Sliney v Havering [2002] EWCA Crim 2558

EWCA-Crim
Sliney v Havering
[2002] EWCA Crim 2558 · 2002-11-20

Lord Justice Rose:

This

[1]is the judgment of the Court, which has been prepared by Mr Justice Davis but to which the other members have contributed. Mr Sliney appeals from a ruling of HH Judge Woollam given at a preparatory hearing at the Crown Court at Snaresbrook on 17 th October 2001. The appeal raises questions of general importance in the context of proceedings brought pursuant to s.92 of the Trade Marks Act 1994 ("the 1994 Act") Background[2]The background, shortly put, is this. The appellant is a sole trader who operates from a warehouse at Upminster in Essex. The appellant sells, among other things, clothing, sportswear and footwear bearing well-known brand names. His activities were the subject of investigation by the London Borough of Havering who under the applicable legislation were the relevant body entrusted with the duty of enforcing the relevant trade mark legislation. In pursuance of their functions, the Authority seized certain goods being offered for sale to members of the public by the appellant. The Authority formed the view that the appellant was selling counterfeit goods. In due course they interviewed the appellant. The interview was lengthy. At the interview the appellant did not dispute the Authority's statement (based on examination of the goods by manufacturers' representatives) that the garments identified in fact were counterfeit. But what he said was that, at the time he was offering them for sale, so far as he was concerned they were "dead genuine"; that the people to whom he was in the habit of selling goods would not have accepted goods which were not "the real thing"; that the goods all appeared to be of excellent quality; and that the supplier from whom he had purchased the goods (whom he named) was someone with whom he had dealt openly, being a person from whom he had without problem bought clothing and other such goods for at least three years previously and who (so he said) had vouched for their authenticity (albeit not having produced documentary support of their origin). In addition he produced certain invoices (he said that he had accounted for all VAT due) and other paperwork in respect of purchases from his supplier. He stated that the fact that he bought and sold the goods relatively cheaply was to be explained by (as he understood) his supplier being able to negotiate bulk purchases at a large discount and by (as he stated) the items often being, in his understanding, clearance lines.[3]In the event the Authority bought proceedings against the appellant on the 25 th May 2001. In its amended version (dated 17 th October 2001) the indictment charged the appellant with two counts of unauthorised use of a trademark contrary to s.92 (1) (c) of the 1994 Act.[4]Section 92 of the 1994 Act provides as follows:
" (1) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor- (a) applies to goods or their packaging a sign identical to, or likely to be mistaken for, a registered trade mark or (b) sells or lets for hire, offers or exposes for sale or hire or distributes goods which bear, or the packaging of which bears, such a sign, or (c) has in his possession, custody or control in the course of a business any such goods with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b). (2) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor- (a) applies a sign identical to, or likely to be mistaken for, a registered trade mark to material intended to be used- (i) for labelling or packaging goods, (ii) as a business paper in relation to goods, or (iii) for advertising goods, or (b) uses in the course of a business material bearing such a sign for labelling or packaging goods, as a business paper in relation to goods, or for advertising goods, or (c) has in his possession, custody or control in the course of a business any such material with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b). (3) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor- (a) makes an article specifically designed or adapted for making copies of a sign identical to, or likely to be mistaken for, a registered trade mark, or (b) has such an article in his possession, custody or control in the course of a business, knowing or having reason to believe that it has been, or is to be, used to produce goods, or material for labelling or packaging goods, as a business paper in relation to goods, or for advertising goods. (4) A person does not commit an offence under this section unless- (a) the goods are goods in respect of which the trade mark is registered, or (b) the trade mark has a reputation in the United Kingdom and the use of the sign takes or would take unfair advantage of, or is or would be detrimental to, the distinctive character or the repute of the trade mark. (5) It is a defence for a person charged with an offence under this section to show that he believed on reasonable grounds that the use of the sign in the manner in which it was used, or was to be used, was not an infringement of the registered trade mark. (6) A person guilty of an offence under this section is liable- (a) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or both; (b) on conviction on indictment to a fine or imprisonment for a term not exceeding ten years, or both."
[5]The matter came on for hearing on the 17 th October 2001. Although it is not entirely obvious why this was regarded as a potentially complex or lengthy matter, the parties and the Judge proceeded on the footing that the hearing was to be treated as a preparatory hearing for the purposes of section 29 of the Criminal Procedure and Investigations Act 1996. Two preliminary questions were raised by the appellant. The first question was this: does s.92 (5) of the 1994 Act impose a persuasive, rather than merely evidential, burden on the defendant? The second question was this: if it does, is this reverse burden incompatible with Article 6 (2) of the European Convention on Human Rights? The Judge, in a ruling which is a model of clarity, answered that first question in the affirmative: that is, she decided that the section imposed a persuasive burden on the appellant. She answered the second question in the negative: that is, she decided that the imposition of such burden on the appellant was not incompatible with the Convention . The appellant, by leave given by the Judge herself (see s.35 (1) (3) of the Criminal Procedure and Investigations Act 1996), appeals against both parts of such ruling.[6]The importance of the first question is this. As has been long established, there is a pronounced difference between what is known as the legal (or persuasive) burden and what is known as the evidential burden. If a legal burden is imposed upon the accused then the matter in question is to be taken as proved against the accused unless he satisfies the jury on the balance of probabilities to the contrary. If an evidential burden is imposed upon the accused then the matter in question is to be taken as proved against the accused unless there is sufficient evidence to raise an issue on that matter: and, if there is sufficient evidence, then the burden falls on the prosecution to satisfy the jury as to that matter to the ordinary criminal standard, that is to say beyond reasonable doubt. Familiar common law examples (amongst others) of evidential burdens, so called, can be found in issues of self-defence, provocation and duress. The phrase "evidential burden" is, in truth, an inapposite phrase, certainly if phrased as "evidential burden of proof". As pointed out by Lord Devlin in Jayasena v The Queen 1970 AC 618 (at p624):
"Their Lordships do not understand what is meant by the phrase 'evidential burden of proof,' They understand, of course, that in trial by jury a party may be required to adduce some evidence in support of his case, whether on the general issue or on a particular issue, before that issue is left to the jury. How much evidence has to be adduced depends upon the nature of the requirement. It may be such evidence as, if believed and left uncontradicted and unexplained, could be accepted by the jury as proof. It is doubtless permissible to describe the requirement as a burden, and it may be convenient to call it an evidential burden. But it is confusing to call it a burden of proof. Further it is misleading to call it a burden of proof, whether described as legal or evidential or by any other adjective, when it can be discharged by the production of evidence that falls short of proof. The essence of the appellant's case is that he has not got to provide any sort of proof that he was acting in private defence. So it is a misnomer to call whatever it is that he has to provide a burden of proof…"
The phrase "evidential burden", at all events, continues conventionally to be used.[7]The point raised is of importance not only to the present case but also, as we were told and as we will come on to mention, in other cases. In this case, the appellant, as was common ground, had raised matters - which could not, at this stage, be dismissed as wholly and obviously without foundation – which were capable of giving rise to a defence under s. 92 (5) of the 1994 Act. If s.92 (5) is to be treated as imposing an evidential burden then the prosecuting authority take the view that in this case (and, they say, many comparable cases) there are grave – and quite possibly insuperable – difficulties in rebutting such defence beyond reasonable doubt.[8]As to the second issue, reference has to be made for this purpose to Article 6 of the Convention. Article 6, in the relevant respects, reads as follows:
"6(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 6(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."
The appellant's submission is (as it was in the Crown Court) that if (which he disputes) the provisions of s.92 (5) are properly to be treated, as a matter of construction, as imposing a legal burden on an accused then that is incompatible with the provisions of Article 6 (in particular, Article 6(2) – the presumption of innocence). On that basis, the appellant says that, by application of the provisions of s.3 (1) of the Human Rights Act 1998 and statements of principle enunciated in R v Lambert 2001 3 WLR 206 ; 2001 UKHL 206, the relevant provisions should be "read down" so that s.92 (5) is to be construed (contrary to its ordinary prima facie meaning) as imposing only an evidential burden on the accused. The appellant accepts, indeed avers, that if the provisions of s.92 (5) are properly to be treated as imposing an evidential, as opposed to a legal (persuasive) burden, then no further question of a potential infringement of Article 6 arises.[9]The first question therefore is whether, on its true construction, and without consideration of the Human Rights Act 1998, s.92 (5) imposes a legal (persuasive) burden on the accused. Construction .[10]The provisions of s.92 of the 1994 Act are to be set in the context of the whole Act. A valuable exposition of the background to the relevant provisions of the 1994 Act is to be found in the decision of a different constitution of this Court in R v Johnstone 2002 EWCA Crim 194 (31 st January 2002). A central purpose of the Act was to implement Council Directive 89/104 EEC, which was designed to harmonise or approximate (although not necessarily precisely to assimilate) the laws of Member states relating to trade marks. The inherent desirability of this within the Community – the more so in the modern age of what is colloquially called globalisation – is obvious. Implicit in the provisions of sections such as section 92 itself is the objective not only of protecting the ownership rights relating to registered trade marks but also of enhancing trade and promoting a legitimate economy and of providing consumer protection. Trade marks have a value, often a very great value. People commonly buy products bearing a particular trade mark just because the products bear that trade mark: as representing or connoting some or all of the characteristics of reliability, quality and fashion. It is precisely for that reason that there are those who seek to counterfeit goods bearing such marks: counterfeiting being an ever-increasing problem. Moreover there are also important considerations of public safety involved: counterfeit goods (in the form of toys or packaged foodstuffs or motor vehicle parts for example) have in numerous ways over the years proved to be highly dangerous. A degree of protection, both in the mercantile and public interest, in respect of trade marks, going beyond the civil remedies available, is plainly desirable.[11]The Agreement on the Trade-Related Aspects of Intellectual Property Rights (including trade in counterfeit goods) annexed to the World Trade Agreement signed in 1994 provides (by Article 61) as follows:
" Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall include the seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence…."
The wording is, in our view, of some note. In particular, the minimum that is required is that members shall provide for criminal procedures to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. The words "at least" connote that member states may go further – and in particular may provide for criminal procedures other than in cases of "wilful" counterfeiting or piracy on a commercial scale. It is also to be observed that an element of deterrence is contemplated in the sanctions to be applied.[12]There are also other considerations in approaching the question of construction of s.92 (5) and in deciding whether or not it imposes a legal burden, on the one hand, or an evidential burden, on the other hand. There are those who have advocated (there are those who continue to advocate) that the imposition of a legal burden on an accused in any criminal proceedings is unjust and unfair. Thus it was stated in the 11 th Report of the Criminal Law Revision Committee Evidence (General) 1972 (Cmnd. 4991), at paragraph 140:
"……. We are strongly of the opinion that, both in principle and, for the sake of clarity and convenience, in practice, burdens on the defence should be evidential only"
. There are numerous articles and other materials to like effect. The underlying reasoning, and force behind that reasoning, is clear. It is not a concern that the accused must disprove an element or provide an excuse: rather it is the risk that an accused may be convicted where a reasonable doubt may exist: see, for instance, R v Whyte (1988) 51 DLR 481 at p 493 (per Dickson CJ), quoted by Lord Steyn in Lambert at paragraph 35 (p220 C-E).[13]But there are competing considerations.[14]For present purposes, the starting point for the approach most contrary to the acceptance of burdens on the defence as a legal burden rather than an evidential burden can perhaps be taken from the case of Woolmington v Director of Public Prosecutions 1935 AC 462 . The effect of the decision in that case was to quash the notion that where (in the context of a charge of murder) the issue had been raised that the killing was an accident or the result of provocation, the burden was on the defence to establish that. In the course of his speech, Viscount Sankey LC said this (at p481):
"Throughout the web of English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the person's guilt subject…also to any statutory exception."
The opening words of this statement contain a celebrated and vital declaration of principle. But of equal note, for present purposes, is the acknowledgement of the possibility of statutory exceptions.[15]The point was adverted to in a number of subsequent decisions, most notably, perhaps, R v Warner 1969 2AC 256; and Sweet v Parsley 1970 AC 132 . In the latter case Lord Reid said this (at p 149-150):
"One must put oneself in the position of a legislator. It has long been the practice to recognise absolute offences in this class of quasi-criminal acts, and one can safely assume that, when Parliament is passing new legislation dealing with this class of offences, its silence as to mens rea means that the old practice is to apply. But when one comes to acts of a truly criminal character, it appears to me that there are at least two other factors which any reasonable legislator would have in mind. In the first place a stigma still attaches to any person convicted of a truly criminal offence, and the more serious or more disgraceful the offence the greater the stigma. So he would have to consider whether, in a case of this gravity, the public interest really requires that an innocent person should be prevented from proving his innocence in order that fewer guilty men may escape. And equally important is the fact that fortunately the Press in this country are vigilant to expose injustice and every manifestly unjust conviction made known to the public tends to injure the body politic by undermining public confidence in the justice of the law and its administration…… The choice would be much more difficult if there were no other way open than either mens rea in the full sense or an absolute offence; for there are many kinds of case where putting on the prosecutor the full burden of proving mens rea creates great difficulties and may lead to many unjust acquittals. But there are at least two other possibilities. Parliament has not infrequently transferred the onus as regards mens rea to the accused, so that, once the necessary facts are proved, he must convince the jury that on balance of probabilities he is innocent of any criminal intention. I find it a little surprising that more use has not been made of this method: but one of the bad effects of the decision of this House in Woolmington v Director of Public Prosecutions (1935) AC 462 may have been to discourage its use."
Similarly, Lord Pearce, in the context of that case, indicated that in appropriate cases to impose a legal (or persuasive) burden on an accused could be taken as a fair and sensible course.[16]The point was the subject of further discussion in R v Hunt 1987 AC 352. In the course of his speech Lord Griffiths said this at p375:
"In Reg. v Edwards [1975] Q.B 27, 39-40 the Court of Appeal expressed their conclusion in the form of an exception to what they said was the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged."
They said that the exception "is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities." I have little doubt that the occasions upon which a statute will be construed as imposing a burden of proof upon a defendant which do not fall within this formulation are likely to be exceedingly rare. But I find it difficult to fit Nimmo v. Alexander Cowan & Sons Ltd. [1968] A.C.107 into this formula, and I would prefer to adopt the formula as an excellent guide to construction rather than as an exception to a rule. In the final analysis each case must turn upon the construction of the particular legislation to determine whether the defence is an exception within the meaning of section 101 of the Act of 1980 which the Court of Appeal rightly decided reflects the rule for trials on indictment. With this one qualification I regard Reg. v. Edwards as rightly decided. My Lords, I am, of course, well aware of the body of distinguished academic opinion that urges that wherever a burden of proof is placed upon a defendant by statute the burden should be an evidential burden and not a persuasive burden, and that it has the support of the distinguished signatories to the 11 th Report of the Criminal Law Revision Committee, Evidence (General) (1972) (Cmnd. 4991). My Lords, such a fundamental change is, in my view, a matter for Parliament and not a decision of your Lordships' House."[17]In our judgment, having regard to the authorities and, indeed, to general principle, as a matter of English law it is open to Parliament to provide that, in criminal proceedings in a given context, a legal (persuasive) burden be imposed upon an accused; but, if that is to be so, that is to be regarded as an exceptional course and sufficiently clear language is required. Ultimately, however, all depends on the interpretation of the particular statutory provision in question.[18]We are of the view that, as a matter of construction, applying English legal principles, s.92 (5) does impose a legal (persuasive) burden on the accused.[19]The first, and obvious, point is that section 92 (5) commences with the words:
"It is a defence for a person charged with an offence under this section to show…."
That is, moreover, to be contrasted with the immediately preceding sub-section (4) which provides that unless the stipulations there set out are fulfilled a person does not commit an offence. The language used in s.92 (5) is classic language for imposing a legal (persuasive) burden on an accused. The drafting technique adopted is well established and the approach was recognised in, for example, s101 of the Magistrates Court Act 1980. As stated by Lord Hope of Craighead in Lambert at paragraph 35 (p233 D-E):
"In a case of a provision such as that found in section 5 (4) where the words are "it shall be a defence for him to prove", the answer to it is plain on the face of the enactment. A provision which takes this form is understood to be an express statutory exception to the golden thread rule"
. Lord Hutton was equally explicit: see at paragraph 182 (p262). Mr Tetlow, counsel appearing for the appellant, submitted that that was not the view of Lord Clyde. It is true that in the course of his speech (see paragraphs131 and 137) Lord Clyde said that he would be slow to construe a criminal provision so as to impose a persuasive burden upon an accused. But he immediately went on to say (in paragraph 132: p250D) that, having regard to what is generally recognised as the proper construction in England, the words "it shall be a defence for the accused to prove" imply in the ordinary meaning a persuasive burden of proof. In our judgment, the wording of s.92(5) was designed to impose a legal (persuasive) burden on the accused.[20]Mr Tetlow, however, placed emphasis on the fact that the verb used in s.92 (5) is "show", not "prove". He submitted that that is significant. He submitted that, by using such word, Parliament was intending that the burden on the accused should be evidential only. We do not accept that submission. In our view, in the context in which they are here found, the words "show that" are to be taken as synonymous with the words "prove that". The word "show" can readily be so understood (see the definition in the Shorter Oxford Legal Dictionary); and in legal circles commonly is so understood. Mr Swift QC (who, with Mr Ham, appeared for the respondents) pointed to a number of provisions in consumer protection statutes where the word "show" is plainly used in a sense interchangeable with the word "prove": see, for example, sections 10, 24 and 39 of the Consumer Protection Act 1987; section 2 of the Property Misdescriptions Act 1991. We would accept that, if there were ambiguity here, the Court should incline to construe the words so as to impose an evidential, rather than legal, burden on the accused. But in our view there is no such ambiguity: nothing in Johnstone compels us to any different view; and the words of s.92 (5) are to be taken, as a matter of ordinary construction, as imposing a legal (persuasive) burden on the accused.[21]Such a construction is consistent with the presumed policy and intention of Parliament. We refer to the general observations set out in paragraph 10 above. We would also refer to the observations of

Lord Justice Auld in Torbay Council v Singh 1999 2 Cr App Rep 451 at page 455:

"At first sight, this near absolute liability may seem harsh, especially when it is noted from section 92(6) (b) of the Act that the offence carries a maximum penalty on indictment of an unlimited fine or imprisonment up to 10 years or both. However, if the regime introduced by the Act is to operate as an effective protection both to registered proprietors of trade marks and consumers, it cannot sensibly depend on proof in every case of the trader's knowledge of the existence of the registration of the trade mark allegedly infringed, or on rebuttal of his assertion that he was unaware of the registration or its detail. Whilst that might be a workable approach for large retailers with sophisticated administrative and legal controls, it would not be so where protection is most needed, against market traders and other small retailers who may obtain their wares from disreputable and/or, as in this case, untraceable, suppliers."
We agree with those observations. Elements of the offence[22]The next point raised (which is, indeed, linked to the first point) is whether the defence that can be put forward under subsection (5) is to be regarded as relating to an ingredient of the offence created by section 92. The point arises because if the defence that can be put forward under subsection (5) does relate to an ingredient of the statutory offence then that (submits Mr Tetlow) is plainly incompatible with Article 6 (2) of the Convention (the presumption of innocence). The argument then goes on that accordingly, by resort to s.3(1) of the Human Rights Act 1998, s.92 (5) can and should be read down so as to impose an evidential burden only.[23]The general approach on this point is the subject of detailed discussion in Lambert (a case involving consideration of the provisions of s.5 and s.28 of the Misuse of Drugs Act 1971). Thus Lord Steyn says this in his speech at paragraph 35 (p219F - 197):
"Counsel for the appellant submitted that the defence put forward by the appellant under section 28 is an ingredient of the offence under section 5(3). His argument was that knowledge of the existence and control of the contents of the container is the gravamen of the offence for which the legislature prescribed a maximum sentence of life imprisonment. The contrary argument advanced on behalf of the Director of Public Prosecutions relied on the observation of Lord Woolf CJ in the Court of Appeal [2001]2 WLR 211,221: "
What the offence does is to make the defendant responsible for ensuring that he does not take into his possession containers which in fact contain drugs." Taking into account that section 28 deals directly with the situation where the accused is denying moral blameworthiness and the fact that the maximum prescribed penalty is life imprisonment, I conclude that the appellant's interpretation is to be preferred. It follows that section 28 derogates from the presumption of innocence. I would, however, also reach this conclusion on broader grounds. The distinction between constituent elements of the crime and defensive issues will sometimes be unprincipled and arbitrary. After all, it is sometimes simply a matter of which drafting technique is adopted: a true constituent element can be removed from the definition of the crime and cast as a defensive issue whereas any definition of an offence can be reformulated so as to include all possible defences within it. It is necessary to concentrate not on technicalities and niceties of language but rather on matters of substance. I do not have in mind cases within the narrow exception "limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities": R v Edwards [1975] QB 27, 40; R v Hunt (Richard) [1987] AC 352; section 101 of the Magistrates' Courts Act 1980. There are other cases where the defence is so closely linked with mens rea and moral blameworthiness that it would derogate from the presumption to transfer the legal burden to the accused, e.g the hypothetical case of transferring the burden of disapproving provocation to an accused. In R v Whyte (1988) 51 DLR (4 th ) 481 the Canadian Supreme Court rejected an argument that as a matter of principle a constitutional presumption of innocence only applies to elements of the offence and not excuses. Giving the judgment of the court Dickson CJC observed at p 493:
" The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence. The exact characterisation of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused."
I would adopt this reasoning. In the present case the defence under section 28 is one directly bearing on the moral blameworthiness of the accused. It is this factor alone which could justify a maximum sentence of life imprisonment. In my view there is an inroad on the presumption even if an issue under section 28 is in strict law regarded as pure defence."[24]Some of this reasoning may suggest that if a statutory defence is not to be regarded as an ingredient or element of the offence, then questions of an infringement of the presumption do not arise: for the accused is presumed innocent of the offence unless and until all the constituent elements which are required to be proved by the prosecution are established. That, indeed, is what Mr Swift submits is the case here.[25]Mr Tetlow did not, as we understood him, dispute this analysis. Nevertheless, we observe that the position may be rather more open-ended than the analysis of Mr Swift would have it. Thus in the Court of Appeal in Lambert Lord Woolf CJ said this (paragraph 16; 2001 2 WLR 211 at p219):
"If the defendant is being required to prove an essential element of the offence this will be more difficult to justify. If, however, what the defendant is required to do is establish a special defence or exception this will be less objectionable. The extent of the inroad on the general principle is also important…"
These observations find reflection in other observations by Lord Woolf made some years earlier in AG of Hong Kong v Lee Kwong-Kut 1993 AC 951 at p969G:
"Some exceptions will be justifiable, others not. Whether they are justifiable will in the end depend upon whether it remains primarily the responsibility of the prosecution to prove the guilt of an accused to the required standard and whether the exception is reasonably imposed notwithstanding the importance of maintaining the principle which Article 11 (1) of the Hong Kong Bill of Rights] enshrines. The less significant the departure from the normal principle, the simpler it will be to justify the exception. If the prosecution retains responsibility for proving the essential ingredients of the offence, the less likely it is than an exception will be regarded as unacceptable. "
This way of putting it is at least consistent with a view that a special defence (not being an essential ingredient of the offence) may still be, albeit less likely to be, objectionable. That also seems to have been regarded as possible by Lord Hope of Craighead in Lambert: see paragraphs 74 and 75 (p232H -233C); and may also be consistent with Lord Steyn's closing remarks in paragraph 35.[26]Be that as it may, the argument of Mr Tetlow is that dishonesty is an ingredient of the offence and thus that s.92 does relate to an essential part of the offence. He points to the severe consequences (in terms of a maximum custodial sentence of 10 years, of an unlimited fine and possibly, too, of confiscation orders) that potentially attach to a conviction under s.92. He also says that the point may be as much relevant at the sentencing stage as at the trial stage, since there may well be factual determinations which still have to be made.[27]The question has to be considered as a matter of form and as a matter of substance. The first point to be noted is that s.92 is headed "Unauthorised use of trade mark etc in relation to goods". This may be contrasted with the heading to what may be regarded as the immediate predecessor of s.92, namely s.300 of the Copyright, Designs and Patents Act 1988. That section is headed "Fraudulent application or use of Trade mark" (It may also, we add, be contrasted with the statutory provisions of s.206 of the Insolvency Act 1986, and the heading to that section, as explained by the Court of Appeal in R v Carass 2001 EWCA Crim 2845 ; 2002 Cr App Rep 4). Moreover there are the policy considerations to which we have already adverted. These are entirely consistent with Parliament intending for the purposes of s.92 that there be liability without proof of dishonesty.[28]The structure of the section is clear. By s.92 (1) the following are required to be proved by the prosecuting authorities:28.1 First, that the accused has acted with a view to gain for himself or another (or with intent to cause loss to another) – that is the only mental element set out in s.92 (1): indeed, it hardly is to be equated with mens rea in the way that phrase is usually understood.28.2 Second, that the accused has acted without the consent of the proprietor.28.3 Third, that the accused has done, by reference to a registered trade mark, one (or more) of the things set out in sub-sections (a) (b) or (c) in subsection (1). The provisions of subsections (2) and (3) correspond to that approach. If those matters are all proved, then the offence is proved: although no offence is committed unless the matters contained in sub-section (4) are satisfied. Finally, s.92 (5) provides, by way of exclusion, a statutory defence.[29]Nowhere in the section is there indicated any requirement of dishonesty or bad faith on the part of the accused as an element of the offence. For example, the word "knowingly" makes no appearance in s.92(1) (2) or (3). The whole emphasis is on the unauthorised sale, for profit, of goods bearing a purported registered mark. The defence bestowed by s.92 (5) itself tends to confirm that. The defence is not confined to belief: it requires belief "on reasonable grounds". Thus a person may properly be convicted under s.92 even if he acted honestly; and it is not necessary to prove intent to infringe a registered trade mark: see Torbay Council v Singh 1999 2 Cr App Rep 451. Indeed, as pointed out by Lord Justice Mance in R v Keane 2001 FSR 63 at p70, if mens rea relating to the fact of the infringement is to be read into s.92 (1) then s.92(5) would seem to become largely redundant.[30]At one stage in his argument, Mr Tetlow seemed to be suggesting that dishonesty was to be equated with an absence of reasonable grounds for belief. However, on being pressed on that, he disclaimed such a proposition. In our view it is plain that s.92 is deliberately designed to extend to unauthorised use of trade marks even where there is no dishonesty involved. The fact that, no doubt, in counterfeiting offences of this kind dishonesty (or at least recklessness) may well be present in some cases is not conclusive; there are also cases- doubtless to be regarded at the bottom end of the scale – where dishonesty is not present at all. Dishonesty thus is not the gravamen of the offence.[31]Mr Swift submitted that, since the ingredients of the offence are those set out in s.92(1) or(2) or(3) (as the case may be), then if those are proved, the constituent elements of the offence are proved. Subsection (5) thus is not purporting to cast any burden on the accused in respect of any of the required ingredients of the offence, nor does it, he submits, "mirror" any such ingredient. Accordingly there is no interference with the burden of proof: which in all respects, so far as the ingredients of the offence are concerned, remains on the prosecution. Putting it another way, the substance of the offence is precisely what Parliament has chosen to define it as being. Therefore no question of infringement of Article 6 (2) can arise. Mr Swift fortified his argument by stressing that domestic legislation was entitled to deference; the more so in an area of economic regulation and consumer protection; and that it was for Parliament in this context to strike the balance between fundamental rights of the individual on the one hand and the general interests of the community on the other hand. As stated by Lord Hope of Craighead in R v DPP ex parte Kebilene 326 at p 384B :
"There is also the question of balance, as to the interests of the individual as against those of society. The Convention jurisdiction and that which is to be found from the cases decided in other jurisdictions suggests that account may legitimately be taken, in striking the right balance, of the problems which the legislation is designed to address"
. Thus it is submitted that the presumption of innocence is not infringed by s.92 (5).[32]That argument leads to a conclusion that in all cases where Parliament has so defined a statutory offence as to impose strict or absolute liability then Article 6(2) has no application at all and no question of incompatibility can arise. But the position does not seem to be that clear-cut. We refer to the observations in paragraph 25 of this judgment. Another point is that (as was stressed by Lord Steyn in Lambert ) the distinction between constituent elements of a crime and defensive issues may sometimes be unprincipled and arbitrary. It can be asserted in this case that the imposition of a legal burden on a defendant is neither unprincipled nor arbitrary given the policy behind these provisions of the 1994 Act and the grave mischief to which they are directed. But, if Mr Swift is right, the same argument is also available where the like drafting technique is used in other contexts: and one can be by no means always confident that such technique has been designedly used in a way which is not arbitrary. Yet further, Mr Tetlow is entitled to say that (even if dishonesty is not the gravamen of the offence under s.92) at all events real moral blameworthiness attaches to a conviction. Moreover it can be argued that the irreducible minimum of the offence is that at the least a person liable to be convicted under s.92 will have been culpably negligent: and why (it can then be asked) should that, at least, not be the responsibility of the prosecution to prove?[33]Further, if Mr Swift is right, it is not entirely easy to see why the like argument raised in Lambert (where a similar drafting technique had been used) did not prevail. It is true that as Lord Hope of Craighead said in R v DPP exp. Kebilene 2001 2AC 326 at p 378F:
"The extent to which [statutory provisions] encroach upon the presumption of innocence depends upon the legislative technique which has been used"
. It is also true that in Lambert the provisions of an entirely different Act of Parliament (the Misuse of Drugs Act 1971) were under consideration. But this does not altogether explain why the drafting technique as adopted in the Misuse of Drugs Act 1971 should have an outcome different to that where the like technique is adopted in the 1994 Act.[34]It would seem that, in the final analysis, resort to the "substance and reality" of the provision, in each case, is the explanation: and that, among other matters, depends on the policy behind each individual statute in question and the mischief at which it is directed. In the present case, on balance, we accept Mr Swift's submissions. The drafting technique here adopted is clearly consistent with an intention that the provisions of subsection (5) are not to be regarded as an essential element of the offence. Further, considering the substance and reality of the matter, we do not think that the provisions of the subsection are intended to be, or in substance are, part of the offence: the position is quite different from, for example, Carass (where dishonesty was the gravamen of the offence by reference to s206 of the Insolvency Act 1986). S.92 is a regulatory provision and the strong policy behind the 1994 Act, and mischief at which it is aimed, support the view that the use of such technique in this context is neither unprincipled nor arbitrary: unauthorised use of trademarks is the target of the legislation and the substance of this offence. Accordingly subsection (5) does not relate to an essential element of the offence; and the meaning and effect of s.92 is such that the presumption of innocence is not infringed by subsection (5). Accordingly Article 6(2) of the Convention has no application.[35]But in the circumstances and in the light of the arguments we have heard we would not regard it as satisfactory to rest the ultimate decision in this case solely on that basis. Accordingly we turn to the further arguments of Mr Tetlow. We wish to make clear that the following reasoning is designed to be a further and necessary part of our ultimate disposal of this appeal. Reading Down[36]Mr Tetlow submits that if (as we have decided) s.92 (5) on its ordinary construction under English Law connotes that a legal (rather than evidential) burden is imposed upon the accused, then the section should, in order to be made compatible with Article 6 (2) of the Convention, be "read down" in such a way that it is to be interpreted as imposing only an evidential burden on the accused. In this context he relies on section 3 and section 6 of the Human Rights Act 1998. "3.(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.(2) This section- (a) applies to primary legislation and subordinate legislation whenever enacted; (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation. (c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility. 6.(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right."[37]Before the "reading down" provisions conferred by s.3 of the Human Rights Act 1998 can come into play there first of all has to be a decision as to whether a particular piece of legislation is indeed incompatible with the Convention. However it is convenient at this stage to consider whether "reading down" as sought by Mr Tetlow is available at all, even assuming that s.92 (5) is incompatible with the Convention.[38]Mr Tetlow argues that it is legitimate by application of s.3 of the Human Rights Act 1998 to read and give effect to s.92 (5) as imposing an evidential burden only. He acknowledges that section 3, by its express terms, in permitting a statute to be read and given effect to in a way which is compatible with Convention rights, is delimited by the phrase "so far as it is possible to do so". But he says that, here, it is so possible: and he places particular reliance on the views expressed in Lambert . In Lamber t the House of Lords (by a majority: Lord Steyn dissenting) had, of course, decided that the Human Rights Act 1998 did not operate retrospectively and accordingly did not apply to decisions reached before the Act came in force (2 nd October 2000). That was sufficient to dispose of the issues in that case, since the relevant decisions there all pre-dated 2 nd October 2000. However the views thereafter expressed were all considered views as to whether, in any event, the provisions of the statute there under consideration (sections 5 and 28 of the Misuse of Drugs Act 1971) could be "read down" so as to impose an evidential burden, as opposed to a legal (persuasive) burden, on the accused. The majority indicated that they could and should be so read down. Lord Hutton dissented on that point.[39]It is therefore clear that the considered views of the majority were to the effect that, by resort to what Lord Steyn styled the "subtle mechanisms" of the 1998 Act, the prima facie imposition of a legal burden on a defendant can be read down so as to connote an evidential burden only. True it is that those views were expressed in the context of of the Misuse of Drugs Act 1971; true it is that those views were (strictly) obiter. But these observations nevertheless plainly carry with them the consequence that, in appropriate circumstances, a criminal statute which contains a provision to the effect that " It is a defence for a person to prove that….." is at least capable of being read down so as to impose an evidential burden rather than (as would otherwise be the case) a legal (persuasive) burden.[40]There is no doubt that section 3 of the Human Rights Act 1998 acknowledges and, for the purposes of the Convention, promotes the elasticity which is potentially available in many points of interpretation. But, as the wording of the section itself conveys, the stretching of the interpretation is not to be carried beyond breaking point. Reading down can only be undertaken "so far as it is possible". It is quite plain that there must be and are limits to the interpretative process sanctioned by section 3 of the Human Rights Act 1998; see for example, R v Poplar Housing Association 2002 QB 48 at pages 72-73. If a statutory provision simply cannot in the ordinary way be reconciled with the Convention, then there is only so much interpretative elasticity available under s.3 of the Human Rights Act 1998. If the language cannot appropriately be stretched to provide an interpretation compatible with the Convention then the outcome should be – however cumbersome and however inconvenient - a declaration of incompatibility.[41]Thus in the present context reference may be made to the observations of Lord Justice Pill in Lynch v DPP 2001 EWHC Admin 882 ; 2002 1 Cr App Rep 32 (a case concerning s.139 of the Criminal Justice Act 1988). At paragraph 23 of the judgment Lord Justice Pill (after a review of the relevant authorities) said this:
"Since it is only necessary that an issue be raised, I do most diffidently express the view that to describe it as "proof" no only is not the "best use of words" but deprives the word "proof" as commonly used inside and outside the Criminal Courts of any meaning. Better, in my view, to look to incompatibility than to treat the English language in that way………"
Similar comments were expressed by Lord Justice Auld in R v Daniel 2002 EWCA Crim 959 .[42]However, in the present case Mr Swift did not seek to suggest that the statements of the majority in Lambert (which also find reflection in certain preliminary observations made in a number of the speeches in the previous decision of the House of Lords in ex.p Kebilene) do not reflect the law as it currently stands. Moreover the reading down of a reverse legal burden was considered available, by use of the mechanisms contained in s.3(1) of the 1998 Act, by the Court in Carass ( a decision on s.206 of the Insolvency Act 1986): and, in that case, there was as part of the decision such a reading down. Accordingly we consider that it must be taken as settled at this judicial level that section 3 of the Human Rights Act 1998 is in principle capable of being invoked, in appropriate circumstances , so as to read down a provision (ostensibly imposing a reverse legal burden) of the kind requiring a defendant to prove by way of defence a particular state of mind or state of affairs so as to impose an evidential burden. Accordingly we proceed, in this case, on the footing that s.92 (5) is at least capable of being "read down" so as to impose an evidential burden rather than, in accordance with what otherwise would be its ordinary construction on English law principles, a legal burden. Incompatibility[43]The question then is: should s.92 (5) be so read down?[44]Legal burdens imposed on an accused in criminal matters will require justification. However, there is no fundamental and conclusive objection in principle to the imposition of a legal (persuasive) burdens on an accused and such burdens are not, in themselves, necessarily incompatible with the Convention. In Salabiaku v France (1988) 13 EHRR 379 the European Court of Human Rights stated the following, at paragraph 28 (p388):
"Presumptions of fact or law operate in every legal system. Clearly the Convention does not prohibit such presumptions in principle. It does, however, require the contracting states to remain within certain limits in this respect as regards criminal law…Article 6 (2) does not thereafter regard presumptions of fact or of law provided for in the Criminal Law with indifference. It requires states to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence."
In S porring & Lonnroth v Sweden 5EHRR 35 the following is stated at paragraph 69 (page 52):
"….The court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The search for the balance is inherent in the whole convention….. "
A striking example of an instance where a reverse legal burden was upheld can be found in Bates v UK (unrep 16 January 1996: European Commission of Human Rights); cited and commented on in Carass at p.88.[45]In Lambert Lord Steyn said this at paragraph 34 (p220E-F):
"It follows that a legislative interference with the presumption of innocence requires justification and must not be greater then necessary"
. And later he said this on proportionality (at paragraphs 37 and 38):
"That is, however, not the end of the matter. The burden is on the state to show that the legislative means adopted were not greater than necessary. Where there is objective justification for some inroad on the presumption of innocence the legislature has a choice. The first is to impose a legal burden of proof on the accused. If such a burden is created the matter in question must be taken as proved against the accused unless he satisfies the jury on a balance of probabilities to the contrary: 11 th Report of the Criminal Law Revision Committee, Evidence (General) (1972) Cmnd 4991, para 138. The second is to impose an evidential burden only on the accused. If this technique is adopted the matter must be taken as proved against the accused unless there is sufficient evidence to raise an issue on the matter but, if there is sufficient evidence, then the prosecution have the burden of satisfying the jury as to the matter beyond reasonable doubt in the ordinary way: para 138. It is important to bear in mind that it is not enough for the defence merely to allege the fact in question: the court decides whether there is a real issue on the matter: para138. A transfer of a legal burden amounts to a far more drastic interference with the presumption of innocence than the creation of an evidential burden on the accused. The former requires the accused to establish his innocence. It necessarily involves the risk that, if the jury are faithful to the judge's directions, they may convict where the accused has not discharged the legal burden resting on him but left them unsure on the point. This risk is not present if only an evidential burden is created. "
The principle of proportionality requires the House to consider whether there was a pressing necessity to impose a legal rather than evidential burden on the accused….."[46]Recent examples of cases where the imposition of a reverse legal burden on an accused has been held to be justified and proportionate, and not liable to be read down, can be found in R v Drummond 2002 EWCA Crim s27; 2002 RTR 21 (the "hip-flask defence"; s3A of the Road Traffic Act 1988 and s.15 of the Road Traffic Offences Act 1988); and Lynch itself (possession of a lock-knife; s.139 Criminal Justice Act 1988). Equally, there are examples to the contrary, not least Lambert itself: see also Carass. Ultimately, as pointed out by Lord Justice Waller in Carass at p88, "…it is necessary to examine each case on its own merits".[47]In our judgment there are compelling reasons, having regard not only to the interests of the accused but also to the public interest, why the imposition of legal burden on the accused, as set out in s.92 (5) of the Trade Marks Act 1994, is necessary, justified and proportionate. We accept, for present purposes, that there is a heavy burden on the prosecuting authorities to justify a reverse legal burden provision in s.92 as necessary, justified and proportionate. In our view they discharge that burden.[48]Our reasons (which to an extent reflect some of our earlier observations) are these.48.1 First, there are the factors which we have already mentioned relating to considerations of policy, the purpose of the legislation and the mischief at which it is aimed. These provisions of the 1994 Act are designed not only to protect proprietors of registered trade marks but also to protect (and safeguard) consumers from the activities of counterfeiters. There is a very important element of consumer protection here. We consider this a point of significance.48.2 Second, the subject matter of sub-section (5) is liable to be peculiarly within the knowledge of the accused. This also is an important consideration. It is true that knowledge, belief and intent can, in a sense, be said to be peculiarly within the knowledge of an accused in most criminal cases. But in this consumer protection context, in particular, the point is of considerable weight. The accused is, after all, particularly well placed to advance (and seek to show) the matters raised in sub-section (5). 48.3. Third, an effective and workable regime in this context cannot sensibly depend on proof by the prosecution in every case of a trader's absence of belief on reasonable grounds that the goods were genuine or that no registered trade mark existed; or on a rebuttal of an assertion by a trader that he was unaware of the registration or that he did not realise that he was selling counterfeit goods. 48.4. Fourth, whilst an offence under s.92 is potentially a serious offence and in a bad case will in practice involve serious dishonesty, it is, as we have already said, in the nature of a regulatory offence, (cp the observations of Lord Clyde in Lambert at paragraph 154: p258 A-D). Moreover, the moral obloquy involved will normally be likely to be rather less than in what have been styled "truly criminal" cases. 48.5 Fifth, it must not be overlooked that important matters have to be proved by the prosecution beyond reasonable doubt before any liability can attach to the accused. These are the elements of s.92(1) (or, as the case may be, s.92(2) or s.92(3) ). It is only if these matters are proved (and subject also to sub-section (4)) that the potential defence under s.92 (5) arises. 48.6 Sixth, s.92 provides for a sentence of 10 years imprisonment (with or without a fine). That is to be contrasted to Lambert, where it was clearly regarded as a significant factor that the maximum available sentence was life imprisonment: although we bear in mind Mr Tetlow's well made point that those provisions of the Misuse of Drugs Act 1971 extend to Class B and Class C drugs also, with a much lower maximum sentence available. That the maximum available sentence under s.92 is as much as 10 years - quite apart from the prospects of an unlimited fine and confiscation orders - cannot be overlooked (contrast Lynch , where the maximum available sentence was 2 years): it is, indeed, an important point. But we do not think it unprincipled also to have regard to the reality of the matter: which is that most cases under s.92 are brought in the Magistrates Court and, of those, the majority result (in the case of conviction) in a fine. Mr Swift (without objection from Mr Tetlow) cited in his written argument some figures to us: from which it appeared that the commonest disposal of such cases (following conviction) was a fine or discharge. In the period 1998 to 2000 fewer than 10% of convictions in the Crown Court or Magistrates Court under sections 92 and 94 of the Trade Marks Act 1994 resulted in immediate custodial sentences; and, of those, as we understand, no sentence of over five years had been noted, and most were much less. 48.7. Seventh, and in amplification of the foregoing, Mr Swift stressed what he said were the enormous (if not, in some cases, insuperable) obstacles for trading standard departments if the burden imposed by s.92 (5) on the accused was to be treated as only an evidential one. We agree that it would not necessarily take that much for an issue to be raised by a Defendant in this context. It might be capable of being raised, for example, by an assertion in interview that he believed the goods were genuine, because they looked it or because they had come from a supplier whom he believed reputable. The issue once sufficiently raised, it would be for the Crown to prove beyond reasonable doubt the negative of an absence of belief, and the more elusive negative of an absence of reasonable grounds for such belief. This would be likely to give rise to potentially considerable practical difficulties at trial, including but not limited to a potential need to obtain the co-operation of witnesses concerned in the supply chain. Fewer investigations in consequence would be undertaken; fewer prosecutions would result; and the interests of the economy, of innocent consumers and of legitimate businesses would suffer. Mr Swift in fact informed us that the Department of Trade and Industry in December 2001 estimated that counterfeiting or intellectual property crime generally was estimated to cost the UK economy some £9 billion per year and was responsible for prospective job losses in legitimate businesses of over 4,000 people. There is a very strong public interest in seeking to limit or prevent such an eventuality.[49]Considering all these matters, in our judgment the imposition of a reverse legal burden on the accused by the provisions of s.92 (5) is shown to be necessary and justified. It is defined within reasonable limits; it is proportionate, a proper balance being struck between the interests of the public and the interests of the accused. In short, there is nothing unfair about it. It is, in our view, compatible with the Convention and thus is not to be read down.[50]We were understandably much pressed by Mr Tetlow with the recent decision of a different constitution of this Court in Johnstone. That was a case concerned with bootleg recordings. The Court had to decide broad two questions; first, was s.92 of the Trade Marks Act 1994 compatible with Council Directive 89/104 ECC; second, whether it was a defence to a charge under s.92 that the defendant's acts did not amount to a civil infringement of trade mark. The Court answered each question in the affirmative. But the Court was also asked to give guidance on the effect of the decision in Lambert on s.92 (5) of the 1994 Act. The Court, pursuant to such invitation, did give such guidance. The views there expressed on that aspect unquestionably favour the proposition that s.92(5) should be so read as to impose an evidential (rather than legal) burden on the accused. Thus they support the appellant's arguments on this appeal.[51]Since the guidance of the Court of Appeal in Johnstone was sought at the express request of certain prosecuting authorities, we asked Mr Swift to explain how it was that the prosecuting authority in the present case sought to refute the guidance so given. He told us that the request so made in Johnstone had been made without adequate consultation; and the guidance so sought was sought by the three authorities there involved (who did not include the London Borough of Havering) without reference to other local authorities or consultation with the Department of Trade and Industry or other relevant bodies. He further informed us that the opinions of the Court of Appeal as expressed in Johnstone had caused consternation to other trading standards authorities, who perceived that their enforcement functions and duties under s.92 of the 1994 Act would, in consequence, be gravely jeopardised.[52]There is no doubt that the opinions of the Court in Johnstone on this point are obiter: not only were they not on points requiring decision, but also it was further made explicit at the outset of the judgment that the guidance given in any event had no bearing on the cases under decision: since they were all decided before the Human Rights Act 1998 came into force. Thus the views there expressed (although plainly entitled to great respect: the more so given that the judgment was a reserved judgment) are not binding on us. Moreover, and importantly, the point on which guidance was sought was not the subject of any adversarial argument. On the contrary, each of the two counsel appearing for the prosecuting authorities in that case expressly conceded that section 92 (5) imposed an evidential burden only (and not a legal burden) on the accused. In such circumstances, it is unsurprising that the views of the Court of Appeal on this potentially important point were expressed quite shortly (in what was otherwise a lengthy judgment). It is clear that the court received nothing like the detailed arguments (or information) that we have received on this appeal. After a review of the authorities (primarily by reference to the citations of authority by Lord Justice Pill in Lynch ) Lord Justice Tuckey (giving the judgment of the Court) said this at paragraph 82 (the concluding paragraph of the Judgment):
"(i) Though in the event it was not decisive to his deliberations, Pill LJ was plainly concerned (at paragraph 23 of his judgment) as to whether the so-called placing of the evidential burden on the defendant, being in fact a description of the situation in which, as discussed above, what is in fact required is the raising of a sufficient case on the evidence, can properly be described as a burden of proof at all. He therefore had a reluctance (which it seems was not shared by their Lordships in Lambert ) to construe the word 'prove' as anything other than satisfying a legal burden of proof, as opposed to raising an issue. If this be a concern in relation to some statutes, we are satisfied it does not apply here where the words used simply require the defendant to 'show' his belief, which would certainly be consistent, given the obligation of the Courts to construe a statute so far as possible to comply with the Convention, with imposing what is conventionally called only an evidential burden. (ii) We are satisfied that the offence in this case, carrying with it as it does a sentence of up to ten years imprisonment, is one which renders it important to give adequate protection to a defendant, and in any event we can see no similar public policy reasons to those which were identified by Pill LJ in Lynch. "
[53]It seems that, by referring to the obligation of the Courts to construe a statute so far as possible to comply with the Convention, the court in Johnstone was reading down s.92 (5) by resort to s.3 of the Human Rights Act 1998. The Court thus must have formed the view that the presumption of innocence had potentially been infringed in a way which was incompatible with the Convention. Whilst it is clearly right that the present context can in various respects be distinguished from the situation in Lynch , it nevertheless is not altogether clear what the reasons were which caused the court in Johnstone to form the view that the sub-section should be read down. It is, at all events, clear that the potential availability of a 10 year custodial sentence was considered very important. But, as we have indicated, there are a number of important policy and other considerations (to which the attention of the Court in Johnstone was not drawn) to lead to the opposite conclusion. Accordingly, and with respect, we do not agree with the views expressed by the court in Johnstone on this particular point.[54]At the end of her detailed ruling

the Judge said this by reference to the issue raised as to s.92 (5) of the 1994 Act:

"For the avoidance of doubt, I propose to direct the jury in the standard way when the defence bears a burden of proof: that is to say, that once the Crown have proved the elements of the offence it is then over to the defendant to show, on the balance of probabilities, that section 92 (5) provides a defence to him"
We agree with that approach. This appeal is dismissed.

Cited in 6 later judgments