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)
49. Recognition of the risk that subsection (1) might cover conduct which was not blameworthy or such as properly to attract criminal sanctions may very well have led Parliament to provide the defence enacted in subsection (2). The effect of this subsection is not, in my opinion, to make participation in the activities of the organisation while proscribed an ingredient of the offence. A majority of the House in R v Lambert  2 AC 545 found that knowledge of the contents of the container was not an ingredient of the section 5 offence, despite the defence of ignorance in section 28. I have concluded above (para 40) that the likelihood of driving is not an ingredient of the section 5(1)(b) offence, despite the defence provided in section 5(2). By parity of reasoning, section 11(2) adds no ingredient to section 11(1), and I would reject Mr Owen's contrary submission. I would accordingly answer the first of the Attorney General's questions in the same way as the Court of Appeal.
50. There can be no doubt that Parliament intended section 11(2) to impose a legal burden on the defendant, since section 118 of the Act lists a number of sections which are to be understood as imposing an evidential burden only, and section 11(2) is not among those listed. There is also, in my opinion, no doubt that subsections (1) and (2) are directed to a legitimate end: deterring people from becoming members and taking part in the activities of proscribed terrorist organisations. The crucial question is therefore whether, as the Court of Appeal held, imposition of a legal burden on a defendant in this particular situation is a proportionate and justifiable legislative response to an undoubted problem. To answer this question the various tests identified in the Strasbourg jurisprudence as interpreted in the United Kingdom authorities fall to be applied.
51. A number of considerations lead me to a conclusion different from that reached by the Court of Appeal. They are these:
(1) As shown in paras  and  above, a person who is innocent of any blameworthy or properly criminal conduct may fall within section 11(1). There would be a clear breach of the presumption of innocence, and a real risk of unfair conviction, if such persons could exonerate themselves only by establishing the defence provided on the balance of probabilities. It is the clear duty of the courts, entrusted to them by Parliament, to protect defendants against such a risk. It is relevant to note that a defendant who tried and failed to establish a defence under section 11(2) might in effect be convicted on the basis of conduct which was not criminal at the date of commission.
(2) While a defendant might reasonably be expected to show that the organisation was not proscribed on the last or only occasion on which he became a member or professed to be a member, so as to satisfy subsection (2)(a), it might well be all but impossible for him to show that he had not taken part in the activities of the organisation at any time while it was proscribed, so as to satisfy subsection (2)(b). Terrorist organisations do not generate minutes, records or documents on which he could rely. Other members would for obvious reasons be unlikely to come forward and testify on his behalf. If the defendant's involvement (like that of Hundal and Dhaliwa: see paragraph  above) had been abroad, any evidence might also be abroad and hard to adduce. While the defendant himself could assert that he had been inactive, his evidence might well be discounted as unreliable. A's own case is a good example. He arrived as a stowaway. He described himself on different occasions as Palestinian and also as Jordanian. An immigration adjudicator concluded that he was Moroccan. The judge, as already noted, thought he might well be a fantasist. He was not a person whose uncorroborated testimony would carry weight. Thus although section 11(2) preserves the rights of the defence, those rights would be very hard to exercise effectively.
(3) If section 11(2) were held to impose a legal burden, the court would retain a power to assess the evidence, on which it would have to exercise a judgment. But the subsection would provide no flexibility and there would be no room for the exercise of discretion. If the defendant failed to prove the matters specified in subsection (2), the court would have no choice but to convict him.
(4) The potential consequence for a defendant of failing to establish a subsection (2) defence is severe: imprisonment for up to ten years.
(5) While security considerations must always carry weight, they do not absolve member states from their duty to ensure that basic standards of fairness are observed.
(6) Little significance can be attached to the requirement in section 117 of the Act that the Director of Public Prosecutions give his consent to a prosecution (a matter mentioned by the Court of Appeal in para 42 of its judgment) for the reasons given by the Court of Appeal in para 91 of its judgment in Attorney General's Reference (No 1 of 2004)  EWCA Crim 1025.
52. I would accept that, in a case where the prosecutor is unable to charge the defendant with any offence related to terrorism other than under section 11, and where the defendant has raised an evidential issue under subsection (2), the prosecutor may well be unable to disprove the facts specified in subsection (2) (a) and (b). But if so, that will be because he cannot point to any conduct of the defendant which has contributed to the furtherance of terrorism. It is not offensive that a defendant should be acquitted in such circumstances.
53. It was argued for the Attorney General that section 11(2) could not be read down under section 3 of the 1998 Act so as to impose an evidential rather than a legal burden if (contrary to his submissions) the subsection were held to infringe, impermissibly, the presumption of innocence. He submitted that if the presumption of innocence were found to be infringed, a declaration of incompatibility should be made. I cannot accept this submission, which Mr Owen contradicted. In my opinion, reading down section 11(2) so as to impose an evidential instead of a legal burden falls well within the interpretative principles discussed above. The subsection should be treated as if section 118(2) applied to it. Such was not the intention of Parliament when enacting the 2000 Act, but it was the intention of Parliament when enacting section 3 of the 1998 Act. I would answer the first part of the Attorney General's second question by ruling that section 11(2) of the Act should be read and given effect as imposing on the defendant an evidential burden only.
54. In penalising the profession of membership of a proscribed organisation, section 11(1) does, I think, interfere with exercise of the right of free expression guaranteed by article 10 of the Convention. But such interference may be justified if it satisfies various conditions. First, it must be directed to a legitimate end. Such ends include the interests of national security, public safety and the prevention of disorder or crime. Section 11(1) is directed to those ends. Secondly, the interference must be prescribed by law. That requirement is met, despite my present doubt as to the meaning of "profess". Thirdly, it must be necessary in a democratic society and proportionate. The necessity of attacking terrorist organisations is in my view clear. I would incline to hold subsection (1) to be proportionate, for article 10 purposes, whether subsection (2) imposes a legal or an evidential burden. But I agree with Mr Owen that the question does not fall to be considered in the present context, and I would (as he asks) decline to answer this part of the Attorney General's second question.
55. I have read the opinion of my noble and learned friend Lord Bingham of Cornhill. I agree with it. I would also make the order which he proposes.LORD PHILLIPS OF WORTH MATRAVERS
56. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. I agree with it and with the order that he proposes.
LORD RODGER OF EARLSFERRY
57. These appeals relate to reverse burden of proof provisions in two statutes. The provisions are said to be incompatible with the defendants' Convention right under article 6(2) to be presumed innocent until proved guilty according to law. I have had the privilege of considering the speech of my noble and learned friend, Lord Bingham of Cornhill, in draft. I agree with his general exposition of the applicable case law of the European Court of Human Rights relating to article 6(2) and with his proposal that the appeal by the Crown in the case of Sheldrake should be allowed for the reasons he gives. I also agree with the answer that he proposes should be given to the first question in the Attorney General's Reference, but I have the misfortune to differ from him on the second question. I confine my observations to that matter. Like Lord Bingham, I shall refer to the acquitted person as A.
58. In para 30 of his speech Lord Bingham emphasises that, when considering the article 6(2) Convention right, British courts must take their lead from the decisions of the European Court in Strasbourg and that caution should be exercised when considering authorities decided under provisions of Commonwealth constitutions which are not modelled on the European Convention. I respectfully agree with that observation, which mirrors what Lord Steyn and Lord Hope of Craighead said in Brown v Stott  1 AC 681, 708b - c and 724c. For the purposes of article 6(2) there may indeed be particular need for caution in drawing on Commonwealth authorities which, despite the apparent similarities, may turn out to be faux amis. It is noticeable that in Bates v United Kingdom, application no 26280/95, the European Commission on Human Rights were presented with a number of Commonwealth authorities on the presumption of innocence, but found it unnecessary to look at them because they preferred to be guided by the established jurisprudence of the European Court of Human Rights. Therefore, if article 6(2), as interpreted by the European Court, lays down what appears to be a different test, our courts must apply that test since the Convention rights in our domestic law are intended to march with the rights under the Convention.
59. The European Court has frequently pointed out that the guarantee in article 6(2) is a specific aspect of the right to a fair trial set forth in article 6(1): e g Barberà, Messegué and Jabardo v Spain (1988) 11 EHRR 360, 384, para 67 and Janosevic v Sweden (2004) 38 EHRR 473, 505, para 96, with citations. It follows that, where an accused has a fair trial in terms of article 6(1), the presumption of innocence is not violated. The Court's broad description of the requirements of article 6(2) in Barberà, at para 77, is consistent with that approach:
So far as the Attorney General's Reference is concerned, it is not suggested that there was in fact any breach of article 6(1) or (2) at the trial, since, by agreement, the proceedings were conducted on the basis that section 11(2) of the Terrorism Act 2000 was to be read as imposing on A an evidential, as opposed to a persuasive, burden. The contention for A is, however, that article 6(2) would have been infringed if section 11(2) had been interpreted as requiring him to prove the matters in question on a balance of probabilities - failing which, he would have been convicted of the offence in terms of section 11(1).
60. Section 11(1) and (2) of the Terrorism Act 2000 provide:
In considering the arguments advanced by counsel, it is worth remembering that these provisions represent no innovation in the law. Being a member of, or professing to belong to, a proscribed organisation was first made an offence under primary legislation in section 19 of the Northern Ireland (Emergency Provisions) Act 1973 and a measure to the same effect has been part of the law of Great Britain since the Prevention of Terrorism (Temporary Provisions) Act 1974. Section 1(1) and (6) of that Act provided inter alia:
The provisions in the two Acts are drafted differently. In the 2000 Act section 11(2) makes it a defence for the defendant to prove the matters in question, whereas in the 1974 Act section 11(6) says that a person belonging to a proscribed organisation shall not be guilty of an offence if he shows the matters in question. I doubt whether the draftsman intended any change in the operation of the provision but, in any event, the current provision is clearly to be regarded as a defence.
61. As under section 1(1) of the 1974 Act, a person commits an offence under section 11(1) of the 2000 Act if he does one of two things: if he belongs to a proscribed organisation or if he professes to belong to a proscribed organisation. Both limbs merit consideration for present purposes.
62. The first alternative is that the defendant is a member of the proscribed organisation. The legislature has made it a crime for people simply to belong to such a murderous terrorist organisation. Criminalising membership serves a legitimate purpose by making it difficult for members of the organisation to demonstrate publicly in a manner that affronts law-abiding members of the public. Moreover, not only do people by their mere membership give credence to the claims of the organisation but, in addition, members are a potential network of people who may be called on to act for the organisation at some time in the future, even if they have not yet done so. It follows that it is no defence for most members of the organisation to show that they have never taken an active part in the activities of the organisation. The crime is being a member, not being an active member.
63. The second alternative in section 11(1) is designed to catch not only members of the proscribed organisation but people who, though not members, profess to belong to it. As the terms of subsection (2)(a) ("began to profess") indicate, professing to be a member of an organisation is regarded as something which is not complete when the declaration is made, but continues thereafter. So once a person has begun to profess to belong to an organisation, other things being equal, he is regarded as continuing to do so after the organisation is proscribed - just as a person who joins is treated as continuing to be a member thereafter. That is the basis upon which such persons are convicted, in conformity with article 7 of the Convention. I take it to be clear, however, that a person can be convicted of professing to belong to a proscribed organisation, even if he is not a member or the prosecution cannot prove that he is. So, for example, if the present proceedings had run their course, the jury could competently have acquitted A of being a member of Hamas IDQ (count 1), while convicting him of professing to belong to that organisation (count 2). It is not hard either to see why the legislature would wish to prevent people from falsely claiming to belong to a proscribed organisation. By making such claims, especially as part of a public demonstration, people are liable to contribute to an exaggerated impression of the strength of the organisation in question. In this way they will tend to raise the morale of the actual members of the organisation, while lowering that of the law-abiding members of the community and of the forces of law and order.
64. Claims to belong to an organisation will not have this effect, however, unless they are made to other people and in such a manner as to be capable of belief. So, if it were obvious that someone was only making a joke and was not meaning to be taken seriously when he said that he belonged to a proscribed organisation, this would not amount to "professing" to belong to the organisation for purposes of section 11(1). In para 22 of his ruling that there was no case to answer, the trial judge in the present proceedings noted that A's "audience was never sure whether he was serious or making a joke when he said what he did." Had the case gone to the jury, in my view it would have been proper for the judge to direct them that, if they had a reasonable doubt whether A was serious or was only making a joke when he said what he did, then he should be acquitted.
65. It follows that, in order to achieve a conviction under section 11(1), the Crown must lead evidence that satisfies the magistrate or jury beyond a reasonable doubt either that the defendant is a member of the proscribed organisation or that he professes - in the sense of claiming to other people and in a manner that is capable of belief - that he belongs to the organisation. If the Crown leads the necessary evidence to prove these matters, then the defendant is liable to be convicted of the offence. It is important to notice that the burden of proving these facts lies entirely on the Crown. Moreover, as in most criminal trials, the Crown enjoys no presumption of fact or law to help it to prove them. The issue is tried as in any other ordinary criminal trial: the Crown leads the evidence to prove the relevant facts; it is open to the defence to cross-examine the Crown witnesses, to make a submission of no case to answer, to lead any contrary evidence and to make submissions on the evidence to the magistrate or jury. There is a right of appeal. Nothing in such proceedings could possibly be regarded as infringing the defendant's Convention rights under article 6(1) or (2).
66. If the prosecution establishes that the defendant is a member of a proscribed organisation or professes to belong to it, then in one sense it proves a simple objective fact. And, with one exception, section 11(1) makes that fact an offence, irrespective of how or why it came about. There is nothing in the Convention to prevent states enacting and prosecuting offences of this kind, as the European Court of Human Rights emphasised in Salabiaku v France (1988) 13 EHRR 379, 387, para 27:
In the present case, for the reasons given by Lord Bingham, the criminalisation of professing to belong to a proscribed organisation does not violate any article 10 Convention right of the defendant. Similarly, the nature of the offence created by section 11(1) does not engage any right of the defendant under article 6, since that article is concerned with the fair trial of offences and not with the substance of the offences themselves. I am accordingly satisfied that, given the murderous aims of the proscribed organisations, it is open to the legislature, without in any way infringing a defendant's rights under the Convention, to make it a punishable offence for someone simply to be a member of, or to profess to belong to, such an organisation in the United Kingdom.
67. As Lord Bingham points out, section 11(1) is apt to catch people who joined the organisation before it was proscribed - at a stage, perhaps, when it was not even a terrorist organisation. It could catch someone who joined the organisation without knowing that it was proscribed, or when he was an immature youth. And it would cover someone who joined the organisation abroad, where it was legal, and came to this country without being aware that it was illegal here. All these are factors which may be relevant in at least three ways. First, and very importantly, under section 117(1) and (2) they will be relevant to the decision of the Director of Public Prosecutions - for these purposes a senior Crown Prosecutor - or of the Attorney General to consent to the instituting of proceedings. Secondly, they will be relevant to any decision whether such proceedings should be summary or on indictment. Lastly, in the event of a conviction, they will fall to be considered by the court in mitigation of penalty. But, with one alleged exception, in my respectful opinion these are not matters which raise any issue whatever as to the compatibility of section 11 with article 6(2) of the Convention.
68. The alleged exception is the case, envisaged by section 11(2), where the defendant joined the organisation or began to profess to belong to it before it was proscribed. In this kind of case, from the Northern Irish legislation of 1973 onwards, Parliament has always made provision for the defendant to have a defence if he establishes two points: that he joined or began to profess to belong to the organisation when it was not proscribed and that he has not taken part in any of its activities while it has been proscribed. The form of this defence is designed precisely to meet the objection that terrorist organisations are not likely to have mechanisms by which people can safely give up their membership or dissociate themselves from the organisation. So it applies after the Crown has established that, at the relevant time, the defendant remains a member of the organisation or professes to belong to it and where, accordingly, in any other case he would fall to be convicted under section 11(1). Exceptionally, in this particular situation the defendant is to be acquitted if he proves that he has not taken an active part in any of the activities of the organisation while it was proscribed. Plainly, if section 3 of the Human Rights Act is left on one side, the wording of section 11(2) places the burden of proving the defence on the defendant.
69. By enacting section 11(2) Parliament has singled out for favourable treatment those defendants who became members or began to profess to belong to the organisation before it was proscribed. As I pointed out in para 65, there could have been no question of an infringement of the defendant's article 6 rights if this defence had not been included in section 11. On that hypothesis, whatever the circumstances of his initial involvement in the organisation, he could have had a fair trial in terms of article 6 and could have been convicted of an offence under section 11(1) if the Crown had proved that he was a member or professed to belong to the organisation after it was proscribed. All that has happened is that, without changing the definitional elements of the offence, Parliament has given these particular defendants the additional benefit of a defence if they can prove the two elements in subsection (2). The introduction of the defence does not involve the introduction into the proceedings of any presumption in favour of the Crown: the magistrate or jury decides the matter by considering and weighing the evidence led, unconstrained by any presumption of any kind. Parliament requires, however, that, before a defendant who has otherwise been proved to be guilty of the offence under section 11(1) is excused, the magistrate or jury must actually be satisfied that he did indeed join, or begin to profess to belong to, the organisation before it was proscribed and that he did not thereafter take any part in its activities. Parliament can lay down these preconditions for the defendant's acquittal in such a case without infringing article 6(2) as interpreted by the European Court in Salabiaku and the other authorities. And, when Parliament does so, it must inevitably be for the defendant to satisfy the magistrate or jury that the preconditions have been met. Who else could do it? If the defendant fails to establish either of the preconditions, the defence is to fail and the defendant is to be duly convicted - because, ex hypothesi, the Crown will already have proved all that is necessary to secure a conviction under section 11(1).
70. In this respect the defendant under section 11(1) is in precisely the same position as a defendant, such as Mr Sheldrake, who is proved to have been in charge of a vehicle when over the prescribed alcohol limit in terms of section 5(1) of the Road Traffic Act 1988 and who fails to prove, for the purposes of section 5(2), that there was no likelihood of his driving while in that condition. He is convicted of the offence under section 5(1) because, again ex hypothesi, the Crown has proved all the constitutive elements of the offence. As the House holds, there is no violation of the defendant's right under article 6(2). Moreover, the fact that the court has no "discretion" in either case to acquit the defendant raises no issue in terms of article 6(2): guilt or innocence can never depend on the exercise of discretion by the tribunal which assesses the evidence and pronounces the verdict.