(back to preceding text)

    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.

    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]:

"There is a paradox at the heart of all criminal procedure in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become. The starting point of any balancing enquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences massively outweighs the public interest in ensuring that a particular criminal is brought to book… Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system. Reference to the prevalence and severity of a certain crime therefore does not add anything new or special to the balancing exercise. The perniciousness of the offence is one of the givens, against which the presumption of innocence is pitted from the beginning, not a new element to be put into the scales as part of a justificatory balancing exercise. If this were not so, the ubiquity and ugliness argument could be used in relation to murder, rape, car-jacking, housebreaking, drug-smuggling, corruption . . . the list is unfortunately almost endless, and nothing would be left of the presumption of innocence, save, perhaps, for its relic status as a doughty defender of rights in the most trivial of cases".

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:

"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.

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. This test depends upon the circumstances of the individual case".

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):

"The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence. The exact characterization of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused."

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):

". . . where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence."

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 state has failed, in our view, to discharge the onus of establishing that the extent of the limitation is reasonable and justifiable and that the relation between the limitation and its purpose is proportional. It equally failed to establish that no less restrictive means were available to Parliament in order to achieve the purpose. The imposition of an evidential burden on the accused would equally serve to furnish the prosecution with details of the transaction at the time of acquisition or receipt. Accordingly, there is a less invasive means of achieving the legislative purpose which serves to a significant degree to reconcile the conflicting interests present in this case

. . ."

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:

"Is a defendant whose trial took place before the coming into force of sections 6 and 7(1)(b) of the Human Rights Act 1998 entitled, after they come into force, to rely, in the course of an appeal, on alleged breach of his Convention rights by the trial court or an investigating or prosecuting authority?"

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.