A Zairese national living in Paris, went to the airport to collect, as he said, a parcel of foodstuffs sent from Africa. He could not find this, but was shown a locked trunk, which he was advised to leave alone. He however took possession of it, went through the green customs channel and was detained. The trunk contained cannabis. He was charged with two offences, a criminal offence of illegally importing narcotics and a ‘customs offence’ of smuggling prohibited goods. At trial and on appeal he was acquitted of the former but convicted of smuggling, an offence relating to any act of smuggling or undeclared import: a person in possession of contraband goods ‘shall be deemed liable for the offence’. The accused may exculpate himself by establishing force majeure resulting ‘from an event responsibility for which is not attributable to him and which it was absolutely impossible for him to avoid’. The ‘almost irrebutable presumption’ . . was said to be incompatible with article 6.
Held: Contracting States may apply the criminal law to an act where it is not carried out in the normal exercise of one of the rights protected under the Convention, and accordingly, to define the constituent elements in the resulting offence. Contracting States may penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence. Examples of such offences may be found in the laws of the Contracting States. However, the Applicant was not convicted for mere possession of unlawfully imported prohibited goods. Article 392(1) of the Customs Code does not appear under the heading ‘classification of customs offences’ but under that of ‘criminal liability’. Under this provision a conclusion is drawn from a simple fact, which in itself does not necessarily constitute a petty or a more serious offence, that the ‘criminal liability’ for the unlawful importation of the goods, whether they are prohibited or not, or the failure to declare them, lies with the person in whose possession they are found. It infers therefrom a legal presumption on the basis of which (the French Courts) found the Applicant guilty of smuggling prohibited goods . . This shift from the idea of accountability in criminal law to the notion of guilt shows the very relative nature of such a distinction. It raises a question with regard to Article 6.2 of the Convention. The Convention does not prohibit presumptions of fact in principle, but does require certain limits as regards criminal law. If 6.2 merely laid down a guarantee to be respected by the courts in the conduct of legal proceedings, its requirements would in practice overlap with the duty of impartiality imposed in paragraph 1. Above all, the national legislature would be free to strip the trial court of any genuine power of assessment and deprive the presumption of innocence of its substance, if the words ‘according to law’ were construed exclusively with reference of domestic law. Such a situation could not be reconciled with the object and purpose of Article 6, which, by protecting the right to a fair trial and in particular the right to be presumed innocent, is intended to enshrine the fundamental principle of the rule of law. Article 6.2 does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence
R Ryssdal P
(1988) 13 EHRR 379, 10519/83, [1988] ECHR 19
Worldlii, Bailii
European Convention on Human Rights 6.2
Human Rights
Cited by:
Cited – Drummond v Regina CACD 7-Mar-2002
The appellant had been convicted of causing death by careless driving with excess alcohol. He said that he had taken alcohol after stopping driving but before being tested. He challenged the weight of the burden of proof ascribed by the statute. The . .
Cited – Regina v Muhamad CACD 19-Jul-2002
The appellant had been convicted of an offence under the section in that as a bankrupt, he ‘in the two years before the petition, materially contributed to, or increased the extent of, his insolvency by gambling or by rash and hazardous . .
Cited – Regina v Johnstone HL 22-May-2003
The defendant was convicted under the 1994 Act of producing counterfeit CDs. He argued that the affixing of the name of the artist to the CD was not a trade mark use, and that the prosecution had first to establish a civil offence before his act . .
Cited – Lynch v Director of Public Prosecutions Admn 8-Nov-2001
The defendant challenged a conviction for having a locked bladed article in his possession in a public place, on the basis that it placed on him a burden of proof contrary to the convention.
Held: Salabiaku permits a reverse onus but requires . .
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: . .
Cited – Attorney General v Malta 10-Dec-1991
The applcant challenged a provision which imposed criminal liability on a director of a body which had committed a criminal offence ‘unless he proves that the offence was committed without his knowledge and that he exercised all due diligence to . .
Cited – Regina v G CACD 12-Apr-2006
The defendant pleaded guilty to the rape of a twelve year old girl on the agreed basis that he had believed her to be 15, but had been advised that given her age, his belief was immaterial. He now appealed saying that the presumption infringed his . .
Cited – Regina v G (Secretary of State for the Home Department intervening) HL 18-Jun-2008
The defendant was fifteen. He was convicted of statutory rape of a 13 year old girl, believing her to be 15. He appealed saying that as an offence of strict liability he had been denied a right to a fair trial, and also that the offence charged was . .
Cited – Child Maintenance and Enforcement Commission v Gibbons; Same v Karoonian CA 30-Oct-2012
Non-resident parents in each case appealed against suspended orders of imprisonment for non-payment of child support. They argued that the procedures used were indistinguishable from those held to be human rights non-compliant in Mubarak.
Cited – AB v Her Majesty’s Advocate SC 5-Apr-2017
This appeal is concerned with a challenge to the legality of legislation of the Scottish Parliament which deprives a person, A, who is accused of sexual activity with an under-aged person, B, of the defence that he or she reasonably believed that B . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 August 2021; Ref: scu.165029 br>