Criminal

Statutory defence - proof by defendant on balance of probability - relevance of convention right enshrining presumption of innocenceR v Lambert: HL (Lord Slynn of Hadley, Lord Steyn, Lord Hope of Craighead, Lord Clyde and Lord Hutton): 5 July 2001The defendant's defence under section 28 of the Misuse of Drugs Act 1971 to a charge under section 5(3) of possessing a class A controlled drug with intent to supply was that he had not known or suspected or had reason to suspect that a bag he had been carrying contained the drug.The judge directed the jury that the defendant had to establish that defence on the balance of probability.

The defendant was convicted.He appealed against conviction on the ground that the judge's direction conflicted with the presumption of innocence in article 6(2) of the Convention for the Protection of Human Rights.Although the Human Rights Act 1998 was not in force at the time of the appeal the Court of Appeal (Criminal Division) [2000] Gazette, 14 September, 36; [2001] 2 WLR 211 proceeded on the basis that it was but dismissed the appeal.

The defendant appealed.Tim Owen QC, Keir Starmer and Rebecca Trowler (instructed by Birds Solicitors) for the defendant; David Perry and Duncan Penny (instructed by Crown Prosecution Service, Ludgate Hill) for the Crown.Held, dismissing the appeal, that (Lord Steyn dissenting) the relevant provisions of the 1998 Act had not been intended by Parliament to apply to things happening before they came into force; that, moreover, section 28(2)(3) of the 1971 Act could be read by application of section 3(1) of the 1998 Act as imposing only an evidential burden on the accused and so compatibly with the presumption of innocence in article 6(2) of the convention; and that if the judge had so directed the jury they would have reached the same result.

(WLR)