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)
19. In Porras v Netherlands Appn No 49226/99, 18 January 2000 (unreported) the applicant was convicted of intentionally importing cocaine and complained that the burden of proof had been reversed by imposing on him an obligation, which he found impossible to discharge, to prove that he was not and could not have been aware that persons unknown to him had hidden a significant quantity of the drug in his luggage. The Court rejected this complaint, holding that no irrebuttable presumption of guilt had been applied. Although accepting a normal assumption that a person who packs his own luggage and takes it with him knows of the contents, the Dutch court had had regard to the possibility that this might not be so, had considered all the circumstances, had weighed all the evidence and had not therefore relied automatically on any presumption. On the somewhat involved procedural facts of Selvanayagam v United Kingdom Appn No 57981/00, 12 December 2002 (unreported) the Court found that any presumption of law which had operated against the applicant had been within reasonable limits, had taken account of the importance of what was at stake and had maintained the rights of the defence.
20. The decision of the Court in Janosevic v Sweden (2004) 38 EHRR 473 rejected a complaint that the imposition of tax surcharges was incompatible with article 6(2) because (para 99) "an almost insurmountable burden of proof" was imposed on the taxpayer. The opportunity was taken to re-state established principles. There was no need for the Swedish authorities to prove intent or negligence, but states might, in principle and under certain conditions, penalise a simple or objective fact as such, irrespective of whether it resulted from criminal intent or from negligence (para 100). There was, on the facts, an effective presumption against the taxpayer (para 100), and as decided in Salabiaku (para 101),
The Court acknowledged (para 102) that it was difficult for the taxpayer to rebut the presumption in question, but he was not without means of defence (para 102), and the Court had regard to the financial interests of the state in tax matters and its dependence on the provision of correct and complete information by taxpayers (para 103) in concluding (para 104) that the presumption was confined within reasonable limits.
21. From this body of authority certain principles may be derived. 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.
The leading United Kingdom cases since the Human Rights Act 1998
22. In R v Director of Public Prosecutions, Ex p Kebilene  2 AC 326 the applicants challenged the compatibility of section 16(A) of the Prevention of Terrorism (Temporary Provisions) Act 1989 with article 6(2) of the Convention. The relevant provisions read:
The Divisional Court concluded that the section did violate article 6(2) since if the defendant failed to discharge the legal burden placed upon him by subsection (3) he could be convicted of a crime punishable by 10 years' imprisonment on grounds of reasonable suspicion, and even if there were a reasonable doubt whether he did possess the articles for purposes of terrorism. The House did not find it necessary to resolve this question. Lord Steyn, in an opinion with which Lord Slynn of Hadley (p 362) and Lord Cooke of Thorndon (p 372) agreed, pointed out (p 370) that section 16(A) might be upheld if it were read as imposing an evidential and not a legal burden on the defendant. Lord Cooke (p 373) saw great force in the view that on the natural and ordinary interpretation of the provision there was repugnancy, but also pointed to the possibility of reading down subsection (3). Lord Hope of Craighead (p 387) considered that the compatibility of the provision was still open to argument. Lord Hobhouse of Woodborough (p 397) considered that there might be a justification for the terms in which the legislation was drafted even though on its face it appeared to be contrary to the Convention. Parliament paid attention to these observations: when section 16A was re-enacted as section 57 of the Terrorism Act 2000 it was provided (with reference to the defence now in subsection (2) and some other subsections) in section 118(2):
23. The decision of the Privy Council in Brown v Stott  1 AC 681 does not call for detailed examination. It concerned the implied Convention right not to incriminate oneself, which the Strasbourg Court described in Saunders v United Kingdom (1996) 23 EHRR 313, para 68, as "closely linked to the presumption of innocence contained in Article 6(2) of the Convention". For present purposes the decision is noteworthy for its reiteration of important but uncontroversial principles: that a defendant has a right to a trial which, viewed overall is fair (pp 704, 708, 719, 727, 730); that the constituent rights listed or implied in article 6, although important, are not absolute (pp 704, 708, 719, 728, 730); that substantial respect should be paid by the courts to the considered decisions of democratic assemblies and governments (pp 703, 710-711); that the Convention requires a fair balance to be struck between the rights of the individual and the wider interests of the community (pp 704, 707-708, 718-720, 730); 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 (pp 705-706, 709-710, 722, 728, 731-732).
24. In R v A (No 2)  UKHL 25,  1 AC 45, the challenge was to a recent statutory provision which, it was held, strictly interpreted, could have the effect of excluding relevant evidence and thus of compromising a defendant's right to a fair trial. Much of the argument was devoted to the scope and application of the interpretative obligation imposed on the courts by section 3 of the Human Rights Act 1998. The ratio of the decision was summarised in para 46 of Lord Steyn's opinion, which was expressly accepted by Lord Slynn of Hadley (para 15), Lord Hope of Craighead (para 110), Lord Clyde (para 140) and Lord Hutton (para 163), but it is relevant to cite also paragraph 44 of his opinion in which the courts' interpretative obligation under section 3 is more fully explained:
This opinion must now be read in the light of the later decision of the House in Ghaidan v Godin-Mendoza  UKHL 30,  3 WLR 113.
25. The appellant in R v Lambert  UKHL 37,  2 AC 545, was convicted of possessing a class A controlled drug (cocaine) with intent to supply contrary to section 5 of the Misuse of Drugs Act 1971. His defence at trial in 1999 was that he did not know that the duffle bag in his possession contained drugs. The trial judge, correctly applying section 28(2) of the 1971 Act as previously interpreted, directed the jury that the burden lay on him to make good this defence on the balance of probabilities. He was convicted, and on appeal contended that knowledge of the contents of a container was an ingredient of the offence which the prosecution had to prove and that imposition of a legal burden on a defendant to prove lack of knowledge violated the presumption of innocence. The Criminal Division of the Court of Appeal rejected these arguments ( QB 1112), but gave its ruling as if the Human Rights Act 1998 had been in force at the time of the trial. In the House, a majority held that the Act did not operate retrospectively, and the appeal failed on that ground. The appellant's arguments of principle were, however, considered in some detail. A majority of the committee held that knowledge of the contents of the duffle bag was not an ingredient of the offence which the prosecution had to prove: Lord Slynn, para 16; Lord Hope, para 61; Lord Clyde, para 126; Lord Hutton, para 181. A majority also held that imposition of a legal burden on a defendant to prove lack of knowledge undermined the presumption of innocence to an impermissible extent; that section 28(2) could be read down under section 3 of the Human Rights Act so as to impose only an evidential burden; and that it should be read down in that way: Lord Slynn, para 17; Lord Steyn, paras 41-42; Lord Hope, paras 84, 91, 94; Lord Clyde, paras 156-157. It is the opinions of the majority on this point which are relevant for present purposes. The dissenting opinion of Lord Hutton on this issue is not, of course, authoritative.
26. The opinions of the majority on this second point are, inevitably, of some complexity. They must be read with reference to the particular case with which the House was dealing. The importance of the presumption of innocence was recognised: see, for example, paras 34 and 131. It was emphasised that attention should be paid to the substance, not the form, of an enactment (paras 35, 150) and to the particular facts (paras 34, 152). In considering justifiability, the need for a balance between the interests of the individual and those of society was recognised (paras 17, 88). Where some infringement of the presumption of innocence is justified, it should not be greater than necessary to achieve its legitimate object (para 37). Decisive in the majority's conclusion on the facts of the case was recognition that, on a charge carrying a maximum of life imprisonment and in circumstances where Parliament, by enacting section 28(2), had recognised the importance of knowledge, a defendant could be convicted even though the jury thought it as likely as not that he was ignorant of the contents of a container in his possession: see, for example, paras 38, 89, 154, 156. Such an outcome was plainly regarded as seriously unfair, since a conviction might rest on conduct which was not in any way blameworthy.
27. The defendant in R v Johnstone  UKHL 28,  1 WLR 1736, was convicted of possessing some 500 bootleg recordings in breach of section 92 (1)(c) of the Trade Marks Act 1994. Subsection (1) of that section provides:
The section goes on to provide in subsection (5):
The defendant's appeal was allowed by the Court of Appeal on other grounds ( EWCA Crim 194) with which the House in large measure agreed. The Court of Appeal however read subsection (5) as imposing no more than an evidential burden on the defendant, and on this point (not determinative of the appeal) the House disagreed. In his leading opinion, with which the other members of the committee agreed, Lord Nicholls of Birkenhead (para 46) interpreted section 92(5) as imposing, on a conventional interpretation, a legal burden on the defendant. As such he accepted (para 47) that it prima facie derogated from the presumption of innocence. Therefore (para 48), taking account of Salabiaku and the balance to be struck between the public interest and the interests of the individual, it was for the state to justify the derogation and to show that the balance struck was reasonable. Identifying the requirements of a reasonable balance was not, he accepted (para 49), easy:
He continued, in paras 50-51:
He concluded (para 53) that there were compelling reasons why subsection 92(5) should place a legal burden on the defendant. These reasons included (para 52) the urgent international pressure, in the interest of consumers and traders alike, to restrain fraudulent trading in counterfeit goods, the framing of offences against section 92 as offences of "near absolute liability" and the dependence of the subsection (5) defence on facts within the defendant's own knowledge. The considerations which particularly weighed with him as compelling reasons were however (paras 52 and 53) that
Thus Lord Nicholls substantially agreed (para 54) with the Court of Appeal decision in R v S (Trade mark defence)  1 Cr App R 602, which made it unnecessary to consider the courts' interpretative obligation under section 3 of the 1998 Act, about which he had earlier voiced (para 46) some reservations.
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. I intend no disrespect to the Court of Appeal by failing to discuss a number of cases in which that court has considered, in relation to various statutes, the presumption of innocence. But I cannot overlook the decision of an enlarged Court of Appeal (Lord Woolf CJ, Judge LJ, Gage, Elias and Stanley Burnton JJ) in Attorney General's Reference No 1 of 2004  EWCA Crim 1025 and four appeals heard at the same time. In its judgment the court considered much of the authority to which I have referred (although not Ghaidan v Godin-Mendoza, which had not been decided) and detected (para 38) a "significant difference in emphasis" between the approach of Lord Steyn in R v Lambert  2 AC 545 and that of Lord Nicholls in R v Johnstone  1 WLR 1736. Making plain its preference for the latter, the court prefaced its guidance to the courts of England and Wales by ruling that (para 52A):
Relying on this judgment, Mr Perry, for the Director of Public Prosecutions and the Attorney General, submitted in his printed case and (more tentatively) in argument that there was clearly a difference of emphasis between the approach of Lord Steyn in R v Lambert and that of Lord Nicholls in R v Johnstone, and that the latter was to be preferred. Mr Turner QC, for Mr Sheldrake, made a submission to the opposite effect, that the reasoning of the House in R v Johnstone should not be followed.