Human rights law

By Stephen Grosz, Bindman & Partners, London

The presumption of innocence faces statutory interferenceR v Lambert & ors (The Times, 5 September 2000)

The judgment of the Court of Appeal in this case, delivered on the last day of last term, gives some initial indications of the likely judicial approach to cases arising under the Human Rights Act 1998.

The appellants contended that the presumption of innocence under art.6(2) of the convention was violated by the current interpretation of the statutory defence to possession of a controlled drug under ss 5 and 28 of the Misuse of Drugs Act 1971.

Their argument was that the relevant provisions placed on the defendant the burden of disproving elements of the offence - knowledge of the nature of the contents of a container.

In their submission, art.6(2) required that only the evidential burden could be placed on the defendant.

Once he had raised the issue as to whether he knew the nature of the contents of a container in his possession, the prosecution still had to prove that he did know their nature.

The court rejected the argument, but made important statements along the way.

The Court of Appeal first considered whether there was a conflict with art.6.

It accepted that courts have to adopt a 'broad and purposive approach not a rigid approach to the convention, an approach which will make the convention a valuable protection of the fundamental rights of individual members of the public as well as society as a whole'.

This approach to construction is to be welcomed.

The court also recognised that unlike some constitutions, the convention contains no relevant general clause which would allow courts or states to place limitations on apparently unqualified convention rights.

However, the court went on to explain that when it is considering the structure of statutory offences and defences to them '...the court does not have to ignore the wider interests of the public in applying those provisions of the Convention which have no express limitation'.

In its view, therefore, the difficulties of preventing illegal drugs traffic could be taken into account when assessing whether the provisions of the Misuse of Drugs Act violated art.6.

The court referred to Salabiaku v France (1991) 13 EHRR 379, in which the European Court of Human Rights had held that art.6(2) requires States '...to confine [presumptions of law or fact] within reasonable limits which take account of the importance of what is at stake and maintain the rights of the defence.'

It followed, according to the court, that art.6 did not rule out entirely a presumption that the defendant knew the nature of the contents of a container which turned out to be controlled drugs.

The question was whether such a presumption was reasonable.

In approaching its review of the reasonableness, the court noted that 'legislation is passed by a democratically elected parliament and therefore the courts under the convention are entitled and should, as a matter of constitutional principle, pay a degree of deference to the view of parliament as to what is in the interest of the public generally while upholding the rights of the individual under the convention'.

The court considered the 'clear social objective in discouraging trading both in hard drugs and the softer drugs'.

It concluded that the method used by the Misuse of Drugs Act 1971 was objectively justified and not disproportionate to the aim pursued.

The judgment is disappointingly light on reasoning for such important conclusions.

The Court of Appeal's allusion to deference to parliamentary legislation will set a minimalist standard of judicial scrutiny of statutory interference with convention rights.

It is likely that the court, or the House of Lords, will be called upon to explain its approach in future cases.

Echoes of this hands-off approach are to be found in R v Secretary of State for Health, ex parte Lally (The Times, 26 October 2000), in which Scott Baker J ruled that the Health Secretary enjoyed a wide margin of discretion when balancing the family visiting rights of certain categories of convicted mental patients with the rights of children to be protected from harm.

Secondly, it is a pity that the Court of Appeal did not refer in its judgment to the approach of the ECHR in Saunders v United Kingdom (1997) 23 EHRR 313.

The government had relied on the complexity of corporate fraud trials and the public interest in its investigation and punishment as reasons for departing from the basic principles of fair procedure.

For the Strasbourg court the public interest could not be invoked to justify departure from 'the general requirements of fairness contained in art.6', which '...

apply to criminal proceedings in respect of all types of criminal offences without distinction, from the most simple to the most complex.'

The third interesting aspect is retrospectivity.

The Court of Appeal gave judgment on the last day of last term, before the Human Rights Act came in to force.

However, the court accepted that it should treat the Act as already in force.

S.22(4) provides that, after 2 October 2000, a person may rely on the Act in proceedings instigated by or on behalf of a public authority even if the contravention on convention rights on which he relies took place before commencement.

The court recognised that it would have been bound to apply the Act if it had reserved judgment until after commencement, and accordingly agreed to give judgment as if the Act were in force.

But the court went on to make clear that it should not be assumed that non-compliance with the convention will be regarded as a reason for extending time for appealing in order to re-open pre-HRA convictions.

More encouraging is the judgment in R v Francom & others (The Times, 24 October 2000), in which the Court of Appeal considered the relationship between the test of unsafeness of a conviction applied on appeal and the test of unfairness of the trial arising from art.6 of the convention.

In Condron v United Kingdom, the ECHR had criticised the approach of the Court of Appeal to the question whether a conviction was safe, reasoning that since juries give no reasons for their decisions, it was impossible to speculate whether a misdirection had resulted in an unsafe conviction.

The Strasbourg court had said: '...the question whether or not the rights of defence guaranteed to an accused under art.6 of the convention were secured in any given case cannot be assimilated to a finding that his conviction was safe in the absence of any enquiry into the issue of fairness.' In Francom, the Court of Appeal sought to meet this criticism.

It approached the failure to give a direction in that case by asking whether the omission had in fact achieved unfairness or impaired the safety of the conviction but without drawing any distinction between the two.

And the court concluded that before upholding the convictions, it would have to be satisfied that no reasonable jury could have come to a different conclusion if it had been properly directed.

In other words, it appears that once an appellant has shown an apparent breach of his right to a fair trial under art.6, the conviction would be considered unsafe unless the Crown could show that the breach could have made no difference.

Stephen Grosz is a partner in London solicitors' firm Bindman & Partners