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England and Wales High Court (Administrative Court) Decisions
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Cite as:  QB 137,  EWHC Admin 882,  3 WLR 863
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IN THE SUPREME COURT OF JUDICATURE
QUEEN’S BENCH DIVISION
APPEAL BY WAY OF CASE STATED
FROM THE WEST LONDON YOUTH COURT
|Royal Courts of Justice|
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE POOLE
STUART LYNCH Appellant - and - DIRECTOR OF PUBLIC PROSECUTIONS Respondent
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
David Perry and Louis Mably (instructed by The Crown Prosecutions Service, Ludgate Hill for the Respondent)
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Pill:
This is an appeal by way of case stated by Stuart Lynch against the adjudication of District Judge Philips sitting at the West London Youth Court on 23 October 2000. The appellant was found guilty of having in his possession on 30 August 2000 a lock-knife contrary to section 139 of the Criminal Justice Act 1988 (“the 1988 Act”). The District Judge found the following facts:
“(a) On 30th August 2000 at about 22.50 a Police Officer saw the Appellant throw an object behind a low wall in Becklow Gardens.
(b) That object was a lock knife.
(c) When interviewed by the Police the Appellant said that he had brought the knife to show it to friends of his brother.
(d) In the interview he accepted that the knife was his and that he had thrown it over the wall.”
The District Judge concluded:
“There is a clear social objective in discouraging the carrying of knives. The Court does not consider the chosen course of the legislator to contravene Article 6 [of the European Convention of Human Rights] as there is objective justification in the case of knives for the choice, and it is not disproportionate.”
The question for the opinion of this Court is:
“Was I correct in holding that the probative burden upon a defendant charged under Section 139 of the Criminal Justice Act 1988 does not conflict with Article 6 of the European Convention of Human Rights or should I have read the Section under Section 3 of the Human Rights Act 1988 to impose but an evidential burden upon a defendant?”
The 1988 Act, section 139, as amended by the Offensive Weapons Act 1996, provides:
“(1) Subject to subsections (4) and (5) below, any person who has an article to which this section applies with him in a public place shall be guilty of an offence.
(2) Subject to subsection (3) below, this section applies to any article which has a blade or is sharply pointed except a folding pocket-knife.
(3) This section applies to a folding pocket-knife if the cutting edge of its blade exceeds 3 inches.
(4) It shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article with him in a public place.
(5) Without prejudice to the generality of subsection (4) above, it shall be a defence for a person charged with an offence under this section to prove that he had the article with him –
(a) for use at work;
(b) for religious reasons; or
(c) as part of any national costume.
(6) A person guilty of an offence under subsection (1) above shall be liable
(a) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both.
(7) In this section ‘public place’ includes any place to which at the material time the public have or are permitted access, whether on payment or otherwise.
(8) This section shall not have effect in relation to anything done before it comes into force.”
I read the specific situations set out in section 139(5) as examples of what are capable of being good reasons and not as meeting a separate standard. No contrary submissions were made.
Article 6 of the European Convention on Human Rights provides, insofar as is material:
“1. In the determination 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 (“the 1998 Act”) provides:
“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”
The issue can be stated shortly: is the effect of section 139(1) and (4) to place a burden on the prosecution to prove beyond reasonable doubt that the defendant did not have a good reason for having the knife with him in a public place? Reformulated in terms of the duty on the prosecution, that is the second question posed by the District Judge and the one which has formed the basis for submissions. The two questions posed are not strictly alternatives. Section 139 may conflict with Article 6 but remain the law, pending a declaration of incompatibility and action by Parliament. It is first necessary to construe section 139 in the light of section 3 of the 1998 Act. It is submitted on behalf of the appellant that, properly construed, section 139(4) does not impose a probative burden on a defendant. If it does, the issue of incompatibility arises. Submissions have been made as to how section 139 should be read in the light of Article 6, section 3 and the authorities.
While the issue is not difficult to state, it is one which, in different reverse onus contexts, has attracted very considerable judicial attention in recent years. The volume of analysis and reasoning is such that to attempt fully to summarise it, or to analyse the somewhat diverse strands which emerge from it, would make this judgment one of intolerable length and elaboration. I refer to sufficient of the authorities, I hope, to demonstrate the nature of the problem, the guidelines which appear to me to emerge from the cases and the basis for the conclusion I have reached on section 139. Consideration of the issues of statutory construction and of the compatibility of the statute with Article 6 are sometimes intertwined in the authorities.
The leading case in the European Court of Human Rights is Salabiaku v France (1988) 13 EHRR 379. The Court stated:
“Presumptions of fact or 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 … . 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 exercise 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 define them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.”
In Attorney-General for Hong Kong v Lee Kwong-kut  AC 951 the Judicial Committee of the Privy Council considered whether a reverse onus provision infringed a right in the Hong Kong Bill of Rights to the same effect as Article 6(2). Giving the judgment of the Board, Lord Woolf stated the issues involved, at p 975:
“The issues involving the Hong Kong Bill should be approached with realism and good sense, and kept in proportion. If this is not done the Bill will become a source of injustice rather than justice and it will be debased in the eyes of the public. 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. It must be remembered that questions of policy remain primarily the responsibility of the legislature: see Reg v Downey, 90 D.L.R. (4th) 449, 466, and Reg v Chaulk, 62 C.C.C. (3rd) 193, 222. It would not assist the individuals who are charged with offences if, because of the approach adopted to ‘statutory defences’ by the courts, the legislature, in order to avoid the risk of legislation being successfully challenged, did not include in the legislation a statutory defence to a charge.”
In Brown v Stott  2 WLR 817, Lord Bingham of Cornhill considered statutory provisions alleged to offend against Article 6 by removing the privilege against self-incrimination. He stated at p 836:
“The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for. The general language of the Convention could have led to the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But this approach has been consistently eschewed by the court throughout its history.”
In the same case, Lord Hope of Craighead stated the test to be applied when considering whether a statutory provision is incompatible with a right under Article 6:
“The question whether a legitimate aim is being pursued enables account to be taken of the public interest in the rule of law. The principle of proportionality directs attention to the question whether a fair balance has been struck between the general interest of the community in the realisation of that aim and the protection of the fundamental rights of the individual.”
In R v Director of Public Prosecutions ex p Kebilene  2 AC 326 Lord Hope, by way of comment on Salabiaku, stated at p 384:
“As a matter of general principle therefore a fair balance must be struck between the demands of the general interest of the community and the protection of the fundamental rights of the individual: … .”
At p 386, Lord Hope added:
“Mr Pannick suggested that in considering where the balance lies it may be useful to consider the following questions: (1) what does the prosecution have to prove in order to transfer the onus to the defence? (2) what is the burden on the accused – does it relate to something which is likely to be difficult for him to prove, or does it relate to something which is likely to be within his knowledge or (I would add) to which he readily has access (3) what is the nature of the threat faced by society which the provision is designed to combat? It seems to me that these questions provide a convenient way of breaking down the broad issue of balance into its essential components, and I would adopt them for the purpose of pursuing the argument as far as it is proper to go in the present case.”
R v Lambert  3 WLR 206, was decided on the question whether the relevant provisions of the 1998 Act were retrospective. Consideration was, however, given to the effect of reverse onus provisions apparently present in sections 28(2) and (3) of the Misuse of Drugs Act 1971. In that context Lord Steyn considered the principle to be applied and the practical effect for a fact-finding tribunal of the decision as to where the onus rests:
“38. The principle of proportionality requires the House to consider whether there was a pressing necessity to impose a legal rather than an evidential burden on the accused. The effect of section 28 is that in a prosecution for possession of controlled drugs with intent to supply, although the prosecution must establish that prohibited drugs were in the possession of the defendant, and that he or she knew that the package contained something, the accused must prove on a balance of probabilities that he did not know that the package contained controlled drugs. If the jury is in doubt on this issue, they must convict him. This may occur when accused adduced sufficient evidence to raise a doubt about his guilt but the jury is not convinced on a balance of probabilities that his account is true. Indeed it obliges the court to convict if the version of the accused is as likely to be true as not. This is a far-reaching consequence: a guilty verdict may be returned in respect of an offence punishable by life imprisonment even though the jury may consider that it is reasonably possible that the accused had been duped. It would be unprincipled to brush aside such possibilities as unlikely to happen in practice. Moreover, as Justice has pointed out in its valuable intervention, there may be real difficulties in determining the real facts upon which the sentencer must act in such cases. In any event, the burden of showing that only a reverse legal burden can overcome the difficulties of the prosecution in drugs cases is a heavy one”
Lord Steyn concluded, at paragraph 41:
“In these circumstances I am satisfied that the transfer of the legal burden in section 28 does not satisfy the criterion of proportionality. Viewed in its place in the current legal system section 28 of the 1971 Act is a disproportionate reaction of perceived difficulties facing the prosecution in drugs cases. It would be sufficient to impose an evidential burden on the accused. It follows that section 28 is incompatible with the Convention rights.”
Lord Clyde, at paragraph 154, expressed views on reverse onus provisions in the context of certain classes of case:
“A strict responsibility may be acceptable in the case of statutory offences which are concerned to regulate the conduct of some particular activity in the public interest. The requirement to have a licence in order to carry on certain kinds of activity is an obvious example. The promotion of health and safety and the avoidance of pollution are among he purposes to be served by such controls. These kinds of cases may properly been seen as not truly criminal. Many may be relatively trivial and only involve a monetary penalty. Many may carry with them no real social disgrace or infamy,”
However, Lord Clyde stated, in the context of section 28 of the Misuse of Drugs Act 1971, that “by imposing a persuasive burden on the accused it would be possible for an accused person to be convicted where the jury believe he might well be innocent but have not been persuaded that he probably did not know the nature of what he possessed”.
Lord Hutton, alone in the House of Lords in Lambert, reached a different conclusion upon the effect of section 28(2) and (3). He stated, at paragraph 198:
“Therefore my conclusion is that the difficulty in some cases of convicting those guilty of the crime of possession of a controlled drug with intent to supply, if the burden of proving knowledge beyond a reasonable doubt rests on the prosecution, is not resolved by placing an evidential burden on the defendant, and that it is necessary to impose a persuasive burden as section 28(2) and (3) does. I further consider that the transfer of the onus satisfies the test that it has a legitimate aim in the public interest and that there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Accordingly I am of the opinion that section 28(2) and (3) does not violate article 6(2) and I am in full agreement with the Court of Appeal on this issue”
In the Court of Appeal  2 WLR 211, Lord Woolf CJ had stated at paragraph 16:
“In doing this it is important to start with the structure of the offences. If the defendant is being required to prove an essential element of the offence this will be more difficult to justify. If, however, what the defendant is required to do is establish a special defence or exception this will be less objectionable. The extent of the inroad on the general principle is also important. Here it is important to have in mind that article 6(2) is specifically directed to the application of the presumption of innocence of the ‘criminal offence’ charged. It is also important to have in mind that legislation is passed by a democratically elected Parliament and therefore the courts under the Convention are entitled to and should, as a matter of constitutional principle, pay a degree of deference to the view of Parliament as to what is in the interest of the public generally when upholding the rights of the individual under the Convention. The courts are required to balance the competing interests involved.”
By reference to Professor Glanville Williams’s article on “The Logic of Exceptions”  CLJ 261, 264-265, Lord Steyn also held that, applying section 3 of the 1998 Act, it is possible to read section 28 in a way which is compatible with Convention rights. Both Lord Steyn and Lord Cooke had expressed the same view in Kebilene. Lord Steyn stated that he would read section 28(2) and (3) as creating an evidential burden only, notwithstanding the presence of the words “it shall be a defence to prove”. At paragraph 42, he expressed agreement with these observations of Lord Hope at paragraph 94:
“I would therefore read the words ‘to prove’ in section 28(2) as if the words used in the subsection were ‘to give sufficient evidence’, and I would give the same meaning to the words ‘if he proves’ in section 28(3). The effect which is to be given to this meaning is that the burden of proof remains on the prosecution throughout. If sufficient evidence is adduced to raise the issue, it will be for the prosecution to show beyond reasonable doubt that the defence is not made out by the evidence”
On the issue whether a reverse onus provision conflicts with Article 6(2) the Court has not been invited to depart from the opinions expressed in Lambert that the words “for the accused to prove” in section 28(2) of the 1971 Act (or “for a person charged to prove” under section 139) can be read as covering a situation in which “sufficient evidence is adduced to raise the issue” (Lord Hope at paragraph 94). The source of the view expressed in Lambert is a footnote at p 265 of Professor Glanville Williams’s article:
“In Hunt  AC at 385D, Lord Ackner objected to this proposal [to leave the burden throughout on the prosecution] on the ground that ‘the discharge of an evidential burden proves nothing – it merely raises an issue’. This is the orthodox view, and I agree that, as a matter of the desirable use of language, it is better not to speak of an evidential burden of proof. But the question now under consideration is not whether a particular use of language is proper or undesirably lax, but the meaning that our legislators (that is to say, the framers of our legislation) actually intended by the words they used. If, where an evidential burden lies on the defendant, the jury acquit, this is because they feel at least a reasonable doubt whether the defendant is guilty. It does not appear to be wholly discordant with ordinary language to say that, in such a case, at least a reasonable doubt as to guilt has been established; and if ‘established’ why not ‘proved’? It may not be the best use of words, but if there is a reasonable possibility that this is how the words ‘prove’ and ‘proof’ have been intended, and if this interpretation diminishes the likelihood of miscarriages of justice, we should accept it.”
I respectfully agree that it is better not to speak of an evidential burden of proof. It merely raises an issue, as Lord Ackner and Lord Hope have stated. Referring to an evidential burden in Jayasena v The Queen  AC 618 at 624, Lord Devlin stated:
“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 production of evidence that falls short of proof”
Moreover, the so-called 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. A defendant is entitled, if the hearing is to be a fair hearing under Article 6, to have that evidence scrutinised by the court. In a section 139 context, a good reason will often be obvious from the circumstances in which the defendant is found in possession of the article which has a blade or is sharply pointed. The woman with knitting needles in the extreme case mentioned in the course of argument can expect it to emerge, if it be the case, that she is also carrying a ball of wool and is approaching the hall where the weekly knitting guild is being held. Since it is only necessary that an issue be raised, I do most diffidently express the view that to describe it as “proof” not only is not the “best use of words” but deprives the word “proof”, as commonly used inside and outside the criminal courts, of any meaning. Better, in my view, to look to incompatibility than to treat the English language in that way. The fact that on the evidence a doubt is present as to whether a proposition is proved does not prove a proposition directly contrary to it.
Assuming that the dissident view I have expressed must be rejected, and that section 3 of the 1998 Act permits the word “prove” to be construed by the Courts in the way stated by Lord Steyn in Lambert, I still cannot accept that the intention of parliament in 1988 was to use the word in that way. Parliament intended a reverse onus following a long-standing practice deplored by Professor Glanville Williams. Indeed I do not read the speech of Lord Steyn in Lambert as requiring the Court to construe the word “prove” in a way which Professor Glanville Williams regarded as “not the best use of words”. It is necessary to do so to obtain compliance with Article 6(2) only if the reverse onus which emerges from the conventional use of the word “prove” involves a breach of Article 6(2).Thus I consider whether Article 6(2) permits a reverse onus in present circumstances.
Mr Ryder, for the appellant, submits that the Court need look no farther than the opinions of the majority on this issue in Lambert to decide that a reverse onus breaches Article 6(2). In substance the offence under section 139 is not, without good reason, to carry in a public place an article which has a blade or is sharply pointed. The burden of proving each element should be upon the prosecution. Mr Ryder relies upon the widespread carrying in public, for good reasons, of bladed articles and submits that it is oppressive in such circumstances to require a good reason to be proved by a defendant. Moreover, the defence is onerous in that it has a dual requirement, first to establish the facts and then to establish that the facts amount to a good reason. It is also submitted that a reverse burden is more difficult to justify in the case of a young person such as the appellant.
I consider the starting point to be the decision in Salabiaku which permits a reverse onus but requires presumptions of fact or of law to be defined within reasonable limits. As Lord Bingham stated in Brown, there are no hard edged and inflexible statements of principle. A fair balance must be struck.
In my judgment, that fair balance permits the existence of a reverse onus in the context of section 139 of the 1988 Act:
(1) The section is readily distinguishable, for present purposes, from section 28 of the Misuse of Drugs Act 1971. As Lord Steyn stated at paragraph 38 of Lambert, section 28 requires the defendant to prove on a balance of probabilities that he did not know that a package proved to be in his possession contained controlled drugs. Under section 139, it is for the prosecution to prove that the defendant knowingly had the offending article in his possession. A defendant is obviously vulnerable in a situation in which a package the contents of which he cannot know is handed to him or the contents of which for a variety of reasons he may not know. The present situation is different in that it is for the prosecution to prove that the defendant knows he had the relevant article in his possession.
(2) There is a strong public interest in bladed articles not being carried in public without good reason. I do not find it obviously offensive to the rights of the individual that it is for him to prove a good reason on a balance of probabilities. Respect should be given to the way in which a democratically elected legislature has sought to strike the right balance, as in my view it has. Parliament is entitled, without infringing the European Convention on Human Rights, to deter the carrying of bladed or sharply pointed articles in public to the extent of placing the burden of proving a good reason on the carrier.
(3) The defendant is proving something within his own knowledge.
(4) Notwithstanding the adversarial nature of English proceedings, a defendant is entitled, under Article 6, to expect the Court to scrutinise the evidence with a view to deciding if a good reason exist. That applies whether he gave evidence or not.
(5) In the great majority of cases, I would expect the fact-finding tribunal to make a judgment as to whether there was a good reason without the decision depending on whether it has to be proved that there is a good reason or that there is not a good reason. The present case is a good illustration. The fact finding tribunal will need to make a value judgment as to whether, upon all the evidence, the reason is a good one. Either there is or there is not a good reason though I accept that there will be cases in which the fact-finding tribunal may attach significance to where the burden of proof rests.
(6) In distinguishing Lambert, I would give some, though limited, weight in striking the balance to the much more restricted power of sentence for this offence than for an offence under section 28. A section 139 offence is undoubtedly “truly criminal” but at least the aggravating feature of a potential life sentence, to which Lord Steyn attached weight in Lambert, is not present. This factor cannot be decisive, however.
For those reasons, I would answer the latter part of the question for the opinion of the Court in the negative. I would also hold that section 139 of the Criminal Justice Act 1988 does not conflict with Article 6 of the European Convention of Human Rights. I would dismiss the appeal.
Mr Justice Poole:
I agree. It is an interesting consequence of the Human Rights legislation that the same word “prove” must now be taken to mean two wholly different things in one and the same subsection, namely section 28(2) of the Misuse of Drugs Act 1971. The common law has traditionally adopted a practical and empirical approach to the questions that come to confront it, and granting the fullest possible weight to the Human Rights Act 1998 and to the Convention it enshrines, there is nothing in them that need compel judges to abandon that approach. In the course of argument I asked counsel, each of whom (understandably enough) had been prepared to speculate about what the practical effects of our finding this way or that way on the argument would be, whether there was any empirical or even anecdotal evidence that section 139 had worked any verifiable injustice to defendants during the 13 years of its operation by reason of the persuasive burden it has imposed on them. In fairness to Mr Ryder, I would not have expected a ready answer from him to the question. It may be in the nature of things that such injustices, if they existed, would remain hidden. But it may be worth recording my instinct that such injustices, if they ever existed at all, would be very hard to find.
There is I think a reason for this, and one that distinguished cases brought under this section from those brought under section 5(3) of the Misuse of Drugs Act; and it is the reason noted by Mr Perry both at paragraph 13.3 of his written submissions and again in his argument before us, namely that the essential point is that an accused who carries a knife (or other bladed or sharply pointed article) knows at the time he commits the act in question, that his conduct amounts to a criminal offence unless he can bring himself within the exemption specified within the section: contrast the accused in the prosecution under section 5(3) whose defence is that he did not know he was carrying drugs at all.
For the rest, I respectfully adopt the reasons of my Lord. The social problem at which the section is aimed is only too real, and unhappily it is commonly the case that those who present it are relatively young males. But neither the young apprentice carrying his tools to work, nor the grandmother carrying her knitting needles to her daughter’s (both images conjured up in argument) have anything to fear I believe from the reverse onus reading of this section, which I would regard as a proportionate measure, weighed by Parliament, and well within reasonable limits.
LORD JUSTICE PILL: For the reasons given in the judgment handed down, this appeal is dismissed. Are there any applications?
MR RYDER: My Lord, there is an application in relation to appeal.
LORD JUSTICE PILL: Yes, Mr Ryder.
MR RYDER: May I begin by, I hope, referring to the question which has been handed up?
LORD JUSTICE PILL: Yes.
MR RYDER: This question came about really because I drafted a question and I sent it over to Mr Perry, who helpfully reworked it in a more eloquent form than I had originally drafted. It is an agreed question in the sense that we both----
LORD JUSTICE PILL: Well, as agreed, it seems to us to be impeccably worded.
MR RYDER: Mr Perry takes credit for that.
LORD JUSTICE PILL: Mr Perry, do you have any objection to certification?
MR PERRY: My Lord, no.
LORD JUSTICE PILL: Then we are minded to certify.
MR RYDER: I am grateful. My Lord, the other question is permission.
In relation to permission I would make the following points. Firstly, Lambert is clearly the most important recent decision in this area, and obviously one which occupied your Lordship to some great extent in the hearing, and to a greater extent in the judgment. I hope it is fair to say that in relation to the position of Lambert, prior to that decision one might say that in English law the Hunt v Edwards distinction was one which was fairly clear-cut and easily seen. But, again, I hope it is fair to say that in view of the judgment of Lord Clyde, Lord Hope and Lord Steyn in Lambert, that distinction seems to be much more difficult to see, particularly since all three of their Lordships, particularly Lord Clyde and Lord Steyn, seem to say that that rigid distinction between what might be an "excused defence" and what might be, for example, a "knowledge defence", and whether it falls on different sides of the line, would probably only be applicable in offences which are not truly criminal or which are more regulatory in nature, to use Lord Clyde's analysis.
In my respectful submission, there is some significant difficulty for us all in determining where a particular offence would fall in terms of the Lambert side, or the side that has been determined by this decision.
I think I can illustrate the confusion to some extent in the following way, I hope I will be forgiven for providing some anecdotal evidence here. But I do know from my colleague in chambers that there has been a decision in relation to an offence under the Education Act, in which strict liability offences of not ensuring that one child's went to school was subsequently read to not only include a good reason defence, which was not set out in the statute but, furthermore, that good reason defence should be on a defendant only to the extent of an evidential burden in the light of Lambert.
Similarly, I am also informed by the solicitor who originally instructed me in this matter that there have been applications made in relation to section 5 of the Public Order Act 1986, relating to the good reason or lawful excuse offence in relation to threatening words or behaviour and that the decision in Lambert might now cause that burden, that had been on a defendant, to now be on a defendant only to the extent of an evidential burden.
It may be of some very limited weight, but the topic of discussion, a number of topics of discussion, at the Criminal Bar Association Conference this year is whether the decision in Lambert has removed legal burdens on defendants in its entirety. That is a matter very much up for debate not only amongst the Bar but, presumably, amongst the Bench also, and also in academic circumstances as well.
So, in my respectful submission, there is some clarification needed as to how to approach offences like this, summary offences, where there is a reasonable excuse offence which, on your Lordship's decision, could not be rigidly -- or Lambert could not rigidly be applied in the same way.
Additionally, I would also argue that Mr Perry's very eloquent resurrection point, if I can put it that way, of Lord Hope's test in Kebliene in making his submissions in this case need some clarification as well. Your Lordship may recall that one of my submissions was that Lord Hope had abandoned the test and one does not really know whether that is still a good test.
LORD JUSTICE PILL: He did not do so in terms?
MR RYDER: No, he did not, that is right. But by not applying it in a sense in Lambert one is left with some residual difficulties as to the utility of that test. Obviously, Mr Perry has persuaded your Lordships to some extent that that test still does have some utility and there is some one (inaudible) and one may argue it the other way, if I may say so.
In a sense I suppose what I am saying is because of the judgment in Lambert one can take two approaches. One can look at an offence on a case by case basis, as we are faced with at the moment, and deal with this case and any other very large number of statutory offences as they come up. Or one can seek clarification from their Lordships' House on this point.
There is an administrative point I would raise in relation to that, which is simply this. When this case was going to be heard, I do know that I was informed that many similar cases were stayed and held over, the prosecution was stayed and held over, pending the decision in this case in relation to this particular statutory provision. If one deals with things on a case by case basis that is likely to happen with a very large number of statutory offences because the point will continually be taken unless there is clarification on a wider level than one is able to get from the individual cases and dealing with them as they come up. It would solve some administrative problems, in my submission, and it would be very helpful if we all have guidance, including defendants and prosecutors, as to how one should approach, particularly, summary offences, where there is a good reason excuse as opposed to more serious offences where there is knowledge requirement of the above, as there was in Lambert, because that is, in a sense, the more complicated and much larger area of dispute at the moment which does need to be clarified. Otherwise, in my submission, there will be a large number of these cases clogging up this court as they come up on a case by case basis.
For those reasons, in my respectful submission, it would be appropriate for permission to be granted in order for their Lordships' House to consider it.
LORD JUSTICE PILL: Thank you.
MR RYDER: I should also add that I understand from Mr Perry that my application is not opposed.
LORD JUSTICE PILL: Mr Perry?
MR PERRY: My Lords, may we make two points. The first is, of course, the question of whether permission to appeal is granted, we accept is a matter for your Lordships.
However, the second point that we would make is that the precise ambit of the decision of the House of Lords in Lambert is a matter which will inevitably have to be explained by their Lordships' House sooner or later. It may be that this is a suitable case for their Lordships to take an opportunity to explain the precise scope of their decision and what its general ramifications are in cases involving the reverse burden of proof. My Lord, those are the observations.
I do have one minor correction to the question. On the last line it should be the "Convention on Human Rights" rather than "of", I am very sorry.
LORD JUSTICE PILL: Yes, thank you very much. Anything in reply?
MR RYDER: No, my Lord.
LORD JUSTICE PILL: We will retire.
LORD JUSTICE PILL: The appeal having been dismissed, we have been asked by counsel, Mr Ryder, to certify a point. The form of the question has been the subject of discussion between counsel and is agreed. We certify the point.
Mr Ryder seeks leave to appeal to the House of Lords, indicating the importance of the issue and the fact that many statutes and many cases may be affected. The application is not opposed by Mr Perry for the respondent, who indicates that this may be a suitable case for the House of Lords to consider the question of reverse onuses and their implications.
We refuse permission to appeal. We readily accept the weight of the point, the difficult area in the law following earlier decisions which are cited in the judgment in this court, and that there are many statutes on which reverse burden issues may arise.
The provision under consideration in this case is significantly different from that considered by the House of Lords in Lambert, in the view of this court.
In the circumstances, we consider that it is appropriate to refuse leave. The applicant can of course go to their Lordships. Our view is that it is more appropriate that their Lordships should decide whether this is a suitable case in which to give further consideration to the reverse onus provisions, if there Lordships consider that such consideration is required as Mr Ryder suggests it is.
MR RYDER: My Lords, my client is legally aided, I am not sure if I need to ask for a----
LORD JUSTICE PILL: You have the appropriate direction, apart from that no order as to costs.
MR PERRY: Thank you very much.
LORD JUSTICE PILL: Thank you both very much.