Attorney General's Reference No 4 of 2002 (On Appeal from the Court of Appeal (Criminal Division)) |
Sheldrake (Respondent) v. Director of Public Prosecutions (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice) (Conjoined Appeals)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Attorney General's Reference No 4 of 2002 (On Appeal from the Court of Appeal (Criminal Division))
Sheldrake (Respondent) v. Director of Public Prosecutions (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice)
THURSDAY 14 OCTOBER 2004
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Phillips of Worth Matravers
Lord Rodger of Earlsferry
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Attorney General's Reference No 4 of 2002 (On Appeal from the Court of Appeal (Criminal Division))
Sheldrake (Respondent) v. Director of Public Prosecutions (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice)
 UKHL 43
LORD BINGHAM OF CORNHILL
The pre-Convention law of England and Wales
A further example may be given. When, in 1987, it was proposed to criminalise the possession of a bladed or sharply pointed article, other than a small pocket knife, "without good reason or lawful authority", Lord Denning suggested that the burden of proving good reason or lawful authority by way of defence should be expressly placed on the defendant (Hansard, (HL Debates) vol 489, 3 November 1987, cols 923-924). The suggestion was accepted (Hansard, (HL Debates) vol 490, 23 November 1987, cols 474, 475), and section 139(4) of the Criminal Justice Act 1988, as enacted, provides:
In practice, Parliament has been very ready to impose legal burdens on, or provide for presumptions rebuttable by, the defendant: see Ashworth and Blake, "The Presumption of Innocence in English Criminal Law"  Crim LR 306, 309. But the language of the statute may not, in some cases, make it plain whether a ground of exoneration must be established by the defendant or negatived by the prosecutor. In Nimmo v Alexander Cowan & Sons Ltd  AC 107 the House was divided on the question. In such a case, as Lord Griffiths said in R v Hunt (Richard)  AC 352, 374:
Thus, in interpreting an offence-creating statutory provision, the starting-point for the court is, as Lord Nicholls of Birkenhead put it in B (A Minor) v Director of Public Prosecutions  2 AC 428, 460,
Effect was given to the presumption in that case, as it was in R v K  1 AC 462. It is a strong presumption, not easily displaced. The more serious the crime, and the more severe the potential consequences of conviction, the less readily will it be displaced. But it is of course the ordinary duty of the courts to give effect to what Parliament has by clear words or necessary implication enacted, and it is not hard to find instances in which Parliament has clearly intended to attach criminal consequences to proof of defined facts, irrespective of an individual's state of mind or moral blameworthiness. Many such instances are found in legislation regulating the conduct of economic and social life: see Smith & Hogan, Criminal Law, 10th ed (2002), chapter 7, "Crimes of strict liability". Offences against such regulations are often regarded as not truly criminal, since the penalty inflicted is not dire and little or no stigma attaches to conviction. Not all offences of strict liability, however, fall within this sterile regulatory area. An old instance which may be thought not to do so is found in section 12 of the Licensing Act 1872, which (as amended) remains in force:
The Convention and the Strasbourg jurisprudence
The Commission rejected as manifestly ill-founded the applicant's challenge to this provision as incompatible with article 6(2). It created a rebuttable presumption which the defendant could disprove, and was not a presumption of guilt. A provision could, if widely or unreasonably worded, have the same effect as a presumption of guilt, and it was not sufficient to examine only the form in which it was drafted. The substance and effect must also be examined. In the present instance, the presumption was restrictively worded, and was neither irrebuttable nor unreasonable. To oblige the prosecution to obtain direct evidence of "living on immoral earnings" would in most cases make its task impossible.
This was an application of article 392(1) of the French Customs Code, as elaborated by judicial decisions, and was held by the Court of Cassation, on further appeal, to be proper. It appeared that the severity of an apparently irrebuttable presumption had been to some extent moderated by court decisions upholding the trial court's unfettered power of assessing evidence and giving a broad meaning to force majeure. The trial court could also take account of extenuating circumstances when imposing penalties. In the result the Strasbourg court rejected the applicant's complaint that article 392(1) infringed the presumption of innocence, relying on the features just noted and the courts' freedom to give an accused the benefit of the doubt even where the offence was one of strict liability. It was noted that the French courts had been careful to avoid resorting automatically to the presumption laid down in article 392(1), and had exercised their power of assessment on the basis of the evidence adduced by the parties before them. Thus the French courts had not applied article 392(1) in a way which conflicted with the presumption of innocence.
It also sanctions, but in a qualified way, the application of factual and legal presumptions:
Thus the question in any case must be whether, on the facts, the reasonable limits to which a presumption must be subject have been exceeded.
In argument before the Commission the Government (para 50, p 68-69) dismissed this article as irrelevant, since the applicant's goods had not been seized, and the Court did no more than mention it. If, however, it had been relevant and had been interpreted and applied entirely literally by the French courts, its compatibility with article 6(2) would surely have been questionable.
The Court acknowledged (para 102) that it was difficult for the taxpayer to rebut the presumption in question, but he was not without means of defence (para 102), and the Court had regard to the financial interests of the state in tax matters and its dependence on the provision of correct and complete information by taxpayers (para 103) in concluding (para 104) that the presumption was confined within reasonable limits.
The leading United Kingdom cases since the Human Rights Act 1998
The Divisional Court concluded that the section did violate article 6(2) since if the defendant failed to discharge the legal burden placed upon him by subsection (3) he could be convicted of a crime punishable by 10 years' imprisonment on grounds of reasonable suspicion, and even if there were a reasonable doubt whether he did possess the articles for purposes of terrorism. The House did not find it necessary to resolve this question. Lord Steyn, in an opinion with which Lord Slynn of Hadley (p 362) and Lord Cooke of Thorndon (p 372) agreed, pointed out (p 370) that section 16(A) might be upheld if it were read as imposing an evidential and not a legal burden on the defendant. Lord Cooke (p 373) saw great force in the view that on the natural and ordinary interpretation of the provision there was repugnancy, but also pointed to the possibility of reading down subsection (3). Lord Hope of Craighead (p 387) considered that the compatibility of the provision was still open to argument. Lord Hobhouse of Woodborough (p 397) considered that there might be a justification for the terms in which the legislation was drafted even though on its face it appeared to be contrary to the Convention. Parliament paid attention to these observations: when section 16A was re-enacted as section 57 of the Terrorism Act 2000 it was provided (with reference to the defence now in subsection (2) and some other subsections) in section 118(2):
The section goes on to provide in subsection (5):
The defendant's appeal was allowed by the Court of Appeal on other grounds ( EWCA Crim 194) with which the House in large measure agreed. The Court of Appeal however read subsection (5) as imposing no more than an evidential burden on the defendant, and on this point (not determinative of the appeal) the House disagreed. In his leading opinion, with which the other members of the committee agreed, Lord Nicholls of Birkenhead (para 46) interpreted section 92(5) as imposing, on a conventional interpretation, a legal burden on the defendant. As such he accepted (para 47) that it prima facie derogated from the presumption of innocence. Therefore (para 48), taking account of Salabiaku and the balance to be struck between the public interest and the interests of the individual, it was for the state to justify the derogation and to show that the balance struck was reasonable. Identifying the requirements of a reasonable balance was not, he accepted (para 49), easy:
He continued, in paras 50-51:
He concluded (para 53) that there were compelling reasons why subsection 92(5) should place a legal burden on the defendant. These reasons included (para 52) the urgent international pressure, in the interest of consumers and traders alike, to restrain fraudulent trading in counterfeit goods, the framing of offences against section 92 as offences of "near absolute liability" and the dependence of the subsection (5) defence on facts within the defendant's own knowledge. The considerations which particularly weighed with him as compelling reasons were however (paras 52 and 53) that
Thus Lord Nicholls substantially agreed (para 54) with the Court of Appeal decision in R v S (Trade mark defence)  1 Cr App R 602, which made it unnecessary to consider the courts' interpretative obligation under section 3 of the 1998 Act, about which he had earlier voiced (para 46) some reservations.
Relying on this judgment, Mr Perry, for the Director of Public Prosecutions and the Attorney General, submitted in his printed case and (more tentatively) in argument that there was clearly a difference of emphasis between the approach of Lord Steyn in R v Lambert and that of Lord Nicholls in R v Johnstone, and that the latter was to be preferred. Mr Turner QC, for Mr Sheldrake, made a submission to the opposite effect, that the reasoning of the House in R v Johnstone should not be followed.
Director of Public Prosecutions v Sheldrake
In his submissions on behalf of Mr Sheldrake, Mr Turner QC relied on this passage, the ratio of which (he suggested) applied equally to section 5 of the 1988 Act, with which this appeal is concerned. Since the mischief aimed at by section 5(1)(b) is to prevent driving when unfit through drink, the likelihood of a person driving is (as the High Court held) the gravamen of the offence. The effect of section 5(2) is accordingly to impose on the defendant a burden to disprove an important ingredient of the offence which, if not disproved, will be presumed against him. Thus the presumption of innocence is seriously infringed.
Attorney General's Reference No 4 of 2002
In its judgment given on 21 March 2003 ( EWCA Crim 762,  3 WLR 1153, Latham LJ, Hunt and Hedley JJ) the Court of Appeal answered (1) that the ingredients of the offence were set out fully in section 11(1), and (2) that the defence in section 11(2) imposed a legal rather than an evidential burden and was compatible with article 6(2) of the Convention and would not, save perhaps in circumstances difficult to envisage in the abstract, infringe a person's rights under article 10. On application made by counsel for A, the Court of Appeal referred the Attorney General's questions to the House under section 36(3) of the 1972 Act.
Section 11(1), considered on its own, is a provision of extraordinary breadth. It would cover a person who joined an organisation when it was not a terrorist organisation or when, if it was, he did not know that it was. It would cover a person who joined an organisation when it was not proscribed or, if it was, he did not know that it was. It would cover a person who joined such an organisation as an immature juvenile. It would cover someone who joined such an organisation abroad in a country where it was not prosribed and came to this country ignorant that it was proscribed here (as illustrated by R v Hundal and Dhaliwal  EWCA Crim 389). It would cover a person who wished to dissociate himself from an organisation he had earlier joined, perhaps in good faith, but had no means of doing so, or no means of doing so which did not expose him to the risk of serious injury or assassination. If section 11(1) is read on its own, some of those liable to be convicted and punished for belonging to a proscribed organisation may be guilty of no conduct which could reasonably be regarded as blameworthy or such as should properly attract criminal sanctions. Mr Owen QC, for A, pointed out that no international convention directed to countering terrorism requires the criminalisation of nominal membership of a proscribed organisation; only a minority of states seek to penalise nominal membership; and Lord Lloyd of Berwick in the Report of his Inquiry into Legislation against Terrorism (Cm 3420, October 1996, paragraph 6.11) did not recommend that course.
(1) As shown in paras  and  above, a person who is innocent of any blameworthy or properly criminal conduct may fall within section 11(1). There would be a clear breach of the presumption of innocence, and a real risk of unfair conviction, if such persons could exonerate themselves only by establishing the defence provided on the balance of probabilities. It is the clear duty of the courts, entrusted to them by Parliament, to protect defendants against such a risk. It is relevant to note that a defendant who tried and failed to establish a defence under section 11(2) might in effect be convicted on the basis of conduct which was not criminal at the date of commission.
(2) While a defendant might reasonably be expected to show that the organisation was not proscribed on the last or only occasion on which he became a member or professed to be a member, so as to satisfy subsection (2)(a), it might well be all but impossible for him to show that he had not taken part in the activities of the organisation at any time while it was proscribed, so as to satisfy subsection (2)(b). Terrorist organisations do not generate minutes, records or documents on which he could rely. Other members would for obvious reasons be unlikely to come forward and testify on his behalf. If the defendant's involvement (like that of Hundal and Dhaliwa: see paragraph  above) had been abroad, any evidence might also be abroad and hard to adduce. While the defendant himself could assert that he had been inactive, his evidence might well be discounted as unreliable. A's own case is a good example. He arrived as a stowaway. He described himself on different occasions as Palestinian and also as Jordanian. An immigration adjudicator concluded that he was Moroccan. The judge, as already noted, thought he might well be a fantasist. He was not a person whose uncorroborated testimony would carry weight. Thus although section 11(2) preserves the rights of the defence, those rights would be very hard to exercise effectively.
(3) If section 11(2) were held to impose a legal burden, the court would retain a power to assess the evidence, on which it would have to exercise a judgment. But the subsection would provide no flexibility and there would be no room for the exercise of discretion. If the defendant failed to prove the matters specified in subsection (2), the court would have no choice but to convict him.
(4) The potential consequence for a defendant of failing to establish a subsection (2) defence is severe: imprisonment for up to ten years.
(5) While security considerations must always carry weight, they do not absolve member states from their duty to ensure that basic standards of fairness are observed.
(6) Little significance can be attached to the requirement in section 117 of the Act that the Director of Public Prosecutions give his consent to a prosecution (a matter mentioned by the Court of Appeal in para 42 of its judgment) for the reasons given by the Court of Appeal in para 91 of its judgment in Attorney General's Reference (No 1 of 2004)  EWCA Crim 1025.
LORD PHILLIPS OF WORTH MATRAVERS
LORD RODGER OF EARLSFERRY
So far as the Attorney General's Reference is concerned, it is not suggested that there was in fact any breach of article 6(1) or (2) at the trial, since, by agreement, the proceedings were conducted on the basis that section 11(2) of the Terrorism Act 2000 was to be read as imposing on A an evidential, as opposed to a persuasive, burden. The contention for A is, however, that article 6(2) would have been infringed if section 11(2) had been interpreted as requiring him to prove the matters in question on a balance of probabilities - failing which, he would have been convicted of the offence in terms of section 11(1).
In considering the arguments advanced by counsel, it is worth remembering that these provisions represent no innovation in the law. Being a member of, or professing to belong to, a proscribed organisation was first made an offence under primary legislation in section 19 of the Northern Ireland (Emergency Provisions) Act 1973 and a measure to the same effect has been part of the law of Great Britain since the Prevention of Terrorism (Temporary Provisions) Act 1974. Section 1(1) and (6) of that Act provided inter alia:
The provisions in the two Acts are drafted differently. In the 2000 Act section 11(2) makes it a defence for the defendant to prove the matters in question, whereas in the 1974 Act section 11(6) says that a person belonging to a proscribed organisation shall not be guilty of an offence if he shows the matters in question. I doubt whether the draftsman intended any change in the operation of the provision but, in any event, the current provision is clearly to be regarded as a defence.
In the present case, for the reasons given by Lord Bingham, the criminalisation of professing to belong to a proscribed organisation does not violate any article 10 Convention right of the defendant. Similarly, the nature of the offence created by section 11(1) does not engage any right of the defendant under article 6, since that article is concerned with the fair trial of offences and not with the substance of the offences themselves. I am accordingly satisfied that, given the murderous aims of the proscribed organisations, it is open to the legislature, without in any way infringing a defendant's rights under the Convention, to make it a punishable offence for someone simply to be a member of, or to profess to belong to, such an organisation in the United Kingdom.
The Court noted that the presumption in article 392(1) did not mean that the defendant is left entirely without any means of defence. The competent court trying the offence may accord him the benefit of extenuating circumstances, and it must acquit him if he succeeds in establishing a case of force majeure. The Court went on, in para 29, to refer with approval to a judgment of the Paris Court of Appeal, holding that the specific character of customs offences does not deprive the offender of every possibility of defence since "the person in possession may exculpate himself by establishing a case of force majeure" ("le détenteur peut s'exonérer par la preuve de la force majeure").
He had been arrested at 8.40 pm on 9 February 2001, and it was established that at the average rate of elimination of alcohol that proportion would not have fallen below the limit until approximately 11.40 am the following day. Mr Sheldrake gave evidence that he had made efforts to arrange transport home by other means, but the justices held that he had not established on the balance of probabilities that there was no likelihood of his driving his vehicle.
The defence will apply in a variety of situations. The organisation concerned may be started in the United Kingdom with terrorist objectives ab initio, and the defendant, knowing its objectives, may have become a member before the Secretary of State became aware of its existence and proscribed it. He may have joined it in another jurisdiction when it was not proscribed in this country, then found subsequently that it became the subject of a proscription order under section 3(3)(a) of the 2000 Act. Alternatively, the organisation may, as has occurred in Northern Ireland, have started out as one with lawful objectives, but have later evolved into one concerned with terrorism.
(a) It is not easy to determine what is to be proved and by whom in respect of the date when the defendant joined the organisation. If he raises the issue, it would hardly be appropriate for the prosecution to have to prove that he became a member before the date on which it was proscribed. The only sensible answer must be that the defendant has to establish this fact, but it would be a strange procedure if the onus then reverted to the prosecution to prove that he had taken part in the activities of the organisation.
(b) If subsection (2) were construed as imposing only an evidential burden, the prosecution, once the issue is raised, would have to prove a matter dehors the elements of the offence specified in subsection (1), that the defendant was not only a member but had taken part in activities of the organisation. As I stated when considering Mr Sheldrake's appeal at para 83 of this opinion, I would regard that as a material factor in determining whether it is fair and reasonable and proportionate to interpret the provision in subsection (2) as imposing a persuasive burden upon the defendant.
(c) The prosecution may in many cases face substantial difficulties in proving that the defendant had taken part in activities of the organisation after it was proscribed.
(d) New organisations not infrequently spring up as offshoots of existing terrorist organisations, but with different names (for a summary of the history of such developments in the case of the Irish Republican Army see R v Z  NICA 23, paras 28 and 29). They may not all fall within section 3(1)(b) as organisations operating under the same name as one listed in Schedule 2 to the 2000 Act, which the court held to apply in respect of the Real IRA. One could see this giving rise to difficulties of proof for the prosecution if the burden on defendants under section 11(2) is held to be evidential only.