Sheldrake v Director of Public Prosecutions

on appeal from: [2003] EWCA Crim 762

and [2003] EWHC 273 (Admin)

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

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) ON THURSDAY 14 OCTOBER 2004 The Appellate Committee comprised: Lord Bingham of Cornhill Lord Steyn Lord Phillips of Worth Matravers Lord Rodger of Earlsferry Lord Carswell HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE 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)

[2004] UKHL 43

LORD BINGHAM OF CORNHILL

My Lords,

1. Sections 5(2) of the Road Traffic Act 1988 and 11(2) of the Terrorism Act 2000, conventionally interpreted, impose a legal or persuasive burden on a defendant in criminal proceedings to prove the matters respectively specified in those subsections if he is to be exonerated from liability on the grounds there provided. That means that he must, to be exonerated, establish those matters on the balance of probabilities. If he fails to discharge that burden he will be convicted. In this appeal by the Director of Public Prosecutions and this reference by the Attorney General these reverse burdens (“reverse” because the burden is placed on the defendant and not, as ordinarily in criminal proceedings, on the prosecutor) are challenged as incompatible with the presumption of innocence guaranteed by article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969). Thus the first question for consideration in each case is whether the provision in question does, unjustifiably, infringe the presumption of innocence. If it does the further question arises whether the provision can and should be read down in accordance with the courts’ interpretative obligation under section 3 of the Human Rights Act 1998 so as to impose an evidential and not a legal burden on the defendant. An evidential burden is not a burden of proof. It is a burden of raising, on the evidence in the case, an issue as to the matter in question fit for consideration by the tribunal of fact. If an issue is properly raised, it is for the prosecutor to prove, beyond reasonable doubt, that that ground of exoneration does not avail the defendant.

2. Before turning to the facts of these two cases it is necessary to place them in their legal context. To this end I shall briefly review the pre-Convention law of England and Wales, the Strasbourg jurisprudence as it has so far developed and some of the leading cases decided in the United Kingdom since the Convention was incorporated into our domestic law by the Human Rights Act 1998.

The pre-Convention law of England and Wales

3. The governing principle of English criminal law, memorably affirmed by Viscount Sankey LC in Woolmington v Director of Public Prosecutions [1935] AC 462, 481, is that the onus lies upon the prosecution in a criminal trial to prove all the elements of the offence with which the accused is charged. This principle has been regarded as supremely important, but not as absolute. Viscount Sankey acknowledged (p 475) the authority of M’Naghten’s Case (1843) 10 Cl & Fin 200 which had “definitely and exceptionally” placed an onus on the accused to establish a defence of insanity. He further acknowledged (p 481) that his statement of principle was “subject also to any statutory exception”.

4. One form of statutory exception arose where a defendant sought to rely, in answer to a criminal charge on indictment, on any statutory exception, exemption, proviso, excuse or qualification. It was clearly established that the burden of proving such ground of exoneration, on a balance of probabilities, lay on him: R v Edwards [1975] QB 27; R v Hunt (Richard) [1987] AC 352. When courts of summary jurisdiction in recognisably modern form were established in 1848, this rule of practice was extended to them and remains the law: see section 14 of the Summary Jurisdiction Act 1848; section 39(2) of the Summary Jurisdiction Act 1879; section 81 of the Magistrates’ Courts Act 1952; and (now) section 101 of the Magistrates’ Courts Act 1980. Thus, 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: R v Edwards; R v Hunt (Richard).

5. It is not only in cases such as these, and cases of insanity, that a burden may be placed upon the defendant to prove (on a balance of probabilities) a special statutory defence. Thus in Mancini v Director of Public Prosecutions [1942] AC 1, 11, Viscount Simon LC referred, as an exception to the rule in Woolmington’s case, to “offences where onus of proof is specially dealt with by statute”. In Jayasena v The Queen [1970] AC 618, 623, Lord Devlin also recognised “a statutory defence” as an exception to the Woolmington rule, and Lord Templeman in R v Hunt (Richard) [1987] AC 352, 364, referred to “statutory defences which must be proved by the accused”. Far from condemning the placing of a burden on the accused to prove (on the balance of probabilities) a ground of exoneration, judges of high authority have, in cases judged by them to be appropriate, advocated such a course. Lord Pearce did so in R v Warner [1969] 2 AC 256, 307 and again in Sweet v Parsley [1970] AC 132, 157. In the latter case, at p 150, Lord Reid also said:

“Parliament has not infrequently transferred the onus as regards mens rea to the accused, so that, once the necessary facts are proved, he must convince the jury that on balance of probabilities he is innocent of any criminal intention. I find it a little surprising that more use has not been made of this method”.

A further example may be given. When, in 1987, it was proposed to criminalise the possession of a bladed or sharply pointed article, other than a small pocket knife, “without good reason or lawful authority”, Lord Denning suggested that the burden of proving good reason or lawful authority by way of defence should be expressly placed on the defendant (Hansard, (HL Debates) vol 489, 3 November 1987, cols 923- 924). The suggestion was accepted (Hansard, (HL Debates) vol 490, 23 November 1987, cols 474, 475), and section 139(4) of the Criminal Justice Act 1988, as enacted, provides:

“It shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article with him in a public place”.

In practice, Parliament has been very ready to impose legal burdens on, or provide for presumptions rebuttable by, the defendant: see Ashworth and Blake, “The Presumption of Innocence in English Criminal Law” [1996] Crim LR 306, 309. But the language of the statute may not, in some cases, make it plain whether a ground of exoneration must be established by the defendant or negatived by the prosecutor. In Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107 the House was divided on the question. In such a case, as Lord Griffiths said in R v Hunt (Richard) [1987] AC 352, 374:

“the court should look to other considerations to determine the intention of Parliament such as the mischief at which the Act was aimed and practical considerations affecting the burden of proof and, in particular, the ease or difficulty that the respective parties would encounter in discharging the burden. I regard this last consideration as one of great importance for surely Parliament can never lightly be taken to have intended to impose an onerous duty on a defendant to prove his innocence in a criminal case, and a court should be very slow to draw any such inference from the language of a statute”.

6.         One further point may conveniently be noted at this stage. In

Sweet v Parsley [1970] AC 132, 148-149, Lord Reid stated that

“there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea ….. it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary”.

Thus, in interpreting an offence-creating statutory provision, the starting-point for the court is, as Lord Nicholls of Birkenhead put it in B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428, 460,

“the established common law presumption that a mental element, traditionally labelled mens rea, is an essential ingredient unless Parliament has indicated a contrary intention either expressly or by necessary implication”.

Effect was given to the presumption in that case, as it was in R v K [2002] 1 AC 462. It is a strong presumption, not easily displaced. The more serious the crime, and the more severe the potential consequences of conviction, the less readily will it be displaced. But it is of course the ordinary duty of the courts to give effect to what Parliament has by clear words or necessary implication enacted, and it is not hard to find instances in which Parliament has clearly intended to attach criminal consequences to proof of defined facts, irrespective of an individual’s state of mind or moral blameworthiness. Many such instances are found in legislation regulating the conduct of economic and social life: see Smith & Hogan, Criminal Law, 10th ed (2002), chapter 7, “Crimes of strict liability”. Offences against such regulations are often regarded as not truly criminal, since the penalty inflicted is not dire and little or no stigma attaches to conviction. Not all offences of strict liability, however, fall within this sterile regulatory area. An old instance which may be thought not to do so is found in section 12 of the Licensing Act 1872, which (as amended) remains in force:

“Every person found drunk in any highway or other public place, whether a building or not, or on any licensed premises, shall be liable to a penalty not exceeding level 1 on the standard scale.

Every person ….. who is drunk while in charge on any highway or other public place of any carriage, horse, cattle, or steam engine, or who is drunk when in possession of any loaded firearms, may be apprehended and shall be liable to a penalty not exceeding level 1 on the standard scale or in the discretion of the court to imprisonment …. for any term not exceeding one month”.

7. Until the coming into force of the Human Rights Act 1998, the issue now before the House could scarcely have arisen. The two statutory provisions which it is necessary to consider are not obscure or ambiguous. They afford the defendant (Mr Sheldrake) and the acquitted person a ground of exoneration, but in each case the provision, interpreted in accordance with the canons of construction ordinarily applied in the courts, would (as already noted) be understood to impose on the defendant a legal burden to establish that ground of exoneration on the balance of probabilities. Until October 2000 the courts would have been bound to interpret the provisions conventionally. Even if minded to do so, they could not have struck down or amended the provisions as repugnant to any statutory or common law rule. Domestic law would have required effect to be given to them according to their accepted meaning. Thus the crucial question is whether the European Convention and the Strasbourg jurisprudence interpreting it have modified in any relevant respect our domestic regime and, if so, to what extent.

The Convention and the Strasbourg jurisprudence

8.         Article 6 of the Convention provides, so far as relevant:

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law … 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.

9. The right to a fair trial has long been recognised in England and Wales, although the conditions necessary to achieve fairness have evolved, in some ways quite radically, over the years, and continue to evolve. The presumption of innocence has also been recognised since at latest the early 19th century, although (as shown by the preceding account of our domestic law) the presumption has not been uniformly treated by Parliament as absolute and unqualified. There can be no doubt that the underlying rationale of the presumption in domestic law and in the Convention is an essentially simple one: that it is repugnant to ordinary notions of fairness for a prosecutor to accuse a defendant of crime and for the defendant to be then required to disprove the accusation on pain of conviction and punishment if he fails to do so. The closer a legislative provi sion approaches to that situation, the more objectionable it is likely to be. To ascertain the scope of the presumption under the Convention, domestic courts must have regard to the Strasbourg case law. It has there been repeatedly recognised that the presumption of innocence is one of the elements of the fair criminal trial required by article 6(1): see, for example, Bernard v France (1998) 30 EHRR 808, para 37.

10. The applicant in X v United Kingdom (1972) 42 CD 135 had been convicted of knowingly living on the earnings of prostitution contrary to section 30(1) of the Sexual Offences Act 1956. He complained of subsection (2) of that section which provided that

“a man who lives with or is habitually in the company of a prostitute, or who exercises control, direction or influence over a prostitute’s movements in a way which shows he is aiding, abetting or compelling her prostitution with others, shall be presumed to be knowingly living on the earnings of prostitution unless he proves the contrary.”

The Commission rejected as manifestly ill-founded the applicant’s challenge to this provision as incompatible with article 6(2). It created a rebuttable presumption which the defendant could disprove, and was not a presumption of guilt. A provision could, if widely or unreasonably worded, have the same effect as a presumption of guilt, and it was not sufficient to examine only the form in which it was drafted. The substance and effect must also be examined. In the present instance, the presumption was restrictively worded, and was neither irrebuttable nor unreasonable. To oblige the prosecution to obtain direct evidence of “living on immoral earnings” would in most cases make its task impossible.

11. The leading Strasbourg authority on the presumption of innocence is Salabiaku v France (1988) 13 EHRR 379. The applicant, a Zaïrese 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 was opened and found to contain drugs. He was charged with the criminal offence of illegally importing narcotics and with the customs offence, also criminal, of smuggling prohibited goods. At trial the applicant was convicted of both offences: on the first he was sentenced to a term of imprisonment and was prohibited from residing in France; on the second he was fined. On his appeal, his conviction of the first offence was set aside: the facts were not sufficiently proved, and he was given the benefit of the doubt. His conviction of the second offence was upheld since

“ … any person in possession (détention) of goods which he or she has brought into France without declaring them to customs is presumed to be legally liable unless he or she can prove a specific event of force majeure exculpating him; such force majeure may arise only as a result of an event beyond human control which could be neither foreseen nor averted …..” (p 382)

This was an application of article 392(1) of the French Customs Code, as elaborated by judicial decisions, and was held by the Court of Cassation, on further appeal, to be proper. It appeared that the severity of an apparently irrebuttable presumption had been to some extent moderated by court decisions upholding the trial court’s unfettered power of assessing evidence and giving a broad meaning to force majeure. The trial court could also take account of extenuating circumstances when imposing penalties. In the result the Strasbourg court rejected the applicant’s complaint that article 392(1) infringed the presumption of innocence, relying on the features just noted and the courts’ freedom to give an accused the benefit of the doubt even where the offence was one of strict liability. It was noted that the French courts had been careful to avoid resorting automatically to the presumption laid down in article 392(1), and had exercised their power of assessment on the basis of the evidence adduced by the parties before them. Thus the French courts had not applied article 392(1) in a way which conflicted with the presumption of innocence.

12. The Court’s decision in Salabiaku is important less perhaps for what it decided than for the indications it gives of the correct approach in principle. First of all, it is recognised that member states may, generally speaking, attach criminal consequences to defined facts:

“27. As the Government and the Commission have pointed out, in principle the Contracting States remain free to 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 of the resulting offence. In particular, and again in principle, the Contracting States may, under certain conditions, 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.”

It also sanctions, but in a qualified way, the application of factual and legal presumptions:

“28. … Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law. If, as the Commission

would appear to consider, paragraph 2 of article 6 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. The Court proposes to consider whether such limits were exceeded to the detriment of Mr Salabiaku.”

Thus the question in any case must be whether, on the facts, the reasonable limits to which a presumption must be subject have been exceeded.

13. Article 392(1) of the French Customs Code, was again the subject of challenge, as were other provisions of the Code, in Hoang v France (1992) 16 EHRR 53. Opinion in the Commission was divided, a majority upholding the applicant’s conviction of a customs offence on grounds similar to those relied on in Salabiaku. The Court unanimously agreed, ruling (para 36) that the Paris Court of Appeal had based its finding of guilt on the evidence: it had refrained from any automatic reliance on the presumptions created in the relevant provisions of the Customs Code and had not applied them in a manner incompatible with article 6(1) and (2) of the Convention. One of the articles of the French Customs Code mentioned in Hoang was article 373, which provided:

“In any proceedings concerning a seizure of goods, the burden of proving that no offence has been committed shall be on the person whose goods have been seized.”

In argument before the Commission the Government (para 50, p 68-69) dismissed this article as irrelevant, since the applicant’s goods had not been seized, and the Court did no more than mention it. If, however, it had been relevant and had been interpreted and applied entirely literally by the French courts, its compatibility with article 6(2) would surely have been questionable.

14. In H v United Kingdom Appn No 15023/89, 4 April 1990 (unreported) there was found by the Commission to be no infringement of article 6(2) in requiring a defendant to establish a defence of insanity. That requirement was not unreasonable or arbitrary. The application was manifestly ill-founded.

15. The provision challenged in AG v Malta Appn No 16641/90, 10 December 1991 (unreported) 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 prevent the commission of the offence”. The Commission found the application to be manifestly ill-founded. It referred to the Salabiaku judgment, noted that the applicant was provided under the legislation with the possibility of exculpating himself, found that the Maltese courts enjoyed a genuine freedom of assessment and concluded that the provision had not been applied to the applicant in a manner incompatible with the presumption of innocence. A similar decision was reached by the Court more recently in Brown v United Kingdom Appn No 44223/98, 2 July 2002 (unreported): 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 probabilities, that he was in no way at fault in connection with the offending publication.

16. In Bates v United Kingdom Appn No 26280/95, 16 January 1996 (unreported) the Commission held inadmissible a challenge to the rebuttable presumption as to the breed of a dog enacted in section 5(5) of the Dangerous Dogs Act 1991. It was noted that the applicant had been entitled but, although represented, had failed, to call evidence to prove at trial that his dog was not of the breed proscribed by the Act, and that the court had relied on an admission by him that the dog was of the breed proscribed. The section was held to fall within reasonable limits.

17. An emergency anti-terrorist enactment was held in Heaney and McGuinness v Ireland (2000) 33 EHRR 264 to violate the article 6(1) right of the applicants to remain silent and not incriminate themselves, and also to violate the presumption of innocence guaranteed by article 6(2) because (para 59) of the close link, in this context, between it and the rights guaranteed by article 6(1). The Court rejected (para 58) the Irish Government’s contention that the enactment in question was justified by its security and public order concerns since the enactment extinguished the very essence of the applicants’ rights to silence and against self-incrimination.

18. A violation of article 6(2) was again found in Telfner v Austria Appn No 33501/96, 20 March 2001 (unreported). The victim of a motor accident was able to identify the offending car, but not its driver, even to the extent of saying whether the driver was male or female. The car was owned by the applicant’s mother, but he denied that he had been driving at the time and there was no evidence that he had been driving beyond police observations (not, it seems, the subject of oral evidence at the trial) that the car was mainly driven by the applicant. His conviction at trial was upheld on appeal. It was, the Court held (para 15), for it to ascertain that the proceedings as a whole were fair, which in a criminal trial included observance of the presumption of innocence. A court should not start with the preconceived idea that the accused had committed the offence charged. The burden of proof was on the prosecution and any doubt should benefit the accused. The presumption of innocence is infringed where the burden of proof is shifted from the prosecution to the defence. The case was not one (para 17-18) in which adverse inferences could properly be drawn from the silence of the accused. This decision is in accord with that given in Barbera, Messegué and Jabardo v Spain (1988) 11 EHRR 360 some years earlier, in which the Court observed (para 91) that 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 burden of proof is on the prosecution and any doubt should benefit the accused (para 77).

19. In Porras v Netherlands Appn No 49226/99, 18 January 2000 (unreported) the applicant was convicted of intentionally importing cocaine and 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 aware that persons unknown to him had hidden a significant quantity of the drug in his luggage. The Court rejected this complaint, holding that no irrebuttable presumption of guilt had been applied. Although accepting a normal assumption that a person who packs his own luggage and takes it with him knows of the contents, the Dutch court had had regard to the possibility that this might not be so, had considered all the circumstances, had weighed all the evidence and had not therefore relied automatically on any presumption. On the somewhat involved procedural facts of Selvanayagam v United Kingdom Appn No 57981/00, 12 December 2002 (unreported) the Court found that 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.

20. The decision of the Court in Janosevic v Sweden (2004) 38 EHRR 473 rejected a complaint that the imposition of tax surcharges was incompatible with article 6(2) because (para 99) “an almost insurmountable burden of proof” was imposed on the taxpayer. The opportunity was taken to re-state established principles. There was no need for the Swedish authorities to prove intent or negligence, but states might, in principle and under certain conditions, penalise a simple or objective fact as such, irrespective of whether it resulted from criminal intent or from negligence (para 100). There was, on the facts, an effective presumption against the taxpayer (para 100), and as decided in Salabiaku (para 101),

“in employing presumptions in criminal law, the Contracting States are required to strike a balance between the importance of what is at stake and the rights of the defence; in other words, the means employed have to be reasonably proportionate to the legitimate aim sought to be achieved”.

The Court acknowledged (para 102) that it was difficult for the taxpayer to rebut the presumption in question, but he was not without means of defence (para 102), and the Court had regard to the financial interests of the state in tax matters and its dependence on the provision of correct and complete information by taxpayers (para 103) in concluding (para 104) that the presumption was confined within reasonable limits.

21. From this body of authority certain principles may be derived. 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. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case.

The leading United Kingdom cases since the Human Rights Act 1998

22. In R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326 the applicants challenged the compatibility of section 16(A) of the Prevention of Terrorism (Temporary Provisions) Act 1989 with article 6(2) of the Convention. The relevant provisions read:

(1)	A person is guilty of an offence if he has any article in his possession in circumstances giving rise to a reasonable suspicion that the article is in his possession for a purpose connected with …. acts of terrorism ….
(3)	It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence the article in question was not in his possession for such a purpose ….”

The Divisional Court concluded that the section did violate article 6(2) since if the defendant failed to discharge the legal burden placed upon him by subsection (3) he could be convicted of a crime punishable by 10 years’ imprisonment on grounds of reasonable suspicion, and even if there were a reasonable doubt whether he did possess the articles for purposes of terrorism. The House did not find it necessary to resolve this question. Lord Steyn, in an opinion with which Lord Slynn of Hadley (p 362) and Lord Cooke of Thorndon (p 372) agreed, pointed out (p 370) that section 16(A) might be upheld if it were read as imposing an evidential and not a legal burden on the defendant. Lord Cooke (p 373) saw great force in the view that on the natural and ordinary interpretation of the provision there was repugnancy, but also pointed to the possibility of reading down subsection (3). Lord Hope of Craighead (p 387) considered that the compatibility of the provision was still open to argument. Lord Hobhouse of Woodborough (p 397) considered that there might be a justification for the terms in which the legislation was drafted even though on its face it appeared to be contrary to the Convention. Parliament paid attention to these observations: when section 16A was re-enacted as section 57 of the Terrorism Act 2000 it was provided (with reference to the defence now in subsection (2) and some other subsections) in section 118(2):

“If the person adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”

23. The decision of the Privy Council in Brown v Stott [2003] 1 AC 681 does not call for detailed examination. It concerned the implied Convention right not to incriminate oneself, which the Strasbourg Court described in Saunders v United Kingdom (1996) 23 EHRR 313, para 68, as “closely linked to the presumption of innocence contained in Article 6(2) of the Convention”. For present purposes the decision is noteworthy for its reiteration of important but uncontroversial principles: that a defendant has a right to a trial which, viewed overall is fair (pp 704, 708, 719, 727, 730); that the constituent rights listed or implied in article 6, although important, are not absolute (pp 704, 708, 719, 728, 730); that substantial respect should be paid by the courts to the considered decisions of democratic assemblies and governments (pp 703, 710-711); that the Convention requires a fair balance to be struck between the rights of the individual and the wider interests of the community (pp 704, 707-708, 718-720, 730); and that the justifiability of a legislative measure must be judged with close regard to the particular social problem or mischief which the measure has been enacted to address (pp 705-706, 709-710, 722, 728, 731-732).

24. In R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45, the challenge was to a recent statutory provision which, it was held, strictly interpreted, could have the effect of excluding relevant evidence and thus of compromising a defendant’s right to a fair trial. Much of the argument was devoted to the scope and application of the interpretative obligation imposed on the courts by section 3 of the Human Rights Act

1998. The ratio of the decision was summarised in para 46 of Lord Steyn’s opinion, which was expressly accepted by Lord Slynn of Hadley (para 15), Lord Hope of Craighead (para 110), Lord Clyde (para 140) and Lord Hutton (para 163), but it is relevant to cite also paragraph 44 of his opinion in which the courts’ interpretative obligation under section 3 is more fully explained:

“44. On the other hand, the interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings. It is an emphatic adjuration by the legislature: R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, per Lord Cooke of Thorndon, at p 373F; and my judgment, at p 366B. The White Paper made clear that the obligation goes far beyond the rule which enabled the courts to take the Convention into account in resolving any ambiguity in a legislative provision: see ‘Rights Brought Home: The Human Rights Bill’ (1997) (Cm 3782), para 2.7. The draftsman of the Act had before him the slightly weaker model in section 6 of the New Zealand Bill of Rights Act 1990 but preferred stronger language. Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Conve ntion rights. Under ordinary methods of interpretation a court may depart from the language of the statute to avoid absurd consequences: section 3 goes much further. Undoubtedly, a court must always look for a contextual and purposive interpretation: section 3 is more radical in its effect. It is a general principle of the interpretation of legal instruments that the text is the primary source of interpretation: other sources are subordinate to it: compare, for example, articles 31 to 33 of the Vienna Convention on the Law of Treaties (1980) (Cmnd 7964). Section 3 qualifies this general principle because it requires a court to find an interpretation compatible with Convention rights if it is possible to do so. In the progress of the Bill through Parliament the Lord Chancellor observed that ‘in 99% of the cases that will arise, there will be no need for judicial declarations of incompatibility’ and the Home Secretary said ‘We expect that, in almost all cases, the courts will be able to interpret the legislation compatibility with the Convention’: Hansard (HL Debates), 5 February 1998, col

840 (3rd Reading) and Hansard (HC Debates), 16 February 1998, col 778 (2nd Reading). For reasons which I explained in a recent paper, this is at least relevant as an aid to the interpretation of section 3 against the executive: ‘Pepper v Hart; A Re-examination’ (2001) 21 Oxford Journal of Legal Studies 59; see also Professor J H Baker, ‘Statutory Interpretation and Parliamentary Intervention’ (1993) 52 CLJ 353. In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms, such an impossibility will arise: R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 132A-B, per Lord Hoffmann. There is, however, no limitation of such a nature in the present case.

45. In my view section 3 requires the court to subordinate the niceties of the language of section 41(3)(c), and in particular the touchstone of coincidence, to broader considerations of relevance judged by logical and common sense criteria of time and circumstances. After all, it is realistic to proceed on the basis that the legislature would not, if alerted to the problem, have wished to deny the right to an accused to put forward a full and complete defence by advancing truly probative material. It is therefore possible under section 3 to read section 41, and in particular section 41(3)(c), as subject to the implied provision that evidence or questioning which is required to ensure a fair trial under article 6 of the Convention should not be treated as inadmissible. The result of such a reading would be that sometimes logically relevant sexual experiences between a complainant and an accused may be admitted under section 41(3)(c). On the other hand, there will be cases where previous sexual experience between a complainant and an accused will be irrelevant, eg an isolated episode distant in time and circumstances. Where the line is to be drawn must be left to the judgment of trial judges. On this basis a declaration of incompatibility can be avoided. If this approach is adopted, section 41 will have achieved a major part of its objective but its excessive reach will have been attenuated

in accordance with the will of Parliament as reflected in section 3 of the 1998 Act. That is the approach which I would adopt.

VIII. The task of trial judges

46. It is of supreme importance that the effect of the speeches today should be clear to trial judges who have to deal with problems of the admissibility of questioning and evidence on alleged prior sexual experience between an accused and a complainant. The effect of the decision today is that under section 41(3)(c) of the 1999 Act, construed where necessary by applying the interpretative obligation under section 3 of the Human Rights Act 1998, and due regard always being paid to the importance of seeking to protect the complainant from indignity and from humiliating questions, the test of admissibility is whether the evidence (and questioning in relation to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6 of the Convention. If this test is satisfied the evidence should not be excluded.”

This opinion must now be read in the light of the later decision of the House in Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 3 WLR 113.

25. The appellant in R v Lambert [2001] UKHL 37, [2002] 2 AC 545, was convicted of possessing a class A controlled drug (cocaine) with intent to supply contrary to section 5 of the Misuse of Drugs Act 1971. His defence at trial in 1999 was that he did not know that the duffle bag in his possession contained drugs. The trial judge, correctly applying section 28(2) of the 1971 Act as previously interpreted, directed the jury that the burden lay on him to make good this defence on the balance of probabilities. He was convicted, and on appeal contended that knowledge of the contents of a container was an ingredient of the offence which the prosecution had to prove and that imposition of a legal burden on a defendant to prove lack of knowledge violated the presumption of innocence. The Criminal Division of the Court of Appeal rejected these arguments ([2002] QB 1112), but gave its ruling as if the Human Rights Act 1998 had been in force at the time of the trial. In the House, a majority held that the Act did not operate retrospectively, and the appeal failed on that ground. The appellant’s

arguments of principle were, however, considered in some detail. A majority of the committee held that knowledge of the contents of the duffle bag was not an ingredient of the offence which the prosecution had to prove: Lord Slynn, para 16; Lord Hope, para 61; Lord Clyde, para 126; Lord Hutton, para 181. A majority also held that imposition of a legal burden on a defendant to prove lack of knowledge undermined the presumption of innocence to an impermissible extent; that section 28(2) could be read down under section 3 of the Human Rights Act so as to impose only an evidential burden; and that it should be read down in that way: Lord Slynn, para 17; Lord Steyn, paras 41-42; Lord Hope, paras 84, 91, 94; Lord Clyde, paras 156-157. It is the opinions of the majority on this point which are relevant for present purposes. The dissenting opinion of Lord Hutton on this issue is not, of course, authoritative.

26. The opinions of the majority on this second point are, inevitably, of some complexity. They must be read with reference to the particular case with which the House was dealing. The importance of the presumption of innocence was recognised: see, for example, paras 34 and 131. It was emphasised that attention should be paid to the substance, not the form, of an enactment (paras 35, 150) and to the particular facts (paras 34, 152). In considering justifiability, the need for a balance between the interests of the individual and those of society was recognised (paras 17, 88). Where some infringement of the presumption of innocence is justified, it should not be greater than necessary to achieve its legitimate object (para 37). Decisive in the majority’s conclusion on the facts of the case was recognition that, on a charge carrying a maximum of life imprisonment and in circumstances where Parliament, by enacting section 28(2), had recognised the importance of knowledge, a defendant could be convicted even though the jury thought it as likely as not that he was ignorant of the contents of a container in his possession: see, for example, paras 38, 89, 154, 156. Such an outcome was plainly regarded as seriously unfair, since a conviction might rest on conduct which was not in any way blameworthy.

27. The defendant in R v Johnstone [2003] UKHL 28, [2003] 1 WLR 1736, was convicted of possessing some 500 bootleg recordings in breach of section 92 (1)(c) of the Trade Marks Act 1994. Subsection (1) of that section provides:

“(1) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to

another, and without the consent of the proprietor–(a) applies to goods or their packaging a sign identical to, or likely to be mistaken for, a registered trade mark, or (b) sells or lets for hire, offers or exposes for sale or hire or distributes goods which bear, or the packaging of which bears, such a sign, or (c) has in his possession, custody or control in the course of a business any such goods with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b).”

The section goes on to provide in subsection (5):

“It is a defence for a person charged with an offence under this section to show that he believed on reasonable grounds that the use of the sign in the manner in which it was used, or was to be used, was not an infringement of the registered trade mark.”

The defendant’s appeal was allowed by the Court of Appeal on other grounds ([2002] EWCA Crim 194) with which the House in large measure agreed. The Court of Appeal however read subsection (5) as imposing no more than an evidential burden on the defendant, and on this point (not determinative of the appeal) the House disagreed. In his leading opinion, with which the other members of the committee agreed, Lord Nicholls of Birkenhead (para 46) interpreted section 92(5) as imposing, on a conventional interpretation, a legal burden on the defendant. As such he accepted (para 47) that it prima facie derogated from the presumption of innocence. Therefore (para 48), taking account of Salabiaku and the balance to be struck between the public interest and the interests of the individual, it was for the state to justify the derogation and to show that the balance struck was reasonable. Identifying the requirements of a reasonable balance was not, he accepted (para 49), easy:

“ … all that can be said is that for a reverse burden of proof to be acceptable there must be a compelling reason why it is fair and reasonable to deny the accused person the protection normally guaranteed to everyone by the presumption of innocence.”

He continued, in paras 50-51:

“50. The relevant factors to be take into account when considering whether such a reason exists have been considered in several recent authorities, in particular the decisions of the House in R v Director of Public Prosecutions, Ex p Kebilene [2002] 2 AC 326 and R v Lambert [2002] 2 AC 545. And there is now a lengthening list of decisions of the Court of Appeal and other courts in respect of particular statutory provisions. A sound starting point is to remember that if an accused is required to prove a fact on the balance of probability to avoid conviction, this permits a conviction in spite of the fact-finding tribunal having a reasonable doubt as to the guilt of the accused: see Dickson CJ in R v Whyte (1988) 51 DLR (4th) 481, 493. This consequence of a reverse burden of proof should colour one’s approach when evaluating the reasons why it is said that, in the absence of a persuasive burden on the accused, the public interest will be prejudiced to an extent which justifies placing a persuasive burden on the accused. The more serious the punishment which may flow from conviction, the more compelling must be the reasons. The extent and nature of the factual matters required to be proved by the accused, and their importance relative to the matters required to be proved by the prosecution, have to be taken into account. So also does the extent to which the burden on the accused relates to facts which, if they exist, are readily provable by him as matters within his own knowledge or to which he has ready access.

51. In evaluating these factors the court’s role is one of review. Parliament, not the court, is charged with the primary responsibility for deciding, as a matter of policy, what should be the constituent elements of a criminal offence. I echo the words of Lord Woolf in Attorney- General of Hong Kong v Lee Kwong-kut [1993] AC 951, 975:

‘In order to maintain the balance between the individual and the society as a whole, rigid and inflexible standards should not be imposed on the legislature’s attempts to resolve the difficult and intransigent problems with which society is faced when seeking to deal with serious crime.’

The court will reach a different conclusion from the legislature only when it is apparent the legislature has attached insufficient importance to the fundamental right of an individual to be presumed innocent until proved guilty.”

He concluded (para 53) that there were compelling reasons why subsection 92(5) should place a legal burden on the defendant. These reasons included (para 52) the urgent international pressure, in the interest of consumers and traders alike, to restrain fraudulent trading in counterfeit goods, the framing of offences against section 92 as offences of “near absolute liability” and the dependence of the subsection (5) defence on facts within the defendant’s own knowledge. The considerations which particularly weighed with him as compelling reasons were however (paras 52 and 53) that

“Those who trade in brand products are aware of the need to be on guard against counterfeit goods. They are aware of the need to deal with reputable suppliers and keep records and of the risks they take if they do not.”

and that

“ … it is to be expected that those who supply traders with counterfeit products, if traceable at all by outside investigators, are unlikely to be co-operative. So, in practice, if the prosecution must prove that a trader acted dishonestly, fewer investigations will be undertaken and fewer prosecutions will take place.”

Thus Lord Nicholls substantially agreed (para 54) with the Court of Appeal decision in R v S (Trade mark defence) [2003] 1 Cr App R 602, which made it unnecessary to consider the courts’ interpretative obligation under section 3 of the 1998 Act, about which he had earlier voiced (para 46) some reservations.

28. The interpretative obligation of the courts under section 3 of the 1998 Act was the subject of illuminating discussion in Ghaidan v Godin-Mendoza [2004] 3 WLR 113. The majority opinions of Lord Nicholls, Lord Steyn and Lord Rodger in that case (with which Lady Hale agreed) do not lend themselves easily to a brief summary. But they leave no room for doubt on four important points. First, the interpretative obligation under section 3 is a very strong and far reaching one, and may require the court to depart from the legislative intention of Parliament. Secondly, a Convention-compliant interpretation under section 3 is the primary remedial measure and a declaration of incompatibility under section 4 an exceptional course. Thirdly, it is to be noted that during the passage of the Bill through Parliament the promoters of the Bill told both Houses that it was envisaged that the need for a declaration of incompatibility would rarely arise. Fourthly, there is a limit beyond which a Convention-compliant interpretation is not possible, such limit being illustrated by R(Anderson) v Secretary of State for the Home Department [2002] UKHL 46, [2003] 1 AC 837 and Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467. In explaining why a Convention-compliant interpretation may not be possible, members of the committee used differing expressions: such an interpretation would be incompatible with the underlying thrust of the legislation, or would not go with the grain of it, or would call for legislative deliberation, or would change the substance of a provision completely, or would remove its pith and substance, or would violate a cardinal principle of the legislation (paras 33, 49, 110-113, 116). All of these expressions, as I respectfully think, yield valuable insights, but none of them should be allowed to supplant the simple test enacted in the Act: “So far as it is possible to do so …”. While the House declined to try to formulate precise rules (para 50), it was thought that cases in which section 3 could not be used would in practice be fairly easy to identify.

29. I intend no disrespect to the Court of Appeal by failing to discuss a number of cases in which that court has considered, in relation to various statutes, the presumption of innocence. But I cannot overlook the decision of an enlarged Court of Appeal (Lord Woolf CJ, Judge LJ, Gage, Elias and Stanley Burnton JJ) in Attorney General’s Reference No 1 of 2004 [2004] EWCA Crim 1025 and four appeals heard at the same time. In its judgment the court considered much of the authority to which I have referred (although not Ghaidan v Godin-Mendoza, which had not been decided) and detected (para 38) a “significant difference in emphasis” between the approach of Lord Steyn in R v Lambert [2002] 2 AC 545 and that of Lord Nicholls in R v Johnstone [2003] 1 WLR 1736. Making plain its preference for the latter, the court prefaced its guidance to the courts of England and Wales by ruling that (para 52A):

“Courts should strongly discourage the citation of authority to them other than the decision of the House of Lords in Johnstone and this guidance. Johnstone is at present the latest word on the subject.”

Relying on this judgment, Mr Perry, for the Director of Public Prosecutions and the Attorney General, submitted in his printed case and (more tentatively) in argument that there was clearly a difference of emphasis between the approach of Lord Steyn in R v Lambert and that of Lord Nicholls in R v Johnstone, and that the latter was to be preferred. Mr Turner QC, for Mr Sheldrake, made a submission to the opposite effect, that the reasoning of the House in R v Johnstone should not be followed.

30. Both R v Lambert and R v Johnstone are recent decisions of the House, binding on all lower courts for what they decide. Nothing said in R v Johnstone suggests an intention to depart from or modify the earlier decision, which should not be treated as superseded or implicitly overruled. Differences of emphasis (and Lord Steyn was not a lone voice in R v Lambert) are explicable by the difference in the subject matter of the two cases. Section 5 of the Misuse of Drugs Act 1971 and section 92 of the Trade Marks Act 1994 were directed to serious social and economic problems. But the justifiability and fairness of the respective exoneration provisions had to be judged in the particular context of each case. I have already identified the potential consequence to a section 5 defendant who failed, perhaps narrowly, to make good his section 28 defence. He might be, but fail to prove that he was, entirely ignorant of what he was carrying. By contrast, the offences under section 92 are committed only if the act in question is done by a person “with a view to gain for himself or another, or with intent to cause loss to another.” Thus these are offences committed (if committed) by dealers, traders, market operators, who could reasonably be expected (as Lord Nicholls pointed out) to exercise some care about the provenance of goods in which they deal. The penalty imposed for breaches of section 92 may be severe (see, for example, R v Gleeson [2001] EWCA Crim 2023, [2002] 1 Cr App R (S) 485, but that is because the potential profits of fraudulent trading are often great.

31. The task of the court is never to decide whether a reverse burden should be imposed on a defendant, but always to assess whether a burden enacted by Parliament unjustifiably infringes the presumption of innocence. It may nonetheless be questioned whether (as the Court of Appeal ruled in para 52D) “the assumption should be that Parliament would not have made an exception without good reason”. Such an approach may lead the court to give too much weight to the enactment under review and too little to the presumption of innocence and the obligation imposed on it by section 3.

32. The House was not addressed on the cases decided in Attorney General’s Reference No 1 of 2004. In the absence of argument, I would incline to agree with the Court of Appeal’s conclusion in each case and would in particular agree that R v Carass [2002] 1 WLR 1714 was wrongly decided. I would not endorse the guidance given by the Court of Appeal in para 52 of its judgment save to the extent, that it is in accordance with the opinions of the House in these cases which must, unless and until revised or supplemented, be regarded as the primary domestic authority on reverse burdens.

33. On a number of occasions the House has gained valuable insights from the reasoning of Commonwealth judges deciding issues under different human rights instruments: see, for example, Lord Steyn in R v Lambert, paras 34, 35 and 40, and Lord Nicholls in R v Johnstone, para 49. I am accordingly grateful to counsel for exploring in detail, and addressing the House on, the treatment of reverse burdens in other jurisdictions. In the result, I do not think I should be justified in lengthening this opinion by a review of the cases relied on. Some caution is in any event called for in considering different enactments decided under different constitutional arrangements. But, even more important, the United Kingdom courts must take their lead from Strasbourg. In the United Kingdom cases I have discussed our domestic courts have been trying, loyally and (as I think) successfully, to give full and fair effect to the Strasbourg jurisprudence.

Director of Public Prosecutions v Sheldrake

34. On 26 June 2001 Mr Sheldrake was convicted by justices sitting at Colchester of being in charge of a motor car in a public place on 9 February 2001 after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit, contrary to section 5(1)(b) of the Road Traffic Act 1988. He was well over the limit: he was arrested at 8.40 pm, and on an average rate of elimination of alcohol would not have been below the limit until 11.40 am the next day.

35.       Section 5 of the 1988 Act, so far as material, provides:

“(1) If a person— (a) drives or attempts to drive a motor vehicle on a road or other public place, or (b) is in charge of a motor vehicle on a road or other public place, after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence.

(2) It is a defence for a person charged with an offence under subsection (1)(b) above to prove that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit.”

36. Mr Sheldrake gave evidence of his efforts to arrange alternative transport home, but the justices were unconvinced. On his behalf it was argued that section 5(2) infringed the presumption of innocence guaranteed by article 6(2) if it were interpreted so as to impose a legal burden upon him. He argued that once the prosecutor had proved that he was in charge of a motor car in a public place while over the prescribed limit, it was presumed that he would have driven the car while over the limit unless he proved otherwise. If he failed to discharge the legal burden he would be convicted on the basis that he would have driven the car whilst over the limit. The risk of driving was an essential element of the offence, and the prosecution should be required to prove the presence of that risk beyond all reasonable doubt. Section 5(2) should be interpreted as imposing upon him an evidential burden only. The justices were of opinion that he had not proved, on a balance of probabilities, that there was no likelihood of his driving whilst in excess of the prescribed limit. They concluded, for reasons which they gave, that section 5(2) did not interfere with the presumption of innocence but that, if it did, it pursued a legitimate aim and was proportionate. The justices appear to have been very expertly advised. At the request of Mr Sheldrake the justices stated a case for the opinion of the High Court which by a majority (Clarke LJ and Jack J, Henriques J dissenting) allowed the appeal and quashed Mr Sheldrake’s conviction because the justices had not applied the correct test to the facts found: [2003] EWHC 273 (Admin); [2004] QB 487.

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 [1989] 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

“(a) that the organisation was not proscribed on the last (or only) occasion on which he became a member or began to profess to be a member, and

(b) that he has not taken part in the activities of the
organisation at any time when it was proscribed.”

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:

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 [2004] 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.