Grundy & Co Excavations Ltd., R (on the application of) & Anor v Halton Division Magistrates Court [2003] EWHC 272 (Admin)

Case No CO/1324/2002

[2003] EWHC 272 (Admin)

IN THE SUPREME COURT OF JUDICATURE

QUEEN’S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Strand,

London, WC2A 2LL

Date Monday 24 th February 2003

Before

LORD JUSTICE CLARKE

MR JUSTICE JACK

Between

and SEAN PARRYClaimants

HALTON DIVISION MAGISTRATES COURTDefendant

THE FORESTRY COMMISSION I nterested Party

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Charles Garside QC and W Parkinson

(instructed by J Keith Park & Co) for Claimants

for The Defendant did not appear and was not represented

Peter Birts QC

(instructed by Forestry Commission Legal Department) for Interested Party

Judgment

Introduction and Background

[1]This application for judicial review arises out of summonses issued by the Forestry Commission (“the Commission”) against the claimants, Grundy and Co Excavations Ltd (“Grundy”) and Mr Sean Parry, on 18 April 2001 alleging that they felled 86 trees without the authority of a felling licence issued by the Forestry Commissioners (“the Commissioners”) under section 9(1) of the Forestry Act 1967 contrary to section 17 of the same Act, as amended. The offences were alleged to have been committed between 16 August and 12 October 2000 at Sutton Weaver in Cheshire.

[2]We were told by Mr Garside QC on behalf of the claimants that both Grundy and Mr Parry admit that they felled the trees within the meaning of section 9(1) of the Forestry Act 1967, as amended (“the 1967 Act”). Grundy admits that it felled the trees through its employees and Mr Parry, who is employed by Grundy, admits that he directed the felling of the trees.

[3]The claimants admit that they began to fell the trees on 28 September 2000. Their case is that they did so pursuant to an agreement made between Mr Parry on behalf of Grundy and Mr Ford, who was (I think) the owner of the land and was present from time to time while the trees were being felled. The Commission became aware of the situation and intervened. Mr Parry and Mr. Ford were interviewed separately under caution. Mr. Ford’s account was that Grundy did not have his permission to fell the trees, although he subsequently pleaded guilty to felling the trees without a licence when the case came on for trial before District Judge Dodd at Halton Magistrates Court on 20 December 2001.

[4]On that day, after Mr Ford had pleaded guilty Mr Grundy and Mr Parry maintained their pleas of not guilty and we were told by Mr Parkinson, who appears with Mr Garside QC on this application and appeared before the district judge on behalf of the claimants, that he invited the district judge to make rulings as to the principles to be applied. The precise scope of the argument is not entirely clear but, as has been observed on behalf of the district judge, it was, perhaps unsurprisingly, much less elaborate than before us. It is, as I understand it common ground that the district judge resolved each of the issues in favour of the prosecution. There are and were essentially two issues, namely burden of proof and mens rea.

[5]The claimants subsequently sought permission to apply for judicial review of that decision. By a letter dated 17 May 2002 the Commission indicated that it would not oppose the application for permission. As I understand it, it did so on the advice of Mr Birts QC in order to clarify the relevant legal principles both for the purposes of this case and for the future. On 29 May 2002 permission to apply for judicial review was granted by Sullivan J, who directed that the application should be considered by a Divisional Court. This is the hearing of that application.

The Statute and Felling Licence

[6]The 1967 Act provides, so far as relevant, as follows:

“9 (1) A felling licence granted by the commissioners shall be required for the felling of growing trees, except in a case where by or under the following provisions of this Part of this Act this subsection is expressed not to apply. (2) Subsection (1) above does not apply - (a) to the felling of trees with a diameter not exceeding 8 centimetres or, in the case of coppice or underwood, with a diameter not exceeding 15 centimetres; or (b) to the felling of fruit trees or trees standing or growing on land comprised in an orchard, garden, churchyard or public open space; or (c) to the topping or lopping of trees or the trimming or laying of hedges. (3) Subsection (1) above does not apply to the felling by any person of trees on land in his occupation or occupies by a tenant of his - (a) where the trees have a diameter not exceeding 10 centimetres and the felling is carried out in order to improve the growth of other trees; or (b) where the following conditions are satisfied, that is to say – (i) the aggregate cubic content of the trees which are felled by that person without a licence (exclusive of trees to whose felling subsection (1) above does not apply) does not exceed (5 cubic metres) in any quarter; and (ii) the aggregate cubic content of the trees so felled which are sold by that person whether before or after the felling (exclusive as aforesaid) does not exceed 2 cubic metres in any quarter, or such larger quantity as the Commissioners may in a particular case allow. (4) Subsection (1) above does not apply to any felling which (a) is for the prevention of danger or the prevention or abatement of a nuisance; (b) is in compliance with any obligation imposed by or under an Act of Parliament, including this Act; (c) is carried out by, or at the request of an electricity operator, because the tree is or will be in such close proximity to an electric line or electrical plant which is kept installed or is being or is to be installed by the operator as to have the effect mentioned in paragraph 9(1)(a) or (b) of Schedule 4 to the Electricity 1989; (d) is immediately required for the purpose of carrying out development authorised by planning permission granted or deemed to be granted under the Town and Country Planning Act 1990 or the enactments replaced by that Act, or the Town and Country Planning (Scotland) Act 1997. (5) Regulations made by the Commissioners under this Part of this Act may modify subsections (2) to (4) as follows, that is to say – (a) they may provide for additional exceptions from the application of subsection (1) above and may in particular substitute [different diameters or quantities from those specified above]. …. (c) they may restrict or extend the exception in subsection (3)(b) … and the said subsections shall have effect with any modification made by regulations made under this subsection. 10 (1) An application for a felling licence may be made to the Commissioners in the prescribed manner by a person having such an estate or interest in the land on which the trees are growing as enables him, with or without the consent of any other person, to fell the trees …. 17 (1) Anyone who fells a tree without the authority of a felling licence, the case being one to which section (9)(1) of this Act applies so as to require such a licence, shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale or twice the sum which appears to the court to be the value of the tree, whichever is the higher. 35 In this Part of this Act … “felling” includes wilfully destroying by any means; … “felling licence” means a licence under this Part of this Act authorising the felling of trees; …”

A number of further exceptions have been provided for in regulations made under section 9(5). (a) to the felling of trees with a diameter not exceeding 8 centimetres or, in the case of coppice or underwood, with a diameter not exceeding 15 centimetres; or (b) to the felling of fruit trees or trees standing or growing on land comprised in an orchard, garden, churchyard or public open space; or (c) to the topping or lopping of trees or the trimming or laying of hedges. (a) where the trees have a diameter not exceeding 10 centimetres and the felling is carried out in order to improve the growth of other trees; or (b) where the following conditions are satisfied, that is to say – (i) the aggregate cubic content of the trees which are felled by that person without a licence (exclusive of trees to whose felling subsection (1) above does not apply) does not exceed (5 cubic metres) in any quarter; and (ii) the aggregate cubic content of the trees so felled which are sold by that person whether before or after the felling (exclusive as aforesaid) does not exceed 2 cubic metres in any quarter, or such larger quantity as the Commissioners may in a particular case allow. (a) is for the prevention of danger or the prevention or abatement of a nuisance; (b) is in compliance with any obligation imposed by or under an Act of Parliament, including this Act; (c) is carried out by, or at the request of an electricity operator, because the tree is or will be in such close proximity to an electric line or electrical plant which is kept installed or is being or is to be installed by the operator as to have the effect mentioned in paragraph 9(1)(a) or (b) of Schedule 4 to the Electricity 1989; (d) is immediately required for the purpose of carrying out development authorised by planning permission granted or deemed to be granted under the Town and Country Planning Act 1990 or the enactments replaced by that Act, or the Town and Country Planning (Scotland) Act 1997. (a) they may provide for additional exceptions from the application of subsection (1) above and may in particular substitute [different diameters or quantities from those specified above]. …. (c) they may restrict or extend the exception in subsection (3)(b) … …. … “felling” includes wilfully destroying by any means; … “felling licence” means a licence under this Part of this Act authorising the felling of trees; …”

[7]It is common ground that the 1967 Act contemplates that felling licences will be in writing and we were shown a form of ‘Licence to Fell Growing Trees’ which describes the trees to be felled as shown on a map and includes the following:

“You should tell others involved with the felling about the details in this licence – eg by giving a copy of the licence and map to the person felling the trees. …”

The Issues

[8]The Commission’s case on burden of proof is that it need only prove that the accused felled the trees and that the legal or persuasive burden is on the accused to prove on the balance of probabilities either that a licence was not necessary because the case falls within one of the exceptions in subsections (2) to (4) of section 9 or in a relevant regulation or that a relevant licence had been granted. As to mens rea, the Commission’s case is that it need prove no state of mind or mens rea save that implicit in the meaning of ‘fell’ or ‘felling’.

[9]Before considering the claimants’ case as to the relevant principles it is convenient, if possible, to identify the nature of their proposed defence on the facts. It is not, as I understand it, suggested that a felling licence had been granted permitting the felling of the trees. On the contrary, it is common ground that neither Mr Ford nor anyone else had sought or obtained such a licence. Mr Garside told us that he did not have a proof of evidence from Mr Parry or (I think) any other employee or officer of Grundy. However, Mr Parry’s possible defence can perhaps be seen from what he said in interview.

[10]That account can be summarised in this way. Mr Parry was employed by Grundy as a surveyor. Grundy’s employees cut down the trees on the instructions of Mr Ford. The trees were to be cut and pushed into a valley with a view to making a hard standing. Mr Parry was asked whether he enquired of Mr Ford whether a licence was required to fell the trees. He said no, he was not aware that a licence was required. He said that he had asked about a preservation order and Mr Ford had said that there was none. Mr Ford had also told him, he said, that the planning department, which I understand to mean of the local authority, had sent him a letter “saying it was OK”. Mr Parry added that they would not have felled the trees if they had known that they needed a licence from the Forestry Commission.

[11]Before the hearing of this application began it appeared that the claimants’ case on the principles relevant to burden of proof was that there was no relevant burden on the claimants. In his skeleton argument Mr. Garside submitted that section 17 of the 1967 Act does not create an offence of felling without a licence and provide exceptions or defences. He submitted that it provides for an offence of felling without a licence where one is required and that it follows that it is for the prosecution to prove that a licence was required and thus that the facts fell outside those described in section 9(2), (3) or (4). In short he submitted that the case falls outside the principles in R v Edwards

[1975] 1 QB 27

and R v Hunt (Richard)

[1987] AC 352

[12]However, at the outset of the oral argument Mr Garside made it clear that he accepted that subsections (2) to (4) of section 9 create exceptions which impose a burden on the accused. He submitted that the burden was not legal or persuasive but evidential. He submits that that is the position at common law or, in any event, by reason of the effect of

Article 6(2) of the European Convention on Human Rights

(“the Convention”) and the Human Rights Act 1998 (the “HRA”). As to mens rea, he submits that the prosecution must prove that the accused did not have an honest and reasonable belief that either no licence had been granted or that an exception applied. Alternatively he submits that the prosecution must establish relevant recklessness.

[13]It is convenient to consider first the position at common law with regard both to the burden of proof and to mens rea before considering the effect of the Convention and the HRA.

The Position at Common Law

[14]Two questions arise as follows.(1) Upon which party or parties is or are the burden or burdens of proof under section 17 of the 1967 Act?

(2) What, if any, mental element must the prosecution establish in a prosecution under section 17?

The Burden of Proof

[15]As indicated above, the Commission’s case is that the only burden of proof upon it as the prosecutor is to prove that the accused felled the trees and that it is then for the accused to prove on the balance of probabilities either that a licence was not required or that he felled the trees with the authority of a licence. It is, as I understand it, common ground that the District Judge so held. It is also common ground that a legal and a persuasive burden is the same. I shall for convenience refer to it as a legal burden. Mr Birts QC submits on behalf of the Commission that this case falls within the principles laid down by the Court of Appeal Criminal Division in Edwards and the House of Lords in Hunt.

[16]Edwards has for many years been the leading case on questions of this kind. The judgment of the court was given by Lawton LJ, the other two members of the court being Lord Widgery CJ and Ashworth J. It is a judgment of great erudition which Mr Birts submits is subject to only a slight gloss in the light of the decision of the House of Lords in Hunt. In Edwards the court had regard to the provisions of what is now section 101 of the Magistrates Courts Act 1980. Section 101 provides:

“Where the defendant to an information or complaint relies for his defence on any exception, exemption, proviso, excuse or qualification, whether or not it accompanies the description of the offence or matter of complaint in the enactment creating the offence or on which the complaint is founded, the burden of proving exception, exemption, proviso, excuse or qualification shall be on him; and this not withstanding that the information or complaint contains an allegation negativing the exception, exemption, proviso, excuse or qualification.”

[17]The principle or proposition for which Edwards is or was authority is stated thus at pp 39 H to 40 B “In our judgment this line of authority establishes that over the centuries the common law, as a result of experience and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law, was hammered out on the anvil of pleading. It 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 specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisos, exemptions and the like, then the prosecution can rely upon the exception. ” I should note that at page 40 C Lawton LJ emphasised that the application of that principle did not depend upon either the fact or the presumption that the defendant had peculiar knowledge enabling him to prove the position of any negative averment. However, as appears below, it seems to me that in Hunt this factor has been recognised as having somewhat greater significance.

[18]I should also note that at page 40 D Lawton LJ described the consequence of the application of the principle thus:

“Two consequences follow from the view we have taken as to the evolution and nature of this exception. First, as it comes into operation on an enactment construed in a particular way, there is no need for the prosecution to prove a prima facie case of lack of excuse, qualification or the like; and secondly, what shifts is the onus: it is for the defendant to prove that he was entitled to do the prohibited act. What rests on him is the legal, or, as it is sometimes called, the persuasive burden of proof. It is not the evidential burden.”

Neither party cited any case in which the court has held at common law that the relevant statute provides for an exception or qualification which imposes an evidential burden as opposed to a legal burden on the accused; cf Rowland v Thorpe

[1970] 3 All ER 195

[19]In Hunt the House of Lords held that in every case the question is one of construction of the relevant statute. It was an offence to be in possession of a preparation of morphine “containing … not more than 0.2 per cent of morphine … being a preparation compounded with one or more other ingredients …” The police found at the appellant’s home a paper fold containing 154 milligrams of a white powder which, when analysed, was found to be morphine mixed with other ingredients. The appellant was charged with possession of morphine. The prosecution adduced no evidence of the proportion of morphine in the powder, the judge rejected a submission of no case to answer and the appellant then pleaded guilty. The House of Lords held that the provision quoted above dealt not with exceptions to what would otherwise be unlawful but with the essential ingredients of the offence and that it had been for the prosecution to prove that the morphine in the possession of the appellant had been in the prohibited form, which it had not done. The conviction was accordingly quashed.

[20]Lord Griffiths gave the leading speech. He said this at page 374 A to C:

“The real difficulty in these cases lies in determining upon whom Parliament intended to place the burden of proof when the statute has not expressly so provided. It presents particularly difficult problems of construction when what might be regarded as a matter of defence appears in a clause creating the offence rather than in some subsequent proviso from which it may more readily be inferred that it was intended to provide for a separate defence which the defendant must set up and prove if he wishes to avail himself of it.”

[21]Lord Griffiths then discussed the decision of the House of Lords in Nimmo v Alexander Cowan & Sons Ltd

[1968] AC 107

. The House was divided on the question at issue, but Lord Griffiths said at page 374 F to H:

“However, their Lordships were in agreement that if the linguistic construction of the statute did not clearly indicate upon whom the burden should lie the court should look to other considerations to determine the intention of Parliament such as the mischief at which the Act was aimed and practical considerations affecting the burden of proof and, in particular, the ease or difficulty that the respective parties would encounter in discharging the burden. I regard this last consideration as one of great importance for surely Parliament can never lightly be taken to have intended to impose an onerous duty on a defendant to prove his innocence in criminal case, and a court should be very slow to draw any such inference from the language of a statute. When all the cases are analysed, those in which the courts have held that the burden lies on the defendant are cases in which the burden can be easily discharged.”

Lord Ackner too stressed at page 383 E the broad considerations to be taken into account and in particular the practical consequences of holding that the burden of proof rested on one party or the other.

[22]The House held Edwards to be correctly decided, but Lord Griffiths observed at page 375 F that Edwards expressed the court’s conclusion in the form of an exception to what it said was a rule of law. He then quoted part of the passage at page 39 H to 40 B which I have set out above and added:

“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 definition are likely to be exceedingly rare. But I find it difficult to fit Nimmo v Alexander Cowan … into this formula, and I would prefer to adopt the formula as an excellent guide to construction rather than as an exception to the 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 … Edwards as rightly decided.”

[23]It is thus clear that, while the general principles are those set out in Edwards, each case depends upon the construction of the particular statute. The question in each case will be whether the provision concerned is an “exception, exemption, proviso, excuse or qualification” within the meaning of section 101 of the Magistrates Courts Act 1980. It is also clear from Hunt, and indeed from the express terms of section 101, that in such a case “the burden of proving the exception, proviso, excuse or qualification, shall be on the defendant.”

[24]As I read the decision in Hunt, the House rejected the submission that any burden on the accused should be construed as evidential and not legal. In the passage immediately following that quoted above, Lord Griffiths rejected the submission in this way, at page 376 A to B: My Lords, I am, of course well aware of the body of distinguished 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 11th 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 for your Lordships’ House.” It is thus quite clear that where, applying the principles in Edwards and Hunt and the provisions of section 101 of the Magistrates Courts Act 1980, there is a burden on the accused, it is a legal burden and not an evidential burden.

[25]I turn to the 1967 Act. As I understand it, Mr Garside now accepts on behalf of the claimants that, so far as the provisions of subsections (2) to (4) of section 9 and any relevant regulations are concerned, on their true construction, section 9 and 17 of the Act, when read together in the context of the Act as a whole impose a reverse burden on the accused, but he submits that the burden on the accused is an evidential burden, the legal burden remaining on the prosecution.

[26]In my opinion Mr Garside was correct to concede that a reverse burden is imposed on the accused in those respects. As stated above, the question is whether on the true construction of the Act the provisions relied upon are exceptions within the meaning of section 101 of the Magistrates Courts Act 1980. To my mind they plainly are for three related reasons.

[27]The first reason is that they are so described in the 1967 Act itself. Thus in section 9(5)(a) the Commissioners are given power to make regulations which provide for “additional exceptions from the application of subsection (1)” and in section 9(5)(c) the power extends to restricting or suspending “the exception in subsection 3(b). In these circumstances I see no reason why it should be held that the provisions in subsections (2) to (4) or indeed regulations made under subsection (5) are not “exceptions” within the meaning of section 101 of the Magistrates Courts Act 1980.

[28]The second reason derives from the terms of the statute, quite apart from the use of the term ‘exceptions’. Section 17 in effect provides that anyone who fells a tree without the authority of a licence required by section 9 commits an offence. Section 9(1) provides that a licence is required for felling trees “except in” certain circumstances, namely those set out in subsections (2) to (4). The question posed in the passage quoted above from Edwards is whether section 9 “prohibits the doing of an act in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities”. Pausing there, section 9 (1) undoubtedly prohibits the felling of trees in specified circumstances, namely those outside subsections (2) to (4), save with the licence of a specified authority, namely a felling licence granted by the Commission. Both Edwards and Hunt and section 101 of the Magistrates Courts Act 1980 show that if, on its true construction, the section prohibits the doing of acts subject to exemptions then the prosecution can rely upon the acts and there is no need for the prosecution to prove lack of excuse, qualification or the like. In my opinion section 9 does precisely that. It prohibits the doing of acts, namely felling trees, subject to exemptions or exceptions, namely those set out in subsections (2) to (4).

[29]The third reason is that the practical considerations which Lord Griffiths and Lord Ackner said should be taken into account lead to the same conclusions. If no burden were imposed on the accused, the Commission would have to negative all factual situations provided for both in subsections (2) to (4) and in the not insignificant number of regulations which have been made. That would, quite simply, be impossible.

[30]On the other hand, if a burden is imposed on the accused, the facts should be within his knowledge. If the accused is the person who would obtain the licence under section 10, there will be no difficulty in his proving all the facts in any of the subsections upon which he can rely. If the accused is a contractor, there should again be no real difficulty in establishing the relevant facts.

[31]In any event, I do not think that Parliament could conceivably have intended the Commission to negative every possible justification of felling trees without a licence. It follows, that in my opinion on the true construction of sections 9 and 17, the statute imposes a burden on the accused. It further follows, from the decision of the House of Lords in Hunt,that it is a legal and not an evidential burden.

[32]Those conclusions seem to me to be consistent with the principles applied by this court in R v Alath Construction Ltd

[1990] 1 WLR 1255

, albeit in the context of the felling of a tree in contravention of a tree preservation order. They are also in line with the decision of His Honour Judge Gower QC and two justices in the Lewes Crown Court in Forestry Commission v Grace

[1992] 1 EGLR 28

, with which I agree. Nor are they inconsistent with the decision of this court in Forestry Commission v Frost (1989) 154 JP 14. In that connection I do not think that any assistance can be obtained from the decision on the particular facts of that case not to remit the matter to the magistrates court.

[33]A similar question might arise as to whether it is for the prosecution to prove the absence of a felling licence or whether the burden is on the accused to prove on the balance of probabilities that a felling licence had been granted. It appears to me to be arguable that on the true construction of the statute it is for the Commission to prove that the felling was not licensed because it is the Commissioners who grant the licence. That would be on the basis that the absence of a licence is an essential ingredient of the offence and not an “exception, exemption, proviso, excuse or qualification”. It was no doubt on that basis that the court said in Alath that it was for the prosecution to prove, among other things, that the defendant had felled the tree without the permission of the local authority, although I am not sure that that was a live issue between the parties.

[34]In a case like the present, where no felling licence at all was granted, the problem is most unlikely to arise because it will be clear that no licence has been granted. In such a case it will not matter upon whom the burden of proof would be if the point had been in issue. However, it struck me (as a result of discussion with Jack J) that the point might be important in a case in which there was a licence but there was an issue as to whether or not the felling had been carried out in accordance with the terms of the licence. For example, in the licence which we were shown, the trees which it was licensed to fell were stated to be marked with pink dots. There might be an issue as to whether the trees felled were or were not limited to those marked by pink dots. A similar issue could arise as to whether trees which had been felled were inside or outside an area marked on a plan identified in the licence.

[35]In such a case it would be difficult for the Commission to prove what was the case, whereas the accused would know the true position. That would be an important factor in answering the question whether, on the true construction of sections 9 and 17, Parliament intended the burden of proving that the felling was with the authority of a licence to be on the accused.

[36]The traditional approach adopted in Edwards (and indeed the decision itself)would lead to the conclusion that the answer to that question is yes: see page 37 B and the passage quoted above from page 39 H to 40 A. Thus in Edwards, the defendant was convicted of selling intoxicating liquor without a justices’ licence contrary to section 160(1)(a) of the Licensing Act 1964, which was in similar terms to section 17 of the 1967 Act. The court held that the requirement of a licence was an exception within the meaning of the forerunner of section 101 of the Magistrates Courts act 1980 and indeed of what it perceived to be the common law rule.

[37]In these circumstances, although it is a question of construction in every case and the point does not arise for decision on the facts here, my present view is that in the 1967 Act Parliament intended to adopt the traditional approach to license provisions of this kind and to impose a legal burden on the accused to prove that the felling of the trees was authorised by a felling licence.

[38]In any event, so far as the provisions of subsections (2) to (4) and the regulations are concerned, my conclusion is that Mr Birts’ submissions should be accepted. They are exceptions to the presumption of innocence as identified in Edwards. It follows that at common law, subject to any necessary state of mind or mens rea described below, under section 17(1) the prosecution must prove that the accused felled the trees. If (as here) it is accepted that the trees were not felled pursuant to a licence, it is then for the accused to prove on the balance of probabilities that the facts satisfied one of the provisions in subsections (2) (3) or (4) of section 9 or the regulations.

[39]It seems likely that it is also for the defence to prove that the trees were felled with a felling licence but it is not necessary to reach a final conclusion on that question on this application.

Mens Rea

[40]As indicated above, it is the Commission’s case that it does not have to prove any state of mind or mens rea save as may be implicit in the meaning “fell” or “felling”. There may be scope for debate as to what mental element is involved in the act of felling trees but it is not necessary for us to consider it here because it is common ground that, whatever the mental element, the claimants felled the 86 trees which are the subject of the complaint.

[41]The claimants have put the state of mind which the Commission must prove in various ways. They rely upon a number of propositions, which are summarised in this way in Mr Garside’s additional skeleton argument:

“(a) There is a presumption of law that mens rea is an ingredient of criminal offences. (b) Only by express provision or necessary implication can this ingredient be excluded from the definition of offences. (c) An honest belief in facts which, if true, would make the act charged innocent, is a defence to a criminal charge unless the statute creating the offence provides otherwise.”

In support of those propositions Mr Garside relies upon a number of authorities including Sweet v Parsley

[1970] AC 132

, B (A MINOR) v DPP

[2000] 2 AC 428

and R v Muhamad (Mithun)

[2002] EWCA Crim 1856

, 19 July 2002.

[42]In their first skeleton argument the claimants asserted, on the basis of Lord Diplock’s speech in Sweet v Parsley at page 163 A to C, that the Commissioners must prove that the claimants did not honestly believe on reasonable grounds facts which would make the felling innocent. In the additional skeleton they said that the element of guilty intention contended for was at least the reckless disregard of the need for a licence before felling the trees. In the light of the conclusions stated below it is not necessary to express a conclusion on what (if any) precise state of mind was an ingredient of the offence. It should however be noted that it is difficult to see how it could be an honest and reasonable belief (my emphasis) in the light of the decision of the House of Lords in B v DPP.

[43]I consider first the relevant principles. They have recently been considered by the Court of Appeal Criminal Division (Dyson LJ, Silber J and Her Honour Judge Goddard QC) in the Muhamad case and, not long before, by the House of Lords in B v DPP. The relevant principles have been often summarised. In Muhamad Dyson LJ, giving the judgment of the court, summarised them from the speech of Lord Scarman in Gammon Ltd v A-G of Hong Kong

[1985] 1 AC 1

at page 14 B as follows:

“(1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is “truly criminal” in character; (3) the presumption applies to statutory offences and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the prohibition of the prohibited act.”

[44]In Muhamad counsel for the appellant contended that proposition (2) was not compatible with the Convention. He also contended that the same was true of the following passage from the speech of Lord Nicholls in B v DPP at page 464 B:

“The offence so created is a serious offence. The more serious the offence, the greater is the weight to be attached to the presumption, because the more severe is the punishment and the graver the stigma which accompany a conviction.”

[45]The court in Muhamad rejected those submissions. It first did so by reference to the position at common law. It accepted that there is a distinction between “truly criminal” offences and “less serious” offences. It did so in part by reference to the speeches of Lord Reid in R v Warner

[1969] 2 AC 256

(albeit dissenting in the result) and Sweet v Parsley at page 149 G, where, as Dyson LJ put it at paragraph 6, Lord Reid spoke again of “quasi-criminal acts” in respect of which “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 [viz of recognising them as absolute offences] is to apply”. Dyson LJ then pointed to the difficulty in deciding which side of the line between “truly criminal” and “quasi-criminal” a particular offence falls and suggested that such difficulties may be the reason for Lord Scarman’s second proposition and for the approach adopted by Lord Nicholls in the passage quoted above.

[46]In paragraph 8 Dyson LJ said this:

“The question whether the presumption of law that mens rea applies, and, if so, whether it has been displaced can be approached in one of two ways. One approach is to ask whether the act is truly criminal, on the basis that, if it is not, then the presumption does not apply at all. The other approach is to recognise that any offence in respect of which a person may be punished in a criminal court is, prima facie, sufficiently “criminal” for the presumption to apply. But the more serious the offence, the greater the weight to be attached to the presumption, and, conversely, the less serious the offence, the less weight to be attached. It is now clear that it is this latter approach which, according to our domestic law, must be applied.”

We are no doubt bound by that decision to adopt that principle but I would in any event follow it because I entirely agree with it.

[47]In the instant case, the position seems to me to be clear. Whatever difficulties there may be in drawing the line referred to above, the offence of felling trees without a licence falls plainly on the “quasi-criminal” and not the “truly criminal” side of the line. In a judgment which is being handed down today in Sheldrake v DPP [2003] EWHC Admin XXX I referred in a somewhat different context to the following paragraph from the speech of Lord Clyde in R v Lambert

[2001] UKHL 37

[2002] 2 AC 545

(HL)at paragraph 154:

“A strict responsibility may be acceptable in the case of statutory offences which are concerned to regulate the conduct of some particular activity in the public interest. The requirement to have a licence in order to carry on certain kinds of activity is an obvious example. The promotion of health and safety and the avoidance of pollution are among the purposes to be served by such controls. These kinds of cases may properly be seen as not truly criminal. Many may be relatively trivial and only involve a monetary penalty. Many may carry with them no real social disgrace or infamy.”

The Convention

[52]It is convenient to consider mens rea first under this head. In Muhamad reliance was placed on

article 7 of the Convention

, which has no application here. However, the court rejected the submission on the footing that the Convention is not concerned with substantive law. Dyson LJ observed in paragraph 14 that there is nothing objectionable in principle with strict liability offences. He quoted paragraph 27 of the judgment of the ECHR in Saliabaku v France

(1988) 13 EHRR 378

“As the government and the Commission have pointed out, in principle the Contracting States remain free to apply the criminal law to an act where it is not carried out in the normal exercise of one of the rights protected under the Convention and, accordingly, to define the constituent elements of the resulting offence. In particular, and again in principle, the contracting States may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence. Examples of such offences may be found in the laws of the Contracting States.”

[53]In paragraphs 28 to 33 of its judgment in R v G(AR)

[2002] EWCA Crim 1992

, 17 July 2002, the Court of Appeal Criminal Division (Dyson LJ, Silber J and His Honour Judge Beaumont) again quoted paragraph 27 from the judgment in Salabiaku v France and held that

article 6 of the Convention

was not concerned with the provisions of substantive law.

[54]In these circumstances the conclusions relating to mens rea set out above are not affected by the Convention or the HRA.

Burden of Proof

[55]The position is, however, potentially different with regard to burden of proof. There have now been many cases which consider whether, having regard to the Convention and the HRA, a particular reverse onus provision imposes a legal or evidential burden on the accused. Most recently Jack J and I (together with Henriques J) have by chance had the opportunity of considering this very topic in a different context in Sheldrake. I shall not therefore consider the principles again in detail here.

[56]

Article 6(2) of the Convention

provides: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.

[57]Mr Garside submits that to impose a legal burden on the accused here infringes their rights under the Convention because it derogates from those rights and does so in a way which is not justified or proportionate and that sections 9 and 17 should be construed, or read down, so as to impose an evidential burden on them, under section 3(1) of the HRA, which 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 rights.”

[58]As in Sheldrake it is convenient to consider the issues under the headings of ‘derogation from article 6(2), justification’ and ‘proportionality’, albeit very much more shortly.

Derogation from Article 6(2)

[59]It seems to me to be clear that in Edwards the court regarded licence provisions as exceptions to or derogations from the presumption of innocence at common law. Moreover, it seems to me that the absence of the licence and of the exceptions, which make the felling lawful because, if they apply, no licence is required, are bound up with the offence and that if the broad approach adopted by Dickson CJC giving the judgment of the Canadian Supreme Court in R v Whyte (1988) 51 DLR (4th) is applied, the reverse onus provisions discussed above derogate from the presumption of innocence in article 6(2).

[60]My only reservation is that in the passage in the speech of Lord Steyn in paragraph 35 of Lambert in which he quotes the relevant part of Dickson CJC’s judgment (which I have quoted in paragraph 27 of Sheldrake) he said this with regard to the broad approach:

“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.”

[61]That might suggest that in principle licence provisions or exceptions within section 101 of the Magistrates Courts Act 1980 do not derogate from or, as Lord Steyn put it, make inroads on, article 6(2). However, the House of Lords was not deciding that question in Lambert and it seems to me that they are capable of doing so and that the control mechanism is not, as it were, at this stage of the argument but under the headings of justification and proportionality. I, for my part, would therefore hold that the reverse onus of proof provisions in sections 9 and 17 of the 1967 Act, read together, derogate from the presumption of innocence in article 6(2).

Justification

[62]It is not in issue that some inroads into the presumption of innocence are justified in this context, if only because it would be quite impossible for the Commission to negative all the defences in advance.

Proportionality

[63]As ever this is the key question. As explained in Sheldrake in paragraphs 35 to 45 (at what seems inordinate length), the question is whether the state (here the Commission) can show that it was proportionate to impose a legal burden on the accused and not simply an evidential burden. The standard is a high one. In order to show that a legal burden is proportionate the Commission must show that it was necessary, not merely reasonable.

[64]The considerations under this head are very similar to those which I have already considered under the heading of mens rea and those which are considered in paragraphs 75 to 79 of Sheldrake with reference to Davies and Wholesale Travel. I have reached the clear conclusion that it was necessary to impose a legal and not an evidential burden in relation to the offence of felling trees without a licence.

[65]My reasons are essentially those set out in paragraphs 48 and 49 above. This is a case of the kind which Lord Clyde had in mind in paragraph 154 of Lambert and which Cory J had in mind in the passage quoted by Tuckey LJ in paragraph 16 of Davies. I would refer to only one further short passage from the judgment of Cory J, also quoted in paragraph 16 of Davies, albeit in the context of reasonable care:

“If the false advertiser, the corporate polluter and manufacturer of noxious goods are to be effectively controlled, it is necessary to require them to show on a balance of probabilities that they took reasonable precautions to avoid the harm which actually resulted. In the regulatory context there is nothing unfair about imposing that onus; indeed it is essential for the protection of our vulnerable society.”

Much the same is to my mind true here.

[66]As stated earlier the offence involves only a monetary penalty and carries no real social disgrace or infamy and no real moral stigma or obloquy. The purpose of the offence is as part of a licensing system to implement a legitimate policy of retaining our arboreal heritage. Trees can be felled in a moment but take many years to grow.

[67]A key consideration in determining the question whether it was necessary to impose a legal as opposed to an evidential burden seems to me to be the efficacy of the former and the unworkability of the latter. There is, as I see it, no difficulty in an accused proving any particular set of facts upon which he wishes to rely in order to establish one of the exceptions. On the other hand it would not be easy for the Commission to prove that the facts did not establish an exception once it had been identified by way of evidence by the accused. For example in many cases it will no longer be possible for the Commission to identify the size of the trees once they have been felled without a licence. As I see it, the scheme will only really work if the burden is on the accused.

[68]It is also difficult to see how the particular exception would be raised by way of evidence. The facts of this case afford an example. When asked whether it was the claimants’ intention to rely upon any of the exceptions in subsections (2) to (4) of section 9, Mr Garside said (albeit without the benefit of a proof or express instructions but in order to assist the court) that they might be able to rely upon subsection (4)(d). That would involve relying upon evidence (whether extracted from prosecution witnesses or given by defence witnesses) that the felling of the trees was immediately required for the purpose of carrying out development authorised by planning permission.

[69]There is to my mind nothing in Mr Parry’s interview which, if given in evidence, would discharge the evidential burden so as to raise the question whether the felling of the trees was immediately required by planning permission. The issue would have to be raised for the first time during the trial, which would make it almost impossible for the Commission to deal with it without further investigation which would be likely to involve what might be a lengthy adjournment.

[70]In my opinion, when all the relevant circumstances are taken into account, the Commission have shown that it is necessary to impose a legal burden on the defence, at any rate so far as the exceptions are concerned. To my mind to do so is entirely proportionate.

[71]As already indicated, it is not necessary to decide whether the same is true with the regard to the question whether the felling was carried out pursuant to a licence because it is common ground that no licence had been granted. However, my provisional view is that it is necessary to impose a legal burden here too for the same reasons as given in paragraphs 34 and 35 above, namely that in a case where a licence has been granted subject to conditions, it will or should be straightforward for the accused to discover and prove the facts establishing that any conditions have been complied with, whereas it may be impossible for the Commission to do so.

[72]Finally, I note that the problem in the instant case appears to have been that the claimants were unaware that a licence was in principle required. There is no reason why those who fell trees, especially those who fell trees professionally, should not ascertain what the law is. If they do, they will know that a licence is required except in specified circumstances and be able to ask the landowner to see a copy of the licence or to explain why one is not necessary. They can then satisfy themselves that one of the exceptions applies. Viewed in this way, the scheme is perfectly workable.

Conclusions

[73]Although the argument before us has been much more extensive than before the district judge, I would hold that his conclusions were correct. Subsections (2) to (4) of section 9 of the 1967 Act and the relevant regulations are exceptions from the necessity for a licence for the felling of trees. Under section 17 of the 1967 Act the prosecution must prove that the accused felled the trees. Assuming it to be common ground that no licence was issued, it is then for the accused to prove on the balance of probabilities that no licence was required. That burden is a legal burden which is compatible with the Convention because it is necessary to impose a legal and not simply an evidential burden on the accused. The same is probably true if the question is whether the trees have been felled in accordance with the terms of a licence.

[74]The only mental state which the prosecution must prove is whatever is necessary to prove that the trees were felled.

[75]It follows that the application for judicial review fails and must be dismissed.

[76]I agree. LORD JUSTICE CLARKE: The order of the court is that the application be dismissed. The parties have agreed an appropriate order for costs. The order will be that the first named claimants, Grundy, pay the interested party the sum of £9,693.75 in respect of the applications.