BAILII Citation Number: [2000] EWCA Crim 3542
Case No: 99/3794/Y2, 99/5370/Z4, 00/0869/X1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL  DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday 31 July 2000
B e f o r e :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(The Lord Woolf of Barnes)

MR JUSTICE ROUGIER

and 

MR JUSTICE BELL

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R		
	
v		
	
Steven Lambert

Mudassir Mohammed Ali

Shirley Jordan		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
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1999/03794/Y2
MR TIM OWEN QC and MISS REBECCA TROWLER appeared on behalf of  THE APPELLANT STEVEN LAMBERT

MR J P HEDGECOE and MR S M MILLS (31.7.00) appeared on behalf of  THE CROWN

1999/05370/Z4
MR IAN A MACDONALD QC and MR RAJIV MENON appeared on behalf of THE APPELLANT MOHAMMED MUDASSIR ALI

MR A D CONRAD QC and MISS Z NIELD appeared on behalf of THE CROWN

2000/00865/X1
MR IAN A MACDONALD QC and MR RAJIV MENON appeared on behalf of THE APPELLANT SHIRLEY JORDAN

MR MICHAEL D L WORSLEY and MR DAVID PERRY appeared on behalf of  THE CROWN
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JUDGMENT
LORD WOOLF CJ : 

These three appeals have been heard together because they raise related issues involving the Human Rights Act 1998 (the “1998 Act”).  The principal issue is as to the effect of the 1998 Act on statutory provisions, that provide a benefit to a defendant, who is being tried for a criminal offence, but require him to prove certain facts which the statute specifies  before he can obtain that benefit.
The facts of the individual cases cannot affect the outcome.  If the appellants are correct in their respective contentions their appeals succeed.  It is therefore only necessary to note that Steven Lambert was convicted at the Crown Court at Warrington of possessing a controlled drug of class A with intent to supply contrary to section 5(3) of the Misuse of Drugs Act 1971 (“the 1971 Act”) on 9th April 1999, Shirley Jordan was found guilty of the murder of her son at Inner London Crown Court on 30th September 1999 and Mohammed Mudassir Ali was found guilty of the murder of his wife at Manchester Crown Court on 13 August 1999.  
In the cases of Jordan and Ali the jury rejected the contention of the defence that they should  be found not guilty of murder but guilty of manslaughter by reason of diminished responsibility under section 2 (2) Homicide act 1957 (“1957 Act”).  Section 2 of the  1957 Act provides:
				“(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.
				(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.
				(3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.
				(4) The fact that one party to a killing is by virtue of this section not liable to be convicted of murder shall not affect the question whether the killing amounted to murder in the case of any other party to it."
	Since 1957 under section 2 it has been established that the defendant is required to prove that he is suffering from diminished responsibility in accordance with section 2(1) and that the standard of proof is the balance of probabilities.  The issue has to be determined by the jury which may disagree with the medical evidence, but the aetiology of the abnormality is a matter to be determined by the expert evidence (R v Byrne [1960] 2 QB 396).
The statutory provisions relevant to an offence of being in possession of a controlled drug are sections 5 and 28 of the 1971 Act.  Those provisions are in the following terms :
			“5(1) Subject to any regulations under section 7 of this Act for the time being in force, it shall not be lawful for a person to have a controlled drug in his possession.
			(2) Subject to section 28 of this Act and to subsection (4) below, it is an offence for a person to have a controlled drug in his possession in contravention of subsection (1) above.
			(3) Subject to section 28 of this Act, it is an offence for a person to have a controlled drug in his possession, whether lawfully or not, with intent to supply it to another in contravention of section 4(1) of this Act.
			(4) In any proceedings for an offence under subsection (2) above in which it is proved that the accused had a controlled drug in his possession, it shall be a defence for him to prove -
			(a) that, knowing or suspecting it to be a controlled drug, he took possession of it for the purpose of preventing another from committing or continuing to commit an offence in connection with that drug and that as soon as possible after taking possession of it he took all such steps as were reasonably open to him to destroy the drug or to deliver it into the custody of a person lawfully entitled to take custody of it; or
			(b) that, knowing or suspecting it to be a controlled drug, he took possession of it for the purpose of delivering it into the custody of a person lawfully entitled to take custody of it and that as soon as possible after taking possession of it he took all such steps as were reasonably open to him to deliver it into the custody of such a person.
			(5) ...
			(6) Nothing in subsection  (4) ...  above shall prejudice any defence which it is open to a person charged with an offence under this section to raise apart from that subsection.
			28(1) This section applies to offences under any of the following provisions of this Act, that is to say section 4(2) and (3), section 5(2) and (3), section 6(2) and section 9.
			(2) Subject to subsection (3) below, in any proceedings for an offence to which this section applies it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged.
			(3) Where in any proceedings for an offence to which this section applies it is necessary, if the accused is to be convicted of the offence charged, for the prosecution to prove that some substance or product involved in the alleged offence was the controlled drug which the prosecution alleges it to have been, and it is proved that the substance or product in question was that controlled drug, the accused -
			(a) shall not be acquitted of the offence charged by reason only of proving that he neither knew nor suspected nor had reason to suspect that the substance or product in question was the particular controlled drug alleged; but
			(b) shall be acquitted thereof -
			(i)	if he proves that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug; or
			(ii)	if he proves that he believed the substance or product  in question to be a controlled drug, or a controlled drug of a description, such that, if it had in fact been that controlled drug or a controlled drug of that description, he would not as the material time have been committing any offence to which this section applies.
			(4) Nothing in this section shall prejudice any defence which it is open to a person charged with an offence to which this section applies to raise apart from this section.
The language of section 5 makes it clear that it creates two offences.  One involves merely possession and the other, of which Mr Lambert was found guilty, which involves the additional element of intent to supply.  Both offences are subject to section 28 but only the offence under subsection (2), which does not involve an intent to supply, has the additional “defence” under subsection 5(4).
1.	Unless the 1998 Act has altered the position it is clear that not only is the obligation on a defendant relying on section 5(4) or section 28 to prove the facts stated, but the standard of proof to which the facts are required to be proved is on a balance of probabilities.  It is insufficient for a defendant to merely raise a doubt.
The attitude of the common law to the burden of proof being placed on a defendant
The common law is fiercely resistant to a burden of proof being placed on a defendant.  This is the “golden thread” of English law identified by Lord Sankey in his classic statement in Woolmington v DPP [1935] AC 462 at p481.  There is, however, what has been regarded as a well established exception in the case of insanity.  It is an exception because of what is another equally glittering thread of English law.  This is that the proof of the commission of any offence requires the existence of a guilty mind and the ability to prove this depends on courts being able to rely on the presumption of mental capacity in the absence of evidence to the contrary (see Viscount Kilmuir in Bratty v A.G.  Northern Ireland  [1963] AC 386 at p 407)
Parliament has created many exceptions to the general rules.  When it does so it must use clear language if it is to successfully achieve its purpose.  The sections involved in the present appeals are examples of it successfully achieving this objective.  A statute can require a defendant to do no more than satisfy an evidential burden.   (When this is so, the issue will be required to be left for the jury to determine.  Then it will be determined in the defendant’s favour unless the prosecution satisfy the jury to the contrary.) The other approach which a statute can adopt is that the defendant has to satisfy a persuasive burden.  (That is to satisfy the jury on the balance of possibilities that he is entitled to succeed on the issue.)  A variation of the first alternative, not only requiring the defendant to raise an issue but to raise a doubt, has not been adopted in legislation, as far as we are aware, although this could produce practical benefits.    
The effect of Human Rights Act 1998
The 1998 Act can have a significant effect on statutory provisions which purport to depart from the general rule that the onus should be on the prosecution.  This is because of Article 6 which the Act makes part of domestic law.  Article 6 (1) provides:
		“In the determination..of any criminal charge against him, everyone is entitled to a fair and public hearing” 

	And Article 6( 2) provides:
		
		“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

11.	Whether a statutory provision became law before or after the 1988 Act it must be “read and given effect in a way which is compatible with Convention rights” [including Article 6] and if this is not possible the court can make a  declaration of incompatibility (sections 3&4).

12.	The obligation under section 3 is relied on by the appellants.  They contend that Article 6 and section 6 now require the courts to depart from the interpretation adopted hitherto of section 2 of the 1957 Act and sections 5 and 28 of the 1971 Act.  The sections instead of being interpreted as placing a persuasive burden on the appellants (to establish their case on the balance of probabilities) should be interpreted as placing an evidential burden only on the defendant so that the general burden remains on the prosecution.  If that contention is correct, the appellants' appeals will have to be allowed.  
13.	There is, however, a prior question to be answered before it is necessary to consider section 3.  That is whether section 2 of the 1957 Act and section 5 and 28 of the 1971 Act as applied hitherto under English Law are in conflict with Article 6? In answering this question it is necessary to take into account the jurisprudence of the European Court of Human Rights (ECHR) as required by section 2 of the 1998 Act.  In doing so it is necessary to have in mind the nature of the Convention as an instrument for the protection of fundamental rights.  This justifies the adoption of the approach vividly described by Lord Wilberforce in relation to the provisions of a written constitution in Ministry of Home Affairs [1980] AC 319 at 329 C\F.  It involves giving a broad and purposive approach not a rigid approach to the language of the Convention, an approach which will make the Convention a valuable protection of the fundamental rights of individual member of  the public as well as society as a whole.
14.	Mr Owen QC, on behalf of Mr Lambert, submits that there cannot be different standards of fairness.  This we are prepared to accept as long as it is also appreciated that what fairness requires can differ depending on the circumstances of the case.  Thus taking an obvious situation where the defendants are children.  Here what would be fair in the case of adults may not be fair in the case of children.  Again take the requirement of a public hearing.  As in the case of the common law, Article 6 does not require a public hearing if a public hearing would defeat the interests of justice.  The Convention is not intended to be an instrument of injustice.  Mr Owen also submits correctly that the Convention is to be distinguished from the Canadian Charter and the South African Constitution in that it does not contain any general savings or limitations clause.  However in practice the distinctions will probably not be significant because as the ECHR jurisprudence makes clear the court does not have to ignore the wider interests of the public in applying those provisions of the Convention which have no express limitation.  (See Murray v UK (1994) 19 EHRR 193).  The position is well illustrated by the judgment of the ECHR in the  case of Salabiaku v France (1987) 14\137\191 at p10, when the court said:
		“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 64 of the report), paragraph 2 of Article 6 (art.  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 (art.  6-1).   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 to domestic law.   Such a situation could not be reconciled with the object and purpose of Article 6 (art.  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 (see, inter alia, the Sunday Times judgment of 26 April 1979, Series A no.  30, p.34, para.  55).
		Article 6 para.  2 (art.  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."
	
15.	Saliabaku was considered by Lord Hope in R v DPP ex p Kebilene [1999] 3 WLR 972 at p 997 where he pointed out that account may be legitimately taken, in striking the right balance, of the problem the legislation was designed to address.  He added that “As a matter of general principle therefore a fair balance must be struck between the demands of the general interest of the community and the protection of the fundamental rights of the individual”.
16.	We agree.  In doing this it is important to start with the structure of the offences.  If the defendant is being required to prove an essential element of the offence this will be more difficult to justify.  If, however, what the defendant is required to do is establish a special defence or exception this will be less objectionable.  The extent of the inroad on the general principle is also important.  Here it is important to have in mind that Article 6 (2) is specifically directed to the application of the presumption of innocence of the "criminal offences" charged.   It is also important to have in mind that legislation is passed by a democratically elected Parliament and therefore the courts under the Convention are entitled to and should, as a matter of constitutional principle, pay a degree of deference to the view of Parliament as to what is in the interest of the public generally when upholding the rights of the individual under the Convention.   The courts are required to balance the competing interests involved.

Ali and Jordan
17.	We turn to consider these cases first because we have found the answer  self evident.  Mr McDonald QC on behalf of the appellants bravely contended that in some way the alternative provided for by section 2 of the 1997 Act becomes an ingredient of the offence at common law of murder.  Neither as  a matter of form or substance is this correct.  If the defendant does not seek to rely on the section he will not be required to prove anything.  The count in the indictment does not refer to section 2.  
18.	There could be situations where there is an uncooperative defendant.  Then it would be very difficult for the prosecution to satisfy a jury of the negative.  A defendant is not required to submit to an  examination by a doctor and it would not be desirable to change the law to require him to submit to an examination.  
19.	The change in the law brought about by section 2 was of benefit to defendants who were in a position to take advantage of it.  It does not matter whether it is treated as creating a defence to a charge to murder or an exception or as dealing with the capacity to commit the offence of murder.  Section 2 still does not contravene Article 6.  We find ample support for our view in the judgments of the Supreme Court of Canada in R v Chaulk [1989] ISCR 369 and in the decisions of the European Commission of Human Rights which decide that arguments of this nature are manifestly ill-founded (Applications H 15023/98, Robinson 20858/92).   Mr Worsley QC on behalf of the Crown provided the court with most valuable detailed written submissions, but because of our clear conclusion as to the outcome, it is not necessary to do more than acknowledge our appreciation.
Lambert
20.	The position is not as clear in the case of sections 5 and 28 of the 1971 Act.  Mr Owen obtains support from the approach of Lord Bingham CJ and Laws LJ in R v DPP ex p Kebilene [1999] 3 WLR 175.  However the court was then dealing with a different statutory provision, namely section 16A of the  Prevention of Terrorism (Temporary Provisions) Act 1989 and it is critical to give consideration to precise terms of the sections in issue.  In addition, in the House of Lords, Lords Slynn and Steyn did not express any view on this aspect of the appeal.  Lord Cooke thought it was doubtful that the section would be left unscathed, while Lords Hope and Hobhouse were more optimistic as to the prospects.  They considered the decision should be made after a trial.  So even with regard to section 16A, the language of which is more difficult to justify than that of sections 5 and 28, the position is not clear.
21.	So far as domestic law is concerned, it has already been authoritatively  decided what the ingredients of the section 5(3) offence are in R v McNamara (1988) 87 Cr App R 246.  The prosecution have to prove that the defendant was in fact in possession of the named controlled drug and that he  had the intention to supply what was in fact a controlled drug.  In order to have possession, it is necessary to have knowledge of the presence of the object of which it is said you are in possession.  Accordingly, if the drugs are contained in a “box”, as was the case here, it has to be proved the defendant was aware that the box was not empty but contained contents.  Otherwise, the defendant would not have possession of the contents as well as the “box”.  What it is not necessary to prove is that the defendant knew the nature of those contents, here controlled drugs.  However, it is important that the prosecution are required to prove an identifiable actus reus and mens rea of the offence.  
22.	It would make the offence more grave if the defendant had to know either that he was in possession of controlled drugs or the precise controlled drug which was the subject of the offence.  However, the language of sections 5(3) and 28 makes it clear that this is not required (without applying section 3 of the 1998 Act).  
23.	When applying the Convention attention is to be paid to the substance as well as the form of the statutory language creating the offence.  (AG Hong Kong v Lee Kwong Kut [1993] AC 951, 972 /3).  Prior to the 1971 Act the increasing international concern over the supply of drugs had been reflected in treaties to which this country was a party.   When the statutory history of the sections is taken into account (as to which see the speeches in Warner v Metropolitan Police Commissioner [1969] 2 AC 256) it is clear that Parliament had deliberately chosen to produce the result set out already.  We regard the substance of the offence as being reflected in the language of the sections.  Section 5(4) and section 28 do not impose additional ingredients which have to be proved to complete  the offence but a way of avoiding liability for what would otherwise be an offence.  
24.	We can well understand why Parliament wanted to restrict the extent of the knowledge required for the commission of the offence and then established a special defence, on which a defendant could rely if he could establish that he had no suspicion as to the nature of the contents of the box.  It is commonplace for a defendant to seek to avoid his guilt by saying that he thought he had pornography or gold and not drugs in the box.  Such a defence is difficult to rebut.  What the offence does is to make the defendant responsible for ensuring that he does not take into his possession containers which in fact contain drugs.  
25.	The offence applies to the possession of all controlled drugs.  It applies to cannabis as well as cocaine and heroin.  The sentence, however, will vary on conviction, depending on the seriousness of the offence.  But there is a clear social objective in discouraging trading both in hard drugs and the softer drugs.  In addition the level of sentence will reflect the extent to which the defendant was responsible for the drugs being in his possession.  He may not be able to prove the statutory defence because he had reason to suspect the contents were controlled drugs, but if he was duped into being in possession this is something which the court can take into account in determining the sentence.
26.	As is stated baldly in Constitutional Law and Human Rights (Lester and Pannick para 142), “The burden of proof must fall upon the prosecutor, but it may be transferred to the accused when he is seeking to establish a defence.” The criticism, which is made here, is based not so much on the fact that the burden of proof has been transferred, but on the standard of proof which is required.  That standard of proof is the normal standard of proof, namely on the balance of probabilities, in this situation under English law in the case of statutory defences.  It has been imposed by the legislature deliberately for policy reasons it considered justified.  Since 1971 that justification has increased.  The method selected had been roundly criticised by Professor Glanville Williams ( see for example Proof of Guilt 1963) but we do not consider that the chosen course of the legislator contravenes Article 6.  There is an objective justification in the case of drugs for the choice and it is not disproportionate.  It is important in considering the validity of the offences  that the defendant will only be punished for the offence he has been proved to have committed if he fails in his attempt to rely on the statutory defences.  We do not consider the offences contravene Article 6.
Retrospectivity 
27.	We heard these cases at the end of the week preceding the end of term and we give this judgment on the last day of the term prior to the 1998 Act coming into force.  In doing so, we have assumed that the Act is in force.  We are entitled to do so because if it had been necessary we could have deferred entering our judgment until after the Act came into force.
28.	The judges summed up to the jury in these cases on the law as it was at that time.  It has, however, been accepted by all parties that because of section 22(4) together with section 7 and section 8 of the 1998 Act we have  to approach the safety of any conviction as if the Act had been in force when the judge summed up.   This, of course was not the situation and we have reservations as to whether Parliament could have intended such a result.  It does, however receive indirect support from Lord Steyn in Kebilene (832 D) and we accept it is correct so far as Article 6 is concerned.  It should not however be assumed that non-compliance with the Convention before the Act came into force will be regarded as a ground for extending time for appealing.   
 29	These appeals are dismissed.