Reference By the Attorney General Under S. 36 CJA 1972, Re [2003] EWCA Crim 762

Case No 2002/6227/S4[2003] EWCA Crim 762
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ATTORNEY GENERAL’S REFERENCE
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21 st March 2003
Before
LORD JUSTICE LATHAMMR JUSTICE HUNTMR JUSTICE HEDLEY
Between
Reference by The Attorney General under s. 36 CJA 1972AppellantAttorney General’s Reference No 4 of 2002AppellantReference by The Attorney General under s. 36 CJA 1972 Attorney General’s Reference No 4 of 2002
Mr D Perry & Miss M Cumberland (instructed by Crown Prosecution Service) for Attorney GeneralMr T Owen, QC & Miss A Richardson (instructed by Michael Purdon & Co) for AppellantHearing Hearing dates : 25 th February 2003
JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
[1]On the 8th May 2002, the acquitted person “A” appeared in the Crown Court to stand his trial on an indictment which contained three counts. The first two counts alleged offences contrary to Section 11(1) of the Terrorism Act 2000 of being a member of (Count 1) and professing to be a member of (Count 2) a proscribed organisation, namely Hamas-Izz al-din al Qassem Brigades (which we shall refer to as Hamas hereafter). The third count alleged an offence of witness intimidation, contrary to section 51 of the Criminal Justice and Public Order Act 1994. On the 21st May 2002, at the conclusion of the prosecution evidence and following legal argument, the trial judge ruled that there was no case to answer on Counts 1 and 2 of the indictment and, subsequently on the 22nd May 2002, a verdict of not guilty was entered in respect of each of those counts. So far as Count 3 was concerned, the prosecution asked for it to remain on the file marked “Not to be proceeded with without the leave of the Crown Court or the Court of Appeal.”[2]Arising out of those proceedings, Her Majesty’s Attorney General has referred the following two questions to this court under section 36 of the Criminal Justice Act 1972 for its opinion. “1. What are the ingredients of an offence contrary to section 11(1) of the Terrorism Act 2000? 2. Does the defence contained in section 11(2) of the Terrorism Act 2000 impose a legal, rather than an evidential burden of proof on an accused, and if so, is such a legal burden compatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms, and in particular, with Articles 6(2) and 10 of the Convention?”[3]Section 11 of the Act provides as follows:
“(1) A person commits an offence if he belongs or professes to belong to a proscribed organisation. (2) It is a defence for a person charged with an offence under subsection (1) to prove: (a) That the organisation was not proscribed on the last (or only) occasion on which he became a member or began to profess to be a member, and (b) That he has not taken part in the activities of the organisation at any time while it was proscribed.” (a) That the organisation was not proscribed on the last (or only) occasion on which he became a member or began to profess to be a member, and (b) That he has not taken part in the activities of the organisation at any time while it was proscribed.”
[4]A person charged with an offence under section 11 may be tried summarily or on indictment. The maximum penalty on conviction on indictment is 10 years imprisonment.[5]The facts out of which the prosecution arose were as follows. The acquitted person arrived in the United Kingdom on the 20th April 2001 having travelled as a stowaway on a ferry from Bergen, Norway. He gave his name as “A” and his date of birth as the 17th November 1980. He described himself as a Palestinian and claimed political asylum. He was arrested and taken to a police station, where he gave a different name and date of birth and described himself as Jordanian. On the 21st April 2001 he was interviewed by Immigration Officers. He said that he had been born in Bethlehem and was a Palestinian; that his parents still lived in Palestine; that he had been shot and wounded by Israeli soldiers in 1995; that his brother had been shot and killed by Israeli soldiers in 1999; that he had left Palestine on the 20th September 2000 to escape poverty, and that he had travelled to the United Kingdom via Algeria, Turkey, Germany and Norway. He was allowed temporary admission into the United Kingdom and provided with accommodation at a local authority hostel.[6]It became apparent to those who were at the hostel with him that he was multi-lingual. He exhibited a keen interest in any news concerning Israel particularly after 11th September 2001. He made a number of comments which would eventually lead to his arrest. These can be summarised as follows: i) In about October 2001, he told another resident at the hostel that he was prepared to take a bomb to a public place like an English pub if he was asked to do so by someone. He was prepared to blow it up. He also said that this was “Jihad” and if he did it did not matter. It was not clear to the other resident whether he was serious or joking. ii) When speaking to other residents in the hostel he said on several occasions that he was a supporter and member of Hamas, he expressed joy at the 11th September bombing and said that he loved Osama Bin Laden and supported the Taliban. Some of the residents considered that he was a joker and did not take him seriously. iii) On the 28th September 2001, while attending a course, he announced to his classmates and to the lecturer that he was not afraid of any backlash following the events of 11th September because “my family name is Bin Laden” and stated “I am a member of Hamas.”[7]He was arrested on the 10th December 2001 and interviewed on a number of occasions between the 10th and 14th December 2001. The interviews may be summarised as follows: i) He admitted that he had been a member of Hamas from either 1997 or 1998, but said that he had left in 1999 because he had discovered that it was involved in the killing of innocent civilians. ii) During his time as a member he had received training in the use of firearms and explosives and had been involved in attacks on the Israeli Army. iii) His father belonged to but was not an active member of Hamas. iv) He described Hamas as a military organisation and its members who died in the Palestinian cause as martyrs. He could not understand why it was seen as a terrorist group when its members were merely trying to defend themselves against the Israelis. v) He said that he had had nothing to do with terrorism since he had arrived in the United Kingdom and had not come to this country to cause trouble. Although he would not use explosives in the United Kingdom, he would do so if he was in Palestine. vi) He denied the conversations attributed to him by the witnesses at the hostel and the college. vii) He declined to give details of the membership of Hamas or how it was financed.[8]He was charged with the two offences which became the first two counts in the indictment and was remanded in custody. Whilst in custody, he wrote a letter to the lecturer who was to be a prosecution witness which was said to have been intended to intimidate. It is not necessary for the purposes of these proceedings to deal with this offence in any greater detail.[9]At the Crown Court, counsel for the Crown accepted that the acquitted person only bore an evidential burden in relation to the defence under section 11(2) of the Act. In other words he accepted that as the defendant was able to raise upon the evidence a real issue as to whether or not he had become a member of Hamas, or professed to be a member of Hamas, before it was a proscribed organisation, it was for the prosecution to establish to the criminal standard of proof that either his membership or professed membership had been after Hamas had been proscribed, or that he had taken part in the activities of the organisation after it had been proscribed. On the basis of that concession by counsel for the Crown, the judge concluded that the acquitted person had sufficiently raised the issue as to when he first became a member of or professed membership of Hamas, and that the prosecution had failed to establish to the criminal standard of proof that he had taken part in the activities of Hamas since proscription. The Attorney General, in referring the matter to this court, is principally concerned with whether or not counsel for the prosecution was correct to concede that the acquitted person only had an evidential, as opposed to a legal burden of establishing the defence under section 11(2) of the Act.[10]Counsel for the Crown clearly made his concession on the belief that section 11(2) if construed so as to impose a legal burden of proof, that is the task of proving the defence on the balance of probabilities, would conflict with the presumption of innocence, and would accordingly be a breach of Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). He did so on the basis of the decision of the House of Lords in R –v- Lambert [2002] 2AC 545, in which the House, strictly speaking obiter, determined, by a majority, that the provision with which the House was concerned, apparently imposing a legal burden on a defendant to establish a defence would, so construed, amount to a breach of Article 6(2); but their Lordships concluded that the provision could, in accordance with section 3(1) of the Human Rights Act 1998, be construed so as to impose an evidential burden only and would be proportionate and accordingly compatible with the Convention.[11]Since the case of Lambert there have been a number of cases in which the courts have grappled with the issue of how to deal as a result with statutory provisions providing for a defence to a charge. In R –v- Drummond [2001] 2 Cr App R 25 and Sheldrake –v- DPP [2003] EWHC Admin 273 (QB) the courts considered provisions of the Road Traffic Acts. In R –v- Carass [2002] 2 Cr App R 77 and R –v- Daniel [2002] EWCA Crim 959, the courts considered provisions of the Insolvency Act 1966. In R –v- Halton Division Magistrates Court and the Forestry Commission [2003] EWHC Admin 272 [QB] the court considered provisions of the Forestry Act 1967. This is not an exhaustive list of the cases in which the ambit of the decision of the House of Lords in Lambert has been considered. But they highlight a number of difficulties that are arising in practice, and indeed an apparent divergence of views that have emerged as to the right approach to this problem. In Drummond and the Halton Magistrates cases the courts held that the statutory provisions in question imposed a legal burden of proof on a defendant which was justified and proportionate in the public interest in its context, albeit prima facie in conflict with the presumption of innocence. In Carass and Sheldrake the courts applied the reasoning of the House of Lords in Lambert to construe what was apparently the imposition of a legal burden of proof as imposing merely an evidential burden of proof. In Daniel, the court held that it was bound by the decision in Carass but had clear reservations about the ability of the court to construe words which on their face appeared to impose a legal burden of proof as imposing merely an evidential one.[12]The varying consequences of the application of the views of the House of Lords in Lambert in these cases makes it clear to us that the first task of the court in this type of case is to determine the meaning of the statutory provision in question on ordinary canons of construction and to identify the context in terms of the mischief to which the Statutory provisions are directed before turning to determine the effect of the Human Rights Act and the Convention.[13]The Act replaced the Prevention of Terrorism (Temporary Provisions) Act 1989 and the Prevention of Terrorism (Additional Powers) Act 1996, together with acts relating to Northern Ireland. Its long title provides; “An Act to make provision about terrorism; and to make temporary provision in Northern Ireland about the prosecution and punishment of certain offences, the preservation of peace and the maintenance of order”[14]It was expressly subjected to an audit under the Human Rights Act 1998; and a statement of compatibility was made to Parliament pursuant to section 19 of that Act. The purpose of the Act is self evident. It provides the measures which Parliament considers necessary to prevent political or paramilitary violence and thereby protect the citizens of the United Kingdom, and enable a democratic society to operate without fear. It also contains measures which are designed to prevent the United Kingdom from being used for the purposes of terrorism outside the jurisdiction. It is universally acknowledged that terrorism is particularly difficult to counter. The European Court of Human Rights acknowledged that full account had to be taken of the special nature of terrorist crime and the threat which it posed to a democratic society in Murray –v- United Kingdom (1994) 19 EHRR 193, at page 222 para 47.[15]Section 1 of the Act provides: “(1) In this Act “terrorism” means the use or threat of action where –(a) the action falls within subsection (2),(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and(c) the use or threat is made for the purpose of advancing the political, or ideological cause. (2) Action falls within this subsection if it– (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life, other than that of the person committing the action,(d) creates a serious risk to the health or safety of the public or a section of the public, or(e) is designed seriously to interfere with or seriously to disrupt an electronic system. (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied. …….. (5) In this Act a reference to action taken for the purposes of terrorism includes reference to an action taken for the benefit of a proscribed organisation.” (a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing the political, or ideological cause. (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system.[16]Proscription is dealt with in Part II of the Act. Section 3 provides:
“(1) For the purposes of this Act an organisation is proscribed if – (a) it is listed in Schedule 2, or (b) it operates under the same name as an organisation listed in that Schedule. ….. (3) The Secretary of State may by order – (a) add an organisation to Schedule 2; …… (4) The Secretary of State may exercise his power under subsection (3)(a) in respect of an organisation only if he believes that it is concerned in terrorism. (5) For the purposes of subsection (4) an organisation is concerned in terrorism if it – (a) commits or participates in acts of terrorism, (b) prepares for terrorism, (c) promotes or encourages terrorism, or (d) is otherwise concerned in terrorism.” (a) it is listed in Schedule 2, or (b) it operates under the same name as an organisation listed in that Schedule. ….. (a) add an organisation to Schedule 2; …… (a) commits or participates in acts of terrorism, (b) prepares for terrorism, (c) promotes or encourages terrorism, or (d) is otherwise concerned in terrorism.”
[17]Sections 4 to 7 of the Act thereafter make provision for organisations and persons to apply to the Secretary of State for an organisation to be removed from Schedule 2 and for appeals from any refusal by the Secretary of State in the first instance to the Proscribed Organisations Appeal Commission, and thereafter to the Court of Appeal. Section 7 makes provision for the consequences of any successful application or appeal on those who may have, in the meantime, been convicted of certain offences in respect of that organisation.[18]The offences specifically related to proscription are: i) Section 11, with which we are concerned and which is set out in paragraph 2 above. ii) Section 12 provides that a person commits an offence if he invites support for a proscribed organisation, if he arranges, manages or assists in arranging or managing a meeting of three or more persons which he knows is to support a proscribed organisation, to further the activities of a proscribed organisation or to be addressed by another person who belongs or professes to belong to a proscribed organisation, or if he addresses a meeting of three or more persons and the purpose of his address is to encourage support for a proscribed organisation or to further its activity. iii) Section 13 provides that a person in a public place commits an offence if he wears an item of clothing or wears, carries or displays an article in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation.[19]Sections 15 to 18 create offences of fundraising, use or possession of money or other property, making funding arrangements, or money laundering for the purposes of terrorism. Section 19 makes it an offence to fail to disclose any belief or suspicion that another person has committed any offences under sections 15 to 18 in certain circumstances. Section 56 makes it an offence to direct at any level the activities of an organisation which is concerned in the commissions of acts of terrorism. By virtue of section 1(5) all these prohibitions and requirements apply to the activities of a proscribed organisation.[20]It can therefore be seen that proscription is an important weapon in the State’s armoury in its battle against terrorism. It criminalizes activities in relation to proscribed organisations in a way which is intended to prevent such organisations from gathering support or financial aid.[21]The final statutory provision to which it is necessary to refer is section 118 of the Act which deals expressly with defences provided to a person charged with certain offences under the Act. It provides:
“(1) Subsection (2) applies where in accordance with the provisions mentioned in subsection (5) it is a defence for a person charged with an offence to prove a particular matter. (2) If the person adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not. (4). The provisions in respect of which sub-sections (2) and (4) apply are: Sections 12(4), 39(5)(a) 54, 57, 58, 77 and 103 of this Act …….”
[22]This section was clearly enacted in order to deal with the possibility that certain of the statutory provisions providing for such defences might be considered an unjustified infringement of a person’s rights under Article 6(2) of the Convention. It is likely that this was a response to the views expressed by both the Divisional Court and the House of Lords in R –v- DPP ex parte Kebilene [2000] 2AC 326, a decision in relation to section 16(A) of the Prevention of Terrorism (Temporary Provisions) Act 1989. The important point for our purposes is that the defence in section 11(2) of the Act with which we are concerned is not one to which the provisions of section 118 apply.[23]There is no dispute before us as to the proper interpretation of section 11 if the ordinary principles of construction of a statute are applied. The requirement for a person charged with the offence under subsection (2) to “prove” the matters set out in (a) and (b) impose on him a legal burden of establishing both of those matters on the balance of probabilities. That follows not simply from a straight forward reading of section 11(2), but also from the omission of section 11(2) from section 118. The purpose of the section, it seems to us is clear. The offence is defined simply in section 11(1). The intention is to criminalize membership of a proscribed organisation in the light of the statutory purpose to which we have referred. Proof of membership may sometimes be difficult, hence profession of membership is itself a criminal offence. Quite apart from dealing with the problem of proof of membership, it also deals with the mischief that professing membership of an organisation is a form of encouragement or support for that organisation as an implicit statement of approval of its aims.[24]The reason for the defence was given by Lord Bassam in the House of Lords in the course of the debate on the second reading as follows:
“Clause 11(2) contains a defence to cover the very rare and specific set of circumstances in which a person becomes a member of an organisation before it is proscribed and has played no part in it after its proscription. To all intents and purposes the person has left the organisation, although that may not be possible in the circumstances. Normally, it is an offence to be a member of a proscribed organisation and no distinction is drawn between active and passive membership, but in the interests of justice this provision makes an exception in the specific case that I have set out. Having made an exception to the general rule that membership per se is an offence, it seems reasonable that the onus should be on the defendant to make the case that he or she has not played an active part in the organisation.”
[25]This statement of the purpose of the provision underlines what seems to us to be the inescapable meaning and effect of section 11 taken as a whole. The offence itself is complete on proof that the defendant belongs to the organisation or has professed that he belongs to the organisation. The defence is only available to two limited categories of persons. As to the first, that is the person who belonged before the date of proscription and played no part in its activities after proscription, there is no difficulty in understanding the rationale of excluding such a person from the criminal consequences of the section. There would otherwise be a real danger of giving to the section a retrospective effect. It is less easy to see the justification for excluding the second category, namely a person who professes membership. He could only be charged with an offence under section 11(1) if he professed membership at some time after proscription. It follows that the defence will be available to him if he first professed membership before proscription but repeated it afterwards in circumstances where he played no active part in the organisation. It might be thought that professing membership in such circumstances would carry with it the same vice as professing membership for the first time after proscription. Be that as it may, Parliament has determined that the defence should be available to that category of person. What is of particular significance is that the defence will inevitably be available to fewer and fewer persons charged with the offence with the passage of time.[26]On that construction of the section, subsection 11(2) involves no infringement of the presumption of innocence. It provides an exception in a limited number of cases. The effect of the judge’s decision in the present case, is that wherever a defendant raises on the evidence an issue as to his belonging to one of the two excluded categories, the prosecution has to disprove that issue. That can only be justified if section 11(2) involves an infringement of the defendant’s Article 6(2) rights; in other words it can only be right if in addition to proving membership or professed membership of the proscribed organisation, there is a further necessary ingredient of the offence, namely, that the defendant was not a member of the organisation or a person who professed membership before proscription and had not taken part in the activities of the organisation after it had been proscribed. If that element is not a necessary ingredient of the offence, it is difficult to see how section 11(2) could be said to interfere with the presumption of innocence.[27]Mr Owen QC, on behalf of the acquitted person, submits that it is a necessary ingredient in the light of the reasoning of the House of Lords in Lambert. In that case the statutory provisions in question were contained in the Misuse of Drugs Act 1971, in particular section 28(2) which provides:
“Subject to subsection (3) below, in any proceedings for an offence to which this section applies it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it was necessary for the prosecution to prove if he is to be convicted of the offence charged.”
[28]Mr Owen also appeared for the appellant in Lambert. Dealing with his argument that knowledge that the article was a dangerous drug, was an essential ingredient of the offence of possession of a dangerous drug, Lord Steyn said at paragraph 35:
“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, eg the hypothetical case of transferring the burden of disproving provocation to an accused. In R –v- Whyte (1988) 51 DLR(4th) 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 page 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 which 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 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 in the presumption even if an issue on section 28 is in strict law regarded as a pure defence.”[29]Mr Owen therefore submits that it is not sufficient just to consider in the present case section 11(1) alone. It has to be read together with section 11(2) in order to determine what the true nature of the offence is and the extent to which, as a consequence, section 11(2) can properly be said to interfere with the presumption of innocence. We accept that that is the task that we have to engage in. The other members of the House of Lords, whilst perhaps not taking precisely the same route as Lord Steyn, came to the same conclusion as to the need to identify the true nature of the offence. Lord Slynn said, at paragraph 17:
“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: see Salabiaku –v- France (1988) 13 EHRR 379, 388, 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 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 the consider section 3(1) of the 1998 Act. That section provides: “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 right”
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 as a riposte to the offence prima facie established are of crucial importance.”[30]The views of Lord Hope make the point even more starkly. He concluded that the offence was complete once the prosecution had proved possession of the dangerous drug in the sense that the defendant knew that the thing existed and was in his possession. He went on, however, at paragraph 89 as follows:
“The statutory objective is to penalise the unauthorised possession of dangerous or otherwise harmful drugs. But the statute recognises, among other things, that it would be wrong to penalise a person who neither knew nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged (section 28(2)) or that the substance or product in question is a controlled drug (section 28(3)(b)(i)). That being so, it is hard to see why a person who is accused of the offence of possessing a controlled drug and who wishes to raise this defence should be deprived of the full benefit of the presumption of innocence.”
[31]Lord Clyde approached the matter in the same way. He clearly considered that properly construed, although the offence was strictly complete on proof of possession, the gravamen of the offence was knowledge of the fact that what was possessed was a dangerous drug. That follows from the conclusion that he reached in para 156, where he said:
“By imposing a persuasive burden on the accused it would be possible for an accused person to be convicted where the jury believed he might well be innocent but have not been persuaded that he probably did not know the nature of what he possessed. The jury may have a reasonable doubt as to his guilt in respect of his knowledge of the nature of what he possessed but still be required to convict. Looking to the potentially serious consequences of a conviction at least in respect of Class A drugs it does not seem to me that such a burden is acceptable.”
[32]Equally, Lord Hutton, who was ultimately of the view that the legal burden was justified and proportionate, was nonetheless of the view that the offence creating section, namely section 5(3) had to be read together with section 28(2) in order to determine the ambit of the offence; that is the effect of the way he approached the matter in paragraphs 183 to 185. He equated the position to the type of presumption which was considered by the European Court of Human Rights in Salabiaku –v- France. That was a case in which the court had to consider a presumption of criminal liability laid down in the French Customs Code for every person found in possession of prohibited goods. The court noted that presumptions of fact and law operated in every legal system. It held that the Convention did not prohibit such presumptions in principle, but stated that the Convention required contracting states to remain within certain limits in this respect as regards criminal law. At paragraph 28 at page 388 it held:
“Article 6(2) does not therefore regard presumptions of fact or 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.”
[33]In analysing the problem in this way, it is clear that Lord Hutton considered that the offence creating section was essentially one raising a presumption of guilty knowledge, in other words knowledge that the goods were indeed dangerous drugs. He was therefore of the opinion that the true offence included that guilty knowledge. His conclusion however was that Parliament was entitled to impose a legal burden on the defendant in the context of drug offences.[34]The exercise of discovering the true nature of the offence is exemplified in the decision of the Divisional Court in Sheldrake. As we have already said, this concerned provisions of the Road Traffic Act. The offence with which the appellant was charged was an offence under section 5(1)(b) of the Road Traffic Act 1988. This section so far as material, provides: “(1) If a person – …… (b) is in charge of a motor vehicle on a road or other public place, after consuming so much alcohol that the proportion in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence. (2) It is a defence for a person charged with an offence under subsection (1)(b) above to prove that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle whilst the proportion of alcohol on his breath blood, or urine remained likely to exceed the prescribed limit ” (b) is in charge of a motor vehicle on a road or other public place, after consuming so much alcohol that the proportion in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence.[35]Clarke LJ, who gave the leading judgment, set out in paragraph 25 four questions which had to be answered: i) Whether section 5(1)(b) of the 1988 Act, read with section 5(2) made an inroad on or derogated from Article 6 (2) of the Convention; ii) If so, whether section 5(2) was justified; iii) If so whether section 5(2) was proportionate if it imposed a legal burden on the accused; and iv) If not, whether it could and should be read down in section 3(1) of the Human Rights Act as imposing only an evidential burden on the accused.[36]In answering the first question, he concluded that the gravamen of the offence under section 5(1)(b) was the likelihood of the accused driving. He decided that, following Taylor LJ in DPP –v- Watkins [1989] 1QB 821 at page 829, the mischief aimed at was to prevent driving whilst unfit through drink, and that accordingly the offence of “being in charge” was intended to convict those who were not driving but who in all the circumstances either had or might yet form the intention of driving the vehicle and therefore driving the vehicle whilst still unfit. The court held that as a result, section 5(1)(b) prima facie infringed the presumption of innocence. By a majority, it held that to construe the provision as imposing a legal burden on the defendant would be disproportionate and would amount to a breach of Article 6(2), but that the provision could be read down in the same way as envisaged in Lambert so as to impose an evidential burden only.[37]In both Lambert and Sheldrake, the courts approached the solution to the first question posed by Clarke LJ in Sheldrake on the basis that it was the gravamen of the offence which had to be identified in order to determine whether in truth a provision providing a defence infringed the presumption of innocence. In Lambert the gravamen of the offence was guilty knowledge; in Sheldrake the gravamen of the offence was the risk of driving whilst unfit. The defence which identified the gravamen of the offence was available to every person charged with the offence and could properly, therefore, be taken into account in determining what the true nature of the prohibited activity was intended to be.[38]In the present case, similar considerations do not arise. Whether Lord Bassam was correct in stating that the defence was only likely to be applicable in “very rare” cases, may be a matter for debate. The fact is that, in our view, section 11(1) defines the gravamen of the offence, even read together with section 11(2). That is because section 11(2) identifies a very specific exception applicable to a limited class of defendants which does not, in our judgment, in any way affect or infect the criminal offence fully identified in section 11(1). It is in our judgment quite clear that Parliament intended that a person should be guilty of an offence under section 11(1) irrespective of whether or not he had played any active part in the organisation. Section 11(2) therefore does not infringe the presumption of innocence so as to breach Article 6(2) of the Convention.[39]Although we have referred in this judgment to the defence in section 11(2) of the Act as amounting to an exception, it is not an exception of the same sort as was considered in the cases of Edwards and Hunt referred to by Lord Steyn in Lambert. The courts in those cases discussed provisions of Acts which did not expressly impose on the defendant any burden, but which were held to have done so on the construction of the Act in question. A typical case of this type involves an allegation that a particular activity has been carried on without a licence. The Divisional Court considered this problem in the Halton Magistrates case to which we have already referred. It was a court again presided over by Clarke LJ, and the judgment was handed down on the same day as Sheldrake. Clarke LJ giving the leading judgment, considered that in such cases the question was not whether or not the presumption of innocence had been infringed, if the burden of proving that the activity was carried out in accordance with the licence was a legal burden, because it clearly was. The question was whether or not the imposition of that burden was both justified and proportionate. He held that in the context of the Forestry Act 1967, it was.[40]That type of statutory provision is clearly different from the one under consideration in this case. In particular the context of those cases was that the statutory provisions were regulatory in nature.[41]If we are wrong as to the nature of the offence and accordingly the effect of Article 6(2), the question is whether or not the provision is justified and proportionate. Although Article 6(2) is in apparently absolute terms, the European Court of Human Rights made it plain in Salabaiku that for the reasons given in the passage to which we have referred in paragraph 32 above a balancing exercise has to be carried out which takes into account the importance of what is at stake for the State on the one hand and the defendant on the other.[42]This exercise involves taking into account a number of considerations. On the one hand, the defendant faces a charge which on conviction carries a maximum sentence of 10 years imprisonment, although it is to be noted that the offence can be tried summarily and a charge can only be brought with the consent of the Director of Public Prosecutions. On the other hand, there is a manifest public interest in the suppression of terrorism which requires effective measures which can meet the threat to society. An important consideration in this context is the relative difficulty of discharging the burden of proof were it to be placed on the one hand on the defendant and on the other on the State. It seems to us that the defendant is the person peculiarly able to establish the date on which he became a member of a proscribed organisation, or first professed membership. To impose merely an evidential burden on a defendant could enable mere assertion on his part to require the prosecution to prove the contrary. That would be an unrealistic burden to impose upon the prosecution. It seems to us that Parliament was accordingly entitled to take the view that a legal burden was appropriate.[43]The final question which we have to resolve is whether or not Article 10 either affects the conclusion that we have come to on the arguments under Article 6(2), or otherwise imposes any constraints upon a prosecution under section 11(1), in that imposing the legal burden of proof on a defendant would amount to an unjustified and disproportionate interference with his right to freedom of expression. For the moment, we find it difficult to see how this could ever be the case. Section 11 does not interfere with any person’s freedom to hold opinions and to receive and impart information and ideas, except in the specific instance of professing membership of a proscribed organisation. Parliament has determined that that is, in itself, to be an offence. For the reasons that we have already given, there is clear justification for criminalizing that activity which appears to us to be proportionate to the mischief with which the Act is intended to deal. The fact that in a particular circumstance, that is where a person has professed membership before the organisation was proscribed, a person is granted an indulgence which permits an exception to be made to that limited extent, does not, in our view, undermine that justification. However, as Richards J pointed out in R (on the Application of the PKK and Others) –v- Secretary of State for the Home Department [2002] EWHC 644 (Admin) there may be circumstances in a particular case in which a statutory provision such as section 11 might involve a disproportionate infringement of an individual’s Article 10 rights, difficult though it may be to envisage such a situation in the abstract. Mr Owen argues that to apply section 11 to a situation where a person merely out of bravado professes membership of a proscribed organisation would be such a case. We disagree. Whatever the motive, the fact of professing membership carries with it the vice that section 11 is intended to meet. We can see no justification therefore for the argument that there has to be a further ingredient, such as an intention to further the aims of the proscribed organisation, in order to avoid infringing Article 10..[44]Accordingly, in answer to the two questions which have been referred to this court by the Attorney General, our opinion is: i) The ingredients of the offence contrary to section 11(1) are set out fully in section 11(1). ii) The defence in section 11(2) imposes a legal rather than an evidential burden of proof on an accused and is compatible with Article 6(2) of the Convention, and, subject to the caveat in paragraph 43 above, compatible with Article 10 of the Convention.

Cited in 4 later judgments