QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
MR JUSTICE JACK
| THE QUEEN on the application of
GRUNDY & CO EXCAVATIONS LTD
|and SEAN PARRY
|- and -
HALTON DIVISION MAGISTRATES COURT
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(instructed by J Keith Park & Co) for the Claimants
The Defendant did not appear and was not represented
Peter Birts QC
(instructed by Forestry Commission Legal Department) for the Interested Party
Crown Copyright ©
Lord Justice Clarke:
Introduction and Background
The Statute and Felling Licence
"9 (1) A felling licence granted by the commissioners shall be required for the felling of growing trees, except in a case where by or under the following provisions of this Part of this Act this subsection is expressed not to apply.
(2) Subsection (1) above does not apply -
(a) to the felling of trees with a diameter not exceeding 8 centimetres or, in the case of coppice or underwood, with a diameter not exceeding 15 centimetres; or
(b) to the felling of fruit trees or trees standing or growing on land comprised in an orchard, garden, churchyard or public open space; or
(c) to the topping or lopping of trees or the trimming or laying of hedges.
(3) Subsection (1) above does not apply to the felling by any person of trees on land in his occupation or occupies by a tenant of his -
(a) where the trees have a diameter not exceeding 10 centimetres and the felling is carried out in order to improve the growth of other trees; or
(b) where the following conditions are satisfied, that is to say –
(i) the aggregate cubic content of the trees which are felled by that person without a licence (exclusive of trees to whose felling subsection (1) above does not apply) does not exceed (5 cubic metres) in any quarter; and
(ii) the aggregate cubic content of the trees so felled which are sold by that person whether before or after the felling (exclusive as aforesaid) does not exceed 2 cubic metres in any quarter, or such larger quantity as the Commissioners may in a particular case allow.
(4) Subsection (1) above does not apply to any felling which
(a) is for the prevention of danger or the prevention or abatement of a nuisance;
(b) is in compliance with any obligation imposed by or under an Act of Parliament, including this Act;
(c) is carried out by, or at the request of an electricity operator, because the tree is or will be in such close proximity to an electric line or electrical plant which is kept installed or is being or is to be installed by the operator as to have the effect mentioned in paragraph 9(1)(a) or (b) of Schedule 4 to the Electricity 1989;
(d) is immediately required for the purpose of carrying out development authorised by planning permission granted or deemed to be granted under the Town and Country Planning Act 1990 or the enactments replaced by that Act, or the Town and Country Planning (Scotland) Act 1997.
(5) Regulations made by the Commissioners under this Part of this Act may modify subsections (2) to (4) as follows, that is to say –
(a) they may provide for additional exceptions from the application of subsection (1) above and may in particular substitute [different diameters or quantities from those specified above].
(c) they may restrict or extend the exception in subsection (3)(b) …
and the said subsections shall have effect with any modification made by regulations made under this subsection.
10 (1) An application for a felling licence may be made to the Commissioners in the prescribed manner by a person having such an estate or interest in the land on which the trees are growing as enables him, with or without the consent of any other person, to fell the trees
17 (1) Anyone who fells a tree without the authority of a felling licence, the case being one to which section (9)(1) of this Act applies so as to require such a licence, shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale or twice the sum which appears to the court to be the value of the tree, whichever is the higher.
35 In this Part of this Act
"felling" includes wilfully destroying by any means;
"felling licence" means a licence under this Part of this Act authorising the felling of trees; …"
A number of further exceptions have been provided for in regulations made under section 9(5).
"You should tell others involved with the felling about the details in this licence – eg by giving a copy of the licence and map to the person felling the trees. …"
The Position at Common Law
The Burden of Proof
"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 proving exception, exemption, proviso, excuse or qualification shall be on him; and this not withstanding that the information or complaint contains an allegation negativing the exception, exemption, proviso, excuse or qualification."
"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 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 provisos, exemptions and the like, then the prosecution can rely upon the exception. "
I should note that at page 40 C Lawton LJ emphasised that the application of that principle did not depend upon either the fact or the presumption that the defendant had peculiar knowledge enabling him to prove the position of any negative averment. However, as appears below, it seems to me that in Hunt this factor has been recognised as having somewhat greater significance.
"Two consequences follow from the view we have taken as to the evolution and nature of this exception. First, as it comes into operation on an enactment construed in a particular way, there is no need for the prosecution to prove a prima facie case of lack of excuse, qualification or the like; and secondly, what shifts is the onus: it is for the defendant to prove that he was entitled to do the prohibited act. What rests on him is the legal, or, as it is sometimes called, the persuasive burden of proof. It is not the evidential burden."
Neither party cited any case in which the court has held at common law that the relevant statute provides for an exception or qualification which imposes an evidential burden as opposed to a legal burden on the accused; cf Rowland v Thorpe  3 All ER 195.
"The real difficulty in these cases lies in determining upon whom Parliament intended to place the burden of proof when the statute has not expressly so provided. It presents particularly difficult problems of construction when what might be regarded as a matter of defence appears in a clause creating the offence rather than in some subsequent proviso from which it may more readily be inferred that it was intended to provide for a separate defence which the defendant must set up and prove if he wishes to avail himself of it."
"However, their Lordships were in agreement that if the linguistic construction of the statute did not clearly indicate upon whom the burden should lie 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 criminal case, and a court should be very slow to draw any such inference from the language of a statute.
When all the cases are analysed, those in which the courts have held that the burden lies on the defendant are cases in which the burden can be easily discharged."
Lord Ackner too stressed at page 383 E the broad considerations to be taken into account and in particular the practical consequences of holding that the burden of proof rested on one party or the other.
"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 definition are likely to be exceedingly rare. But I find it difficult to fit Nimmo v Alexander Cowan … into this formula, and I would prefer to adopt the formula as an excellent guide to construction rather than as an exception to the 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 … Edwards as rightly decided."
My Lords, I am, of course well aware of the body of distinguished opinion that urges that wherever a burden of proof is placed upon a defendant by statute the burden should be an evidential burden and not a persuasive burden, and that it has the support of the 11th Report of the Criminal Law Revision Committee, Evidence (General) 1972 (Cmnd 4991). My Lords, such a fundamental change is, in my view, a matter for Parliament and not a decision for your Lordships' House."
It is thus quite clear that where, applying the principles in Edwards and Hunt and the provisions of section 101 of the Magistrates Courts Act 1980, there is a burden on the accused, it is a legal burden and not an evidential burden.
"(a) There is a presumption of law that mens rea is an ingredient of criminal offences.
(b) Only by express provision or necessary implication can this ingredient be excluded from the definition of offences.
(c) An honest belief in facts which, if true, would make the act charged innocent, is a defence to a criminal charge unless the statute creating the offence provides otherwise."
In support of those propositions Mr Garside relies upon a number of authorities including Sweet v Parsley  AC 132, B (A MINOR) v DPP  2 AC 428 and R v Muhamad (Mithun)  EWCA Crim 1856, 19 July 2002.
"(1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence;
(2) the presumption is particularly strong where the offence is "truly criminal" in character;
(3) the presumption applies to statutory offences and can be displaced only if this is clearly or by necessary implication the effect of the statute;
(4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern and public safety is such an issue;
(5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the prohibition of the prohibited act."
"The offence so created is a serious offence. The more serious the offence, the greater is the weight to be attached to the presumption, because the more severe is the punishment and the graver the stigma which accompany a conviction."
"The question whether the presumption of law that mens rea applies, and, if so, whether it has been displaced can be approached in one of two ways. One approach is to ask whether the act is truly criminal, on the basis that, if it is not, then the presumption does not apply at all. The other approach is to recognise that any offence in respect of which a person may be punished in a criminal court is, prima facie, sufficiently "criminal" for the presumption to apply. But the more serious the offence, the greater the weight to be attached to the presumption, and, conversely, the less serious the offence, the less weight to be attached. It is now clear that it is this latter approach which, according to our domestic law, must be applied."
We are no doubt bound by that decision to adopt that principle but I would in any event follow it because I entirely agree with it.
"A strict responsibility may be acceptable in the case of statutory offences which are concerned to regulate the conduct of some particular activity in the public interest. The requirement to have a licence in order to carry on certain kinds of activity is an obvious example. The promotion of health and safety and the avoidance of pollution are among the purposes to be served by such controls. These kinds of cases may properly be seen as not truly criminal. Many may be relatively trivial and only involve a monetary penalty. Many may carry with them no real social disgrace or infamy."
See also R v Wholesale Travel Group (1991) 3 SCR 154 per Cory J quoted in paragraph XX of Sheldrake and in Davies v Health and Safety Executive  EWCA Crim 2949 at paragraph 16.
"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."
Burden of Proof
"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."
Derogation from Article 6(2)
"It is necessary to concentrate not on technicalities and niceties of language but rather on matters of substance. I do not have in mind cases within the narrow exception "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": R v Edwards  QB 27, 40; R v Hunt (Richard)  AC 352; section 101 of the Magistrates' Courts Act 1980."
"If the false advertiser, the corporate polluter and manufacturer of noxious goods are to be effectively controlled, it is necessary to require them to show on a balance of probabilities that they took reasonable precautions to avoid the harm which actually resulted. In the regulatory context there is nothing unfair about imposing that onus; indeed it is essential for the protection of our vulnerable society."
Much the same is to my mind true here.
Mr Justice Jack:
LORD JUSTICE CLARKE:
The order of the court is that the application be dismissed. The parties have agreed an appropriate order for costs. The order will be that the first named claimants, Grundy, pay the interested party the sum of £9,693.75 in respect of the applications.