England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOLWICH
HH JUDGE PETER MURPHY
T20080356

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/07/2009

Lord Justice Thomas :

1. S.1(10) of the Crime and Disorder Act 1998 makes it a criminal offence to breach an Anti-Social Behaviour Order (ASBO) in these terms:

"If without reasonable excuse a person does anything which he is prohibited from doing by an Anti Social Behaviour Order, he is guilty of an offence."

The issue which arises on this appeal is whether the legal burden of proving whether a defendant acted without reasonable excuse rests upon the Crown or the defence. The trial judge, Judge Peter Murphy, held at the Crown Court at Woolwich on 19 January 2009 that the legal burden was on the defence and summed up to the jury accordingly. In the light of the conviction of the appellant for an offence under s.1(10), he certified a point of law for this court as no authority had been put before him which decided this issue.

2. The Guide for the Judiciary on Anti Social Behaviour Orders, third edition 2007, published by the Judicial Studies Board, was unfortunately not brought to his attention. At paragraph 6.5 the Guide states:

"Proving a Breach of the Order

The prosecution must prove a breach of the Order to the criminal standard. If the defendant raises the evidential issue of reasonable excuse it is for the prosecution to prove lack of reasonable excuse."

3. Although there is no decision of this court or the Divisional Court directly in point, the Judicial Studies Board Guide relied upon the decision in R v Evans (Dorothy) [2004] EWCA Crim 3102 [2005] 1 Cr. App. R. 32 on the analogous provisions of s.5(5) of the Protection from Harassment Act 1997. It is necessary, therefore, on this appeal for us to decide the point and the correctness or otherwise of the guidance published by the Judicial Studies Board. We have no doubt at all that the Judicial Studies Board Guidance was correct.

The factual background and evidence

4. On 3 October 2006 the Uxbridge Magistrates' Court convicted the appellant of assaulting a police officer; in addition to a custodial penalty the Magistrates' Court imposed upon him a post-conviction ASBO which was to remain in force for a three year period. It prohibited him from carrying out a number of acts. The provision relevant to the appellant's subsequent prosecution was a prohibition from:

"Engaging in any behaviour which causes or is likely to cause harassment, alarm or distress to any person, not of the same household as himself, in England and Wales."

5. The case against the appellant, which was heard before Judge Murphy and a jury, was that the appellant was the landlord of a house in Charlton divided into a number of rooms rented out separately. The prosecution alleged that in April 2008 (within the period covered by the ASBO) the appellant had gone to this property at about 10 p.m. whilst the complainant, one of the tenants, was sleeping, and woke him up; that he demanded rent and made clear he intended to change the locks; he told the complainant he had either to move or be locked inside. The complainant said that the appellant had two screwdrivers. He then had used one of them to scratch the complainant's back after he had begun to change the lock on the interior door. On the basis of these allegations, the appellant was charged with assault occasioning actual bodily harm and breaching the ASBO.
6. The appellant's case was that the complainant was in arrears of rent. He had gone to the premises to clean up after some work had been done to the bathroom in the house, to deal with a complaint about noise and to ask the complainant to pay rent. He denied he had assaulted the complainant or breached the ASBO. He had been changing the lock so that the room could not be locked to persuade the complainant to pay his rent.
7. The jury were unable to agree on whether the appellant was guilty of the offence of assault occasioning actual bodily harm but convicted him of breach of the ASBO. Sentence was adjourned pending the decision of this court on the point certified.

The general approach

8. It is a fundamental rule that the burden of proving a defendant's guilt rests upon the Crown: Woolmington v DPP [1935] AC 462. There are only limited exceptions to this rule. In some statutes Parliament expressly places the burden on an issue on the defence. It is contended in cases where Parliament does not do this, it is sometimes construed that the provision of a statute properly construed, places the burden on an issue on the defence. Two principal general authorities provide guidance on the approach of the court to the construction of a statute where no express provision is made for placing the burden on a particular issue on the defence. The first is R v Edwards [1925] 1 Q.B. 27 where this court concluded, after an extensive review of the authorities:

"In our judgment this line of authority establishes that over the centuries the common law, as a result of experience and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisoes, exemptions and the like, then the prosecution can rely upon the exception."

The court therefore concluded that the same rule applied to trials on indictment as was applied to summary trial under the equivalent section to s.101 of the Magistrates' Court Act 1980 which provides:

"Where the defendant to an information or complaint relies for his defence on any exception, exemption, proviso, excuse or qualification, whether or not it accompanies the description of the offence or matter of complaint in the enactment creating the offence or on which the complaint is founded, the burden of providing the exception, exemption, proviso, excuse or qualification shall be on him; and this notwithstanding that the information or complaint contains an allegation negativing the exception, exemption, proviso, excuse or qualification."

9. The second general authority on the approach to be adopted is R v Hunt [1987] 1 A.C. 352; the older authorities were again extensively reviewed by the House of Lords. Lord Griffiths said at 375G, after referring to the passage in the judgment in Edwards which we have set out:

"I have little doubt that the occasions upon which a statute will be construed as imposing a burden of proof upon a defendant which do not fall within this formulation are likely to be exceedingly rare …………. I would prefer to adopt the formula as an excellent guide to construction rather than as an exception to a rule. In the final analysis each case must turn upon the construction of the particular legislation to determine whether the defence is an exception within the meaning of section 101 of the Act of 1980 which the Court of Appeal rightly decided reflects the rule for trials on indictment. With this one qualification I regard R v Edwards as rightly decided."

The construction of s.1(10)

10. The question for the judge and for us, therefore, is the construction of the statute in question in the light of this guidance. In this task, we, like the Judicial Studies Board, have found considerable assistance in the decision of this Court in R v Evans (Dorothy) to which we have referred. The defendant had been charged with breach of a restraining order made under s.5(1) and (2) of the Harassment Act 1997 consequent upon a conviction for harassment. The subsections provide:

"(1) A court sentencing or otherwise dealing with a person ("the defendant") convicted of an offence under section 2 or 4 may (as well as sentencing him or dealing with him in any other way) make an order under this section.

(2) The order may, for the purpose of protecting the victim of the offence, or any other person mentioned in the order, from further conduct which –

(a) amounts to harassment, or

(b) will cause a fear of violence,

Prohibit the defendant from doing anything described in the order."

11. She was subsequently prosecuted for breach of that order under s. 5(5) which provides:

"If without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section, he is guilty of an offence."

12. The principal issue before the court was the meaning of a term in the order. The court observed at paragraphs 21 and 24 of its judgment that the burden was on the prosecution to prove that the defendant acted without reasonable excuse, if the issue was raised by the defendant.
13. Although it does not appear that that question was fully argued in that appeal, the observations of the court are clearly in accordance with principle and the general authorities to which we have referred.
14. In the case of a prosecution for breach of an ASBO, the considerations are even stronger. First, Parliament did not specify the terms in which ASBOs were to be made where the breach of an ASBO was to be an offence under s.1(10). The terms of ASBOs were left to the courts. It is difficult to see how Parliament could have thought that there would therefore be that sufficient degree of specificity that is required. Experience has in fact shown that the terms of ASBOs are often far reaching or imprecise (despite the numerous authorities and guidance referred to in the Judicial Studies Board guide).
15. Second, Parliament must have contemplated that the conduct prohibited by the relevant provision of the ASBO would often not be a breach of the criminal law. There was no point in providing for a breach to be a criminal offence, if the conduct was otherwise criminal under other specific statutory provisions. For example, as in this case, it is not an offence to behave in a way that causes another harassment, alarm or distress, unless that conduct amounts to an offence of harassment or some other offence; this appellant was not prosecuted for harassment, as that would have required a course of conduct. The act was not committed in a public place and so no public order offence arose. The effect of s.1(10) in this case, as in many, was to make criminal actions that would otherwise not be criminal.
16. We are of the view therefore that it cannot have been intended by Parliament to place any burden of proof on the defendant under s.1(10) which criminalises conduct that Parliament itself has not criminalised and has not prescribed the terms in which that can be done. Applying therefore the test in Edwards and in Hunt, we are of the clear view that the burden of proving reasonable excuse rests on the Crown where the defendant has raised the issue on the evidence before the court. The Act is perfectly workable on the basis that it imposes only an evidential burden on the defendant, but leaves the legal burden on the Crown.
17. In reaching this conclusion, we are in agreement as to the approach to be followed in relation to s.1(10) and s.5(5) of the Harassment Act 1997 as set out in R v Nicholson [2006] EWCA Crim 1518 [2006] 2 Cr. App. R .30. The issue in that case was whether, in a case under s.1(10), what amounted to a reasonable excuse was a matter for the jury. The court decided that it should follow R v Evans (Dorothy) on that issue, as there was no material distinction between that section and s.5(5) of the Harassment Act 1997.
18. Finally it is of interest to note that the Crown Prosecution Service Guide to prosecutions under s.1(10) made clear that the defence had an evidential burden to raise a reasonable excuse, but that it was for the prosecution to prove to the criminal standard that the defendant had no reasonable excuse. Counsel for the Crown sought in his submissions before the judge to put forward the contention that the manual was correct. Given the rejection of that argument by the judge, counsel in this court submitted that the decision of the judge was correct. For the reasons set out, we cannot accept those submissions. The Crown Prosecution Service's agreed view which coincided with that of the Judicial Studies Board was undoubtedly correct.
19. It follows that the appeal must be allowed and the conviction quashed.
20. Having considered submissions from the parties we have decided it would not be proportionate to order a retrial.