On a charge of selling intoxicating liquor without a justices’ licence, it is not for the prosecutor to prove that the defendant had no licence but for the defendant to prove that he had. The burden of establishing a statutory exemption by way of a defence lays on the defendant. The court considered the narrow exception allowing the shift of the burden of proof. Lawton LJ said: ‘In our judgment this line of authority establishes that over the centuries the common law, as a result of experience and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisos, exemptions and the like, then the prosecution can rely upon the exception.’
The application of this principle was not dependant upon either the fact or the presumption that the defendant had peculiar knowledge enabling him to prove the position of any negative averment, and: ‘Two consequences follow from the view we have taken as to the evolution and nature of this exception. First, as it comes into operation on an enactment construed in a particular way, there is no need for the prosecution to prove a prima facie case of lack of excuse, qualification or the like; and secondly, what shifts is the onus: it is for the defendant to prove that he was entitled to do the prohibited act. What rests on him is the legal, or, as it is sometimes called, the persuasive burden of proof. It is not the evidential burden.’
Lawton LJ, Lord Widgery CJ, Ashworth J
[1975] 1 QB 27
England and Wales
Cited by:
Cited – Regina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Approved – Regina v Hunt (Richard) HL 1987
The court objected to the insistence on leaving the burden throughout a prosecution on the defendant on the ground that ‘the discharge of an evidential burden proves nothing – it merely raises an issue’. The House emphasised the special nature of . .
Cited – Clarke v Regina CACD 23-Apr-2008
The defendant appealed his conviction for providing immigration services when not qualified to do so. . .
Cited – Grundy and Co Excavations Ltd and Another, Regina (on the Application of) v Halton Division Magistrates Court Admn 24-Feb-2003
A reverse legal burden applied to defendants accused of an offence under section 17 of the Forestry Act 1967 which, in specified circumstances, created an absolute offence of felling a tree without a felling licence. Clarke LJ said: ‘It is thus . .
Cited – Regina v Alath Construction Ltd CACD 1990
The defendant company was accused of felling a tree in breach of a tree preservation order. Recorder Zucker QC had ruled held that the prosecution did not have to prove that the tree in question was not dying, or dead or dangerous or creating a . .
Lists of cited by and citing cases may be incomplete.
Crime
Leading Case
Updated: 10 November 2021; Ref: scu.194984
