Crime

Statutory defence - defendant required to prove specified facts - not unlawfulR v Lambert; R v Ali; R v Jordan: CA (Lord Woolf CJ, Rougier and Bell JJ): 31 July 2000

In the first case the defendant was charged with possession of a class A drug with intent to supply, contrary to s.5(3) of the Misuse of Drugs Act 1971.

In his defence he relied on s.28, arguing that he had neither known, nor suspected, nor had reason to suspect the nature of the contents of the bag in which the drugs had been found.

He was convicted.

In the second and third cases the defendants were charged with murder.

They contended that they should be found not guilty of murder but guilty of manslaughter by reason of diminished responsibility under s.2(2) of the Homicide Act 1957.

They were convicted of murder.

The defendants appealed on the ground that s.2(2) of the 1957 Act and ss.5(4) and 28 of the 1971 Act, under which they had had to prove certain specified facts, were incompatible with the requirement in art.

6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd.

8969), as incorporated into English law by the Human Rights Act 1998, that a defendant should be presumed innocent until proved guilty.

Tim Owen QC and Rebecca Trowler (assigned by the Registrar of Criminal Appeals) for Lambert.

Ian Macdonald QC and Rajiv Menon (assigned by the Registrar of Criminal Appeals) for Ali and Jordan.

John Hedgecoe (instructed by the Crown Prosecution Service, Warrington), Alan Conrad QC and Zoe Nield (instructed by the CPS, Manchester) and Michael Worsley QC and David Perry (instructed by the CPS, Ludgate Hill) for the Crown.

Held, dismissing the appeals, that the Human Rights Act 1998 could have a significant effect on statutory provisions purporting to depart from the general rule that the burden of proof should be on the prosecution; that if a defendant was being required to prove an essential of an offence that could be difficult to justify but if he was merely being required to establish a special defence or exception that was less objectionable; that the courts should, as a matter of principle, pay a degree of deference to Parliament's view as to what was in the interest of the public generally, while upholding the rights of the individual under the Convention; that if a defendant did not seek to rely on s.2 of the 1957 Act he would not be required to prove anything; that whether s.2 was treated as creating a defence, an exception, or as dealing with the capacity to commit the offence of murder, it did not contravene art.

6; that ss.5(4) and 28 of the 1971 Act did not impose additional ingredients which had to be proved to complete the offence of possession of drugs but a way of avoiding liability for what would otherwise be an offence; that in the case of drugs there was an objective justification for those provisions and they were not disproportionate; and that, accordingly, ss.5(4) and 28 did not contravene art.

6 either.

(WLR).