House of Lords
|Session 2001- 02
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|Judgments - Regina v. Lambert (On Appeal From The Court of Appeal (Criminal Division))
HOUSE OF LORDS
Lord Slynn of Hadley Lord Steyn Lord Hope of Craighead Lord Clyde Lord Hutton
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))
ON 5 JULY 2001
 UKHL 37
LORD SLYNN OF HADLEY
1. On 9 April 1999 the appellant was convicted of possession of a controlled drug, cocaine, with intent to supply, contrary to section 5 of the Misuse of Drugs Act 1971 and was sentenced to seven years imprisonment. He relied on section 28(3)(b)(i) of that Act asserting that he did not believe or suspect, or have reason to suspect that the bag which he carried contained a controlled drug and in particular cocaine. The judge directed the jury in accordance with what was accepted to be the law at the time, that the prosecution had to prove only that he had and knew that he had, the bag in his possession and that the bag contained a controlled drug. To establish the defence under section 28 (3) he had to prove on the balance of probabilities that he did not know that the bag contained a controlled drug. This was thus the legal rather than the merely evidential burden.
2. The Court of Appeal held that a defendant did not have to know that he was in possession of controlled drugs or the precise controlled drug which was the subject of the offence. It was also clear that Parliament had intended to provide a defence on which a defendant could rely if he could establish that he had no suspicion as to the nature of the contents of the container in which drugs had been found. Moreover there was an objective justification for the provisions of the Act which were not disproportionate so that they did not contravene Article 6 of the Convention. The appeal was accordingly dismissed.
3. The Court however certified three questions. The first in substance is whether it is an essential element of the offence of possession of a controlled drug under section 5 of the 1971 Act that the accused knew that he had a controlled drug in his possession; secondly whether in a charge contrary to section 5 the judge was right to direct the jury that the onus of proving the defence under section 28(2) imposed a legal rather than an evidential of burden of proof that the accused neither believed nor suspected nor had reason to suspect that the substance in question was a controlled drug. The third question asked whether the accused could, on an appeal after the Human Rights Act 1998 came into force, rely on an alleged breach of Convention rights by the investigating or prosecuting authority at a trial which took place before the Human Rights Act 1998 came into force.
4. On this appeal to your Lordships the appellant has contended that the direction by the judge, that the burden on the accused to establish the defence was a legal burden, violated Article 6 of the Convention rights set out in the Schedule to the 1998 Act. The essential preliminary question in the appeal, and it is an important question, is therefore whether an appellant can rely on the Act at a time when the Act is in force (i.e. after 2 October 2000) in respect of a prosecution and conviction at a date when the Act was not in force. In a sophisticated and forceful argument Mr Starmer has contended that he plainly can. He takes two different routes. The first is that section 6 of the 1998 Act provides "(1)..It is unlawful for a public authority to act in a way which is incompatible with a Convention right" (and by virtue of sub sections 6(3) and (4) "public authority" includes a Court and the Judicial Committee of the House) unless by sub section (2) as the result of or in the case of "one or more provisions of primary legislation, the authority could not have acted differently".
5. A second route is by combination of section 7 and section 22 of the Act. They read:
but only if he is (or would be) a victim of the unlawful Act.
6. It is clear that the 1998 Act must be given its full import and that long or well entrenched ideas may have to be put aside, sacred cows culled. Since, however, the Act did not come into force (apart from limited provisions) until the Secretary of State had appointed a day or days for the Act or parts of it to come into force, and since there is a presumption against retrospectivity in legislation, it is not to be assumed a priori that Convention rights, however commendable, are to be enforceable in national courts in respect of past events. The question is whether the Act has provided for rights to be enforceable in respect of such past events or more precisely whether a court reviewing the legality of a direction to a jury at a criminal trial given before the Act came into force, which was in accordance with the law at the time, has to be judged by the standards of the Convention.
7. Section 6 does not deal specifically with pre-October 2000 Acts. Section 22 does and so it is appropriate to begin with section 22. It is on the face of it of limited scope. It provides that section 7(1)(b) applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place. By section 7(1)(b) a person who claims that a public authority has acted (or purports to act) in a way which section 6(1) makes unlawful may " rely on Convention rights in any legal proceedings". But otherwise section 7(1)(b) "does not apply to an act taking place before the coming into force of that section". Section 7(1)(a) is not applicable. For the purpose of section 7(1)(b) only, the expression "legal proceedings includes (a) proceedings brought by or at the instigation of a public authority; and (b) an appeal against the decision of a court or tribunal".
8. Thus for section 7(1)(b) to apply "whenever the Act took place" (by virtue of section 22(4)) the proceedings must have been brought by or at the instigation of a public authority. Here the prosecuting authority brought the proceedings in the first place though the claim is not that that authority acted in a way which section 6(1) makes unlawful. The claim is really that the judge in summing up acted contrary to Article 6 of the Convention rights by his summing up that the burden provided for in section 28(4) of the 1971 Act was a legal burden.
9. It is to be noted that section 7(6) distinguishes between proceedings brought by a public authority and "an appeal against the decision of a court" whereas section 22(4) extends the application of section 7(1)(b) only where proceedings are brought by a public authority. This appears to indicate that an appeal by an unsuccessful defendant is not to be treated as a proceeding brought by or at the instigation of a public authority albeit in other contexts an appeal may be considered to be part of the proceedings initiated by a particular party.
10. After a fuller consideration of this point than that which took place in R v DPP, Ex p Kebilene [2000 ] 2 AC 326 it seems to me that Parliament was not intending in this case that on an appeal Convention rights could be relied upon in respect of a conviction which took place before the Act came into force. It cannot be said that there is no good policy reason for this result since it may well have been thought undesirable that convictions lawful when made, should have to be set aside as a result of considering Convention rights only subsequently enforceable in national courts. Moreover it is plain as Mr Perry contended that the effect of opening up an examination of convictions prior to the coming into force of the Act, could lead to great confusion and uncertainty.
11. If this is right, where there is a specific time extension of the applicability of a Convention right, which is limited in content and which does not apply to an appeal like the present, it would be surprising if section 6 which has no express provision extending its effect, produced a contrary result so as to be applicable to acts which took place before the Convention rights became part of domestic law. Equally, it would be surprising if section 3, which again has no express retroactive effect, could succeed where section 22(4) and section 7(1)(b) fail. The fact that Convention rights could be relied on at the Court of Human Rights does not make such a result less surprising.
12. Moreover, even if there is a basis for the contention that the appellant's argument based on sections 7 and 22 do not involve retrospectivity, it seems to me that the obvious effect of section 6 as interpreted by the appellant is to impose on the House the current duty of quashing retrospectively a conviction which was good as the law stood at the time.
13. Even of course accepting that a trial today must observe Article 6 of the Convention rights and that an Appeal Court and the House in the way it proceeds must give effect to Article 6, it is a very different thing to say that the words "It is unlawful for a public authority to act in a way which is incompatible with Convention rights" (emphasis added) means that the House must rule that had the Convention been in force (which it was not) the direction of the judge to the jury would have been incompatible with Convention rights and that means that "it is unlawful" for the judge to have directed as he did. I agree with Sir Andrew Morritt, Vice Chancellor in para. 21 of his judgment in Wilson v The First County Trust Limited [2 May 2001] in which he said at para 21
14. On that basis the appellant cannot rely on the 1998 Act to challenge the judge's direction to the jury.
15. Two other principal points have been argued relating to the 1977 Act. Since the issues which they raise have been analysed in detail by your Lordships it seems appropriate to set out my own views briefly.
16. The first question asks whether it is an essential element of the offence of possession of a controlled drug under section 5 of the Misuse of Drugs Act 1971 that the accused knows that he has a controlled drug in his possession. Bearing fully in mind the importance of the principle that the onus is on the prosecution to prove the elements of an offence and that the provisions of an Act which transfer or limit that burden of proof should be carefully scrutinised, it seems to me that the Court of Appeal in R v McNamara  87 Cr APP R 246 rightly identified the elements of the offence which the prosecution must prove. I refer in particular to the judgement of Lord Lane CJ at page 252. This means in a case like the present that the prosecution must prove that the accused had a bag with something in it in his custody or control; and that the something in the bag was a controlled drug. It is not necessary for the prosecution to prove that the accused knew that the thing was a controlled drug let alone a particular controlled drug. The defendant may then seek to establish one of the defences provided in section 5(4) or section 28 of the 1971 Act.
17. The second question in effect asks whether, if the prosecution has proved the three elements to which I have referred, it is contrary to Article 6(2) of the Convention Rights for a judge to direct a jury that "the defendant is guilty as charged unless he discharges a legal, rather than an evidential, burden of proof to the effect that he neither believed nor suspected nor had reason to suspect that the substance in question was a controlled drug". If read in isolation there is obviously much force in the contention that section 28(2) imposes the legal burden of proof on the accused, in which case serious arguments arise as to whether this is justified or so disproportionate that there is a violation of Article 6 (2) of the Convention rights (see Salabiaku v France  13 EHRR 37 at para 28). In balancing the interests of the individual in achieving justice against the needs of society to protect against abuse of drugs this seems to me a very difficult question but I incline to the view that this burden would not be justified under Article 6(2) of the Convention rights. For my part I do not think it is necessary to come to a conclusion on these arguments since even if section 28(2) read alone were thought prima facie to violate Article 6(2) the House must still go on to consider section 3(1) of the 1998 Act. That section provides that "So far as it is possible to do so, primary legislation must be read and given effect in a way which is compatible with the Convention rights". This obligation applies to primary legislation "whenever enacted". Even if the most obvious way to read section 28(2) is that it imposes a legal burden of proof I have no doubt that it is "possible", without doing violence to the language or to the objective of that section, to read the words as imposing only the evidential burden of proof. Such a reading would in my view be compatible with Convention rights since, even if this may create evidential difficulties for the prosecution as I accept, it ensures that the defendant does not have the legal onus of proving the matters referred to in section 28(2) which whether they are regarded as part of the offence or as a riposte to the offence prima facie established are of crucial importance. It is not enough that the defendants in seeking to establish the evidential burden should merely mouth the words of the section. The defendant must still establish that the evidential burden has been satisfied. It seems to me that given that that reading is "possible" courts must give effect to it in cases where Convention rights can be relied on.
18. In the present case, however, I would dismiss the appeal on the ground that the appellant cannot rely on Convention rights in a national court in respect of a conviction before the 1998 Act came into force. I am also of the view that even if the trial judge had given a direction on the basis that the burden on the accused was only an evidential burden the jury would have reached the same result and that it cannot be said that the conviction of this appellant was unsafe.
I. The questions.
19. This appeal raises two important questions. The first is whether a defendant is entitled to rely on convention rights when the court is hearing an appeal from a decision which was taken before the Human Rights Act 1998 came into effect. The second is whether a reverse burden provision in section 28(2) and (3) of the Misuse of Drugs Act 1971 is compatible with the presumption of innocence contained in article 6.2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 6.2 provides that "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".
II. The factual context and the Misuse of Drugs Act 1971.
20. On 25 November 1998 in a car park outside Runcorn Station the police arrested the appellant. He was in possession of a duffle bag. It contained two kilograms of cocaine worth over £140,000. He was charged with the offence of possessing a controlled drug of class A with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971. Section 5 (3) provides as follows:
Section 5 must be read with section 28. The material parts of this section are:
21. In April 1999 the appellant stood trial in the Crown Court at Warrington. In his defence the appellant relied upon section 28 of the 1971 Act and asserted that he did not believe, or suspect, or have reason to suspect that the bag contained cocaine, or any controlled drug. In his summing up the judge applied the law as stated in the decision of the Court of Appeal in R v McNamara (1988) 87 Cr App R 246. The judge directed the jury that in order to establish possession of a controlled drug the Crown merely had to prove that the appellant had the bag in his possession and that the bag in fact contained a controlled drug, in this case cocaine. Thereafter the burden was cast upon the appellant to bring himself within section 28 and prove, on the balance of probabilities, that he did not know that the bag contained a controlled drug.
22. The jury convicted the appellant of the offence under section 5(3). The judge sentenced the appellant to a term of 7 years imprisonment.
III. The Court of Appeal decision and the Human Rights Act 1998.
23. The appellant appealed to the Court of Appeal (Criminal Division). His appeal was heard together with two other appeals towards the end of July 2000. The Human Rights Act 1998 all except four sections was due to come into operation on 2 October 2000. The defence invited the court to proceed as if the 1998 Act was already in operation. On this assumption the issues before the Court of Appeal were as follows. First, whether knowledge on the part of an accused that he was in possession of a controlled drug is an essential element of the offence of possession. Secondly, whether construed according to its natural and ordinary meaning, section 28 of the Act (and accordingly the trial judge's direction to the jury) violates article 6(2) of the European Convention on Human Rights since it requires the appellant to disprove an important element of the offence. The third is based on section 3 of the Act of 1998, which provides: "(1) 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." It raises the question whether it is possible to read section 28 compatibly with Article 6(2) in accordance with section 3(1) of the 1998 Act by holding that the words "if he proves" merely require a defendant to discharge an evidential burden of proof rather than a legal or persuasive burden. Fourthly, whether a defendant whose criminal trial took place before the coming into force of the Human Rights Act 1998 can rely, in the course of an appeal, on a breach of his convention rights by the trial court or prosecuting authority. This involved the interpretation of the provisions of sections 6, 7 and 22(4) of the 1998 Act. So far as relevant those provisions read as follows:
The Court of Appeal gave judgment on 31 July 2000. Notwithstanding that the 1998 Act was not yet in operation, the Court of Appeal assumed that the Act was in force. The Court of Appeal observed that it was entitled to do so "because if it had been necessary we could have deferred entering our judgment until after the Act came into force": R v Lambert  2 WLR 211, at 222A. Dismissing the appeal of the appellant [Lambert], the Court of Appeal rejected his first three submissions. It was therefore unnecessary for the Court of Appeal to rule definitively on the fourth submission.
24. The Court of Appeal refused leave to appeal but certified the following questions as points of general importance involved in the decision, namely -
25. An Appeal Committee granted leave to appeal.
IV. The issues before the House.
26. In broad terms the written and oral arguments canvassed the issues identified in the certification of the Court of Appeal. I would, however, change the order: the issue of retrospectivity involves a jurisdictional question and ought to be considered first. If the appellant's submission on this issue fails the other issues do not arise. Having heard full argument on the substantive issues of law it would nevertheless be right to rule on them. It will be convenient to consider in turn (i) the significance of the presumption of innocence under article 6.2 (ii) whether section 5(3) of the 1971 Act, read with section 28, makes an inroad on the presumption of innocence; (iii) and, if it does, to consider whether the inroad is both justified and proportionate; (iv) and, if not, whether in accordance with section 3 of the 1998 Act it can be read in a way which makes it compatible with convention rights. Finally, it may be necessary to consider what on the facts the correct disposal of this appeal is.V.
Issue (1): Retrospectivity.
27. The first issue can conveniently be formulated as follows: Can an accused whose trial took place before the coming into force of the Human Rights Act 1998 rely, in the course of an appeal, on a breach of his convention rights by the trial court or prosecuting authority?
28. The language of section 6(1) must be examined. It is to be observed that it provides that it is unlawful for a public authority to act in a way which is incompatible with a convention right. The Court of Appeal and the House in its judicial capacity are courts and therefore public authorities within the meaning of section 6(1): see section 6(3). For simplicity one can therefore recast section 6(1) as follows: "It is unlawful for [an appellate court] to act in a way which is incompatible with a convention right". From 2 October 2000 this provision bound the Court of Appeal (Criminal Division) and the House. In the present case the appeal in question was heard in the Court of Appeal before 2 October 2000 but in the House after that date. It binds the House. It will be noted that the effect of section 6(1) is to provide that it is unlawful for the House to act in a way which is incompatible with a convention right. The question is whether this provision applies to the appeal before the House. Given that it is expressed to limit the way in which a court may act, it is difficult to escape the conclusion that in the relevant sense no appellate court may act incompatibly with a convention right. Surely, for an appellate court to uphold a conviction obtained in breach of a convention right, must be to act incompatibly with a convention right. It is unlawful for it to do so. So interpreted no true retrospectivity is involved. Section 6(1) regulates the conduct of appellate courts de futuro. The only qualification to the general wording of section 6(1) is contained in section 6(2). The latter provision is, however, inapplicable because section 28(2) and (3) of the 1971 Act can be read compatibly with article 6.2 under the interpretative obligation in section 3 of the 1998 Act, viz. by reading section 28(2) and (3) as creating only an evidential presumption. It follows thus that in the language of section 6 itself there is nothing to qualify the generality of the wording of section 6(1). There is also nothing in section 7 which expressly or by necessary implication qualifies the ordinary and plain effect of section 6(1). Counsel for the Director of Public Prosecution sought to extract a contrary meaning from section 22(4). I agree with Clayton and Tomlinson (The Law of Human Rights), O.U.P., 2000 at 3.75 (p. 142) that "the effect of section 22(4) is obscure". In any event it does not qualify the court's obligation under section 6(1). The language of the statute points in one direction only: the House may not act unlawfully by upholding a conviction which was obtained in breach of a convention right. It will be observed that this interpretation reads nothing into section 6(1); it implies nothing into the language of section 6(1); it simply gives effect to the obvious meaning of plain words. It is the contrary view which needs to find a legitimate basis for restricting the natural meaning of the words. And there is no legitimate basis in the language or purpose for cutting down the natural effect of section 6(1).