|Judgments - Regina v. Director of Public Prosecutions Ex Parte Kebeline and Others (On Appeal From a Divisional Court of The Queens Bench Division)
The third category of provisions which fall within the general description of reverse onus clauses consists of provisions which relate to an exemption or proviso which the accused must establish if he wishes to avoid conviction but is not an essential element of the offence. In Reg. v. Edwards  Q.B. 27 a provision of this kind was held to impose a burden of proof on the defendant to establish on the balance of probabilities that he had a licence for the sale of the intoxicating liquor. Lawton L.J. said, at pp. 39-40, when giving the judgment of the court ,that this exception to the fundamental rule that the prosecution must prove every element of the offence charged was limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with special qualifications or with the licence or permission of specified authorities. In Reg. v. Hunt (Richard)  A.C. 352, 375 Lord Griffiths emphasised the special nature of these provisions when he said that he had little doubt that the occasions upon which a statute will be construed as imposing a burden of proof upon a defendant which did not fall within this formulation are likely to be exceedingly rare. These provisions may or may not violate the presumption of innocence, depending on the circumstances.
Two further important points need to be made about this classification. The first is that this is not an exact science. The provisions vary so widely in their detail as to what the prosecutor must prove before the onus shifts, and their effect on the presumption of innocence depends so much on circumstances. These matters may not be capable of being fully assessed until after the trial. The best that can be done, by way of a preliminary examination, is to see whether the legislative technique which has been adopted imposes a persuasive or merely an evidential burden, whether it is mandatory or discretionary and whether it relates to an essential element of the offence or merely to an exception or proviso. The second is that, even if the conclusion is reached that prima facie the provision breaches the presumption of innocence, that will not lead inevitably to the conclusion that the provision is incompatible with article 6(2) of the Convention. The European jurisprudence, which I shall examine later, shows that other factors need to be brought into consideration at this stage. In my opinion, for reasons which I shall explain, the Divisional Court did not attach sufficient weight to these factors.
The Discretionary Area of Judgment
This brings me to another matter on which there was a consensus between counsel and which, I believe, needs now to be judicially recognised. The doctrine of the "margin of appreciation" is a familiar part of the jurisprudence of the European Court of Human Rights. The European Court has acknowledged that, by reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed to evaluate local needs and conditions than an international court:Buckley v. United Kingdom (1996) 23 E.H.R.R. 101, 129, paras. 74-75. Although this means that, as the European Court explained in Handyside v. United Kingdom (1976) 1 E.H.R.R. 737, 753, para. 48, "the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights", it goes hand in hand with a European supervision. The extent of this supervision will vary according to such factors as the nature of the Convention right in issue, the importance of that right for the individual and the nature of the activities involved in the case.
This doctrine is an integral part of the supervisory jurisdiction which is exercised over state conduct by the international court. By conceding a margin of appreciation to each national system, the court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of the national courts also the Convention should be seen as an expression of fundamental principles rather than as a set of mere rules. The questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality.
In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention. This point is well made at p. 74, para. 3.21 of Human Rights Law and Practice (Butterworths, 1999), of which Lord Lester of Herne Hill Q.C. and Mr David Pannick Q.C. are the General Editors, where the area in which these choices may arise is conveniently and appropriately described as the "discretionary area of judgment." It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection. But even where the right is stated in terms which are unqualified the courts will need to bear in mind the jurisprudence of the European Court which recognises that due account should be taken of the special nature of terrorist crime and the threat which it poses to a democratic society: Murray v. United Kingdom (1994) 19 E.H.R.R. 193, 222, para. 47.
Section 16A of the 1989 Act
Section 16A creates an offence which is described in the side note as possession of articles for suspected terrorist purposes. It is made up of six subsections, of which those which are relevant to the issues raised by article 6(2) of the Convention are subsections (1), (3) and (4). Subsection (1) creates the offence. It is based on reasonable suspicion. All the prosecution has to do is prove that the accused was in possession of the article in circumstances which give rise to a reasonable suspicion that they were in his possession for a purpose connected with terrorism. Although the essence of the offence is the possession of articles for a purpose connected with terrorism, the prosecution does not have to prove that that was in fact the purpose. There is therefore a presumption that this was the purpose. It takes effect once circumstances giving rise to a reasonable suspicion have been proved.
The severity of this approach is tempered by subsection (3). It provides that it is a defence for the accused to prove that the article was not in his possession for a terrorist purpose. Nothing is said expressly about the burden or standard of proof. But Mr Pannick accepted that, according to the ordinary principles of construction, this provision has the effect of transferring the burden of proof as to the purpose for which the article was in his possession to the accused. Then there is subsection (4). This deals with the question of possession. In the ordinary case knowledge and control are essential elements which the prosecutor must prove in order to show that the accused was in possession of an article. This subsection enables a court to find these facts to been established by evidence that the accused and the article were both present in any premises or that the article was in premises of which he was the occupier or habitual user, unless he proves that he did not know of its presence in the premises or, if he did know, that he had no control over it. The burden of proving lack of knowledge or control is on the accused. But the court is told only that it "may" draw the inference, not that it must do so. In view of the width of the meaning which is given to the expression "premises", the question whether it would be right for the court to rely on the evidence described in subsection (4) as sufficient evidence will obviously vary according to the circumstances.
According to the classification which I have outlined, subsection (3) of section 16A imposes a persuasive burden of proof on the accused, on a balance of probabilities, that the article was not in his possession for a purpose connected with terrorism. If that burden is not discharged, or the accused elects not to undertake it, subsection (1) contains a mandatory presumption that the article was in his possession for a purpose connected with terrorism which is applied if the prosecutor proves that it was in his possession in circumstances giving rise to a reasonable suspicion that it was in his possession for that purpose. Subsection (4) imposes a persuasive burden of proof on the accused that he did not know that the article was in the premises or, if he did, that he had no control over it. If that burden is not discharged, or the accused elects not to undertake it, the subsection contains a discretionary presumption that he was in possession of the article.
Lord Lester Q.C. for the respondents recognised the discretionary nature of the persuasive burden in subsection (4) of section 16A. He also recognised the force of the decision of the Court of Appeal in Northern Ireland in Reg. v. Killen  N.I. 220, in which it was held that an identical provision in section 7(1) of the Northern Ireland (Emergency Provisions) Act 1973 placing an onus on the accused to disprove his knowledge of possession should not be used unless, having done so, the court would be left satisfied beyond reasonable doubt of the guilt of the accused. So he did not press the argument which was advanced in the Divisional Court that subsection (4) was in breach of the presumption of innocence. Mr Weatherup Q.C. explained that in practice the application of section 7(1) of the 1973 Act was treated as a discretionary matter in Northern Ireland, with the result that it was not always necessary for the accused to provide an explanation in reply to the Crown case. But Lord Lester maintained his argument that that presumption was breached by subsections (1) and (3). In the Divsional Court Lord Bingham C.J.  3 W.L.R. 175, 190 said that this section, and section 16B which is no longer in issue as the Director has discontinued proceedings against the fourth named respondent, undermined "in a blatant and obvious way" the presumption of innocence.
These techniques are however not unique to section 16A of the 1989 Act as amended. Section 16B(1) of that Act contains a provision which imposes the persuasive burden of proof of lawful authority or reasonable excuse on the accused. But there are a substantial number of other statutory offences triable in the Crown Court which place a persuasive burden of proof on the accused, coupled with a mandatory presumption of guilt if it is not discharged, in circumstances which fall outside the scope of the exception recognised in Reg. v. Edwards  Q.B. 27 and Reg. v. Hunt (Richard)  A.C. 352. Your Lordships were provided with an agreed list of these provisions. They comprise the Prevention of Corruption Act 1916, section 2; the Sexual Offences Act 1956, section 30(2); the Obscene Publications Act 1959, section 2(5); the Obscene Publications Act 1964, section 1(3); the Misuse of Drugs Act 1971, section 28; the Public Order Act 1986, sections 18(4), 19(2), 20(2), 21(3), 22(3)-(5) and 23(3); the Criminal Justice Act 1988, section 93D(6); the Prevention of Terrorism (Temporary Provisions) Act 1989, sections 10(2)-(3), 11(2), 16A(3), 16B(1) and 17(3)(a) and (3A)(a); the Official Secrets Act 1989, sections 1(5), 2(3), 3(4) and 4(4)-(5); and the Drug Trafficking Act 1994, sections 53(6) and 58(2)(a). To this list there may be added the Explosive Substances Act 1883, section 4(1): see Reg. v. Fegan  N.I. 80; Reg. v. Berry  A.C. 246. As Lord MacDermott L.C.J. said in Reg. v. Fegan at p. 82, the legislative problem which these provisions seek to address is how to curb a grave evil which postulates a guilty mind or mental element on the part of the offender, when proof of that guilty mind or mental element is likely to be a matter of inherent difficulty.
Mr Pannick submitted that decisions of the European Commission of Human Rights and of the European Court of Human Rights showed that article 6(2) was not seen as containing an absolute prohibition on statutory provisions which imposed a burden of proof on the accused, and that the Convention did not permit the court to review the legality of national legislation in the abstract but only with reference to particular cases after the proceedings are complete. Lord Bingham C.J. recognised in the Divisional Court that there was a measure of truth in this argument:  3 W.L.R. 175, 189D. But he rejected it, on the view that the court was not precluded from considering the question of compatibility before the completion of the trial and that if, properly construed, a provision of domestic legislation truly infringes the presumption of innocence, any conviction based on that provision is likely, judged by the yardstick of the Convention, to be unsafe: p. 190A. Laws L.J. rejected it for similar reasons, on the ground that the compatibility or otherwise of the impugned legislation with article 6(2) fell to be judged by reference to the statutory provisions irrespective of the facts of the particular case: p. 201G.
I agree with both Lord Bingham C.J. and Laws L.J. that the national court is not precluded from considering the issue of compatibility before completion of the trial. There will, of course, be no question about this once the Human Rights Act 1998 is brought into force, and issues of compatibility are already being raised before trial in the Scottish courts under the Scotland Act 1998. In principle I can see no reason why, in a clear case where the facts of the case are of no importance, a decision that a provision is incompatible should not be capable of being taken at a very early stage. I do however, with great respect, part company with them on the question whether a finding that section 16A is incompatible with article 6(2) is inevitable.
Lord Lester's concession, in the light of the decision in Reg. v. Killen, that the discretionary presumption in subsection (4) could not reasonably be objected to at this stage deprives the Divisional Court's reasoning of some of its force. This leaves the more powerful objections to the provisions of subsections (1) and (3). But I think that even in their case there are good reasons for thinking that they may not be as damaging to the presumption of innocence as might at first sight appear. There is also the question of balance, as to the interests of the individual as against those of society. The Convention jurisprudence and that which is to be found from cases decided in other jurisdictions suggests that account may legitimately be taken, in striking the right balance, of the problems which the legislation was designed to address.
In Salabiaku v. France (1988) 13 E.H.R.R 379, the Court was concerned with an article in the Customs Code dealing with the smuggling of prohibited goods. Where possession of prohibited goods was established, the person was deemed liable for the offence of smuggling. Read strictly, the provision appeared to lay down an irrebutable presumption. The code did not provide expressly for any defence. But the Court held that there was no failure to comply with article 6(2), because in practice the courts were careful not to resort automatically to the presumption but exercised their power of assessment in the light of all the evidence. At p. 388, para. 28 the Court gave this guidance:
As a matter of general principle therefore a fair balance must be struck between the demands of the general interest of the community and the protection of the fundamental rights of the individual: see also Sporrong and Lönnroth v. Sweden (1982) 5 E.H.R.R. 35, 52, para. 69.
The guidance which was given in Salabiaku was applied by the Commission in H. v. United Kingdom, Application No 15023/89, in which the complaint was that the burden on the accused in criminal proceedings to prove insanity on the balance of probabilities was contrary to the presumption of innocence and in violation of article 6(2); and in Bates v. United Kingdom, Application No. 26280/95, in which the complaint was that article 6(2) had been violated by the presumption of fact in section 5(5) of the Dangerous Dogs Act 1991 by which it is to be presumed that the dog is one to which section 1 of that Act applies unless the contrary is shown by the accused. In the Bates case the Commission held that section 5(5) fell within reasonable limits, even in the light of what was at stake for the applicant, given the opportunity expressly provided to the defence to rebut the presumption of fact and that section 5(5) was applied in a manner compatible with the presumption of innocence. The cases show that, although article 6(2) is in absolute terms, it is not regarded as imposing an absolute prohibition on reverse onus clauses, whether they be evidential (presumptions of fact) or persuasive (presumptions of law). In each case the question will be whether the presumption is within reasonable limits.
Reference was made to cases from various jurisdictions in the Commonwealth, including the decisions of the South African Constitutional Court in State v. Zuma  1 L.R.C. 145 and State v. Mbatha  2 L.R.C. 208 and decisions of the Supreme Court of Canada. The Canadian jurisprudence is to be found primarily in the judgments of Dickson C.J.C. in Reg. v. Oakes (1986) 26 D.L.R. (4th) 200 and Reg. v. Whyte (1988) 51 D.L.R. (4th) 481. These judgments were carefully analysed by Lord Woolf in Attorney-General of Hong Kong v. Lee Kwong-kut  A.C. 951. As Lord Woolf has explained, at pp. 970-971, the Canadian approach when applying the Canadian Charter of Rights and Freedoms is to examine the matter in two stages: to see whether the provision in question has violated the presumption of innocence in section 11(d) of the Charter, and then to apply the limitation set out in section 1 of the Charter. Section 1 states that the rights and freedoms which it guarantees are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". In Reg. v. Oakes at p. 223 Dickson C.J.C. said that it was highly desirable to keep these two sections analytically distinct. In the result a strict approach is adopted to the question as to whether these has been a contravention of section 11(d). A degree of flexibility is applied at the second stage.
In the present case, as I have said, Lord Bingham C.J. reached the conclusion that section 16A undermined "in a blatant and obvious way" the presumption of innocence. In support of this view he quoted a passage from Dickson C.J.C.'s judgment in Reg. v. Whyte at p. 493 where he was dealing with the tests to be applied at the first stage. But he did not go on to examine the issues which would have been relevant, under the Canadian jurisprudence, at the second stage. This omission is important because, as Lord Woolf observed in Lee Kwong-kut, the Canadian courts, applying the two stage approach, tend to come to the same conclusion as would be reached in other jurisdictions. In my opinion the criticisms which can be made of section 16A in the light of the discussion by Dickson C.J.C. of the tests to be applied to determine whether the provision is in breach of the presumption of innocence do not complete the process of examination which must be conducted in order to determine whether that section violates article 6(2) of the Convention. The better approach to the Convention, as Lord Woolf said in the context of the Hong Kong Bill of Rights, will be to avoid the somewhat complex two stage approach which is involved in the Canadian process of reasoning. But he gave this further guidance at pp. 972-973
Mr Pannick suggested that in considering where the balance lies it may be useful to consider the following questions: (1) what does the prosecution have to prove in order to transfer the onus to the defence? (2) what is the burden on the accused - does it relate to something which is likely to be difficult for him to prove, or does it relate to something which is likely to be within his knowledge or (I would add) to which he readily has access? (3) what is the nature of the threat faced by society which the provision is designed to combat? It seems to me that these questions provide a convenient way of breaking down the broad issue of balance into its essential components, and I would adopt them for the purpose of pursuing the argument as far as it is proper to go in the present case.
Striking the balance
Section 16A(1) sets out what the prosecution must prove. It was suggested by Lord Lester that the onus on the prosecution was a light one, because all that had to be established was a "reasonable suspicion" that the article was in the accused's possession for a purpose connected with terrorism. He referred to Lord Devlin's observation in Hussien v. Chong Fook Kam  A.C. 942, 948:
But that was an action for false imprisonment, in which the question was whether a police officer was entitled to arrest the respondents without warrant on the ground that he had a reasonable suspicion that they had committed an offence. Lord Devlin was careful to explain the distinction between reasonable suspicion at the time of arrest and prima facie proof at the trial:
What subsection (1) requires is prima facie proof, not mere suspicion. The prosecution must lead evidence which is sufficient to prove beyond reasonable doubt (a) that the accused had the article in his possession and (b) that it was in his possession in circumstances giving rise to a reasonable suspicion that it was in his possession for a purpose connected with terrorism. Possession may be established with the benefit of the presumption in subsection (4), but the onus is on the prosecution to lead sufficient evidence to establish beyond reasonable doubt that the accused was in possession of the article at the time. Subsection (1) allows for a conviction on reasonable suspicion, but the onus is on the prosecution to lead sufficient evidence to establish beyond reasonable doubt that the circumstances are such that the inference of connection with terrorism is justified. It should not be thought that proof to this standard will be a formality.
Section 16A(3) sets out the defence. The onus is on the accused, but at least it can be said that the matter is not left to inference or to the discretion of the trial court. This is a defence which is provided for expressly by the statute. It has to be seen in the context of subsection (4). If the accused can show that he did not know that the article was in the premises or that he had no control over it, he can by giving evidence to that effect deprive the prosecution of the presumption that he was in possession of the article. He will only need to rely on subsection (3) if he was in possession of the article and the circumstances are such as to give rise to the reasonable suspicion mentioned in subsection (1). A sound judgment as to whether the burden which he has to discharge is an unreasonable one is unlikely to be possible until the facts are known. It is not immediately obvious that it would be imposing an unreasonable burden on an accused who was in possession of articles from which an inference of involvement in terrorism could be drawn to provide an explanation for his possession of them which would displace that inference. Account would have to be taken of the nature of the incriminating circumstances and the facilities which were available to the accused to obtain the necessary evidence. It would be one thing if there was good reason to think that the accused had easy access to the facts, quite another if access to them was very difficult.
Then there is the nature of the threat which terrorism poses to a free and democratic society. It seeks to achieve its ends by violence and intimidation. It is often indiscriminate in its effects, and sophisticated methods are used to avoid detection both before and after the event. Society has a strong interest in preventing acts of terrorism before they are perpetrated - to spare the lives of innocent people and to avoid the massive damage and dislocation to ordinary life which may follow from explosions which destroy or damage property. Section 16A is designed to achieve that end. It would not be appropriate for us in this case to attempt to resolve the difficult question whether the balance between the needs of society and the presumption of innocence has been struck in the right place. But it seems to me that this is a question which is still open to argument.
Had it not been for the fact that the Director's consent is not amenable to judicial review, I would have been inclined to think that the problem of compatibility which is raised by this case would have to await a decision after trial. That also is the consequence of the view which I have reached that, on other grounds, these applications must be dismissed.
LORD HOBHOUSE OF WOODBOROUGH