Polychronakis v Richards and Jerrom Ltd

Date

16 October 1997

Legislation

Environmental Protection Act 1990
Magistrates Courts Act 1980.

Keywords

prosecution; burden of proof

Counsel

B. Berlin, Poiter, D, Watson, Beglan

Solicitors

Sharpe Pritchard

Judge

Brooke LJ; Gage J.

Court

Queen's Bench Division (Divisional Court)

Reported

[1998] Env LR Part 4, 346

Summary

Nothing in the language of s.80(4) of the Environmental Protection Act 1990 suggests that the usual rules about the burden of proof should not apply. The defendant has the burden of proving his defence if it is one of excuse under s.101 of the Magistrates Courts Act 1980 and s.80(7) and (9) EPC '90 make it clear that the burden rests on the defendant to set up those defences. In respect of subsection (4) Brooke LJ said, "it would have been only too easy for [the draftsman] to create an absolute offence, subject to an explicit defence…Once the defendant has laid the proper evidential basis for a contention that he has a reasonable excuse, it is for the prosecution to satisfy the court to the criminal standard of proof that the excuse is not a reasonable one."

(NB. John v Humphreys - burden of proving license rests on the defendant.

Acting without consent is akin to acting without a license.R v Hunt - s.101 is likely to apply when the burden of proof is easily discharged by the defendant. It is easier for a defendant to prove consent on the balance of probabilities than for the prosecution to prove beyond reasonable doubt that he has not.)