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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Lambert, R v. [2001] UKHL 37; [2001] 3 WLR 206 (5th July, 2001) URL: http://www.bailii.org/uk/cases/UKHL/2001/37.html Cite as: [2002] 1 All ER 2, [2001] HRLR 55, [2001] 2 Cr App R 28, [2001] UKHRR 1074, [2002] 2 AC 545, [2001] 3 WLR 206, [2001] 3 All ER 577, [2001] UKHL 37 |
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Lord Slynn of Hadley Lord Steyn Lord Hope of Craighead Lord Clyde Lord Hutton
REGINA
v.
LAMBERT
(APPELLANT)
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))
ON 5 JULY 2001
[2001] UKHL 37
LORD SLYNN OF HADLEY
1. On 9 April 1999 the appellant was convicted of possession of a controlled drug, cocaine, with intent to supply, contrary to section 5 of the Misuse of Drugs Act 1971 and was sentenced to seven years imprisonment. He relied on section 28(3)(b)(i) of that Act asserting that he did not believe or suspect, or have reason to suspect that the bag which he carried contained a controlled drug and in particular cocaine. The judge directed the jury in accordance with what was accepted to be the law at the time, that the prosecution had to prove only that he had and knew that he had, the bag in his possession and that the bag contained a controlled drug. To establish the defence under section 28 (3) he had to prove on the balance of probabilities that he did not know that the bag contained a controlled drug. This was thus the legal rather than the merely evidential burden.
2. The Court of Appeal held that a defendant did not have to know that he was in possession of controlled drugs or the precise controlled drug which was the subject of the offence. It was also clear that Parliament had intended to provide a defence on which a defendant could rely if he could establish that he had no suspicion as to the nature of the contents of the container in which drugs had been found. Moreover there was an objective justification for the provisions of the Act which were not disproportionate so that they did not contravene Article 6 of the Convention. The appeal was accordingly dismissed.
3. The Court however certified three questions. The first in substance is whether it is an essential element of the offence of possession of a controlled drug under section 5 of the 1971 Act that the accused knew that he had a controlled drug in his possession; secondly whether in a charge contrary to section 5 the judge was right to direct the jury that the onus of proving the defence under section 28(2) imposed a legal rather than an evidential of burden of proof that the accused neither believed nor suspected nor had reason to suspect that the substance in question was a controlled drug. The third question asked whether the accused could, on an appeal after the Human Rights Act 1998 came into force, rely on an alleged breach of Convention rights by the investigating or prosecuting authority at a trial which took place before the Human Rights Act 1998 came into force.
4. On this appeal to your Lordships the appellant has contended that the direction by the judge, that the burden on the accused to establish the defence was a legal burden, violated Article 6 of the Convention rights set out in the Schedule to the 1998 Act. The essential preliminary question in the appeal, and it is an important question, is therefore whether an appellant can rely on the Act at a time when the Act is in force (i.e. after 2 October 2000) in respect of a prosecution and conviction at a date when the Act was not in force. In a sophisticated and forceful argument Mr Starmer has contended that he plainly can. He takes two different routes. The first is that section 6 of the 1998 Act provides "(1)..It is unlawful for a public authority to act in a way which is incompatible with a Convention right" (and by virtue of sub sections 6(3) and (4) "public authority" includes a Court and the Judicial Committee of the House) unless by sub section (2) as the result of or in the case of "one or more provisions of primary legislation, the authority could not have acted differently".
5. A second route is by combination of section 7 and section 22 of the Act. They read:
but only if he is (or would be) a victim of the unlawful Act.
6. It is clear that the 1998 Act must be given its full import and that long or well entrenched ideas may have to be put aside, sacred cows culled. Since, however, the Act did not come into force (apart from limited provisions) until the Secretary of State had appointed a day or days for the Act or parts of it to come into force, and since there is a presumption against retrospectivity in legislation, it is not to be assumed a priori that Convention rights, however commendable, are to be enforceable in national courts in respect of past events. The question is whether the Act has provided for rights to be enforceable in respect of such past events or more precisely whether a court reviewing the legality of a direction to a jury at a criminal trial given before the Act came into force, which was in accordance with the law at the time, has to be judged by the standards of the Convention.
7. Section 6 does not deal specifically with pre-October 2000 Acts. Section 22 does and so it is appropriate to begin with section 22. It is on the face of it of limited scope. It provides that section 7(1)(b) applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place. By section 7(1)(b) a person who claims that a public authority has acted (or purports to act) in a way which section 6(1) makes unlawful may " rely on Convention rights in any legal proceedings". But otherwise section 7(1)(b) "does not apply to an act taking place before the coming into force of that section". Section 7(1)(a) is not applicable. For the purpose of section 7(1)(b) only, the expression "legal proceedings includes (a) proceedings brought by or at the instigation of a public authority; and (b) an appeal against the decision of a court or tribunal".
8. Thus for section 7(1)(b) to apply "whenever the Act took place" (by virtue of section 22(4)) the proceedings must have been brought by or at the instigation of a public authority. Here the prosecuting authority brought the proceedings in the first place though the claim is not that that authority acted in a way which section 6(1) makes unlawful. The claim is really that the judge in summing up acted contrary to Article 6 of the Convention rights by his summing up that the burden provided for in section 28(4) of the 1971 Act was a legal burden.
9. It is to be noted that section 7(6) distinguishes between proceedings brought by a public authority and "an appeal against the decision of a court" whereas section 22(4) extends the application of section 7(1)(b) only where proceedings are brought by a public authority. This appears to indicate that an appeal by an unsuccessful defendant is not to be treated as a proceeding brought by or at the instigation of a public authority albeit in other contexts an appeal may be considered to be part of the proceedings initiated by a particular party.
10. After a fuller consideration of this point than that which took place in R v DPP, Ex p Kebilene [2000 ] 2 AC 326 it seems to me that Parliament was not intending in this case that on an appeal Convention rights could be relied upon in respect of a conviction which took place before the Act came into force. It cannot be said that there is no good policy reason for this result since it may well have been thought undesirable that convictions lawful when made, should have to be set aside as a result of considering Convention rights only subsequently enforceable in national courts. Moreover it is plain as Mr Perry contended that the effect of opening up an examination of convictions prior to the coming into force of the Act, could lead to great confusion and uncertainty.
11. If this is right, where there is a specific time extension of the applicability of a Convention right, which is limited in content and which does not apply to an appeal like the present, it would be surprising if section 6 which has no express provision extending its effect, produced a contrary result so as to be applicable to acts which took place before the Convention rights became part of domestic law. Equally, it would be surprising if section 3, which again has no express retroactive effect, could succeed where section 22(4) and section 7(1)(b) fail. The fact that Convention rights could be relied on at the Court of Human Rights does not make such a result less surprising.
12. Moreover, even if there is a basis for the contention that the appellant's argument based on sections 7 and 22 do not involve retrospectivity, it seems to me that the obvious effect of section 6 as interpreted by the appellant is to impose on the House the current duty of quashing retrospectively a conviction which was good as the law stood at the time.
13. Even of course accepting that a trial today must observe Article 6 of the Convention rights and that an Appeal Court and the House in the way it proceeds must give effect to Article 6, it is a very different thing to say that the words "It is unlawful for a public authority to act in a way which is incompatible with Convention rights" (emphasis added) means that the House must rule that had the Convention been in force (which it was not) the direction of the judge to the jury would have been incompatible with Convention rights and that means that "it is unlawful" for the judge to have directed as he did. I agree with Sir Andrew Morritt, Vice Chancellor in para. 21 of his judgment in Wilson v The First County Trust Limited [2 May 2001] in which he said at para 21
14. On that basis the appellant cannot rely on the 1998 Act to challenge the judge's direction to the jury.
15. Two other principal points have been argued relating to the 1977 Act. Since the issues which they raise have been analysed in detail by your Lordships it seems appropriate to set out my own views briefly.
16. The first question asks whether it is an essential element of the offence of possession of a controlled drug under section 5 of the Misuse of Drugs Act 1971 that the accused knows that he has a controlled drug in his possession. Bearing fully in mind the importance of the principle that the onus is on the prosecution to prove the elements of an offence and that the provisions of an Act which transfer or limit that burden of proof should be carefully scrutinised, it seems to me that the Court of Appeal in R v McNamara [1988] 87 Cr APP R 246 rightly identified the elements of the offence which the prosecution must prove. I refer in particular to the judgement of Lord Lane CJ at page 252. This means in a case like the present that the prosecution must prove that the accused had a bag with something in it in his custody or control; and that the something in the bag was a controlled drug. It is not necessary for the prosecution to prove that the accused knew that the thing was a controlled drug let alone a particular controlled drug. The defendant may then seek to establish one of the defences provided in section 5(4) or section 28 of the 1971 Act.
17. The second question in effect asks whether, if the prosecution has proved the three elements to which I have referred, it is contrary to Article 6(2) of the Convention Rights for a judge to direct a jury that "the defendant is guilty as charged unless he discharges a legal, rather than an evidential, burden of proof to the effect that he neither believed nor suspected nor had reason to suspect that the substance in question was a controlled drug". 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 that there is a violation of Article 6 (2) of the Convention rights (see Salabiaku v France [1988] 13 EHRR 37 at para 28). In balancing the interests of the individual in achieving justice against the needs of society to protect against abuse of 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. For my part I do not think it is necessary to come to a conclusion on these arguments since even if section 28(2) read alone were thought prima facie to violate Article 6(2) the House must still go on to consider section 3(1) of the 1998 Act. That section provides that "So far as it is possible to do so, primary legislation must be read and given effect in a way which is compatible with the Convention rights". This obligation applies to primary legislation "whenever enacted". Even if the most obvious way to read section 28(2) is that it imposes a legal burden of proof I have no doubt that it is "possible", without doing violence to the language or to the objective of that section, to read the words as imposing only the evidential burden of proof. Such a reading would in my view be compatible with Convention rights since, even if this may create evidential difficulties for the prosecution as I accept, it ensures that the defendant does not have the legal onus of proving the matters referred to in section 28(2) which whether they are regarded as part of the offence or as a riposte to the offence prima facie established are of crucial importance. It is not enough that the defendants in seeking to establish the evidential burden should merely mouth the words of the section. The defendant must still establish that the evidential burden has been satisfied. It seems to me that given that that reading is "possible" courts must give effect to it in cases where Convention rights can be relied on.
18. In the present case, however, I would dismiss the appeal on the ground that the appellant cannot rely on Convention rights in a national court in respect of a conviction before the 1998 Act came into force. I am also of the view that even if the trial judge had given a direction on the basis that the burden on the accused was only an evidential burden the jury would have reached the same result and that it cannot be said that the conviction of this appellant was unsafe.
LORD STEYN
My Lords,
I. The questions.
19. This appeal raises two important questions. The first is whether a defendant is entitled to rely on convention rights when the court is hearing an appeal from a decision which was taken before the Human Rights Act 1998 came into effect. The second is whether a reverse burden provision in section 28(2) and (3) of the Misuse of Drugs Act 1971 is compatible with the presumption of innocence contained in article 6.2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 6.2 provides that "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".
II. The factual context and the Misuse of Drugs Act 1971.
20. On 25 November 1998 in a car park outside Runcorn Station the police arrested the appellant. He was in possession of a duffle bag. It contained two kilograms of cocaine worth over £140,000. He was charged with the offence of possessing a controlled drug of class A with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971. Section 5 (3) provides as follows:
Section 5 must be read with section 28. The material parts of this section are:
21. In April 1999 the appellant stood trial in the Crown Court at Warrington. In his defence the appellant relied upon section 28 of the 1971 Act and asserted that he did not believe, or suspect, or have reason to suspect that the bag contained cocaine, or any controlled drug. In his summing up the judge applied the law as stated in the decision of the Court of Appeal in R v McNamara (1988) 87 Cr App R 246. The judge directed the jury that in order to establish possession of a controlled drug the Crown merely had to prove that the appellant had the bag in his possession and that the bag in fact contained a controlled drug, in this case cocaine. Thereafter the burden was cast upon the appellant to bring himself within section 28 and prove, on the balance of probabilities, that he did not know that the bag contained a controlled drug.
22. The jury convicted the appellant of the offence under section 5(3). The judge sentenced the appellant to a term of 7 years imprisonment.
III. The Court of Appeal decision and the Human Rights Act 1998.
23. The appellant appealed to the Court of Appeal (Criminal Division). His appeal was heard together with two other appeals towards the end of July 2000. The Human Rights Act 1998 all except four sections was due to come into operation on 2 October 2000. The defence invited the court to proceed as if the 1998 Act was already in operation. On this assumption the issues before the Court of Appeal were as follows. First, whether knowledge on the part of an accused that he was in possession of a controlled drug is an essential element of the offence of possession. Secondly, whether construed according to its natural and ordinary meaning, section 28 of the Act (and accordingly the trial judge's direction to the jury) violates article 6(2) of the European Convention on Human Rights since it requires the appellant to disprove an important element of the offence. The third is based on section 3 of the Act of 1998, which provides: "(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights." It raises the question whether it is possible to read section 28 compatibly with Article 6(2) in accordance with section 3(1) of the 1998 Act by holding that the words "if he proves" merely require a defendant to discharge an evidential burden of proof rather than a legal or persuasive burden. Fourthly, whether a defendant whose criminal trial took place before the coming into force of the Human Rights Act 1998 can rely, in the course of an appeal, on a breach of his convention rights by the trial court or prosecuting authority. This involved the interpretation of the provisions of sections 6, 7 and 22(4) of the 1998 Act. So far as relevant those provisions read as follows:
The Court of Appeal gave judgment on 31 July 2000. Notwithstanding that the 1998 Act was not yet in operation, the Court of Appeal assumed that the Act was in force. The Court of Appeal observed that it was entitled to do so "because if it had been necessary we could have deferred entering our judgment until after the Act came into force": R v Lambert [2001] 2 WLR 211, at 222A. Dismissing the appeal of the appellant [Lambert], the Court of Appeal rejected his first three submissions. It was therefore unnecessary for the Court of Appeal to rule definitively on the fourth submission.
24. The Court of Appeal refused leave to appeal but certified the following questions as points of general importance involved in the decision, namely -
25. An Appeal Committee granted leave to appeal.
IV. The issues before the House.
26. In broad terms the written and oral arguments canvassed the issues identified in the certification of the Court of Appeal. I would, however, change the order: the issue of retrospectivity involves a jurisdictional question and ought to be considered first. If the appellant's submission on this issue fails the other issues do not arise. Having heard full argument on the substantive issues of law it would nevertheless be right to rule on them. It will be convenient to consider in turn (i) the significance of the presumption of innocence under article 6.2 (ii) whether section 5(3) of the 1971 Act, read with section 28, makes an inroad on the presumption of innocence; (iii) and, if it does, to consider whether the inroad is both justified and proportionate; (iv) and, if not, whether in accordance with section 3 of the 1998 Act it can be read in a way which makes it compatible with convention rights. Finally, it may be necessary to consider what on the facts the correct disposal of this appeal is.
V.Issue (1): Retrospectivity.
27. The first issue can conveniently be formulated as follows: Can an accused whose trial took place before the coming into force of the Human Rights Act 1998 rely, in the course of an appeal, on a breach of his convention rights by the trial court or prosecuting authority?
28. The language of section 6(1) must be examined. It is to be observed that it provides that it is unlawful for a public authority to act in a way which is incompatible with a convention right. The Court of Appeal and the House in its judicial capacity are courts and therefore public authorities within the meaning of section 6(1): see section 6(3). For simplicity one can therefore recast section 6(1) as follows: "It is unlawful for [an appellate court] to act in a way which is incompatible with a convention right". From 2 October 2000 this provision bound the Court of Appeal (Criminal Division) and the House. In the present case the appeal in question was heard in the Court of Appeal before 2 October 2000 but in the House after that date. It binds the House. It will be noted that the effect of section 6(1) is to provide that it is unlawful for the House to act in a way which is incompatible with a convention right. The question is whether this provision applies to the appeal before the House. Given that it is expressed to limit the way in which a court may act, it is difficult to escape the conclusion that in the relevant sense no appellate court may act incompatibly with a convention right. Surely, for an appellate court to uphold a conviction obtained in breach of a convention right, must be to act incompatibly with a convention right. It is unlawful for it to do so. So interpreted no true retrospectivity is involved. Section 6(1) regulates the conduct of appellate courts de futuro. The only qualification to the general wording of section 6(1) is contained in section 6(2). The latter provision is, however, inapplicable because section 28(2) and (3) of the 1971 Act can be read compatibly with article 6.2 under the interpretative obligation in section 3 of the 1998 Act, viz. by reading section 28(2) and (3) as creating only an evidential presumption. It follows thus that in the language of section 6 itself there is nothing to qualify the generality of the wording of section 6(1). There is also nothing in section 7 which expressly or by necessary implication qualifies the ordinary and plain effect of section 6(1). Counsel for the Director of Public Prosecution sought to extract a contrary meaning from section 22(4). I agree with Clayton and Tomlinson (The Law of Human Rights), O.U.P., 2000 at 3.75 (p. 142) that "the effect of section 22(4) is obscure". In any event it does not qualify the court's obligation under section 6(1). The language of the statute points in one direction only: the House may not act unlawfully by upholding a conviction which was obtained in breach of a convention right. It will be observed that this interpretation reads nothing into section 6(1); it implies nothing into the language of section 6(1); it simply gives effect to the obvious meaning of plain words. It is the contrary view which needs to find a legitimate basis for restricting the natural meaning of the words. And there is no legitimate basis in the language or purpose for cutting down the natural effect of section 6(1).
29. It is necessary to consider the rationale of section 6(1) in the broader framework of an Act which was undoubtedly intended "to bring home" the adjudication on fundamental rights. If my reading of section 6(1) is adopted, this legislative purpose is achieved. If the contrary view is adopted the stark consequence is that in appeals on and after 2 October 2000 the Court of Appeal and the House will contrary to the wording of section 6(1) have "to act in a way which is incompatible with a convention right". Those matters will then have to go to the European Court of Human Rights. In the recent language of the Court of Appeal (Civil Division) "The alternative, which will have been apparent to Parliament, is a continuing residue of non-compliant decisions of public authorities kept indefinitely in effect by their own antiquity." see Wallbank v The Parochial Church Council of Aston Cantlow and Wilmcote with Billesley, Warwickshire, 17 May 2001, para 7. Instead of the Court of Appeal and the House in such cases applying and developing convention principles in the light of our legal system it will be necessary to await the decisions of the court in Strasbourg. In my view such an interpretation is inconsistent with the plain terms of section 6(1) and a purposive approach to the construction of the statute.
30. Counsel for the Director of Public Prosecutions advanced consequentialist arguments of an alarmist nature: he predicted great uncertainty if section 6(1) is interpreted as I have suggested. That is not how the matter struck the Lord Chief Justice in R v Director of Public Prosecutions, Ex parte Kebilene [2000] 2 AC 326, at 341A-B; see also my judgment at 367-368C; Lord Slynn of Hadley, 362A-B; and Lord Cooke of Thorndon was in general agreement: at 372C. Moreover one is reminded of the unfounded predictions that the 1998 Act would cause chaos in our legal system. A healthy scepticism ought to be observed about practised predictions of an avalanche of dire consequences likely to flow from any new development. My view is that, if section 6(1) is interpreted as I have suggested, the orderly development of convention principles in our country will be advanced.
31. It follows that I would hold that the House has jurisdiction to rule on the substantive issues.
VI.The presumption of innocence.
32. The approach of the common law to the presumption of innocence was memorably stated by Viscount Sankey LC in Woolmington v D.P.P. 1935 AC 462, 481 to be that "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. . . " The Woolmington principle was, however, subject to Parliament legislating to the contrary. It is a fact that the legislature has frequently and in an arbitrary and indiscriminate manner made inroads on the basic presumption of innocence. Ashworth and Blake (The Presumption of Innocence in English Criminal Law, 1996 Crim. L.R. 306, at 309) found 219 examples, among 540 offences triable in the Crown Court, of legal burdens or presumptions operating against the defendant. They observed that no fewer than 40% of the offences triable in the Crown Court appear to violate the presumption. In 1972 a most distinguished Criminal Law Revision Committee had observed that "we are strongly of the opinion that, both on principle and for the sake of clarity and convenience in practice, burdens on the defence should be evidential only": Eleventh Report, Evidence (General) Cmnd 4991 of 1972, para 140. Nevertheless, the process of enacting legal reverse burden of proof provisions continued apace.
33. In the meantime the human rights movement came into existence. The foundation of it was the Universal Declaration of Human Rights (1948), which has been the starting point of subsequent human rights texts. In article 11(1) it provided: "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law . . ." Borrowing this language almost verbatim, article 6.2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) provided: "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law". Article 14.2 of the International Covenant on Civil and Political Rights (1966) which was signed by the United Kingdom in 1966 is to the same effect. Nevertheless, and despite the right of petition to the European Court of Human Rights created for the United Kingdom in 1961, there was no constraint in our domestic law to legislative incursions on the presumption of innocence. But by the 1998 Act Parliament has provided that, subject to the ultimate constitutional principle of the sovereignty of Parliament, inroads on the presumption of innocence must be compatible with article 6.2 as properly construed. If incompatibility arises, the subtle mechanisms of the 1998 Act come into play.
34. In H M Advocate v McIntosh, P.C. (5/2/2001) Lord Bingham of Cornhill recently referred to the judgment of Sachs J of the South African Constitutional Court in State v Coetzee [1997] 2 LRC 593. It is worth setting out the eloquent explanation by Sachs J of the significance of the presumption of innocence in full [para 220 at 677]:
The logic of this reasoning is inescapable. It is nevertheless right to say that in a constitutional democracy limited inroads on presumption of innocence may be justified. The approach to be adopted was stated by the European Court of Human Rights in Salabiaku v France (1988) 13 EHRR 379, 388 (para 28) as follows:
It follows that a legislative interference with the presumption of innocence requires justification and must not be greater than is necessary. The principle of proportionality must be observed.
VII. Does section 5(3) read with section 28(2) and (3) make an inroad on article 6.2?
35. Counsel for the appellant submitted that the defence put forward by the appellant under section 28 is an ingredient of the offence under section 5(3). His argument was that knowledge of the existence and control of the contents of the container is the gravamen of the offence for which the legislature prescribed a maximum sentence of life imprisonment. The contrary argument advanced on behalf of the Director of Public Prosecutions relied on the observation of Lord Woolf CJ in the Court of Appeal [2001] 2 WLR at 221F that "What the offence does is to make the defendant responsible for ensuring that he does not take into his possession containers which in fact contain drugs." Taking into account that section 28 deals directly with the situation where the accused is denying moral blameworthiness and the fact that the maximum prescribed penalty is life imprisonment, I conclude that the appellant's interpretation is to be preferred. It follows that section 28 derogates from the presumption of innocence. I would, however, also reach this conclusion on broader grounds. The distinction between constituent elements of the crime and defensive issues will sometimes be unprincipled and arbitrary. After all, it is sometimes simply 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 whereas any definition of an offence can be reformulated so as to include all possible defences within it. It is necessary to concentrate not on technicalities and niceties of language but rather on matters of substance. I do not have in mind cases within the narrow exception "limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities"; R v Edwards [1975] QB 27; R v Hunt [1987] AC 352; section 101 of the Magistrates' Courts Act 1980. There are other cases where the defence is so closely linked with mens rea and moral blameworthiness that it would derogate from the presumption to transfer the legal burden to the accused, e.g. the hypothetical case of transferring the burden of disproving provocation to an accused. In R v Whyte (1988) 51 DLR 4th 481 the Canadian Supreme Court rejected an argument that as a matter of principle a constitutional presumption of innocence only applies to elements of the offence and not excuses. Giving the judgment of the court Dickson CJC observed (at 493):
I would adopt this reasoning. In the present case the defence under section 28 is one directly bearing on the moral blameworthiness of the accused. It is this factor alone which could justify a maximum sentence of life imprisonment. In my view there is an inroad on the presumption even if an issue under section 28 is in strict law regarded as a pure defence.
VIII. Justification.
36. It is now necessary to consider the question of justification for the legislative interference with the presumption of innocence. I am satisfied that there is an objective justification for some interference with the burden of proof in prosecutions under section 5 of the 1971 Act. The basis for this justification is that sophisticated drug smugglers, dealers and couriers typically secrete drugs in some container, thereby enabling the person in possession of the container to say that he was unaware of the contents. Such defences are commonplace and they pose real difficulties for the police and prosecuting authorities.
IX. Proportionality.
37. That is, however, not the end of the matter. The burden is on the state to show that the legislative means adopted were not greater than necessary. Where there is objective justification for some inroad on the presumption of innocence the legislature has a choice. The first is to impose a legal burden of proof on the accused. If such a burden is created the matter in question must be taken as proved against the accused unless he satisfies the jury on a balance of probabilities to the contrary: The Eleventh Report of the Cr.L.R.C., para 138. The second is to impose an evidential burden only on the accused. If this technique is adopted the matter must be taken as proved against the accused unless there is sufficient evidence to raise an issue on the matter but, if there is sufficient evidence, then the prosecution have the burden of satisfying the jury as to the matter beyond reasonable doubt in the ordinary way: The Eleventh Report of the Cr.L.R.C., para 138. It is important to bear in mind that it is not enough for the defence merely to allege the fact in question: the court decides whether there is a real issue on the matter: The Eleventh Report of the Cr.L.R.C., para 138. A transfer of a legal burden amounts to a far more drastic interference with the presumption of innocence than the creation of an evidential burden of the accused. The former requires the accused to establish his innocence. It necessarily involves the risk that, if the jury are faithful to the judge's direction, they may convict where the accused has not discharged the legal burden resting on him but left them unsure on the point. This risk is not present if only an evidential burden is created.
38. The principle of proportionality requires the House to consider whether there was a pressing necessity to impose a legal rather than 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 an accused adduces sufficient evidence to raise a doubt about his guilt but the jury is not convinced on a balance or 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.
39. A new realism in regard to the problems faced by the prosecution in drugs cases have significantly reduced their scope. First, the relevant facts are usually peculiarly within the knowledge of the possessor of the container and that possession presumptively suggests, in the absence of exculpatory evidence, that the person in possession of it in fact knew what was in the container. This is simply a species of circumstantial evidence. It will usually be a complete answer to a no case submission. It is also a factor which a judge may squarely place before the jury. After all, it is simple common sense that possession of a package containing drugs will generally as a matter of simple common sense demand a full and adequate explanation. Secondly, the statutory provisions enabling a judge to comment on an accused's failure to mention facts when questioned or charged has strengthened the position of the prosecution: section 34 of the Criminal Justice Act 1994. Thirdly, I turn to the fears centred on the ability of an accused in a drugs case to manipulate the system by providing a mixed statement containing a self-serving explanation that he did not know what was in the package. The perceived difficulty is that the whole statement may be introduced as evidence and he may not testify. In the leading case of Duncan (1981) 73 Cr App R 359, Lord Lane CJ observed (at 365):
This guidance has twice been approved by the House: Sharp [1988] 1 WLR 7; Aziz [1996] AC 41. Cumulatively, these considerations significantly reduce the difficulties of the prosecution in drugs cases. Specifically, it should not be possible for an accused, in a case where his conduct calls for an explanation, to advance a submission at the end of the prosecution case that the prosecution have not eliminated a possible innocent explanation. Such submissions should generally in practice receive short shrift.
40. Returning to 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, there have been noteworthy developments in England and in cognate legal systems. In R v Director of Public Prosecutions, Ex Parte Kebilene [2000] 2 AC 326 in the Divisional Court Bingham LCJ had no doubt that, in the context of a serious offence (terrorism), a reverse legal burden of proof provision on a matter central to the wrongdoing alleged against the defendant would breach article 6.2. On the appeal to the House a majority suggested that, once the 1998 Act was in force, reverse legal burden provisions may have to be interpreted as imposing merely an evidential burden on the defendant. Responding to Kebilene Parliament enacted the Terrorism Act 2000 which in section 118(1) and (2) provides that the reverse onus of proof is satisfied if the person adduces evidence which is sufficient to raise an issue with respect to the matter unless the prosecution can prove the contrary beyond reasonable doubt. Comparative experience in constitutional democracies underlines the vice inherent in transfer of legal burden provisions, and the utility, in appropriate contexts, of evidential presumptions. This distinction has been explored in depth in the context of the presumption of innocence contained in section 11(d) of the Canadian Charter of Rights and Freedoms in judgments of the Canadian Supreme Court: see in particular R v Oakes (1986) 26 DLR (4th) 200; R v Whyte (1988) 51 DLR 4th 481; R v Downey (1992) 2 SCR 10; R v Osolin [1993] 4 SCR 595; and Hogg, Constitutional Law of Canada, 4th ed., 1997, 1178-1183. For present purposes the interest lies not in the results of these decisions, but in the approach enunciated in respect of reverse burden provisions and evidentiary presumptions. The view has prevailed that if by the provisions of the statutory presumptions, an accused is required to establish, that is to say prove or disprove, on a balance of probabilities either an element of the offence or an excuse, then it contravenes section 11(d). Such a provision would permit a conviction in spite of a reasonable doubt: Osolin, 29, per Cory J (majority judgment.) On the other hand, a permissive or evidentiary presumption from which a trier of fact may (as opposed to must) draw an inference of guilt will not infringe section 11(d): Osolin, ibid. The same point emerges from jurisprudence of the South African Constitutional Court: State v Mbatha [1996] 2 LRC 208; State v Manamela [2000] 5 LRC 65. In Manamela the majority of the South African Constitutional Court held that a reverse burden provision in respect of handling recently stolen goods was incompatible with a constitutional presumption of innocence. On the other hand, an evidential burden requiring the accused to explain his possession of the goods would not have amounted to a violation of the constitutional right of silence. The majority observed [at para 49]:
The jurisprudence in Canada and South Africa reinforces the view that a reverse legal burden is a disproportionate means of addressing the legislative goal of easing the task of the prosecution in cases under section 5(3) of the Misuse of Drugs Act 1971.
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 to 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 convention rights.
X. The Interpretative Obligation.
42. The question is therefore whether, in accordance with section 3 of the 1998 Act, it is possible to read section 28 in a way which is compatible with convention rights: see paragraph 44 of my speech in R v A (No. 2) [2001] 2 WLR 1546 for a detailed explanation of the import of section 3(1). Specifically, the question is whether the words "to prove" in section 28(2) and "if he proves" in subsection (3) may be read as placing only an evidential burden on the accused as Professor Glanville Williams suggested in "The Logic of 'Exceptions'" [1988] C.L.J. 261, at 264-265. If the answer is in the affirmative the burden of proof rests on the prosecution to disprove beyond reasonable doubt the defence. In Kebilene I described this as a respectable argument: 370G. Lord Slynn agreed: 362A. Lord Cooke of Thorndon regarded the distinguished author's view as a possible meaning under section 3. Specifically, Lord Cooke stated that "unless the contrary is proved" can be taken to mean "unless sufficient evidence is given to the contrary" [2000] 2 AC at 373G. I respectfully adopt Lord Cooke's observation. Applying section 3 I would therefore read section 28 (2) and (3) as creating an evidential burden only. In particular this involves reading the words "prove" and "proves" as meaning giving sufficient evidence. I am in agreement with the observations of Lord Hope of Craighead in paragraph 77 of his speech.
XI. Disposal of the appeal.
43. My Lords, this is a case of an accused found in possession of two kilograms of cocaine worth over £140,000. It must be comparatively rare for a drug dealer to entrust such a valuable parcel of drugs to an innocent. In any event the appellant's detailed story stretches judicial credibility beyond breaking-point. Even if the judge had directed the jury in accordance with law as I have held it to be the appellant's conviction would have been a foregone conclusion. I would dismiss the appeal.
LORD HOPE OF CRAIGHEAD
My Lords,
44. On 9 April 1999 in the Crown Court at Warrington the appellant was convicted of possessing a controlled drug of class A with intent to supply contrary to section 5(3) of the Misuse of Drugs Act 1971. He was sentenced to seven years' imprisonment. He appealed against his conviction, but on 31 July 2000 the Court of Appeal (Criminal Division) (Lord Woolf CJ, Rougier and Bell JJ) dismissed his appeal: [2001] 2 WLR 211. The principal issue in the appeal, which was heard together with two other appeals which raised the same issue but from which on 20 December 2000 an appeal committee refused leave to appeal to this House, was the effect of the Human Rights Act 1998 on various statutory provisions which fell into a familiar category. These are provisions which, as Lord Woolf CJ put it at p 215D-E, provide a benefit to a defendant who is being tried for a criminal offence but require him to prove certain facts which the statute specifies before he can obtain that benefit.
45. The Human Rights Act 1998 received the Royal Assent on 9 November 1998 but the majority of its provisions were not in force at the date of the appellant's trial. Sections 18, 20 and 21(5) and 22 came into force on the passing of that Act: section 22(2). The other provisions of the Act came into force on the days appointed by the Secretary of State by order under section 22(3). The majority of its provisions were brought into force on 2 October 2000: Human Rights Act 1998 (Commencement No 2) Order 2000 (SI 2000/1851). Lord Woolf CJ said that, in giving its judgment, the Court of Appeal had assumed that the Act was in force at the time when it gave judgment. He also said that, although it had been accepted by all parties that because of section 22(4) together with section 7 and section 8 of the 1998 Act the court had to approach the safety of the conviction as if the Act had been in force when the judge summed up, the court had reservations as to whether Parliament could have intended such a result: [2001] 2 WLR 211, 222C D-E.
46. Now the appellant appeals to your Lordships' House. All the provisions of the 1998 Act are in force, so it is no longer necessary to make any assumptions. But among the issues of general public importance for which a certificate was given by the Court of Appeal under section 33(2) of the Criminal Appeal Act 1968 was the following:
This issue may be described for short as the issue of retrospectivity. It is the third issue in the statement of facts and issues.
47. But there are two other issues which are also of general public importance. The first is whether it is an essential element of the offence of possession of a controlled drug under section 5 of the Misuse of Drugs Act 1971 that the accused knows that he has a controlled drug in his possession. The second is whether it is compatible with article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms for a trial judge to direct a jury, under reference to the defence which is available under section 28 of the 1971 Act, that there is a legal, or persuasive, burden on the accused to prove that he neither believed nor suspected that the substance in question was a controlled drug.
48. The second issue can only affect the appellant's case if he succeeds on the third issue as to retrospectivity. But the appellant does not need to succeed on the third issue if he is to succeed on his first issue. If he is right on the first issue, which has nothing to do with his article 6(2) Convention right, it must follow that there was a fundamental defect in the summing up by the trial judge.
The facts
49. The Crown case against the appellant depended upon the evidence of police officers who said that on 25 November 1998 they were in the railway station at Runcorn. Prior to the arrival of the London to Liverpool train at 1.30pm they saw two men in the reception hall. One of them was carrying a duffle bag. When the train arrived the appellant got off the train, crossed the bridge and went into the booking hall. The two men who had been waiting outside came in to the booking hall and approached him. One of them said "Steve", and the appellant acknowledged that this was his name and shook hands. All three men then left the booking hall and went to two cars which were in the car park. The appellant and one man got into one car and the other man got into another. About two minutes later the appellant returned to the reception area with a duffle bag. He tried to make a call from his mobile phone. He then went into a phone kiosk, where the police went up to him, identified themselves as police and asked him what he had in the bag. The appellant said, "I don't know, I've just been paid to pick it up". The bag contained two kilogrammes of cocaine at 76% purity which was worth over £140,000.
50. The appellant's defence was that he did not know what was in the duffle bag. He said in evidence that he had had a phone call the previous evening from a man named John who was in the business of printing tee shirts. He later met John and received from him an envelope which he assumed to contain money. He said that he had in the past driven up to Liverpool to drop off money for him. He got onto the train thinking that he was going to Liverpool. While he was on the train John phoned him and told him to get off at Runcorn. When he got off the train he walked over to a man named Jebb whom he knew and to whom he had also spoken when he was on the train. What normally happened when he met Jebb was that he gave the money to him and took back from him a few packages of tee shirts. On this occasion Jebb was with another man, who handed the appellant the duffle bag. The appellant said that when he asked, "What's this?" Jebb said that it was a bit of scrap for John and then that it was scrap gold. When he was in the car he looked into the bag and Jebb said that it was scrap jewellery but told him to stop rooting about in the bag. When the appellant said that he was just having a look Jebb threatened him, pointing to something under his left arm. The appellant thought that he was going to be shot. As he got out of the car Jebb said that he was to take the bag or he would shoot him and his girlfriend. He went to the telephone to warn his girlfriend and to ask John why he had to take the duffle bag. His case was that at no stage did he suspect that the bag contained controlled drugs and that in any event he was acting under duress.
51. The trial judge (HHJ Hale) told the jury in the course of his summing up that the real issue in the case was that raised by the defendant who said that, while he accepted all that the prosecution had to prove, he had a defence because he did not know what was in the bag. He gave the following direction:
He then told the jury that if the defendant had not proved that defence on the balance of probabilities they would have to consider the question of duress, but that it was for the prosecution to prove that he was not acting under duress so that they sure that he was not.
52. The jury's verdict shows that they must have held that the appellant had failed to show on a balance of probabilities that he did not know or believe or have reason to suspect that the duffle bag contained controlled drugs and that they were also sure that he was not acting under duress. I think that it is unclear what they would have made of the case if they had been told that proof of knowledge that the bag contained controlled drugs was an essential element of the offence of possession which the prosecution had to prove to the required standard so that they were sure of what was being alleged. On the other hand I take a different view as to what the position would have been if they had been told that that it was for the appellant to provide evidence to support his defence of lack of knowledge that the product or substance was a controlled drug but that this was an evidential burden only which did not require him to prove anything. In that event the direction as to where the burden of proof lay would have been indistinguishable from that which the trial judge gave as to the defence of duress. As the jury rejected that defence the weight to be attached to which depended crucially upon what they made of the appellant's evidence, it is safe to assume that they would have reached the same decision with regard to this defence also. I have no doubt that Mr Owen QC for the appellant was right not to take the opportunity which was offered to him to contend otherwise.
"Possession" under the Misuse of Drugs Act 1971
53. Before I turn to the first issue I must say something about the structure of the Misuse of Drugs Act 1971 with particular reference to the question of possession. It is necessary for me to do this in order to set the scene for an examination of the first and second issues.
54. Section 5 of the 1971 Act is one of a group of sections containing various restrictions relating to controlled drugs. These include restrictions on their importation and exportation and their production and supply. Section 5 restricts the possession of controlled drugs. The leading provision is that in subsection (1) which provides that, subject to regulations for the time being in force, it shall not be lawful for a person to have a controlled drug in his possession. The offences are created by subsection (2), which provides that it is an offence for a person to have a controlled drug in his possession, and subsection (3), which provides that it is an offence for a person to have a controlled drug, whether lawfully or not, with intent to supply it to another in contravention of section 4(1) of the Act. Schedule 4 to the Act, which deals with the prosecution and punishment of offences, lays down more severe penalties for a section 5(3) offence when it is prosecuted on indictment than it does for a section 5(2) offence.
55. There are also differences in regard to the penalties for a section 5(2) offence which is prosecuted summarily. These depend upon whether the drug involved is a class A, B or C drug. As my noble and learned friend Lord Steyn has pointed out, the maximum sentence for the section 5(3) offence is one of life imprisonment. But that is so only in the case of a class A drug. In the case of a class B drug the maximum sentence is 14 years imprisonment. In the case of a class C drug it is 5 years imprisonment. In practice the sentences which are imposed for this offence are determinate rather than indeterminate sentences. But it is right to say that the offence sometimes attracts very long periods of imprisonment. The periods of imprisonment vary according to the class of drug involved.
56. The Act also provides a person who is found to be in possession of a controlled drug with a number of defences. Section 5(4) contains a defence which is available in the case of a charge of simple possession under section 5(2) of the Act. It is a defence which proceeds on the assumption that the person knew or suspected that the thing which was in his possession was a controlled drug. Section 28 deals with the defences of lack of knowledge.
57. The Act does not contain a definition of "possession", except that section 37(3) provides that for the purposes of the Act the things which a person has in his possession shall be taken to include any thing subject to his control which is in the custody of another. But it is well settled that the expression embraces both a factual and a mental element. The factual element is that of control, as section 37(3) indicates. Unless the thing is in the person's control, albeit while it is in the custody of another, it cannot be said to be in his possession. The mental element is that of knowledge. It is the extent of the knowledge which has to be established that is in dispute in this case. This is the point raised by the first issue. The directions which were given to the jury by the trial judge were to the effect that, while it was necessary for the prosecution to prove that the person knew that the thing was in his control, it was not necessary for the prosecution to prove that he knew that the thing was a controlled drug.
58. I shall have to examine the provisions of the 1971 Act and the meaning of the word "possession" further when I am dealing with the first and second issues. For the time being it is sufficient to notice that at the time of the trial the directions which were given to the jury by the trial judge were in accordance with the law as it was understood to be at that time. According to this understanding, the mental element is satisfied if it is proved that the person knew that he had the thing in or subject to his control or, if it was in a container such as a bag, that it contained the thing which upon examination was found to be a controlled drug.
59. As the Lord Justice General (Rodger) said in Salmon v H M Advocate, 1999 JC 67, 78E, after a careful review of the English and Scottish authorities including R v McNamara (1988) 87 Cr App R 246, the prosecution discharge their initial burden by proving that the accused knew that there was something in the bag and that it contained something which turned out to be the controlled drug and that the bag and its contents were under his control. It is not necessary for the prosecution to prove that he knew that the thing was in law a controlled drug for him to be found to be in possession of it. Then there are the statutory defences. If the accused says that he did not know or suspect or have reason to suspect that the bag contained the substance which turned out to be a controlled drug (section 28(2)) or that he did not know or suspect or have reason to suspect that the substance or product was a controlled drug (section 28(3)(b)(i)), the judge's task is to direct the jury to consider whether they are satisfied, on the balance of probabilities, that the defence has been made out: Salmon v H M Advocate, p 79E-F, G-H. That, as I have said, is what the law was understood to be at the date of the trial.
The first issue: the ingredients of the offence
60. As I have just observed, the directions which the trial judge gave on this matter were in accordance with the law as it was understood to be at the time of the trial. Mr Owen QC for the appellant submitted that this understanding was wrong. Relying to a great extent on the speech of Lord Reid in Warner v Metropolitan Police Commissioner [1969] 2 AC 256 and your Lordships' decision in B v Director of Public Prosecutions [2000] 2 AC 428, he said that the mental element in the offence of possession of a controlled drug was not satisfied unless the prosecution proved that the defendant knew that the substance or product in his possession was a controlled drug. He said that the offences described in section 5 of the 1971 Act required proof of possession not of a container or an article of whose character the defendant was unaware but of a controlled drug. Knowledge that it was a controlled drug must be taken to be an essential element in the mens rea of the offence.
61. I would reject this argument. I consider the settled law to be correct on this point. As far as the Misuse of Drugs Act 1971 is concerned, there are two elements to possession. There is the physical element, and there is the mental element. The physical element involves proof that the thing is in the custody of the defendant or subject to his control. The mental element involves proof of knowledge that the thing exists and that it is in his possession. Proof of knowledge that the thing is an article of a particular kind, quality or description is not required. It is not necessary for the prosecution to prove that the defendant knew that the thing was a controlled drug which the law makes it an offence to possess. I observe that Mr Owen did not submit that it was necessary for the prosecution to prove that the defendant was aware that the thing was a class A, B or C drug, as the case may be, although the class into which the drug falls will usually be relevant to any sentence he may receive.
62. The long title of the 1971 Act states that it is an Act to make new provision with respect to dangerous or otherwise harmful drugs. It was enacted against the background of two important decisions of this House relating to legislation which it repealed: the Drugs (Prevention of Misuse) Act 1964 and the Dangerous Drugs Act 1965. In Warner v Metropolitan Police Commissioner [1969] 2 AC 256, in which the appellant had been convicted of an offence contrary to section 1 of the 1964 Act, it was held by the majority (Lord Reid dissenting) that the prosecution had only to prove that the accused knew of the existence of the thing and that it was in general not a defence for him to say that he believed the thing to be something else such as scent and not drugs. Lord Pearce said at p 305F:
63. In Sweet v Parsley [1970] AC 132 the appellant was convicted of a contravention of the Dangerous Drugs Act 1965 in that she was concerned in the management of premises which were used for the smoking of cannabis although this was a farmhouse which she visited infrequently and the prosecutor conceded that she was unaware that the premises were used for that purpose. The conviction was quashed on the ground that the offence of which she had been convicted was not an absolute offence. Lord Reid observed at p 150B-D that there were at least two possible ways in which the public scandal of persons being convicted on a serious charge who were in no way blameworthy could be avoided without placing on the prosecutor the full burden of proving mens rea in cases where to do so would lead to many acquittals which were unjust:
64. The structure of the 1971 Act shows that what Parliament decided to do was to follow what Lord Pearce said was needed to satisfy the meaning of the word "possession" and to adopt the first of the two methods suggested by Lord Reid for avoiding the conviction of those who are not blameworthy. This is indicated most clearly by the words used to describe the defences mentioned in section 5(4) of the Act. This subsection provides:
65. The defences afforded by this subsection depend upon proof that the accused who is proved to have had a controlled drug in his possession acted as he did "knowing or suspecting it to be a controlled drug". The burden of "proving" that this is what he knew or suspected is placed on the accused. The inclusion of these words in each of paragraphs (a) and (b) of subsection (4) confirms that proof that the controlled drug was in the possession of the accused does not depend upon proof that the accused knew or suspected that the thing was a controlled drug. If it did, the words which I have quoted would have been omitted as they refer to something which, on this hypothesis, the prosecution would have to establish in every case in order to prove that the accused had the controlled drug in his possession. The words of the statute are wholly inconsistent with the appellant's argument.
66. Further confirmation that this was the approach selected by Parliament can be found in the wording of section 28. Subsection (2) of this section provides:
67. The function of this provision, which has often been overlooked, was explained by the Lord Justice General (Rodger) in Salmon v H M Advocate, 1999 JC 67. At pp 73H-74A and 74D-F he said:
68. The contrast which is drawn in these passages between the facts that the Crown must prove and the state of knowledge of the accused is to be found in the language of section 28(2) itself. It demonstrates that what Parliament chose to do was to define the offence in such a way as to require the Crown to prove the facts from which, in appropriate cases, the inference could be drawn that the accused was in possession of the thing which, upon examination and analysis, was shown to be a controlled drug. It left it to the accused to raise the question of lack of knowledge as a defence. In B v Director of Public Prosecutions [2000] 2 AC 428, 460C-D, Lord Nicholls of Birkenhead said that the starting-point for a court as to the necessary mental element in the case of statutory offences is the established common law presumption that mens rea is an essential ingredient unless Parliament has indicated a contrary intention either expressly or by necessary implication. I would hold that the necessary contrary intention has been indicated in the present case.
69. I do not think that it is surprising that Parliament made that choice in view of the difficulties which the prosecution would face if it had to prove in every case that the accused knew that the thing was a controlled drug. Taken to its logical conclusion, a requirement to prove mens rea as to the gravamen of the offence would extend to proof of knowledge that it was a controlled drug of the class alleged, as different penalties apply to each class. The legislation has clearly not gone that far, as section 28(3)(a) shows. As it is not a defence for the accused to prove that he neither knew nor suspected nor had reason to suspect that the substance or product in question was the particular controlled drug alleged, it is plain that this is not something that the prosecution need establish. Proof of possession of the substance or product is sufficient. Strict liability follows, subject to the defences which are provided for by the statute
70. In most cases possession of a container such as a bag or a tin will enable the inference to be drawn that the accused was in possession of its contents, and in most cases where the substance or product is out in the open such as where it is found on the accused's mantlepiece or at his bedside there will be other facts and circumstances from which that inference can be drawn. The problem arises in regard to proof that he knew that the thing in the container, on the mantlepiece or at his bedside was a controlled drug. The fact that the tablet or powder was a controlled drug may be capable of being proved only after careful examination and analysis. Inferences can be drawn if it is found in the company of other material which is used in connection with the supplying or use of controlled drugs. But if it is found on its own and its appearance is all that there is to go by, it may be very difficult for the prosecution to prove that the accused knew that it was a controlled drug.
71. I think that there are sound reasons of policy for construing the legislation in such a way as not to put the initial burden of proving knowledge of that fact on the Crown. On this issue therefore I would reject the appellant's argument. But this brings me to the question whether the burden which then rests on the accused to raise the question of his knowledge as a defence is a persuasive burden - in which case he must establish his defence on the balance of probabilities - or an evidential burden only which leaves the burden of proof throughout on the Crown.
72. As I have said, the view hitherto has been that the burden on the accused is a persuasive burden. The wording of section 28(2) and (3), in which the words "to prove" and "if he proves" are used, supports this view. The ordinary meaning of these words is that there is a persuasive burden that must be discharged. But the appellant has raised the question whether this reading of the words used in these subsections is compatible with his article 6(2) Convention right. This is the second issue.
The second issue: the burden on the accused
(a) introduction
73. Article 6(2) of the Convention provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. There is an important question as to whether a statutory provision which transfers the burden of proof to the accused can ever be compatible with that presumption. But for the purposes of this case it is necessary only to answer the particular questions which have been raised. They are (a) whether the provisions of sections 28(2) and 28(3)(b)(i) of the 1971 Act, which according to the ordinary meaning of the words used require the accused to prove the defences mentioned there on the balance of probabilities, are incompatible with the Convention right; and (b), if so, whether they can be read and given effect to under section 3 of the 1998 Act in a way which is compatible with it.
74. Mr Owen made it clear that the arguments which he presented on these questions were not directed to the defences which are mentioned in section 5(4) of the 1971 Act. This was because section 5(4) relates to things which the accused must establish if he wishes to avoid conviction but are not an essential element of the offence: see R v Edwards [1975] QB 27, 39-40. In that case the Court of Appeal said that, where an enactment prohibits the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications, it is for the defendant to prove that he was entitled to do the prohibited act. In R v Hunt [1987] AC 352, 375 Lord Griffiths said that he had little doubt that the occasions upon which a statute would be construed as imposing a burden of proof on a defendant which did not fall within that formulation would be exceedingly rare. It was to cases falling outside that formulation that Mr Owen directed his argument.
75. The section 5(4) defence has not been raised in this case, but I would not wish to be taken as accepting that exceptions of that kind are always immune from challenge on Convention grounds. As I see it, there are three distinct questions, and all three questions need to be asked and answered.
76. The first question is whether, upon the construction of the enactment, the defence is an exception of the kind described in R v Edwards. The second is whether the language used by Parliament, according to its ordinary meaning, has modified the golden thread rule as described by Viscount Sankey LC in Woolmington v Director of Public Prosecutions [1935] AC 462, 481. This rule requires that, subject to the defence of insanity and to any statutory exception which transfers the burden of proof in the case of a particular offence laid down in an enactment, the prosecution must always prove its entire case beyond reasonable doubt. This question too is a question of construction. In a case of a provision such as that found in section 5(4), where the words used are "it shall be a defence for him to prove", the answer to it is plain on the face of the enactment. A provision which takes this form is understood to be an express statutory exception to the golden thread rule.
77. But there is a third question, which was the subject of some debate in the light of the Hunt case but has now been brought right out into the open by sections 3(1) and 6(1) of the Human Rights Act 1998. It used to be whether placing the burden on the accused by the particular statute can be justified by broader considerations of policy: see Peter Mirfield, The Legacy of Hunt [1988] Crim L R 19; D J Birch, Hunting the Snark; the Elusive Statutory Exception [1988] Crim L R 221; Peter Mirfield, An Ungrateful Reply [1988] Crim L R 233. It can now be expressed in the language which is appropriate to an examination of the Convention rights.
(b) making use of section 3(1)
78. Section 3(1) of the 1998 Act provides that, so far as it is possible to do so, primary and secondary legislation must be read and given effect in a way which is compatible with the Convention rights. I should now like to explain how, as I see it, this important and far-reaching new approach to the construction of statutes should be employed consistently with the need (a) to respect the will of the legislature so far as this remains appropriate and (b) to preserve the integrity of our statute law so far this is possible.
79. The first point, as I said in paragraph 108 of my speech in R v A [2001] UKHL 25, is that the effect of section 3(1) is that the interpretation which it requires is to be achieved only so far as this is possible. The word "must", which section 3(1) uses, is qualified by the phrase "so far as it is possible to do so". The obligation, powerful though it is, is not to be performed without regard to its limitations. Resort to it will not be possible if the legislation contains provisions, either in the words or phrases which are under scrutiny or elsewhere, which expressly contradict the meaning which the enactment would have to be given to make it compatible. The same consequence will follow if legislation contains provisions which have this effect by necessary implication. Further justification for giving this qualified meaning to section 3(1) is to be found in the words "read and give effect." As the side note indicates, the obligation is one which applies to the interpretation of legislation. This function belongs, as it has always done, to the judges. But it is not for them to legislate. Section 3(1) preserves the sovereignty of Parliament. It does not give power to the judges to overrule decisions which the language of the statute shows have been taken on the very point at issue by the legislator.
80. The second point, as I said in paragraph 110 of my speech in R v A, is that great care must be taken, in cases where a different meaning has to be given to the legislation from the ordinary meaning of the words used by the legislator, to identify precisely the word or phrase which, if given its ordinary meaning, would otherwise be incompatible. Just as much care must then be taken to say how the word or phrase is to be construed if it is to be made compatible. The justification for this approach to the use of section 3(1) is to be found in the nature of legislation itself. Its primary characteristic, for present purposes, is its ability to achieve certainty by the use of clear and precise language. It provides a set of rules by which, according to the ordinary meaning of the words used, the conduct of affairs may be regulated. So far as possible judges should seek to achieve the same attention to detail in their use of language to express the effect of applying section 3(1) as the parliamentary draftsman would have done if he had been amending the statute. It ought to be possible for any words that need to be substituted to be fitted in to the statute as if they had been inserted there by amendment. If this cannot be done without doing such violence to the statute as to make it unintelligible or unworkable, the use of this technique will not be possible. It will then be necessary to leave it to Parliament to amend the statute and to resort instead to the making of a declaration of incompatibility.
81. As to the techniques that may be used, it is clear that the courts are not bound by previous authority as to what the statute means. It has been suggested that a strained or non-literal construction may be adopted, that words may be read in by way of addition to those used by the legislator and that the words may be "read down" to give them a narrower construction that their ordinary meaning would bear: Clayton and Tomlinson, The Law of Human Rights, para 4.28, p 168 (Oxford, 2000). It may be enough simply to say what the effect of the provision is without altering the ordinary meaning of the words used: see Brown v Stott 2000 JC 328, 355B-C, per Lord Justice General Rodger. In other cases, as in Vasquez v The Queen [1994] 1 WLR 1304, the words used will require to be expressed in different language in order to explain how they are to be read in a way that its compatible. The exercise in these cases is one of translation into compatible language from language that is incompatible. In other cases, as in R v A, it may be necessary for words to be read in to explain the meaning that must be given to the provision if it is to be compatible. But the interpretation of a statute by reading words in to give effect to the presumed intention must always be distinguished carefully from amendment. Amendment is a legislative act. It is an exercise which must be reserved to Parliament.
(c) application of section 3(1) in this case
82. The haphazard way in which reverse burden of proof provisions have been introduced into legislation by Parliament has been identified and persuasively criticised: Andrew Ashworth and Meredith Blake, The Presumption of Innocence in English Criminal Law [1996] Crim L R 306. As they say, at p 314, nothing could be clearer than the 11th Report of the Criminal Law Revision Committee, Evidence (General), Cmnd 4991 (1972), para 140 where the Committee stated: "we are strongly of the opinion that, both on principle and for the sake of clarity and convenience in practice, burdens on the defence should be evidential only." It is generally accepted that Woolmington changed the law as to the burden of proof in the case of common law defences such as self-defence and non-insane automatism: Professor J C Smith, The Presumption of Innocence (1987) 38 NILQ 223, 226; Vasquez v The Queen [1994] 1 WLR 1304, 1309G-H. The same approach has been taken in Scotland to where the onus lies in the case of all common law pleas and defences other than the plea of diminished responsibility and the defence of insanity: Lambie v H M Advocate, 1973 JC 53 (incrimination); Ross v H M Advocate, 1991 JC 210 (non-insane automatism).
83. The lack of clarity and the inconvenience of applying a different rule to defences created by statute is obvious in the present case. Section 28(4) of the 1971 Act provides that nothing in that section shall prejudice any defence which it is open to a person when charged with an offence to which that section applies to raise apart from that section. In this case the appellant did raise such a defence. It was his defence of duress. That defence was intimately bound up with his defence under the statute, as it depended entirely upon what the jury made of his evidence. But the trial judge had to direct the jury that the onus as regards the defence of duress rested on the prosecution. The jury were not told why there was a difference as to where the onus lay. There was no need for this information to be given to them. But it would not be surprising if they found it hard to maintain a clear distinction between the two positions as to onus when they examined the evidence.
84. There is no doubt that it is possible, in the light of section 3(1) of the Human Rights Act 1998, to read sections 28(2) and 28(3) of the 1971 Act in such a way as to impose no more than an evidential burden on the accused. As it is a rule of construction, the exercise which section 3(1) prescribes makes it necessary to identify the words used by the legislature which would otherwise be incompatible with the Convention right and then to say how these words are to be construed according to the rule to make them compatible. But in this case there is no difficulty. As Lord Cooke of Thorndon said in R v Director of Public Prosecutions, ex parte Kebilene [2000 ] 2 AC 326, 373G:
85. In Vasquez v The Queen [1994] 1 WLR 1304 the Privy Council were asked to consider the question whether section 116(a) of the Belize Criminal Code which placed the burden on the defendant to prove extreme provocation as a defence to murder contravened the defendant's right under 6(3)(a) of the Constitution of Belize to be presumed innocent until he was proved guilty. Applying the principles described in Attorney-General of The Gambia v Momodou Jobe [1984] AC 689, 700 by Lord Diplock and in Attorney-General of Hong Kong v Lee Kwong-kut [1993] AC 951, 962 by Lord Woolf, the Board held that section 116(a) was in conflict with the Constitution and that it had to be modified to conform to it. The words "if either of the following matters of extenuation be proved on his behalf" were to be construed as though they read "if there is such evidence as raises a reasonable doubt as to whether": p 1314D-E, per Lord Jauncey of Tullichettle. It was by this means that Belize was brought into line with the other Commonwealth countries of the Caribbean, where the onus of proof of unprovoked killing was placed on the prosecution. It provides a good example of the use of an interpretative obligation of the kind that has now been written into our domestic law by section 3(1) of the 1998 Act.
86. More recently, in Michael Yearwood v The Queen [2001] UKPC (June 2001) the Board held that section 239 of the Grenada Criminal Code, which is in the same terms as section 116 of the Belize Criminal Code, had to be read and given effect to in a way that was compatible with the provisions for the protection of the fundamental rights and freedoms to which every person is entitled under the Constitution of Grenada, and in particular with section 8(2)(a) of the Constitution which entitles a person who is accused of a criminal charge to the presumption of innocence. It held that the words "are proved on his behalf" in section 239 must be read and given effect to as if for those words there were substituted the words "are the subject of such evidence as to raise a reasonable doubt."
87. Of course, the fact that it is possible for a statutory provision to be read in this way does not mean that it must be so read. The first question is whether, leaving aside section 3(1), there would be a breach of the Convention. For the reasons which I sought to explain in R v Director of Public Prosecutions, ex parte Kebilene [2000] 2 AC 326, 383-388, I do not think that a reverse onus provision will inevitably give rise to a finding of incompatibility. In Salabiaku v France (1988) 13 EHRR 379 at p 388, para 28 the European Court of Human Rights said:
88. Mr Owen said that the court was not concerned in the Salabiaku case with a provision applicable to a person charged with a serious criminal offence which placed the burden of proof on him with respect to an essential element of it. That is true, but I do not think that this deprives it of value as a statement of principle. What it means is that, as the article 6(2) right is not absolute and unqualified, the test to be applied is whether the modification or limitation of that right pursues a legitimate aim and whether it satisfies the principle of proportionality: Ashingdane v United Kingdom (1985) 7 EHRR 528; see also Brown v Stott [2001] 2 WLR 817. It is now well settled that the principle which is to be applied requires a balance to be struck between the general interest of the community and the protection of the fundamental rights of the individual. This will not be achieved if the reverse onus provision goes beyond what is necessary to accomplish the objective of the statute.
89. The statutory objective is to penalise the unauthorised possession of dangerous or otherwise harmful drugs. But the statute recognises, among other things, that it would be wrong to penalise those who neither knew nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged (section 28(2)) or that the substance or product in question is a controlled drug (section 28(3)(b)(i)). That being so, it is hard to see why a person who is accused of the offence of possessing a controlled drug and who wishes to raise this defence should be deprived of the full benefit of the presumption of innocence. The systems of control and prosecution might well be in jeopardy if there were to be an initial onus on the prosecution to establish that the accused knew these things. The right to silence and the covert and unscrupulous nature of drug-related activities must be taken into account in the assessment as to whether a fair balance had been achieved. But we are not concerned here with the initial onus. As I have said in my answer to the first issue, the prosecution do not need to prove that the accused knew that the thing in his possession was a controlled drug. This is a matter which must be raised by the defence.
90. The choice then is between a persuasive burden, which is what the ordinary meaning of the statutory language lays down, and an evidential burden, which is the meaning which it is possible to give to the statutory language under section 3(1) of the 1998 Act. If the evidential burden were to be so slight as to make no difference - if it were to be enough, for example, for the accused merely to mention the defence without adducing any evidence - important practical considerations would suggest that in the general interest of the community the burden would have to be a persuasive one. But 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, could be taken by a reasonable jury to support his defence. That is what Professor Glanville Williams envisaged when he was giving this meaning to the words "unless the contrary is proved": "The Logic of 'Exceptions'" [1988] CLJ 261, 265. It is what the Judicial Committee envisaged in Vasquez v The Queen [1994] 1 WLR 1304, 1314G-H and in Michael Yearwood v The Queen [2001] UKPC . It is what the common law requires of a defendant who wishes to invoke one of the common law defences such as provocation or duress.
91. The practical effect of reading section 28(2) and section 28(3) as imposing an evidential burden only on the accused and not a persuasive burden as they have been understood to impose hitherto is likely in almost every case that can be imagined to be minimal. In Salmon v H M Advocate, 1999 JC 67, 75C-D, the Lord Justice General said this as to the effect on the accused of the persuasive burden:
Those words are equally in point as an explanation of what the evidential burden requires of the accused. The change in the nature of the burden is best understood by looking not at the accused and what he must do, but rather at the state of mind of the judge or jury when they are evaluating the evidence. That is why, in the interests of clarity and convenience as well as on grounds of principle, a fair balance will be struck by reading and giving effect to these subsections as imposing an evidential burden only on the accused.
92. It is worth noting in this connection that Parliament itself has recently recognised the force of the argument that as a general rule statutory provisions which require the accused to prove something as a defence to the offence with which he has been charged should be read and given effect to as if they imposed only an evidential burden on him and not a probative one. The Terrorism Act 2000 contains several provisions which say that it shall be a defence for a person charged with an offence to prove something. For example, section 57(2) provides that it shall be a defence for him to prove that his possession of an article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism. But section 118(2), which applies to a number of provisions in the Act including section 57(2) which say that it is a defence for a person to prove something, provides:
93. Section 53(3) of the Regulation of Investigatory Powers Act 2000 is to the same effect. It provides a defence to the offence of possession described in section 53(2). It places the onus of proving the contrary beyond a reasonable doubt on the prosecutor if sufficient evidence of that fact is adduced to raise an issue with respect to it. It is not unreasonable to think that, if Parliament were now to have an opportunity of reconsidering the words used in section 28(2) and (3) of the 1971 Act, it would be content to qualify them in precisely the same way.
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. The question whether these provisions must be read and given effect to in that way in this case depends on the issue of retrospectivity, to which I now turn.
The third issue: retrospectivity
(a)
introduction
95. The appellant's argument on this issue was presented under two main heads, which were stated as alternatives. The first was based upon the provisions of section 6(1) of the Human Rights Act 1998, read together with those of section 7(1)(b) and section 22(4). The second was based upon the provisions of section 6(1) of the Act without reference to section 22(4). Section 6(1) provides the starting point for each of these two alternative heads of argument. It provides:
96. Each of these two alternatives raises questions about the structure of the 1998 Act. So I must now try to describe that structure, with particular reference to the issue about the extent to which its provisions were intended to be retrospective.
97. It is first necessary to have regard to the Convention. Article 13 of the Convention provides that everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority. This article is not one of the Convention rights to which effect is given by the 1998 Act, but this was no accident. As I observed in Brown v Stott [2001] 2 WLR 817, 847B, the reason which was given for its omission from the articles set out in Schedule 1 to the Act was that sections 7 to 9 of the Act were intended to lay down an appropriate remedial structure for giving effect to the Convention rights as defined by section 1(1) of the Act. The state's obligation to provide an effective remedy before a national tribunal in the event of a violation of the Convention rights is part of the background against which the provisions of subsections (2) to (4) of section 22 were enacted.
98. The relevant subsections of section 22 are in these terms:
99. These provisions provide important guidance as to the application of the Act to events occurring or legislation passed prior to its coming into force. As a general rule the approach which was taken by Parliament was to apply the Act prospectively as from the date when the relevant provisions were brought into force and not retrospectively. The purpose of the government, as the White Paper which introduced the Bill explained, was to see "rights brought home": Rights Brought Home: The Human Rights Bill, Cm. 3782 (1997), para 1.19. The provisions of sections 7 to 9 of the Act which deal with proceedings, judicial acts and judicial remedies were for the most part designed to apply to events occurring or legislation passed after the Act came into force. In general it was as from the date of the coming into force of the 1998 Act that the rights were intended to be brought home.
100. But this not the whole story, as can be seen from an examination of section 3 and section 22(4) of the Act. Section 3(2)(a) provides that the interpretative obligation which section 3(1) lays down applies to primary and secondary legislation "whenever enacted". Section 22(4) provides that section 7(1)(b) applies to proceedings brought by or at the instigation of a public authority "whenever the act in question took place". It is these provisions which open the door to the appellant's first alternative argument on retrospectivity.
(b)the first argument - section 22(4)
101. This argument depends upon section 22(4), and it was presented in two ways. That subsection applies only to proceedings brought by or at the instigation of a public authority. The appellant's first approach was to apply the subsection to the prosecuting authority. The second was to apply it to the court as a public authority.
102. Had the appellant's complaint been that the prosecutor had acted in a way which was inconsistent with his article 6(2) Convention right the statutory route would have been easy to follow. The certified question refers to "an investigating or prosecuting authority", and there is a reference to the "prosecuting authority" in the relevant paragraph of the statement of facts and issues. The Crown Prosecution Service, which was the prosecuting authority in this case, is a public authority within the meaning of sections 7 and 22(4) of the 1998 Act. Prosecutions brought by the CPS are proceedings brought by a public authority within the meaning of section 22(4). So section 7(1)(b) applies to proceedings brought by the CPS whenever the act in question - that is, the act on its part which is made unlawful by section 6(1) - took place.
103. As for section 7(1)(b), it enables a person who claims that a public authority has acted in a way which is made unlawful by section 6(1) of the Act to rely on the Convention right or rights concerned in any legal proceedings. The expression "legal proceedings" in this paragraph is defined in subsection (6) of section 7, which provides:
104. The effect of section 22(4) is to limit the extent to which section 7(1)(b) can be applied retrospectively. It can be used retrospectively in proceedings brought by or at the instigation of public authorities - that is to say, to enable a person to rely on the Convention right or rights defensively. This may be done at the stage of any appeal against the decision of any court. So the retrospective use of section 7(1)(b) is permitted by section 22(4) at each stage of an appeal, including an appeal to your Lordships' House. The appeal is treated by the Act as if it were part of the same legal proceedings as those brought by or at the instance of the public authority, irrespective of the person at whose instance the appeal is brought. But it is plain that section 7(1)(b) may not be used with retrospective effect in proceedings brought against a public authority. That is the effect of the concluding words of section 22(4).
105. This was the route for the giving of retrospective effect to a Convention right which I had in mind when I said in Reg v Director of Public Prosecutions, ex parte Kebilene [2000] 2 AC 326, 375D:
106. Mr Starmer sought to rely on this passage in support of his argument. But in that case the court was being asked to review