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Neutral Citation Number: [2004] EWCA Crim 1025
Case No: 200206679 B5; 200204468 D5; 200204469 D5;200306081 C5;
200400948 B5; 200304202 C4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 29 April 2004
Before :
LORD CHIEF JUSTICE OF ENGLAND AND WALES
LORD JUSTICE JUDGE
MR JUSTICE GAGE
MR JUSTICE ELIAS
AND
MR JUSTICE STANLEY BURNTON
IN THE MATTER OF:
Attorney General Reference No. 1 of 2004
AND BETWEEN:
Regina
- v Edwards
AND BETWEEN
Regina
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- v Denton
& Jackson
AND BETWEEN
Regina
- v -
Hendley
AND BETWEEN
Regina
- v Crowley
Mr David Perry and Ms Adina Ezekiel for the Crown in the case of Edwards
and AG Reference No. 1 of 2004
Mr Neil Hinton for Edwards
Mr David Holborn for the applicant in AG Reference No. 1 of 2004
Mr Nicholas Ham for the Crown in the case of Jackson and Denton
Miss Emma Goodall for Jackson and Denton
Mr Michael Burrows and Mr Bernard Linnemann for the Crown in the case of
Hendley
Mr Nigel Sweeney QC for Hendley
Miss Azza Brown for the Crown in the case of Crowley
Mr Michael Newport for Crowley
Hearing dates : 23rd, 24th and 25th March 2004
JUDGMENT
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The Lord Chief Justice
This is the judgment of the Court to which each member of the Court has
contributed.
Introduction
1. This judgment relates to a single Attorney General’s Reference and four
appeals. Except in the case of Crowley, a preparatory hearing was held in
relation to each case and so we take this opportunity to give guidance as to
when it is appropriate to hold a preparatory hearing. In addition, in all the
cases, the defendants were alleged to have committed offences under
legislation that purports to impose upon the defendant the burden of proving
certain issues. We refer to these provisions as reverse burdens. In order to
determine the Reference and the appeals it is necessary to try to clarify what
a court’s approach should be when determining whether a reverse burden
contravenes Article 6(2) of the European Convention on Human Rights ("the
Convention") and, if so, what should be the consequence of that
contravention.
2. Article 6 of the Convention provides:
"1. In the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial tribunal
established by law… .
2. Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
3. Section 3(1) of the Human Rights Act 1998 ("HRA 1998") requires the courts
to read and give effect to legislation, whenever enacted, in a way which is
compatible with the Convention rights (including Article 6). If this is not
possible and the legislation is incompatible with a Convention right the court,
"may make a declaration of … incompatibility" (Section 4(2), HRA 1998).
However, such a declaration "does not affect the validity, continuing operation
or enforcement of the provision in respect of which it is given" (Section
4(6)(a), HRA 1998). If primary legislation cannot be read or given effect in a
way which is compatible with the Convention, a court will not be acting
unlawfully if it gives effect to or enforces the legislation (Section 6(2)(b), HRA
1998).
4. In relation to each reverse burden in the cases before us, it is necessary to
consider first, whether it contravenes Article 6(2) of the Convention and
secondly, if so, whether relying on section 3(1) of the HRA 1998, it is possible
to interpret the legislation in a way that makes it compatible with Article 6,
including, if this is possible, reading down the legislation. In practice, as we
will explain, this will usually involve determining: (a) whether the particular
provision imposing the reverse burden places an evidential burden on the
defendant or a legal or persuasive burden (from now on referred to as a "legal
burden"); (b) if it does impose a legal burden, whether the legal burden can
be justified; and (c) if the legal burden cannot be justified, whether the legal
burden can be read down so that it is only an evidential burden.
5. The defendant is able to discharge an evidential burden by ensuring that there
is some evidence before the court, whether as part of the prosecution’s or
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defence’s case, which could result in a reasonable court or jury determining
the issue which is the subject of the reverse burden in the accused’s favour
(see Archbold (2004), para 4-382). Once this happens, the onus reverts to
the prosecution to satisfy the jury so that they are sure as to that issue, in
exactly the same way as they have this responsibility in the case of the
remaining matters that have to be established to prove the accused’s guilt.
Because of the limited nature of the evidential burden and because the issue
can be raised as a result of prosecution evidence alone, it is perhaps
misleading to describe the evidential burden as a burden on the defendant at
all. However, we will use that term given that it is in common currency.
6. In the case of a legal burden, the defendant is under an obligation to satisfy a
court on the balance of probabilities on the issues that are the subject of the
reverse burden. The imposition of an evidential burden is therefore
considerably easier to justify than a legal burden. Unlike the position in the
case of a legal burden, in the case of the evidential burden there will be no
question of a defendant being found guilty if the court is left with a reasonable
doubt as to his guilt. The majority of domestic legislation that places a reverse
burden on an accused, prior to the HRA 1998 coming into force, would involve
the accused being under a legal burden rather than an evidential burden.
Preparatory Hearings
7. Part III (sections 28 – 38) of the Criminal Procedure and Investigations Act
1996 ("CPIA 1996") extended the system of preparatory hearing where an
indictment reveals a "case of such complexity, or a case whose trial is likely to
be of such length that substantial benefits are likely to accrue" from such a
hearing (section 29, CPIA 1996). There is an appeal to the Court of Appeal
from any ruling of a judge at a preparatory hearing as to any question as to
the admissibility of evidence or any other question of law relating to the case
(Section 35(1), CPIA 1996).
8. The provisions of the CPIA 1996 dealing with preparatory hearings are closely
related to those which already existed for serious or complex fraud cases
under the Criminal Justice Act 1987 ("CJA 1987"). A preparatory hearing
under Part IV of the CPIA 1996 has to be distinguished from statutory pre-trial
hearings which enable judges to make binding rulings on points of law before
the start of the trial (in accordance with sections 39-43 of the CPIA 1996) and
non-statutory plea and directions hearings in accordance with the
consolidated practice direction (see generally Archbold (2004) para 4-85 –
90).
Why a Five Judge Court?
9. A five judge court was convened to hear these cases because of the issues as
to reverse burdens and preparatory hearings. As to both issues there is a
need for guidance. In the case of reverse burdens, there are now a
considerable number of authorities from decisions of the European Court at
Strasbourg, from courts in other overseas jurisdictions, from this Court and
from the House of Lords. In this jurisdiction, rulings have to be made by
magistrates and Crown Courts up and down the country. This can involve the
citation of a very large number of authorities, many of which conflict in the
message which they give. The position is illustrated by the fact that five
volumes of authorities were appropriately placed before us to help us
determine this issue.
10. At the time that the hearing of this appeal was arranged, we were unaware
that in relation to two recent decisions of this Court, appeals are due to be
heard in the House of Lords before the long vacation. When the existence of
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those appeals was brought to our attention, we decided that we should
nonetheless try to simplify the task of lower courts when faced with reverse
burdens. It is our opinion that, as Mr Perry who appeared on behalf of the
Attorney General submitted, the time has now come when it is possible to
attempt to pull together the authorities so as to identify the relevant
principles to be applied. In addition, we consider that it could be useful to the
members of the House of Lords hearing the forthcoming appeals to know the
views of the members of this Court. We have, collectively, considerable
experience of the problems that are now arising in the courts because of
reverse burdens. We hope that the guidance that we will set out can be
readily revised to take into account any views expressed by the House of
Lords when deciding the further appeals.
11. In the case of preparatory hearings, there is a need for clarification as to
when it is appropriate to have a preparatory hearing. There is also the need
for assistance as to the position of this Court if what is said to be a
preparatory hearing takes place without a judge properly considering whether
the statutory requirements for a preparatory hearing are fulfilled or if the
judge holds a preparatory hearing when the statutory requirements are not
fulfilled. So far, a restrictive view has been taken by this Court as to when a
preparatory hearing can be held and as to the jurisdiction of this Court if a
preparatory hearing is inappropriately held. Both situations, in part, give rise
to questions of procedure which the House of Lords usually leaves to this
Court. As to the jurisdiction of this Court, that issue is unlikely to be able to
go on appeal to the House of Lords because, as the authorities stand at
present, leave to appeal is unlikely to be given.
Reverse Burdens
12. Before setting out our guidance as to reverse burdens, it is necessary to
review the most important authorities. Although we do so as briefly as
possible this is not an insignificant task. The starting point is, of course, the
classic statement of Viscount Sankey LC in Woolmington v Director of Public
Prosecutions [1935] AC 462 at p481:
"Throughout the web of the English Criminal Law one golden thread is
always to be seen, that it is the duty of the prosecution to prove the
prisoner’s guilt subject to what I have already said as to the defence of
insanity and subject also to any statutory exception. If, at the end of and
on the whole of the case, there is a reasonable doubt, created by the
evidence given by either the prosecution or the prisoner, as to whether the
prisoner killed the deceased with a malicious intention, the prosecution
has not made out the case and the prisoner is entitled to an acquittal. No
matter what the charge or where the trial, the principle that the
prosecution must prove the guilt of the prisoner is part of the common law
of England and no attempt to whittle it down can be entertained. When
dealing with a murder case the Crown must prove (a) death as the result
of a voluntary act of the accused and (b) malice of the accused."
13. Viscount Sankey refers to statutory exceptions. The position as to statutory
exceptions was considered by the House of Lords in Sweet v Parsley [1970]
AC 132. Lord Reid was concerned that the courts were too readily treating
serious offences as being absolute offences which therefore did not require
the prosecution to prove that the defendant had any specific intent. Lord Reid
was at pains to point out that a reverse burden might be preferable to a strict
liability offence, that is one not requiring proof of any intent. This is an
important point to bear in mind since some of the recent decisions of the
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courts display a readiness to read down reverse burdens that could result in
Parliament increasing the number of absolute offences. To avoid this
happening Lord Reid dealt with the matter in this way at p150B-F:
"The choice would be much more difficult if there were no other way open
than either mens rea in the full sense or an absolute offence; for there are
many kinds of case where putting on the prosecutor the full burden of
proving mens rea creates great difficulties and may lead to many unjust
acquittals. But there are at least two other possibilities. Parliament has not
infrequently transferred the onus as regards mens rea to the accused, so
that, once the necessary facts are proved, he must convince the jury that
on balance of probabilities he is innocent of any criminal intention. I find it
a little surprising that more use has not been made of this method: but
one of the bad effects of the decision of this House in Woolmington v.
Director of Public Prosecutions [1935] A.C. 462 may have been to
discourage its use. The other method would be in effect to substitute in
appropriate classes of cases gross negligence for mens rea in the full
sense as the mental element necessary to constitute the crime. It would
often be much easier to infer that Parliament must have meant that gross
negligence should be the necessary mental element than to infer that
Parliament intended to create an absolute offence. A variant of this would
be to accept the view of Cave J. in Reg. v. Tolson (1889) 23 Q.B.D. 168,
181. This appears to have been done in Australia where authority appears
to support what Dixon J. said in Proudman v. Dayman (1941) 67 C.L.R.
536, 540:
"As a general rule an honest and reasonable belief in a state of facts
which, if they existed, would make the defendant’s act innocent affords an
excuse for doing what would otherwise be an offence."
It may be that none of these methods is wholly satisfactory but at least
the public scandal of convicting on a serious charge persons who are in no
way blameworthy would be avoided."
14. Lord Reid’s observation that the technique of the reverse burden is
surprisingly little used, even if true then, is certainly not so now. In a case to
which it will be necessary to refer later, R v Lambert [2002] 2 AC 545 at
p569, Lord Steyn points out that there are 219 statutory offences among the
540 offences triable in the Crown Court which include a reverse burden
provision. Mr Perry relied on these figures to demonstrate the scale of the
problems that can arise as a result of an aggressive application of Article 6.
He reminded us that most of the litigation which has been generated by the
European Convention becoming part of our domestic law has involved Article
6. That this should be the position is disturbing because Article 6 does no
more than reflect the requirements of fairness which have long been part of
English law. However, we can take some comfort from the fact that in other
common law jurisdictions where a constitutional requirement such as that
contained in Article 6 has been introduced, there have been similar problems
to those by which we are faced, in making the European Convention directly
enforceable. What is required is that the constitutional provisions of this
nature should be applied reasonably and flexibly and in a manner that
recognises the interests of democratically elected legislature in answering that
the law can be enforced. Thus the Supreme Court of Canada, in R v Whyte
(1988) 51 DLR (4th) 481, upheld a statutory presumption on a charge of
having care or control of a motor vehicle while the accused’s ability to drive
was impaired by alcohol. The statutory presumption provided that when it is
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proved that the accused occupied the driving seat he shall be deemed to have
the care or control of the vehicle unless he establishes that he did not enter
the vehicle for the purpose of setting it in motion. The presumption did not
violate the Canadian Charter of Rights and Freedoms. In his judgment Dickson
CJ explained his approach to such a presumption by saying (at p495):
"There are two major criteria. First, the objective which the measure
responsible for the limit on a right or freedom is designed to serve must
be sufficiently important to permit overriding the constitutionally protected
right or freedom (Oakes, supra, at p. 354 C.C.C., p. 138 D.L.R.).
Secondly, to show that the measures are reasonable and demonstrably
justified requires an analysis of the proportionality of the measures
(Oakes, supra, at p. 355 C.C.C., p. 139 D.L.R.). There are three
components to the proportionality test: the measures must be carefully
designed to achieve the objective of the legislation, with a rational
connection to the objective. The second component is that the measure
should impair the right or freedom as little as possible. Finally, there must
be proportionality between the effects of the impugned measures on the
protected right and the attainment of the objective."
Later the Chief Justice added:
"The next stage of the proportionality inquiry is to ask whether the
impugned measure impairs the right or freedom as little as possible. With
respect to s. 237(1)(a), this is the most crucial and difficult aspect of s. 1
analysis. In my view, we must recognize that Parliament was faced with a
difficult task in defining drinking and driving offences. The very fact that
consumption of alcohol is an element of these offences renders
problematic the element of intention. Justice precludes undue reliance
upon strict or absolute liability. Social protection precludes undue
emphasis upon the mental element to these offences. Parliament has
decided to define the offence in terms of "care or control.""
15. The judgment then refers to the fact that Parliament had adopted a
compromise between two alternatives. The wish "to discourage intoxicated
people even placing themselves in a position where they can set a vehicle in
motion while at the same time providing a way for a person avoiding liability
when there was a reason for entering the vehicle other than to set it in
motion." There was "an attempt to balance the dangers posed by a person
whose abilities to reason are impaired by alcohol with the desire to avoid
absolute liability offences".
16. This approach encourages flexibility and striking a balance. Attention was also
drawn to the importance of this in R v Downey [1992] 90 DLR (4th) 499 at
page 466. Curry J pointed out "the proportionality test can and must vary with
the circumstances. Parliament is limited in the options which it has at hand to
meet or address the problem. Rigid and inflexible standards should not be
imposed on legislators attempting to resolve a difficult and intransigent
problem".
17. We would also refer to the decision of the Privy Council in the Attorney-
General of Hong Kong v Lee Kwong-Kut [1993] AC 951 which again
emphasised the need for flexibility so as to allow a balance to be drawn
between the interests of the person charged and the State. It was also
indicated that if the prosecution retains a responsibility for proving the
essential ingredients of the offence it is less likely that an exception would be
regarded as unacceptable (See p969 at letter H).
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18. It is now convenient to refer to Salabiaku v France (1988) 13 EHRR p379,
para 27. In this area Salabiaku can be regarded as Strasbourg’s equivalent of
Woolmington v Director of Public Prosecutions. As section 2(1) of the HRA
1998 requires our courts to take into account the decisions of Strasbourg, the
decisions of that court are highly influential. Salabiaku makes it clear that the
European Court recognises that the contracting states retain the ability to
determine what should be the content of their substantive criminal law. Article
6 is concerned not with substantive law but the fairness of the procedure by
which offences against the substantive law are tried:
"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."
19. The judgment then turns to consider how offences are proved. Although we
are concerned here with reverse burdens, the judgment deals specifically with
presumptions. However, for our purposes there is no difference between
presumptions and the reverse burden issues which we are considering. The
approach of the European Court appears from this passage of the judgment
Salabiaku v France (1988) 13 EHRR p388, para 28:
"Presumptions of fact or of law operate in every legal system. Clearly, the
Convention does not prohibit such presumptions in principle. It does,
however, require the Contracting States to remain within certain limits in
this respect as regards criminal law. If, as the Commission would appear
to consider, paragraph 2 of Article 6 merely laid down a guarantee to be
respected by the courts in the conduct of legal proceedings, its
requirements would in practice overlap with the duty of impartiality
imposed in paragraph 1. Above all, the national legislature would be free
to strip the trial court of any genuine power of assessment and deprive the
presumption of innocence of its substance, if the words ‘according to law’
were construed exclusively with reference of domestic law. Such a
situation could not be reconciled with the object and purpose of Article 6,
which, by protecting the right to a fair trial and in particular the right to be
presumed innocent, is intended to enshrine the fundamental principle of
the rule of law.
Article 6(2) does not therefore regard presumptions of fact or of law
provided for in the criminal law with indifference. It requires States to
confine them within reasonable limits which take into account the
importance of what is at stake and maintain the rights of the defence."
20. The passage of the judgment to which we have just referred makes clear that
there is nothing intrinsically indefensible in there being a reverse burden. It
will, however, require to be justified. Whether or not it is justified will depend
upon its terms and in particular whether it strikes the right balance between
the interest of the State at stake and the rights of the defendant.
21. We can now turn to consider the most important domestic decisions post the
HRA 1998. The first of these cases is the decision of the House of Lords in R v
DPP ex parte Kebilene [2000] 2 AC 326. Although this decision was decided
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after the HRA 1998 had come into force, it relates to facts that took place
prior to the HRA 1998 coming into force. However, Lord Hope of Craighead
gave some general assistance as to the HRA 1998 that provides a useful
starting point for a consideration of our domestic decision. The first point Lord
Hope made is that it is necessary "to identify the nature of the provision which
is said to transfer the burden of proof from the prosecution to the accused
because various techniques have been adopted and some are more
objectionable than others" at (p378 F/G). In particular he identified the
distinction between a legal burden and an evidential burden and makes the
important point that in the case of an evidential burden:
"If it is put in issue, the burden of proof remains with the prosecution."
He adds,
"They are not incompatible with Article 6(2) of the Convention. They take
their place alongside the common law evidential presumptions which have
been built up in the light of experience" (at p379 A/C).
22. Examples of an evidential burden being placed on an accused by our law are
not hard to find, a good example being provided by self-defence. However, in
the case of statutes which reverse the onus of proof, the accused usually has
to meet a legal burden. Lord Hope next turns to statutory presumptions. He
classifies them in accordance with submissions which had been made by
Mr Pannick, as follows:
"First there is the "mandatory" presumption of guilt as to an essential
element of the offence. As the presumption is one which must be applied if
the basis of fact on which it rests is established, it is inconsistent with the
presumption of innocence. This is a matter which can be determined as a
preliminary issue without reference to the facts of the case. Secondly,
there is a presumption of guilt as to an essential element which is
"discretionary". The tribunal of fact may or may not rely on the
presumption, depending upon its view as to the cogency or weight of the
evidence. If the presumption is of this kind it may be necessary for the
facts of the case to be considered before a conclusion can be reached as to
whether the presumption of innocence has been breached. In that event
the matters cannot be resolved until after trial.
The third category of provisions which fall within the general description of
reverse onus clauses consists of provisions which relate to an exemption
or proviso which the accused must establish if he wishes to avoid
conviction but is not an essential element of the offence." (at p379 D-G).
23. As Lord Hope makes clear, the process of classification "is not an exact
science". Furthermore, the fact that a provision breaches the presumption of
innocence does not lead inevitably to the conclusion that the provision is
incompatible with Article 6(2) (at p380 B-D).
24. Lord Hope also deals with the area of choice left to the executive or the
legislature to balance the rights of the individual against the needs of society.
As he says:
"In some circumstances it will be appropriate for the courts to recognise
that there is an area of judgment within which the judiciary will defer, on
democratic grounds, to the considered opinion of the elected body or
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person whose act or decision is said to be incompatible with the
Convention. This point is well made at p. 74, para. 3.21 of Human Rights
Law and Practice (1999), of which Lord Lester of Herne Hill and Mr Pannick
are the general editors, where the area in which these choices may arise is
conveniently and appropriately described as the "discretionary area of
judgment." It will be easier for such an area of judgment to be recognised
where the Convention itself requires a balance to be struck, much less so
where the right is stated in terms which are unqualified. It will be easier
for it to be recognised where the issues involve questions of social or
economic policy, much less so where the rights are of high constitutional
importance or are of a kind where the courts are especially well placed to
assess the need for protection. But even where the right is stated in terms
which are unqualified the courts will need to bear in mind the
jurisprudence of the European Court which recognises that due account
should be taken of the special nature of terrorist crime and the threat
which it poses to a democratic society: Murray v. United Kingdom (1994)
19 E.H.R.R. 193, 222, para. 47." (at p381 B-E)
25. The fact that there is this need for a balancing between the different interests
involved was also emphasised by Lord Bingham of Cornhill in the Privy Council
in Brown v Stott [2003] 1 AC 681. As Lord Bingham said, "judicial recognition
and assertion of the human rights defined in the Convention is not a
substitute for the processes of democratic government but a complement to
them". (p834H-835A)
26. We can now move forward to two decisions of the House of Lords which are of
the greatest importance in considering the relationship between Article 6 and
reverse burdens. The earlier of these two cases is R v Lambert [2002] 2 AC
545. Here, it is the speech of Lord Steyn that requires the most careful
attention, although the parts of his speech on which we need to focus were
obiter. There is no doubt that his views have influenced many later decisions.
Lord Steyn suggests that the legislature in this jurisdiction has "frequently and
in an arbitrary and indiscriminate manner made inroads on the basic
presumption of innocence" (at p569 B).
27. Lord Steyn cites the eloquent explanation of Sachs J as to the significance of
the presumption on innocence in The State v Coetzee [1997] 2 LRC 593 at
p677/8, para 220. However, while regarding the logic of Sachs J’s reasoning
as inescapable, Lord Steyn still recognises that "limited inroads on the
presumption of innocence may be justified". The inroads require justification
and must not be greater than necessary. In addition, the principle of
proportionality must be observed (570 at F). Lord Steyn is also unimpressed
by distinctions between the constituent element of a crime because they
"sometimes will be unprincipled and arbitrary …sometimes 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 when any
definition of an offence can be reformulated so as to include all possible
defences within it. It is necessary to concentrate not on techniques and
niceties of language but rather on matters of substance" (see para 35 at
p570/571).
28. Perhaps the most important part of Lord Steyn’s speech is where he deals
with proportionality. Here he considers in detail "the relative merits of the
transfer of a legal burden on an important element or issue to the accused, as
opposed to the creation of a mere evidential burden" (see para 37-41
commencing p572).
29. In the context of the prosecution of drug cases, where the relevant facts are
usually particularly within the knowledge of the possessor, Lord Steyn
explains why, in his opinion, the fears centred on the ability of an accused in a
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drugs case to manipulate the system are not well founded. He refers to steps
which have been taken to strengthen the hands of the prosecution. As a result
he considers that the devices which may be attempted should "generally in
practice receive short shrift". He finds support for his approach in the
decisions in the jurisprudence of Canada and South Africa for a view "that a
reverse legal burden is a disproportionate means of addressing the legislative
goal of easing the task of the prosecution" in the cases under consideration.
30. The views expressed by the other members of the House were not as forceful
as those of Lord Steyn. Lord Slynn stated:
"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 there is a violation of article 6(2) of the Convention rights
… in balancing the interests of the individual in achieving justice against
the needs of society to protect against abusive 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. (p563 D/F)."
31. Lord Hope was of the opinion that the burden should be an evidential one;
however, he added that, "an evidential burden is not to be thought of as a
burden which is illusory. What the accused must do is put evidence before the
court which, if believed, can be taken by a reasonable jury to support his
defence." The problem with this approach is that in our experience, it is in
practical terms difficult to achieve this ‘halfway house’ favoured by Lord Steyn
and Lord Hope. A defendant need do no more than raise the issue; indeed, it
is only necessary that it should be raised and this may be as a result of
evidence adduced by the prosecution. Lord Clyde was also of the opinion that
the statutory provision imposed an evidential burden of proof on the accused,
though he added, "it is to be noted that the practical effect of the burden on
the defendant may not have been very significant". Lord Hutton, who took a
different view, considered that the problem could not be "resolved by placing
an evidential burden on the defendant and that it is necessary to impose a
persuasive burden" (p625 E-G). Earlier he had said "the presumption is
neither irrebuttable or unreasonable. To oblige the prosecution to prove that
the defendant knew that the substance was a controlled drug in many cases
would make it very difficult to obtain a conviction" (p620 D).
32. Not surprisingly, courts in this jurisdiction have paid considerable attention to
Lord Steyn’s assessment of the position but perhaps not sufficient weight has
been given to Lord Hutton’s views. A substantial increase in the challenges to
all reverse burdens which hitherto in accordance with our general domestic
approach have been regarded as creating a legal burden has been generated.
The indications are that this is leading us to repeat the experience of both
Canada and South Africa as to the number of technical challenges which are
being made as to statutory provisions containing reverse burdens.
33. Lord Steyn did not consider that treating the reverse burdens as imposing
merely an evidential burden gave rise to incompatibility. He considered the
legislative provision could be read down under Article 3 so that it only
imposed an evidential burden. However, reading down the statutory provision
in this way has also given rise to difficulty, as we will see later.
34. As to the difference in approach between Lord Hutton and Lord Steyn on the
efficacy of a persuasive burden, it may be of assistance to the Appellate
Committee to know that in practice our collective experiences are the same as
Lord Hutton’s. Some of the later decisions suggest a similar reaction by other
members of the constitutions of this Court.
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35. The next case to which we should refer is the decision of the House of Lords in
R v Johnstone [2003] 1 WLR 1736. Speeches were given by Lord Nicholls of
Birkenhead and by Lord Walker of Gestingthorpe. All the other members of
the Committee agreed with Lord Nicholls. The case arose out of the charging
of the defendant with trademark offences contrary to section 92(1)(c) of the
Trademarks Act 1994. The defendant has a defence under section 92(5) of the
Act if he can show that he honestly and reasonably believed that there was no
infringement of the registered trademark. Again, the decision on the relevant
issues was obiter. Section 92(5) imposes on the accused person the legal
burden of proving the relevant facts on the balance of probability. On this
issue there were conflicting decisions in the Court of Appeal.
36. To assist the House of Lords to determine what should be the right approach,
there was an extensive citation of authority. Having referred to Coetzee,
Kebilene and Lambert, Lord Nicholls indicated that:
"A sound starting point is to remember that if an accused is required to
prove a fact on the balance of probability to avoid conviction, this permits
a conviction in spite of the fact-finding tribunal having a reasonable doubt
as to the guilt of the accused: see Dickson CJ in R v Whyte (1988) 51 DLR
(4th) 481, 493. This consequence of a reverse burden of proof should
colour one’s approach when evaluating the reasons why it is said that, in
the absence of a persuasive burden on the accused, the public interest will
be prejudiced to an extent which justifies placing a persuasive burden on
the accused. The more serious the punishment which may flow from
conviction, the more compelling must be the reasons. The extent and
nature of the factual matters required to be proved by the accused, and
their importance relative to the matters required to be proved by the
prosecution, have to be taken into account. So also does the extent to
which the burden on the accused relates to facts which, if they exist, are
readily provable by him as matters within his own knowledge or to which
he has ready access.
In evaluating these factors the court’s role is one of review. Parliament,
not the court, is charged with the primary responsibility for deciding, as a
matter of policy, what should be the constituent elements of a criminal
offence. I echo the words of Lord Woolf in Attorney-General of Hong Kong
v Lee Kwong-Kut [1993] AC 951, 975:
"In order to maintain the balance between the individual and the society
as a whole, rigid and inflexible standards should not be imposed on the
legislature’s attempts to resolve the difficult and intransigent problems
with which society is faced when seeking to deal with serious crime."
The court will reach a different conclusion from the legislature only when it
is apparent the legislature has attached insufficient importance to the
fundamental right of an individual to be presumed innocent until proved
guilty." (p1750, paras 50-51)
37. Lord Nicholls also pointed out that the offences which he was considering
attract a serious level of punishment. However, because those who trade in
counterfeit products are aware of the need to be on a guard against
counterfeit goods and the defence relates to facts within the accused person’s
own knowledge, he came to the conclusion that section 92(5) could
appropriately place a legal burden on the accused without contravening Article
6. In doing so, he referred to the fact that in practice, if the prosecution had
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to prove "that a trader acted dishonestly fewer investigations would be
undertaken and fewer prosecutions would take place".
38. Lord Steyn and Lord Nicholls were considering different statutory provisions
and it does not follow that they would have used the language which they did
if they were considering other statutory reverse burden provisions.
Nonetheless, it does appear there is a significant difference in emphasis
between their approaches. In practice, a legal burden is much more likely to
have to be reduced to an evidential burden on Lord Steyn’s approach than it is
on Lord Nicholls’ approach. Indeed, it is likely that few provisions will be left
as imposing a legal burden on Lord Steyn’s approach. Lord Nicholls clearly
gives greater weight to the language used by Parliament than does Lord
Steyn. In addition, Lord Steyn considers, contrary to our experience, that
there is little need to have a legal burden because he considers an evidential
burden will suffice to achieve the objective of the reverse burdens. He also
considers that to meet the requirement of proportionality a necessity for the
legal burden to be imposed has to be shown if it is to survive. The
combination of this standard of necessity, coupled with the suggestion that
evidential burden will meet the need in most if not all situations leaves
virtually no discretion to the legislators as to how to achieve their objective. If
an evidential burden would suffice, no greater burden must be imposed. Lord
Nicholls’ approach is more flexible. He sees the court as reviewing the choice
made by Parliament, although not in a judicial review sense, rather, in a
sense that reflects the intent of the HRA 1998, which was to achieve a careful
balance between the role of Parliament and the courts. Their statements in
both speeches were obiter, but Lord Nicholls’ was later in time and unlike Lord
Steyn’s speech was endorsed by the other members of the House. We suggest
that until the position is clarified by a further decision of the House of Lords,
lower courts should follow the approach of Lord Nicholls rather than that of
Lord Steyn if they are in doubt as to what should be the outcome of a
challenge to a reverse burden.
39. The remaining authorities to which we should refer are decisions of this Court.
We do so because they demonstrate the extent to which Lord Steyn has
influenced later decisions in this Court. The first example was in the case of L
v DPP [2003] QB 137. In this case the approach of Lord Steyn in Lambert
[2002] 1 AC 545 was distinguished. In the course of giving his judgment, Pill
LJ referred to the views expressed by Lord Steyn and Lord Hope in Lambert.
He then indicated that an evidential burden "may not in substance be a
burden on the defendant at all. Evidence raising the issue will often emerge
from the evidence direct and circumstantial called by the prosecution". We
agree with this view. A judge when directing a jury must be circumspect not
to withdraw an issue that has been raised for a jury’s consideration. The
robust approach recommended by Lord Steyn, based on dicta of Lord Lane CJ
in a different context, could result in appeals to this Court by defendants as to
whether an issue had or had not been raised so as to satisfy an evidential
burden. Later Pill LJ said, with regard to a statutory requirement that a
defendant should provide "proof", that an evidential burden was not the best
example of the use of the word proof. It would deprive the word "proof" as
commonly used inside and outside the criminal courts of any meaning.
40. An example of this Court following the approach indicated in Lambert before
the decision in Johnstone is provided by R v Carass [2002] 1 WLR 1714. (We
will refer to this decision when expressing our conclusions as to the Reference
and the appeal of Edwards.) In RvS [2003] 1 Cr App Rep 35, 602, despite
the decision in Lambert, this Court in relation to section 92 of the Trademarks
Act 1994 dismissed an appeal from a decision holding at a preparatory
hearing that section 92(5) of the Trademarks Act 1994 imposed a legal
burden. The language required the accused "to show that" he had the belief
on reasonable grounds that the goods were genuine. The reverse burden was
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held not to relate to an essential element of the offence and therefore Article
6(2) had no application. In any event, the reverse burden was held by the
Court to be necessary, justified and proportionate. It was not unfair.
41. In contrast there is the decision in Sheldrake v Director of Public Prosecutions
[2003] 2 WLR 1629 (one of the two cases due to be heard by the House of
Lords). It is a decision of the Divisional Court, presided over by Clarke LJ.
Henriques J dissented. It demonstrates clearly what can be the consequences
of the Lambert approach. Like Whyte in the Supreme Court of Canada, it was
a case where the defendant was accused of being in charge of a motor vehicle
after consuming an excessive amount of alcohol, contrary to section 5(1)(b)
of the Road Traffic Act 1988. Section 5(2) of the Road Traffic Act 1988
provided that:
"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 while the proportion of alcohol in his breath, blood or
urine remained likely to exceed the prescribed limits."
42. Clarke LJ applied the approach indicated by Lord Steyn in Lambert. He
decided section 5(2) had to be read down so it imposed only an evidential
burden on the accused. The first of his key points that Clarke LJ identified is in
these terms:
"It is to my mind wrong to regard the question whether there was
likelihood or otherwise of the accused driving as a defence except in
narrow common law terms. It is part of the essence of substance of the
offence because the seriousness of the offence itself depends upon the risk
of driving. It is driving while over the limit which threatens lives and
property on the road." (Para 82(i))
It is true that the burden placed on the prosecution was relatively easily
discharged; it was to prove that there was a real risk, as opposed to a
fanciful risk, that the defendant would drive. Even so, we question
whether this construction was required.
43. A different approach is certainly possible. Parliament could have intended that
because of the risks to the public from a person driving under the influence, a
person in charge was to be guilty of an offence on these facts alone, and this
was the substance of the offence. However, there was to be an exception, if
and only if it was one of the rare cases where a driver could prove there was
no likelihood of his driving whilst still over the limit. On this approach
Parliament intended to send the message to those in charge of a vehicle when
under the influence that they would be found guilty subject to this limited
exception. We do not, as did Clarke LJ, regard the maximum punishment
being 3 months as being contrary to this alternative approach.
44. At the end of his judgment when dealing with this aspect of the situation,
Clarke LJ states:
"It is only recently that it has been recognised that, in the context of
reverse burdens which derogate from the presumption of innocence
enshrined in Article 6(2) of the Convention, the question whether the
particular provision should be construed as imposing a legal burden or
read down as imposing an evidential burden is whether it was necessary to
impose a legal burden." (p1653, para 84)
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45. This approach to the use of the word "necessary" obviously reflects Lord
Steyn’s approach. It fails to allow for the fact that the primary decision as to
what action should be taken to protect the public from drivers who are in
charge of vehicles when over the limit is for Parliament. It is not without
interest that the Canadian decision in Whyte provides no support for this
approach.
46. In his dissenting judgment, Henriques J suggests that "a regime requiring the
prosecution to prove that there was a likelihood of driving would be neither
workable nor effective" and that "insuperable difficulties could confront the
police in the event of an evidential burden" (See para 103). These
observations continue to have some, albeit diluted, force even where the
burden on the prosecution is only to establish a real risk.
47. The case of Sheldrake was distinguished by this Court presided over by
Latham LJ in the Attorney General’s Reference (No. 4 of 2002) [2003] 2 Cr
App Rep 22. Again, the decision in Lambert was carefully considered. The
section involved was section 11 of the Terrorism Act 2000. That section
provides:
"1. A person commits an offence if he belongs or professes to belong
to a prescribed organisation.
2. It is a defence for a person charged with an offence under
subsection 1 to prove (a) that the organisation was not prescribed 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 prescribed. "
48. The Attorney General referred two questions for the opinion of the Court, the
second of which was "does the defence contained in section 11(2) of the
Terrorism Act 2000 impose a legal rather than an evidential burden of proof
on the accused and, if so, is such a legal burden compatible with Article 6(2)
and 10 of the Convention". This Court came to the conclusion that Parliament
intended that a person should be guilty of an offence irrespective of whether
or not he had played any active part in the organisation. So, there was no
breach of Article 6(2). Alternatively, any infringement of that Article by the
imposition of a persuasive burden was justified and proportionate. In
distinguishing both Lambert and Sheldrake, Latham LJ pointed out, on the
approach adopted by the respective decisions, that in Lambert the gravamen
of the offence was knowledge, while in Sheldrake the gravamen of the offence
was a risk of driving. By contrast, in the case they were considering, it was
clearly intended by Parliament that a person should be guilty of an offence
irrespective of whether or not he had played any active part in the
organisation.
49. Finally, we refer to R v Daniel [2003] 1 Cr App Rep 6 because like the
Reference before us and the case of Edwards it deals with an offence to which
section 352 of the Insolvency Act 1986 ("IA Act 1986") provides "a defence".
The judgment of the court was delivered by Auld LJ who presided. The
primary ground for the decision was that the HRA 1998 was not in force at the
time of the relevant decision. However, Auld LJ in his judgment dealt with the
position as if the HRA 1998 had been in force and indicates the view that it
would have been necessary to read down section 352 of the IA Act 1986 to
give effect to Article 6(2) because the Court was bound by the decision in
Carass. In doing so, the reasoning of the Court was clearly set out in the
following paragraphs:
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"In our view, unless it can be distinguished, the reasoning of the Court in
Carass, albeit on different provisions of the IA Act 1986, is binding on us.
The nature of the offence in section 206(1)(a) and (2) and that of the
defence, with its reverse burden of proof in section 206(4), and their
relationship one with another, are sufficiently similar in form and purpose
to the later provisions in the Act that we are considering to make both the
context and the reasoning of Carass indistinguishable. It, therefore binds
us.
But for that conclusion, we could not have construed section 352 as
imposing only "an evidential burden of proof", whatever that may mean,
on a defendant. That is because, with respect to their Lordships’ obiter
views in Lambert and the Court’s ruling in Carass, the words "if he proves"
must, as a matter of plain English, mean more than the evidential raising
of an issue for the protection to refute beyond reasonable doubt. See
Professor Di Birch’s commentary on R. v Lambert in [2001] Crim. L.R.
807, especially the last paragraph to that effect on page 809, helpfully
drawing attention to the following words of Lord Devlin, giving reasons for
the advice of the Board in Jayasena v R. [1970] A.C. 618 at 624C-E, PC
(seemingly not cited in Lambert):
"Their Lordships do not understand what is meant by the phrase
‘evidential burden of proof’. They understand, of course, that in trial by
jury a party may be required to adduce some evidence in support of his
case, whether on the general issue or on a particular issue, before that
issue is left to the jury. How much evidence has to be adduced depends
upon the nature of the requirement. It may be such evidence as, if
believed and left uncontradicted and unexplained, could be accepted by
the jury as proof. It is doubtless permissible to describe the requirement
as a burden, and it may be convenient to call it an evidential burden. But
it is confusing to call it a burden of proof. Further, it is misleading to call it
a burden of proof, whether described as legal or evidential or by any other
adjective, when it can be discharged by the production of evidence that
falls short of proof. The essence of the appellant’s case is that he has not
got to provide any sort of proof that he was acting in private defence. So it
is a misnomer to call whatever it is that he has to provide a burden of
proof …"
It is true that section 3(1) requires courts, through the medium of
interpretation, to strive for compatibility, if necessary to reading necessary
safeguards into a statute or by giving a provision a meaning that it would
not ordinarily bear. But there must be some limit to the extent to which
the plain meaning of statutory language can be ignored or simply changed
in the cause of securing compatibility. Those who are governed by, and
seek to order their conduct according to, statutory words are entitled to a
broad measure of certainty as to what they mean, not some contrary or
wholly different meaning which a court, if and when the matter reaches it,
might or might not consider permissible under section 3(1) driven by an
imperative to find compatibility at all costs.
In our view, where there is plain incompatibility between the ordinary and
natural meaning of statutory words whatever the context, and Article 6(2),
the courts should take care not to strive for compatibility by so changing
the meaning of those words as to give them a sense that they cannot, in
the sense intended by section 3(1), possibly bear."
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50. We have set out Auld LJ’s reasoning because it is important in relation to the
Reference where in view of our conclusions, it will be necessary for us to
consider whether we should read down what was intended to be a legal
burden so that it becomes an evidential burden. This is a separate topic to
which we must now come.
Reading Down
51. Section 3 of the HRA 1998 requires an interpretative exercise. Auld LJ, dealing
with the same section with which we are concerned, namely section 352 of
the IA Act 1986, clearly sets out the difficulties in reading down that section.
However, in the same way as Auld LJ would have followed Carass on this
issue if it had been necessary so to do, we here apply Lambert where all their
Lordships (except for Lord Hutton, who did not consider the issue) thought the
burden could be treated as an evidential one. We also draw attention to the
fact that sections involving reverse burdens deal with the onus of proof but
make no reference to the standard of proof. This is invariably the case with
legislation of this nature. When legislation puts the onus on the prosecution it
does not state what is the standard of proof. It is taken for granted. The
position is the same when the onus is placed on a defendant. The section is
silent as to the standard of proof if this cannot be gleaned from the use of a
word such as "proof". The Court then applies the appropriate standard. The
exercise might not, therefore, strictly be one of interpretation. Rather, it is a
case of Parliament having required a reverse burden and the court being left
with the responsibility of applying the appropriate standard of proof according
to the circumstances. On this approach, there should be no difficulty in a court
deciding that an evidential standard is appropriate. Taking into account
section 3 of the HRA 1998 and the general assumption that Parliament does
not intend to legislate in a manner which contravenes Article 6, it is
acceptable to treat the same section as requiring the application of a legal
burden in one situation and an evidential burden in a different situation when
the same statutory "defence" applies to different provisions in the same
legislation (see the Reference and Edwards).
Guidance to the Crown and Magistrates Courts
52. We are very conscious that we have discussed the authorities at length.
However, we have not done so in an exhaustive manner. Many other
authorities could have been referred to. At least our examination provides
convincing evidence that the authorities would benefit from being reconciled
so as to ease the task of courts of first instance who have to apply reverse
burden provisions. The House of Lords will be in a much better position than
we are to clarify the position. However, what we can attempt to do is to try to
provide the same guidance for lower courts. The guidance is of a general
nature and will need to be applied lightly and recognising that it may not be
appropriate in all situations, lower courts should be robust and not allow
extensive argument. Our hope is that, if courts bear in mind the following
general principles, they will not go far wrong.
The General Guidance
A) Courts should strongly discourage the citation of authority to them
other than the decision of the House of Lords in Johnstone and this
guidance. Johnstone is at present the latest word on the subject.
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B) The common law (the golden thread) and the language of
Article 6(2) have the same effect. Both permit legal reverse burdens of
proof or presumptions in the appropriate circumstances.
C) Reverse legal burdens are probably justified if the overall burden of
proof is on the prosecution i.e., the prosecution has to prove the essential
ingredients of the offence, but there is a situation where there are
significant reasons why it is fair and reasonable to deny the accused the
general protection normally guaranteed by the presumption of innocence.
D) Where the exception goes no further than is reasonably necessary
to achieve the objective of the reverse burden (i.e. it is proportionate), it
is sufficient if the exception is reasonably necessary in all the
circumstances. The assumption should be that Parliament would not have
made an exception without good reason. While the judge must make his
own decision as to whether there is a contravention of Article 6, the task
of a judge is to "review" Parliament’s approach, as Lord Nicholls indicates.
E) If only an evidential burden is placed on the defendant there will be
no risk of contravention of Article 6(2).
F) When ascertaining whether an exception is justified, the court must
construe the provision to ascertain what will be the realistic effects of the
reverse burden. In doing this the courts should be more concerned with
substance than form. If the proper interpretation is that the statutory
provision creates an offence plus an exception that will in itself be a strong
indication that there is no contravention of Article 6(2).
G) The easier it is for the accused to discharge the burden the more
likely it is that the reverse burden is justified. This will be the case where
the facts are within the defendant’s own knowledge. How difficult it would
be for the prosecution to establish the facts is also indicative of whether a
reverse legal burden is justified.
H) The ultimate question is: would the exception prevent a fair trial? If
it would, it must either be read down if this is possible; otherwise it should
be declared incompatible.
I) Caution must be exercised when considering the seriousness of the
offence and the power of punishment. The need for a reverse burden is
not necessarily reflected by the gravity of the offence, though, from a
defendant’s point of view, the more serious the offence, the more
important it is that there is no interference with the presumption of
innocence.
J) If guidance is needed as to the approach of the European Court of
Human Rights, that is provided by the Salabiaku case at para 28 of the
judgment where it is stated that "Article 6(2) does not therefore regard
presumptions of fact or of law provided for in the criminal law with
indifference. It requires states to confine them within reasonable limits
which take into account the importance of what is at stake and maintains
the rights of the defence".
Preparatory Hearings
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53. We now turn to consider preparatory hearings. Here it is necessary to
distinguish between preparatory hearings under Part III of the CPIA 1996 and
statutory pre-trial hearings under Part IV of the same Act. Both can make a
valuable contribution to the effective judicial management of cases, the
importance of which is increasing.
54. The decision to order a preparatory hearing under Part III rather than a pretrial
hearing under Part IV has at least three immediate consequences for the
trial itself. First, an order for a preparatory hearing, in effect, starts the trial
(section 30). As explained in Re Kanaris [2003] 1 WLR 443 this impacts on
the protection provided by section 2(2) of the Prosecution of Offences Act
1985 for defendants who are remanded in custody. Further, it establishes the
identity of the trial judge who, having ordered and decided the preparatory
hearing, should then normally preside over the subsequent trial (R v
Southwark Crown Court ex parte Commissioners for Customs and Excise
[1993] 1 WLR 764). Third, provided leave to appeal is obtained in the usual
way, the decisions of the trial judge at the preparatory hearing may be
appealed to this Court. If so, the empanelling of the jury must be postponed
until the appeal is determined, or abandoned (section 35(1)). Therefore,
although the trial is started, there is a simultaneous risk of delay due to the
possibility of an interlocutory appeal to this Court. These significant
consequences immediately distinguish the statutory regime of a preparatory
hearing from the different statutory regime of a pre-trial hearing and ruling.
55. We must notice two further developments, already enacted in the Criminal
Justice Act 2003 ("CJA 2003"), and awaiting implementation. By sections 309
and 310 of the CJA 2003, amendments will be made to Part III of the CPIA
1996. We shall refer to them in their context. Perhaps more important, by
Part 9 of the CJA 2003, the prosecution is given a general right of appeal in
respect of evidentiary "rulings" made by the judge during or for the purposes
of the trial, which include rulings that the defendant has no case to answer. In
short, before long, the system of interlocutory appeals will be further
extended. This will have implications for the work of this Court, in particular
the arrangements for listing and disposing of appeals against conviction as
well as sentence, and the organisation of limited resources. There is,
therefore, a risk that an increased use of interlocutory appeals could gradually
permeate the criminal justice system so that the need for trials to be driven
forward to their eventual conclusion will somehow be perceived to be less
imperative. As against this risk it needs to be recognised that appeals against
preparatory hearings have a real advantage for long or complex cases. They
can, for example, avoid the unnecessary quashing of convictions and retrials
because of misdirections and they can substantially shorten trials.
56. It follows that the decision whether to proceed to a preparatory or pre-trial
hearing requires an informed judgment, and close attention to the statutory
provisions which create the jurisdiction to order a preparatory hearing. By
section 29 of the CPIA 1996 a judge of the Crown Court lacks power to order
a preparatory hearing unless:
"(1) … it appears to [him] that an indictment reveals a case of such
complexity, or a case whose trial is likely to be of such length, that
substantial benefits are likely to accrue from a hearing –
(a) before the jury are sworn, and
(b) for any of the purposes mentioned in subsection (2) …
(2) For the purposes of those of
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