Donegan, Kevin v Trading Standards Office (Hants)

Date

1 January 2001

Legislation

Trade Marks Act 1994, s. 92(5)

Keywords

criminal offences; counterfeiting; defences

Counsel

unknown

Judge

Cutler J.

Court

Crown Court

Reported

Unknown (e-mail)

Summary

• s.92(5) defence re D's state of mind. D pleaded that "show" (as opposed to "prove") implied a standard of proof below the balance of probabilities, and that it was sufficient for D to simply "raise the issue" without adducing any evidence of his state of mind. It would then be for the prosecution to disprove the defence beyond reasonable doubt.
• ECHR Art. 6 pleaded to resist need for D to give evidence to show/prove his state of mind for s.92(5) defence. J held it was acceptable for the burden of proof to shift to D to prove his state of mind where this was raised as a defence to a prima facie prosecution case.

Decision: Rejected point 1

Leave to appeal on the ECHR point refused by Judge and Court of Appeal.

The s.92(5) defence is dealt with comprehensively in R v. Johnstone (House of Lords).