosecution.
- Section 352 of the IA Act 1986 applies to a number of offences under Chapter VI of the Bankruptcy Act. In the light of Lambert, we accept that in appropriate cases it may be read down as imposing no more than an evidential burden of proof. Its effect within Chapter VI depends on the context of its application. In section 357(1), it has to be so read.
- We turn to consider section 353(1)(b). It is subject to subsection (2):
"Subsection (1)(b) does not apply to any disposal in the ordinary course of a business carried on by the bankrupt or to any payment of the ordinary expenses of the bankrupt or his family."
- In order to bring a defendant within section 353(1)(b), therefore, the prosecution must prove:
i. that the bankrupt failed to inform the official receiver of a disposal of property that but for the disposal would be comprised in his estate; and
ii. that the disposal was not in the ordinary course of business or made in payment of his ordinary living expenses.
- It would be a normal inference from the failure to inform the official receiver of an unusual disposal that the bankrupt intended to defeat the claims of creditors or to conceal the state of his affairs. We see nothing unreasonable for a bankrupt against whom the above facts have been proved beyond reasonable doubt to have to establish on a balance of probabilities that when he failed to inform the official receiver of the disposal he did not intend to defraud or to conceal the state of his affairs. The intention of the defendant when he failed to inform the official receiver of the unusual transaction will be peculiarly within his knowledge, and he will know what his motive was. We do not think it apparent that the legislature attached insufficient importance to the fundamental right of an individual to be presumed innocent until proved guilty. Accordingly, we hold that section 353(1)(b) read together with section 352 is compatible with Article 6(2).
- In the case of Edwards, when HHJ Hooton decided that the hearing before him was a preparatory hearing, he did not refer to the requirements of section 29 of the CPIA 1996 and therefore made no finding whether they were satisfied. The material before us does not justify the conclusion that the case was complex or that the trial, which would have lasted only a matter of days was likely to be long. In these circumstances, despite the apparent convenience of the course he took, the judge should not have treated the hearing before him as a preparatory hearing. The trial should have proceeded and the issue as to the correctness of his ruling taken on appeal in the event of a conviction.
- However, it follows from our conclusions that the decision of HHJ Hooton in the case of Edwards was incorrect. The jury should be directed to the effect that the defendant only bears the burden of establishing that there is an issue as to whether the defendant intended to defraud (that being the intent alleged by the prosecution, as appears from the case summary), and that the prosecution then bears the burden of proving that in making the gifts and transfers referred to in her indictment, she intended to defraud her creditors.
- In the Attorney General's reference, Mr Recorder Hamblen QC came to the right conclusion and correctly directed the jury in relation to the offence charged under section 357(1), but to the wrong conclusion in relation to section 353(1). His direction under that section was unduly favourable to the defendant.
- We answer the questions of law that are the subject of the Attorney-General's reference as follows:
i. Section 352 of the IA Act 1986 read with section 357 of the Act does breach Article 6 of the European Convention on Human Rights if interpreted as imposing a legal burden on the defendant.
ii. Section 352 of the IA Act 1986 read with section 353(1) of the IA Act 1986 does not breach Article 6 of the European Convention on Human Rights if interpreted as imposing a legal burden on the defendant.
iii. Section 352 can be interpreted, in its application to section 357(1), so as to impose a merely evidential burden on the defendant.
We allow the appeal in Edwards.
R v Denton & Jackson
- Denton and Jackson are charged with an offence of unlawful eviction, contrary to section 1(2) of the Protection from Eviction Act 1977. This provides:
"If any person unlawfully deprives the residential occupier of any premises of his occupation or the premises or any part thereof, or attempts to do so, he shall be guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises."
- On 25 July 2002, HHJ Carroll sitting at Woolwich Crown Court concluded that the burden of proving the statutory defence was not in conflict with Article 6(2).
- Leave to Appeal was granted by the single judge on the basis that this decision followed a preparatory hearing, under section 29(1) of the CPIA 1996, and that the correctness of the judge's ruling should be considered by the Court of Appeal Criminal Division.
- For the purpose of this ruling, the relevant facts were not in dispute. In February 2001, the appellants let a property at 8 Greyfriars House, Colerain Road, Blackheath, London SE3 to Natalie Sands on an assured shorthold tenancy for a period of six months, beginning on 23 February 2003. A deposit of £1,000 was paid, and rent of £800 was payable monthly in advance.
- Ms Sands moved into the property on 23 February 2001. Shortly afterwards she made a number of complaints about items requiring repair. Communications with both defendants, and an employee of the estate agents who had secured the tenancy, broke down. This led Ms Sands to request an early release from the tenancy agreement. She was told that this course would not be acceptable to Mr Denton. In advance of the payment due on 23 April 2001, Ms Sands cancelled the standing order for payment of rent, stating that she did this with the intention that payment should take account of the problems of disrepair.
- On 25 April, when Ms Sands arrived at the premises at 6.45pm she found that her key would not fit the door. The door was opened by Ms Jackson, who, among other things, told Ms Sands that she no longer lived at the premises. She was ordered to remove her belongings and leave. A short struggle then developed between Ms Jackson and Ms Sands, and, after Ms Sands had called the police, in their presence she was permitted to remove some of her property from the flat. The appellants were present throughout. Thereafter Ms Sands spent the night in a hotel, and the remaining items of her property were delivered to the offices of the estate agent. In short, the appellants had deprived her of the occupation of the flat.
- The defence case was that Ms Sands had left the premises before 25 April and she only returned to the property on that evening to collect her belongings. At the door to the flat she had behaved aggressively towards Ms Jackson. The police had simply acted as mediators while she removed her property. The appellants had not deprived her of the premises. In any event, the appellants believed and had reasonable cause to believe that she had ceased to reside at the flat.
Conclusion as to Denton & Jackson
- For convenience we set out again section 1(2) of the Protection from Eviction Act 1977:
"If any person unlawfully deprives the residential occupier of any premises of his occupation or the premises or any part thereof, or attempts to do so, he shall be guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises."
- There is no dispute that the natural meaning of the words "unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises" is to impose a burden on the defendant to establish his reasonable belief on the balance of probabilities. The prosecution, however, has to prove beyond reasonable doubt the other elements of the offence.
- In order for there to be a lawful eviction it is necessary for the landlord to obtain a possession order and, if necessary, a warrant of execution. Parliament has clearly taken the view that an attempt to circumvent these procedures ought to be visited by criminal sanctions and that the potential for abuse and exploitation by landlords justifies this step. But the defence allows the landlord to escape criminal liability even where he unlawfully deprives the occupier of the premises if he reasonably believed that the premises were free to be occupied.
- Miss Goodall for the appellants submitted that as in Lambert and Carass it could properly be said that the gravamen of the offence was that the landlord should know that the victim was still occupying the premises, otherwise the mischief of the legislation was not advanced. Accordingly, this should be a matter which the prosecution ought to establish in the usual way. Moreover, she asserted that even if she were wrong about this, the circumstances were not such as to justify the reverse burden as a proportionate response to difficulties facing the prosecution. This was not a case where the matter to be established was solely within the knowledge of the defendant. The victim's evidence would be likely to be highly relevant in determining whether the landlord's alleged belief was reasonable. The problems of proof did not therefore warrant the imposition of the reverse burden.
- Miss Goodall also referred to the decision of this Court in R v Phekoo  1 WLR 1117. In that case the defendant was charged with doing acts calculated to interfere with the peace and comfort of residential occupiers so as to cause them to give up their occupation contrary to section 1(3)(a) of the Protection from Eviction Act 1977. The defendant contended that he did not know that the person harassed was a residential occupier, and that accordingly he could not be liable unless the prosecution proved that he did. The Court upheld this contention and accepted that once the issue was raised, it was necessary for the Crown to prove that the defendant did not honestly believe that the victim was a residential occupier.
- We reject these submissions for the following reasons. First, in our view the essence of the offence is unlawfully depriving the occupier of his occupation of the premises. The defence is available only if the defendant can bring himself within a narrow class of exceptions. As we have said, it will be a very rare case where the reverse burden is not justifiable in such circumstances.
- Second, the circumstances relied upon by the defendant are peculiarly within his own knowledge. Only he knows what his belief was, and this in our view reinforces the justification for framing the defence in this way. It would be burdensome and often impracticable for the prosecution to have to prove negatively that he did not have that belief, or reasonable cause for that belief.
- Third, the imposition of a criminal penalty is designed to regulate conduct, here the conduct of landlords, in the public interest, a factor which both Lord Steyn and Lord Clyde recognised in Lambert may justify a reverse burden (see paras 35 and 154 of the judgment respectively). There is clearly a strong public interest in deterring landlords from ejecting tenants unlawfully and to the extent that the provision infringes Article 6, there is in our view a manifest justification for it so doing.
- As to the Phekoo case, that was concerned with a different statutory provision, and moreover the Court in reaching its conclusion expressly had regard to the fact that section 1(2) was differently formulated from section 1(3) (see p93h).
- We have no doubt that in imposing a reverse burden, this subsection strikes a proper balance between the general interest of the community and the protection of the fundamental rights of the individual. Any infringement of Article 6(2) is both very limited and wholly justified. Accordingly, the appeals in this case fail.
- It is not necessary to say anything as to the appropriateness of holding a preparatory hearing in this case.
R v Hendley
- Ian Hendley is charged with murdering Jennifer Parish on 25 March 2002. They were not married, but lived together. On the night of 24/25 March 2002, they were together in the bedroom of a hotel in the West Midlands. At about 8.45am hotel reception was telephoned by the defendant, who said that his wife was dead. When ambulance staff arrived, Mrs Parish was found lying on a bed. She was obviously dead. The appellant told them that they had injected themselves with insulin: "it's a suicide pact".
- The Crown alleges that the defendant injected Mrs Parish with a huge overdose of insulin, but had used only a minor dose on himself. The defence will be that he survived the implementation of a suicide pact.
- Section 4(1) of the Homicide Act 1957 ("HA 1957") provides:
"It shall be manslaughter, and shall not be murder, for a person acting in pursuance of a suicide pact between him and another to kill the other or be a party to the other … being killed by a third person."
- Section 4(2) of the HA 1957 provides:
"Where it is shown that a person charged with the murder of another killed the other it shall be for the defence to prove that the person charged was acting in pursuance of a suicide pact between him and the other."
- At a preparatory hearing under section 29 of the HA 1957, Douglas Brown J considered whether the reverse burden of proof created a legal or persuasive burden or an evidential burden and concluded that if the defendant wished to raise the suicide pact defence, "the persuasive burden … is upon him to prove it on the balance of probabilities."
- The judge then gave leave to appeal to this court.
- At the hearing before the judge, counsel for both the prosecution and the defendant, at the outset, submitted that it was an appropriate case for a preparatory hearing under section 29 of the CPIA 1996. In his ruling, Douglas Brown J stated that he agreed with the submissions and thereafter conducted a preparatory hearing. He did not state the basis on which it appeared to him to be a proper case for a preparatory hearing but it can be assumed that it was on the basis of complexity. In the circumstances, in our view, the matter having been considered by counsel and the judge, the hearing can properly be described as a preparatory hearing and both the judge and this court have jurisdiction to deal with it as a preparatory hearing held pursuant to section 29.
Reverse Burden of Proof in Hendley
- In ruling that the reverse burden of proof in section 4(2) of the HA 1957 created a legal burden, Douglas Brown J adopted the formulation of the four central questions put to him by Mr Nigel Sweeney QC, counsel for the defendant. He ruled that section 4(2) made inroads on and derogated from Article 6(2), but that the prosecution could easily satisfy the burden of justifying its use. In respect of proportionality he asked himself the three questions referred to in the speech of Lord Hope in ex parte Kebilene (the Pannick questions) and resolved each in favour of the prosecution. In paragraph 44 of his ruling the judge set out the five factors which persuaded him to reach his conclusion. They were:
"1. The Crown must prove beyond reasonable doubt that a defendant killed the other or was a party to the killing before the need for any defence arises.
2. The defendant has to establish the suicide pact and the other elements only on a balance of probabilities.
3. The facts necessary to establish these matters will almost always lie within the defendant's sole knowledge.
4. Society has a legitimate interest in requiring that the grave offence of murder is only reduced to manslaughter after evidence has been adduced which can be tested in court.
5. The reverse or persuasive burden is necessary to provide some protection for society, particularly its vulnerable members, from murder disguised as a suicide pact killing."
- In this court Mr Sweeney QC submits that the judge, having asked himself the correct questions, reached the wrong conclusions. He submits that where a defendant charged with the grave offence of murder raises a section 4 defence it is contrary to Article 6(2) to place upon him the obligation of a legal burden of proof in respect of that defence. His submission is that the court should rule that the burden is only an evidential one.
- Mr Sweeney QC reminded this court of the historical background leading up to the enactment of the HA 1957 and the Suicide Act 1961. He points to the fact that before the HA 1957 a survivor of a suicide pact would be guilty of murder. This applied even if the deceased died by his own hand rather than the hand of the survivor (see R v Croft  KB 295).
- Against this background in support of his principal submission Mr Sweeney QC makes a number of subsidiary submissions which in summary are as follows:
i. Society and the courts now take a more humane and sympathetic approach to suicide and the survivors of a suicide pact.
ii. By requiring a defendant to prove a section 4 defence, society risks the possibility of a survivor of a suicide pact being convicted of murder on less than the criminal standard of proof.
iii. The argument that the prosecution is faced with the obstacle of proving a negative in a situation where only one person survives does not, in modern times, bear scrutiny. Advances in science have provided the prosecution with many tools which enhance its ability to negative such a defence.
iv. The circumstances in which the prosecution is faced with the task of negativing defences where the defendant is the sole witness to a killing, commonly occur in murder cases. Defences of self-defence, provocation, lack of intent and automatism have not in the past proved insuperable hurdles to the prosecution obtaining convictions for murder where only one person survives as a witness to the killing.
v. The section 2 defence (diminished responsibility) is of a different character and can be distinguished from the section 4 defence. The fact that the former has been found to be compliant with Article 6(2) affords no support for the proposition that the section 4 defence involves the legal burden of proof.
- Mr Sweeney QC relied on dicta in Lambert, Johnstone and Sheldrake to support his argument that section 4(2) should be read down so as to reduce the defendant's obligation to that of an evidential burden.
Conclusion as to Hendley
- Powerful as Mr Sweeney QC's arguments are, we are unable to accept them. It is quite clear that the section 4 defence is one which only arises once the prosecution has proved by evidence or admissions all the elements which constitute the offence of murder. In such circumstances, as we have indicated earlier in this judgment, the burden on the prosecution to justify the reverse burden of proof and show that it is proportional is more readily discharged. We recognise that the mandatory penalty for murder is the harshest that the court can impose, but there can be no doubt that Parliament in the HA 1957 singled out the defences of diminished responsibility and suicide pact as ones which required proof by a defendant. In our judgment, the history leading up to the passing of the HA 1957 shows that, in respect of a survivor of a suicide pact, Parliament was only prepared to reduce the offence of murder to manslaughter if the survivor proved the existence of such a pact. In doing so, no doubt it had in mind the fact that in many cases the only evidence of such a pact would emanate from the survivor. As Douglas Brown J pointed out in his ruling, not only will the facts necessary to establish the defence lie within the defendant's knowledge but also the reverse legal burden provides protection for society from murder disguised as a suicide pact killing.
- Further, in our judgement, any differences between the defence of diminished responsibility and the section 4 defence are not so significant as to lead us to distinguish between the two. The former has been declared by this Court to be compliant with Article 6(2) (see R v Lambert, Ali and Jordan  Cr App Rep 14) and by the European Commission of Human Rights (Robinson v UK Application Number 20858/92 unreported, 5 May 1993).
- In the circumstances, in our judgement, the ruling of the judge was correct and the appeal must be dismissed.
R v Crowley
- On 23 April 2003 in the Crown Court at Snaresbrook before Mr Recorder Popat, this appellant pleaded guilty on re-arraignment to racially aggravated harassment, and on 14 May she was sentenced to twelve months imprisonment. Arising from these proceedings, she was charged with an offence of battery (count 2) and also with witness intimidation contrary to section 51(1) of the Criminal Justice and Public Order Act 1994 ("CJPOA 1994") (count 1). Before trial she pleaded guilty to battery, and on 4 July, in the Crown Court at Snaresbrook before HHJ Bing and a jury, she was convicted of witness intimidation. She was sentenced to a total term of 9 months imprisonment, to run consecutively to the order made by Mr Recorder Popat. She now appeals against conviction with leave of the single judge.
- Section 51(1) of the CJPOA 1994 provides:
"A person commits an offence if
(a) he does an act which intimidates, or is intended to intimidate another person;
(b) he does the act knowing or believing that the victim is assisting in the investigation of an offence or is a witness or potential witness or a juror or a potential juror in proceedings for an offence; and
(c) he does it intending thereby to cause the investigation or the course of justice to be obstructed, perverted or interfered with."
- Section 51(7) of the CJPOA 1994 further provides:
"If, in proceedings against a person under subsection (1) above it is proved that he did an act falling within paragraph (a) with the knowledge or belief required by paragraph (b), he shall be presumed unless the contrary is proved, to have done the act with the intention required by paragraph (c) of that subsection."
- The essential facts giving rise to this prosecution began as a dispute between neighbours which culminated in a complaint by the appellant's neighbour of harassment. Criminal proceedings were started, and are due to be heard in April 2004.
- On 17 March, while the appellant was awaiting trial, she assaulted her neighbour, the complainant and chief prosecution witness, in the street.
- During the course of their encounter, the appellant took hold of the neighbour by the wrists, calling her a "fucking bitch" and asking, "what have you done to me?". The neighbour alleged that she was then pushed against a parked car, an allegation denied by the appellant. An off-duty police officer was able to intervene and separate the two women. The neighbour said that during the incident she felt sick and was frightened for her life. The appellant's account of the incident was that she had approached her in order to apologise for what had happened earlier and to try and resolve the original dispute. When she asked, "what have you done to me?", she was referring to the fact that she and her children had been forced to move out of their home, which had caused her to be upset. On the occasion of the incident she had been drinking, but had not intended to intimidate her neighbour.
- The judge concluded that section 51(7) of the CJPOA 1994 imposed a legal burden on the defence, and rejected an application that the proceedings should be stayed as an abuse of process following the appellant's plea of guilty to count 2, an allegation which was said to arise from precisely the same circumstances as the witness intimidation alleged in count 1.
- The judge's direction to the jury on the "reverse burden of proof", after accurately analysing the factual ingredients of the matters which required proof by the prosecution, continued, that if sure of those matters,
"You must consider whether the defendant has proved to you that she did not have the intention of obstructing or perverting the investigation. The law is that it is a matter for her to prove on all the elements and all the evidence, but whenever the law requires a defendant to prove something, she does not have to make you sure of it, she only has to show that it is more probable than not that she only had the intention – in this instance – of harassing Mrs Tang and not of intimidating her as a witness. … if you decide that probably she did only have the motive of harassment rather than of obstructing justice, then find her not guilty. It is only if she has failed to prove, on the balance of probabilities, that she had no intention of obstructing justice, that you can find her guilty, providing, of course, the other elements of the offence are made out."
- This direction logically followed the judge's interpretation of section 51(7) of the CJPOA 1994 and the circumstances in which the burden of proof was imposed on the defendant, and plainly if that interpretation was wrong, his direction was similarly flawed.
- Leave to appeal was given by the single judge.
Conclusions as to Crowley
- The defendant appeals against conviction on two grounds. Those grounds are first that the judge's direction to the jury on the reverse burden of proof was wrong in law; and secondly that he was wrong to reject a submission that to permit the prosecution to proceed on count 1, the defendant having pleaded guilty to count 2, was an abuse of process. We need say little about the second ground. The answer to it is contained in the skeleton argument of Miss Azza Brown, counsel for the prosecution. Although the facts relied on by the prosecution in respect of count 2 are the same as those relied on in respect of count 1, the essential ingredients of the two offences are different. There was, therefore, no bar to the prosecution proceeding on count 1 (see Connelly v DPP  AC 1254 at page 1324). Mr Michael Newport, counsel for the defendant, wisely, in our view, did not press this ground.
- As to ground 1, before the summing-up, the judge heard submissions from both counsel and gave a ruling. It is implicit in his ruling that section 51(7) of the CJPOA 1994 engaged Article 6(2) and amounted to a derogation from it. Having referred to L v DPP and ex parte Kebilene he went on to conduct a balancing exercise coming down in favour of the prosecution. He said (ruling transcript page 3G):
"Pausing there, the whole issue of the fairness of trial depends upon witnesses willingly and freely coming forward and giving their evidence without fear and, therefore, the general overriding and overarching policy objective of a state preventing witness intimidation appears to me to strike the balance in favour of the state on the balancing test set out by Lord Hope."
- Mr Newport submits that section 51(7) should be read down so as to impose on the defendant an evidential burden rather than a legal one. He contends that the presumption in section 51(7) goes to the heart of the offence. He points to the fact that the prosecution only has to prove the matters set out in section 51(1)(a) and (b) for the final element of the offence in section 51(1)(c) to be presumed, unless the contrary is proved. In the circumstances this is an offence which renders the defendant liable to be convicted on something less than the criminal standard of proof. He submits that such a construction is neither fair to a defendant nor justified; and it does not satisfy the test of proportionality.
- In our judgement the judge's ruling and his direction to the jury were correct. We accept Mr Newport's submission that the reverse burden of proof in section 51(7) is one which involves an ingredient of the offence and not one which provides a special defence. However, in our view imposing a legal burden of proof in respect of this offence is both justified and proportional.
- Witness and jury intimidation represents a very serious threat to the proper administration of criminal justice. It is the experience of all the members of the court that such intimidation has in the recent past substantially increased and continues to do so. In our opinion, it is quite understandable that Parliament by legislation should wish to take strong measures to stamp out such conduct. In our view, once it is proved that a person does an act which intimidates or is intended to intimidate another person; and he does so knowing or believing that the victim is a potential witness or juror, it is entirely reasonable that the burden of proving that he had no intention to pervert or interfere with the course of justice, should rest with him. In carrying out the balancing exercise between the potential detriment to a defendant caused by the imposition of the legal burden imposed by section 51(7) and the mischief which Parliament is seeking to eradicate, like the judge, we are of the opinion that the balance comes down firmly in favour of the prosecution. We have no hesitation in concluding that for this offence the legal burden of proof imposed on a defendant is both justified and proportional. We reach this conclusion despite Mr Newport's valiant efforts to persuade us otherwise.
- For these reasons the appeal of the defendant against conviction must be dismissed.