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)
71. The defence in section 11(2) can be seen as relaxing the rigour of the offence in section 11(1) for defendants in these particular circumstances. If section 11(1) itself contains nothing to infringe article 6(1) or (2), then nothing in section 11(2), which serves only to improve the defendant's situation, can precipitate a violation of article 6(1) or (2). If that were not so, Parliament could remove the violation by deleting the defence - and yet this would be to the defendant's obvious disadvantage. Counsel for A contends, however, that article 6(2) is infringed because section 11(2) imposes a persuasive burden on the defendant to prove the necessary elements of the defence. The idea of evidential and persuasive burdens is very much a product of the adversarial system of criminal procedure favoured in English-speaking countries. The distinction has no direct counterpart in civil law systems and is, of course, not mentioned, one way or the other, in any guarantee in article 6 of the Convention. It is clear, however - not least from the decision of the European Court in Salabiaku v France (1988) 13 EHRR 379 - that, if the law provides for a defence and the defendant is free to deploy his case in support of that defence before the trial court, then the mere fact that the onus is on him to establish the facts giving rise to the defence does not constitute a violation of article 6(2) or make his trial unfair for the purposes of article 6(1).
72. In Salabiaku v France the defendant went to Roissy Airport to collect a parcel of food from an Air Zaïre flight. He could not find it, but an airline official directed him to a padlocked trunk which had not been collected from an earlier Air Zaïre flight. The official, acting on the advice of police officers who were watching the trunk, suggested that M Salabiaku should leave it where it was since it might contain prohibited goods. Despite this warning, the defendant took possession of the trunk and passed through customs with it. He was detained and, when the trunk was opened, 10 kilogrammes of herbal and seed cannabis were found concealed in a false bottom underneath the food. The defendant was charged inter alia with the customs offence of smuggling prohibited goods, contrary to articles 414 and 417 of the Customs Code. Article 392(1) of that Code provided that "the person in possession of contraband goods shall be deemed liable for the offence." The defendant was convicted of the smuggling offences and, when his appeal against conviction was rejected, he applied to the European Commission, alleging that the way that article 92(1) had been applied to him infringed his rights under articles 6(1) and (2). The European Court of Human Rights found that there had been no violation of either paragraph of article 6.
73. As I pointed out in para 66, the Court started from the position that under the Convention there was no objection to a state penalising an objective state of fact, such as being in possession of prohibited goods. So, if M Salabiaku had been charged with an offence of being in possession of prohibited goods, viz the cannabis, it is clear that there would have been no conceivable violation of article 6. What raised the article 6(2) question was that the defendant was not charged with possession of the cannabis but, rather, under article 392(1), as the person in possession of the cannabis, he was deemed to be liable for smuggling it into France. This provision gave rise to a presumption of law by virtue of which the French courts had found the defendant guilty of smuggling the prohibited goods, contrary to articles 414 and 417 of the Customs Code.
74. What the European Court had to consider was whether these proceedings violated article 6(2). In holding that they did not, the Court observed, 13 EHRR 379, 388, at para 28, that article 6(2) does not regard presumptions of fact or law with indifference:
The Court noted that the presumption in article 392(1) did not mean that the defendant is left entirely without any means of defence. The competent court trying the offence may accord him the benefit of extenuating circumstances, and it must acquit him if he succeeds in establishing a case of force majeure. The Court went on, in para 29, to refer with approval to a judgment of the Paris Court of Appeal, holding that the specific character of customs offences does not deprive the offender of every possibility of defence since "the person in possession may exculpate himself by establishing a case of force majeure" ("le détenteur peut s'exonérer par la preuve de la force majeure").
75. As this analysis shows, what gave rise to the issue in relation to article 6(2) in Salabiaku was the presumption of guilt of smuggling prohibited goods which article 392(1) drew from proof of the objective state of fact, viz that the defendant was in possession of the goods. Even then, the Court held that there was no violation of article 6(2) since, first, the presumption did not apply in the circumstances where the defendant proved that his possession was due to force majeure and, further, the defendant was free to deploy that defence and the court was equally free to consider it on its merits.
76. The present case involves no presumption of any kind. So the entire basis upon which the question of article 6(2) arose in Salabiaku is missing. In particular, since no presumption is involved, no question arises as to whether a presumption has been kept within reasonable limits. Moreover, as para 29 of the decision of the European Court of Human Rights plainly shows, the mere fact that the onus is on the defendant to establish a defence in this situation does not in itself give rise to any breach of article 6(2). What matters is that the tribunal assesses the facts with an open mind, without any preconception of the defendant's guilt. In addition, in a case like the present, the rights of the defence are fully respected. The defendant is free to give evidence himself, and to lead the evidence of other witnesses, in support of the defence. Of course, this will involve him in having to prove a negative, viz that he has not taken part in any activities of the organisation since it was proscribed. The point is rightly made that, given the nature of proscribed organisations, the defendant may well have difficulty in finding witnesses to support his evidence that he has taken no part in the activities of the organisation. But, by the same token, the Crown is likely to have difficulty in finding witnesses to contradict anything that he says. More particularly, if the defendant has actually taken no part in the activities of the organisation, then the Crown is unlikely to have any evidence - and will, at any rate, have no sound evidence - on which it can properly invite the jury to reject the defendant's account. If such evidence is led, the defendant's counsel will be able to cross-examine the witnesses and to make submissions about the quality of their evidence.
77. The present case illustrates the point. As the trial judge recorded, "the Crown cannot point to one overt act that has been designed to further the cause of Hamas IDQ." Counsel for the Crown was reduced to arguing that A was in the United Kingdom as a "sleeper" - a suggestion that the judge rightly regarded as fanciful, speculative and not supported by the evidence at all, not least because A had been announcing to the world at large that he was Hamas. The evidence available to the Crown would have remained exactly the same if the case had been conducted on the footing that the burden of proving the defence lay on A. Therefore, given that there was in fact no evidence available to the Crown of any single overt act by A designed to further the cause of Hamas IDQ, in accordance with proper professional practice, prosecuting counsel could not have challenged the credibility of the defence evidence that he had not taken part in the activities of the organisation since 29 March 2001. In the absence of any such challenge by the Crown or of any Crown evidence to the contrary, it is likely that A's evidence on this point would have been accepted. There is accordingly no reason to believe that in this, or any similar, case where there is no evidence to show that the defendant took part in the activities of the organisation, he would fail to establish the defence simply because the onus of proof lay on him. In any event, simply placing the onus of proving this defence on the defendant involves no violation of his article 6(2) Convention rights. Therefore if the trial had been conducted on the footing that A had to establish the defence, there would have been no violation of his Convention rights under either article 6(1) or 6(2).
78. For these reasons, as well as those in the speech to be delivered by my noble and learned friend, Lord Carswell, I would hold, first, that section 11(2) of the Terrorism Act 2000 imposes a legal, rather than an evidential, burden of proof on an accused and, secondly, that the legal burden is compatible with articles 6 and 10 of the Convention. I would answer the Attorney General's second question accordingly.
79. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Rodger of Earlsferry. I agree with his reasons and conclusions and wish to add only a few observations of my own.
80. The issue common to these appeals is whether it is unfair to the accused to have to undertake the burden of proving the defence provided for in the governing legislation and, if so, whether the relevant provisions should be "read down" as an evidential rather than a legal or persuasive burden. My noble and learned friend, Lord Bingham of Cornhill, has reviewed in detail in his opinion the applicable provisions of the European Convention on Human Rights and the decisions of the European Court of Human Rights, together with the domestic decisions which affect the issues before us, and I do not wish to add anything to the discussion of the law set out in his opinion and that of Lord Rodger of Earlsferry. I shall consider in this opinion the application of the law to the two appeals before us, observing only that the objective of article 6 of the Convention is to require a fair trial and that the presumption of innocence contained in article 6(2) is one aspect of that requirement, rather than constituting a free-standing obligation. For that reason, as accepted by the European Court of Human Rights in Salabiaku v France (1988) 13 EHRR 379, inroads into the obligation of the prosecution to prove beyond reasonable doubt all the matters in issue in a criminal trial may be permissible in certain circumstances. The reversal of the ordinary burden of proof resting upon the prosecution may accordingly be justified in some cases and will not offend against the principle requiring a fair trial. Where the question arises, it has to be determined, first, whether it is fair and reasonable in the achievement of a proper statutory objective for the state to deprive the defendant of the protection normally guaranteed by the presumption of innocence whereby the burden of proof is placed upon the prosecution to prove beyond reasonable doubt all the matters in issue. Secondly, one must determine whether the exception is proportionate, that is to say, whether it goes no further than is reasonably necessary to achieve that objective.
81. Mr Sheldrake was on 26 June 2001 convicted by a magistrates' court of an offence, contrary to section 5(1)(b) of the Road Traffic Act 1988, of being in charge of a vehicle in a public place after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit. He relied upon the defence available under section 5(2), which provides:
He had been arrested at 8.40 pm on 9 February 2001, and it was established that at the average rate of elimination of alcohol that proportion would not have fallen below the limit until approximately 11.40 am the following day. Mr Sheldrake gave evidence that he had made efforts to arrange transport home by other means, but the justices held that he had not established on the balance of probabilities that there was no likelihood of his driving his vehicle.
82. The issue which formed the subject of the appeal before the House was whether the imposition on a defendant of a legal or persuasive burden of proof of the matters specified in section 5(2) constituted an interference with the presumption of innocence provided for by article 6(2) of the Convention which was unfair and contrary to the requirements of article 6. His counsel argued, unsuccessfully before the magistrates' court but successfully on appeal to the Queen's Bench Division of the High Court, that the imposition of a persuasive burden constituted a breach of article 6 and accordingly section 5(2) of the 1988 Act should be read in such a way as to impose only an evidential burden. If this were done, then once the issue was raised the prosecution would be required to prove beyond reasonable doubt that some likelihood (interpreted by the Divisional Court as a "real risk") existed of the defendant's driving the vehicle. The majority of the Divisional Court accepted the argument advanced on behalf of Mr Sheldrake and held that the magistrates had been wrong to regard section 5(2) as imposing a persuasive burden.
83. The offence of being in charge of a motor vehicle when unfit to drive or over the prescribed limit is, as Taylor LJ observed in Director of Public Prosecutions v Watkins  QB 821, 829, the lowest in the scale of three charges relating to driving and drink, coming after driving and attempting to drive. It was argued on behalf of Mr Sheldrake and accepted by the Divisional Court that the likelihood of his driving was the gravamen of the offence and, once raised as an issue in the case, was an essential element in the matters to be proved by the prosecution. For the reasons set out by Lord Bingham of Cornhill, I am unable to accept this. I agree with the proposition stated by Taylor LJ in DPP v Watkins that proof of being in charge of a vehicle does not necessitate proof of a likelihood of the defendant driving the vehicle. Since that issue does not require to be proved by the prosecution in order to establish a case of being in charge, to hold that the burden of proof on the defendant in propounding the defence under section 5(2) is merely an evidential burden would be to require the prosecution to prove a matter dehors the elements of the offence itself. This in my opinion is a material factor in determining whether it would be fair and reasonable and proportionate to make it a persuasive burden.
84. The ultimate risk may be that the defendant may elect to drive the vehicle, but it is not in my view the gravamen of the offence. Being in charge of a vehicle while over the limit is in itself such an anti-social act that Parliament has long since made it an offence. A person who has drunk more than the limit should take steps to put it out of his power to drive. Section 5(2) gives him an escape route, which it is quite easy for him to take in a genuine case, as he is the person best placed to know and establish whether he was likely to drive the vehicle. Conversely, the prosecution might be able readily enough to establish that the defendant was in a position to drive the vehicle if he elected to do so, but it could well be difficult to prove beyond reasonable doubt that there was a likelihood of his driving it.
85. An example may be posed to test these propositions. The owner of a car, who has drunk enough alcohol to take him over the limit, decides to wash the car. He takes his keys with him, which he uses to open the doors to get access to all the surfaces to be washed and to clean the inside. It is indisputable that during this process he is in charge of the vehicle. He may have started off with the sole intention of confining himself to cleaning the car, but the possibility exists that he may change his intention and drive it on some errand, perhaps to fill the tank with petrol. The person who knows best whether there was a real risk of that occurring is the defendant himself. I see nothing unreasonable or disproportionate in requiring him to prove on the balance of probabilities that there was no likelihood of his doing so. He should in my opinion have to do so, by adducing evidence which may be duly tested in court.
86. For these reasons and for those contained in the opinion of Lord Bingham of Cornhill I would allow the appeal of the Director of Public Prosecutions, reinstate the magistrates' decision and answer the certified question in the terms proposed.
87. I turn then to the Attorney General's Reference. I have set out my reasons in relation to Mr Sheldrake's case in rather more detail than might otherwise be necessary, given my agreement with those expressed by Lord Bingham of Cornhill, because I think that they give some grounds for comparison when considering the issues in the reference.
88. Section 11(1) of the Terrorism Act 2000 is a provision of some breadth, but it has legislative precedents, as Lord Rodger of Earlsferry has pointed out in para 60 of his opinion, and so also has the defence contained in section 11(2). It may be unusual to find the verb "professes" in a criminal statute, but I do not myself consider that its inclusion is likely to result in the conviction of defendants who would not properly be regarded as blameworthy. If a defendant who had told other persons that he was a member of a proscribed organisation advances the defence that he was merely joking or was a fantasist or a compulsive liar, then the jury will, quite correctly, be directed to acquit him if they have a reasonable doubt whether this might be the case. It would not be sufficient for the Crown to say that since had made the statement, he was without more guilty of professing membership; in order to convict such a person, it will be necessary to prove beyond reasonable doubt that his profession was seriously made. I therefore do not share the fear that a "latter day Walter Mitty or Billy Liar" is unreasonably at risk of conviction of professing to be a member of a proscribed organisation.
89. A specific defence is provided by section 11(2) of the 2000 Act, whereby a person charged with an offence under subsection (1) may prove
The defence will apply in a variety of situations. The organisation concerned may be started in the United Kingdom with terrorist objectives ab initio, and the defendant, knowing its objectives, may have become a member before the Secretary of State became aware of its existence and proscribed it. He may have joined it in another jurisdiction when it was not proscribed in this country, then found subsequently that it became the subject of a proscription order under section 3(3)(a) of the 2000 Act. Alternatively, the organisation may, as has occurred in Northern Ireland, have started out as one with lawful objectives, but have later evolved into one concerned with terrorism.
90. It was represented that a defendant might find it difficult to adduce sufficiently convincing evidence that he refrained from taking part in the activities of the organisation after it was proscribed, given that he may be dependent solely on his own testimony, which may be less than impressive and could well be regarded as unreliable. I would not myself place a great deal of weight on this consideration. Naturally the defendant will be highly unlikely to obtain any documentary evidence in support of his case, nor is the organisation likely to furnish him with assistance - indeed, some proscribed organisations visit severe consequences upon members who seek to leave their ranks. Nevertheless, such a person is better placed than anyone to testify whether he has taken any part in the organisation's activities. He can give that evidence on oath and it can be tested by the ordinary process of proper cross-examination. Since it is most unlikely that contrary evidence will be available to the prosecution, the jury (or in Northern Ireland the judge sitting without a jury) or magistrates will ordinarily have to decide whether or not to believe the defendant's testimony and determine accordingly whether he has proved his case on the balance of probabilities. It does not seem to me that that places a defendant at an unfair disadvantage.
91. On the other side of the scale, one must place several considerations:
(a) It is not easy to determine what is to be proved and by whom in respect of the date when the defendant joined the organisation. If he raises the issue, it would hardly be appropriate for the prosecution to have to prove that he became a member before the date on which it was proscribed. The only sensible answer must be that the defendant has to establish this fact, but it would be a strange procedure if the onus then reverted to the prosecution to prove that he had taken part in the activities of the organisation.
(b) If subsection (2) were construed as imposing only an evidential burden, the prosecution, once the issue is raised, would have to prove a matter dehors the elements of the offence specified in subsection (1), that the defendant was not only a member but had taken part in activities of the organisation. As I stated when considering Mr Sheldrake's appeal at para 83 of this opinion, I would regard that as a material factor in determining whether it is fair and reasonable and proportionate to interpret the provision in subsection (2) as imposing a persuasive burden upon the defendant.
(c) The prosecution may in many cases face substantial difficulties in proving that the defendant had taken part in activities of the organisation after it was proscribed.
(d) New organisations not infrequently spring up as offshoots of existing terrorist organisations, but with different names (for a summary of the history of such developments in the case of the Irish Republican Army see R v Z  NICA 23, paras 28 and 29). They may not all fall within section 3(1)(b) as organisations operating under the same name as one listed in Schedule 2 to the 2000 Act, which the court held to apply in respect of the Real IRA. One could see this giving rise to difficulties of proof for the prosecution if the burden on defendants under section 11(2) is held to be evidential only.
92. For these reasons and for those given by Lord Rodger of Earlsferry I consider that it is fair and reasonable and proportionate to regard the burden of proof under section 11(2) as a legal rather than an evidential burden. I would hold accordingly and answer the Attorney General's second question in the terms proposed by Lord Rodger of Earlsferry.
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