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House of Lords
Session 2003 - 04
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Judgments - Attorney General's Reference No 4 of 2002 (On Appeal from the Court of Appeal (Criminal Division))
Sheldrake (Respondent) v. Director of Public Prosecutions (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice) (Conjoined Appeals)


SESSION 2003-04
[2004] UKHL 43
on appeal from: [2003] EWCA Crim 762
and [2003] EWHC 273 (Admin)




Attorney General's Reference No 4 of 2002 (On Appeal from the Court of Appeal (Criminal Division))

Sheldrake (Respondent) v. Director of Public Prosecutions (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice)

(Conjoined Appeals)



The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Steyn

Lord Phillips of Worth Matravers

Lord Rodger of Earlsferry

Lord Carswell




Attorney General's Reference No 4 of 2002 (On Appeal from the Court of Appeal (Criminal Division))

Sheldrake (Respondent) v. Director of Public Prosecutions (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice)

(Conjoined Appeals)

[2004] UKHL 43


My Lords,

    1.  Sections 5(2) of the Road Traffic Act 1988 and 11(2) of the Terrorism Act 2000, conventionally interpreted, impose a legal or persuasive burden on a defendant in criminal proceedings to prove the matters respectively specified in those subsections if he is to be exonerated from liability on the grounds there provided. That means that he must, to be exonerated, establish those matters on the balance of probabilities. If he fails to discharge that burden he will be convicted. In this appeal by the Director of Public Prosecutions and this reference by the Attorney General these reverse burdens ("reverse" because the burden is placed on the defendant and not, as ordinarily in criminal proceedings, on the prosecutor) are challenged as incompatible with the presumption of innocence guaranteed by article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969). Thus the first question for consideration in each case is whether the provision in question does, unjustifiably, infringe the presumption of innocence. If it does the further question arises whether the provision can and should be read down in accordance with the courts' interpretative obligation under section 3 of the Human Rights Act 1998 so as to impose an evidential and not a legal burden on the defendant. An evidential burden is not a burden of proof. It is a burden of raising, on the evidence in the case, an issue as to the matter in question fit for consideration by the tribunal of fact. If an issue is properly raised, it is for the prosecutor to prove, beyond reasonable doubt, that that ground of exoneration does not avail the defendant.

    2.  Before turning to the facts of these two cases it is necessary to place them in their legal context. To this end I shall briefly review the pre-Convention law of England and Wales, the Strasbourg jurisprudence as it has so far developed and some of the leading cases decided in the United Kingdom since the Convention was incorporated into our domestic law by the Human Rights Act 1998.

The pre-Convention law of England and Wales

    3.  The governing principle of English criminal law, memorably affirmed by Viscount Sankey LC in Woolmington v Director of Public Prosecutions [1935] AC 462, 481, is that the onus lies upon the prosecution in a criminal trial to prove all the elements of the offence with which the accused is charged. This principle has been regarded as supremely important, but not as absolute. Viscount Sankey acknowledged (p 475) the authority of M'Naghten's Case (1843) 10 Cl & Fin 200 which had "definitely and exceptionally" placed an onus on the accused to establish a defence of insanity. He further acknowledged (p 481) that his statement of principle was "subject also to any statutory exception".

    4.  One form of statutory exception arose where a defendant sought to rely, in answer to a criminal charge on indictment, on any statutory exception, exemption, proviso, excuse or qualification. It was clearly established that the burden of proving such ground of exoneration, on a balance of probabilities, lay on him: R v Edwards [1975] QB 27; R v Hunt (Richard) [1987] AC 352. When courts of summary jurisdiction in recognisably modern form were established in 1848, this rule of practice was extended to them and remains the law: see section 14 of the Summary Jurisdiction Act 1848; section 39(2) of the Summary Jurisdiction Act 1879; section 81 of the Magistrates' Courts Act 1952; and (now) section 101 of the Magistrates' Courts Act 1980. Thus, on a charge of selling intoxicating liquor without a justices' licence, it is not for the prosecutor to prove that the defendant had no licence but for the defendant to prove that he had: R v Edwards; R v Hunt (Richard).

    5.  It is not only in cases such as these, and cases of insanity, that a burden may be placed upon the defendant to prove (on a balance of probabilities) a special statutory defence. Thus in Mancini v Director of Public Prosecutions [1942] AC 1, 11, Viscount Simon LC referred, as an exception to the rule in Woolmington's case, to "offences where onus of proof is specially dealt with by statute". In Jayasena v The Queen [1970] AC 618, 623, Lord Devlin also recognised "a statutory defence" as an exception to the Woolmington rule, and Lord Templeman in R v Hunt (Richard) [1987] AC 352, 364, referred to "statutory defences which must be proved by the accused". Far from condemning the placing of a burden on the accused to prove (on the balance of probabilities) a ground of exoneration, judges of high authority have, in cases judged by them to be appropriate, advocated such a course. Lord Pearce did so in R v Warner [1969] 2 AC 256, 307 and again in Sweet v Parsley [1970] AC 132, 157. In the latter case, at p 150, Lord Reid also said:

    "Parliament has not infrequently transferred the onus as regards mens rea to the accused, so that, once the necessary facts are proved, he must convince the jury that on balance of probabilities he is innocent of any criminal intention. I find it a little surprising that more use has not been made of this method".

A further example may be given. When, in 1987, it was proposed to criminalise the possession of a bladed or sharply pointed article, other than a small pocket knife, "without good reason or lawful authority", Lord Denning suggested that the burden of proving good reason or lawful authority by way of defence should be expressly placed on the defendant (Hansard, (HL Debates) vol 489, 3 November 1987, cols 923-924). The suggestion was accepted (Hansard, (HL Debates) vol 490, 23 November 1987, cols 474, 475), and section 139(4) of the Criminal Justice Act 1988, as enacted, provides:

    "It shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article with him in a public place".

In practice, Parliament has been very ready to impose legal burdens on, or provide for presumptions rebuttable by, the defendant: see Ashworth and Blake, "The Presumption of Innocence in English Criminal Law" [1996] Crim LR 306, 309. But the language of the statute may not, in some cases, make it plain whether a ground of exoneration must be established by the defendant or negatived by the prosecutor. In Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107 the House was divided on the question. In such a case, as Lord Griffiths said in R v Hunt (Richard) [1987] AC 352, 374:

    "the court should look to other considerations to determine the intention of Parliament such as the mischief at which the Act was aimed and practical considerations affecting the burden of proof and, in particular, the ease or difficulty that the respective parties would encounter in discharging the burden. I regard this last consideration as one of great importance for surely 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".

    6.  One further point may conveniently be noted at this stage. In Sweet v Parsley [1970] AC 132, 148-149, Lord Reid stated that

    "there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea ….. it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary".

Thus, in interpreting an offence-creating statutory provision, the starting-point for the court is, as Lord Nicholls of Birkenhead put it in B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428, 460,

    "the established common law presumption that a mental element, traditionally labelled mens rea, is an essential ingredient unless Parliament has indicated a contrary intention either expressly or by necessary implication".

Effect was given to the presumption in that case, as it was in R v K [2002] 1 AC 462. It is a strong presumption, not easily displaced. The more serious the crime, and the more severe the potential consequences of conviction, the less readily will it be displaced. But it is of course the ordinary duty of the courts to give effect to what Parliament has by clear words or necessary implication enacted, and it is not hard to find instances in which Parliament has clearly intended to attach criminal consequences to proof of defined facts, irrespective of an individual's state of mind or moral blameworthiness. Many such instances are found in legislation regulating the conduct of economic and social life: see Smith & Hogan, Criminal Law, 10th ed (2002), chapter 7, "Crimes of strict liability". Offences against such regulations are often regarded as not truly criminal, since the penalty inflicted is not dire and little or no stigma attaches to conviction. Not all offences of strict liability, however, fall within this sterile regulatory area. An old instance which may be thought not to do so is found in section 12 of the Licensing Act 1872, which (as amended) remains in force:

    "Every person found drunk in any highway or other public place, whether a building or not, or on any licensed premises, shall be liable to a penalty not exceeding level 1 on the standard scale.

    Every person ….. who is drunk while in charge on any highway or other public place of any carriage, horse, cattle, or steam engine, or who is drunk when in possession of any loaded firearms, may be apprehended and shall be liable to a penalty not exceeding level 1 on the standard scale or in the discretion of the court to imprisonment …. for any term not exceeding one month".

    7.  Until the coming into force of the Human Rights Act 1998, the issue now before the House could scarcely have arisen. The two statutory provisions which it is necessary to consider are not obscure or ambiguous. They afford the defendant (Mr Sheldrake) and the acquitted person a ground of exoneration, but in each case the provision, interpreted in accordance with the canons of construction ordinarily applied in the courts, would (as already noted) be understood to impose on the defendant a legal burden to establish that ground of exoneration on the balance of probabilities. Until October 2000 the courts would have been bound to interpret the provisions conventionally. Even if minded to do so, they could not have struck down or amended the provisions as repugnant to any statutory or common law rule. Domestic law would have required effect to be given to them according to their accepted meaning. Thus the crucial question is whether the European Convention and the Strasbourg jurisprudence interpreting it have modified in any relevant respect our domestic regime and, if so, to what extent.

The Convention and the Strasbourg jurisprudence

    8.  Article 6 of the Convention provides, so far as relevant:

    1.  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …

    2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".

    9.  The right to a fair trial has long been recognised in England and Wales, although the conditions necessary to achieve fairness have evolved, in some ways quite radically, over the years, and continue to evolve. The presumption of innocence has also been recognised since at latest the early 19th century, although (as shown by the preceding account of our domestic law) the presumption has not been uniformly treated by Parliament as absolute and unqualified. There can be no doubt that the underlying rationale of the presumption in domestic law and in the Convention is an essentially simple one: that it is repugnant to ordinary notions of fairness for a prosecutor to accuse a defendant of 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 approaches to that situation, the more objectionable it is likely to be. To ascertain the scope of the presumption under the Convention, domestic courts must have regard to the Strasbourg case law. It has there been repeatedly recognised that the presumption of innocence is one of the elements of the fair criminal trial required by article 6(1): see, for example, Bernard v France (1998) 30 EHRR 808, para 37.

    10.  The applicant in X v United Kingdom (1972) 42 CD 135 had been convicted of knowingly living on the earnings of prostitution contrary to section 30(1) of the Sexual Offences Act 1956. He complained of subsection (2) of that section which provided that

    "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."

The Commission rejected as manifestly ill-founded the applicant's challenge to this provision as incompatible with article 6(2). It created a rebuttable presumption which the defendant could disprove, and was not a presumption of guilt. A provision could, if widely or unreasonably worded, have the same effect as a presumption of guilt, and it was not sufficient to examine only the form in which it was drafted. The substance and effect must also be examined. In the present instance, the presumption was restrictively worded, and was neither irrebuttable nor unreasonable. To oblige the prosecution to obtain direct evidence of "living on immoral earnings" would in most cases make its task impossible.

    11.  The leading Strasbourg authority on the presumption of innocence is Salabiaku v France (1988) 13 EHRR 379. The applicant, a Zaïrese national living in Paris, went to the airport to collect, as he said, a parcel of foodstuffs sent from Africa. He could not find this, but was shown a locked trunk, which he was advised to leave alone. He however took possession of it, went through the green customs channel and was detained. The trunk was opened and found to contain drugs. He was charged with the criminal offence of illegally importing narcotics and with the customs offence, also criminal, of smuggling prohibited goods. At trial the applicant was convicted of both offences: on the first he was sentenced to a term of imprisonment and was prohibited from residing in France; on the second he was fined. On his appeal, his conviction of the first offence was set aside: the facts were not sufficiently proved, and he was given the benefit of the doubt. His conviction of the second offence was upheld since

    " … any person in possession (détention) of goods which he or she has brought into France without declaring them to customs is presumed to be legally liable unless he or she can prove a specific event of force majeure exculpating him; such force majeure may arise only as a result of an event beyond human control which could be neither foreseen nor averted ….." (p 382)

This was an application of article 392(1) of the French Customs Code, as elaborated by judicial decisions, and was held by the Court of Cassation, on further appeal, to be proper. It appeared that the severity of an apparently irrebuttable presumption had been to some extent moderated by court decisions upholding the trial court's unfettered power of assessing evidence and giving a broad meaning to force majeure. The trial court could also take account of extenuating circumstances when imposing penalties. In the result the Strasbourg court rejected the applicant's complaint that article 392(1) infringed the presumption of innocence, relying on the features just noted and the courts' freedom to give an accused the benefit of the doubt even where the offence was one of strict liability. It was noted that the French courts had been careful to avoid resorting automatically to the presumption laid down in article 392(1), and had exercised their power of assessment on the basis of the evidence adduced by the parties before them. Thus the French courts had not applied article 392(1) in a way which conflicted with the presumption of innocence.

    12.  The Court's decision in Salabiaku is important less perhaps for what it decided than for the indications it gives of the correct approach in principle. First of all, it is recognised that member states may, generally speaking, attach criminal consequences to defined facts:

    "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."

It also sanctions, but in a qualified way, the application of factual and legal presumptions:

    "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. The Court proposes to consider whether such limits were exceeded to the detriment of Mr Salabiaku."

Thus the question in any case must be whether, on the facts, the reasonable limits to which a presumption must be subject have been exceeded.

    13.  Article 392(1) of the French Customs Code, was again the subject of challenge, as were other provisions of the Code, in Hoang v France (1992) 16 EHRR 53. Opinion in the Commission was divided, a majority upholding the applicant's conviction of a customs offence on grounds similar to those relied on in Salabiaku. The Court unanimously agreed, ruling (para 36) that the Paris Court of Appeal had based its finding of guilt on the evidence: it had refrained from any automatic reliance on the presumptions created in the relevant provisions of the Customs Code and had not applied them in a manner incompatible with article 6(1) and (2) of the Convention. One of the articles of the French Customs Code mentioned in Hoang was article 373, which provided:

    "In any proceedings concerning a seizure of goods, the burden of proving that no offence has been committed shall be on the person whose goods have been seized."

In argument before the Commission the Government (para 50, p 68-69) dismissed this article as irrelevant, since the applicant's goods had not been seized, and the Court did no more than mention it. If, however, it had been relevant and had been interpreted and applied entirely literally by the French courts, its compatibility with article 6(2) would surely have been questionable.

    14.  In H v United Kingdom Appn No 15023/89, 4 April 1990 (unreported) there was found by the Commission to be no infringement of article 6(2) in requiring a defendant to establish a defence of insanity. That requirement was not unreasonable or arbitrary. The application was manifestly ill-founded.

    15.  The provision challenged in AG v Malta Appn No 16641/90, 10 December 1991 (unreported) imposed criminal liability on a director of a body which had committed a criminal offence "unless he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of the offence". The Commission found the application to be manifestly ill-founded. It referred to the Salabiaku judgment, noted that the applicant was provided under the legislation with the possibility of exculpating himself, found that the Maltese courts enjoyed a genuine freedom of assessment and concluded that the provision had not been applied to the applicant in a manner incompatible with the presumption of innocence. A similar decision was reached by the Court more recently in Brown v United Kingdom Appn No 44223/98, 2 July 2002 (unreported): article 6(2) of the Convention was not violated by a provision which enabled a newspaper proprietor or publisher to escape strict liability under section 4(5) of the Sexual Offences (Amendment) Act 1976 only if he proved, on the balance of probabilities, that he was in no way at fault in connection with the offending publication.

    16.  In Bates v United Kingdom Appn No 26280/95, 16 January 1996 (unreported) the Commission held inadmissible a challenge to the rebuttable presumption as to the breed of a dog enacted in section 5(5) of the Dangerous Dogs Act 1991. It was noted that the applicant had been entitled but, although represented, had failed, to call evidence to prove at trial that his dog was not of the breed proscribed by the Act, and that the court had relied on an admission by him that the dog was of the breed proscribed. The section was held to fall within reasonable limits.

    17.  An emergency anti-terrorist enactment was held in Heaney and McGuinness v Ireland (2000) 33 EHRR 264 to violate the article 6(1) right of the applicants to remain silent and not incriminate themselves, and also to violate the presumption of innocence guaranteed by article 6(2) because (para 59) of the close link, in this context, between it and the rights guaranteed by article 6(1). The Court rejected (para 58) the Irish Government's contention that the enactment in question was justified by its security and public order concerns since the enactment extinguished the very essence of the applicants' rights to silence and against self-incrimination.

    18.  A violation of article 6(2) was again found in Telfner v Austria Appn No 33501/96, 20 March 2001 (unreported). The victim of a motor accident was able to identify the offending car, but not its driver, even to the extent of saying whether the driver was male or female. The car was owned by the applicant's mother, but he denied that he had been driving at the time and there was no evidence that he had been driving beyond police observations (not, it seems, the subject of oral evidence at the trial) that the car was mainly driven by the applicant. His conviction at trial was upheld on appeal. It was, the Court held (para 15), for it to ascertain that the proceedings as a whole were fair, which in a criminal trial included observance of the presumption of innocence. A court should not start with the preconceived idea that the accused had committed the offence charged. The burden of proof was on the prosecution and any doubt should benefit the accused. The presumption of innocence is infringed where the burden of proof is shifted from the prosecution to the defence. The case was not one (para 17-18) in which adverse inferences could properly be drawn from the silence of the accused. This decision is in accord with that given in Barbera, Messegué and Jabardo v Spain (1988) 11 EHRR 360 some years earlier, in which the Court observed (para 91) that the presumption of innocence would be violated if, without the accused having previously been proved guilty according to law, a judicial decision concerning him reflected an opinion that he was guilty. The burden of proof is on the prosecution and any doubt should benefit the accused (para 77).