Retrospective Appeal and Shifting Burdens

7 July 2001

There were two central issues. The first issue was: given that the conviction was prior to the implementation of the Human Rights Act 1998 on 2 October 2000, should any re-interpretation of the law brought about by the implementation of the HRA between conviction and appeal result in the appeal being allowed? The second issue was: is the shifting of the legal (or persuasive) burden in S.28(2) of the Misuse of Drugs Act 1977 (MDA) onto the accused in violation of the express right in Article 6(2) to be presumed innocent until proved guilty?

Save for Lord Steyn, their Lordships all held that neither the Court of Appeal, nor the House of Lords, had jurisdiction to consider on appeal a ruling of a trial judge that was in accordance with law at the time when it was made, just because the HRA had brought about a different interpretation of the law subsequently. The main reasoning was based upon the HRA itself. S.22(4) of the HRA expressly entitles a person to rely on the right in S.7(1) (b) to rely on Convention rights to challenge any act (or proposed act) in any legal proceedings, even if the act occurred before the implementation of the HRA. But, this S.7(1)(b) right only applies when those proceedings were brought by or instigated by a public authority; not otherwise. S.7(6) of the HRA includes within the definition of "legal proceedings" in S.7(1) first, proceedings brought by or at the instigation of a public authority; and secondly, appeal proceedings. Because S7(6) separately itemises these two, the fact that S.22(4) expressly applies the retrospective effect only to proceedings brought or instigated by a public authority, and does not refer to appeal proceedings, its effect is limited to proceedings brought by or at the instigation of a public authority and it does not apply to appeal proceedings. One important point to highlight is that the effect of this decision is limited to appeals based upon a ruling or a summing up by the trial judge. Where in fact the "act" which is said to have been in contravention of the European Convention on Human Rights was by a public authority bringing or instigating proceedings (most often the Crown Prosecution Service), then the retrospective effect of the HRA will allow for an appeal where the law has changed between the original act complained of and the appeal (see Lord Hope at para. 107). This much was probably clear from R v DPP, ex parte Kebilene [2000] 2 AC 326, but it is now expressly stated by the House of Lords. So, if in a particular case, the Crown Prosecution Service had decided that a prosecution should be brought on the basis of the law as it was prior to 2 October 2000, but that law has now changed, and that change would have led to a different decision, then an appeal could be brought. It is interesting to speculate about whether the House of Lords would really have followed this to its logical conclusion had the facts of the present case been different. If the re-interpretation of S.28(2) of the MDA had meant that the Crown would have had insufficient evidence even to have been able to establish a prima facie case, the logic of their Lordships in this case would have led them to conclude that they did have jurisdiction to hear an appeal.

All of their Lordships dismissed the appeal and would have done so even had they ruled that they had jurisdiction to hear it. Whilst strictly obiter, the largest part of their Speeches deal with what would have been their Opinions had they had jurisdiction. All five held that the trial judge had directed the jury correctly on the law as it had obtained at the time of trial. That law was that S.28(2) of the MDA shifted the legal burden onto the accused to show on balance of probabilities that he neither knew, nor suspected, nor had reason to suspect that the bag he undoubtedly possessed (on the usual principles) contained cocaine, as in fact it did (see R v McNamara (1988) 87 Cr App R 246). Four of their Lordships (Lord Hutton dissenting) went on to rule that such a shift of legal burden was incompatible with Art. 6(2). As is now abundantly clear, the Art. 6(2) right is not absolute, since it is a constituent right of the absolute right to a fair trial (Brown v Stott [2001] 2 WLR 817). In Saliabaku v France (1988) 13 EHRR 379, it was held that contracting States can introduce presumptions of fact or law (shifting burdens), but they had to "confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence" (see para. 28). Thus, the principle of proportionality is once again crucial. Balancing the risk of an accused being convicted when jury remains in doubt about his state of mind as to the contents of the bag on the one hand, against the legitimate desire of society to convict and punish drug pushers on the other, was it proportionate to place a legal burden on the accused? Lord Hutton thought it was, hence his dissenting Speech. The remainder of their Lordships thought that it was not. They took particular account of the fact that S.5(3) of the MDA carries a maximum sentence of life. It is worthy of note, in passing, that such factors are highly relevant, since it makes much weightier the risk to the accused. If the maximum sentence had been a limited fine, might the balance have been the other way? The majority of their Lordships felt that the way of resolving the incompatibility of S.28(2) with Art. 6(2) was to re-interpret S.28(2). Unlike in R v A (Lawtel C8001849), no words had to be implied. Rather, the previously accepted interpretation of S28(2) shifting a legal burden, could easily be changed to a shift of an evidential burden. This would not be disproportionate (eg. see Lord Steyn at paras. 37-38). What this means in practice not only remains to be seen, but also was not the same for each of their Lordships. For example, Lord Hope at para. 91 thought that the difference in practice between placing on the accused an evidential burden, as opposed to a legal burden, is "likely in almost every case that can be imagined to be minimal." Whereas, Lord Steyn at para. 37 thought that the "transfer of a legal burden amounts to a far more drastic interference with the presumption of innocence than the creation of an evidential burden on the accused". Lord Clyde at para. 150 thought that where only an evidential burden was placed on the accused, "the maximum obligation on the accused is merely to raise a doubt of substance in relation to the prosecution case..." It is clear that the accused must do more than "merely mouth the words of the section" (Lord Slynn at para. 17), but beyond this, trial courts, if not higher courts, will have to put flesh on the