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)

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    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),

    "in employing presumptions in criminal law, the Contracting States are required to strike a balance between the importance of what is at stake and the rights of the defence; in other words, the means employed have to be reasonably proportionate to the legitimate aim sought to be achieved".

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 [2000] 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:

    (1)  A person is guilty of an offence if he has any article in his possession in circumstances giving rise to a reasonable suspicion that the article is in his possession for a purpose connected with …. acts of terrorism ….

    (3)  It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence the article in question was not in his possession for such a purpose …."

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):

    "If the person adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not"

    23.  The decision of the Privy Council in Brown v Stott [2003] 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) [2001] UKHL 25, [2002] 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:

    "44.  On the other hand, the interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings. It is an emphatic adjuration by the legislature: R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, per Lord Cooke of Thorndon, at p 373F; and my judgment, at p 366B. The White Paper made clear that the obligation goes far beyond the rule which enabled the courts to take the Convention into account in resolving any ambiguity in a legislative provision: see 'Rights Brought Home: The Human Rights Bill' (1997) (Cm 3782), para 2.7. The draftsman of the Act had before him the slightly weaker model in section 6 of the New Zealand Bill of Rights Act 1990 but preferred stronger language. Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights. Under ordinary methods of interpretation a court may depart from the language of the statute to avoid absurd consequences: section 3 goes much further. Undoubtedly, a court must always look for a contextual and purposive interpretation: section 3 is more radical in its effect. It is a general principle of the interpretation of legal instruments that the text is the primary source of interpretation: other sources are subordinate to it: compare, for example, articles 31 to 33 of the Vienna Convention on the Law of Treaties (1980) (Cmnd 7964). Section 3 qualifies this general principle because it requires a court to find an interpretation compatible with Convention rights if it is possible to do so. In the progress of the Bill through Parliament the Lord Chancellor observed that 'in 99% of the cases that will arise, there will be no need for judicial declarations of incompatibility' and the Home Secretary said 'We expect that, in almost all cases, the courts will be able to interpret the legislation compatibility with the Convention': Hansard (HL Debates), 5 February 1998, col 840 (3rd Reading) and Hansard (HC Debates), 16 February 1998, col 778 (2nd Reading). For reasons which I explained in a recent paper, this is at least relevant as an aid to the interpretation of section 3 against the executive: 'Pepper v Hart; A Re-examination' (2001) 21 Oxford Journal of Legal Studies 59; see also Professor J H Baker, 'Statutory Interpretation and Parliamentary Intervention' (1993) 52 CLJ 353. In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms, such an impossibility will arise: R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 132A-B, per Lord Hoffmann. There is, however, no limitation of such a nature in the present case.

    45.  In my view section 3 requires the court to subordinate the niceties of the language of section 41(3)(c), and in particular the touchstone of coincidence, to broader considerations of relevance judged by logical and common sense criteria of time and circumstances. After all, it is realistic to proceed on the basis that the legislature would not, if alerted to the problem, have wished to deny the right to an accused to put forward a full and complete defence by advancing truly probative material. It is therefore possible under section 3 to read section 41, and in particular section 41(3)(c), as subject to the implied provision that evidence or questioning which is required to ensure a fair trial under article 6 of the Convention should not be treated as inadmissible. The result of such a reading would be that sometimes logically relevant sexual experiences between a complainant and an accused may be admitted under section 41(3)(c). On the other hand, there will be cases where previous sexual experience between a complainant and an accused will be irrelevant, eg an isolated episode distant in time and circumstances. Where the line is to be drawn must be left to the judgment of trial judges. On this basis a declaration of incompatibility can be avoided. If this approach is adopted, section 41 will have achieved a major part of its objective but its excessive reach will have been attenuated in accordance with the will of Parliament as reflected in section 3 of the 1998 Act. That is the approach which I would adopt.

    VIII. The task of trial judges

    46. It is of supreme importance that the effect of the speeches today should be clear to trial judges who have to deal with problems of the admissibility of questioning and evidence on alleged prior sexual experience between an accused and a complainant. The effect of the decision today is that under section 41(3)(c) of the 1999 Act, construed where necessary by applying the interpretative obligation under section 3 of the Human Rights Act 1998, and due regard always being paid to the importance of seeking to protect the complainant from indignity and from humiliating questions, the test of admissibility is whether the evidence (and questioning in relation to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6 of the Convention. If this test is satisfied the evidence should not be excluded."

This opinion must now be read in the light of the later decision of the House in Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 3 WLR 113.

    25.  The appellant in R v Lambert [2001] UKHL 37, [2002] 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 ([2002] 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 [2003] UKHL 28, [2003] 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:

    "(1) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor-(a) applies to goods or their packaging a sign identical to, or likely to be mistaken for, a registered trade mark, or (b) sells or lets for hire, offers or exposes for sale or hire or distributes goods which bear, or the packaging of which bears, such a sign, or (c) has in his possession, custody or control in the course of a business any such goods with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b)."

The section goes on to provide in subsection (5):

    "It is a defence for a person charged with an offence under this section to show that he believed on reasonable grounds that the use of the sign in the manner in which it was used, or was to be used, was not an infringement of the registered trade mark."

The defendant's appeal was allowed by the Court of Appeal on other grounds ([2002] 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:

    " … all that can be said is that for a reverse burden of proof to be acceptable there must be a compelling reason why it is fair and reasonable to deny the accused person the protection normally guaranteed to everyone by the presumption of innocence."

He continued, in paras 50-51:

    "50.  The relevant factors to be take into account when considering whether such a reason exists have been considered in several recent authorities, in particular the decisions of the House in R v Director of Public Prosecutions, Ex p Kebilene [2002] 2 AC 326 and R v Lambert [2002] 2 AC 545. And there is now a lengthening list of decisions of the Court of Appeal and other courts in respect of particular statutory provisions. A sound starting point is to remember that if an accused is required to prove a fact on the balance of probability to avoid conviction, this permits a conviction in spite of the fact-finding tribunal having a reasonable doubt as to the guilt of the accused: see Dickson CJ in R v Whyte (1988) 51 DLR (4th) 481, 493. This consequence of a reverse burden of proof should colour one's approach when evaluating the reasons why it is said that, in the absence of a persuasive burden on the accused, the public interest will be prejudiced to an extent which justifies placing a persuasive burden on the accused. The more serious the punishment which may flow from conviction, the more compelling must be the reasons. The extent and nature of the factual matters required to be proved by the accused, and their importance relative to the matters required to be proved by the prosecution, have to be taken into account. So also does the extent to which the burden on the accused relates to facts which, if they exist, are readily provable by him as matters within his own knowledge or to which he has ready access.

    51.  In evaluating these factors the court's role is one of review. Parliament, not the court, is charged with the primary responsibility for deciding, as a matter of policy, what should be the constituent elements of a criminal offence. I echo the words of Lord Woolf in Attorney-General of Hong Kong v Lee Kwong-kut [1993] AC 951, 975:

    'In order to maintain the balance between the individual and the society as a whole, rigid and inflexible standards should not be imposed on the legislature's attempts to resolve the difficult and intransigent problems with which society is faced when seeking to deal with serious crime.'

    The court will reach a different conclusion from the legislature only when it is apparent the legislature has attached insufficient importance to the fundamental right of an individual to be presumed innocent until proved guilty."

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

    "Those who trade in brand products are aware of the need to be on guard against counterfeit goods. They are aware of the need to deal with reputable suppliers and keep records and of the risks they take if they do not."

and that

    " … it is to be expected that those who supply traders with counterfeit products, if traceable at all by outside investigators, are unlikely to be co-operative. So, in practice, if the prosecution must prove that a trader acted dishonestly, fewer investigations will be undertaken and fewer prosecutions will take place."

Thus Lord Nicholls substantially agreed (para 54) with the Court of Appeal decision in R v S (Trade mark defence) [2003] 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 [2004] 3 WLR 113. The majority opinions of Lord Nicholls, Lord Steyn and Lord Rodger in that case (with which Lady Hale agreed) do not lend themselves easily to a brief summary. But they leave no room for doubt on four important points. First, the interpretative obligation under section 3 is a very strong and far reaching one, and may require the court to depart from the legislative intention of Parliament. Secondly, a Convention-compliant interpretation under section 3 is the primary remedial measure and a declaration of incompatibility under section 4 an exceptional course. Thirdly, it is to be noted that during the passage of the Bill through Parliament the promoters of the Bill told both Houses that it was envisaged that the need for a declaration of incompatibility would rarely arise. Fourthly, there is a limit beyond which a Convention-compliant interpretation is not possible, such limit being illustrated by R(Anderson) v Secretary of State for the Home Department [2002] UKHL 46, [2003] 1 AC 837 and Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467. In explaining why a Convention-compliant interpretation may not be possible, members of the committee used differing expressions: such an interpretation would be incompatible with the underlying thrust of the legislation, or would not go with the grain of it, or would call for legislative deliberation, or would change the substance of a provision completely, or would remove its pith and substance, or would violate a cardinal principle of the legislation (paras 33, 49, 110-113, 116). All of these expressions, as I respectfully think, yield valuable insights, but none of them should be allowed to supplant the simple test enacted in the Act: "So far as it is possible to do so …". While the House declined to try to formulate precise rules (para 50), it was thought that cases in which section 3 could not be used would in practice be fairly easy to identify.

    29.  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 [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 [2002] 2 AC 545 and that of Lord Nicholls in R v Johnstone [2003] 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):

    "Courts should strongly discourage the citation of authority to them other than the decision of the House of Lords in Johnstone and this guidance. Johnstone is at present the latest word on the subject."

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.

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