Lord Justice Pitchford :
- The
Registrar
has
referred
this application for leave to appeal against conviction to the full court. We grant leave and proceed to consider the substantive appeal. In
view
of the subject matter of the appeal, on 23 September 2010 the
Registrar
served notice of the application upon the Secretary of State for Justice under Criminal Procedure
Rule
65.12. On 7 October 2010 the Secretary of State informed the
Registrar
that he did not intend to intervene and did not wish to be joined in the proceedings.
- In June 2010 the appellant was tried with a co-accused, Kenneth Pearce, before HH Judge Bate and a jury at Cambridge Crown Court, upon an indictment containing four counts. In count 1 the appellant was charged under section 1(2) Public Bodies Corrupt Practices Act 1889 with "corruptly" giving a gift, namely a DVD/
VCR
player and
recorder
to Kenneth Pearce, an employee of Cambridgeshire County Council, "by way of
reward
in connection with past business transactions involving Education All Ltd and the Cambridgeshire County Council ICT Service Department or to induce future business transactions" between them. In count 2 Kenneth Pearce was charged under section 1(1) of the 1889 Act with "corruptly"
receiving
the same gift. Count 3 charged the appellant under section 1(2) of the 1889 Act with "corruptly" crediting, as a gift, the sum of £100 to the PayPal account of Stuart Alder, an employee of Cambridgeshire County Council, "by way of
reward
in connection with past business transactions involving Education All Ltd and the Cambridgeshire County Council ICT Services Department or to induce future business transactions" between them. Count 4 similarly charged the appellant with "corruptly" giving a gift of £100 cash to Stuart Alder.
- On 2 July 2010 the jury
returned
not guilty
verdicts
in
respect
of counts 1, 2 and 3 but
returned
a
verdict
of guilty by a majority of 10-2 upon count 4. On 24 September 2010 Judge Bate imposed upon the appellant a Community Order with a curfew
requirement
of 3 months and a
requirement
to undertake 120 hours of unpaid work. He appeals against his conviction.
4. The sole ground of appeal is that in contravention of Article 6.1 of the European Convention of Human
Rights
the appellant did not
receive
a fair trial because section 2 Prevention of Corruption Act 1916
required
the appellant to "prove" that the gift admittedly made was not "given...corruptly as...[an] inducement or
reward".
Section 2
violated
the presumption of innocence to which criminal charges are subject. The material parts of Article 6
read
as follows:
"6.1 In the determination of...any criminal charge against him, everyone is entitled to a fair and public hearing within a
reasonable
time by an independent and impartial tribunal established by law...
6.2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."
The Facts
- The underlying facts were not in dispute. In July 2007 the appellant purchased an off-the-shelf company, Education All Ltd, as a business
vehicle
for the supply of educational aids to schools, including, for example, interactive white boards. He was the effective owner and managing director of the company. About fifty per cent of the appellant's business came from Cambridgeshire County Council's ICT department. Between Autumn 2007 and December 2008 the turnover of the Cambridgeshire/Education All business was some £250,000.
- Kenneth Pearce had worked for the County Council since 1994. Having started work as an electrical safety technician Mr Pearce became a procurement officer. His
role
was to advise schools and colleges about technical solutions and specifications. The ICT department acted as middle man between the supplier and the school. Mr Pearce was having difficulty with some of the bigger suppliers, so he
reacted
favourably towards a presentation made by the appellant's company. Education All proved itself by providing an excellent service and, according to Mr Pearce, "This took a lot of pressure off me". Most of Mr Pearce's invitations to quote were made through a more junior employee, Stuart Alder. Mr Alder was employed by the ICT department from September 2008. Mr Alder would
receive
requests
from schools for advice about their needs. If a school or schools needed equipment the appellant would be contacted by e-mail and invited to quote. If the quotation was accepted and the order confirmed the appellant would make the supply and present an invoice. Mr Alder would process some of the
requests
but the larger contracts were passed to Mr Pearce. Mr Alder would follow up the contracts on behalf of ICT. The County Council's policy on gifts was that any gift or offer of a gift should be disclosed even if it was declined. A gift of money should always be disclosed and
refused.
"Token" gifts such as pens or mouse mats could be accepted.
- The appellant accepted that he had sent an e-mail offering Mr Pearce a Christmas gift. The offer was declined but Mr Pearce said he was willing to pay for a DVD player/
recorder.
In January 2009 the appellant delivered a Daewoo DVD/
VCR
recorder
and player to Mr Pearce. The appellant said it was surplus to a contract and second hand. Both the appellant and Mr Pearce gave evidence that the arrangement was that Mr Pearce would pay £50 for the
recorder.
The appellant
raised
an invoice in March, after Mr Pearce had first been interviewed by the police on 26 February. The credit card transaction was cleared in May. Both men denied that the paperwork was
raised
to conceal the true nature of the transaction.
- Stuart Alder was in almost daily contact with the appellant. The appellant made a £100 deposit into Mr Alder's PayPal account as a Christmas gift. On 8 January it was declined by Mr Alder and the money was
returned.
On 14 January the appellant made a
routine
visit
to Mr Alder at work and asked to speak to him in the car park. They went to Mr Alder's car. When Mr Alder opened the driver's door the appellant placed an envelope containing £100 in cash in the interior door pocket and walked away. Mr Alder
reported
the matter to his line manager and the police were informed.
- The appellant denied that he had any hope or expectation of commercial advantage. He was just a generous man who wished to provide gifts at Christmas to those who had been helpful to him. Mr Pearce and the appellant were men of positively good character and each
received
the appropriate good character direction. After a
retirement
of 4 hours the jury
returned
at 3.40 pm on Friday, 2 July 2010 with unanimous
verdicts
of not guilty upon counts 1 and 2. They then
received
a majority
verdict
direction and at 4.25 pm
returned
with
verdicts
of not guilty in
respect
of count 3 and guilty in
respect
of count 4.
Appellant's case
- Mr Shelley argued that section 2 Prevention of Corruption Act 1916 was incompatible with the appellant's
right
to a fair trial under Article 6 ECHR in that the presumption of innocence had not been applied. The judge correctly directed the jury according to the law of England and Wales that:
(1) the prosecution must prove so that they were sure that the appellant's gift of £100 cash was linked to Stuart Alder being involved in past or future contracts between Education All Ltd and the Council; and
(2) if the prosecution proved the connection, the onus was upon the appellant to prove, on a balance of probabilities, that the payment of £100 was not corrupt, a corrupt gift being one which was "purposely" made as tending to corrupt.
This was a
reversal
of the burden of proof. The jury accepted that the appellant had discharged the burden upon him of proving that the gift of £100 by payment into Mr Alder's PayPal account was not corrupt. There was no obvious
reason
why the same gift made 6 days later in cash should be treated as corrupt. The appellant had in evidence
raised
a sufficient issue for the jury to consider. Had the burden been upon the prosecution to prove that the gift was corrupt there is a
real
possibility that the
verdict
would have been not guilty.
- Mr Shelley submitted that section 3 Human
Rights
Act 1998 should have been utilised to "
read
down" section 2 of the 1916 Act so as to place only an evidential burden upon the appellant. Had section 2 been
read
in this way the jury would have been directed that the prosecution must prove so that they were sure that, contrary to the appellant's evidence, the appellant had made the gift corruptly as a
reward
in connection with past transactions or as an inducement in
respect
of future transactions. Mr Shelley drew the Court's attention to the leading Strasbourg authority on the interpretation of Article 6.2, Salabiaku
v
France [1988] 13 EHRR 379, and to the domestic guidance provided by the House of Lords in Lambert [2001] UKHL 37, [2002] 2 AC 545; Johnstone [2003] UKHL 28, [2003] 1 WLR 1736; and Sheldrake and Others [2004] UKHL 43. Mr Shelley has also made helpful
reference
to the Law Commission's consideration of the offences of corruption and bribery in domestic law, culminating in the
recent
passage of the Bribery Act 2010.
Issues
- The following questions
require
determination:
(1) Whether section 1(2) Public Bodies Corrupt Practices Act 1889
read
together with section 2 Prevention of Corruption Act 1916 interferes with the Article 6.2 presumption of innocence;
(2) If so, whether the
reversal
of the legal burden of proof provided by section 2 of the 1916 Act pursues a legitimate objective; and, if so, whether the means of pursuing that objective is necessary,
reasonable
and proportionate; and
(3) If the
reversal
of the legal burden is an unnecessary, unreasonable or disproportionate interference with the presumption of innocence, whether section 3 Human
Rights
Act 1998 permits the court to
read
down section 2 so as
require
the appellant to discharge an evidential burden
rather
than the legal burden of proving that the gift was not made "corruptly".
Violation
of Article 6.2
- Section 1(2) Public Bodies Corrupt Practices Act 1889 in its
relevant
details provided:
"(2) Every person who shall...corruptly give...any gift...to any person, whether for the benefit of that person or another person, as an inducement to or
reward
for or otherwise on account of any member, officer, or servant of any public body as in this Act defined, doing or forbearing to do anything in
respect
of any matter or transaction whatsoever, actual or proposed, in which such public body as aforesaid is concerned, shall be guilty of an offence." [emphasis added]
Section 2 Prevention of Corruption Act 1916 which applies to both the
recipient
(section 1(1) 1889 Act) and to the giver (section 1(2) 1889 Act) of a gift provides, in
respect
of the giver, in its
relevant
details:
"2. Where in any proceedings against a person for an offence under the...Public Bodies Corrupt Practices Act 1889, it is proved that any...gift...has been...given to...a person in the employment of...a public body...by a person...holding or seeking to obtain a contract from...any...public body, the...gift...shall be deemed to have been...given...corruptly as such inducement or
reward
as is mentioned in the Act unless the contrary is proved." [emphasis added]
The
reverse
burden applies only when the gift has been made to or
received
by a person identified in section 2, namely "a person in the employment of Her Majesty or any Government Department or a public body". It was common ground that Cambridgeshire County Council was a public body. The effect of the section 2 deeming provision is to
re-define
the offence of corrupt payments to such public servants by providing that in
respect
of the maker of the gift: it shall be an offence for a person holding or seeking to obtain any contract with a public body to make any gift to a servant of that public body unless the giver proves that the gift was not made corruptly as a
reward
or inducement.
- In Sheldrake (at §5) Lord Bingham drew attention to the advice of Lord Griffiths in Hunt (
Richard)
[1987] AC 352 HL, at page 374, upon the construction of a statute which appeared to
reverse
the burden of proof of a criminal charge. In particular, the court should examine "the ease or difficulty that the
respective
parties would encounter in discharging the burden". The
reason
for such an examination is that "Parliament can never lightly be taken to have intended to impose an onerous duty on a defendant to prove his innocence in a criminal case, and a court should be
very
slow to draw any such inference from the language of a statute". In our
view
there is no ambiguity here. As we have observed, section 2 of the 1916 Act was introduced specifically to
reverse
the legal burden of proof of a corrupt payment or gift when
received
by the servant of a public body. The effect of section 2 has been so understood and applied for many years (Braithwaite [1983] 1 WLR 385). Equally,
reversal
of the legal burden has the appearance of
violating
the terms of Article 6.2.
Necessary,
reasonable
and proportionate
- However, Article 6.2 does not provide an absolute prohibition against the application of a
reverse
burden of proof. What is
required
is a fair trial. Explaining the
rationale
for the presumption of innocence, Lord Bingham said (§9) "it is
repugnant
to ordinary notions of fairness for a prosecutor to accuse a defendant of a crime and for the defendant to be then
required
to disprove the accusation on pain of conviction and punishment if he fails to do so. The closer a legislative provision is to that situation, the more objectionable it is likely to be". For present purposes the facts of Salabiaku
v
France are not material. The statement of principle at paragraphs 27 and 28 is, however, important:
"27. As the Government and the Commission have pointed out, in principle the Contracting States
remain
free to apply the criminal law to an act where it is not carried out in the normal exercise of one of the
rights
protected under the Convention and, accordingly, to define the constituent elements of the
resulting
offence. In particular, and again in principle, the Contracting States may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it
results
from criminal intent or from negligence. Examples of such offences may be found in the laws of the Contracting States.
28. … Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however,
require
the Contracting States to
remain
within certain limits in this
respect
as
regards
criminal law. If, as the Commission would appear to consider, paragraph 2 of article 6 merely laid down a guarantee to be
respected
by the courts in the conduct of legal proceedings, its
requirements
would in practice overlap with the duty of impartiality imposed in paragraph 1. Above all, the national legislature would be free to strip the trial court of any genuine power of assessment and deprive the presumption of innocence of its substance, if the words 'according to law' were construed exclusively with
reference
of domestic law. Such a situation could not be
reconciled
with the object and purpose of article 6, which, by protecting the
right
to a fair trial and in particular the
right
to be presumed innocent, is intended to enshrine the fundamental principle of the
rule
of law.
Article 6(2) does not therefore
regard
presumptions of fact or of law provided for in the criminal law with indifference. It
requires
States to confine them within
reasonable
limits which take into account the importance of what is at stake and maintain the
rights
of the defence..." [emphasis added].
- Following an examination of Strasbourg authority, Lord Bingham extracted the principles to be derived for the correct approach when making the assessment whether a particular statutory provision offended Article 6. Although their Lordships were not unanimous as to the
result
in the case of a
reverse
burden applied to an offence of membership of proscribed terrorist organisations, there was no disagreement as to the principles to be applied to the analysis. Lord Bingham said:
"21...The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental
right
directed to that end. The Convention does not outlaw presumptions of fact or law but
requires
that these should be kept within
reasonable
limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the
requirement
of mens
rea.
But the substance and effect of any presumption adverse to a defendant must be examined, and must be
reasonable.
Relevant
to any judgment on
reasonableness
or proportionality will be the opportunity given to the defendant to
rebut
the presumption, maintenance of the
rights
of the defence, flexibility in application of the presumption,
retention
by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be
resolved
by any
rule
of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case."
As to the issue whether the presumption was justified Lord Bingham (at §23) adopted some of the observations of the Privy Council in Brown
v
Stott [2003] 1 AC 681 including, in particular, that "substantial
respect
should be paid by the courts to the considered decisions of democratic assemblies and governments..; that the Convention
requires
a fair balance to be struck between the
rights
of the individual, and the wider interests of the community...; and that the justifiability of a legislative measure must be judged with close
regard
to the particular social problem or mischief which the measure has been enacted to address...". Ultimately the issue will be whether (§31) the burden imposed on a defendant unjustifiably infringes the presumption of innocence. In
reaching
a conclusion upon that issue the court has a powerful means of saving a legislative provision from incompatibility by, "so far as possible",
reading
down the provision under section 3 Human
Rights
Act 1998.
- In X
v
United Kingdom [1972] 42 CD 135 the European Commission considered a complaint about the presumption of fact inserted into section 30(1) Sexual Offences Act 1956 by subsection (2). It was almost identical in its effect to the presumption inserted by section 2 of the 1916 Act:
"a man who lives with or is habitually in the company of a prostitute, or who exercises control, direction or influence over a prostitute's movements in a way which shows he is aiding, abetting or compelling her prostitution with others, shall be presumed to be knowingly living on the earnings of prostitution unless he proves the contrary."
It will be seen that the draftsman's technique was, having created the offence of "knowingly living on the earnings of prostitution", to provide that proof of certain activities should give
rise
to a presumption of guilt subject to the defendant's ability to prove the contrary on a balance of probability. In section 2 a gift to a servant of a public body with which the giver had or sought to obtain a contract gave
rise
to a presumption that the payment was made corruptly, subject to the defendant's ability to prove the contrary on a balance of probability. In X
v
UK the Commission concluded that the application was manifestly ill-founded. The presumption was not absolute; it was
rebuttable;
furthermore, it was
reasonable
to
require
the defendant to provide an explanation since, otherwise, it would be extremely difficult, if not impossible, for the prosecutor to establish the underlying
reason
for the defendant's activity, namely living on immoral earnings.
- The
reverse
burden considered by the Commission in X
v
United Kingdom would appear to meet the
requirements
of Lord Woolf's test in Attorney General of Hong Kong
v
Lee Kwong-Kut [1993] AC 951 at page 969:
"Whether they [
reverse
burdens] are justifiable will in the end depend upon whether it
remains
primarily the
responsibility
of the prosecution to prove the guilt of the accused to the
required
standard and whether the exception is
reasonably
imposed, notwithstanding the importance of maintaining the principle [of the presumption of innocence]...If the exception
requires
certain matters to be presumed until the contrary is shown, then it will be difficult to justify that presumption unless, as was pointed out by the United States Supreme Court in Leary
v
United States [1969] 23 L Ed 2d 57, 82, "it can be at least said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend."
- We are fortunate to have the legislative history behind section 2 authoritatively provided by the Law Commission in its
report
(3 March 1998) in the series, "Legislating the Criminal Code", namely Part IV The Presumption of Corruption (Law Com No. 248). At paragraph 4.11 the Commission
reported:
"4.11 The 1916 Act was passed in the wake of scandals
regarding
the Clothing Department of the War Office, which involved the taking of bribes by
viewers
and inspectors of merchandise. It was presented to Parliament as an emergency wartime measure to deal with the burgeoning number of large government contracts and the
resulting
opportunities for corruption. Corruption in
relation
to these wartime contracts was
viewed
at the time as being particularly serious."
The
view
was expressed by Lord Buckmaster, the Lord Chancellor, in the House of Lords and by the Home Secretary in the House of Commons that it should be a simple matter for an innocent accused to establish the true
reason
for a payment or gift. In 1973 the
Redcliffe-Maud
Committee
recommended
that the presumption should be extended to cover not only contracts with public bodies but also the exercise of discretion by public bodies, such as the grant of planning permission or the allocation of council houses. It was
recommended
that the presumption should apply to members as well as servants of those bodies. The Salmon Commission, appointed shortly afterwards, came to a similar conclusion. While acknowledging that
reversal
of the burden of proof should only be imposed for compelling
reasons
there were such
reasons
in the case of corruption of public servants. It was notoriously difficult for the prosecution to establish a guilty motive for a payment while it was
relatively
easy for the accused to disclose the truth. In Public Prosecutor
v
Yuvaraj [1970] AC 913, PC, at 922, Diplock LJ had said:
"Corruption in the public service is a grave social event which is difficult to detect, for those who take part in it will be at pains to cover their tracks."
- The Law Commission considered whether the enactment of sections 34 (failure to mention facts when questioned) and 35 (failure to give evidence) Criminal Justice and Public Order Act 1994 may have
rendered
the
reverse
burden unnecessary. If the intention behind section 2 was to compel the accused to provide an explanation consistent with innocence, if there was one, the same objective may have been achieved by enabling the tribunal of fact to draw inferences adverse to the accused if he failed to provide a
response
when the circumstances demanded it. The Commission
reached
no concluded
view
whether section 2 had become obsolete and therefore unreasonable. It inclined to the
view
that the Strasbourg court "might well" conclude that Article 6 had been contravened. There is, of course, a considerable difference between a
requirement
that the accused prove a fact on a balance of probability and a provision that the tribunal of fact may draw an adverse inference, if appropriate, in the absence of an explanation. The Commission
recommended
to the Government that sections 34 and 35 had "greatly
reduced
the need for a presumption". The Commission concluded, after consultation with the Crown Prosecution Service among others, that there should be no more difficulty in establishing a corrupt motive than any other state of mind
required
to prove offences such as theft or fraud and there no longer existed an adequate justification for
retention
of the
reverse
burden.
- The Commission published a draft Bill with its
report
in which the
reverse
burden was
removed
and "acting corruptly" was defined as acting "primarily in
return
for the conferring of an advantage". The Government accepted the majority of the
Report's
recommendations.
The Home Office published a further consultation paper in December 2005 and its
response
in March 2007. The Government
requested
the Law Commission to "
re-examine
the law of bribery" and to produce a draft Bill. The Law Commission published its further
report
"
Reforming
Bribery" (Law Com No. 313) on 19 November 2008 to which the draft Bill was annexed. The Bribery Act
received
the
Royal
Assent on 4 April 2010 and is awaiting a commencement date. Section 1, creating, in the case of the giver, the new offence of bribery, provides:
"1. Offences of bribing another person
E+W+S+N.I.
(1) A person ("P") is guilty of an offence if either of the following cases applies.
(2) Case 1 is where—
(a) P offers, promises or gives a financial or other advantage to another person, and
(b) P intends the advantage—
(i) to induce a person to perform improperly a
relevant
function or activity, or
(ii) to
reward
a person for the improper performance of such a function or activity.
(3) Case 2 is where—
(a) P offers, promises or gives a financial or other advantage to another person, and
(b) P knows or believes that the acceptance of the advantage would itself constitute the improper performance of a
relevant
function or activity.
(4) In case 1 it does not matter whether the person to whom the advantage is offered, promised or given is the same person as the person who is to perform, or has performed, the function or activity concerned.
(5) In cases 1 and 2 it does not matter whether the advantage is offered, promised or given by P directly or through a third party."
- We conclude that the imposition of the
reverse
burden was a necessary,
reasonable
and proportionate
response
to the circumstances in which it was introduced, that is, to counter a serious and growing problem involving the suspected corruption of public servants in a time of national emergency. We note, however, that despite
recommendations
by influential advisory committees it was not thought necessary by Government to extend the
reverse
burden to other bodies and other circumstances. It is, in our
view,
of significance that when section 2 was enacted there was no expectation that the maker of such a gift should provide any explanation for making it either when challenged in interview under caution or at his trial. Until the
reverse
burden was introduced the law presumed that the gift was made innocently unless the contrary was proved to the criminal standard. It is understandable that in the legal landscape of 1916 it was believed that the prosecution would face in many cases almost insuperable difficulties in proving the corrupt motive for a gift.
- There is, we consider, an important distinction in effect between the onus imposed on the defendant by
reversal
of the burden considered in X
v
United Kingdom and that imposed by section 2. In X's case the primary facts the prosecution was
required
to prove were that the defendant "lives with or is habitually in the company of a prostitute, or who exercises control, direction or influence over a prostitute's movements in a way which shows he is aiding, abetting or compelling her prostitution with others". It seems to this Court that proof of the primary facts by the prosecution would create at least a probable inference that X was living on the earnings of prostitution. A
requirement
in such circumstances that the defendant should
raise
in evidence an explanation, which only he was likely to be able to provide, sufficient to displace such an inference, was plainly a
reasonable
response
to the problem of proof of the offence. As we have observed at paragraph 13 above, the effect of section 2 is, however, to create a presumption that a gift made by any person holding or seeking to obtain a contract with a public body is corrupt. While the legislative technique is the same in both cases, in that the defendant is provided with the opportunity to disprove the presumptive inference, it is not, in the case of section 2, a probable inference that any gift made to the employee of a public body with whom the giver is working or hoping to work is corrupt. If, contrary to our
view,
that is the probable inference, then it would seem to follow that Cambridgeshire County Council's own policy approves gifts which the law
regards
as probably corrupt.
- Section 34 Criminal Justice and Public Order Act 1994 enables the tribunal of fact to draw inferences adverse to the defendant's case if at his trial he
relies
on facts which he could
reasonably
have been expected to mention when questioned or charged. The object of section 34 was to encourage early disclosure of genuine defences and to deter late fabrication of false defences. Subject to certain commonly fulfilled conditions section 35 enables the tribunal of fact to infer the guilt of the defendant (or to draw any other appropriate inferences) from the failure of the defendant to give evidence at his trial. These provisions were themselves the subject of challenges in the European Court (Condron
v
United Kingdom [2001] 31 EHRR 1; Beckles
v
United Kingdom [2003] 36 EHRR 162; Murray
v
United Kingdom [1996] 22 EHRR 29) and they must be applied fairly. It seems to this Court that in a prosecution for making a corrupt gift to a public servant the prosecution no longer has the cards stacked against it. The burden has always been upon the prosecution to prove the gift. The disadvantage has arisen when the prosecution has sought to prove that the motive for making the gift was corrupt. In the current landscape of the criminal trial the jury will be empowered to draw appropriate inferences if no explanation for the gift is tendered by the defendant or is tendered suspiciously late in the proceedings. There is no obvious
reason
why, once an explanation is tendered, the jury should not evaluate it to the same criminal standard as would apply to offences of dishonesty. This has, of course, always been the position in the case alleged offences of bribery not covered by section 2. It seems to us that the
rationale
for the
reverse
burden in section 2 has now largely, if not wholly, disappeared.
- We have already observed that there is a considerable difference in effect between the imposition upon the defendant of a burden to
raise
an explanation in the evidence which, if given, the prosecution must disprove to the criminal standard and a legal burden upon the defendant to disprove a legal presumption of corrupt motive. The latter presumption always
raises
the possibility that the jury may convict the defendant of making a corrupt gift, contrary to the presumption of innocence, while considering that the defendant may be innocent of a corrupt motive. As Mr Shelley pointed out to us that
very
possibility exists in the present case. The appellant gave evidence in his own defence. The same presumption applied to count 3 as it did to count 4, yet the jury found in
respect
of count 3 that the defendant had discharged the legal burden of disproving the corrupt motive. The only significant difference between the allegations in counts 3 and 4 is that by the time of the count 4 payment Mr Alder had already declined the same gift made in another form. It was no doubt the appellant's persistence in the face of Mr Alder's
refusal
which caused the jury to take a different
view
of count 4. That conclusion did not, it seems, cause the jury to
reconsider
its
view
about the (count 3) motive for transferring the credit of £100 to Mr Alder's PayPal account. The
verdicts
in
respect
of counts 3 and 4 were
returned
at the same time. The
real
possibility exists that the appellant was convicted because he failed to discharge the count 4 burden of proof and not because the
requisite
majority was sure he was guilty.
- We
recognise
the important public interest in ensuring, so far as possible, that the conduct of contractual
relationships
between individuals and public bodies should be beyond
reproach.
The existence of a
reverse
burden may, we
recognise,
have an important deterrent effect. Nevertheless we must also
recognise
that a conviction for bribery of a public servant is a serious matter for the individual. Under section 2 of the Public Bodies Corrupt Practices Act 1889 a person convicted of an offence under section 1 is liable to imprisonment for up to 7 years and to be disqualified from public office. The social and commercial consequences of such a conviction are likely to be prolonged.
- Over ten years ago the Government accepted the majority of the Law Commission's
recommendations
for
reform,
including the
removal
of the
reverse
burden in section 2 on the ground that it had outlived its purpose. In our judgment, by the time of the appellant's trial the imposition upon him of the legal burden of disproving guilt was no longer necessary and the means of imposition was unreasonable and disproportionate in that the presumption applied with full
rigour
to all gifts made by a person having or seeking a contract with a public body whatever the other circumstances may have been. In our
view
section 2 Prevention of Corruption Act 1916, as applied to section 1(2) Public Bodies Corrupt Practices Act 1889 unjustifiably interferes with the Article 6.2 presumption of innocence.
Section 3 Human
Rights
Act 1998
- In Sheldrake
v
DPP [§28] Lord Bingham considered the state of authority in the House of Lords upon the permissible application of section 3 Human
Rights
Act 1998 as follows:
"28. The interpretative obligation of the courts under section 3 of the 1998 Act was the subject of illuminating discussion in Ghaidan
v
Godin-Mendoza [2004] 3 WLR 113. The majority opinions of Lord Nicholls, Lord Steyn and Lord
Rodger
in that case (with which Lady Hale agreed) do not lend themselves easily to a brief summary. But they leave no
room
for doubt on four important points. First, the interpretative obligation under section 3 is a
very
strong and far
reaching
one, and may
require
the court to depart from the legislative intention of Parliament. Secondly, a Convention-compliant interpretation under section 3 is the primary
remedial
measure and a declaration of incompatibility under section 4 an exceptional course. Thirdly, it is to be noted that during the passage of the Bill through Parliament the promoters of the Bill told both Houses that it was envisaged that the need for a declaration of incompatibility would
rarely
arise. Fourthly, there is a limit beyond which a Convention-compliant interpretation is not possible, such limit being illustrated by
R(Anderson)
v
Secretary of State for the Home Department [2002] UKHL 46, [2003] 1 AC 837 and Bellinger
v
Bellinger [2003] UKHL 21, [2003] 2 AC 467. In explaining why a Convention-compliant interpretation may not be possible, members of the committee used differing expressions: such an interpretation would be incompatible with the underlying thrust of the legislation, or would not go with the grain of it, or would call for legislative deliberation, or would change the substance of a provision completely, or would
remove
its pith and substance, or would
violate
a cardinal principle of the legislation (paras 33, 49, 110-113, 116). All of these expressions, as I
respectfully
think, yield
valuable
insights, but none of them should be allowed to supplant the simple test enacted in the Act: "So far as it is possible to do so …". While the House declined to try to formulate precise
rules
(para 50), it was thought that cases in which section 3 could not be used would in practice be fairly easy to identify."
29. In considering the application of section 3 to section 11(2), which also
required
the defendant to prove certain facts if he was to avoid conviction, Lord Bingham continued [§53]:
"53. It was argued for the Attorney General that section 11(2) could not be
read
down under section 3 of the 1998 Act so as to impose an evidential
rather
than a legal burden if (contrary to his submissions) the subsection were held to infringe, impermissibly, the presumption of innocence. He submitted that if the presumption of innocence were found to be infringed, a declaration of incompatibility should be made. I cannot accept this submission, which Mr Owen contradicted. In my opinion,
reading
down section 11(2) so as to impose an evidential instead of a legal burden falls well within the interpretative principles discussed above. The subsection should be treated as if section 118(2) applied to it. Such was not the intention of Parliament when enacting the 2000 Act, but it was the intention of Parliament when enacting section 3 of the 1998 Act. I would answer the first part of the Attorney General's second question by
ruling
that section 11(2) of the Act should be
read
and given effect as imposing on the defendant an evidential burden only."
- We have considered their Lordships' guidance in Ghaidan
v
Godin Mendoza and particularly the following paragraphs from Lord Nicholls:
"32. From this the conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted
restrictively
or expansively. But section 3 goes further than this. It is also apt to
require
a court to
read
in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is 'possible', a court can modify the meaning, and hence the effect, of primary and secondary legislation.
33. Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has
retained
the
right
to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend Lord
Rodger
of Earlsferry, 'go with the grain of the legislation'. Nor can Parliament have intended that section 3 should
require
courts to make decisions for which they are not equipped. There may be several ways of making a provision Convention-compliant, and the choice may involve issues calling for legislative deliberation."
- We have no doubt that an application of the interpretative power provided to the court by section 3 to
read
down the
reverse
burden would change the meaning of the words used in section 2 Prevention of Corruption Act 1916 and, in effect,
remove
its express statutory purpose. Since 1 February 1991 the only
remaining
substantive provision in the Act has been section 2. Nevertheless, the underlying provisions to which the 1916 Act apply are those contained in section 1 Public Bodies Corrupt Practices Act 1889. Section 2 does not have a life of its own and we consider that the underlying thrust of the legislation is that
revealed
by the offences created by section 1 of the 1889 Act. We conclude that Parliament intended that section 3 Human
Rights
Act 1998 should be used in circumstances such as the present to
render
the legislation compliant with Article 6.2.
Reading
down section 2 would, in the defined circumstances, place a burden upon the defendant to
raise
in the evidence an issue whether a gift was corruptly made within the meaning of section 1 of the 1889 Act. The ultimate legal burden of proving to the criminal standard that the gift was corruptly made would
rest
upon the prosecution.
Conclusion
- In our judgment it is unnecessary to make a declaration of incompatibility. We have concluded that if section 2 had been
read
down in manner we have indicated in paragraph 31, and had the jury been so directed, there is a
real
possibility that the jury's
verdict
upon count 4 would have been not guilty. The
verdict of guilty was therefore unsafe and we allow the appeal. Any consequential applications may be made in writing (including any application for an oral hearing) within 14 days of the date when this judgment is handed down.