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 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.
- 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  13 EHRR 379, and to the domestic guidance provided by the House of Lords in Lambert  UKHL 37,  2 AC 545; Johnstone  UKHL 28,  1 WLR 1736; and Sheldrake and Others  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.
- 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)  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  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  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  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  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  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  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
(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  31 EHRR 1; Beckles v United Kingdom  36 EHRR 162; Murray v United Kingdom  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  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  UKHL 46,  1 AC 837 and Bellinger v Bellinger  UKHL 21,  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.
- 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.