England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HHJ CARROLL

		Royal Courts of Justice Strand, London, WC2A 2LL
		25th March 2003

Mr. Justice Field :

1. On 6 April 2001, the appellant was convicted in the Crown Court at Woolwich (HHJ Carroll) by a majority of 10:2 of having a bladed article (a knife) in a public place without good reason or lawful authority contrary to s.139 of the Criminal Justice Act 1988 ("the 1988 Act").
2. The relevant parts of s. 139 provide:

"(1) Subject to subsections (4) and (5) below, any person who has an article to which this section applies with him in a public place shall be guilty of an offence.

(2) Subject to subsection (3) below, this section applies to any article which has a blade or is sharply pointed except a folding pocket knife.

(4) 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.

(5) Without prejudice to the generality of subsection (4) above, it shall be a defence for a person charged with an offence under this section to prove that he had the article with him –

(a) for use at work;

(b) for religious reasons; or

(c) as part of any national costume.

(6) A person guilty of an offence under subsection (1) above shall be liable

(a) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both."

3. The relevant facts may be shortly stated. On 26^th November 2000 two police constables saw the appellant standing at a bus stop. The constables searched the appellant and found in his inside left jacket pocket an orange-handled knife with a blade that measured about 2 ½ inches. He claimed in evidence that he told the constables that he had the knife for cutting lino but the officers disputed this. The appellant was arrested for possession of an offensive weapon and cautioned to which he replied, "Suck your mother". Later that day on legal advice he replied "no comment" to all the questions he was asked in a formal interview.
4. At the trial the issue for the jury was whether the appellant had had the knife for a good reason. The appellant said in evidence that he was carrying the knife on the Sunday in question because he was returning from a visit he had made to the flat of a friend of his, Kay Kelly, with the intention of cutting some lino for her. At Ms. Kelly's request he had agreed to cut the lino, but when he got to her flat she was not in and so he set off to catch a bus to his mother's without actually having cut any lino. Ms. Kelly gave evidence on the appellant's behalf. She said that the appellant had agreed to lay the lino on the Sunday but had not arrived; instead, he had called in the afternoon from the police station to say that he had been arrested.
5. The judge gave the standard direction to the jury telling them that it was for the appellant to prove that it was more likely than not that he had the knife for a good reason. As recorded above, the appellant was convicted by a majority of 10: 2. He was sentenced to 60 hours community service.
6. The appellant sought and was granted leave to appeal on the ground that s. 139 was a "reverse burden" provision, and as such was incompatible with Article 6 of the European Convention on Human Rights ("ECHR"). After leave to appeal had been granted but before the hearing of the appeal, the question whether s.139 was incompatible with Article 6 came before the Divisional Court in Lynch v DPP [2002] 1 Cr App R 32. The Divisional Court (Pill LJ and Poole J) held that s. 139 imposed a persuasive burden on the accused, but found that, even so, the section was not incompatible with Article 6.
7. The appellant's appeal was heard on 15 May 2002. In the course of the hearing the Court was told that the unsuccessful appellant in Lynch was petitioning the House of Lords for leave to appeal. It was therefore decided to adjourn giving judgment until the outcome of the petition was known. The Court has recently been informed that the petition for leave to appeal in Lynch has been refused and we now give judgment in the light of that state of affairs, having heard further argument on the recent decision of the Divisional Court in Sheldrake v DPP [2003] EWHC 273 (Admin).
8. Article 6 ECHR provides so far as is material:

"1. In the determination of …. any criminal charge against him, everyone is entitled to a fair trial 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. Section 3 (1) of the Human Rights Act 1998 ("the 1998 Act") provides:

"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."

10. The leading case on the impact of the 1988 Act on reverse onus clauses is R v Lambert [2002] 2 AC 545 [2001] UKHL 37. There the appellant had been convicted on 9 April 1999 of being in possession of 2 Kg of a Class A drug (cocaine) contrary to s. 5(3) of the Misuse of Drugs Act 1971 ("the 1971 Act"). S.28 (1) and (2) of the 1971Act provides:

"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 was 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 at the material time have been committing an offence to which this section applies."

11. The trial judge directed the jury that it was for the appellant to prove a defence provided for in s. 28 (3) on the balance of probabilities. The two principal questions argued in the House of Lords were whether the 1998 Act had retrospective effect and whether the reverse onus provision in s. 28 (2) and (3) of the 1971 Act was compatible with Article 6 ECHR.
12. Their Lordships by a majority (Lord Steyn dissenting) held that the 1998 Act did not have retrospective effect but they nonetheless gave their opinions on the incompatibility question. They expressly or implicitly accepted that, leaving s. 3(1) of the 1988 Act aside, the ordinary meaning of s. 28 (2) and (3) was that these provisions imposed on an accused a persuasive rather than merely an evidential burden. Lords Steyn, Hope and Clyde were of the view that so construed the provisions in s. 28 (2) and (3) were incompatible with Article 6 (2) but that, if the provisions imposed only an evidential burden they would not be incompatible with the Article. Lords Steyn, Hope and Clyde went on to construe the provisions pursuant to s. 3(1) of the 1998 Act and decided that they should be read as imposing an evidential burden only. The words "prove" and "proves" were to be read as meaning "give sufficient evidence".
13. Lord Slynn was inclined to the view that the imposition of a persuasive burden would not be justified under Article 6 (2) but did not think it necessary to come to a conclusion on the point since the provisions could be construed under s. 3 (1) as imposing only an evidential burden, an outcome that was compatible with Article 6(2). Lord Hutton held that the imposition by s. 28 (2) and (3) of a persuasive burden was not incompatible with Article 6 (2). He therefore did not read down the provisions pursuant to s. 3 (1).
14. There are four issues in this appeal:

(1) Putting s. 3 (1) of the 1998 Act aside, does s. 139 (4) and (5) of the 1988 Act impose a persuasive or merely an evidential burden on the accused?

(2) If s. 139 (4) and (5) imposes a persuasive burden on the accused, do its provisions make an inroad into the right conferred by Article 6 (2)?

(3) If s. 139 (4) and (5) makes an inroad into the Article 6 (2) right, are its provisions incompatible with Article 6 (2) ECHR?

(4) If on their ordinary construction the provisions contained in s. 139 (4) and (5) are incompatible with Article 6(2), are those provisions to be read down pursuant to s. 3(1) of the 1998 Act to the effect that they impose only an evidential burden?

15. Just as the House of Lords found in Lambert in respect of s. 28 (2) and (3) of the 1971 Act, we find that the plain and ordinary meaning of s. 139 (4) and (5) of the 1988 Act is that these provisions impose a persuasive burden on the accused and not merely an evidential burden. We are also satisfied that the provisions make an inroad into the right conferred by Article 6 (2) because the offence of having a bladed weapon in a public place is one involving moral blameworthiness and the defences provide for by s. 139 (4) and (5) directly bear on the moral blameworthiness of the accused.
16. The reason for which an accused has a bladed article in a public place is something peculiarly within the knowledge of the accused. We are accordingly quite satisfied that there is an objective justification for some derogation from the presumption of innocence. The question we have to decide is whether the imposition of a persuasive burden is justified, rather than the imposition of an evidential burden, by which we mean a burden to demonstrate from the evidence an arguable case.
17. The burden of establishing compatibility with Article 6 (2) is on the state. As Lord Steyn said in Lambert (para 34):

"The approach to be adopted was stated by the European Court of Human Rights in Salabiaku v France (1988) 13 EHRR 379, 388, para 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 . . . 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.'

This test depends upon the circumstances of the individual case. It follows that a legislative interference with the presumption of innocence requires justification and must not be greater than is necessary. The principle of proportionality must be observed."

18. Lord Hope said this in Lambert as to the applicable test:

"[t]he test to be applied is whether the modification or limitation of that right [conferred by Article (2) pursues a legitimate aim and whether it satisfies the principle of proportionality: Ashingdane v United Kingdom (1985) 7 EHRR 528; see also Brown v Stott [2001] 2 WLR 817. It is now well settled that the principle which is to be applied requires a balance to be struck between the general interest of the community and the protection of the fundamental rights of the individual. This will not be achieved if the reverse onus provision goes beyond what is necessary to accomplish the objective of the statute. VII Does section 5(3) read with section 28(2) and (3) make an inroad on article 6(2)?"

19. As we have said, Lords Steyn, Hope and Clyde held that the reverse onus provisions contained in s. 28 (2) and (3) of the 1971 Act were incompatible with Article 6 (2). They held that those provisions went beyond what was necessary to give effect to the objective of the 1971 Act because in their view that objective could be sufficiently secured by imposing merely an evidential burden and the provisions in question involved a risk that a jury might convict where the accused had not discharged the legal burden on him where nevertheless there was a reasonable doubt. In coming to this conclusion it is clear that they were influenced by the fact that the maximum sentence for an offence under s. 5 (3) of the 1971 Act is life imprisonment. Thus Lord Steyn said (para 38):

"The effect of section 28 is that in a prosecution for possession of controlled drugs with intent to supply, although the prosecution must establish that prohibited drugs were in the possession of the defendant, and that he or she knew that the package contained something, the accused must prove on a balance of probabilities that he did not know that the package contained controlled drugs. If the jury is in doubt on this issue, they must convict him. This may occur when an accused adduces sufficient evidence to raise a doubt about his guilt but the jury is not convinced on a balance of probabilities that his account is true. Indeed it obliges the court to convict if the version of the accused is as likely to be true as not. This is a far-reaching consequence: a guilty verdict may be returned in respect of an offence punishable by life imprisonment even though the jury may consider that it is reasonably possible that the accused had been duped. It would be unprincipled to brush aside such possibilities as unlikely to happen in practice."

And Lord Clyde said:

"Of course trafficking in controlled drugs is a notorious social evil, but if any error is to be made in the weighing of the scales of justice it should be to the effect that the guilty should go free rather than that an innocent person should be wrongly convicted. By imposing a persuasive burden on the accused it would be possible for an accused person to be convicted where the jury believed he might well be innocent but have not been persuaded that he probably did not know the nature of what he possessed. The jury may have a reasonable doubt as to his guilt in respect of his knowledge of the nature of what he possessed but still be required to convict. Looking to the potentially serious consequences of a conviction at least in respect of class A drugs it does not seem to me that such a burden is acceptable."

20. In his dissenting speech, Lord Hutton said (para 194):

"The argument advanced against the imposition of a persuasive burden is that it creates the position that where a defendant fails to satisfy the jury on the balance of probabilities that he did not know he was carrying drugs, the jury will or may convict him notwithstanding that they have a reasonable doubt as to whether or not he had that knowledge. In theory there is force in this argument, but in my respectful opinion there is greater force in the common sense view of Lord Pearce in Sweet v Parsley [1970] AC 132 where the defendant was charged under section 5(b) of the Dangerous Drugs Act 1965 with being concerned in the management of premises used for the purpose of smoking cannabis resin. Lord Pearce said, at p 157:

'Parliament might, of course, have taken what was conceded in argument to be a fair and sensible course. It could have said, in appropriate words, that a person is to be liable unless he proves that he had no knowledge or guilty mind. Admittedly, if the prosecution have to prove a defendant's knowledge beyond reasonable doubt, it may be easy for the guilty to escape. But it would be very much harder for the guilty to escape if the burden of disproving mens rea or knowledge is thrown on the defendant. And if that were done, innocent people could satisfy a jury of their innocence on a balance of probabilities. It has been said that a jury might be confused by the different nature of the onus of satisfying 'beyond reasonable doubt' which the prosecution have to discharge and the onus 'on a balance of probabilities' which lies on a defendant in proving that he had no knowledge or guilt. I do not believe that this would be so in this kind of case. Most people can easily understand rules that express in greater detail that which their own hearts and minds already feel to be fair and sensible.'

In my opinion it is not unprincipled to have regard to practical realities where the issue relates to knowledge in a drugs case."

21. As we have noted above, the Divisional Court in Lynch held that s.139 of the 1988 Act was not incompatible with Article 6(2). In his judgment Pill L J cited what Lord Bingham said in Brown v Stott [2001] 2 WLR 817 at 836, namely:

"The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for. The general language of the Convention could have led to the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But this approach has been consistently eschewed by the court throughout its history."

22. Pill LJ also cited the following extract from Lord Hope's speech in R v Director of Public Prosecutions ex p Kebilene [2000] 2 AC 326 at 384:

"Mr Pannick suggested that in considering where the balance lies it may be useful to consider the following questions: (1) what does the prosecution have to prove in order to transfer the onus to the defence? (2) what is the burden on the accused – does it relate to something which is likely to be difficult for him to prove, or does it relate to something which is likely to be within his knowledge or (I would add) to which he readily has access (3) what is the nature of the threat faced by society which the provision is designed to combat? It seems to me that these questions provide a convenient way of breaking down the broad issue of balance into its essential components, and I would adopt them for the purpose of pursuing the argument as far as it is proper to go in the present case."

23. When giving his reasons for finding that s. 139 of the 1988 Act was not incompatible with Article 6 (2), Pill L J said this:

"26. I consider the starting point to be the decision in Salabiaku which permits a reverse onus but requires presumptions of fact or of law to be defined within reasonable limits. As Lord Bingham stated in Brown, there are no hard edged and inflexible statements of principle. A fair balance must be struck.

27. In my judgment, that fair balance permits the existence of a reverse onus in the context of section 139 of the 1988 Act:

(1) The section is readily distinguishable, for present purposes, from section 28 of the Misuse of Drugs Act 1971. As Lord Steyn stated at paragraph 38 of Lambert, section 28 requires the defendant to prove on a balance of probabilities that he did not know that a package proved to be in his possession contained controlled drugs. Under section 139, it is for the prosecution to prove that the defendant knowingly had the offending article in his possession. A defendant is obviously vulnerable in a situation in which a package the contents of which he cannot know is handed to him or the contents of which for a variety of reasons he may not know. The present situation is different in that it is for the prosecution to prove that the defendant knows he had the relevant article in his possession.

(2) There is a strong public interest in bladed articles not being carried in public without good reason. I do not find it obviously offensive to the rights of the individual that it is for him to prove a good reason on a balance of probabilities. Respect should be given to the way in which a democratically elected legislature has sought to strike the right balance, as in my view it has. Parliament is entitled, without infringing the European Convention on Human Rights, to deter the carrying of bladed or sharply pointed articles in public to the extent of placing the burden of proving a good reason on the carrier.

(3) The defendant is proving something within his own knowledge.

(4) Notwithstanding the adversarial nature of English proceedings, a defendant is entitled, under Article 6, to expect the Court to scrutinise the evidence with a view to deciding if a good reason exist. That applies whether he gave evidence or not.

(5) In the great majority of cases, I would expect the fact-finding tribunal to make a judgment as to whether there was a good reason without the decision depending on whether it has to be proved that there is a good reason or that there is not a good reason. The present case is a good illustration. The fact finding tribunal will need to make a value judgment as to whether, upon all the evidence, the reason is a good one. Either there is or there is not a good reason though I accept that there will be cases in which the fact-finding tribunal may attach significance to where the burden of proof rests.

(6) In distinguishing Lambert, I would give some, though limited, weight in striking the balance to the much more restricted power of sentence for this offence than for an offence under section 28. A section 139 offence is undoubtedly "truly criminal" but at least the aggravating feature of a potential life sentence, to which Lord Steyn attached weight in Lambert, is not present. This factor cannot be decisive, however.

28. For those reasons, I would answer the latter part of the question for the opinion of the Court in the negative. I would also hold that section 139 of the Criminal Justice Act 1988 does not conflict with Article 6 of the European Convention of Human Rights. I would dismiss the appeal."

24. Lynch was referred to in two of the judgments of the Divisional Court in the recent case of Sheldrake v DPP [2003] EWHC 273 (Admin) which was an appeal by way of case stated against conviction of an offence under s. 5(1) of the Road Traffic Act by the Justices in North East Essex. Under s. 5 (1) of that Act a person is guilty of an offence if he drives or attempts to drive a motor vehicle or is in charge of a motor vehicle on a road or other public place and he is over the prescribed alcohol limit. By s. 5 (2) it is a defence for a person charged with an offence under s. 5 (1) to prove that the circumstances were such that there was no likelihood of his driving the vehicle whilst he was over the prescribed limit. By a majority (Clarke L J and Jack J) the court held that the reverse onus provision in s. 5 (2) was incompatible with Article 6 (2).
25. Clarke L J compared the effect of imposing a legal as opposed to an evidential burden on the accused and held that the prosecution had not shown that it is necessary to impose a legal burden. He rejected the submission that without a legal burden convictions would be difficult to achieve. In his view, in the vast majority of cases there will be evidence from which the justices can decide whether there was a risk of subsequent driving by the accused and he could see no reason why they should not have to be sure of that. Lynch was among a number of cases to which he briefly referred but because each statute gives rise to different considerations he thought that these cases were of limited assistance. In respect of Lynch Clarke L J said this at paragraph 71:

"The court in Lynch considered whether the fair balance to which I have referred above permitted the existence of a reverse onus in the context of section 139. It held that it did. Pill LJ gave a number of reasons in paragraph 28 and Poole J gave a further reason in paragraph 30. It is not easy to see where in Lynch the court considered the crucial question, which is not whether a reverse onus can be justified but whether, that being the case, it is necessary to provide for a legal and not simply an evidential burden. However, assuming that the court did address that question and decide that it was necessary, I do not think that the reasons which were held to determine it in that case are of particular assistance in resolving the question which arises in the instant case on very different facts under a very different statute."

26. The second judge in Sheldrake to refer to Lynch was Henriques J who dissented. He did not say that Pill L J and Poole J had not answered the crucial question. On the contrary he implicitly approved of the court's approach in that case when he said (para 99):

The Court enunciated three critical factors:

i. The requirement is merely to prove something within the defendant's own knowledge.

ii. The offence carries a penalty significantly lower than the life imprisonment under the Misuse of Drugs Act (in fact 2 years imprisonment).

iii. An accused who carries a bladed instrument knows at the time he commits the act in question that his conduct amounts to a criminal offence unless he can bring himself within the exemption specified within the section. In a prosecution under the Misuse of Drugs Act the accused may not know that he is carrying drugs at all.

Each of these considerations applies in the instant case.

27. Towards the end of his judgment, Henriques J said (para 131-133):

"131. Finally in considering whether the reverse legal burden in section 5(2) is necessary in a democratic society the Court should show deference to the judgment of Parliament if appropriate. Parliament created a regime to prevent or restrict the driving of vehicles on the roads by those adversely affected by drink. There was a manifest need to restrain not only drivers affected by drink but those in charge of motor vehicles unless there was no likelihood of their driving. Parliament appreciated that only those in charge could know or speak of the circumstances which might give rise to their driving or otherwise. Further Parliament must have appreciated the importance of creating a regime, which worked and brought to justice those who had no defence to being in charge with excess alcohol. As Lord Steyn observed in Brown v Stott at p.121 letter g in relation to section 172 (the provision requiring a person to identify the driver of a car) 'Parliament would also have been entitled to take into account that it was necessary to protect other convention rights, viz the right to life of members of the public exposed to the danger of accidents (see art 2(1)). On this aspect the legislature was in as good a position as a court to assess the gravity of the problem and the public interest in addressing it'.

132. Lord Steyn went on to consider whether in adopting the technique of requiring a keeper of a vehicle to identify a driver, 'rather than a reverse burden technique it took more drastic action than was justified'. He said 'that whilst this is ultimately a question for the Court it is not unreasonable to regard both techniques as permissible in the field of the driving of vehicles'.

133. For my part I do find the reverse burden technique permissible and proportionate and would in any event defer to Parliament and in so concluding I have had regard to the helpful guidance given by Laws LJ in his judgment in International Transport Roth GmbH v Home Secretary [2002] EWCA Civ 158, namely that first greater deference will be shown by the Courts to the considered will of Parliament than to decisions of the executive and secondly, more deference will be shown when the Convention itself requires a balance to be struck. The Road Traffic Acts are designed to protect the community's right to protection of life, limb and property (under Articles 2 and 3 of the Convention and Article 1 of the First Protocol). Thirdly, more deference will be shown where the subject matter is peculiarly within Parliament's constitutional domain rather than the Court's. Matters of social policy include the control of those who may drink and drive and this is within Parliament's domain. Finally more deference will be shown where the subject matter is peculiarly within Parliament's expertise, rather than the Courts. Section 5 is part only of a legislative mass crafted and refined over the years by Parliament with the aim of making the roads safe."

28. We agree with what Henriques J says in these paragraphs about the need, where appropriate, for the court to show deference to Parliament. We think that Pill L J was adopting the same approach when he said in paragraph 27 (2) of his judgment:

"Parliament is entitled, without infringing the European Convention on Human Rights, to deter the carrying of bladed or sharply pointed articles in public to the extent of placing the burden of proving a good reason on the carrier."

29. With respect, we do not doubt that Pill LJ addressed the right question. We agree with and adopt the reasoning set out in paragraph 27 of his judgment. For those reasons we are of the view that the reverse onus provisions contained in s. 139 (4) and (5) of the 1988 Act are proportionate. They strike a fair balance between the general interest of the community in the realisation of a legitimate legislative aim and the protection of the fundamental rights of the individual and go no further than is necessary to accomplish Parliament's objective in protecting the public from the menace posed by persons having bladed articles in public places without good reason. We accordingly find that s. 139 of the 1988 Act is not incompatible with Article 6 (2) ECHR and it follows that the question whether s. 139 (4) and (5) should be read down under s. 3 (1) of the 1998 Act does not arise and this appeal must be dismissed.