Judgments - Regina v. Director of Public Prosecutions Ex Parte Kebeline and Others (On Appeal From a Divisional Court of The Queens Bench Division)

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    If s.16A is, on the existing principles of statutory construction compatible with the Convention, the defendants' ground for applying for judicial review falls away. The point is fully arguable within the criminal trial and any resultant appeal and the Crown Court or the Court of Appeal will give effect to s.16A so construed. If, on the other hand, s.16A is irretrievably incompatible, as the Divisional Court held that it was, the defendants' application again cannot succeed. Whether the Human Rights Act has come into force or not the position remains the same. The incompatibility does not deprive s.16A of its force and validity nor does it affect the criminal trial or any convictions resulting from the application of s.16A. The defendants' guilt or innocence has to be determined in accordance with s.16A. All this Lord Lester had to and did accept.

    Lord Lester submitted that once the Human Rights Act comes into force, an additional and more potent principle of statutory construction will come into play. S.3(1) of the Act provides:

    "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."

    He submits that this provision will enable s.16A to be construed so as not to impose any burden of proof upon the defendants. This, he submits, will retrospectively render invalid any conviction based upon a direction to the jury that s.16A(3) does impose such a burden and that any convictions would then have to be set aside.

    Whether this argument materially advances his submission is clearly open to contrary argument. Neither s.6 nor s.7 is retrospective; nor is, for that matter, s.3, as Lord Lester's argument recognises. It is therefore difficult to maintain that the prosecution and trial of the defendants in accordance with s.16A has involved any unlawful conduct or will do so or will provide them with any ground for having any convictions resulting from their trial quashed.

    There are further arguable points: whether s.16A is incompatible with the Convention and whether all the defendants would properly be described as "victims" of any breach of the Convention. That these are arguable points can be illustrated by reference to the case of Bates v. United Kingdom (Application 26280/95) where the Commission declined to admit a complaint that s.5(5) of the Dangerous Dogs Act 1991 infringed the Convention even though it provided that "if in any proceedings it is alleged by the prosecution that a dog is one to which [the Act] applies, it shall be presumed that it is such a dog unless the contrary is shown by the accused by such evidence as the court considers sufficient; and . . . he has given . . .notice of his intention to do so ..." This made the mere allegation suffice to impose on the defendant in a criminal trial the burden of disproving the allegation. He was guilty unless he proved his innocence; he might be convicted on the civil burden of proof even though the court was not sure that he might not be innocent. However the Commission following earlier decisions of the Court in Salabiaku (A.141-A) and Pham Hoang (A.243) did not regard the provision as objectionable. The provision was of a type that fell within reasonable limits. It gave the defendant an opportunity to adduce evidence to disprove the allegation. The defendant had failed at his trial to take advantage of that opportunity.

    This case and other similar cases decided under the Convention show that it is necessary to examine each case on its merits. There may be a justification for the terms in which the legislation is drafted even though on its face it would appear to be contrary to the Convention. Similarly, it is necessary to examine whether the relevant provision has in fact resulted in an injustice to the complainant. This last point ties in with the use in s.7(1) of the Human Rights Act of the term "victim". Criminal statutes which in certain circumstances partially reverse the burden of proof are not uncommon nor are they confined to the United Kingdom. The judgments and decisions of the European Court of Human Rights and the Commission (account of which must be taken under s.2 of the Act) show that they are not necessarily incompatible with the Convention. Such a need to look beyond the bare words of the statute is also borne out by what Lord Woolf said in Lee Kwong-kut [1993] A.C. 951, 969 concerning the identification of the essential criminality which the prosecution must prove and the justification for requiring the defendant to prove that he comes within an exception to it. These are difficult concepts and, indeed, his approach may have been more stringent than is required under the European Convention. For myself, I am not presently persuaded that the approach advocated by Professor Glanville Williams in his article at 1988 C.L.J.261 is the right one. Similarly there are clearly arguable questions as to the breadth to be ascribed to the construction of statutes which will be required of the courts by s.3(1).

    These are not matters which it is necessary or proper to enter upon on the present appeal. If they need at some later stage, in the Crown Court or elsewhere, to be decided in relation to these defendants or any of them under s.16A, that is the time at which they should be decided. The position is not as clear cut as the Divisional Court seem to have thought nor is it right that these proceedings by way of the attempted judicial review of the Director's conduct should be used as a vehicle for their decision now.

    I agree that the Appeal should be allowed as proposed by your Lordships.


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