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Cite as: [2005] HCJAC 72, 2005 GWD 33-633, [2005] ScotHC HCJAC_72, 2006 SLT 40, 2005 SCCR 549

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McLean v. Procurator Fiscal [2005] ScotHC HCJAC_72 (17 June 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Johnston

Lord Mackay of Drumadoon

C.G.B. Nicholson, Q.C.

[2005HCJAC72]

Appeal No: XJ1969/03

OPINION OF THE COURT

delivered by LORD JOHNSTON

STATED CASE

in causa

DAVID GERALD McLEAN

Appellant;

against

STEELE CARNEGIE, Procurator Fiscal, Greenock

Respondent:

_______

Appellant: Paterson, Solicitor Advocate; Purdie & Co.

Respondent: McKenzie; Crown Agent

17 June 2005

[1] The appellant was charged in the following terms:

"on 17 October 2002 from the licensed premises at Mini Mart Off Sales Newsagent, 25 Lynedoch Street, Greenock you David Ferard McLean being a licenceholder in respect of said premises did sell alcoholic liquor, namely Pulse Cider to a person under the age of 18 years namely William Joseph McNicol, aged 15 years of 9 Laverock Avenue, Whinhill, Greenock; CONTRARY to the Licensing (Scotland) Act 1976 Sections 67 and 68(1) and (7)."

[2] The appellant was convicted after trial and has appealed by stated case. In the stated case, the findings in fact made by the Justice in the District Court are to the effect that on 17 October 2003 the appellant sold alcoholic liquor to William Joseph, McNicol, aged 15, in his licensed premises. It was not suggested that the Justice had not been entitled to make those findings in fact or to convict the appellant on the basis of those findings.

[3] The issue before us concentrated upon the attempt by the defence to rely upon the provisions of section 71 of the Licensing (Scotland) Act 1976, which state:

"Without prejudice to any defence available to the licenceholder by virtue of the proviso to Section 77(2) of this Act, it shall be a defence for any person charged with an offence under Section 68(1) of this Act if he proves -

(a) that he used due diligence to prevent the occurrence of the offence, or

(b) that he had no reason to suspect that the person in relation to whom the

charge was brought was under 18;".

[4] In the stated case the Justice records that there were two defence witnesses, including the appellant. With respect to the defence evidence the Justice states:

"With specific reference to the evidence of the witness Kenneth Mitchell I noted that the Depute Fiscal did put it to the witness on several occasions that he was mistaken about the identity of the boy who he alleged to have seen provide proof of identification to the Accused a few weeks before the date of the offence. Mr Mitchell denied he was mistaken. I did not consider this necessarily to amount to an admission by the Crown that the witness could not be lying.

In any event I was not satisfied with his evidence. I did not accept that he had as stated under re-examination a photographic memory or that he had witnessed Mr McNicol produce evidence of his age to the Accused.

At the end of the evidence I heard submissions from the Depute Fiscal who stated that the Accused did not use due diligence and he did have reason to suspect that he was under the age of 18. He asked the Court to find that the evidence from the schoolboy William Joseph McNicol was both credible and reliable. He pointed out he had no motivation to lie. He pointed out that the Accused indicated that he had experience as a licensee but Police Officer Robertson pointed out that the witness McNicol was very obviously underage. He asked the Court to accept that in fact no identification was produced and this was supported by the statements from both Police Officers that in reply to caution and charge the Accused had stated that he was not sure what type of ID had been produced. Finally he indicated that he did not consider the Accused's evidence to be reliable as he had a vested interest. He couldn't remember details at times when he would suddenly remember them. This appeared contrived. He asked the Court to prefer the evidence of the witness McNicol that he wasn't asked for proof of age.

In his final submissions the Defence Agent asked me to find that the Defence under Section 71 had been upheld and that the Accused had exercised due diligence and had no reason to suspect that the witness McNicol was under 18. He asked the Court to accept that the witness William Mitchell was independent although a friend of the Accused. He also asked the Court to note that when it was put to Mr Mitchell that he must be mistaken about the identity of the boy he said he was not. On this basis he stated that the Court would have to disbelieve this witness to convict. He submitted that on the balance of probabilities the defence had been proved. With reference to the evidence of the Accused he pointed out that he had never been charged under the Licensing Act before, he knew his responsibilities."

[5] Mr. Paterson, Solicitor Advocate, for the appellant submitted that the Justice had erred in law in proceeding on the basis that there was a legal burden of proof on the appellant to establish a defence under the provisions of section 71 of the 1976 Act. Mr Paterson based his submission on the observations made by this court in the case of Henvey v. H.M. Advocate 2005 SCCR 282. That case, which was heard by a Bench of five judges, revisited issues relating to the Misuse of Drugs Act 1971, which had been discussed by this court in Salmon v. H.M. Advocate 1998 S.C.C.R. 740. Those issues included whether section 28(2) of the 1971 Act imposed an evidential burden of proof, as opposed to a legal (or persuasive) burden of proof, on any accused who sought to rely on its terms. In Henvey the court considered that issue against the background of the case of R. v. Lambert [2002] 2 AC 545, in which the House of Lords had considered the construction of section 28 of the 1971 Act, in the light of article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, as incorporated by the Human Rights Act 1998. In simple terms, section 28 of the 1971 Act allows an accused person the opportunity of proving that he neither knew of, nor had reason to suspect, the existence of some fact alleged by the prosecution, which it is necessary for the prosecution to prove if the accused is to be convicted as charged.

Such a line defence is available in the context of many statutes. Section 28 of the Misuse of Drugs Act and section 71 of the Licensing (Scotland) Act 1976 are such examples.

The issue in the present appeal is whether the burden imposed upon the appellant by the provisions of section 71 of the 1976 Act was merely evidential, as opposed to legal. In other words, whilst it was necessary for the appellant, having invoked the defence, to have elicited and identified evidence upon which the line of defence could be based or supported, was he under a legal burden to prove that line of defence?

Mr Paterson submitted that the burden on the appellant had only been evidential. At the end of the day, the burden of proof had remained on the Crown to prove its case against the appellant beyond reasonable doubt. That involved dispelling any issue of reasonable doubt, which may have arisen on the Justice's consideration of the defence evidence, even if such evidence had not been wholly acceptable to the Justice. In essence Mr Paterson submitted that, in the present case, the Justice had considered the defence evidence and had expressed himself not to be "satisfied with". He had not gone on to consider the secondary, but equally important issue, as to whether the defence evidence had left a reasonable doubt in his mind, as to whether the Crown case had been established. In other words, the Justice had proceeded upon the basis that the statutory defence under the 1976 Act created a legal burden rather than an evidential one.

[6] In reply the advocate depute relied upon Sheldrake v. Director of Public Prosecutions [2005] 1 AC 282, a decision of the House of Lords, to enforce his basic position that statutory provisions containing or offering an accused person a line of defence to a particular statutory charge had to be considered on their own merits and in the statutory context, in which they were to be found, and not under reference to how similar provisions in different statutes might fall to be construed. In Sheldrake the issue related to the defence available to a motorist facing prosecution, for being in charge a motor vehicle, after consuming alcohol. That defence allowed the motorist to prove that there was no likelihood of his driving, whilst the proportion of alcohol in his body exceeded the prescribed limits. The defence in question is to be found in section 5(2) of the Road Traffic Act 1998. The House of Lords held that it imposed a legal burden in an accused, who sought to invoke it.

Under reference to paragraphs 21 and 43 of the speech of Lord Bingham of Cornhill in Sheldrake the advocate depute pointed out that, notwithstanding the approach adopted in Lambert, which was concerned with the application of section 28 of the Misuse of Drugs Act 1971, the House of Lords had held that the defence, under section 5(2) of the Road Traffic Act 1988, imposed a legal burden on an accused, which was not disproportionate to the aim of the legislation or contrary to any issue of fairness, as far as the accused was concerned. In other words, the advocate depute submitted that, notwithstanding the decision of this court in Lambert, it was appropriate for the court when considering the construction of the provisions of any other statute, offering a similar line of defence to section 28 of the 1971 Act, to look at the matter against the guidelines laid down by Lord Bingham. The advocate depute submitted that when the guidelines were applied to the construction of the provisions of section 71 off the 1976 Act, it was clear that once the material facts relating to the sale of alcohol to an underage person had been proved by the Crown, the defence had to discharge a legal burden, if it sought to invoke the defence on offer in section 71. The Justice had addressed that issue as a matter of credibility and reliability of the defence witnesses. Despite the somewhat hesitant approach of the Justice in dealing with that evidence in the stated case, it was clear that the Justice had not found the evidence to be credible and reliable. On that basis, accordingly, he had quite properly rejected the defence.

[7] In seeking to resolve this matter it has to be emphasised that when a statutory defence of the nature found, for example, in section 28 of the Misuse of Drugs Act 1971, section 5 of the Road Traffic Act 1988 or section 71 of the Licensing (Scotland) Act 1976, is relied upon, the issue as to whether the statutory provisions concerned impose an evidential, as opposed to a legal burden of proof, requires to be addressed in the context of the Convention of Human Rights, as the House of Lords did in Lambert. If appropriate, the relevant statutory provisions may require to be read down, to avoid incompatibility with the provisions of the Convention. On the other hand, it is equally important to look at each of the relevant statutory defences in their own statutory context.

[8] It seems to us that the issues raised in a defence founded on section 28 of the 1971 Act are critical to the guilt of the accused, to the extent of being involved in the determination of the material facts in the case, which the Crown must prove to secure a conviction. That results in the statutory defence available placing an evidential burden, rather than a legal burden, on the. accused It is, therefore, essential, when that section comes into play, that the judge or jury assesses the evidence relied on by the accused, not only on the basis as to whether that evidence should be accepted as credible and reliable, but also as to whether the evidence gives rise to a reasonable doubt as to the guilt of the accused in the context of the Crown case.

[9] On the other hand, the defence available under section 71 of the Licensing (Scotland) Act 1976 only comes into play once the Crown have established all of the material facts it requires to seek a conviction, in this case the sale of alcohol by the appellant to a person under the age of 18. If, thereafter, an accused proceeds to avail himself of the statutory defence to be found in section 71, there is nothing either unfair or incompatible with the Convention if a legal burden rests on him to make out that defence.

[10] In this case we consider that the Justice adopted the correct approach in considering the defence raised under section 71. He has rejected that defence essentially on the grounds of credibility and reliability, which leaves free-standing the evidence against the accused, which was wholly supportive of the Crown case.

[11] For these reasons we are of the opinion that this appeal must fail. We therefore answer question 1 in the affirmative and, for the sake of completeness, question 2 in the negative.