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: ‘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.’
The justifiability and fairness of such defences have to be judged in the particular context of each case. The defendant being found drunk in charge a car, he appealed a finding which relied upon his failure to prove his own intention not to drive. The burden of proof provision in section 5(2) of the Road Traffic Act 1988 imposes a legal burden on an accused who is charged with an offence contrary to section 5(1)(b) of that Act. The second defendant faced charges under the Terrorism Act 2000, of being a member of a proscribed organisation. The A G appealed his acquittal in the Court of Appeal. ‘Section 11(1), considered on its own, is a provision of extraordinary breadth. It would cover a person who joined an organisation when it was not a terrorist organisation or when, if it was, he did not know that it was. It would cover a person who joined an organisation when it was not proscribed or, if it was, he did not know that it was. It would cover a person who joined such an organisation as an immature juvenile. It would cover someone who joined such an organisation abroad in a country where it was not prosribed and came to this country ignorant that it was proscribed here’ Section 11(2) should be read down to impose only an evidential burden on a defendant.
Judges:
Lord Bingham of Cornhill, Lord Steyn, Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Lord Carswell
Citations:
[2004] UKHL 43, Times 14-Oct-2004, [2005] 1 AC 264, [2005] 1 All ER 237, [2004] 3 WLR 976, [2005] RTR 13, (2004) 168 JP 669, (2004) 17 BHRC 339, [2004] All ER (D) 169
Links:
Statutes:
Road Traffic Act 1988 5(2), Terrorism Act 2000 11(2), European Convention on Human Rights 6.2, Human Rights Act 1998
Jurisdiction:
England and Wales
Citing:
Cited – Daniel MNaghtens Case HL 1843
Daniel M’Naghten suffered from a mental disorder under which he believed that he was being persecuted by various bodies in authority, including the Tory Party. He sought to kill the Tory Prime Minister Sir Robert Peel, but shot and killed instead . .
Cited – Woolmington v Director of Public Prosecutions HL 23-May-1935
Golden Thread of British Justice – Proof of Intent
The appellant had been convicted of the murder of his wife. She had left him and returned to live with her mother. He went to the house. He said he intended to frighten her that he would kill himself if she did not return. He wired a shotgun to . .
Cited – 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 – Mancini v Director of Public Prosecutions HL 1941
There are exceptional cases to the rule in Woolmington for: ‘offences where onus of proof is specially dealt with by statute’. ‘There is no reason to repeat to the jury the warning as to reasonable doubt again and again, provided that the direction . .
Cited – Regina v Edwards 1975
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 . .
Cited – Jayasena v The Queen PC 1-Dec-2006
J appealed from his conviction of murder. He admitted the act but said that it was in self defence. He said that the Judge had misdirected the jury as to the burden of evidence on the issue of self defence.
Held: Lord Devlin said: ‘Their . .
Cited – Nimmo v Alexander Cowan and Sons Ltd HL 1967
The employer was prosecuted under the 1961 Act.
Held: the burden of proving that it was not reasonably practicable to make and keep a place of work safe rested upon the defendant employer. If an exception was to be established, it was for the . .
Cited – Warner v Metropolitan Police Commissioner HL 1968
The appellant had been convicted of an offence contrary to section 1 of the 1964 Act, of having been found in possession of drugs.
Held: (Reid dissenting) The prosecution had only to prove that the accused knew of the existence of the thing . .
Cited – Sweet v Parsley HL 23-Jan-1969
Mens Rea essential element of statutory Offence
The appellant had been convicted under the Act 1965 of having been concerned in the management of premises used for smoking cannabis. This was a farmhouse which she visited infrequently. The prosecutor had conceded that she was unaware that the . .
Cited – X v United Kingdom ECHR 1972
The defendant had been convicted of knowingly living on the earnings of prostitution contrary to section 30(1) of the Sexual Offences Act 1956.
Held: The Commission rejected as manifestly ill-founded the applicant’s challenge to this provision . .
Cited – Regina v K HL 25-Jul-2001
In a prosecution for an offence of indecent assault on a girl under 16 under the section, it was necessary for the prosecution to prove the absence of a positive belief in the defendant’s mind that the victim was 16 or over. The legislation history . .
Cited – B (A Minor) v Director of Public Prosecutions HL 23-Feb-2000
Prosecution to prove absence of genuine belief
To convict a defendant under the 1960 Act, the prosecution had the burden of proving the absence of a genuine belief in the defendant’s mind that the victim was 14 or over. The Act itself said nothing about any mental element, so the assumption must . .
Cited – Bernard v France ECHR 23-Apr-1998
The presumption of innocence is one of the elements of the fair criminal trial required by article 6(1). Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); No violation of Art. 6-1; No violation of Art. 6-2 . .
Cited – Salabiaku v France ECHR 7-Oct-1988
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, . .
Cited – Pham Hoang v France ECHR 25-Sep-1992
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); No violation of Art. 6-1; No violation of Art. 6-2; Violation of Art. 6-3-c; Pecuniary damage – claim rejected; . .
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 – H v United Kingdom ECHR 1985
The applicant was sentenced to life imprisonment in 1973 for committing a murder in the course of a robbery.
Held: The penalty for this offence at the time it was committed was life imprisonment and thus no issue under Art. 7 (art. 7) arises . .
Cited – Barbera, Messegua, and Jabardo v Spain ECHR 6-Dec-1988
ECHR The presumption of innocence would be violated if, without the accused having previously been proved guilty according to law, a judicial decision concerning him reflected an opinion that he was guilty. The . .
Cited – Brown v United Kingdom ECHR 2-Jul-2002
Article 6(2) of the Convention was not violated by a provision which enabled a newspaper proprietor or publisher to escape strict liability under section 4(5) of the Sexual Offences (Amendment) Act 1976 only if he proved, on the balance of . .
Cited – Bates v United Kingdom ECHR 16-Jan-1996
The claimant sought to challenge the rebuttable presumption as to the breed of a dog enacted in section 5(5) of the Act.
Held: The applicant had been entitled but, although represented, had failed, to call evidence to prove at trial that his . .
Cited – Telfner v Austria ECHR 20-Mar-2001
ECHR The victim of a motor accident was able to identify the offending car, or even whether the driver was male or female. The car was owned by the applicant’s mother, and he denied driving at the time. There was . .
Cited – Heaney and McGuinness v Ireland ECHR 21-Dec-2000
Hudoc The claimants challenged anti-terrorist legislation introduced by the respondent. They complained that it violated the article 6(1) right of the applicants to remain silent and not incriminate themselves, . .
Cited – Porras v Netherlands ECHR 18-Jan-2000
The applicant was convicted of intentionally importing cocaine and he 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 . .
Cited – Regina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
Cited – Regina v Lambert; Regina v Ali; Regina v Jordan CACD 14-Sep-2000
Each defendant was charged under a statute which provided a defence if they could prove a certain element. They complained that this was a breach of their human rights. The complaint was rejected. It would be wrong to impose a burden of proof on a . .
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 – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Janosevic v Sweden ECHR 23-Jul-2002
Complaint was made that tax surcharges were applied in a way which was incompatible with article 6(2) because ‘an almost insurmountable burden of proof’ was imposed on the taxpayer.
Held: There was no need for the Swedish authorities to prove . .
Cited – Selvanayagam v United Kingdom ECHR 12-Dec-2002
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. . .
Cited – Regina v Secretary of State for the Home Department Ex parte Anderson HL 25-Nov-2002
The appellant had been convicted of double murder. The judge imposed a mandatory life sentence with a minimum recommended term. The Home Secretary had later increased the minimum term under the 1997 Act. The appellant challenged that increase.
Cited – Bellinger v Bellinger HL 10-Apr-2003
Transgender Male to Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
Cited – Regina v Edwards, Denton and Jackson Hendley Crowley; Attorney General’s Reference (No. 1 of 2004) CACD 29-Apr-2004
The court considered references by the Attorney-General with regard to offences imposing a burden of proof upon the defendant. ‘An evidential burden will be discharged by a defendant by ensuring that there is some evidence before the court which . .
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 – Regina v Gleeson CACD 3-Oct-2001
The Court of Appeal should not tinker with sentences passed by lower courts in the absence of exceptional circumstances, or where they were wrong in principle, or were manifestly excessive. Here a sentence of 30 months for a professional and . .
Wrongly Decided – Regina v Clive Louden Carass CACD 19-Dec-2001
When a defendant was accused of an offence under the section, and wished to raise a defence under sub-section 4, the duty of proof placed on him by the sub-section amounted to a duty to bring sufficient evidence to raise the defence, and the section . .
Appeal from – Sheldrake v Director of Public Prosecutions Admn 24-Feb-2003
The defendant challenged the application of the section, under which he was deemed to have intended to drive a vehicle whilst under the influence of alcohol, unless he could prove it was not his intent to drive, saying this infringed his right to a . .
Cited – Director of Public Prosecutions v Watkins QBD 1989
The offence in section 5 does not require proof that a defendant is likely to drive when accused of being in charge of a motor vehicle whilst unfit through drink or drugs: ‘In regard to that section two broad propositions are clear. First, the . .
Appeal from – Attorney General’s Reference No 4 of 2002 CACD 21-Mar-2003
The defendant had been tried for an offence under the Act of being a member of a proscribed organisation, and professing membership of Hamas. At trial the Crown accepted an evidential burden, that the offence had to be read down to comply with the . .
Cited by:
Cited – Director of Public Prosecutions v Barker Admn 19-Oct-2004
Driving whilst disqualified – ban expired but no test taken – burden of evidence . .
Cited – Regina v Fraydon Navabi; Senait Tekie Embaye CACD 11-Nov-2005
The defendants had been convicted of not having an immigration document when presenting themselves for interview. They had handed their passports to the ‘agents’ who had assisted their entry.
Held: The jury should have been directed as to the . .
Cited – Regina v Makuwa CACD 23-Feb-2006
The defendant appealed her conviction for using a false instrument (a passport) intending someone else to accept it as genuine.
Held: Once she had brought forward sufficient evidence to support a claim to asylum status, it was then for the . .
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 – Chargot Limited (T/A Contract Services) and Others, Regina v HL 10-Dec-2008
The victim died on a farm when his dumper truck overturned burying him in its load.
Held: The prosecutor needed to establish a prima facie case that the results required by the Act had not been achieved. He need only establish that a risk of . .
Cited – Director of Public Prosecutions v Wright; Regina (Scott) v Taunton Deane Magistrates Court Admn 4-Feb-2009
The court heard appeals from rulings under the 2004 Act.
Held: In section 1, the hunting of a wild mammal did not include the search for an animal with a view to flushing it from cover. As to the exemptions, the operation of the 1980 Act and . .
Cited – Watkins v Woolas QBD 5-Nov-2010
The petitioner said that in the course of the election campaign, the respondent Labour candidate had used illegal practices in the form of deliberately misleading and racially inflammatory material.
Held: The claim succeeded, and the election . .
Cited – Webster v Regina CACD 1-Dec-2010
The defendant appealed against his conviction under the 1889 Act for making a corrupt gift to a local government officer. He said that the 1916 Act placed an unfair burden on him to prove that the gift was not corruptly given.
Held: The appeal . .
Cited – Tovey and Others v Ministry of Justice QBD 18-Feb-2011
The claimants, serving prisoners, sought damages saying that the refusal to allow them to vote was in infringement of their human rights. The large numbers of claims had been consolidated in London. The claimant sought to withdraw his claim.
Cited – Tovey and Others v Ministry of Justice QBD 18-Feb-2011
The claimants, serving prisoners, sought damages saying that the refusal to allow them to vote was in infringement of their human rights. The large numbers of claims had been consolidated in London. The claimant sought to withdraw his claim.
Cited – GC v The Commissioner of Police of The Metropolis SC 18-May-2011
The court was asked to decide from whom DNA samples could lawfully be taken by the Police,and for how long they should be kept. The first respondent now said that a declaration of incompatibility of section 64(1A) could not be avoided.
Held: . .
Cited – Waya, Regina v SC 14-Nov-2012
The defendant appealed against confiscation orders made under the 2002 Act. He had bought a flat with a substantial deposit from his own resources, and the balance from a lender. That lender was repaid after he took a replacement loan. He was later . .
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 – Wood v Revenue and Customs UTTC 25-Jul-2016
UTTC INCOME TAX – discovery assessments made against taxpayer relying on extended time limits on grounds of deliberate conduct – death of taxpayer – whether assessments should be discharged on grounds personal . .
Cited – Shepherd v The Information Commissioner CACD 18-Jan-2019
The defendant had been part of an organisation subject to an investigation of child sex abuse. He was cleared of involvement, but had disseminated the confidential reports containing sensitive personal data to support his contention that the process . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Crime, Human Rights
Updated: 25 November 2022; Ref: scu.216465