Attorney General's Reference (No.1 of 2004), (R v Crowley, R v Denton, R v Edwards, R v Hendley, R v Jackson)

Date

29 April 2004

Legislation

s.36 Criminal Justice Act 1972
s.29(2) Criminal Procedure and Investigations Act 1996
Article 6(2) European Convention on Human Rights
s.3 Human Rights Act 1998

Keywords

Criminal offences; Defences; Statutory defences; Burden of proof; Legal and evidential burdens; Reverse burden of proof; Preparatory hearings; R v Johnstone

Counsel

David Holborn for A-G, David Perry and Adina Ezeikel for the Crown in the case of E, Nicholas Ham for the Crown in the case of J and D, Michael Burrows and Bernard Linnemann for the Crown in the case of H, Azza Brown for the Crown in the case of C, Neil Hinton for E, Emma Goodall for J and D, Nigel Sweeney Q.C. for H, Michael Newport for C

Solicitors

Sanders Goodin Riddleston for A-G; Tanner & Taylor for E; Macauly Smith & Co for J and D; Tuckers for H

Judge

Lord Woolf of Barnes, L.C.J; Gage J; Elias J; Stanley Burnton J

Court

Court of Appeal (Criminal Division)

Reported

[2004] EWCA Crim 1025; [2004] 1 WLR 2111; [2004] 2 Cr.App.R.27; [2004] B.P.I.R. 1073; [2004] H.R.L.R. 23; (2004) S.J.L.B. 568; [2004] U.K.H.R.R. 608; (2004) 101(20) L.S.G. 34

Summary

In each of the 4 cases appealed, it was held at a preparatory hearing that various different statutory defences relied upon by the defendants imposed a legal burden on them when raising that defence. In the case where a reference was made by the A-G, the same issue arose, namely, the burden imposed on a Defendant when raising a statutory defence.

The questions referred by the A-G and the issues raised by the 4 appeals concerned whether each of the statutory defences in question imposed a legal or evidential burden on the Defendant when relying on such defences.

Decision:

(on the issue of the reverse burden of proof)

• The decision of the HL in R v Johnstone [2003] 1 WLR 1736, was the latest word on the subject and the courts should discourage the citation of any other authorities on the issue;
• Despite the existence of Article 6(2) ECHR it is possible in appropriate circumstances for the legal burden to be imposed on a Defendant when raising a defence. This is likely to be the case where the overall burden of proof rests on the prosecution but where there are significant reasons why it would be fair and reasonable to deny the defendant the protection of the general presumption of innocence;
• There should be a presumption that Parliament would not have made the exception to the presumption of innocence without good reason. However, the exception should go no further than is reasonably necessary;
• An evidential burden cannot contravene Art 6(2) ECHR;
• The court must assess the realistic effects of the reverse burden of proof and the ultimate question is whether the exception / reverse burden would prevent a fair trial.